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Senn v. State

Court of Appeals of Texas, Second District, Fort Worth

May 17, 2018

MICHAEL RAY SENN APPELLANT
v.
THE STATE OF TEXAS STATE

          FROM THE 213TH DISTRICT COURT OF TARRANT COUNTY TRIAL COURT NO. 1308222R

          OPINION ON REMAND

          SUE WALKER JUSTICE

         I. Introduction

         As set forth in our opinion on original submission, Appellant Michael Ray Senn sexually assaulted and impregnated his biological daughter Brenda[1] 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, [2] 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 publication).

         In a 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 punishment.[3]

         II. The Evidence Is Insufficient to Trigger the Statutory Enhancement

         In his 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.

         A. Standard of Review

         In our 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).

         To 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.

         B. The Statutory Provisions at Issue

         Section 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:

         (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 ...

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