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                                No.                                     ORIGINAL

               COURT OF CRIMINAL APPEALS OF TEXAS



                             CHARLES FREDRICK BELL

                                         Petitioner                        FILED IN
                                                                   COURT OF CRIMINAL APPEALS

                                                                          JUL 14 2815
                                            Vs.
                                                                        Abel Acosta, Clerk



                                THE STATE OF TEXAS

                                        Respondent                     Received m
                                                                  COURT OF CRIMINAL APPEALS
                                                                        JUL 13 2015
                                   No. 05-13-01616-CR

                                      Court of Appeals
                                                                     Abe! Acosta, Clerk
                              Fifth District of Texas at Dallas

                           Trial Court Cause No. 219-80942-2012

                                219th Judicial District Court

                                   Collin County, Texas




                     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:                Honorable Scott J. Becker

                                  219th District Court
                                  2100 Bloomdale Road

                                   McKinney, Texas 75071



Respondent:                       State of Texas




Prosecuting Counsel:               Daniel Lewis

                                  Shannon Miller

                                   Gregg Willis

                                   Collin County District Attorney

                                   2100 Bloomdale Road, Ste 200

                                   McKinney, Texas 75071



Defendant/Petitioner:              Charles F. Bell
1   *   1




                                 TDCJ-CID# 1899258

                                 1800 Luther Dr.

                                 Navasota,Tx 77868



            Trial Counsel:       Richard Franklin

                                 Robbie McClung

                                 100 Highland Park Village, Ste 200

                                 Dallas, Texas 75205



            Appellate Counsel:   Franklyn Mickelsen

                                 Broden & Mickelsen

                                 2600 State Street

                                 Dallas, Texas 75204
(J   »•   1




                                        Table of Contents

                                                            Page:




              Identity of Judge, Parties and Counsel        l-ii


              Index of Authorities                          vi



              Statement Regarding Oral Argument



              Statement of the Case




              Statement of Procedural History               v



              Ground for Review




              Argument                                      1-2


              Prayer for Relief                             2-3


              Appendix


                                                 -in-
I   *   !•




                                       Index of Authorities

             Case:                                                      Page:




             Brown v. Louisiana, 447 U.S. 323,100 Set. 2214 (1980)      1

             Burch v. Louisiana, 441 U.S. 130, 99 Set. 1623 (1979)      1

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

             Ex Parte Hemby, 765 Sw2d. 791 (Tex. Crim. App., 1989)      1
             Francis v. State, 36 Sw3d. 121 (Tex. Crim. App., 2000)     2

             Kitchens v. State, 823 Sw2d. 256 (Tex. Crim. App., 1991)   2

             Landrin v. State, 268 Sw3d. 532 (Tex. Crim. App., 2008)    2

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



             Texas Constitution:




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



             Texas Code of Criminal Procedure:




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


                                                 -VI-
J   >»   I




                             Statement Regarding Oral Argument



                  Oral Argument is not necessary in this case




                                     Statement of the case

                   Petitioner is appealing from judgment and conviction for various
             felony offenses stemming from 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 by jury, 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 by jury guaranteed by the 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 if the 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 prays that this Honorable Court grant this petition and
upon reviewing the judgment and opinion of the Court of Appeals
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 of July, 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, a true 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
          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 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 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

mightfind it and read it. Appellant laterburned 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 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, slid his 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 to hurt
 her mother or for her mother to hate her.


                                                -2-
<»   -p




                 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 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, but stated that it was after

          she turned 18.




                                                         -3-
         Appellant's Defense Theory

         -Appellant did not testify or present any other witnesses during the guilt phase 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 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(count eight). 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 a child. 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 of indecency with achild bycontact if they found appellant guilty of sexual assault of achild. Inboth
instances the jury found appellant guilty of sexual 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 a child.
>.   •/.




           (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.

                  Thejury charge tracked the language of the indictment and there 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 the jury that theyhad 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 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.

                                                           -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, 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 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) 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.

                                                          -6-
         Theparties 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 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, 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 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 as follows: "Ifyou unanimously agree that the defendant is guilty of Sexual Assault
ofa 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 ofa Child in Count X, you need not consider Indecency
 with a Child 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), ™4 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.


                                                                   -7-
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 they believed 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 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 ofthe 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 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 in context, made bytheprosecutor 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 whichthe defendant did these acts with her when shewas 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 andjunior. It went onfrom 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 thejury charge, and

the fact that the State did not have to 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, this factor "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 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-
•   ».   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. 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 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. 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 ofany party, nor does itturn on the question ofwhether a party 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.


                                                                    /Elizabeth Lang-Miers/
                                                                    ELIZABETH LANG-MIERS
                                                                    JUSTICE



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

                 131616F.U05




                                                                -10-
»»   •«




                                            Court of Appeals
                                 JirTtftI? Bifitrttt of Qtexaa at ©alias
                                               JUDGMENT


          CHARLES FREDRICK BELL, Appellant                  OnAppeal 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 Myersparticipating.

                 Based onthe Court's opinion of this date, thejudgments ofthetrial court are
          MODD7EED to reflect that appellant Charles Fredrick Bell's punishment was assessed by the
          jury. As MODIFIED, thejudgments are AFFIRMED.


          Judgment enteredthis 10thday of April, 2015.




                                                         -11-
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±
               O
    o          C


                    o



        r nS
