Kenneth Sherman v. the State of Texas

Opinion

Modified and Affirmed and Opinion Filed December 22, 2023

In The Court of Appeals Fifth District of Texas at Dallas No. 05-22-00868-CR No. 05-22-00869-CR No. 05-22-00870-CR No. 05-22-00871-CR KENNETH SHERMAN, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 194th Judicial District Court Dallas County, Texas Trial Court Cause Nos. F20-54139-M, F20-75847-M, F20-75893-M, F21- 75358-M

MEMORANDUM OPINION Before Justices Molberg, Pedersen, III, and Nowell Opinion by Justice Molberg Appellant Kenneth Sherman appeals his convictions for attempted indecency

with a child by sexual contact, two counts of aggravated sexual assault of a child,

and indecency with a child by exposure. The trial court accepted Sherman’s open

pleas of guilty and after considering evidence on punishment, sentenced him to 30

years’ confinement for each aggravated sexual assault and 10 years’ confinement for

each indecency with a child. In five issues, Sherman seeks to modify the judgments to accurately reflect his convictions, and the State raises three cross-issues also

relating to judgment modification. As modified, we affirm the judgments.

Background

In cause number F20-54139-M, Sherman was indicted for the offense of

attempted indecency with a child by sexual contact against a child younger than

seventeen. According to the judicial confession, Sherman confessed to that inchoate

offense. But according to the final judgment, Sherman was convicted of the

underlying offense, indecency with a child by sexual contact, instead of attempted

indecency, and the judgment lists the statute for this offense as penal code

§ 21.11(D).1

In cause number F20-75847-M, Sherman was indicted for aggravated sexual

assault of a child by causing the sexual organ of a child younger than fourteen to

contact his mouth. The judgment of conviction for this offense lists penal code

§ 22.021(A)(2)(B) as the statute for this offense, and it states the victim was three at

the time of the offense.

Similarly, in cause number F21-75358-M (220868), Sherman was indicted for

aggravated sexual assault of a child by causing the sexual organ of a child younger

than fourteen to contact his mouth on or about April 1, 2020. The judgment of

1 While there is no penal code § 21.11(D), subsection (d) states that an offense under subsection (a)(1) is a felony of the second degree and an offense under subsection (a)(2) is a felony of the third degree. –2– conviction for this offense, as above, lists penal code § 22.021(A)(2)(B) as the statute

for this offense and states the victim was three at the time of the offense.

In cause number F20-75893-M, Sherman was indicted for indecency with a

child by exposing his genitals in the presence of a child younger than 17 on or about

April 14, 2020. The judgment of conviction lists penal code § 21.11(D) as the statute

for this offense and it states the victim was three at the time of the offense.

Discussion

Both Sherman and the State seek to modify the judgments before us. We may

modify the trial court’s judgment to make the record speak the truth when we have

the necessary information to do so. TEX. R. APP. P. 43.2(b); Bigley v. State, 865

S.W.2d 26, 27–28 (Tex. Crim. App. 1993). This includes, among other things,

correcting offense names and statutes for offenses. See Jenkins v. State, No. 05-18-

01541-CR, 2019 WL 5304491, at *1 (Tex. App.—Dallas Oct. 21, 2019, no pet.)

(mem. op., not designated for publication).

In his first two issues, Sherman argues the judgment in cause number

F20-54139-M should be modified to accurately reflect the offense for which he was

convicted and the penal code section for that offense. We agree with Sherman.

Sherman was indicted for and pleaded guilty to attempted indecency with a child by

sexual contact against a child younger than seventeen, yet the judgment recites that

he was convicted of the underlying offense, indecency with a child by sexual contact.

Additionally, the judgment lists the statute for this offense as “penal code

–3– § 21.11(D)” instead of the statute for criminal attempt, penal code § 15.01(a) (“A

person commits an offense if, with specific intent to commit an offense, he does an

act amounting to more than mere preparation that tends but fails to effect the

commission of the offense intended.”).

Accordingly, we will modify the judgment to reflect that Sherman was

convicted of attempted indecency with a child by sexual contact, and that the statute

for this offense is penal code § 15.01(a). See Parfait v. State, 120 S.W.3d 348, 351

(Tex. Crim. App. 2003) (concluding a defendant found guilty of criminal attempt is

convicted under § 15.01, not the penal code provision of the attempted offense);

Torres v. State, No. 05-22-00314-CR, 2023 WL 4861780, at *4 (Tex. App.—Dallas

July 31, 2023, no pet.) (mem. op., not designated for publication) (modifying

judgment to reflect that the statute for attempted indecency with a child by contact

is penal code § 15.01(a)); Sanchez v. State, No. 05-19-01053-CR, 2021 WL

1940455, at *6 (Tex. App.—Dallas May 14, 2021, no pet.) (mem. op., not designated

for publication).

Sherman argues the judgment in cause number F20-75847-M should be

modified to reflect the correct statute for the offense of which he was convicted.

The parties disagree about the correct statute: Sherman points to penal code

§ 22.021(a)(1)(B)(ii) while the State argues § 22.021(a)(1)(B)(iii) is correct. We

agree with the State. Under penal code § 22.021(a)(1)(B)(iii), a person commits an

offense if he, regardless of whether the person knows the age of the child at the time

–4– of the offense, intentionally or knowingly causes the sexual organ of a child to

contact or penetrate the mouth, anus, or sexual organ of another person, including

the actor. This is the offense Sherman was indicted for and to which he pleaded

guilty. The State further argues the aggravating factor that the victim was younger

than 14 years of age should be reflected in the judgment. See TEX. PENAL CODE

§ 22.021(a)(2)(B); Brennan v. State, No. 06-22-00134-CR, 2023 WL 2569951, at *2

(Tex. App.—Texarkana Mar. 20, 2023, no pet.) (mem. op., not designated for

publication) (modifying judgment to reflect the correct statute, including the

aggravating factor, under penal code § 22.021(a)(1)(B)(i), (2)(B)). Again, we agree

with the State.

Accordingly, we will modify the judgment in cause number F20-75847-M to

reflect that the statute of the offense for which Sherman was convicted is penal code

§ 22.021(a)(1)(B)(iii), (2)(B).

Sherman makes the same complaint about the judgment in cause number

F21-75358-M. In that case, Sherman was indicted for aggravated sexual assault of

a child by causing the sexual organ of a child younger than fourteen to contact his

mouth on or about April 1, 2020. The judgment of conviction for this offense, as

above, incorrectly lists penal code § 22.021(A)(2)(B) as the statute for this offense.

We will modify the judgment in this cause to reflect that the statute of the offense

for which Sherman was convicted is penal code § 22.021(a)(1)(B)(iii), (2)(B).

–5– Finally, Sherman argues the judgment in cause number F20-75893-M should

be modified to correct the listed statute for the offense. In that cause, Sherman was

indicted for indecency with a child by exposing his genitals in the presence of a child

younger than 17 on or about April 14, 2020. Further, the plea agreement reflects

that Sherman pleaded guilty to indecency with a child by exposure. The statute for

this offense is penal code § 21.11(a)(2)(A). Yet the judgment of conviction lists

penal code § 21.11(D) as the statute for this offense. Accordingly, we will modify

the judgment to correctly reflect that Sherman was convicted of an offense under

penal code § 21.11(a)(2)(A).

The State raises three cross-issues, seeking to modify three of the judgments

to correctly reflect the ages of the victims. See TEX. CODE CRIM. PROC. art. 42.01, §

1(27) (judgment shall reflect “a statement of the age of the victim of the offense” in

event of “conviction of an offense for which registration as a sex offender is required

under Chapter 62”). In cause number F20-75893-M, the judgment states the victim’s

age at the time of the offense was three. The State points to a search warrant affidavit

in the clerk’s record identifying the victim in that case, S.W., as follows: “W/F/4.”

The record, however, does not support the State’s issue. Evidence showed the

offense was committed April 14, 2020. S.W. testified she was six at the time of the

August 12, 2022 hearing and that her birthday was in July. Thus, according to the

evidence presented to the trial court, S.W. was three at the time of the offense in

April 2020. We overrule the State’s first issue.

–6– Second, the State contends the judgment in cause number F20-75847-M

should be modified to reflect that victim N. was eight at the time of the offense. The

judgment in that cause states the victim’s age at the time of the offense was three.

N. testified he was ten at the time of the punishment hearing and his birthday was in

October 2011. The State relies on the offense date alleged in the indictment—

February 1, 2020—to calculate N.’s age at the time of the offense. But the date of

the offense alleged in an indictment is not evidence of the date of the offense. See

Vasquez v. State, No. 05-20-00116-CR, 2022 WL 2951667, at *7 (Tex. App.—

Dallas July 26, 2022, pet. ref’d) (mem. op., not designated for publication)

(concluding judgment’s statement that victim was “< 14 years” constituted “a

statement of the age of the victim of the offense” and declining to modify the

judgment to reflect a precise age without “conclusive proof of the actual date of the

offense”). Without conclusive proof of the offense date, we are unable to determine

N.’s age at the time of the offense. However, because N. was ten at the time of the

hearing, we will modify the judgment to reflect that he was “< 10” at the time of the

offense and not “3.”

Finally, the State asks us to modify the judgment in cause number F21-75358-

M to reflect that victim P. was seven at the time of the offense and not three as the

judgment now states. Evidence showed P.’s birthday was in September 2012 and

he was nine at the time of the August 2022 hearing. The State again relies on the

offense date alleged in the indictment, April 1, 2020, to determine P.’s age at the

–7– time of the offense. But because the record again offers no conclusive proof of the

offense date here, we will modify the judgment to reflect that P. was “< 9” on the

date of the offense.

Conclusion

As modified, we affirm the trial court’s judgments.

220868f.u05 /Ken Molberg/ 220869f.u05 KEN MOLBERG 220870f.u05 JUSTICE 220871f.u05 Do Not Publish Tex. R. App. P. 47 220868F.U05

–8– Court of Appeals Fifth District of Texas at Dallas JUDGMENT

KENNETH SHERMAN, Appellant On Appeal from the 194th Judicial District Court, Dallas County, Texas No. 05-22-00868-CR V. Trial Court Cause No. F21-75358-M. Opinion delivered by Justice THE STATE OF TEXAS, Appellee Molberg. Justices Pedersen, III and Nowell participating.

Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED as follows:

by removing “22.021(A)(2)(B)” after “Statute for Offense” and replacing it with “22.021(a)(1)(B)(iii), (2)(B)”;

and by removing the number “3” from within the sentence, “The age of the victim at the time of the offense was 3 years,” and replacing it with “< 9.”

As MODIFIED, the judgment is AFFIRMED.

Judgment entered this 22nd day of December, 2023.

–9– Court of Appeals Fifth District of Texas at Dallas JUDGMENT

KENNETH SHERMAN, Appellant On Appeal from the 194th Judicial District Court, Dallas County, Texas No. 05-22-00869-CR V. Trial Court Cause No. F20-75893-M. Opinion delivered by Justice THE STATE OF TEXAS, Appellee Molberg. Justices Pedersen, III and Nowell participating.

Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED as follows:

by removing “21.11(D)” after the phrase “Statute for Offense” and replacing it with “21.11(a)(2)(A).”

As MODIFIED, the judgment is AFFIRMED.

Judgment entered this 22nd day of December, 2023.

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

KENNETH SHERMAN, Appellant On Appeal from the 194th Judicial District Court, Dallas County, Texas No. 05-22-00870-CR V. Trial Court Cause No. F20-75847-M. Opinion delivered by Justice THE STATE OF TEXAS, Appellee Molberg. Justices Pedersen, III and Nowell participating.

Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED as follows:

by deleting “22.021(A)(2)(B)” following the phrase “Statute for Offense” and replacing it with “22.021(a)(1)(B)(iii), (2)(B)”;

and by removing the number “3” from within the sentence, “The age of the victim at the time of the offense was 3 years,” and replacing it with “< 10.”

As MODIFIED, the judgment is AFFIRMED.

Judgment entered this 22nd day of December, 2023.

–11– Court of Appeals Fifth District of Texas at Dallas JUDGMENT

KENNETH SHERMAN, Appellant On Appeal from the 194th Judicial District Court, Dallas County, Texas No. 05-22-00871-CR V. Trial Court Cause No. F20-54139-M. Opinion delivered by Justice THE STATE OF TEXAS, Appellee Molberg. Justices Pedersen, III and Nowell participating.

Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED as follows:

by inserting “ATTEMPTED” before “INDECENCY W/ CHILD SEXUAL CONTACT” under the phrase “Offense for which Defendant Convicted”;

and by removing “21.11(D)” under the phrase “Statute for Offense” and replacing it with “15.01(a).”

As MODIFIED, the judgment is AFFIRMED.

Judgment entered this 22nd day of December, 2023.

–12–