Court of Appeals of Texas, Second District, Fort Worth
THE 213TH DISTRICT COURT OF TARRANT COUNTY TRIAL COURT NO.
OPINION ON REMAND
forth in our opinion on original submission, Appellant
Michael Ray Senn sexually assaulted and impregnated his
biological daughter Brenda while he was married to her
step-mother. A jury convicted Senn of prohibited sexual
conduct, for which he was sentenced to twenty years'
imprisonment,  and of sexual assault, for which he was
sentenced to life imprisonment after the jury affirmatively
answered a special issue statutorily enhancing his sexual
assault conviction from a second-degree felony to a
first-degree felony under Texas Penal Code section 22.011(f).
See Tex. Penal Code Ann. § 22.011(f) (West
Supp. 2017), § 25.02(a)(1), (c) (West 2011). After
addressing Senn's four issues-challenging the sufficiency
of the evidence to trigger the enhancement, the
constitutionality of section 22.011(f) as applied to him, and
the absence of a bigamy instruction from the jury charge-we
affirmed both of his convictions. See Senn v. State
(Senn I), No. 02-15-00201-CR, 2017 WL 117306, at *7
(Tex. App.-Fort Worth Jan. 12, 2017), vacated,
State v. Senn (Senn II), 2017 WL 5622955,
at *1 (Tex. Crim. App. Nov. 22, 2017) (not designated for
per curiam opinion, the court of criminal appeals vacated our
judgment and remanded this case to us because we did not have
the benefit of its subsequent opinion in Arteaga,
which construed for the first time the enhancement provision
in Texas Penal Code section 22.011(f) in the context of
jury-charge error. See Senn II, 2017 WL 5622955, at
*1 (citing Arteaga v. State, 521 S.W.3d 329 (Tex.
Crim. App. 2017)). After applying Arteaga's
holding-that "[t]he legislature intended for the State
to prove facts constituting bigamy whenever it alleges that
the defendant committed sexual assault, and the State invokes
Section 22.011(f)" to enhance a sexual assault
conviction from a second-degree felony to a first-degree
felony-to the facts here, we hold that the evidence is
insufficient to trigger the statutory enhancement of
Senn's sexual assault charge. Accordingly, we will affirm
Senn's unchallenged conviction for prohibited sexual
conduct, modify the trial court's judgment on the sexual
assault to reflect a conviction for a second-degree felony,
reverse the judgment on the sexual assault as to punishment,
and remand the sexual assault case for a new trial on
The Evidence Is Insufficient to Trigger the Statutory
first issue, Senn argues that the evidence is insufficient to
the trigger the statutory enhancement under section 22.011(f)
because there is no evidence that he was engaged in a
bigamous relationship with Brenda.
Standard of Review
due-process review of the sufficiency of the evidence, we
view all of the evidence in the light most favorable to the
jury's answer to the special issue to determine whether
any rational trier of fact could have found the essential
elements of the special issue beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct.
2781, 2789 (1979); Gale v. State, 998 S.W.2d 221,
224 (Tex. Crim. App. 1999); Stewart v. State, 350
S.W.3d 750, 755 (Tex. App.- Amarillo 2011, pet. ref'd).
determine whether the State has met its burden under
Jackson to prove a defendant's guilt beyond a
reasonable doubt, we compare the elements of the special
issue as defined by the hypothetically correct jury charge to
the evidence adduced at trial. Cf. Jenkins v. State,
493 S.W.3d 583, 599 (Tex. Crim. App. 2016); Crabtree v.
State, 389 S.W.3d 820, 824 (Tex. Crim. App. 2012)
("The essential elements of the crime are determined by
state law."). A hypothetically correct jury charge is
one that accurately sets out the law, is authorized by the
indictment, does not unnecessarily increase the State's
burden of proof or restrict the State's theories of
liability, and adequately describes the particular offense
for which the defendant was tried. Jenkins, 493
S.W.3d at 599. The law as authorized by the indictment means
the statutory elements of the special issue as modified by
the factual details and legal theories contained in the
charging instrument. Cf. id.
The Statutory Provisions at Issue
22.011(f) of the penal code enhances the offense of sexual
assault from a second-degree felony to a first-degree felony
"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 Ann.
§ 22.011(f). Section 25.01 (the bigamy statute) states,
(a) An individual commits an offense if:
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 ...