Senn v. State

• Decision Date: 12 January 2017
• Docket Number: NO. 02–15–00201–CR,02–15–00201–CR
• Citation: 551 S.W.3d 172
• Parties: Michael Ray SENN, Appellant v. The STATE of Texas, State
• Court: Texas Court of Appeals

551 S.W.3d 172

Michael Ray SENN, Appellant

v.The STATE of Texas, State

NO. 02–15–00201–CR

Court of Appeals of Texas, Fort Worth.

DELIVERED: January 12, 2017

Discretionary Review Granted November 22, 2017

Ordered Published March 5, 2018

ATTORNEY FOR APPELLANT: WILLIAM BIGGS, WILLIAM BIGGS, PLLC, FORT WORTH, TX.

ATTORNEY FOR STATE: SHAREN WILSON, CRIM. DIST. ATTY., DEBRA WINDSOR, CHIEF, POST CONVICTION, HELENA FAULKNER, PAGE SIMPSON, ERIN COFER, ASST. CRIM. DIST. ATTYS., FORT WORTH, TX.

PANEL: WALKER, MEIER, and GABRIEL, JJ.

SUE WALKER, JUSTICE

I. INTRODUCTION

Appellant Michael Ray Senn sexually assaulted and impregnated his eighteen-year-old mentally-disabled biological daughter Brenda.¹ A jury convicted Senn of sexual assault, for which he was sentenced to life imprisonment after his conviction was statutorily enhanced from a second-degree felony to a first-degree felony under Texas Penal Code section 22.011(f).² See Tex. Penal Code Ann. § 22.011(f) (West 2011). In four issues, Senn challenges 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. For the reasons stated below, we will affirm.³

II. THE EVIDENCE IS SUFFICIENT TO TRIGGER THE ENHANCEMENT

In his first issue, Senn argues that the evidence is insufficient to trigger the statutory enhancement under section 22.011(f). Specifically, Senn argues that 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, 61 L.Ed.2d 560 (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).

B. The Law on Construing Statutes

In interpreting statutes, we presume that the legislature intended for the entire statutory scheme to be effective. See Tex. Gov't Code Ann. § 311.021(2) (West 2013); Murray v. State , 302 S.W.3d 874, 879, 881 (Tex. Crim. App. 2009) (in construing statute, court looked to other provisions within entire "statutory scheme" rather than merely the single, discrete provision at issue). We give effect to the plain meaning of the statute's text unless the text is ambiguous or the plain meaning leads to absurd results that the legislature could not have possibly intended. Ex parte Perry , 483 S.W.3d 884, 902 (Tex. Crim. App. 2016) ; Boykin v. State , 818 S.W.2d 782, 785 (Tex. Crim. App. 1991). In determining plain meaning, we consult dictionary definitions, apply the rules of grammar, and consider words in context. Perry , 483 S.W.3d at 902. If the plain language of a statute would lead to absurd results, or if the language is not plain but rather ambiguous, "then and only then , out of absolute necessity, is it constitutionally permissible for a court to consider, in arriving at a sensible interpretation, such extratextual factors as executive or administrative interpretations of the statute or legislative history." Boykin , 818 S.W.2d at 785–86 ; see also Mahaffey v. State , 364 S.W.3d 908, 913 (Tex. Crim. App. 2012).

C. 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 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.

Id. § 25.01 (West Supp. 2016).

D. Facts Pertinent to the Special Issue

The trial court's charge instructed the jury on the offense of sexual assault as alleged in count one of the indictment⁴ and included the following special issue, which substantially tracked section 22.011(f) :

Do you find beyond a reasonable doubt that at the time the offense of sexual assault, as set out above, was committed, [Brenda] 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?

The jury found Senn guilty of the offense of sexual assault as charged in count one of the indictment and responded affirmatively to the special issue, thus elevating the offense from a second-degree felony to a first-degree felony. See Tex. Penal Code Ann. § 22.011(f). As a result, the punishment range was five to ninety-nine years or life and a fine not to exceed $10,000. See id. § 12.32 (West 2011). The jury assessed punishment on the sexual assault conviction at life imprisonment, and the trial court sentenced Senn accordingly.

E. Proof of a Bigamous Relationship Is Not Required Here

Under a plain reading of section 22.011(f), a sexual assault may be enhanced to a first-degree felony when the victim is a person (1) whom the actor was prohibited from marrying or purporting to marry or (2) with whom the actor was prohibited from living under the appearance of being married under section 25.01. See id. § 22.011(f). Section 22.011(f)'s phrase "prohibited from marrying" is not modified by the phrase "under Section 25.01"; there is no comma preceding "under Section 25.01" to indicate that it was intended to modify the preceding clauses and not just the last one. See Tex. Gov't Code Ann. § 311.011(a) (West 2013) (requiring courts to construe words and phrases "according to the rules of grammar and common usage"); Ludwig v. State , 931 S.W.2d 239, 241 (Tex. Crim. App. 1996) (noting that "[g]enerally, the presence of a comma separating a modifying clause in a statute from the clause immediately preceding is an indication that the modifying clause was intended to modify all the preceding clauses and not only the last antecedent one" and presuming that this convention of punctuation applies equally to phrases as to clauses); William Strunk, Jr. & E.B. White, The Elements of Style 30 (4th ed. 2000) ("Modifiers should come, if possible, next to the words they modify."); Bryan A. Garner, Garner's Modern American Usage 431 (1998) ("When a word refers to an antecedent, the true antecedent should generally be the closest possible one."). Moreover, a comparison of the text of section 22.011(f) to the text of section 25.01 reveals that section 25.01 defines the offense of bigamy using the phrases "purports to marry" or "lives with ... under the appearance of being married." See Tex. Penal Code Ann. § 25.01(a). Section 25.01 does not include the phrase "prohibited from marrying." See id. Thus, under both a plain reading of the statute—applying the rules of grammar, and a comparison of the language used in section 25.01—looking to other provisions within the statutory scheme, it is clear that the phrase "prohibited from marrying" is not tied to the phrase "under Section 25.01." The State was therefore not required to show that Senn was engaged in a bigamous relationship with Brenda under section 25.01 in order to trigger application of penal code section 22.011(f)'s enhancement provision.

Senn argues that Rosseau controls the outcome here. See State v. Rosseau , 396 S.W.3d 550, 557–58 (Tex. Crim. App. 2013). Relying on the statement from Rosseau —that "[t]he ‘under Section 25.01 ’ portion of the statute suggests that the provision applies when both sexual assault and bigamous conduct are alleged," Senn argues that Rosseau "stands for the proposition that both sexual assault and bigamous conduct must be proven to trigger the enhancement under § 22.011." See id. at 558. Rosseau , however, dealt with a facial challenge to section 22.011(f), and the statement that Senn relies on was made by the Texas Court of Criminal Appeals in the context of recognizing one valid application of the statute—the punishment of bigamists who sexually assault their purported spouses—to defeat Rosseau's facial challenge. See id. We do not interpret this holding as requiring proof of bigamous conduct to trigger enhancement under section 22.011(f).⁵ The State was therefore not required to prove the existence of a bigamous relationship between Senn and Brenda. See Arteaga v. State , 511 S.W.3d 675, 691-92 (Tex. App.—Corpus Christi 2015, pet. granted) (stating that because the State did not charge appellant with bigamy, the State should not have been required to prove the existence of a bigamous relationship, an element not contained in the indictment).

F. Evidence Supporting the Enhancement

Here, the enhancement under section 22.011(f) was triggered if the State proved that Brenda was a person whom Senn was prohibited (1) from marrying, (2) from purporting to marry, or (3) from living under the appearance of being married under section 25.01. See Tex. Penal Code Ann. § 22.011(f). The evidence at trial focused on whether Brenda was a person whom Senn was prohibited from marrying.⁶ The State put on evidence that Senn impregnated Brenda and that Brenda...