In the

Court of Appeals

Second Appellate District of Texas

at Fort Worth

___________________________

No. 02-23-00174-CR

___________________________

On Appeal from Criminal District Court No. 2

Tarrant County, Texas

Trial Court No. 1648121

Before Bassel, Womack, and Wallach, JJ.

Memorandum Opinion by Justice Womack

ERIC FOBBS, Appellant

V.

THE STATE OF TEXAS
2

MEMORANDUM OPINION

I. INTRODUCTION

A jury found Appellant Eric Fobbs guilty of two counts of sexual assault of a 

child (Counts One and Three), see Tex. Penal Code Ann. §§ 22.011(a)(2)(A), (C), and 

two counts 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 court found true that Fobbs had 

previously been convicted of sexual assault of a child under fourteen and indecency 

with a child by sexual contact; sentenced Fobbs to life imprisonment for Counts One,

Three, Four, and Five; and ordered the sentences to run concurrently.

2 See id.

§ 12.42(c)(2)(A), (B)(ii).

On appeal, Fobbs brings two points. First, he argues that the trial court erred 

by admitting character-and-propensity evidence under Section 2 of Article 38.37 of 

the Texas Code of Criminal Procedure because that provision is unconstitutional as it 

violates his due process rights. See Tex. Code Crim. Proc. Ann. art. 38.37, § 2. 

Second, he contends that the judgment for Count Three incorrectly identifies his 

offense as indecency with a child by sexual contact and should be modified to reflect 

that the Count-Three offense was sexual assault of a child. 

1The jury found Fobbs not guilty of Count Two—another count alleging sexual 

assault of a child. 

2The judgment for Count One also reflects a $100 fine. The trial court, 

however, never assessed a fine when orally pronouncing Fobbs’s sentences. 
3

We have previously addressed and rejected Fobbs first point, so we overrule it 

based on our earlier authority. We agree with Fobbs’s second point, so we sustain it 

and modify the Count-Three judgment to correctly reflect that Fobbs was convicted 

of sexual assault of a child. Additionally, having noted clerical error in the Count-One 

judgment (it erroneously includes a fine), we modify it to correct the clerical error. As 

modified, we affirm the Count-One and Count-Three judgments. We affirm the 

Count-Four and Count-Five judgments.

II. BACKGROUND

The State alleged that Fobbs had committed numerous sexual offenses against 

the daughter of the woman with whom Fobbs was living. Because Fobbs does not 

contest the sufficiency of the evidence to prove his guilt for any of the charges at 

issue, we need not detail the facts leading to his convictions. When proving up its 

cases against Fobbs, citing Article 38.37, the State introduced—over Fobbs’s 

objections that Section 2 of Article 38.37 was unconstitutional—the testimony of two 

witnesses who asserted that in the 1990s, Fobbs had committed sexual offenses 

against them. See id. Both were the daughters of a different woman with whom 

Fobbs was then living. See id.

III. DISCUSSION

A. Constitutionality of Section 2 of Article 38.37

Regarding Fobbs’s first point, we have previously addressed the 

constitutionality of Section 2 of Article 38.37 and ruled that it was constitutional. 
4

Perez v. State, 562 S.W.3d 676, 686–89 (Tex. App.—Fort Worth 2018, pet. ref’d). We

thus overrule Fobbs’s first point.3

B. Clerical Error in the Count-Three Judgment

In Fobbs’s second point, he correctly notes that in Count Three, the jury found 

him guilty of sexual assault of a child but that the judgment incorrectly reflects that he 

was found guilty of indecency with a child by sexual contact. The State agrees that the 

judgment is incorrect and should be modified. 

We may correct clerical errors. French v. State, 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 

sustain Fobbs’s second point 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-One Judgment

We have noted clerical error in the Count-One judgment; namely, it incorrectly 

reflects that the trial court assessed a $100 fine. The record, however, shows that 

when sentencing Fobbs, the trial court did not include any fines. The written 

judgment must comport with the oral sentence. Taylor v. State, 131 S.W.3d 497, 500 

(Tex. Crim. App. 2004); Shuler v. State, 650 S.W.3d 683, 686 (Tex. App.—Dallas 2022, 

no pet.).

3

In his brief, Fobbs acknowledges that we have previously ruled against his 

argument. But he also correctly notes that the Texas Court of Criminal Appeals has 

yet to rule on this issue and that he must present it to us to preserve it for further

review. 
5

We have the power to make the record speak the truth and to correct a 

judgment when we have the necessary information to do so. Blair v. State, No. 02-23-

00073-CR, 2024 WL 123594, at *4 (Tex. App.—Fort Worth Jan. 11, 2024, no pet.)

(mem. op., not designated for publication); Turner, 626 S.W.3d at 101. Should a 

judgment improperly reflect the sentence that the trial court orally pronounced, the 

proper remedy is to reform the judgment. See Shuler, 650 S.W.3d at 686; Rodgers v. 

State, No. 02-18-00383-CR, 2019 WL 4010231, at *3 (Tex. App.—Fort Worth Aug. 

26, 2019, pet. ref’d) (mem. op., not designated for publication) (“[T]he judgment 

adjudicating guilt reflects a $191.68 fine that was not pronounced by the trial court 

when it sentenced [the a]ppellant. This is a clerical 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 designated for publication).

IV. CONCLUSION

We overrule Fobbs’s first point, sustain his second point complaining of 

clerical error in the Count-Three judgment, and hold that the Count-One judgment 

contains clerical error.

Accordingly, for the Count-One judgment, we delete the $100 fine, modify the 

Count-One judgment to reflect that no fine was assessed, and affirm the Count-One 

judgment as modified. 
6

For the Count-Three judgment, we delete the portion of the judgment 

identifying the offense as indecency with a child by sexual contact, modify the 

judgment to reflect that Fobbs was convicted of sexual assault of a child, and affirm 

the Count-Three judgment as modified. 

We affirm the Count-Four and Count-Five judgments.

/s/ Dana Womack

Dana Womack

Justice

Do Not Publish

Tex. R. App. P. 47.2(b)

Delivered: May 23, 2024