J_->. .-A~r &Ot(S

No. ORIGINAL

COURT OF CRIMINAL APPEALS OF TEXAS

CHARLES FREDRICK BELL

Petitioner

Vs.

THE STATE OF TEXAS

Respondent

No. 05-13-01616-CR

Court of Appeals

Fifth District of Texas at Dallas

Trial Court Cause No. 219-80942-2012

219th Judicial District Court

Collin County, Texas

FILED IN

COURT OF CRIMINAL APPEALS

JUL 14 2815

Abel Acosta, Clerk

Received m

COURT OF CRIMINAL APPEALS

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. Bell
1 * 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

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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 of Criminal Procedure:

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

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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 indictment alleging

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 of appeal was filed,

as well as the trial court's certification of defendant's Right to Appeal.

Statement of Procedural History

The Court of Appeals rendered its decision reforming and

affirming the judgment of the 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 of the 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 of the 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 of the 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).

-l-
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 of the 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 of the Sixth Amendment right to trial by jury, applicable to

Texas by virtue of the 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 praysthat 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 of the 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 77868
Verification

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 of July, 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

of the 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/Appellant
MODIFY 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 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

Ajury 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 afine ofeither $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.

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

$5 000 fine for five counts ofsexual assault ofachild and two counts ofindecency with achild; and 10 years in prison plus a$5,000 fine for one count ofindecency with achild and one count ofsexual 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 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 herjournal because someone

mightfind it and read it. Appellant laterburned the complainant'sjournals in hisfireplace.

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 the kitchen when appellant came up behind

her, slidhis hands down the front of her 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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<» -p

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 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, butstated 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 ofsexual 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'sfemale 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, appellant committed the offense of indecency

with a child by intentionally andknowingly, with intentto 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(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 of indecency with achild. More specifically, with respect toeach of

the two incidents inwhich appellant put his hand down the complainant's pants inthe kitchen, appellant was charged incounts four and ten with

sexual assault of a child and, inthealternative, incounts five and eleven, appellant was charged with indecency with achild bycontact Thejury was instructed nottoconsider the offenses ofindecency with achild bycontact ifthey found appellant guilty ofsexual assault ofachild. Inboth

instances the jury found appellant guilty ofsexual assault ofachild. The two lesser included offenses are not atissue inthis appeal. Appellant was also charged with and convicted ofinducing the sexual performance ofachild inconnection with making the complainant walk up and down

thestairs naked. Appellant doesnotchallenge 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 and knowingly, 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 their verdict had to be

unanimous. Thejury instructions did not,however, specifically inform thejury thattheyhadto

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

appellant nor the State objected to the charge onthe ground 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 it failed to

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

fondling or sex constitutedthe chargedviolations."

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 butseparate occasions."

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

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

presented." Id.

Reversal for an unobjected-to erroneous jury instruction isproper only ifthe 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 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 not possible with respect to two of

the counts ofindecency 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 ofher breasts

and put his hand on the other breast. As aresult, we conclude that anon-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 ofindecency orsexual assault did not cause appellant egregious harm.

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Theparties agree that the facts in this caseare analogous 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 he had sexually abused the complainant. Id. at 837. After thejury 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, thejury "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 ofthe jury'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 entire jury charge. Inthis case the jury charge did not fully 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: "If you unanimously agree that the

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

with aChild by Contact in Count XL" Finally, the word "unanimously" appeared again towards

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

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

convictions due to the lack of aunanimity instruction. See Arrington v. Stale, 413 S.W.3d 106 (Tex. App.-^an Antonio 2013), TM4 4S1

S.W.3d 834 (Tex. Crim. App. 2015). After the briefing was complete in this case, however, the Texas Court ofCriminal 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 toapprise the jurors that they had to

be unanimous on which incident of criminal conduct theybelieved constituted eachcountin 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 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 it more 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 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 ofthe evidence in this case made itless

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

(jury's rejection ofdefendant's categorical denial ofall accusations weighed against a finding of

egregious harm inconnection with the lack ofa unanimity instruction).

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

shown incontext, made bytheprosecutor during theState's closing argument:

As we talked about in voirdire, it's not necessary for us to prove the exact dates

on whichthe defendant did theseactswith herwhen shewasa minor.

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

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

sophomore andjunior. It went onfrom 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 arguesthat "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 the jurors 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 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, thisfactor "weighs neither for noragainst 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 inthe record that is relevant toour 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 isthe

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 ofthe alleged

offenses, this error did not cause appellant actual harm because the jury necessarily found the

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• ». 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 lack of a proper unanimity instruction did not cause actual

harm to appellant. SeeArrington, 451 S.W.3dat 845.

MODIFICATION

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

court. The record demonstrates, however, thatpunishment was assessed by thejury. 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. 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. ref d). 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 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

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 ontheCourt's opinion ofthis date, thejudgments ofthetrial court are

MODD7EED toreflect that appellant Charles Fredrick Bell's punishment was assessed by the

jury. As MODIFIED, thejudgments are AFFIRMED.

Judgment enteredthis 10thday of April, 2015.

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