MODIFY and AFFIRM; and Opinion Filed April 10, 2015.

S

In The

Court of Appeals

Fifth District of Texas at Dallas

No. 05-13-01616-CR

CHARLES FREDRICK BELL, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 219th Judicial District Court

Collin County, Texas

Trial Court Cause No. 219-80942-2012

MEMORANDUM OPINION

Before Justices Bridges, Lang-Miers, and Myers

Opinion by Justice Lang-Miers

A jury convicted appellant Charles Fredrick Bell of eleven sexual offenses against the 

same complainant, his girlfriend’s teenage daughter. As to each count, the jury assessed 

punishment at either ten or twenty years in prison, along with a fine of either $5,000 or $10,000.1

 

Appellant raises one issue on appeal arguing that his convictions on ten counts should be 

reversed because the trial court failed to give the jury a unanimity instruction with respect to 

each separate criminal incident alleged at trial. We resolve appellant’s sole issue against him, 

modify the trial court’s judgments to correct a clerical error, and affirm the judgments as 

modified.

 1 The jury assessed punishment at 20 years in prison plus a $10,000 fine for two counts of sexual assault of a child; 20 years in prison plus a 

$5,000 fine for five counts of sexual assault of a child and two counts of indecency with a child; and 10 years in prison plus a $5,000 fine for one

count of indecency with a child and one count of sexual performance by a child. The trial court ordered the sentences and fines to run 

concurrently.
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BACKGROUND

The Complainant’s Testimony

The complainant testified that she, her mother, and her sister moved in with appellant 

during the summer before the complainant started eighth grade. The complainant started eighth 

grade in 2006 when she was 13 years old. At first the complainant did not like appellant and 

“didn’t want him to take the place of [her] dad.” But her opinion changed because appellant 

made an effort to befriend her and spent a lot of time talking to her. Appellant would tease her 

about her walk and her hair style, and said he would help her walk better and dress like a “hot 

girl.” On one occasion appellant directed the complainant to “walk[ ] up and down the stairs 

without any clothes.” When the complainant came home from school the next day, appellant 

was in her room holding her journal in his lap. He told her that he read her journal entry from 

the previous day, in which she had written about the incident on the stairs. Then appellant tore 

up the page and told her to be careful about what she writes in her journal because someone 

might find it and read it. Appellant later burned the complainant’s journals in his fireplace.

One day when the complainant was in eighth grade, appellant offered to teach the 

complainant how to dance. He first told her to face him and rub her body against his while both 

of them were wearing clothes. Then appellant took off the complainant’s pants and used his 

mouth to touch the complainant’s vagina. 

On another occasion, the complainant was in the kitchen when appellant came up behind 

her, slid his hands down the front of her pants into her underwear, and inserted his fingers into 

her vagina. This same thing happened in the kitchen on one other occasion, and the second time 

the complainant was especially scared because her mother was home and she thought she might 

come into the kitchen. The complainant did not tell her mother because she did not want to hurt 

her mother or for her mother to hate her. 
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When asked what else occurred, the complainant responded, “very frequently I gave him 

head,” meaning she put her “mouth on his penis.” Their “code word” for oral sex was “ice 

cream.” The complainant testified, “Sometimes it happened in the living room. Most of the time 

it would be in his bedroom, a couple of times at the Allen Heights Apartments.” The 

complainant was 15 or 16 when she and her mother moved out of appellant’s house and into the 

Allen Heights Apartments. While she was living in an apartment, the complainant occasionally 

called appellant and asked him to give her a ride home from school. The complainant testified 

that appellant usually expected “ice cream” (meaning oral sex) as payment for the favor. 

Starting when the complainant was a freshman, appellant also “attempt[ed] to have sex” 

with her at least two or three times. She could feel him inside her, but he would stop when she 

told him it hurt. Appellant would also have the complainant touch his penis by wrapping her 

hand around it. On one occasion when the complainant was in eighth or ninth grade, appellant 

pulled her towards him, put his hand on one of her breasts and put his mouth on her other breast, 

underneath her clothes. The complainant also testified that sometimes when appellant put his 

mouth on her vagina, he also put his finger inside her. Appellant also told the complainant that 

when she turned 18, “he would wear [her] out,” meaning “have sex with [her].” 

The Investigator’s Testimony

The investigator assigned to appellant’s case also testified for the State. She described 

her interviews with the complainant and with appellant. According to the investigator, the 

complainant told her that all of the sexual contact between the complainant and appellant 

“occurred at times when she was under the age of 17.” During appellant’s interview, he 

acknowledged having oral sex with the complainant more than once, but stated that it was after 

she turned 18. 
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Appellant’s Defense Theory

Appellant did not testify or present any other witnesses during the guilt phase of his trial. 

But during closing argument his counsel told the jury that the complainant “misrepresent[ed] 

facts.” Appellant’s counsel then essentially argued that the only sexual relationship between 

appellant and the complainant was oral sex that occurred after she turned 18, which is not a 

crime.

The Indictment, the Jury Charge, and the Verdict

As it pertains to this appeal, the indictment against appellant charged him with seven 

counts of aggravated sexual assault of child and three counts of indecency with a child.

2

 Counts 

one, three, four, and six alleged that, on or about October 1, 2007, appellant committed the 

offense of sexual assault of a child by intentionally and knowingly (1) causing the complainant’s 

female sexual organ to contact defendant’s mouth (count one); (2) causing the complainant’s 

mouth to contact appellant’s male sexual organ (count three); (3) causing appellant’s finger to 

penetrate the complainant’s female sexual organ (count four); and (4) causing appellant’s male 

sexual organ to penetrate the complainant’s female sexual organ (count six). Counts seven and 

eight alleged that, on or about October 1, 2007, appellant committed the offense of indecency 

with a child by intentionally and knowingly, with intent to arouse and gratify the sexual desire of 

any person, engaging in sexual contact by (1) causing the complainant’s hand to touch 

appellant’s genitals (count seven); and (2) touching the complainant’s breast with appellant’s 

mouth (count eight). Counts nine, ten, and thirteen alleged that, on or about November 15, 2008, 

appellant committed the offense of sexual assault of a child by intentionally and knowingly 

 2 The State also charged appellant with two lesser included offenses of indecency with a child. More specifically, with respect to each of 

the two incidents in which appellant put his hand down the complainant’s pants in the kitchen, appellant was charged in counts four and ten with 

sexual assault of a child and, in the alternative, in counts five and eleven, appellant was charged with indecency with a child by contact. The jury 

was instructed not to consider the offenses of indecency with a child by contact if they found appellant guilty of sexual assault of a child. In both 

instances the jury found appellant guilty of sexual assault of a child. The two lesser included offenses are not at issue in this appeal. Appellant 

was also charged with and convicted of inducing the sexual performance of a child in connection with making the complainant walk up and down 

the stairs naked. Appellant does not challenge his conviction for sexual performance of a child.
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(1) causing appellant’s male sexual organ to penetrate the complainant’s female sexual organ

(count nine); (2) causing appellant’s finger to penetrate the complainant’s female sexual organ 

(count ten); and (3) causing the complainant’s mouth to contact appellant’s male sexual organ 

(count thirteen). Count twelve alleged that, on or about November 15, 2008, appellant 

committed the offense of indecency with a child by intentionally and knowingly, with intent to 

arouse and gratify the sexual desire of any person, engaging in sexual contact by touching the 

complainant’s breast with appellant’s hand.

The jury charge tracked the language of the indictment and there were individual verdict 

forms for each count. The jury charge generally instructed the jury that their verdict had to be 

unanimous. The jury instructions did not, however, specifically inform the jury that they had to 

be unanimous as to which separate criminal act they believed constituted each count. Neither 

appellant nor the State objected to the charge on the ground that the jury instructions permitted 

non-unanimous verdicts.

The jury rejected appellant’s defense theory and found appellant guilty of all of the 

offenses described above.

ISSUE ON APPEAL

In a single issue on appeal appellant argues that the trial court erred because it failed to 

give the jury a “unanimity instruction requiring the jury to agree on which alleged incident of 

fondling or sex constituted the charged violations.” 

Applicable Law

“Texas law requires that a jury reach a unanimous verdict about the specific crime that 

the defendant committed. This means that the jury must ‘agree upon a single and discrete 

incident that would constitute the commission of the offense alleged.’” Cosio v. State, 353 

S.W.3d 766, 771 (Tex. Crim. App. 2011) (quoting Stuhler v. State, 218 S.W.3d 706, 717 (Tex.
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Crim. App. 2007)). Non-unanimity may result “when the State charges one offense and presents 

evidence that the defendant committed the charged offense on multiple but separate occasions.” 

Id. at 772. In that circumstance, to ensure unanimity, the jury charge “would need to instruct the 

jury that its verdict must be unanimous as to a single offense or unit of prosecution among those 

presented.” Id. 

Reversal for an unobjected-to erroneous jury instruction is proper only if the error caused 

actual, egregious harm to an appellant. See Arrington v. State, 451 S.W.3d 834, 840 (Tex. Crim. 

App. 2015). To determine whether an appellant was egregiously harmed by an erroneous jury 

instruction we consider four factors: (1) the entire jury charge; (2) the state of the evidence, 

including contested issues and the weight of the probative evidence; (3) the parties’ arguments; 

and (4) all other relevant information in the record. Id.

Analysis

In this case appellant argues that he suffered egregious harm with respect to the counts 

described above because the trial court did not instruct the jury that they had to be unanimous 

about which specific incident of criminal conduct constituted each of the alleged offenses. In 

response, the State argues that non-unanimous verdicts were not possible with respect to two of 

the counts of indecency with a child because the State charged and proved only one offense for 

each count. We agree. Count eight alleged that appellant touched the complainant’s breast with 

his mouth. Count twelve alleged that appellant touched the complainant’s breast with his hand. 

The complainant testified to one instance in which appellant put his mouth on one of her breasts 

and put his hand on the other breast. As a result, we conclude that a non-unanimous verdict was 

not possible as to counts eight and twelve. With respect to the remaining counts, the State argues 

that any error in failing to instruct the jury that they had to be unanimous about any particular 

incident of indecency or sexual assault did not cause appellant egregious harm. 
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The parties agree that the facts in this case are analogous to Arrington.

3

 The complainant 

in Arrington, the defendant’s nine-year-old daughter, testified about multiple instances of oral 

sex and sexual intercourse. Arrington, 451 S.W.3d at 835–37. The defendant testified and 

denied that he had sexually abused the complainant. Id. at 837. After the jury convicted him of 

six counts of aggravated sexual assault of a child and one count of indecency with a child, the 

defendant complained about the lack of a unanimity instruction for the first time on appeal. In 

resolving the issue in the State’s favor, the Texas Court of Criminal Appeals noted that, in 

finding the defendant guilty, the jury “necessarily found the complainant credible” and “did not 

believe [the defendant’s] categorical denial of all accusations.” Id. at 843–44. After analyzing 

all of the relevant factors, the court concluded that “the evidence in the entire record and the 

analytical meaning of the jury’s verdicts in the aggregate show that the erroneous instructions did 

not cause actual harm to [the defendant].” Id. at 845.

Drawing from the analysis in Arrington, we consider the four relevant factors outlined 

above, beginning with the entire jury charge. In this case the jury charge did not fully apprise the 

jury of the proper unanimity requirement with respect to the remaining counts at issue in this 

appeal. Instead, it included three generic unanimity instructions. First, the instruction for count 

four stated as follows: “If you unanimously agree that the defendant is guilty of Sexual Assault 

of a Child in Count IV, you need not consider Indecency with a Child by Contact in Count V.” 

Likewise, that same instruction was given for count ten: “If you unanimously agree that the 

defendant is guilty of Sexual Assault of a Child in Count X, you need not consider Indecency 

with a Child by Contact in Count XI.” Finally, the word “unanimously” appeared again towards 

the end of the jury charge in the instruction requiring the foreman to certify the verdict once the 

 3 Appellant relied heavily on the San Antonio Court of Appeals’s earlier decision in Arrington reversing several of the defendant’s 

convictions due to the lack of a unanimity instruction. See Arrington v. State, 413 S.W.3d 106 (Tex. App.—San Antonio 2013), rev’d, 451 

S.W.3d 834 (Tex. Crim. App. 2015). After the briefing was complete in this case, however, the Texas Court of Criminal Appeals reversed the 

San Antonio Court of Appeals’s decision. 
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jury “unanimously agreed upon a verdict.” Regardless of how often a generic unanimity

requirement was mentioned, however, the instructions failed to apprise the jurors that they had to 

be unanimous on which incident of criminal conduct they believed constituted each count in the 

indictment. See Arrington, 451 S.W.3d at 841. As a result, the entire jury charge in this case 

weighs in favor of a finding of egregious harm. See id. (“Because the entire charge did not 

apprise the jury of the proper unanimity requirement, we conclude that this factor weighs in

favor of finding egregious harm[.]”). 

Next we consider the state of the evidence in order to determine “whether the evidence 

made it more or less likely that the jury charge caused appellant actual harm.” Arrington, 451 

S.W.3d at 841. The complainant testified to numerous instances of sexual abuse that began 

when she was in eighth grade, including oral sex, sexual intercourse, and sexual contact. 

Appellant denied the complainant’s allegations and told the investigator that his sexual 

relationship with the complainant began after she turned 18. In finding appellant guilty on all the 

counts at issue, the jury necessarily found the complainant credible and rejected appellant’s 

defense theory. As a result, we conclude that the state of the evidence in this case made it less 

likely that the jury charge caused appellant actual harm. See Arrington, 451 S.W.3d at 842, 844 

(jury’s rejection of defendant’s categorical denial of all accusations weighed against a finding of 

egregious harm in connection with the lack of a unanimity instruction). 

Third, we consider the parties’ arguments. Appellant cites the following statement, 

shown in context, made by the prosecutor during the State’s closing argument:

As we talked about in voir dire, it’s not necessary for us to prove the exact dates 

on which the defendant did these acts with her when she was a minor.

She got up here on the stand and she talked about it happened when I was in the 

eighth grade. It happened when I was a freshman on into when I was a 

sophomore and junior. It went on from the time she was 14 years old up until and 

before she turned 17.
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It doesn’t matter exactly when it occurred between her and the defendant, those 

things that he did to her, the things that you believe that did in fact occur. It 

doesn’t matter when. She was a child. She was under 17. On or about those two 

dates is close enough for us to meet those elements.

(Emphasis added.) Appellant argues that this statement “encouraged the jury not to concern 

itself with unanimity with respect to which exact incident of alleged sex abuse constituted the 

charged offense.” In response, the State argues that “when read in context, the prosecutor was 

explaining the ‘on or about’ dates alleged in the indictment, as discussed in the jury charge, and 

the fact that the State did not have to prove the exact dates on which the offenses occurred.” We 

agree with the State. In context, the State’s argument did not suggest to the jurors that their 

decisions did not need to be unanimous. In this case, as in Arrington, “neither the State nor 

appellant told the jurors that they must be unanimous about which criminal episode constituted 

each offense, nor were they told they need not be unanimous.” See Arrington, 451 S.W.3d at 

844. As a result, this factor “weighs neither for nor against finding egregious harm.” Id.

Finally, we consider any other relevant information in the record. Neither appellant nor 

the State argues that there is any other information in the record that is relevant to our egregious 

harm analysis, and we have not found any other information that appears to be relevant to our 

analysis. As a result, we conclude that this final factor weighs neither for nor against finding 

egregious harm.

In summary, the only factor that weighs in favor of a finding of egregious harm is the 

first factor—the jury charge as a whole. Appellant argues that the jury charge “allowed for the 

possibility that the jury rendered non-unanimous verdicts.” But to warrant reversal, the record 

must show actual rather than theoretical harm. See Nava v. State, 415 S.W.3d 289, 298 (Tex. 

Crim. App. 2013). Although the jury charge did not inform the jury that they needed to be 

unanimous about which specific incident of criminal conduct constituted each of the alleged 

offenses, this error did not cause appellant actual harm because the jury necessarily found the 
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complainant’s testimony credible and appellant’s defense theory (which was rejected) did not 

differ with respect to any of the alleged offenses. After considering and weighing all of the 

relevant factors, we conclude that the lack of a proper unanimity instruction did not cause actual 

harm to appellant. See Arrington, 451 S.W.3d at 845.

MODIFICATION

The judgments in this case state that appellant’s punishment was assessed by the trial 

court. The record demonstrates, however, that punishment was assessed by the jury. This Court 

has the power to modify incorrect judgments to make the record speak the truth when we have 

the necessary information to do so. See TEX. R. APP. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 

27–28 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529–30 (Tex. App.–Dallas 

1991, pet. ref’d). Our authority to modify incorrect judgments “is not dependent upon the 

request of any party, nor does it turn on the question of whether a party has or has not objected in 

the trial court.” Asberry, 813 S.W.2d at 529–30. We modify the judgments to reflect that 

appellant’s punishment was assessed by the jury.

CONCLUSION

We resolve appellant’s sole issue against him, modify the trial court’s judgments, and 

affirm the judgments as modified.

Do Not Publish

TEX. R. APP. P. 47.2(b)

131616F.U05

/Elizabeth Lang-Miers/

ELIZABETH LANG-MIERS

JUSTICE
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Court of Appeals

S

Fifth District of Texas at Dallas

JUDGMENT

CHARLES FREDRICK BELL, Appellant

No. 05-13-01616-CR V.

THE STATE OF TEXAS, Appellee

On Appeal from the 219th Judicial District 

Court, Collin County, Texas

Trial Court Cause No. 219-80942-2012.

Opinion delivered by Justice Lang-Miers. 

Justices Bridges and Myers participating.

Based on the Court’s opinion of this date, the judgments of the trial court are 

MODIFIED to reflect that appellant Charles Fredrick Bell’s punishment was assessed by the 

jury. As MODIFIED, the judgments are AFFIRMED.

Judgment entered this 10th day of April, 2015.