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# ORIGINAL

COURT OF CRIMINAL APPEALS OF TEXAS

CHARLES FREDRICK BELL Petitioner

Vs.

THE STATE OF TEXAS Respondent

No. 05-13-01616-CR

Court ofAppeals Fifth District of Texas at Dallas Trial Court Cause No. 219-80942-2012 219th Judicial District Court Collin County, Texas 

### FILED IN COURT OFCRIMINAL APPEALS 

### JUL 14 2815 Abel Acosta, Clerk


## Receivedm 

## COURTOFCRIMINALAPPEALS JUL 13 2015 

### Abe! Acosta, Clerk

Petition for Discretionary Review TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS:

### Charles Fredrick Bell, Petitioner (Pro-se) respectfully petitions the 

### Court to review the judgment and opinion reforming and affirming conviction in cause no. 219-80942-2012. 

### Identity of Judge, Parties and Counsel
Trial Court Judge:

Respondent: 

### Prosecuting Counsel:

Defendant/Petitioner: Honorable Scott J. Becker 

### 219th District Court 2100 Bloomdale Road McKinney, Texas 75071

State of Texas

Daniel Lewis Shannon Miller 

### Gregg Willis Collin County District Attorney 2100 Bloomdale Road, Ste 200 McKinney, Texas 75071

Charles F. Bell1 * 1

Trial Counsel:



### Appellate Counsel: TDCJ-CID# 1899258 1800 Luther Dr. Navasota,Tx 77868

Richard Franklin 

### Robbie McClung 100 Highland Park Village, Ste 200 Dallas, Texas 75205 

### Franklyn Mickelsen Broden & Mickelsen 2600 State Street Dallas, Texas 75204(J »• 1 Table of Contents Page: 

### Identity ofJudge, Parties and Counsel l-ii

Index of Authorities vi


### Statement Regarding Oral Argument

Statement of the Case
Statement of Procedural History v

Ground for Review 

### Argument 1-2 

### Prayer for Relief 2-3 Appendix

-in-I * !•
Index of Authorities Case: Page:


### Brown v. Louisiana, 447 U.S. 323,100 Set. 2214 (1980) 1 Burch v. Louisiana, 441 U.S. 130, 99 Set. 1623 (1979) 1 

### Duncan v. State, 627 Sw2d 401 (Tex. Crim. App., 1982) 1 

### Ex Parte Hemby, 765 Sw2d. 791 (Tex. Crim. App., 1989) 1 Francis v. State, 36 Sw3d. 121 (Tex. Crim. App., 2000) 2 Kitchens v. State, 823 Sw2d. 256 (Tex. Crim. App., 1991) 2 Landrin v. State, 268 Sw3d. 532 (Tex. Crim. App., 2008) 2 

### Ngo v. State, 175 Sw3d. 738 (Tex. Crim. App., 2005) 2 Pizzo v. State, 235 SW3d 711 (Tex Crim App., 2007) 2

Texas Constitution:


### Tex. Const. Art. V., Sec. 13 2

Texas Code ofCriminal Procedure:


### Article 36.29(a) V.A.C.C.P. 2

-VI-J >» I 

### Statement Regarding Oral Argument


### Oral Argument is not necessary in this case

Statement of the case 

### Petitioner is appealing from judgment and conviction for various 

### felony offenses stemmingfrom a thirteen count indictmentalleging sexual offenses against the same complainant and concurrent 

### sentences often and twenty years were imposed along with fines of $5000 and $10000, also ordered to run concurrently. The Petitioner, 

### after a plea of NOT GUILTY, was found guilty, after a trial byjury, on November 7, 2013, and assessed twenty years imprisonment on counts 

### 1, 3, 4, 6, 7, 8, 9,10 and 13. The jury also assessed ten years 

## imprisonment on counts 2 and 12. Atimely notice ofappeal was filed, as well as the trial court's certification of defendant's Right to Appeal.
Statement of Procedural History 

### The Court ofAppeals rendered its decision reforming and affirming the judgment ofthe trial court on April 10, 2015. No motion for rehearing was filed. Motion to extend time to file PETITION FOR DISCRETIONARY REVIEW was granted by this Court. Time to file Petition for Discretionary Review was extended to July 10, 2015.Ground for Review 

### Was the Court of Appeals correct in rejecting Petitioner's sole 

### issue on appeal based on a state law ground although such issue raises a fundamental Sixth Amendment claim?
Argument 

### The Court of Appeals, reformed and affirmed the trial court's judgment, 

### and, in so doing, found that "[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 [petitioner] actual harm." The Court of Appeals has decided in important question of constitutional law in a way that conflicts with the decision ofthe United States Supreme Court in Burch v. Louisiana. 441 U.S. 130, 99 Set. 1623 (1979) and the Texas Court of Criminal Appeals. 

### In Burch, the Supreme Court held that a conviction by a 

### nonunanimous jury in a state criminal trial, as contemplated by the 

### provisions ofthe state constitution and code of criminal procedure, 

### violate the right of an accused to trial byjury guaranteed bythe Sixth and Fourteenth Amendments. 441 U.S. at 134-139, 99 Set. 1623. The 

### Texas Court of Criminal Appeals has noted that the rule of Burch is 

### "constitutionally required to preserve the substance ofthe jury trial right and assure the reliability of its verdict." See e.g. Ex Parte Hemby, 765 Sw2d 791, 793 (Tex. Crim. App., 1989)(auoting Brown v. Louisiana, 

### 447 U.S. 323, 334,100 Set. 2214 (1980))'; Duncan v. State, 627 Sw2d. 401 (Tex. Crim. App., 1982)(same).
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### Under Texas law, jury unanimity is required in felony cases. See Tex. Const, art. V, Sec. 13; Article 36.29(a) V.A.C.C.P.; Pizzo v. State, 235 

### Sw3d. 711, 744 (Tex. Crim. App., 2007). To return a verdict of guilty, 

### the jury must reach a unanimous verdict on which single specific criminal act the defendant committed. Landrin v. State, 268 Sw3d. 532, 

### 535 (Tex. Crim. App., 2008); Ngo v. State, 175 Sw3d. 738, 748 (Tex. Crim. App., 2005). While a Texas jury need not always decide 

### unanimously which of several possible sets of underlying facts make up 

### a particular element ofthe crime, even ifthe offense is charged in the conjunctive, Kitchens v. State, 823 Sw2d. 256, 258 (Tex. Crim. App., 1991), and although juror unanimity is required on the essential elements of the offense, but is generally not required on the alternate modes or means of commission, Pizzo, 235 Sw3d at 714, separate 

### offenses may not be submitted to the jury in the disjunctive because of the possibility of a non-unanimous jury verdict. Francis v. State, 36 Sw3d. 121, 124-125 (Tex. Crim. App., 2000)(Op. on reh'g). Thus, by 

### limiting its review of Petitioner's sole issue to a question of and interpretation of State law only, rather than as being premised on a violation ofthe Sixth Amendment right to trial by jury, applicable to 

### Texas by virtue ofthe Fourteenth Amendment, the Court of Appeals erred. This Honorable Court of Criminal Appeals should grant PETITION 

### FOR DISCRETIONARY REVIEW to encourage the Court of Appeals in the Fifth District and other district to correctly apply federal constitutional 

### law when deciding the issue raised by Petitioner on direct appeal.
Prayer for Relief 

### For the reasons stated above, Petitioner Charles Fredrick Bell 

### respectfully prays that this Honorable Court grant this petition and 

## upon reviewing the judgment and opinion of the Court ofAppeals

### below, reverse this cause and set aside the judgment and sentence. 

### Petitioner further respectfully prays for such other and further relief to which he may be entitled under the laws and Constitution ofthe United States and the laws and Constitution of the State of Texas. 

### Respectful]y_submitted;

Charles F. Bell, (Pro-se) 

### Petitioner/Appellant TDCJ-CID# 1899258 1800 Luther Dr. Navasota, Tx 77868Verification 

### I, Charles F. Bell, TDCJ-CID No. 1899258, being presently incarcerated in the Texas prison system, here in Grimes County, Texas, 

### declare under the penalty of perjury that the above and foregoing is true and correct to the best of my knowledge and belief. 

# Executed on this the ffi*1 day ofJuly, A.D. 2015.

Charles F. Bell, (Pro-se) Petitioner/Affiant


### Certificate of Mailing/Service 

### I, Charles F. Bell, TDCJ-CID No. 1899258, being presently incarcerated in the Texas prison system, here in Grimes County, Texas, do hereby 

## certify that on this the 9^^ day ofJuly, A.D. 2015, atrue and correct copy of the above and foregoing PETITION FOR DISCRETIONARY REVIEW was mailed to/served upon: Gregg Wills, Collin County District 

### Attorney, 2100 Bloomdale Rd, Ste 100, McKinney, Texas, 75071, by 

## depositing same into the internal prison mail sysj^m vv^h first class postage prepaid.


### Charles F. Bell, (Pro-se)

### Petitioner/Appellant

Certificate of Conference


### A conference was not held with the adverse party because Charles 

### F. Bell is incarcerated in the Texas prison system and proceeding pro-se 

### because of his poverty. Pursuant to the rules, regulations and policies ofthe Texas prison system, prisoners are only allowed to place out 

### going telephone calls to persons, including attorneys and government 

### officials, who make application to prison officials to have their name(s) and contact information placed on Charles F. Bell's prison-approved 

## telephone calling list. The opposing party in this case has NOT to the best of Charles F. Bell's knowledge, made such a request of prison officials.



### Charles F. Bell, (Pro-se) Petitioner/AppellantMODIFY and AFFIRM; and Opinion Filed April 10,2015.

In The (Eaurt af Appeals 

### Jfltftlj ©tatrtct of teas at ©alias No. 05-13-01616-CR CHARLES FREDRICK BELL, Appellant V. THE STATE OF TEXAS, Appellee On Appealfrom 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 

### Ajury convicted appellant Charles Fredrick Bell ofeleven sexual offenses against the 

### same_ complainant, his girlfriend's teenage daughter. As to each count, the jury assessed 

### punishmentateitherten ortwenty years in prison, along with afine of either $5,000 or $10,000.' 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 Thejuryassessedpunishmentat20years inprisonplusa $10,000finefortwo countsof sexualassaultofa child;20years inprisonplusa $5 000fineforfive counts of sexualassaultofachildandtwo counts of indecency with achild; and 10years inprisonplus a$5,000fineforone count of indecency with achild and one count of sexual performance by achild. The trial court ordered the sentences and fines to run concurrently.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 appellantand "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 roomholding herjournal in his lap. He told her that he read her journal entryfrom theprevious 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 herjournal because someone mightfind it and read it. Appellant laterburned the complainant'sjournals in his fireplace. One day when the complainant was in eighth grade, appellant offered to teach the complainant how to dance. He first told herto 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 thekitchen when appellant came upbehind her, slidhis hands down thefront ofher pants into her underwear, and inserted his fingers into 

### her vagina. This same thing happened inthe 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 tohurt her mother or for her mother to hate her.
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When asked what else occurred, the complainantresponded, "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 ofthe 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 complainantwas a freshman, appellant also "attempted] 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 ofher 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 thanonce, but stated that it was after she turned 18.

-3-Appellant's Defense Theory -Appellant did not testify or present any other witnesses during the guilt phase ofhis 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 ofaggravated sexual assault ofchild and three counts ofindecency with a child.2 Counts one, three, four, and six alleged that, on or about October 1, 2007, appellant committed the offense ofsexual assault ofa 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 (countfour); and (4) causing appellant's male sexual organ to penetratethe complainant's female sexual organ (count six). Counts seven and eight alleged that, on or about October 1, 2007, appellantcommitted the offense of indecency with a child by intentionally andknowingly, with intentto arouse andgratify 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(counteight). Counts nine, ten, andthirteen alleged that, on or aboutNovember 15,2008, appellant committed the offense of sexual assault of a child by intentionally and knowingly 2The State also charged appellant with two lesser included offenses ofindecency with achild. More specifically, with respect toeach of the two incidents inwhich appellantputhis hand down the complainant'spants inthe kitchen, appellant was charged incountsfour andten with sexual assaultof achild and, inthealternative, incountsfive and eleven, appellant was charged with indecency with achild bycontact The jury was instructednottoconsiderthe offenses ofindecency with achild bycontact if theyfound appellant guilty of sexual assaultofachild. Inboth instances thejuryfound appellant guilty of sexual assault ofachild. The two lesser included offenses are notatissue inthis appeal. Appellant was also chargedwith and convictedof inducing the sexualperformance ofachild inconnection with making the complainantwalk up anddown thestairs naked. Appellantdoesnotchallenge hisconviction for sexual performance of achild.>. •/.
(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 andknowingly, with intent to arouse and gratify the sexual desire of any person, engaging in sexual contactby touching the complainant's breast with appellant's hand. Thejury charge tracked the language of the indictment andthere were individual verdict forms for each count. Thejury charge generally instructed the jury that theirverdict had to be unanimous. Thejury instructions did not,however, specifically inform thejury thattheyhadto be unanimous as to which separate criminal actthey believed constituted each count. Neither appellant nor theState objected to the charge ontheground thatthe juryinstructions 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 itfailed to give thejury a "unanimity instruction requiring thejury to agree on which alleged incident of fondling or sex constitutedthe chargedviolations." Applicable Law 

### "Texas law requires that ajury 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 butseparate occasions." Id. at772. In thatcircumstance, to ensure unanimity, thejury charge "would need to instruct the 

### jury that its verdict must be unanimous as to asingle offense or unit ofprosecution among those presented." Id. Reversal for an unobjected-to erroneousjury instruction isproper only ifthe error caused 

### actual, egregious harm to an appellant. SeeArrington 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 ofthe evidence, 

### including contested issues and the weight ofthe probative evidence; (3) the parties' arguments; and (4) allother relevant information inthe 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 thejury that they had to be unanimous 

### about which specific incident ofcriminal conduct constituted each ofthe alleged offenses. In 

### response, the State argues that non-unanimous verdicts were notpossible with respectto two of the counts ofindecency with achild because the State charged and proved only one offense for each count. We agree. Count eight alleged that appellant touched the complainant's breastwith 

### his mouth. Count twelve alleged that appellanttouched the complainant's breast with his hand. 

### The complainanttestified to one instance in which appellantputhis mouth on one of her breasts 

### and puthis hand on the otherbreast. As aresult, we concludethat anon-unanimous verdictwas notpossible as to counts eight andtwelve. Withrespectto the remaining counts, the State argues 

### that any error in failing to instruct thejury that they had to be unanimous about any particular incident ofindecency orsexual assault did not cause appellant egregious harm.

-6-Theparties agree that thefacts in this caseareanalogous toArrington.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 hehad sexually abused thecomplainant. Id. at 837. After thejury convicted him of six counts ofaggravated sexual assault of a child and one count ofindecency with a child, the defendant complained about thelack of a unanimity instruction for thefirst 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, thejury "necessarily found the complainant credible" and "did not believe [the defendant's] categorical denial of allaccusations." 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 ofthejury's verdicts inthe 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 entirejury charge. Inthis case thejury charge did notfully apprise the 

### jury ofthe proper unanimity requirement with respect to the remaining counts at issue in this appeal. Instead, itincluded three generic unanimity instructions. First, the instruction for count four stated asfollows: "Ifyou unanimously agree that the defendant is guilty ofSexual Assault ofa Child inCount IV, you need not consider Indecency with a Child by Contact inCount V." 

### Likewise, that same instruction was given for count ten: "Ifyou unanimously agree that the 

### defendant is guilty ofSexual Assault ofa Child in Count X, you need not consider Indecency 

### with aChild by Contact in CountXL" Finally, the word "unanimously" appeared again towards 

### the end of thejury charge in the instruction requiring the foreman to certify the verdict once the 3Appellant relied heavily on the San Antonio Court of Appeals's earlier decision in Arrington reversing several ofthe defendant s convictions due to the lack ofaunanimity instruction. See Arrington v. Stale, 413 S.W.3d 106 (Tex. App.-^an Antonio 2013), TM 44S1 S.W.3d 834 (Tex. Crim. App. 2015). Afterthe briefing was complete in this case, however, the Texas Court of Criminal Appeals reversed the San Antonio Courtof Appeals's decision.
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### jury "unanimously agreed upon a verdict" Regardless of how often a generic unanimity requirementwas mentioned, however, the instructions failed toapprise thejurors thatthey had to beunanimous on which incident ofcriminal conduct theybelieved constituted eachcountin the 

### indictment. See Arrington, 451 S.W.3d at 841. As aresult, the entirejury charge inthis case 

### weighs in favor of a finding ofegregious harm. See id. ("Because the entire charge did not apprise the jury ofthe proper unanimity requirement, we conclude that this factor weighs in favor offinding egregious harm[.]"). Next we considerthe state of the evidence in order to determine "whether the evidence made itmore orless 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 withthe complainantbegan after sheturned 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 aresult, we conclude that the state of the evidence in this case made itless 

### likely thatthejury charge caused appellant actual harm. See Arrington, 451 S.W.3d at 842, 844 (jury's rejection ofdefendant's categorical denial of all accusations weighed against afinding of egregious harm inconnection with the lack ofaunanimity instruction). Third, we consider the parties' arguments. Appellant cites the following statement, shown incontext, made bytheprosecutor during theState's closing argument: As wetalked about in voirdire, it's notnecessary for us to prove theexact dates on whichthe defendant did theseactswith herwhen shewasa minor. 

### She got up here on the stand and she talkedabout it happenedwhen Iwas in the eighth grade. It happened when I was afreshman on into when I was a 

### sophomore and junior. Itwent onfrom the time she was 14years oldup until and before she turned 17.

-8-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 abuseconstituted 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 thejury charge, and the fact that the State did not haveto prove the exact dateson whichthe offenses occurred." We agree with the State. In context, the State's argument did not suggest to thejurors that their decisions did not need to be unanimous. In this case, as in Arrington, "neither the State nor appellant told thejurors that they must beunanimous about which criminal episode constituted each offense, nor were they toldthey need not be unanimous." See Arrington, 451 S.W.3d at 844. As a result, thisfactor "weighs neither for noragainst finding egregious harm." Id. Finally, weconsider any other relevant information inthe record. Neither appellant nor 

### the State argues that there isany other information inthe record that is relevant toour egregious harm analysis, and we have notfound any other information thatappears 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 infavor of a finding ofegregious harm is the 

### first factor—thejury charge as awhole. Appellant argues that thejury charge "allowed for the possibility that thejury 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 ofcriminal conduct constituted each ofthe alleged 

### offenses, this error did not cause appellant actual harm because thejury necessarily found the -9-• ». j0 •
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 lackofa proper unanimityinstruction did not cause actual harm to appellant. SeeArrington, 451 S.W.3dat 845. MODIFICATION Thejudgments in this case state that appellant's punishment was assessed by the trial court. Therecord demonstrates, however, thatpunishment was assessed by thejury. This Court has the power to modify incorrectjudgments to make therecord speak thetruth when wehave the necessary information to do so. SeeTex. 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. refd). Our authority to modify incorrect judgments "is not dependent upon the 

### request ofany party, nor does itturn on the question ofwhether aparty has orhas not objected in the trial court." Asberry, 813 S.W.2d at 529-30. We modify thejudgments 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 thejudgments 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 

### JirTtftI? Bifitrttt of Qtexaa at ©alias JUDGMENT CHARLES FREDRICK BELL, Appellant No.05-13-01616-CR V. THE STATE OF TEXAS, Appellee OnAppeal from the219th Judicial District Court, Collin County, Texas Trial Court Cause No. 219-80942-2012. Opinion delivered byJustice Lang-Miers. Justices Bridges and Myersparticipating. Based onthe Court's opinion ofthis date, thejudgments ofthetrial court are 

### MODD7EED toreflectthat appellant Charles FredrickBell's punishmentwas assessed by the jury. AsMODIFIED, thejudgments areAFFIRMED. Judgment enteredthis 10thday ofApril, 2015.

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