                      In the
                 Court of Appeals
         Second Appellate District of Texas
                  at Fort Worth
               ___________________________

                    No. 02-15-00201-CR
               ___________________________

              MICHAEL RAY SENN, Appellant

                              V.

                    THE STATE OF TEXAS


            On Appeal from the 213th District Court
                   Tarrant County, Texas
                 Trial Court No. 1308222R


Dissenting Opinion on Remand and on Rehearing by Justice Gabriel
     DISSENTING OPINION ON REMAND AND ON REHEARING

      The majority holds that because the State failed to prove that appellant Michael

Ray Senn actually committed bigamy at the time he sexually assaulted his biological

daughter, the evidence was insufficient to prove the alleged first-degree enhancement,

entitling Senn to a new trial on punishment. Because I believe the court of criminal

appeals 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, I would initially conclude that the State met its burden of proof regarding the

enhancement allegation and would request a response to the State’s motion for

rehearing.

      The majority points out an inconsistency in one of the cases controlling this

court’s analysis: Arteaga v. State, 521 S.W.3d 329 (Tex. Crim. App. 2017). In one

portion of its opinion, the court of criminal appeals declares that in a prosecution for

sexual assault including the enhancement allegation, the State “is required to prove

facts constituting bigamy.” Id. at 335. The court then immediately followed this

statement with a clarifying, and now pivotal, footnote:

      When we discuss “facts that would constitute bigamy,” we do not mean
      that the State has to prove that the defendant committed the offenses of
      sexual assault and bigamy. What we mean is that, to elevate second-
      degree felony sexual assault to first-degree felony sexual assault . . . , the
      State must prove that the defendant committed sexual assault and that, if
      he were to marry or claim to marry his victim, or to live with the victim
      under the appearance of being married, then he would be guilty of
      bigamy.


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Id. at 335 n.9.

       I agree with the majority that these two holdings conflict and give this court

inconsistent guidance on the State’s burden of proof on the sexual-assault

enhancement. And if the court of criminal appeals had stopped there, I possibly

would have deferred to the majority’s choice of the appropriate holding to follow.

But I disagree with the majority to the extent its choice is based on the location of the

“would have constituted” holding in the court of criminal appeals’ opinion. The court

of criminal appeals has held that it is not constrained to follow its own footnotes, but

it has recognized that it is bound by footnotes authored by the United States Supreme

Court. See Gonzales v. State, 435 S.W.3d 801, 813 n.11 (Tex. Crim. App. 2014) (stating

in a footnote that although it is not “bound” by its footnote holdings, it is bound by

Supreme Court holdings contained in footnotes). As the court of criminal appeals is

bound by the court tasked with the discretionary review of its opinions, we also

should be bound by the court of criminal appeals’ similar directives to us. Further,

the court of criminal appeals frequently relies on its own footnotes, weakening its

prior pronouncements that footnotes have minimal precedential value. See, e.g., Estes

v. State, 546 S.W.3d 691, 699 & n.50 (Tex. Crim. App. 2018) (quoting Arteaga,

521 S.W.3d at 335 n.9 for that opinion’s holding); McClintock v. State, 444 S.W.3d 15,

20 & n.20 (Tex. Crim. App. 2014) (citing State v. Gobert, 275 S.W.3d 888, 891–92 n.12

(Tex. Crim. App. 2009) as support for what the court previously “held”); Sanchez v.

State, 995 S.W.2d 677, 683 (Tex. Crim. App. 1999) (citing Boykin v. State, 818 S.W.2d

                                           3
782, 785–86 & 786 n.4 (Tex. Crim. App. 1991) to support legal holding). See generally

Gonzales, 435 S.W.3d at 813 n.11 (“Finally, it is not clear how much precedential value

a pronouncement delivered by this Court in a footnote should carry, considering that

we have stated [in a footnote] that footnotes ‘should receive minimal precedential

value.’” (quoting Young v. State, 826 S.W.2d 141, 144 n.5 (Tex. Crim. App. 1991)).

Disregarding the placement of a court of criminal appeals’ holding—in the text or in a

footnote—seems appropriate especially because the court of criminal appeals recently

and routinely began placing all of its supporting citations in footnotes. See, e.g., Beham

v. State, No. PD-0638-17, 2018 WL 4344389, at *1–7 (Tex. Crim. App. Sept. 12, 2018);

White v. State, 549 S.W.3d 146, 147–58 (Tex. Crim. App. 2018).

      In any event, the court of criminal appeals did not stop at its “facts constituting

bigamy” holding in the text. In Arteaga, Judge Kevin Yeary filed a concurring opinion

that addressed the inconsistency between the text and footnote 9 and posited that the

correct holding was that “the State need not ‘prove facts constituting bigamy’ in the

sense that it must prove the actor actually committed bigamy.” 521 S.W.3d at 341

(Yeary, J., concurring). Indeed, he concluded that because footnote 9 clarified the

court’s holding that the facts need only show bigamy would have been committed if

the perpetrator were to marry the victim, he was “satisfie[d] . . . that the Court’s

understanding [was] the same as [his] own.” Id. at 344. The Arteaga majority did not

respond to Judge Yeary’s stated understanding of its holding.



                                            4
      Almost a year after Arteaga, the court of criminal appeals again addressed the

sexual-assault enhancement in Estes. 546 S.W.3d at 699–702. The Estes court relied

on Arteaga and began its analysis of section 22.011(f)—the sexual-assault

enhancement—by summarizing the Arteaga holding to be that as stated in footnote 9:

“We have interpreted Section 22.011(f) as essentially requiring proof ‘that the

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

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

would be guilty of bigamy.’” Id. at 699 & n.50 (quoting Arteaga, 521 S.W.3d at 335

n.9). Therefore, the court of criminal appeals recognized that its holding in Arteaga

required the State to establish that the alleged offense would constitute bigamy if the

victim and the perpetrator were married or held themselves out to be married, not

that bigamy was actually committed.

      Accordingly, I would hold that the State was required to proffer sufficient

evidence that if Senn had married or held himself out to be married to his daughter,

he would have committed bigamy.1 Because the State did so by proffering undisputed

evidence that Senn was married to someone else at the time he sexually assaulted his

daughter, I would preliminarily conclude that the sexual-assault enhancement was


      1
        The fact that Senn was barred from marrying his daughter by consanguinity
does not affect an analysis of the statutory sexual-assault enhancement, which refers
solely to bigamy. See Arteaga, 521 S.W.3d at 338; see also Cope v. State, No. 05-17-
00515-CR, 2018 WL 2926752, at *3 (Tex. App.—Dallas June 7, 2018, no pet.) (mem.
op., not designated for publication).


                                          5
supported by the evidence and would request a response to the State’s motion for

rehearing.2 See Tex. R. App. P. 49.2. Because the majority does not, I respectfully

dissent.


                                                     /s/ Lee Gabriel
                                                     Lee Gabriel
                                                     Justice

Publish

Delivered: October 25, 2018




       The court of criminal appeals, by vacating our prior judgment, also remanded
       2

Senn’s fourth issue in which Senn argued that the jury charge erroneously lacked a
bigamy definition. State v. Senn, No. PD-0145-17, 2017 WL 5622955, at *1 (Tex.
Crim. App. Nov. 22, 2017) (not designated for publication). Because the majority
does not address Senn’s fourth issue after sustaining his first issue, I express no
opinion on the merits of issue four. In his petition for discretionary review, Senn did
not challenge this court’s prior determination of his second and third issues.

                                          6
