1. “The court of appeals erred in concluding that section 22.011(f) of the Texas Penal Code requires the State to prove commission of an actual bigamy offense to elevate Appellant’s punishment range for sexual assault to a first-degree felony offense.”
2. “The court of appeals’ decision requiring the State to prove an actual bigamy offense under section 22.011(f) of the Texas Penal Code is contrary to Arteaga v. State, 521 S.W.3d 329 (Tex. Crim. App. 2017).”
3. “The court of appeals erred in disregarding the clarification contained in footnote 9 of Arteaga merely because it was relegated to a footnote.”
Senn was convicted of sexually assaulting his biological daughter. The offense was enhanced to a first-degree felony under Tex. Penal Code § 22.011(f), which applies “if the victim was a person whom the actor was prohibited from marrying or purporting to marry or with whom the actor was prohibited from living under the appearance of being married under Section 25.01 [the bigamy statute].”
On appeal, Senn challenged, among other claims, the sufficiency of the evidence to trigger the enhancement and its constitutionality as applied to him. Shortly after the court of appeals affirmed his conviction, the Court of Criminal Appeals held in Arteaga v. State, 521 S.W.3d 329 (Tex. Crim. App. 2017), that the language “the actor was prohibited from” and “under Section 25.01” applied to each alternative in § 22.011(f)—i.e., “marrying” “purporting to marry,” and “living under the appearance of being married.” The court of appeals’ opinion in Senn—which had permitted any marriage prohibition, not just a prohibition under the bigamy statute— was vacated in an order that repeated the language of the Arteaga holding: “[t]he legislature intended for the State to prove facts constituting bigamy” to invoke the enhancement.
On remand, the en banc court of appeals interpreted this language to limit § 22.011(f) to instances of actual bigamy. It rejected the State’s reliance on footnote 9 in Arteaga (which clarified that the State only had to prove facts that would constitute bigamy) because the Court of Criminal Appeals did not consider its footnotes to be binding precedent. One dissenting justice would have followed even footnotes, because they were from a higher court.
The State argues that the court of appeals has misinterpreted Arteaga and failed to read the opinion as a whole, including footnote 9. It contends that the State proved one of the scenarios that Arteaga held met the requirements of § 22.011(f): Senn would be guilty of bigamy if he were to marry, claim to marry, or live as if married with the victim because he was already married at the time of the sexual assault.