IN THE COURT OF CRIMINAL APPEALS
            OF TEXAS
                NO. PD-1382-18



        RITO GREGORY LOPEZ, Appellant

                      v.

             THE STATE OF TEXAS

ON STATE’S PETITION FOR DISCRETIONARY REVIEW
     FROM THE SEVENTH COURT OF APPEALS
                MOORE COUNTY



                NO. PD-1265-18



         MICHAEL RAY SENN, Appellant

                      v.

             THE STATE OF TEXAS

ON STATE’S PETITION FOR DISCRETIONARY REVIEW
     FROM THE SECOND COURT OF APPEALS
               TARRANT COUNTY
                       NOS. PD-0013-19, PD-0014-19, PD-0015-19



                          ABEL DIAZ RODRIGUEZ, Appellant

                                               v.

                                 THE STATE OF TEXAS

           ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
                   FROM THE FIRST COURT OF APPEALS
                           GALVESTON COUNTY




            K EEL, J., delivered the opinion of the Court in which K ELLER, P.J., and
R ICHARDSON, W ALKER, and S LAUGHTER, JJ., joined. K EASLER, J., filed a
concurring opinion in which H ERVEY, J., joined. Y EARY and N EWELL, JJ.,
concurred.

                                        OPINION

       We granted these petitions to clarify whether the State must prove commission of

bigamy in order to enhance punishment of sexual assault under Penal Code Section

22.011(f).1

       Section 22.011(f) enhances sexual assault 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.” T EX. P ENAL C ODE § 22.011(f) (West 2005) (amended 2019).

Section 25.01 proscribes bigamy.


       1
        Unless otherwise specified, references to “Section” are to the Texas Penal Code and
references to Section 22.011(f) are to the version of the statute in effect at the time of the
offenses. The relevant portion of Section 22.011 was recodified as Section 22.011(f)(1) in 2019.
                                                                           Lopez et al.–Page 3

       The appellants in these cases were convicted of sexual assault and enhanced under

Section 22.011(f). Each was married to someone other than his victim at the time of the

sexual assault, but none committed bigamy with his victim. On appeal they challenged

the sufficiency of the evidence to prove the enhancements because the State did not prove

bigamy. We hold that the State does not have to prove commission of bigamy to trigger

the enhancement under Section 22.011(f).

I. Standard of Review

       To determine whether evidence is sufficient to prove an enhancement we usually

view the evidence in the light most favorable to the State. Pruett v. State, 510 S.W.3d

925, 927 (Tex. Crim. App. 2017). But when evidentiary sufficiency turns on the meaning

of a statute, we must resort to statutory interpretation, which is a question of law that we

review de novo. Id.; Liverman v. State, 470 S.W.3d 831, 836 (Tex. Crim. App. 2015).

       Statutory construction depends on the plain meaning of the statute’s language

unless it is ambiguous or the plain meaning would lead to absurd results that the

legislature could not have possibly intended. Liverman, 470 S.W.3d at 836. To

determine plain meaning, we read the statute in context and give effect to each word,

phrase, clause, and sentence if reasonably possible, and construe them according to any

applicable technical definitions and otherwise according to the rules of grammar and

common usage. Lang v. State, 561 S.W.3d 174, 180 (Tex. Crim. App. 2018); Liverman,

470 S.W.3d at 836. If the plain meaning is not ambiguous or does not lead to absurd
                                                                           Lopez et al.–Page 4

results, we do not consider extra-textual factors. Boykin v. State, 818 S.W.2d 782,

785–86 (Tex. Crim. App. 1991).

II. Construction of Penal Code Section 22.011(f)

       A. Literal Text of the Statute

       At the time of the offenses in question, Penal Code Section 22.011(f) said:

       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.

T EX. P ENAL C ODE § 22.011(f). Section 25.01 defines bigamy as follows:

       (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.

T EX. P ENAL C ODE § 25.01. The question is whether enhancement under Section

22.011(f) required the State to prove that the defendant actually committed bigamy or

simply that the defendant would be guilty of bigamy if he were to marry or purport to

marry the victim or to live with the victim under the appearance of being married.

       B. Is the Plain Language Clear and Unambiguous?

       A statute is ambiguous if it is reasonably susceptible to more than one
                                                                         Lopez et al.–Page 5

interpretation. Lang, 561 S.W.3d at 180. Statutory language is unambiguous when it

permits only one reasonable understanding. Yazdchi v. State, 428 S.W.3d 831, 838 (Tex.

Crim. App. 2014).

       The plain language of Section 22.011(f) says the enhancement applies when the

victim is 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. Because the word “prohibited” does not have a

technical meaning and is not defined in the statute itself, we may look to standard

dictionaries to determine the common usage. Baird v. State, 398 S.W.3d 220, 228 (Tex.

Crim. App. 2013).

       The word “prohibit” is defined as “1: to forbid by authority or command :

ENJOIN, INTERDICT . . . 2a: to prevent from doing or accomplishing something :

effectively stop . . . b: to make impossible : DEBAR, HINDER, PRECLUDE.”

W EBSTER’S T HIRD N EW INTERNATIONAL D ICTIONARY U NABRIDGED 1813 (2002).

“Prohibited” is defined as “not permitted : forbidden by authority.” M ERRIAM-W EBSTER

D ICTIONARY, https://www.merriam-webster.com/dictionary/prohibited (last visited Feb.

14, 2020).

       Applying these definitions to Section 22.011(f), a defendant is subject to

enhancement if the victim was a person whom the defendant was “not permitted” to

marry, purport to marry, or live with under the appearance of being married or whom the
                                                                          Lopez et al.–Page 6

defendant was “forbidden by authority,” “prevented,” “effectively stopped,” or

“precluded” from marrying or purporting to marry or from living with under the

appearance of being married under Section 25.01. This language does not require a

showing that the defendant actually married or purported to marry the victim or lived with

the victim under the appearance of being married—on the contrary, the definitions of

“prohibit” show that Section 25.01 would “forbid” a marriage or purported marriage

between a defendant and a victim if the defendant was legally married to someone else at

the time of the sexual assault.

       Enhancement under Section 22.011(f) requires that, under Section 25.01, a

marriage or purported marriage between the defendant and the victim or cohabitation by

them under the appearance of marriage would be prevented, precluded, effectively

stopped, hindered, enjoined, or forbidden. That would be the case if the defendant was

married to someone else. In other words, Section 22.011(f) requires the State to prove

that the defendant was legally married to someone other than the victim at the time of the

sexual assault and would be guilty of bigamy if he were to marry or purport to marry the

victim or live with the victim under the appearance of being married. It does not require

proof that the defendant actually committed bigamy.

       This conclusion is supported by Arteaga v. State, 521 S.W.3d 329 (Tex. Crim.

App. 2017), superseded by statute, Melissa’s Law, 2019, 86th Leg., R.S., ch. 738, § 2,

sec. 22.011(f), 2019 T EX. S ESS. L AW S ERV. 2049, 2050 (to be codified at T EX. P ENAL
                                                                              Lopez et al.–Page 7

C ODE § 22.011(f)(2)).2 The issue in Arteaga was whether the “prohibited from marrying

or purporting to marry” enhancement of Section 22.011(f) was limited to bigamy or also

included the Family Code’s ban on marrying a close relative. Arteaga, 521 S.W.3d at

332–33; T EX. F AM. C ODE § 6.201. Section 22.011(f) was ambiguous on this point

because “under Section 25.01” could have been read as modifying only the prohibition

that immediately proceeded it—the prohibition against living under the appearance of

being married—or it could have been read as also modifying the prohibitions against

marrying or purporting to marry. Arteaga, 521 S.W.3d at 335–36.

       To resolve the ambiguity, we examined Section 22.011(f) in conjunction with the

bigamy statute. Arteaga, 521 S.W.3d at 336. We noted that the bigamy statute prohibits

a person from engaging in six types of conduct. Id.; T EX. P ENAL C ODE §25.01. We

reasoned that Section 22.011(f)’s use of the phrase “prohibited from” incorporated all six

bigamy prohibitions. Arteaga, 521 S.W.3d at 336. Reading Section 22.011(f) together

with Section 25.01, we concluded that the Legislature intended the State to prove facts

constituting bigamy when enhancing punishment under Section 22.011(f). Arteaga, 521

S.W.3d at 336. We added a footnote to say that the State had to “prove that the defendant

committed sexual assault and that, if he were to marry or claim to marry his victim, or to


       2
         The enhancement under Section 22.011 was amended in 2019 to also increase the
punishment range when sexual conduct between the defendant and the victim is prohibited by
consanguinity under Section 25.02. Our interpretation of Section 22.011(f) at the time of the
offenses in the cases before us is not influenced by this amendment because “in interpreting a
prior law, we generally accord little weight to subsequent legislative enactments.” Volosen v.
State, 227 S.W.3d 77, 80 (Tex. Crim. App. 2007).
                                                                           Lopez et al.–Page 8

live with the victim under the appearance of being married, then he would be guilty of

bigamy.” Arteaga, 521 S.W.3d at 335 n.9.

       C. Would Application of the Plain Language Lead to Absurd Results?

       In Estes v. State, we held that there was a rational basis for treating child sexual

assault cases differently based on the marital status of the defendant. 546 S.W.3d 691,

701 (Tex. Crim. App. 2018). We described the “marital perception of trustworthiness”

and concluded that it was rational for the Legislature to punish more severely one who

violates that trust in grooming and sexually abusing a child. Id. Our analysis in Estes

stemmed from a necessarily fact-based as-applied challenge to Section 22.011(f)’s use in

a child sexual assault case, but much of the reasoning would apply equally to an adult

victim of sexual assault. As Estes points out, there is a strong societal connection

between the union of marriage and the ideas of family, home, safety, stability, and

security. Id. A married defendant may abuse these deeply-rooted beliefs even if his

victim is an adult. “And the literal text of Section 22.011(f) is not explicitly directed

towards sexual assaults involving children. Under the literal text, anyone who engages in

sexually assaultive, would-be-bigamous conduct may trigger the enhancement, whether

his acts are inflicted upon a child or not.” Id. at 699. We conclude that imposing a higher

degree of punishment to deter sexual assault by a married defendant does not lead to

absurd results that the Legislature could not have intended.

       D. Do We Need to Consider Extra-Textual Sources?
                                                                           Lopez et al.–Page 9

       Because, other than the ambiguity resolved in Arteaga, the plain language of

Section 22.011(f) is clear and unambiguous and giving effect to the plain meaning of the

statute does not lead to absurd consequences, we need not turn to extra-textual sources.

Extending our consideration beyond the plain language of the statute would encroach on

the lawmaking powers of the legislature. Boykin, 818 S.W.2d at 785–86.

       E. Holding

       We hold that the State does not have to prove commission of bigamy to trigger the

enhancement under Section 22.011(f). The requirement for enhancement under Section

22.011(f) is satisfied if the State proves that the defendant was legally married to

someone other than the victim at the time of the sexual assault.

III. Conflict Among the Lower Courts

       Lower courts have issued conflicting decisions on the application of Section

22.011(f) because Arteaga used the phrases “facts constituting bigamy” and “facts that

would constitute bigamy” interchangeably. See, e.g., Arteaga, 521 S.W.3d at 344 (Yeary,

J., concurring) (“some of the language in the text of the Court’s opinion remains

ambiguous”); Lopez v. State, 567 S.W.3d 408, 410–13 (Tex. App.—Amarillo 2018)

(attempting to reconcile language in the body of the Arteaga opinion with language in the

explanatory footnote); Senn v. State (Senn IV), No. 02-15-00201-CR, 2018 Tex. App.

LEXIS 8722, at *9-11 (Tex. App.— Fort Worth October 25, 2018) (op. on remand & on

reh’g) (same). Consequently, two courts held that the State was required to prove the
                                                                        Lopez et al.–Page 10

defendant committed bigamy, and one court held the State was required to prove that the

defendant was legally married to someone else at the time of the sexual assault. Compare

Senn IV, 2018 Tex. App. LEXIS 8722, at *14 (requiring the State to prove “facts

constituting one of the six bigamy prohibitions listed in Section 25.01”), and Lopez, 567

S.W.3d at 413 (same), with Rodriguez v. State, 571 S.W.3d 292, 298–99 (Tex. App.—

Houston [1st Dist.] 2018) (State not required to show actual bigamy; evidence that

defendant was married to another was sufficient). We turn now to these cases.

IV. Application of Our Holding to the Cases Before Us

       A. Lopez v. State

              1. Background

       Lopez was married to the victim’s mother at the time of the offenses; the victim

was his 14-year-old stepdaughter. Lopez filed a motion to quash the enhancement

paragraphs that alleged 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, Penal Code.” The trial

judge denied the motion. After a bench trial, Lopez was convicted of eleven counts of

first-degree felony sexual assault and sentenced to 25 years in prison for each count.

              2. Court of Appeals

       On appeal Lopez challenged the sufficiency of the evidence to show enhancement.

The court of appeals said that merely proving that the accused was married when the
                                                                        Lopez et al.–Page 11

assault occurred was not enough; the State was required to prove facts constituting one of

the six bigamy prohibitions. Lopez, 567 S.W.3d at 413. The court of appeals said there

was no evidence that Lopez married or purported to marry the victim or lived with the

victim under the appearance of being married, so the offenses should not have been

enhanced to first-degree felonies. Id. The case was remanded for a new punishment

hearing. Id. at 416.

              3. Application of Section 22.011(f)

       The court of appeals erred in holding that Section 22.011(f) requires the State to

prove the commission of bigamy. For the reasons given above, the evidence that Lopez

was legally married to the victim’s mother at the time of the sexual assault was sufficient

for enhancement.

              4. Conclusion

       We reverse the judgment of the court of appeals in Lopez v. State, 567 S.W.3d at

416.

       B. Senn v. State

              1. Background

       The State presented evidence that Senn was married to the victim’s stepmother at

the time of the offense; the victim was his daughter. The jury charge included a special

issue asking whether 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
                                                                         Lopez et al.–Page 12

under the appearance of being married” but did not reference Section 25.01 or include a

definition of bigamy. The jury found Senn guilty of sexual assault enhanced to a first-

degree felony under the special issue and imposed a life sentence.

              2. Court of Appeals

       Senn raised four issues on appeal: (1) the evidence was insufficient for

enhancement, (2) the statute was vague, (3) the statute violated equal protection, and (4)

the trial court’s charge erred in failing to include a bigamy instruction. Senn IV, 2018

Tex. App. LEXIS 8722 at *3. Considering Senn’s first issue, the court of appeals

interpreted Arteaga as requiring the State to prove “facts constituting one of the six

bigamy prohibitions listed in section 25.01.” Senn IV, 2018 Tex. App. LEXIS 8722 at

*14. The court of appeals declined to apply the “facts that would constitute bigamy”

language from footnote 9 of Arteaga. Senn IV, 2018 Tex. App. LEXIS 8722 at *9–12.

       After arduous study, we are unable to reconcile footnote 9’s articulation of
       the evidence the State is required to produce to trigger enhancement under
       section 22.011(f)—facts that would constitute bigamy—with the Arteaga
       opinion’s articulation of the evidence the State is required to produce to
       trigger enhancement under section 22.011(f)—facts constituting bigamy.

Senn IV, 2018 Tex. App. LEXIS 8722 at *9. The court of appeals said that evidence of

the sexual assault and of Senn’s marriage to the victim’s step-mother did not amount to

facts constituting one of the six bigamy prohibitions under Section 25.01. Senn IV, 2018

Tex. App. LEXIS 8722 at *14–15. The court said that “no facts exist that Senn

committed a bigamy offense” with the victim, and the evidence was “insufficient to
                                                                         Lopez et al.–Page 13

‘prove facts constituting bigamy’ as required by Arteaga’s holding.” Senn IV, 2018 Tex.

App. LEXIS 8722 at *15–16.

       The dissent said that this Court “has twice stated that the State need only introduce

evidence showing that the defendant would have been guilty of bigamy if he were to

marry or claim to marry his victim.” Id. at *18 (Gabriel, J., dissenting).

       The court of appeals modified the trial court’s judgment on sexual assault to a

second-degree felony and remanded the case for a new punishment hearing. The court of

appeals did not consider Senn’s other three claims. Id. at *17–18.

              3. Application of Section 22.011(f)

       The court of appeals misconstrued Arteaga and erred in holding that Section

22.011(f) requires the State to prove the commission of an actual bigamy offense. The

evidence that Senn was married to another when he sexually assaulted the victim was

sufficient to enhance punishment under Section 22.011(f).

              4. Conclusion

       We reverse the judgment of the court of appeals in Senn v. State, 2018 LEXIS

8722 at *17–18 and remand the case for consideration of Senn’s sufficiency claim in light

of our holding here and for consideration of his remaining claims.

       C. Rodriguez v. State

              1. Background

       The State proved that Rodriguez was married to the victim’s mother at the time of
                                                                         Lopez et al.–Page 14

the offenses. The victim was his 14-year-old daughter. The jury charge included the

definition of bigamy and required the jury to find that “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 of the

Texas Penal Code.” The jury found Rodriguez guilty of three counts of first-degree

felony sexual assault and assessed a life sentence for each charge.

              2. Court of Appeals

       Rodriguez challenged the sufficiency of the evidence to elevate the offenses to

first-degree felonies because the State failed to prove that he actually engaged in a

bigamous relationship with his daughter. Rodriguez, 571 S.W.3d at 294–95. The court of

appeals said the State merely had to prove that, if the defendant were to marry or purport

to marry his victim or live with his victim under the appearance of being married, then he

would commit bigamy. Id. at 298. The State met this burden by proving that Appellant

was married to someone other than the victim at the time of the offenses. Id. at 299.

              3. Application of Section 22.011(f)

       Under the plain language of Section 22.011(f), the State was required to prove that

Rodriguez was legally married to someone other than the victim at the time of the

offenses; it was not required to show that Rodriguez married, attempted to marry, or lived

with the victim under circumstances that would suggest they were married. The court of

appeals applied Section 22.011(f) correctly in holding that the State’s evidence showing
                                                                        Lopez et al.–Page 15

Rodriguez was married to the victim’s mother at the time of the offenses was sufficient

for enhancement.

                4. Conclusion

          We affirm the judgments of the court of appeals in Rodriguez v. State, 571 S.W.3d

at 299.




Delivered: April 29, 2020

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