Opinion
06-22-00153-CR
11-30-2023
JOSHUA ROSS MCCULLER, Appellant v. THE STATE OF TEXAS, Appellee
Do Not Publish
Date Submitted: September 27, 2023
On Appeal from the 124th District Court Gregg County, Texas Trial Court No. 54209-B
Before Stevens, C.J., van Cleef and Rambin, JJ.
MEMORANDUM OPINION
Scott E. Stevens Chief Justice
After a Gregg County jury found Joshua Ross McCuller guilty of murder, it assessed his sentence at life in prison. McCuller appeals, maintaining that the evidence was insufficient to support the jury's verdict of guilt. We find that there was sufficient evidence to support the jury's verdict. Even so, we must modify the trial court's nunc pro tunc judgment to reflect the correct date of offense. As modified, we affirm.
See Tex. Penal Code Ann. § 19.02(c) (Supp.).
The trial court's nunc pro tunc judgment also corrected McCuller's state identification number.
I. Background
On the evening of January 3, 2021, McCuller called 9-1-1 from his Longview apartment, telling the dispatcher that he needed the police because he had just hit Lori Follis in the head with a hammer and she was bleeding profusely. Follis could be heard in the background screaming and begging McCuller to let her leave the apartment. In response, McCuller told Follis that he was "giving [her] a chance" to "go." Immediately, the dispatcher intervened, telling McCuller that Follis should remain in the apartment if he had hit her in the head. Despite the dispatcher's instructions, McCuller allowed Follis to leave. McCuller told the dispatcher that he would comply with responding officers, stating, "I need help." McCuller also informed the dispatcher that he had "been having homicidal thoughts [and] voices" and that he "had to do it." McCuller then explained that he "just [could not] do it anymore" and that he "just want[ed] to get locked up." According to McCuller, he hit Follis on the head several times, but she did not lose consciousness.
The indictment in this case alleged that the offense took place on or about January 3, 2021, and the witnesses at trial corroborated the January 3, 2021, offense date. Yet, the trial court's nunc pro tunc judgment of conviction shows that the offense occurred on January 4, 2021. Because the indictment and the testimony refer to January 3 as the date of offense, we will assume, for purposes of this opinion, that January 3 is the correct date.
The dispatcher asked McCuller if he had any other weapons in his apartment, to which McCuller responded that he had knives and that they were in his "slaughter room." He went on to explain that he had "a whole plan planned out" on how he was going to kill Follis. When the police arrived at his apartment, McCuller told them that he was calm and that he was not going to behave in a manner that might cause the officers to shoot him. McCuller advised the officers that Follis had left his apartment in her car and that she was most likely on her way home.
After the officers arrested McCuller, they took him to the police station where he was interviewed. In his Mirandized confession, McCuller explained that, when he was fifteen years old, he was diagnosed with paranoid schizophrenia and manic depression, but that he was last diagnosed with schizoaffective disorder. McCuller did not take medication for the disorder, but he did take medication for depression. At fifteen, McCuller began having homicidal thoughts and thoughts of committing "sexual stuff" against women. McCuller had a "type" that he fantasized about, "whether it be their hair or . . . what they looked like." McCuller claimed that he wanted to kill the women, have sex with their dead bodies, mutilate them, and then leave them out where they could be found so that he would get recognition for killing them. McCuller said that he had attempted to kill at least one other person, that he "felt good about what [he] did," that he "felt excitement," that he "had this rush," and that "[he] was happy."
See Miranda v. Arizona, 384 U.S. 436 (1966).
McCuller explained that Follis had been his social worker for several years and that they became friends. He had been fantasizing about Follis for a long time and had decided to act on his fantasy. McCuller invited Follis to his apartment, and she arrived between 6:30 p.m. and 7:00 p.m. McCuller "was just waiting for the right moment to do it." McCuller calmly explained that he had ground up some sleeping pills and put them in Follis's coffee. He said that "maybe [Follis] would get sleepy and pass out, and then [he] would strike her with the hammer." McCuller had planned to completely wrap Follis's head with plastic wrap, hit her in the head about four more times, and then leave her there to suffocate. McCuller would then lay down some plastic, place Follis on top of it, strip her, drag her into the bedroom, put her on his "sex bed," and have sex with her dead body. He would sleep in the bed with her all night, take her to his "slaughter room" where he had set up a "work station type thing," and then use his knives, surgical instruments, and a bone saw to cut her into pieces. Next, McCuller planned to take "some meat" from Follis's body, grind it up, put the meat in a crockpot, and then "try it." McCuller explained that it had long been his fantasy to see what a person's flesh tasted like. He had also found a deodorizer that would cover up the smell of a dead body. It was his intention to use the product to lessen any odors that might result from Follis's body after her death. McCuller claimed that, after he fulfilled his fantasies with Follis, he had intended to call Community HealthCore to tell them what he had done. He said, "I was just going to turn myself in anyways."
McCuller referred to the instruments as his "kill kit."
Although McCuller had the whole evening planned, it did not go as he had expected. Instead, McCuller "whacked" Follis in the head once, she fell, he dropped the hammer, he picked it up, and then he "whacked her again, and whacked her again." "She was bleeding everywhere" and "begging him to stop." In response, McCuller "whacked her a couple more times," and he "thought [he] just [could not] knock her out." McCuller then "just gave up" because it was not going the way he had planned and, by that point, other people were probably hearing Follis's screams. McCuller said that Follis wanted to leave and that he had "[given] her the option." At that point, he phoned 9-1-1.
Less than thirty minutes after McCuller contacted 9-1-1, Follis was involved in a traffic accident that resulted in Follis's body being found on the side of the road. She was pronounced dead at the scene. According to Texas Highway Patrol Trooper Brant Smith, who investigated the accident that night, Follis's vehicle had been traveling in the northbound lane and then crossed over into the southbound lane and stopped. When Smith arrived at the scene, he could see that Follis's vehicle was still in park and that the driver's side door was open. Smith explained, "From the scene, Ms. Follis exits the vehicle right here (indicating) and walks into the roadway -- or was right here by the car, when she is struck by Ms. Lee traveling south."
Follis's body was located "partially in the roadway but mostly on the shoulder." Smith opined, "When Ms. Follis was struck by Lee's vehicle, . . . it was evident at the scene that Follis became attached to Ms. Lee's vehicle, and the momentum of Lee's vehicle coming to a stop brought Follis to this location where she fell off the car." He continued, "And then Ms. Lee pulled around . . . and came to a stop after Follis fell off the windshield of [Ms. Lee's] vehicle." Smith found no indication that Lee's vehicle was exceeding the sixty miles per hour speed limit when she hit Follis.
Smith found some of Follis's jewelry and a sweater or sweatshirt that had been dispersed around the area. According to Smith, when he arrived at the accident scene, he did not know that Follis had been assaulted. However, when Longview police officers arrived at the scene, they informed Smith that Follis had been assaulted in a Longview apartment, that she had escaped after being assaulted, and that she had made it to the accident location before ultimately being struck by Lee's vehicle.
Tarrant County Deputy Chief Medical Examiner Dr. Tasha Greenberg performed Follis's autopsy. Before beginning the autopsy, Greenberg was made aware of the fact that Follis had been outside of her vehicle when she was struck by another vehicle. She was also told that the Longview Police Department was "investigating a possible assault on [Follis] at [that] time, possibly a head injury and possibly drugged." According to Greenberg, Follis had "extensive injuries that [were] classified as blunt force injuries, basically throughout . . . her body." She had numerous abrasions, contusions, and lacerations on her skin. Follis's hip area showed hyperextension, which can cause "little tears in the skin." Greenberg opined that pedestrians who suffer those types of injuries are generally struck by a vehicle from behind. Greenberg said that, even looking at the marks and contusions on Follis's arm that appeared to be circular, she could not say definitively whether Follis's injuries were caused by being hit by a car or struck by a hammer. Yet, Greenberg did say that it was possible that the injuries on her arms resulted from Follis defending herself during the assault.
According to Greenberg, Follis suffered a variety of serious injuries to her head. However, Greenberg stated that, even after she examined Follis's shaved skull, there was nothing definitive as to what caused the injuries to her head. But she did say that it was possible that the injuries from the car accident overlapped with the injuries she received from being hit on the head with a hammer. Greenberg also testified to "a depressed fracture" that was "nearly oval, so [it had] some curvature to the edge." Greenberg continued, "And, the center part here (indicating), that part of the skull has been pushed in due to the impact. So it's consistent with something that has a rounded edge striking the skull." Greenberg opined that the particular injury and the back side of the circular indention found on the outside of Follis's skull were consistent with Follis being hit in the head with a hammer. Yet, according to Greenberg, "[i]n spite of there being multiple additional injuries to the scalp and another skull fracture, [that was] the only one that [had] those characteristics [of a hammer]."
In addition to the injuries to her head, Follis suffered multiple rib, sternum, and breast plate fractures, along with two breaks in her spine. Greenberg's examination also revealed that Follis had a broken left upper arm, broken left forearm, broken right forearm, broken left femur, and a broken bone in her right leg below her knee.
Furthermore, Greenberg testified about the drugs found in Follis's system at the time of her death, and she also explained the consequences of ingesting those drugs. During an interview the night of the incident, McCuller said that he had crushed up five DAYVIGO sleeping tablets that were five milligrams a piece. McCuller explained that he put the drugs in Follis's coffee so that she would be unable to defend herself during the attack. Greenberg testified that DAYVIGO was a relatively new drug and that it was "used to treat insomnia, for difficulty sleeping." Greenberg said that the toxicology report did not show that Follis had DAYVIGO in her system at the time of her death. But, Greenberg also explained that DAYVIGO is "a class of drug . . . and [she] discussed this with [the] toxicologist where [she] currently work[ed]. And, frankly, he had not heard of it. So it is a class of drug that is not routinely tested for."
Follis's "[postmortem toxicology detected caffeine, 7-aminoclonazepam, duloxetine, methamphetamine, and amphetamine."
Tonie Torres, the property manager at McCuller's apartment complex and also McCuller's friend, testified that McCuller called her on the telephone around ninety times during the time he was in jail awaiting trial. In at least one of their telephone conversations, McCuller told Torres (1) that he hit Follis in the front and back of her head, (2) that he believed the blows to her head killed her, and (3) that the pills he gave her caused her to be confused or may have even caused her death. According to Torres, McCuller remained steadfast during their telephone conversations that he had caused Follis's death. Torres stated, "It was always that he had hit her. And it was different things that he would say, but it was things ending with he caused her death."
II. Standard of Review
"In evaluating legal sufficiency, we review all the evidence in the light most favorable to the trial court's judgment to determine whether any rational jury could have found the essential elements of the offense beyond a reasonable doubt." Williamson v. State, 589 S.W.3d 292, 297 (Tex. App.-Texarkana 2019, pet. ref'd) (citing Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010) (plurality op.); Jackson v. Virginia, 443 U.S. 307, 319 (1979); Hartsfield v. State, 305 S. W3d 859, 863 (Tex App-Texarkana 2010, pet ref'd)) "We examine legal sufficiency under the direction of the Brooks opinion, while giving deference to the responsibility of the jury 'to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts'" Id. (quoting Hooper v State, 214 S.W.3d 9, 13 (Tex Crim App 2007)) In drawing reasonable inferences, the trier of fact "may use common sense and apply common knowledge, observation, and experience gained in the ordinary affairs of life" Duren v State, 87 S.W.3d 719, 724 (Tex App-Texarkana 2002, pet struck) (citing Manrique v State, 994 S.W.2d 640, 649 (Tex Crim App 1999) (Meyers, J, concurring)).
As the trier of fact, the jury is the sole judge of the credibility of the witnesses and the weight to be given their testimony and may believe all, some, or none of any witness's testimony. Thomas v. State, 444 S.W.3d 4, 10 (Tex. Crim. App. 2014). We give "almost complete deference to a jury's decision when that decision is based on an evaluation of credibility." Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008).
Legal sufficiency of the evidence is "measured by the elements of the offense as defined by the hypothetically correct jury charge." Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). The "hypothetically correct" jury charge is "one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried." Id.
III. Discussion
In its indictment, the State alleged that McCuller committed the offense of murder on or about January 3, 2021, when he
PARAGRAPH A
intentionally and knowingly cause[d] the death of an individual, namely Lori Follis, by striking Lori Follis with a hammer,
PARAGRAPH B
with intent to cause serious bodily injury to an individual, namely Lori Follis, hereafter styled the complainant, commit[ted] an act clearly dangerous to human life that caused the death of the complainant, by striking her with a hammer.
"A person commits [the] offense [of murder] if [he] . . . intentionally or knowingly causes the death of an individual" or when he "intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual." Tex. Penal Code Ann. § 19.02(b)(1), (2) (Supp.). In addition, "[a] person acts intentionally, or with intent, with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result." Tex. Penal Code Ann. § 6.03(a). Furthermore,
[a] person acts knowingly, or with knowledge, with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist. A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result.
Tex. Penal Code Ann. § 6.03(b).
McCuller argues that, despite presenting ample evidence that he intended to kill Follis, the State was unable to prove beyond a reasonable doubt that McCuller caused her death. According to McCuller, the evidence showed that, after the assault, Follis was able to argue with McCuller, collect her belongings, leave his apartment, get into her vehicle, and drive away. McCuller states that, "[t]wenty minutes later, seven miles away, Follis was killed when another car struck her as she stood outside her parked car on a dark county road." As a result, McCuller contends that those facts did not support a finding that McCuller's act of hitting Follis in the head with a hammer caused her death.
In response, the State contends that, viewed in the light most favorable to the jury's guilty verdict, a fact-finder could have found, beyond a reasonable doubt, that McCuller caused Follis's death. The State points to (1) McCuller's admission that he put sleeping pills in Follis's coffee, (2) his admission that he "whacked" Follis multiple times on her head with a hammer, (3) his statement that he allowed Follis to leave his apartment, and (4) that Follis then got in her vehicle, drove seven miles, and exited her vehicle in a disoriented state and was hit from behind by Lee's vehicle. According to the State, had McCuller not acted in the manner he did, Follis would be alive today.
A. Applicable Law
"A person is criminally responsible if the result would not have occurred but for his conduct, operating either alone or concurrently with another cause, unless the concurrent cause was clearly sufficient to produce the result and the conduct of the actor was clearly insufficient." Tex. Penal Code Ann. § 6.04(a). Courts have interpreted Section 6.04(a) to mean that
a "but for" causal connection must be established between the defendant's conduct and the resulting harm. If concurrent causes are present, two possible combinations exist to satisfy the "but for" requirement: (1) the defendant's conduct may be sufficient by itself to have caused the harm, regardless of the
existence of a concurrent cause; or (2) the defendant's conduct and the other cause together may be sufficient to have caused the harm. However, § 6.04(a) further defines and limits the "but for" causality for concurrent causes by the last phrase, "unless the concurrent cause was clearly sufficient to produce the result and the conduct of the actor clearly insufficient." If the additional cause, other than the defendant's conduct, is clearly sufficient, by itself, to produce the result and the defendant's conduct, by itself, is clearly insufficient, then the defendant cannot be convicted.Robbins v. State, 717 S.W.2d 348, 351 (Tex. Crim. App. 1986).
The trial court's jury charge included an instruction on concurrent causation in the definition section of the charge, but it was not included in the application portion. The jury instructions stated,
"Causation: Conduct and Results" (a) A person is criminally responsible if the result would not have occurred but for his conduct, operating either alone or concurrently with another cause, unless the concurrent cause was clearly sufficient to produce the result and the conduct of the actor clearly insufficient.
(b) A person is nevertheless criminally responsible for causing a result if the only difference between what actually occurred and what he desired, contemplated, or risked is that:
(1) a different offense was committed; or
(2) a different person or property was injured, harmed, or otherwise affected.McCuller does not complain about the trial court's instructions to the jury.
That said, "[t]he scope of causation under the Texas Penal Code is broad . . . ." Cyr v. State, 665 S.W.3d 551, 557 (Tex. Crim. App. 2022) (citing Tex. Penal Code Ann. § 6.04(a)). Although Cyr addressed the omission of a jury-charge instruction on concurrent causation, its reasoning is useful in this case. There, the Texas Court of Criminal Appeals explained,
The breadth of causation under § 6.04 results from the differences between civil and criminal law. Unlike tort law in which causation functions as a litmus test for fairness, causation in criminal law is limited by the culpability requirement. JOSHUA DRESSLER, UNDERSTANDING CRIMINAL LAW 186-87 (8th ed. 2018) ("[T]he Model Penal Code treats but-for causation as the exclusive meaning of 'causation' in criminal law. The Code treats matters of 'proximate causation' as issues relating instead to the actor's culpability."). We have nonetheless recognized that such foreseeability limitations exist. Williams v. State, 235 S.W.3d 742, 755, 764 (Tex. Crim. App. 2007) ("The defendant's conduct must be a direct cause of the harm suffered.") ("Obviously some element of foreseeability limits criminal causation.").Id. "The existence or nonexistence of a causal connection is normally a question for the jury." Olalde v. State, 635 S.W.3d 404, 408 (Tex. App.-San Antonio 2021, no pet.) (quoting Martin v. State, No. 04-13-00483-CR, 2014 WL 2802912, at *1 (Tex. App.-San Antonio Jun. 18, 2014, no pet.) (mem. op., not designated for publication)).
B. Analysis
For the most part, the parties agree on the circumstances surrounding the incident at McCuller's apartment and the incident involving Lee's vehicle. Yet, they disagree as to who and what caused Follis's death: McCuller's actions of hitting Follis in the head with a hammer or the subsequent car accident. During oral argument, the State conceded that, if Lee's vehicle were traveling at sixty miles per hour and it hit Follis, it would be reasonable for the jury to have found that the accident alone could have caused her death. Furthermore, both parties agree that it would be reasonable for the jury to have found that McCuller's actions and the vehicle accident, combined, were sufficient to cause Follis's death. Because the car accident alone was clearly sufficient to cause Follis's death, and the two events, together, were capable of causing Follis's death, we determine next whether McCuller's conduct, by itself, was clearly insufficient to have caused Follis's death. For the reasons below, we find that McCuller's actions, by themselves, were not clearly insufficient to cause Follis's death.
In support of its position, the State directs the Court to Greenberg's response to its question: "And you determined that you believe that the causation would be what?" She responded,
So the -- for us, the cause of death is the disease or injury that led to the person's death. And so, in this case, as mentioned, I ruled it as multiple blunt force injuries. So, the blunt force injuries are the things that we've talked about; the outer findings, the fractures, and then there's the internal injury of the brain and a few other internal organs, like the lungs. So all of those things in combination are what led to her death.
She further stated, "It's a combination of circumstances that has led to the cause being the multiple blunt force injuries." Greenberg also testified that she was aware of the term "concurrent causation" and that she had been an expert in a similar case involving concurrent causation.
A. [(By Dr. Greenberg)] So, I did have a case where a person was assaulted in their home. It was a sharp force injury case, so they were stabbed. They left the home and ran out into the street to seek help and were subsequently struck by a vehicle. So there were initial injuries that started the chain of events, and then additional injuries that happened secondary.
Q. [(By the State)] Okay. So even though the stab wounds were not the only cause of this death, the fact that they were trying to get away, run out in the street, in your opinion, in that particular case, you still ruled that a homicide?
A. I did, because of the connection between the circumstances.
Notably, the State asked Greenberg as follows:
So let's say, hypothetically, we know that you can say that your examination was consistent with at least one blow to the head with a hammer, it was consistent with that injury. If we were to tell you that she had been struck in the head four, if not five times with the blow of a hammer, and she had left the scene and had not sought help, if she hadn't have been in that wreck, would that have caused either death or serious bodily injury to her?
Greenberg answered, "That is a possibility, yes."
McCuller contends that, because Greenberg did not testify that his actions were the direct cause of Follis's death, the jury was required to find him not guilty. Yet, the jury was within its discretion to believe (1) McCuller's version of events, namely, that he "whacked" Follis in the head several times with a hammer causing her to bleed profusely, and (2) Greenberg's testimony that she discovered only one injury that was consistent with a blow to Follis's head from something round like a hammer. Furthermore, when the State asked Greenberg, hypothetically, whether four or five blows could have caused Follis's death, she answered, "That is a possibility, yes." The jury was free to consider McCuller's version of events-that he hit her in the head multiple times with a hammer-in conjunction with Greenberg's testimony that it was possible for a person to die from four or five hammer blows to the head.
Moreover, Rule 702 of the Texas Rules of Evidence states, "A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion . . . [if it] will help the trier of fact to understand the evidence or to determine a fact in issue." Tex. R. Evid. 702 (emphasis added). Although an expert's testimony may assist the jury in determining its verdict, the jury remains the arbiter of the expert's credibility and the weight to be given her testimony. Metcalf v. State, 597 S.W.3d 847, 855 (Tex. Crim. App. 2020); see Vela v. State, 209 S.W.3d 128, 131 (Tex. Crim. App. 2006). Accordingly, Greenberg's testimony, although helpful in determining Follis's cause of death, did not dictate the jury's verdict. See Ex parte Flores, 387 S.W.3d 626, 637-38 (Tex. Crim. App. 2012) (orig. proceeding). In other words, "nothing about [Greenberg]'s testimony guaranteed an acquittal." See id. at 637. As is always the case, the jury, as "the sole judge of the credibility of the witnesses and the weight to be given their testimony[, could] 'believe all of [Greenberg's] testimony, portions of it, or none of it.'" See Williamson, 589 S.W.3d at 297 (quoting Thomas, 444 S.W.3d at 10). And, to the extent Greenberg's testimony and McCuller's statements differed, "we presume that the jury resolved [that evidence] in favor of [its] verdict, and we defer to [its] determination." Dobbs v. State, 434 S.W.3d 166, 170 (Tex. Crim. App. 2014).
The same holds true in relation to the statements McCuller made during the incident, immediately after the incident, and months after the incident.
The jury also heard McCuller's admission that, unbeknownst to Follis, he gave her what he believed to be enough DAYVIGO to sedate her to the point that she could not defend herself from his attack. Although DAYVIGO was not found in Follis's system, the jury was free to believe McCuller's own admissions and Greenberg's testimony that toxicologists generally do not test for the existence of DAYVIGO in a deceased person's system.
Furthermore, Smith testified that Follis's vehicle had crossed over into the opposite lane and stopped and that her car door was open. Even though Follis was in the opposite lane, Greenberg testified that, in her opinion, when Follis was struck by the car, she was struck from behind. Greenberg explained that a person that had been struck in the head with a hammer could have concussion-like symptoms and become disoriented. She further explained that "[t]here could be issues with not just concussion, with other types of brain injury, that could lead to loss of coordination, perhaps difficulty walking." Additionally, the State asked Greenberg,
And if you learned that she's been struck four or five times, plus she may have been given some type of sleeping pills, do you think that would have led to the reason that she is parked on the wrong side of the road, she's outside her car, and she's a pedestrian with her back to oncoming traffic?
Greenberg responded, "That is a possibility, yes."
As a result, the jury could have reasonably concluded that, at the time Follis was struck by the car, she was still in a sedated state from the drugs that McCuller gave her and that she was disoriented from being hit on the head with a hammer.
The jurors also had the opportunity to review the photograph of the hammer, Greenberg's autopsy report, and the photographs of Follis's injuries and to assess for themselves what they believed caused Follis's death.
When all of the evidence is viewed in the light most favorable to the jury's verdict, we conclude that legally sufficient evidence supported McCuller's conviction. As a result, we overrule McCuller's sole point of error.
C. Modification of the Trial Court's Nunc Pro Tunc Judgment of Conviction
The trial court's nunc pro tunc judgment reflects that the offense at issue occurred on January 4, 2021. Yet, the State's indictment and the testimony given at trial show that the offense occurred on January 3, 2021. "Appellate courts 'have the authority to reform judgments and affirm as modified in cases where there is non reversible error.'" Walker v. State, 557 S.W.3d 678, 690 (Tex. App.-Texarkana 2018, pet. ref'd) (quoting Ferguson v. State, 435 S.W.3d 291, 294 (Tex. App.-Waco 2014, pet. struck), overruled on other grounds by Cummins v. State, 646 S.W.3d 605 (Tex. App.-Waco 2022, pet. ref'd)); see Anthony v. State, 531 S.W.3d 739, 743 (Tex. App.-Texarkana 2016, no pet.) ("This Court has the power to correct and modify the judgment of the trial court for accuracy when the necessary data and information are part of the record." (citing Tex.R.App.P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.-Dallas 1991, pet. ref'd))).
We, therefore, must modify the trial court's nunc pro tunc judgment of conviction to reflect that the offense at issue occurred on January 3, 2021.
IV. Conclusion
Accordingly, we modify the trial court's nunc pro tunc judgment of conviction to show the date of offense as January 3, 2021. As modified, we affirm the trial court's nunc pro tunc judgment of conviction.