LOPEZ, RITO

Lopez was convicted of multiple sexual assaults of his step-daughter. The offenses were enhanced to first-degree felonies under Tex. Penal Code § 22.011(f), which applies “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 [the bigamy statute].”  The State argued Lopez was prohibited from marrying his victim because he was already married (to her mother). There was no evidence of actual bigamy (i.e., that Lopez married, claimed to marry, or lived as married with the victim).

Lopez appealed and argued that § 22.011(f) should be limited to instances of actual bigamy.  The court of appeals considered competing statements in the Court of Criminal Appeals’ opinions and orders and ultimately agreed with Lopez. It remanded the cases for a new punishment hearing on the unenhanced offenses.

The State argues that Arteaga v. State, 521 S.W.3d 329 (Tex. Crim. App. 2017), and Estes v. State, 546 S.W.3d 691 (Tex. Crim. App. 2018), have already answered this question.  Section 22.011(f) does not require proof of bigamy—only that he would be guilty of bigamy if he were to marry, claim to marry, or live as if married with the victim. The State contends that the literal, plain meaning of § 22.011(f) applies to Lopez as a married person.  In requiring the victim to be someone the defendant “was prohibited from marrying . . . under [the bigamy statute],” the enhancement doesn’t require him to marry the victim, just that the bigamy statute forbids it.  The State argues that the literal language of the statute may be broad but it is not absurd that the legislature would want to punish a defendant more harshly when either he or his victim is already married.