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




                                            Court of Appeals
                                                              S     In The


                                     Fifth District of Texas at Dallas
                                                         No. 05-13-01616-CR

                                       CHARLES FREDRICK BELL, Appellant
                                                     V.
                                         THE STATE OF TEXAS, Appellee

                                 On Appeal from the 219th Judicial District Court
                                              Collin County, Texas
                                     Trial Court Cause No. 219-80942-2012

                                           MEMORANDUM OPINION
                                     Before Justices Bridges, Lang-Miers, and Myers
                                             Opinion by Justice Lang-Miers
           A jury convicted appellant Charles Fredrick Bell of eleven sexual offenses against the

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

punishment at either ten or twenty years in prison, along with a fine of either $5,000 or $10,000. 1

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

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

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

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

modified.


     1
       The jury assessed punishment at 20 years in prison plus a $10,000 fine for two counts of sexual assault of a child; 20 years in prison plus a
$5,000 fine for five counts of sexual assault of a child and two counts of indecency with a child; and 10 years in prison plus a $5,000 fine for one
count of indecency with a child and one count of sexual performance by a child. The trial court ordered the sentences and fines to run
concurrently.
                                            BACKGROUND

       The Complainant’s Testimony

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

mouth to touch the complainant’s vagina.

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

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

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

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

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

her mother or for her mother to hate her.

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       When asked what else occurred, the complainant responded, “very frequently I gave him

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

       The Investigator’s Testimony

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

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

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

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

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

she turned 18.




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           Appellant’s Defense Theory

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

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

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

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

crime.

           The Indictment, the Jury Charge, and the Verdict

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

counts of aggravated sexual assault of child and three counts of indecency with a child. 2 Counts

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

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

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

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

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

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

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

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

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

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

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

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

     2
        The State also charged appellant with two lesser included offenses of indecency with a child. More specifically, with respect to each of
the two incidents in which appellant put his hand down the complainant’s pants in the kitchen, appellant was charged in counts four and ten with
sexual assault of a child and, in the alternative, in counts five and eleven, appellant was charged with indecency with a child by contact. The jury
was instructed not to consider the offenses of indecency with a child by contact if they found appellant guilty of sexual assault of a child. In both
instances the jury found appellant guilty of sexual assault of a child. The two lesser included offenses are not at issue in this appeal. Appellant
was also charged with and convicted of inducing the sexual performance of a child in connection with making the complainant walk up and down
the stairs naked. Appellant does not challenge his conviction for sexual performance of a child.



                                                                       –4–
(1) causing appellant’s male sexual organ to penetrate the complainant’s female sexual organ

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

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

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

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

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

complainant’s breast with appellant’s hand.

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

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

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

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

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

non-unanimous verdicts.

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

offenses described above.

                                        ISSUE ON APPEAL

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

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

fondling or sex constituted the charged violations.”

       Applicable Law

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

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

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

S.W.3d 766, 771 (Tex. Crim. App. 2011) (quoting Stuhler v. State, 218 S.W.3d 706, 717 (Tex.

                                               –5–
Crim. App. 2007)). Non-unanimity may result “when the State charges one offense and presents

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

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

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

presented.” Id.

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

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

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

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

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

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

       Analysis

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

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

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

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

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

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

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

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

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

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

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

incident of indecency or sexual assault did not cause appellant egregious harm.

                                                –6–
          The parties agree that the facts in this case are analogous to Arrington. 3 The complainant

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

     3
        Appellant relied heavily on the San Antonio Court of Appeals’s earlier decision in Arrington reversing several of the defendant’s
convictions due to the lack of a unanimity instruction. See Arrington v. State, 413 S.W.3d 106 (Tex. App.—San Antonio 2013), rev’d, 451
S.W.3d 834 (Tex. Crim. App. 2015). After the briefing was complete in this case, however, the Texas Court of Criminal Appeals reversed the
San Antonio Court of Appeals’s decision.



                                                                  –7–
jury “unanimously agreed upon a verdict.”        Regardless of how often a generic unanimity

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

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

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

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

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

favor of finding egregious harm[.]”).

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

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

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

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

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

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

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

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

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

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

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

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

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

       As we talked about in voir dire, it’s not necessary for us to prove the exact dates
       on which the defendant did these acts with her when she was a minor.

       She got up here on the stand and she talked about it happened when I was in the
       eighth grade. It happened when I was a freshman on into when I was a
       sophomore and junior. It went on from the time she was 14 years old up until and
       before she turned 17.


                                               –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 abuse constituted the

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

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

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

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

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

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

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

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

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

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

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

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

egregious harm.

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

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

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

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

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

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

offenses, this error did not cause appellant actual harm because the jury necessarily found the
                                                –9–
complainant’s testimony credible and appellant’s defense theory (which was rejected) did not

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

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

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

                                         MODIFICATION

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

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

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

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

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

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

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

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

appellant’s punishment was assessed by the jury.

                                          CONCLUSION

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

affirm the judgments as modified.


                                                    /Elizabeth Lang-Miers/
                                                    ELIZABETH LANG-MIERS
                                                    JUSTICE


Do Not Publish
TEX. R. APP. P. 47.2(b)

131616F.U05




                                               –10–
                                        S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

CHARLES FREDRICK BELL, Appellant                    On Appeal from the 219th Judicial District
                                                    Court, Collin County, Texas
No. 05-13-01616-CR         V.                       Trial Court Cause No. 219-80942-2012.
                                                    Opinion delivered by Justice Lang-Miers.
THE STATE OF TEXAS, Appellee                        Justices Bridges and Myers participating.

       Based on the Court’s opinion of this date, the judgments of the trial court are
MODIFIED to reflect that appellant Charles Fredrick Bell’s punishment was assessed by the
jury. As MODIFIED, the judgments are AFFIRMED.


Judgment entered this 10th day of April, 2015.




                                             –11–
