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

       KEASLER, J., filed a concurring opinion, in which HERVEY, J., joined.

                                CONCURRING OPINION

       I would join the Court’s opinion, but there is one issue that I think the Court, striving

for concision, oversimplifies. In determining whether the plain meaning of Texas Penal

Code Section 22.011(f) would lead to absurd results the Legislature could not possibly

have intended, the Court notes our 2018 opinion in Estes v. State. 1 In so doing, however,

the Court miscasts Estes’s reasoning. I write separately to set the record straight.

       Estes involved an as-applied challenge to the constitutionality of Texas Penal Code

Section 22.011(f). Estes, a married man, sexually assaulted a fourteen-year-old girl. He

was convicted of sexual assault of a child, and, despite the fact that he did not marry his

victim, claim to marry his victim, or live with his victim under the appearance of being




       1
        See Majority Opinion at 8 (discussing Estes v. State, 546 S.W.3d 691, 701 (Tex.
Crim. App. 2018)).
                                      LOPEZ/SENN/RODRIGUEZ CONCURRENCE—3

married, his sentence was enhanced pursuant to Section 22.011(f). Challenging the

enhancement, Estes argued that Section 22.011(f) existed solely to combat “the blight of

bigamy and polygamy.” 2 There was no other justification for it. And because he was not

actually engaging in bigamy or polygamy, applying the enhancement to his conduct

arbitrarily discriminated against him for being married.

       Because Estes came to us as an as-applied constitutional challenge, we took into

account the crucial, case-bound fact that Estes’s victim was a child. It was in the unique

context of child victims that we discussed the marital perception of trustworthiness.

       There is an indelible connection in our society between the union of marriage
       and the ideas of “family,” “home,” “stability,” “security, safe haven”—and,
       indeed, “children.” These connections were not conjured from thin air; they
       are deeply embedded in the public’s time-honored understanding of what
       marriage entails. Just as the Supreme Court did, the Legislature could
       rationally conclude that to be a married man or woman is to project the kind
       of “stability” and “safe haven” that many children find comfort in. It could
       rationally conclude that one who has solemnly sworn to forsake all others
       might be perceived, at least by some parents, as being less likely to make
       sexual advances upon their children. And it could rationally see fit to declare
       that one who would enjoy this marital perception of trustworthiness will be
       punished all the more severely if he uses it to groom, and then sexually abuse,
       a child. 3

We therefore concluded that in cases where a married person sexually assaults a child,

there is a rational basis for applying the Section 22.011(f) enhancement even if the offender

was not actually practicing bigamy or polygamy.


       2
         See Estes, 546 S.W.3d at 699 (quoting Arteaga v. State, 521 S.W.3d 329, 337
(Tex. Crim. App. 2017)).
       3
           Id. at 701 (cleaned up) (quoting Obergefell v. Hodges, 135 S. Ct. 2584, 2599
(2015)).
                                       LOPEZ/SENN/RODRIGUEZ CONCURRENCE—4

       The Court argues that “much of [Estes’s] reasoning would apply equally” to cases

in which a married offender sexually assaults an adult. 4 That’s because, according to the

Court, a married defendant who sexually assaults an adult “abuse[s]” the deeply rooted

ideas of “family, home, safety, stability, and security” just as much as one who sexually

assaults a child. 5 But the point of Estes wasn’t that it’s rational to harshly punish a married

child rapist because he abuses the ideas of family, home, and safety per se. The point was

that, given the connection between marriage and family, home, safety, et cetera, the

Legislature could rationally assume “that married people have an easier time gaining the

trust of children and parents than unmarried persons.” 6 It could rationally deduce that

“those who are inclined to make sexual advances upon children, and whose marital status

would make the commission of a crime in satisfaction of those urges incrementally easier

to consummate, may need an additional deterrent to further dissuade them from” doing so. 7

And “it could reasonably conclude that increasing the range of punishment in these

circumstances is appropriately suited to that task.” 8

       This reasoning loses much of its persuasiveness in adult-victim cases. Grown-ups

understand, to a degree that children do not, that a person’s being married does not



       4
           Majority Opinion at 8.
       5
           Id.
       6
           See Estes, 546 S.W.3d at 702 (plurality portion).
       7
           Id.
       8
           Id. at 703.
                                       LOPEZ/SENN/RODRIGUEZ CONCURRENCE—5

necessarily make him or her worthier of trust. Adults are no likelier to put themselves in

risky situations merely because their would-be attackers assure them that, because they are

married, they can be trusted. As a result, the “additional deterrent” rationale that we

employed in Estes does not suffice to show that Section 22.011(f)’s plain meaning is non-

absurd in adult-victim cases.

       Neither does it suffice to quote Estes’s observation that, under the literal text of

Section 22.011(f), “anyone who engages in sexually assaultive, would-be-bigamous

conduct may trigger the enhancement, whether his acts are inflicted upon a child or not.” 9

The point in controversy here is not whether the literal text of Section 22.011(f) is broad

enough to encompass adult-victim sexual assaults. It plainly is. At issue is whether

applying Section 22.011(f)’s plain meaning in cases where a monogamously married

person sexually assaults an adult is an absurd result “the Legislature could not possibly

have intended.” 10 Estes doesn’t speak to that issue, in that passage or any other.11

Ultimately, more must be said about why the plain meaning of Section 22.011(f) is non-




       9
            See Majority Opinion at 8 (quoting Estes, 546 S.W.3d at 699).
       10
             See Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991) (emphasis
omitted).
       11
           See Estes, 546 S.W.3d at 706 (“The particular facts and circumstances that
inform—and limit—our ruling today are that Estes is a married man convicted of sexually
assaulting a child.”) (plurality portion).
                                      LOPEZ/SENN/RODRIGUEZ CONCURRENCE—6

absurd in adult-victim cases. As relevant here, Senn is one such case. 12 Senn, a married

man, sexually assaulted his adult biological daughter.

       Here is how I would go about showing that Section 22.011(f) does not lead to absurd

results in cases in which a married person sexually assaults a non-spousal adult. The way

I see it, the Legislature could rationally conclude that, in such cases, the offender has

actually victimized two people: (1) the person whom he sexually assaulted, and (2) his

spouse, upon whom he has inflicted a wound that is psychological rather than physical.

The Legislature might “possibly” have intended to mete out a harsher sentence for one

whose conduct hurts multiple people, and that is enough to save Section 22.011(f)’s plain

meaning in adult-victim cases. 13      A similar rationale may justify applying Section

22.011(f)’s plain language in cases in which an unmarried person sexually assaults a

married person, but that issue is not yet before the Court.

       I respectfully concur in the result.

Filed: April 29, 2020

Publish




       12
         See Senn v. State, No. 02-15-00201-CR, 2018 WL 5291889 (Tex. App.—Fort
Worth 2018).
       13
            See Boykin, 818 S.W.2d at 785 (emphasis omitted).
