APPELLANT'S PETITION FOR DISCRETIONARY REVIEW FROM THE
THIRTEENTH COURT OF APPEALS BURNET COUNTY
Hervey, J., delivered the opinion of the Court in which
Keller, P.J., Alcala, Richardson, Yeary, Newell, Keel,
Walker, JJ., joined. Yeary, J., filed a concurring
opinion. Keasler, J., did not participate.
case presents a question of jury-charge error. The offense of
sexual assault is a first-degree felony if the State proves
that the victim was a person whom the defendant was
"prohibited from marrying or purporting to marry or with
whom the [defendant] was prohibited from living under the
appearance of being married under Section 25.01
[Bigamy]." The State alleged that Appellant, Robert
Michael Arteaga, Jr., committed first-degree felony sexual
assault of a child because he was "prohibited from
marrying" the victim, his biological
daughter. Without objection, the trial court
included in the abstract portion of the jury charge the
consanguinity statute from the Family Code, which explains
when certain marriages are void due to the familial
relationship between the parties. Arteaga was convicted, and
on appeal he argued in part that the trial court erred to
include the consanguinity statute because, pursuant to
Section 22.011(f) of the Penal Code, the State could prove
that he was "prohibited from marrying" his daughter
only if he engaged in bigamous conduct. He also contended
that he was egregiously harmed by the charge error because
the jury's only guidance concerning the "prohibited
from marrying" allegation was the consanguinity statute.
The court of appeals affirmed the judgment of the trial
court. Arteaga now argues that the court of appeals erred and
that we should reverse its judgment and remand this cause for
a new trial. We granted Arteaga's petition for
discretionary review to examine his contentions.
was charged in two indictments with twenty-eight counts of
sexual assault of a child and seventeen counts of possession
of child pornography. The charges stemmed from his multi-year
long sexual assaults against his young daughter (Doe) and for
possessing lewd photographs of her engaging in sexual acts.
There was a consolidated trial, and at that trial, Doe
testified that Arteaga began molesting her when she was just
four years old and that he told her that what they did was
"something special that they shared" and "not
to tell anyone." A few years later, Arteaga told Doe,
who was between twelve and thirteen years old at the time,
that he wanted to have a baby with her and that, if she
became pregnant, they would get married. During the period of
molestation, Arteaga was not married. The investigation and
subsequent charges came about after Doe made an outcry to a
high school counselor.
abstract portion of the jury charge, the trial court included
Section 6.201 of the Family Code, which defines when a
marriage is void based on consanguinity. Tex. Fam. Code
§ 6.201. There was, however, no mention of the
consanguinity statute in the application portion of the
charge, and the jury was instructed that it could convict
Arteaga only under the circumstances alleged in the
indictment (i.e., that Arteaga was "prohibited from
marrying" his daughter). The prohibited-from-marrying
allegation was submitted to the jury as a special issue to be
considered only if it found Arteaga guilty of one or more of
the submitted sexual-assault counts. The jury convicted Arteaga
of twenty-one counts of sexual assault of a child,
it answered the special issue in the affirmative. For each
count of sexual assault of a child, Arteaga was assessed a
life sentence, which the trial court stacked, and was fined
appealed the convictions, arguing that based on the wording
of the sexual-assault statute (Section 22.011(f)), which
references the bigamy statute, the State could prove that he
was "prohibited from marrying his daughter" under
only the bigamy statute. Arteaga v. State, 511
S.W.3d 675, 679 (Tex. App.-Corpus Christi 2016). He also
asserted that, because the jury charge did not require the
State to prove that he was "prohibited from marrying his
daughter" under the bigamy statute, he was egregiously
harmed. Id. The court of appeals disagreed, holding
that the language of Section 22.011(f) is ambiguous and that
Arteaga's interpretation would lead to absurd results.
Id. at 687. It also concluded that including the
consanguinity statute in the jury charge was not error, and
even if it was, Arteaga was not egregiously harmed.
Id. at 687-88.
first step in analyzing a claim of jury charge error is to
determine whether the submitted charge was erroneous.
Barrios v. State, 283 S.W.3d 348, 350 (Tex. Crim.
App. 2009). If it was, then we must determine whether the
defendant was harmed by that error. Id.
Jury Charge in This Case
count of the sexual-assault indictment, it was alleged that
the victim was a child who was under seventeen years of age
and was a person "whom [Arteaga] was prohibited from
marrying . . . ." Section 22.011(f) of the
sexual-assault statute states that,
(f) An offense under this section is a felony of the second
degree, except that an offense under this section is a felony
of the first degree 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.
Tex. Penal Code § 22.011(f) (emphasis added). Section
25.01, which governs the offense of bigamy, states that,
(a)An individual commits an offense if:
(1)he is legally married and he:
(A)purports to marry or does marry a person other than his
spouse in this state, or any other state or foreign country,
under circumstances that would, but for the actor's prior
marriage, constitute a marriage; or
(B)lives with a person other than his spouse in this state
under the appearance of being married; or
(2)he knows that a married person other than his spouse is
married and he:
(A)purports to marry or does marry that person in this state,
or any other state or foreign country, under circumstances
that would, but for the person's prior marriage,
constitute a marriage; or
(B)lives with that person in this state under the appearance
of being married.
(b)For purposes of this section, "under the appearance
of being married" means holding out that the parties are
married with cohabitation and an intent to be married by
(e) An offense under this section is a felony of the third
degree, except that if at the time of the commission of the
offense, the person whom the actor marries or purports to
marry or with whom the actor lives under the appearance of
being married is:
(1)17 years of age, the offense is a felony of the second
(2)16 years of age or younger, the offense is a felony of the
Id. § 25.01.
guide the jury's resolution of the
prohibited-from-marrying allegation, the trial court included
the consanguinity statute in the abstract portion of the
A marriage is void if one party to the marriage is related to
the other as:
(1)an ancestor or descendant, by blood or adoption;
(2)a brother or sister, of the whole or half blood or by
(3)a parent's brother or sister, of the whole or half
blood or by adoption; or
(4)a son or daughter of a brother or sister, of the whole or
half blood or by adoption.
Tex. Fam. Code § 6.201.
the trial court's responsibility to deliver to the jury
"a written charge distinctly setting forth the law
applicable to the case . . . ." Tex. Code Crim. Proc.
art. 36.14; Vega v. State, 394 S.W.3d 514, 518 (Tex.
Crim. App. 2013). As "law applicable to the case, "
the definitions of words or phrases defined by statute must
be included in the jury charge. Villarreal v. State,
286 S.W.3d 321, 329 (Tex. Crim. App. 2009) (the jury must be
instructed regarding statutory definitions affecting the
meaning of an element of the offense). If a word or phrase is
not defined, the trial court may nonetheless define them in
the charge if they have an established legal or technical
meaning. Medford v. State, 13 S.W.3d 769, 772 (Tex.
Crim. App. 2000); see Tex. Gov't Code §
311.011(b) ("Words and phrases that have acquired a
technical or particular meaning, whether by legislative
definition or otherwise, shall be construed
determine if it was error to include the consanguinity
statute in the jury charge, we must first construe Section
22.011(f) of the Texas Penal Code.
Law of Statutory Construction
construe a statute according to its plain meaning unless such
a construction would lead to absurd results that the
legislature could not possibly have intended or the language
is found to be ambiguous. Boykin v. State, 818
S.W.2d 782, 785 (Tex. Crim. App. 1991). To determine plain
meaning, we examine the wording and structure of the statute,
construing the words and phrases according to the rules of
grammar and usage, unless they are defined by statute or have
acquired a particular meaning. Liverman v. State,
470 S.W.3d 831, 836 (Tex. Crim. App. 2015). We also presume
that every word has been used for a purpose and that each
word, phrase, clause, and sentence should be given effect if
reasonably possible. State v. Hardy, 963 S.W.2d 516,
520 (Tex. Crim. App. 1997)
language of the statute is plain but effectuating that
language would lead to absurd results or is ambiguous, we may
consult extra-textual sources to ascertain the collective
intent of the legislature. Boykin, 818 S.W.2d at
785; see Tex. Gov't Code Chp. 311 (Code
Construction Act). A statute is ambiguous when it is
reasonably susceptible to more than one interpretation.
Baird v. State, 398 S.W.3d 220, 229 (Tex. Crim. App.
2013). Extra-textual factors that we can consider include (1)
the object sought to be attained by the legislature; (2) the
circumstances under which the statute was enacted; (3) the
legislative history; (4) the common law or former statutory
provisions, including laws on the same or similar subjects;
(5) the consequences of a particular construction; (6) the
administrative construction of the statute; and (7) ...