TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

ON RECONSIDERATION EN BANC

NO. 03-22-00697-CR

Michael Tucker, Appellant

v.

The State of Texas, Appellee

FROM THE 390TH DISTRICT COURT OF TRAVIS COUNTY

NO. D-1-DC-21-904045, THE HONORABLE JULIE H. KOCUREK, JUDGE PRESIDING

O P I N I O N

This Court sitting en banc has voted to reconsider this case1to establish this Court’s

precedent about whether subsection (f)(1) of Penal Code section 22.021 (Subsection (f)(1)) defines 

an element of an offense of aggravated sexual assault. We thus also are deciding whether a trial 

court’s felony judgment that lacks a reference in the judgment’s “Statute for Offense” section to 

Subsection (f)(1) must be modified to include such a reference when a defendant has been 

sentenced in accordance with Subsection (f)(1)’s prescribed minimum sentence. We withdraw our 

opinion and judgment of October 5, 2023, and substitute today’s opinion and judgment in their 

1

 See Tex. R. App. P. 41.2(c). Justice Theofanis is recused from this case and has not 

participated in the case or in the en banc vote.
2

place. Our disposition of the appeal remains the same, and we dismiss the State’s motion for 

rehearing as moot.

Appellant2 was convicted after a bench trial for the second-degree felony of 

indecency with a child by sexual contact, see Tex. Penal Code § 21.11(a)(1), (d), which was 

Count IV in the indictment, as well as other offenses involving the same child victim, including 

Count I for aggravated sexual assault, see id. § 22.021. The trial court assessed punishment at 

15 years in prison for Count IV and 25 years for Count I. In a sole appellate issue, Tucker 

maintains that the evidence was insufficient to support the elements of the offense for Count IV

that Tucker “caused [the child victim] to touch appellant’s sexual organ” and that Tucker “acted 

with the intent to arouse and gratify her own sexual desire.” Separately, the State requests that we 

modify the judgment for Count I to add in its “Statute for Offense” field a reference to 

Subsection (f)(1). We reject both sides’ positions and affirm.

BACKGROUND

Tucker used to manage a group home where several people or families would rent 

individual rooms. Tucker would collect the rent for the homeowner. Tucker’s bedroom was 

upstairs in the home, and Leslie Cunningham once rented another upstairs room. She stayed there 

with her five-year-old daughter, A.R.

A.R. told her mother about concerning things that Tucker had done to the child, so 

Cunningham called the police. An investigation ensued, A.R. went through a forensic interview, 

and Tucker was twice interviewed by a detective. Daisy Sycks, another tenant in the group home, 

2

 Tucker’s appellate brief says: “The appellant, Michael Tucker, is transgendered and thus 

will be referred to in the brief by feminine pronouns. During these proceedings she referred to 

herself as Jacqueline Michelle Tucker.” We refer to Tucker using her chosen pronouns.
3

had a minor daughter who also made outcries against Tucker. Tucker was ultimately indicted for 

several sex offenses, variously involving A.R. and Sycks’s daughter.3 Count I against Tucker was 

for aggravated sexual assault involving A.R., and Count IV was for indecency with A.R. by sexual 

contact. There were other counts involving A.R. that we need not mention further. After a bench 

trial, the court convicted Tucker of Count I and Count IV and entered separate written judgments 

on those two counts. Tucker now appeals, challenging only the judgment for Count IV. The 

State’s request for judgment modification concerns only the judgment for Count I.

EVIDENCE SUFFICIENCY

Tucker argues in her sole appellate issue that the evidence was insufficient to 

support the elements of the offense that she “caused A.R. to touch appellant’s sexual organ” 

and that she “acted with the intent to arouse and gratify her own sexual desire.” The standards 

for evidence-sufficiency reviews after bench trials are generally the same as those for 

evidence-sufficiency reviews after jury trials. See Robinson v. State, 466 S.W.3d 166, 172–73 

(Tex. Crim. App. 2015). In such a review, we must consider all the evidence in the light most 

favorable to the State, which requires resolving any ambiguities in the evidence in the State’s favor. 

See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Brooks v. State, 634 S.W.3d 745, 748 (Tex. 

Crim. App. 2021); Hernandez v. State, 556 S.W.3d 308, 315 (Tex. Crim. App. 2017). And we 

must consider the combined and cumulative force of all admitted evidence and the reasonable 

inferences that can be drawn from any or all of the evidence. See Johnson v. State, 509 S.W.3d 

320, 322 (Tex. Crim. App. 2017).

3

 A separate appeal before this Court—cause number 03-22-00698-CR—concerns 

Tucker’s conviction for offenses against Sycks’s daughter.
4

We presume that the factfinder resolved conflicts in the testimony, weighed the 

evidence, and drew reasonable inferences all in a manner that supports the conviction. See 

Jackson, 443 U.S. at 318; Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009). The 

factfinder is the sole judge of the weight and credibility of the evidence and could have believed 

some, all, or none of any given witness’s testimony. See Zuniga v. State, 551 S.W.3d 729, 733 

(Tex. Crim. App. 2018); Schneider v. State, 440 S.W.3d 839, 841 (Tex. App.—Austin 2013, pet. 

ref’d). We must defer to the factfinder on all these determinations. See Zuniga, 551 S.W.3d at 733; 

Cary v. State, 507 S.W.3d 750, 757 (Tex. Crim. App. 2016); Schneider, 440 S.W.3d at 841. 

The factfinder also “may use common sense and apply common knowledge, observation, and 

experience gained in ordinary affairs when drawing inferences from the evidence.” Acosta v. State, 

429 S.W.3d 621, 625 (Tex. Crim. App. 2014). If any rational factfinder could have drawn the 

inferences necessary to support proof of an element, then the State has carried its burden on that 

element. See Brooks, 634 S.W.3d at 748. As for those elements here, to have proven Tucker’s 

offense of indecency with A.R. by sexual contact as alleged in the indictment, the State must have 

proven that Tucker caused A.R. to touch Tucker’s sexual organ and that Tucker did so with the 

intent to arouse or gratify Tucker’s own sexual desire. See Tex. Penal Code § 21.11(a)(1), (c)(2).

First, the evidence supports the element that Tucker caused A.R. to touch Tucker’s 

penis. In her interviews with detectives, Tucker admitted to an incident that involved Tucker’s 

penis’s going in A.R.’s mouth. Tucker described the incident during the later interview with 

the detective: Tucker had just masturbated in her bed; A.R. knocked on her mother’s bedroom’s 

door; Tucker woke up; A.R. went in Tucker’s room, went to where Tucker was on her bed, and 

asked to get under the covers; Tucker let A.R. under the covers and felt something wet on her 

penis, which was A.R.’s mouth; and Tucker never told Cunningham that this had happened. 
5

Tucker’s explanation for the incident was that the five-year-old child had “raped” her. But the 

trial court as factfinder was permitted to use its common sense to reject Tucker’s explanation for 

why A.R.’s mouth had touched Tucker’s sexual organ, see Acosta, 429 S.W.3d at 625, and could 

rationally infer instead that it had to have been the large adult, who is about 6′5′′ or 6′6′′ tall, who 

caused the young child to do what the child did. Plus, Tucker’s admission that she did not tell the 

child’s mother about what had happened supports a rational inference of consciousness of guilt, 

which is highly probative evidence of guilt, see Ransom v. State, 920 S.W.2d 288, 299 (Tex. Crim. 

App. 1994); Torres v. State, 794 S.W.2d 596, 598 (Tex. App.—Austin 1990, no pet.). There was 

other evidence of Tucker’s consciousness of guilt: Tucker admitted lying to the detective during 

their first interview about the incident and in the later interview told the detective that Tucker 

would apologize to A.R. about the incident if they had the chance to speak again. The evidence 

thus supported the necessary inferences on the element of the offense that Tucker caused A.R. to 

touch Tucker’s sexual organ.

As for the element of the intent to arouse or gratify Tucker’s sexual desire, “the

requisite specific intent . . . can be inferred from” the defendant’s conduct and remarks and all the

surrounding circumstances. See McKenzie v. State, 617 S.W.2d 211, 216 (Tex. Crim. App. 1981). 

Relevant circumstances for inferring such an intent include other similar instances of the 

defendant’s illegal sexual contact with children. See Morgan v. State, 692 S.W.2d 877, 881 (Tex. 

Crim. App. 1985).

The record here included, in addition to the evidence recounted above, plenty of 

evidence about similar instances of Tucker’s illegal sexual contact with children and about a link 

between children and Tucker’s arousing or gratifying her sexual desires:
6

▪ Tucker admitted to an instance involving a third person’s perceiving that 

Tucker was masturbating to thoughts of children. At the time of the 

incident, A.R. had been in Tucker’s room with her but then left. Tucker 

started masturbating. A neighbor saw Tucker doing it through a window 

and called out that Tucker was “a sicko or something,” which Tucker 

believes was the neighbor’s “perceiv[ing] that [Tucker] was jacking off to 

thoughts of” A.R.

▪ Tucker admitted that she “lusts for the body of children, especially female 

children,” expressing that “children are born with bodies that [Tucker] 

wishes [s]he was born with.” The detective interpreted the subtext of 

Tucker’s statements as sexual. Tucker also described children’s bodies, 

including when nude, as works of art.

▪ Tucker admitted that she herself is “not a safe person to watch children,” at 

least in part because she is “a monster” for having touched the children 

inappropriately.

▪ Tucker admitted that there could have been times when she masturbated 

under her blanket while a child was in the room with her.

▪ Sycks’s daughter reported that Tucker had inappropriately touched her, 

including once when Tucker pulled the child’s pants down while in the 

bathroom and touched the child’s vagina with Tucker’s hand or finger.

▪ Tucker admitted to instances of touching Sycks’s daughter. One such 

instance involved giving the child a “horsey ride” though the child was 

naked, and Tucker admitted both that the child’s “vagina probably rubbed 

against [Tucker’s] legs while that was happening” and that it was possible 

that Tucker’s fingers or hand touched the child’s vagina. In another 

instance, Tucker said that she saw Sycks’s daughter belly-dancing while 

wearing an outfit like the one worn by the Jasmine character in the 

“Aladdin” movie. The child, Tucker believes, “ran across the room, leapt 

on [Tucker], forcing h[er] body backwards and then hump[ed] [Tucker], 

with [the child’s] pelvis slamming into [Tucker’s] pelvis,” and it took 

Tucker “about thirty seconds for [Tucker] to recover h[er]self and get the 

small child off of” Tucker’s body. Tucker thought that the child’s mother 

was prostituting the child to Tucker and maintained that the three-year-old 

held Tucker (who is 6′5′′ or 6′6′′ tall) down on the bed for about 30 seconds.

Because of all this evidence, the trial court rationally could have inferred the necessary specific 

intent, including because Tucker’s explanations for prior sexual contact with children were 
7

implausible and because of the admissions about incidents that connect the arousal or gratification 

of Tucker’s sexual desires with children. See id.; McKenzie, 617 S.W.2d at 216. We hold that the 

evidence was sufficient to support the elements of the offense of indecency with a child by contact 

that Tucker challenges and overrule her sole appellate issue.

STATE’S REQUEST FOR MODIFIED JUDGMENT

The State requests that we modify the judgment for the Count I aggravated sexual 

assault to reflect that the “Statute for Offense” includes Subsection (f)(1)—the subsection of 

the statute that requires that the minimum term of imprisonment for Tucker’s Count I offense 

be 25 years because the child victim was younger than six years old at the time the offense 

was committed. See Tex. Penal Code § 22.021(f)(1). The judgment for this count reflects the 

“Statute for Offense” as Penal Code section 22.021(a)(2)(B), but the State argues that omitting 

Subsection (f)(1) from the “Statute for Offense” field is a clerical error or misrecital requiring 

modification even though the judgment elsewhere—under a heading titled “Furthermore, the 

following special findings or orders apply:”—reflects the trial court’s finding against Tucker under 

Subsection (f)(1) “that the victim or intended victim was younger than 6 years of age at the time 

of the offense.” (Formatting altered.) We deny the State’s request for the following reasons.

First, we set forth the relevant limits on our judgment-modification authority. We 

have the authority to “modify the trial court’s judgment and affirm it as modified.” Tex. R. App. 

P. 43.2(b). This authority to modify, however, does not extend to non-errors in a trial court’s

judgment. The authority has been described in different ways, including that it is used “to make 

the record speak the truth when the matter has been called to [our] attention by any source,” see 

French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992); “to reform incorrect judgments,” 
8

see Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.—Dallas 1991, pet. ref’d) (en banc); see also 

French, 830 S.W.2d at 609 (“adopt[ing] the reasoning set forth in Asberry”); “to reform whatever 

the trial court could have corrected by a judgment nunc pro tunc where the evidence necessary to 

correct the judgment appears in the record,” see Asberry, 813 S.W.2d at 530; to delete improper 

findings or add proper findings, see Van Flowers v. State, 629 S.W.3d 707, 710–11 (Tex. App.—

Houston [1st Dist.] 2021, no pet.); Asberry, 813 S.W.2d at 530; and to resolve “conflict[s]” 

between an oral pronouncement of sentence and a competing sentence as reflected in the written 

judgment, see Thompson v. State, 108 S.W.3d 287, 290 (Tex. Crim. App. 2003). The modification 

authority extends to at least some kinds of judicial errors as well as to mere clerical errors. See 

Bigley v. State, 865 S.W.2d 26, 27–28 (Tex. Crim. App. 1993). But in all events, the modification 

authority deals with ascertainable errors. See Briceno v. State, 675 S.W.3d 87, 100 & n.3 (Tex. 

App.—Waco 2023, no pet.) (describing authority to modify judgments as part of court of appeals’ 

“broad, remedial powers to correct errors in the record” (emphasis added)); Shumate v. State, 

649 S.W.3d 240, 243 n.2 (Tex. App.—Dallas 2021, no pet.) (referring, in appeal involving issue 

about reforming or modifying judgment, to statements by Court of Criminal Appeals noting that 

“‘[r]eform means to correct; to make new, to rectify’ and h[olding] that ‘the judgment of the court 

below should be reformed and corrected, so as to make it read, in connection with the judgment as 

entered” (quoting McCorquodale v. State, 98 S.W. 879, 887 (Tex. Crim. App. 1905) (op. on 

reh’g))); Van Flowers, 629 S.W.3d at 712 (“[T]he record must supply us with the information 

necessary to show both that a modification is warranted and the particular modification that is 

warranted. If the record does not do both, we cannot modify the trial court’s judgment.” (internal 

citation omitted)); see also Van Flowers, 629 S.W.3d at 715 (refusing to modify sentence that fell 

within statutory permissible range). The State cites us no authority, and we have found none, that 
9

empowers us to modify a judgment to change something that is not an error in the judgment. Thus, 

if what the State requests here in its request to modify the judgment would not address an error, 

then we may not make the requested modification.

Turning next to the relevant requirements of a judgment, we begin with the relevant 

statute. The trial court’s judgment of conviction

shall reflect:

. . . .

The offense or offenses for which the defendant was convicted;

. . . .

The date of the offense or offenses and degree of offense for which the 

defendant was convicted; [and]

. . . .

In the event of conviction of an offense for which registration as a sex 

offender is required under Chapter 62, . . . a statement of the age of the 

victim of the offense.

Tex. Code Crim. Proc. art. 42.01, § 1(13), (14), (27). To effectuate these requirements, “[t]he 

Office of Court Administration . . . shall promulgate a standardized felony judgment form that 

conforms to the requirements of Section 1 of this article,” and a “court entering a felony judgment 

shall use the form promulgated under this section.” Id. § 4.

Pursuant to these directives, there is a form for judgments of felony convictions, 

and the trial court here used the form. The form includes a field titled “Statute for Offense,” in 

which trial courts frequently insert statutory references. The references to be inserted in the 

“Statute for Offense” field should be those that define the elements of the offense that the defendant 
10

committed. See McDade v. State, 613 S.W.3d 349, 358 & n.12 (Tex. App.—Dallas 2020, no pet.); 

Bledsoe v. State, 479 S.W.3d 491, 497–98 (Tex. App.—Fort Worth 2015, pet. ref’d).

The State here argues that Subsection (f)(1) should be added to the judgment’s 

“Statute for Offense” field because it is an element of the Section 22.021 offense that Tucker 

committed. Whether we may grant the State’s requested modification turns on whether the 

“Statute for Offense” field’s lack of a reference to Subsection (f)(1) is an error, and that issue turns 

on whether Subsection (f)(1) defines an element of Tucker’s Section 22.021 offense.

Neither the Court of Criminal Appeals nor our Court has resolved whether 

Subsection (f)(1) defines an element of an offense under Section 22.021. With no precedent 

deciding the issue, we thus resort to first principles for deciding what is and is not an element of a 

particular offense.4

The Legislature has instructed that “‘[e]lement of offense’ means: (A) the 

forbidden conduct; (B) the required culpability; (C) any required result; and (D) the negation of 

any exception to the offense.” Tex. Penal Code § 1.07(a)(22). The “Legislature has considerable 

discretion in defining crimes and the manner in which those crimes can be committed,” “limited 

only by the Due Process Clause of the federal constitution and the Due Course of Law provision 

of the Texas Constitution.” O’Brien v. State, 544 S.W.3d 376, 383 n.13 (Tex. Crim. App. 2018).

4

 In nonprecedential Hernandez v. State, see Tex. R. App. P. 47.7(a), we modified a 

judgment to add Subsection (f)(1) to the judgment’s “Statute for Offense” field after the State in 

its appellee’s brief requested the modification, relying on authority from our sister court treating 

Subsection (f)(1) as an element. See Nos. 03-22-00288-CR, 03-22-00289-CR, 2023 WL 4748842, 

at *6 (Tex. App.—Austin July 26, 2023, no pet.) (mem. op., not designated for publication) (citing 

Bledsoe v. State, 479 S.W.3d 491, 498 (Tex. App.—Fort Worth 2015, pet. ref’d)). The appellant 

had not responded on the issue in his reply brief, and after our opinion and judgment issued, the 

appellant did not move for rehearing or en banc reconsideration or seek discretionary review in the 

Court of Criminal Appeals.
11

The Court of Criminal Appeals has added, “An ‘element’ is a fact that is legally required for a fact 

finder to convict a person of a substantive offense.” Schmutz v. State, 440 S.W.3d 29, 34 (Tex. 

Crim. App. 2014).

To “determine the elements of an offense,” the Court of Criminal Appeals has 

applied what it calls “the eighth-grade-grammar test.” O’Brien, 544 S.W.3d at 386. That test is 

applied “to the text of the statute describing the offense in the context of the entire statutory scheme 

to attempt to discern the Legislature’s intent in passing the statute.” Id. at 387. The test involves 

“focus[ing] on the statutory verb and its direct object defining the criminal act.” Id. at 386; accord 

Stuhler v. State, 218 S.W.3d 706, 718–19 (Tex. Crim. App. 2007).

The test fits within Texas courts’ overall approach to statutory interpretation when

determining the elements of an offense. “Whether a particular statutory aggravating fact creates 

an element of a new offense or simply constitutes a punishment issue is a matter of statutory 

construction.” Holoman v. State, 620 S.W.3d 141, 145 (Tex. Crim. App. 2021). When interpreting 

statutory provisions for these purposes, “we give effect to the plain meaning of the text, unless 

the text is ambiguous or the plain meaning leads to absurd results that the legislature could not 

have possibly intended.” Oliva v. State, 548 S.W.3d 518, 521 (Tex. Crim. App. 2018). “Statutory 

language is ambiguous if it ‘may be understood by reasonably well-informed persons in two 

or more different senses.’” Id. (quoting State v. Schunior, 506 S.W.3d 29, 34–35 (Tex. Crim. 

App. 2016)).

Aside from creating elements of offenses, statutory provisions also may create 

punishment “enhancements.” See id. at 527 (distinguishing elements of offenses from punishment 

enhancements). An enhancement in this sense is a fact that increases the punishment range for an 
12

offense to a certain range above that ordinarily prescribed for the offense.5 See Calton v. State, 

176 S.W.3d 231, 233 (Tex. Crim. App. 2005); Castellanos v. State, 533 S.W.3d 414, 418 (Tex. 

App.—Corpus Christi–Edinburg 2016, pet. ref’d); Navarro v. State, 469 S.W.3d 687, 696 (Tex. 

App.—Houston [14th Dist.] 2015, pet. ref’d).

We now turn to whether Subsection (f)(1) is an element of Tucker’s Count I offense 

under Section 22.021. The statutory provisions relevant to Tucker’s offense state:

(a) A person commits an offense:

(1) if the person:

. . . .

(B) regardless of whether the person knows the age of the child at 

the time of the offense, intentionally or knowingly:

(i) causes the penetration of the anus or sexual organ of a 

child by any means; [and]

. . . .

(2) if:

. . . .

(B) the victim is younger than 14 years of age, regardless of whether 

the person knows the age of the victim at the time of the offense.

. . . .

(f) The minimum term of imprisonment for an offense under this section is 

increased to 25 years if:

5

 In a different context from that presented by this case, enhancements can be elements 

of offenses when the enhancement raises a misdemeanor to a felony and thus invokes the 

subject-matter jurisdiction of a different level of court. See Holoman v. State, 620 S.W.3d 141, 

143, 145–46 (Tex. Crim. App. 2021). This situation is not presented here because 

Subsection (f)(1) does not make a jurisdictional difference to Section 22.021 offenses, which 

already are felonies. See Tex. Penal Code § 22.021(e).
13

(1) the victim of the offense is younger than six years of age at the time the 

offense is committed.

Tex. Penal Code § 22.021(a)(1)(B)(i), (a)(2)(B), (f)(1).

Applying the Legislature’s and Court of Criminal Appeals’ tests to these statutory 

provisions leads us to conclude that Subsection (f)(1) is not an element of Tucker’s offense under 

Section 22.021. The fact that a victim’s age was less than six years at the time of the offense is 

not an instance of forbidden conduct, required culpability, a required result, or a negation of an 

exception to the offense. See id. § 1.07(a)(22). Tucker could have been found guilty under 

Section 22.021 without proof that the victim’s age was under six years; therefore, proof of that 

fact was not “required for [the] fact finder to convict [Tucker] of [the] substantive offense.” See 

Schmutz, 440 S.W.3d at 34. And applying “the eighth-grade-grammar test” shows that the relevant 

verb and direct object defining the offense here are, respectively, “causes” and “penetration,” 

coupled with an article “the” and prepositional phrases “of the anus . . . of a child.” See Tex. 

Penal Code § 22.021(a)(1)(B)(i). The plain meaning of the relevant statutory language is 

unambiguous—age less than six years under Subsection (f)(1) is not an element defining a 

Section 22.021 offense. The Subsection (f)(1) fact is instead a punishment enhancement because 

it is a fact that increases the punishment range for the offense above that ordinarily prescribed for 

the offense. See Calton, 176 S.W.3d at 233; Castellanos, 533 S.W.3d at 418; Navarro, 469 S.W.3d 

at 696. It is like other statutory provisions that have been treated as non-element enhancements. 

See, e.g., Curlee v. State, 620 S.W.3d 767, 779 (Tex. Crim. App. 2021); Young v. State, 14 S.W.3d 

748, 750, 753–54 (Tex. Crim. App. 2000).

Were matters different—if a fact that when proved merely imposes a higher 

sentence were for that reason necessarily an element of the offense as well—then the enhancement 
14

of a misdemeanor DWI sentence by proof of only a single prior offense could not be a mere 

enhancement but would necessarily be an element as well. Yet the Court of Criminal Appeals has 

held exactly the opposite. Proof of a single prior offense is merely a DWI punishment issue and 

is not an element of the offense. See Oliva, 548 S.W.3d at 519–20, 533–34.

We thus conclude that Section 22.021 unambiguously requires that Subsection (f)(1)

not be an element of a Section 22.021 offense. Even if the statute were ambiguous, we would still 

conclude that Subsection (f)(1) is not an element. The relevant statutory provisions bear some of 

the hallmarks identified by the Court of Criminal Appeals as signaling non-element status. For 

example, Subsection (f)(1) is not framed using the phrase “a person commits an offense if.” 

See id. at 523. Subsection (f)(1) is a subsection of the statute different from “the main part of 

the statute prescribing the offense,” “separated from provisions that more obviously prescribe 

elements of an offense.” See id. at 531. And Subsection (f)(1) refers to a specific punishment 

range.6 See id. at 531–32.

The State’s arguments in support of the requested modification do not persuade us. 

It argues that adding Subsection (f)(1) to the “Statute for Offense” field is “necessary . . . because 

it signifie[s] that appellant [i]s not eligible for parole” and that without it “the judgment [i]s 

6

 We recognize that our conclusion is at odds with the one in our unpublished Hernandez

and disavow it only to the extent that it is inconsistent with this en banc opinion. And although 

Tucker agrees with the State that Hernandez treated Subsection (f)(1) as an element, we are not 

bound by the parties’ agreement on the legal issue of the proper interpretation of Section 22.021 

to determine whether Subsection (f)(1) is an element. See Oliva v. State, 548 S.W.3d 518, 520 

(Tex. Crim. App. 2018) (“[T]he parties agree that the existence of a prior conviction is an element 

of the offense. We, of course, are not bound by any agreement or concessions by the parties on an 

issue of law.”); see also Estrada v. State, 313 S.W.3d 274, 286 (Tex. Crim. App. 2010) (“[T]he 

proper administration of the criminal law cannot be left merely to the stipulation of parties.” 

(quoting Saldano v. State, 70 S.W.3d 873, 884 (Tex. Crim. App. 2002))); Van Flowers v. State, 

629 S.W.3d 707, 710 (Tex. App.—Houston [1st Dist.] 2021, no pet.) (citing same principle from 

Estrada when considering issue about requested modification of judgment).
15

incomplete and should be modified to accurately reflect the statutes of conviction and sentence.” 

But the finding that Subsection (f)(1) calls for is expressly stated in the judgment here. In its field 

for “special findings or orders [that] apply,” the judgment says, “The Court enters an affirmative 

finding that the victim or intended victim was younger than 6 years of age at the time of the 

offense.” The State makes no showing for why stating the Subsection (f)(1) finding like this is 

insufficient, and we have found no precedential authority besides Bledsoe indicating that such a 

statement is insufficient. From Bledsoe, we are more persuaded by the reasoning in Justice 

Dauphinot’s dissent, see 479 S.W.3d at 499–500—reasoning that is consistent with what we have 

laid out above.

The State goes on to argue from Bledsoe that without the modification to add 

Subsection (f)(1) to the “Statute for Offense” field, “the Texas Department of Criminal Justice 

could erroneously, yet understandably, conclude that [Tucker] is eligible for release on parole.” 

See id. at 498. We trust the abilities of Department officials to read what Tucker’s Count I 

judgment already says and correctly carry out the officials’ duty to determine parole ineligibility 

under this statute: “An inmate is not eligible for release on parole if the inmate is . . . serving a 

sentence for any of the following offenses under the Penal Code: . . . (3) Section 22.021, if the 

offense is punishable under Subsection (f) of that section.”7 See Tex. Gov’t Code § 508.145(a)(3).

The judgment here expressly provides the finding that activates Subsection (f)(1) and thus also 

Government Code section 508.145(a)(3). The State has not shown that more is needed in the 

7

 Notably, this statute’s use of the phrase “is punishable under” for Subsection (f)(1) is yet 

another sign that the Legislature views Subsection (f)(1) not as an element of the offense but as a 

mere punishment enhancement. See Oliva, 548 S.W.3d at 532.
16

“Statute for Offense” field or that a phone call to the Department could not fix any error in 

determining Tucker’s parole ineligibility.

In all, we must deny the State’s requested modification because the lack of 

Subsection (f)(1) in the “Statute for Offense” field is not an error.

CONCLUSION

We affirm the trial court’s judgment.

__________________________________________

Chari L. Kelly, Justice

Before Chief Justice Byrne, Justices Baker, Triana, Kelly, and Smith

Justice Theofanis not participating

Affirmed on En Banc Reconsideration

Filed: April 25, 2024

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