AFFIRMED as MODIFIED and Op inion Filed May 4, 2020 

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In The 

### Court of Appeals Fifth District of Texas at Dallas No. 05-19-00126-CR SHAWN BRIAN TIMMONS, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the Criminal District Court No. 3 Dallas County, Texas Trial Court Cause No. F18-48186-J MEMORANDUM OPINION Before Justices Partida-Kipness, Nowell, and Evans Opinion by Justice Evans Appellant Shawn Brian Timmons app eals the jury’s verdict findin g him guilty of aggravated sexual assault of a child under fourteen years of age. In two issues, appellant asserts that (1) the j udgment of conviction should be reformed to reflect the correct offense and statute and (2) the trial court erred i n its charge by failing to instruct the jury to require an unanimous jury verdict as to th e lesser-included offense. In two sub-issues, the State requests that the judgme nt be further modified to reflect (1) that the sex-offe nder registration requirements apply and should reflect–2– the age of the victim and (2) a special finding that the victim was younger than fourteen at the time of the offense. We affirm the trial court ’s judgment as modified.
BACKGROUND Appellant was indicted for the o ffense of continuous sexual ass ault of a child under fourteen. Appellant entered a plea of not guilty to the indictment. At trial, complainant’s mother

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–Kathleen White

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aunt

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–Cynthia Riley––lives around the corner from their house and th ey see each other on a daily basis. At one point, appellant lived at Riley ’s house for several months to a year. White testified that complainant, who was fi fteen at the time of trial, struggles with depression , anxiety and gender dysphoria. Complainant takes medication for depression and anxi ety and receives regular ther apy. After a therapy session, complainant told her mo ther in general terms what appe llant had done to her a few years ago. White then went to the police station to report the abuse and give her statement. Complainant testified that at the time of trial, she had been i n therapy for over two years with Vicki Moody. Complainant told Moody about the a buse and then she told White. White took comp lainant directly to the police station and a few days later complainant spoke to someone at the Dallas Children’s Adv ocacy Center. Complainant testified that she spent a lot of time at Riley’s h ouse during the summer because her parents worked a lot. One summer

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–complainant could not be sure which year––when appellant was living at the house, he made her perform oral sex–3– on him on three different occasions. Complainant said appellan t told her he would put her family in danger if she told anyone about what happened . At trial, complainant testified that she was “six or seven” at the time o f the abuse and did not think that she was as old as el even when the abuse occurred. Riley testified that appellant moved into her house in March 20 15 and out in September or October 2015. Appella nt was helping Riley with re pairs at her house. Complainant never spoke to her about the abuse. Riley testifie d she left complainant alone with appellant on three or four occasions. Moody, complainant’s therapist, te stified that complainant told her “the handyman at her aunt’s house” sexually abused her. Complainant told Moody that she was raped when she was eight years old. Moody also testifi ed that although the medication complainant took coul d have caused her to have odd d reams, Moody did not have concerns that complainant did not understand the diffe rence between a dream and reality. Jesse Gonzalez, the director of forensic services at the Dallas Children’s Advocacy Center, interviewed complainant and stated that she wa s able to provide details about the abuse, includi ng sensory details. Gonzalez d id not notice any red flags during the interview to indicate that the information was not coming from complainant. Appellant testified that he had a prior conviction for aggravat ed assault of a child which involved his seven-year old daughter and that he ha d pled guilty in that–4– case. Appellant testified he tol d Riley that he was a register ed sex offender. At the time of his previous offense, appellant had been a drug user an d an alcoholic. Appellant testified that he did not know complainant when she w as seven or eight years old, which is when the complainant testified that the abu se took place. He further testified that when he lived at Riley’s house, he remem bered being alone with complainant only one time when she was about eleven years old w hile Riley went to the store. Appellant denied ever making complainant perform oral sex on him. In its jury charge, the trial court included the lesser-include d offense of aggravated sexual assault and th e charge instructed the jury as follows: 7) Application: Lesser-Included Offenses If you do not find beyond a reasonable doubt that the defendant is guilty of Continuous Sexual Abuse of a Child, you shall next consider whether he is guilty of one of th e lesser-included offenses des cribed below. 7.1) Aggravated Sexual Assault of a Child Now, bearing in mind the foregoing instructions and definitions , if you unanimously find from the evidence beyond a reasonable d oubt that the defendant, Shawn Brian Timmons, on or about or between the 15th day of July, 2015 and the 15th day of September, 2015, in the County of Dallas and State of Texas, intentionally or knowingly caused contact between the mouth of [complainant] with the sexual orga n of the defendant, and [complainant] was younger than 14 years of a ge, you will find him GUILTY of Aggravated Sexual Assault of a Child, a s included in the indictment. After the jury convicted appellant of the lesser-included offen se of aggravated sexual assault of a child, the trial court assessed appellant’s punish ment as life imprisonment. Appellant then filed this appeal.–5– ANALYSIS A. Jury Charge Error In the second issue, appellant ar gues the trial court erred by failing to instruct the jury to require unanimity as to the lesser-included offense of aggravated sexual assault of a child. 1) Standard of review When we review claims of jury charge error, we first decide whe ther there was error in the charge. Ferguson v. State , 335 S.W.3d 676, 684 (Tex. App.— Houston [14th Dist.] 2011, no pe t.). If there was error and ap pellant objected to the error at trial, then only “some harm” is necessary to reverse t he trial court’s judgment. See Almanza v. State, 686 S.W.2d 157, 171 (Tex. C rim. App. 1985) (op. on reh’g). If, as in this case , the appellant failed to object at trial, then the appellant will obtain a reversal “only if t he error is so egregious and c reated such harm that he ‘has not had a fair and impartial trial’—in short ‘egregious ha rm.’” Id. Egregious harm is the type and degree of harm that affects the very basis of the case, deprives the defendant of a valuable right , or vitally affects a defense theory. Allen v. State, 253 S.W.3d 260, 264 (Tex. Crim. Ap p. 2008). In making an egreg ious harm determination, “the actual degre e of harm must be assayed in li ght of the entire jury charge, the state of the evidence, including the contested issu es and weight of probative evidence, the argument of counsel and any other relev ant information [revealed] by the record of the trial as a whole.” Trejo v. State, 280 S.W.3d 258, 261–6– (Tex. Crim. App. 2009) (quoting Almanza , 686 S.W.2d at 171). Egregious harm is a difficult standard to meet and must be determined on a case-b y-case basis. See Ellison v. State , 86 S.W.3d 226, 227 (Tex. Crim. App. 2002). 2) Analysis Consistent with the federal constitution, Texas law requires th at a jury reach a unanimous verdict about the specific crime that the defendant committed. See
Ramos v. Louisiana , No. 18-5924, 2020 WL 1906545, at *6 (U.S. Apr. 20, 2020) (Sixth Amendment requires a unanimous verdict to support convic tion in state court); T EX
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. art. 36.29(a); Cosio v. State , 353 S.W.3d 766, 771 (Tex. Crim. App. 2011). This means that the jury must agree up on a single and discrete incident that would c onstitute the commission of the o ffense alleged. Cosio , 353 S.W.3d at 771. “[N]on-unanim ity may occur when the State c harges one offense and presents evidence that the d efendant committed the charged offense on multiple but separate occasions.” Id. at 771–72. Each of the multiple incidents establishes a different offense or “unit of prosecution.” Id. In such a situation, it is the trial court’s responsibility to ensure unanimity by instructing the jury in t he charge that its verdict must be unanimous as to a single incident offense or unit of pr osecution among those presented by the State. Id

. Appellant was charged with contin uous sexual abuse of a child c onsisting of three separate incidents of forc ed oral sex. As stated above, the jury charge also included instructions on the lesser-included offense of aggrava ted sexual assault of–7– a child. The State concedes that the “potential for non-unanimity arose when the jury charge submitted only one suc h offense to the jury as a le sser-included offense but did not expressly require the jury to agree on a single and discreet incident to convict Appellant of the lesser-i ncluded offense.” In other wo rds, the jury may have believed that it had to be unanimous about the offense but not the criminal conduct constituting the offense. Cosio , 353 S.W.3d at 774. As this constituted error, we turn to the question of whether appellant suffered egregious ha rm. a) Entire jury charge The court of criminal appeals has noted that generic language r egarding unanimity is insufficient to apprise the jury of the unanimity requirement when more than one incident of criminal conduct could be relied on for co nviction.
See Arrington v. State , 451 S.W.3d 834, 841 (Tex. Crim. App. 2015); Casio , 353 S.W.3d at 773 (“Although the instru ction’s ‘boilerplate’ sectio n informed the jury that it must be unanimous, the jury could have understood it to mean that they had to be unanimous about the offense in general, not a particular incident comprising the offense.”). Here, the charge for aggravated sexual assault stated that the jury had to be unanimous but did not apprise the jurors that they had to be unanimous on which incident of criminal conduct they believed constituted th e aggravated sexual assault. Accordingly, this factor weighs in favor of a findin g of egregious harm. See Arrington , 451 S.W.3d at 841.–8– b) Entirety of the evidence Under this factor, we look to the state of the evidence to dete rmine whether the evidence made it more or le ss likely that the jury charge c aused appellant actual harm. See Blanco-Lazo v. State , No. 05-15-01166-CR, 2016 WL 7438757, at *6 (Tex. App.—Dallas Dec. 27, 2016, no pet.) (mem. op., not design ated for publication). In this case, complainant testified appellant fo rced her to perform oral sex on him on three different occasions and she described each of the three incidents. Appellant testified in his defen se that he never touched compla inant or forced her to perform oral sex. At trial, a ppellant argued there was no phys ical evidence and attempted to raise reasonable doubt about the alleged acts by a rguing that complainant’s medication made her unable to separate dreams fro m reality. Appellant also argued complainant’s memory was not credible bec ause of the numerous inconsistencies about the year in which the incidents occurred. Thus, appellant’s trial strategy was to discredit complainant’s testi mony and to deny that he committed any offense at all. This Court previously noted t hat this type of trial strategy “left the jury with an all-or-nothing decision when ev aluating the alleged conduct—either he was guilty or he was not.” Id. If the jury had believed appellant’s theory, it would have found him not guilty of aggravated sexual assault. Instead, in finding him guilty, the jury necessarily found the complainant to be credible and disbelieved appellant’s defense. The entirety of the evidence d oes not show that the–9– jury charge caused appellant act ual harm and, the refore, we con clude this factor does not support a finding of egregious harm. See id. c) Argument of counsel Under this factor, we must determine whether any statements mad e by the State, appellant’s trial attorneys, or the trial court exacerba ted or ameliorated the error in the charge. See Arrington , 451 S.W.3d at 841. In this case, neither the State nor appellant told the jurors that they must be unanimous about which criminal episode constituted the offense of aggravated sexual assault, n or were they told that they need not be unanimous. This factor, therefore, weighs neit her for nor against finding egregious harm. See id. d) Other relevant information Under this factor, appellant rai ses two statements made by the prosecutor during voir dire that “mudd[y] the water regarding the requirem ents of a unanimous jury verdict.” The first st atement was the following: The legislature takes that into account about a child’s ability to retell events, about the date and time when things are occurring. On or about means the return date of the indictment, which you will have if you’re on the jury. You will have that. But the law doesn’t require that the State prove that an offens e took place on a particular month, date, and year, as long as it’s an ytime before the return date of the grand jury indictment. And you w ould have that information. The second statement was this:–10– And we’ve talked about the two or more acts of sexual abuse. A s you read in the indictment, the act of sexual abuse is contact betw een -- I apologize between for the typo, mouth of the complainant and se xual organ of the defendant. Okay? S o that’s the kind of contact. A sexual abuse of a child can o ccur in many, many, many differe nt ways, but that’s applicable here in this case, okay? That part icular type of contact. And, so, that on its own happening one time and on e time alone is a criminal offense. Okay? So I don’t want you to think that the law says it has to be two or more times for it to be a criminal offense. One time is an offense. Okay? Is everyone comfortable with that? Just one occurrence of that is a criminal offense. It’s just not this criminal offense. Okay? Appellant alleges that these sta tements reinforce the notion th at the jury could convict by finding appellant gui lty of the lesser-included offe nse for one occurrence “even if some jurors believe the first incident was true, other jurors believed the second incident was proven and ev en if some jurors believe the third incident was proven.” Appellant argues that t hese statements “aggravate the erroneous idea that the jury could find Appellant guilty of just violating the less er-included penal code section in general and not requiring the jury to find Appellant guilty of a specific act of sexual abuse . . . .” We disagree. In the first statement, the prosecutor was discu ssing the elements of continuous sexual abuse of a child with the potenti al jurors. When the State got to the element of “on or about a certain date,” the S tate asked who in the panel had small children and disc ussed their children’s struggl es with recalling dates. This statement did not involve o r address unanimity for the les ser-included offense. In regard to the second statement, the prosecutor was addressin g the element of “two–11– or more acts of sexual abuse” in his remarks. The prosecutor wa s explaining that while it is a crime if someone commits a single act of sexual a buse, the offense of continuous sexual abuse exists ( or is established) only if ther e are two or more acts. Again, this statement did not involve or address unanimity for the lesser-included offense of aggravated sexual assault. For the reasons describe d above, these statements do not support a finding of egregious harm. e) Consideration of the four factors The only factor that weighs in favor of finding egregious harm is consideration of the entire jury charge. “In Arrington and Cosio , the court of criminal appeals found no egregious harm even though, in both cases, that factor weighed in favor of egregious harm.” See Blanco-Lazo , 2016 WL 7438757, at *9. Likewise, we conclude that the trial court’s failure to instruct the jurors to unanimously agree on a single offense did not cause appellant egregious harm in this case. We overrule appellant’s second issue. B. Reformation of Judgment In his first issue, appellant requests that this Court reform t he judgment to reflect the correct offense and statute. The judgment reflects a conviction for continuous sexual abuse of a child under fourteen, but the jury returned a guilty verdict for aggravated sexual assault of a child. In addition, the judgment reflects the statutory provision for the offense as section 21.02 of the penal code but the correct statute is section 22.021 of the penal code. In cases such as these, where the–12– necessary data and information is available, we have the author ity to modify the incorrect judgment. See T EX
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. P. 43.2(b); Estrada v. State, 334 S.W.3d 57, 63 (Tex. App.—Dallas 2009, no pet. ) (“This Court has the power to modify an incorrect judgment to make the r ecord speak the truth when we h ave the necessary information to do so.”); Bigley v. State, 865 S.W.2d 26, 27–28 (Tex. Crim. App. 1993). Accordingly, we sustain a ppellant’s first issue and mod ify the judgment to reflect that appellant was convict ed of aggravated sexual assau lt of a child and that the statute for the offense is section 22.021 of the Texas Pena l Code. We next address the State’s cross-issue that the judgment be mo dified to reflect that the sex-offender re gistration requirements apply a nd should include the age of the victim. The judgment in this case incorrectly state s that the “Sex Offender Registration Requirements do not apply to the Defendant,” and s tates “N/A” for the age of the victim at the time of the offense. Appellant’s conv iction for aggravated sexual assault of a child of a child is defined as a “[r]eporta ble conviction or adjudication” for purposes of the sex offender registration sta tute. See T EX
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. art. 62.001(5)(A) (stating, in pa rt, that a conviction based on a violation of 22.021, aggravated sexual assault of a child, is a “[r]eport able conviction or adjudication”). As a person who has a reportable conviction or adjudication, appellant is subject to the regi stration requirements of that p rogram. See id. art. 62.051. Here, the evidence established that complainant was bo rn on September 30, 2003 and the abuse took place between July 15, 2015 and Septemb er 15, 2015.–13– Accordingly, we modify the judgment in this case to show that t he sex offender registration requirements apply a nd that the age of the victim at the time of the offense was eleven years of age. See T EX . R. APP. P. 43.2(b); Montero v. State , No. 05-18-01281-CR, 2019 WL 3229170, at *4 (Tex. App.

– –Dallas July 18, 2019, no pet.) (mem. op., not designated for publication) (modifying jud gment to include sex offender registration require ments and age of victim); Lourenco v. State , No. 05– 13–01092–CR, 2015 WL 356429, at *10 (Tex. App.––Dallas Jan. 28 , 2015, no pet.) (mem. op., not designa ted for publication) (same) ; Ruiz v. State , No. 05–12– 01703–CR, , 2014 WL 2993820, at *12 (Tex. App.––Dallas June 30, 2014, no pet.) (mem. op., not designated for publication) (same). In the State’s second cross-issu e, it requests that that judgme nt be modified to include a special finding that the victim was younger than four teen at the time of the offense. The code of criminal procedure requires an affirmativ e finding that the victim of a sexually violent off ense was younger than fourteen years of age. See
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. art. 42.015(b). 1 A “sexually violent offense” includes aggravated sexual assault “co mmitted by a person 17 years of ag e or older.”
See id. art. 62.001(6)(A). The record s hows that appellant was born i n 1966 and the

1 Article 42.015(b) of the Texas Code of Criminal Procedure provi des: “ In the trial of a sexually violent offense, as de fined by Article 62.001, the jud ge shall make an affirmative finding of fact and enter the affirmative finding in the judgme nt in the case in the judge determines that the victim or intended victim was younger than 14 years of age at the time of the offense.”–14– abuse took place in 2015, making appellant forty-nine years old at the time of the abuse. As stated above, the comp lainant was eleven years old a t the time of the abuse. We conclude the judgment should have an affirmative fin ding of a sexually violent offense. For these rea sons, we modify the judgment to reflect a finding that the victim “was younger than 14 y ears of age at the time of the offense.” See id . art. 42.015(b); Alexander v. State , No. 05-18-00784-CR, 2019 WL 3334625, at *6 (Tex. App.––Dallas July 25, 2019, no pe t.) (mem. op., not designated for publication).
CONCLUSION Based on the foregoing, we modify the trial court’s judgment to reflect that appellant was convicted of aggrav ated sexual assault of a child and that the statute for the offense is section 22.021 of the Texas Penal Code. In addition, the statement “Sex Offender Registration Requi rements do not apply to the Def endant” in the judgment should be modified to “D efendant is required to regist er as a sex offender in accordance with Chapter 62, CCP” and the statement “The age of the victim at the time of the offense was N/ A” should be modified to “The age of the victim at the time of the offense was 11.” The judgment should also be modif ied to include the following affirmative finding: “The Court enters an affirmativ e finding that the victim or intended victim was younger than 14 years of age at t he time of the offense.”–15– As modified, we affirm the trial court’s judgment.

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Court of Appeals Fifth District of Texas at Dallas JUDGMENT
SHAWN BRIAN TIMMONS, Appellant
No. 05-19-00126-CR V. THE STATE OF TEXAS, Appellee On Appeal from the Criminal District Court No. 3, Dallas County, Texas Trial Court Cause No. F18-48186-J. Opinion delivered by Justice Evans. Justices Partida-Kipness and Nowell participating. Based on the Court’s opinion o f this date, the judgment of the trial court is MODIFIED as follows: The conviction is for aggravated sexual assault of a child and the correct statute for the offense is section 22.021 of the Texas Penal Code. The statement “Sex Offender Registra tion Requirements do not apply to the Defendant” in the judgment shoul d be modified to “Defendant is required to register as a sex offender in acc ordance with Chapter 62, CCP” and the statement “The age of the victim at the time of the offense was N/A” should be modified to “The age of the vi ctim at the time of the offens e was 11.” The judgment should include the f ollowing affirmative finding: “The Court enters an affirmative finding th at the victim or intended victi m was younger than 14 years of age at th e time of the offense.”
As REFORMED , the judgment is AFFIRMED

. Judgment entered May 4, 2020.