## In the Court of Appeals Second Appellate District of Texas

at Fort Worth

___________________________ No. 02

- 23

- 001 74

- CR

_ ____ ______________________

On Appeal from Criminal District C ourt No. 2

Tarrant County, Texas Trial Court No. 1648121

Befor e Bassel, Woma ck, and Walla ch, JJ

. M emorandum Opinion by Jus t ice Womack 

### E RIC 

### F OBBS 

### , Appellant

V 

### . T HE 

### S TATE OF 

### T EXAS2 MEMORANDUM OPINION I. INTRODUCTION A jury found Appe llant E ri c Fobbs guilty o f two counts of sex ual assault of a child (Counts One and Three) , see Tex. Penal Code Ann. §§ 22.011(a)(2 )(A), (C) , and
two c o unts of indecency with a child by sexual contact (Counts Four and Five) , see id. § 21.11(a)(1)

. 1 At the punishment trial, the trial cour t found true that Fobb s had prev iously been convict ed o f sexual assault of a c hild under fourteen and indecency with a child by sexual contac t ; sentenced Fob bs to life imprisonment for Counts O n e, Three, Four, and Five ; and ordered t he sentences to run concurrently

. 2 See i d. § 12.42(c)(2)(A), (B)(ii). On appeal, Fobbs b rings two point s . First, he arg ues that the trial court erred by admitting ch arac ter

- and

- propensity evidence under Section 2 of Article 38.37 of the Texas Code of C riminal Procedure bec ause that pro v i sion is unconstitutio nal as it violates his due process rights. See T ex. Code Crim. Pr oc. Ann. art. 38.37, § 2. Second, he contends that the judgment for Count T hree incorrectly identifies his offense as indecency with a c h ild by sexual contact and should be modified to reflect that the Count

- Thre e offense was sexual assault of a child.

1 The jury foun d Fobb s not guilty of Count Two

— another count al l egin g sexual assault of a child

.

2 The judgment f

o r Cou nt O n e also reflec ts a $100 fine. The trial court, howev e r , never assesse d a fin e when orally pronouncing Fobbs’s sentences

.3

We have previously addressed and rejected Fobbs first point, so we overrule it base d on our earlier authori t y. We agree with Fobb s ’ s second point, so we sustain it

an d modi fy the Cou nt

- Three judgmen t to correctly reflect that Fob bs was convicted of sexual assault of a child. Additio nally, h aving noted clerical error in the Count

- O ne judgment (it erroneously i n cludes a fine) , we mod ify it to correct the cleric al error. A s

m odifie d , w e affirm the Count

- One an d Count

- Three judgm ents . We aff i rm the Coun t

- Fo ur and Cou nt

- Five j udgments

. II. BACKGROUND The State alleged that Fobbs had committed numerous sexual off e nses against the da ugh ter of the woman with whom Fobbs was liv ing

. Bec ause Fobbs does not contest the sufficiency of the evidence to prove his gu i l t for any of the charges at issue, we need not detail the facts leading to his conviction s. W hen proving u p its cases against Fobbs, citing Article 38.37, the State introd u ced

— over Fobbs’s objections that Section 2 of Article 38.37 was unconstitutional

— th e te stimony of two wit nesses who asserted th at in t he 1990 s , Fobb s had committed sexual offenses against th e m. See id. Both were the da ugh ters of a differe nt woman with whom Fobbs was then livin g . See id. I II. DISCUSSION A. Constitutionality of S ectio n 2 of A r ticle 38.37 Regarding Fobbs ’ s first point, we have previously addres sed th e

co ns titutionality of Section 2 of Article 38. 3 7 and ruled that it was consti tuti onal.4

Perez v. State , 562 S.W.3d 676, 68 6

– 8 9 (Tex. App.

— Fort Worth 2018, pet. ref’d)

. We thus ove r rule Fobbs ’ s first point. 3 B. Clerical Error in the Count
- Three Jud g ment I n F obbs ’ s second point , he correctly notes that in Count Thr ee, the jury foun d hi m guilty of sexual assault of a child but th at the ju d gment incorrectly reflects that he

wa s found g

uilty of indec ency with a child by sexual contact . The State agrees that the judgment is incorrect and should be modified. W e may correct clerical err ors. French v. Stat e , 830 S.W.2d 607, 609 (Tex. Crim. App. 1992) ; Turner v. State , 626 S.W.3d 88, 101 (Tex. App.

— Dallas 2021, no pet .)

. We sustai n Fobb s ’ s sec ond po int and modify the judgment for Count Three to reflect that Fobbs was convicted of sexual assault of a child. C . Clerical Error in the Count
- O ne Judgment We have noted c lerical error in th e Co unt

- One judgment ; namely, it incorrectly ref lects that th e tria l co ur t assessed a $100 fine. The re cord, ho wever, show s that

w hen sentencing Fobbs, t he trial court di d not inclu de any fines. The wr itten judgment mu st c omport with the oral senten ce. Taylor v. State , 131 S.W.3d 497, 500 (Tex. Crim. App. 2004) ; S huler v. St ate , 650 S.W.3 d 683, 686 (Tex. App.

— Dallas 2022, no pet. )

.

3 In his brief, Fobbs ackn owledges t hat we have previously ruled a gains t hi s argument. But he also corr ectly notes that the Texas Court o f Crim inal App eals has yet to rule on this issue and that he must present it to u s to preserve it for further review

.5

We have t h e power to make the record speak the truth and to correct a judgment when we have the necessary information t o do so

. Blair v. State , No. 02

- 2 3

- 00073

- CR, 2024 WL 123594, at *4 (Tex. App.

— Fort Worth Ja n. 11, 202 4, no pet.) (mem. op ., not designate d for pu b lication); Turner , 626 S.W.3d at 101

. Shoul d a judgment improperly re flect the sentence that the trial court orally pronounced , the proper rem edy is to reform the judgment. See Shuler , 650 S. W.3 d at 686 ; R odge rs v. State , No. 02

- 18

- 00383

- CR, 201 9 WL 401 0 231, at *3 (Tex. App.

— Fort Worth Aug. 26, 2019, pet. ref’d) (m em. op., not desig nated for publica tion) ( “ [T] h e judgment adjudicating guilt refl ects a $191.68 fine that was not pronounced by the trial c ourt

w hen it sentenced [the a] ppellant. This is a cle r ical error. ” ). Accordingly, we delete the $100 fine in the Count

- One judgment. See Kibler v. State , No . 02

- 23

- 00049

- CR, 2024 WL 1100481, at * 3 n.8, *4 n. 9 (Tex. App.

— Fort Worth Mar. 14, 2024, no pet. ) (mem. op., not desig n ated for publication)

. IV. CONCLUSION We overrule Fobb s ’ s first point , sustain hi s se cond point complaining of clerical error in the Count

- T hre e jud g ment , and hold that the Count

- One judgment contains clerical error. Accordingly, for the Count

- One judgm e nt, we delete the $100 fine , modify the Co unt

- O ne judg ment to reflect that no fine was assessed , and affi rm th e Count

- One judgment as modif

ied

.6

For t he C ount

- Three ju dg ment, we de lete the por ti on of the judgment identifying the offense as indecency with a child by sex ual contact , modify the judgment to reflect that Fobbs was con victed of sexual as saul t of a chil d , and affirm the Count

- Three ju dgm en t as mod ified

. We affirm th e Count

- Four and Count

- Five judgments. /s/ Dana Womack D ana Womack Justice Do Not Publish Tex

. R. App. P. 47 .2(b) Delivered : May 23, 2024