                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-11-00390-CR

MICHAEL LYNN DAVIS,
                                                           Appellant
v.

THE STATE OF TEXAS,
                                                           Appellee


                           From the 54th District Court
                            McLennan County, Texas
                           Trial Court No. 2011-708-C2


                          MEMORANDUM OPINION


      Michael Lynn Davis appeals from a conviction for the offense of burglary of a

habitation by entering a residence and committing or attempting to commit assault for

which he was sentenced to 99 years in prison. TEX. PEN. CODE ANN. § 30.02(a)(3) (West

2011). Davis complains that the jury charge was erroneous because it did not include a

culpable mental state in the definition of burglary in the abstract portion of the charge

and because the definitions of "intentionally" and "knowingly" included both nature of

conduct and result of conduct definitions. Davis also complains that the failure of the
trial court to require a written waiver of the requirement of 12 jurors was erroneous

when one of the jurors was discharged because it was discovered that he did not speak

or write English very well.      Davis finally complains that the trial court erred in

assessing the fees paid to his court-appointed attorney and investigator as costs.

Because the assessment of the fees was erroneous but there was no other reversible

error, we modify the judgment to delete the assessment of the attorney's fees and

investigator's fees and otherwise affirm.

Jury Charge Error

        Davis complains in his first issue that the jury charge was erroneous because the

definition of "burglary" contained in the abstract portion of the jury charge did not

contain the appropriate culpable mental states of "intentionally" or "knowingly." In the

abstract portion of the charge, the trial court set forth the definition of burglary of a

habitation using the precise language of section 30.02 of the penal code, which does not

include a culpable mental state. See TEX. PEN. CODE ANN. § 30.02(a)(3). The application

paragraph, however, did properly include "intentionally or knowingly" and Davis

concedes that the application paragraph was not erroneous. Rather, he contends that

the failure of the trial court to include "intentionally or knowingly" in the definition of

burglary in the definition was fundamental error.

         "The application paragraph of a jury charge is that which authorizes conviction,

and an abstract charge on a theory of law which is not applied to the facts is insufficient


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to bring that theory before the jury." Campbell v. State, 910 S.W.2d 475, 477 (Tex. Crim.

App. 1995) (citing Jones v. State, 815 S.W.2d 667, 669 (Tex. Crim. App. 1991)). Davis's

argument appears to be that the definition in the abstract portion of the charge would

allow him to be convicted without consideration of a culpable mental state. Even if the

definition were erroneous, however, the properly-worded application paragraph

limited the jury's consideration to the required culpable mental states. We do not find

that the jury charge was erroneous. We overrule issue one.

        Davis complains in his second issue that the jury charge was also erroneous

because it included the entire definitions of "intentionally" and "knowingly," which

include both nature of conduct and result of conduct definitions. Davis argues that the

portions of the instructions relating to the result of his conduct should not have been

included in the jury charge because the primary charge of burglary is a nature of

conduct offense.

        Certainly the gravamen of the offense of burglary is the act of entry without the

consent of the owner. Ex parte Cavazos, 203 S.W.3d 333, 335-37 (Tex. Crim. App. 2006).

However, in order to convict Davis of the offense as alleged, the State was required to

establish that he had either committed or attempted to commit an assault, which is a

result of conduct offense. See TEX. PEN. CODE ANN. § 30.02(a)(3). "Assault" was properly

defined within the jury charge and Davis does not complain about that definition. The

result of conduct definitions were required in order to properly define what constitutes


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"assault." We do not believe that the instructions as included were erroneous. We

overrule issue two.

Eleven Jurors

        Davis complains that the trial court erred by allowing the trial to continue after

one of the twelve jurors was discharged without a written waiver. After the trial was

underway it became known that one of the jurors had difficulty reading and writing the

English language, and that juror was discharged. After consulting with his attorney,

Davis orally stated his preference on the record to continue with only 11 jurors. Article

V, section 13 of the Texas Constitution was amended in 2003 to allow for a verdict to be

rendered by less than twelve jurors if one or more become disabled from sitting. TEX.

CONST. art. 5, § 13. Prior to that amendment, this Court determined that a written

waiver of a jury was not required in similar circumstances. See Butler v. State, 119

S.W.3d 404, 406-07 (Tex. App.—Waco 2003, pet. ref'd). Davis contends that this decision

is erroneous but does not provide any argument to support that position and we

decline to deviate from that holding. We overrule issue three.

Attorney's Fees

        Davis complains in his fourth issue that the trial court erred in assessing court

appointed attorney's fees and investigator's fees because there was no evidence

presented that he was no longer indigent. See Mayer v. State, 309 S.W.3d 552, 555 (Tex.

Crim. App. 2010). The State concedes error and we agree with Davis. Therefore, any


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assessment for attorney's fees or investigator's fees should be deleted from the

judgment. We sustain issue four.

Conclusion

         We find that the evidence was insufficient for the trial court to have assessed

attorney's fees and investigator's fees against him. We find no other reversible error has

been presented. Therefore, the judgment is modified to show that Davis's court costs

are assessed in the amount of $354.00. As modified, we affirm the judgment of the trial

court.



                                         TOM GRAY
                                         Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Modified, and Affirmed as Modified
Opinion delivered and filed August 30, 2012
Do not publish
[CRPM]




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