Bell, Charles Fredrick ( 2015 )

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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
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I * !•
Index of Authorities
Case: Page:
Brown v. Louisiana, 447 U.S. 323,100 Set. 2214 (1980) 1
Burch v. Louisiana, 441 U.S. 130, 99 Set. 1623 (1979) 1
Duncan v. State, 627 Sw2d 401 (Tex. Crim. App., 1982) 1
Ex Parte Hemby, 765 Sw2d. 791 (Tex. Crim. App., 1989) 1
Francis v. State, 36 Sw3d. 121 (Tex. Crim. App., 2000) 2
Kitchens v. State, 823 Sw2d. 256 (Tex. Crim. App., 1991) 2
Landrin v. State, 268 Sw3d. 532 (Tex. Crim. App., 2008) 2
Ngo v. State, 175 Sw3d. 738 (Tex. Crim. App., 2005) 2
Pizzo v. State, 235 S.W.3d 711 (Tex Crim App., 2007) 2
Texas Constitution:
Tex. Const. Art. V., Sec. 13 2
Texas Code of Criminal Procedure:
Article 36.29(a) V.A.C.C.P. 2
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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.
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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 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.
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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 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.
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Crim. App. 2007)). Non-unanimity may result "when the State charges one offense and presents
evidence that the defendant committed the charged offense on multiple 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.
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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.
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jury "unanimously agreed upon a verdict" Regardless of how often a generic unanimity
requirement was mentioned, however, the instructions failed toapprise the jurors that they had to
be unanimous on which incident of criminal conduct 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.
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It doesn't matter exactly when it occurred between her and the defendant, those
things that he did to her, the things that you believe that did in fact occur. It
doesn't matter when. She was a child. She was under 17. On or about those two
dates is close enough for us to meet those elements.
(Emphasis added.) Appellant argues that this statement "encouraged the jury not to concern
itself with unanimity with respect to which exact incident of alleged sex abuse constituted the
charged offense." In response, the State 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
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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
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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.
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