                             NO. 07-11-00353-CR, 07-11-0354-CR

                                 IN THE COURT OF APPEALS

                          FOR THE SEVENTH DISTRICT OF TEXAS

                                          AT AMARILLO

                                             PANEL A

                                     SEPTEMBER 18, 2012


                          DANIEL EVERETT BROOKS, APPELLANT

                                                 v.

                              THE STATE OF TEXAS, APPELLEE


             FROM THE 222ND DISTRICT COURT OF DEAF SMITH COUNTY;

         NO. CR-11H-099, CR-11H-100; HONORABLE ROLAND D. SAUL, JUDGE


Before CAMPBELL and HANCOCK and PIRTLE, JJ.


                                             OPINION


          Appellant, Daniel Everett Brooks, appeals his convictions for felony assault 1 in

trial court number CR-11H-099, appellate cause No. 07-11-00353-CR. Appellant also

appeals his conviction for sexual assault2 in Count I of trial court number CR-11H-100

and aggravated sexual assault3 in Count II of trial court number CR-11H-100, appellate

cause No. 07-11-00354-CR. After hearing the evidence regarding punishment, the jury


1
    See TEX. PENAL CODE ANN. § 22.01(a)(1) & (b)(2)(A) (West 2011).
2
    Id. § 22.011(a)(1)(A) (West 2011).
3
    Id. § 22.021(a)(2)(A)(ii), (iii) (West Supp. 2012).
assessed appellant‘s punishment at ten years for the felony assault, twenty years for

the sexual assault, and fifty years for the aggravated sexual assault. Appellant has

perfected his appeal and by six issues contends that 1) the judgment of conviction for

aggravated sexual assault is void, 2) appellant‘s right to a jury trial on the charge of

sexual assault was violated, 3) appellant suffered egregious harm when the trial court‘s

charge to the jury was for the offense of aggravated sexual assault, 4) appellant

suffered egregious harm because the jury charge permitted a guilty verdict on an invalid

theory of guilt, 5) the judgment in No. 07-11-00354-CR allowed an improper cumulating

of the fines assessed, and 6) the evidence was insufficient to support the order for

appellant to pay the fees of his court appointed attorney. We affirm the judgment as

hereinafter modified.


                          Factual and Procedural Background


      Appellant was indicted by two separate indictments that alleged he committed

the offense of felony assault in No. 07-11-00353-CR and two counts of aggravated

sexual assault in No. 07-11-00354-CR.4         The incident that led to the indictments

occurred between 11:30 P.M. on August 14, 2010, and approximately 6:30 A.M. on

August 15, 2010. The State initially indicted appellant in two indictments. One alleged

the offense felony assault in original indictment CR-101-105 and two counts of

aggravated sexual assault in original indictment CR-101-106, both indictments having

been returned on September 22, 2010. Appellant filed a waiver of arraignment in trial

4
 We will refer to the cases by their appellate court numbers throughout this opinion.
Appellant‘s issues relate to his convictions for sexual assault and aggravated sexual
assault in cause No. 07-11-00354-CR.

                                           2
court number CR-101-1065 and entered a plea of ―Not Guilty‖ to the indictment. The

waiver of arraignment in CR-101-106 signed by appellant and filed with the court stated,

―[Appellant] and his attorney do hereby acknowledge awareness and understanding of

the charge(s) against [Appellant], to-wit: aggravated sexual assault.‖


      The trial court conducted pretrial hearings on February 2, 2011, and on March

10, 2011.   Of import to our later discussion is the fact that, at neither hearing did

appellant complain about the indictments that were then pending against him.

Subsequently, on August 2, 2011, the State reindicted appellant and filed two new

indictments alleging the same offenses. As pertinent to this opinion, the indictment in

No. 07-11-00354-CR alleged in relevant parts:


                                        C0UNT I


      Daniel Everett Brooks on or about the 15th day of August, 2010, did then
      and there intentionally or knowingly cause the penetration of the anus of
      R.E. by a wooden handle, without the consent of R.E., and the defendant
      did then and there by acts or words threaten to cause or place, R.E. in
      fear that death or serious bodily injury would be imminently inflicted on
      R.E., and said acts or words occurred in the presence of R.E.


                                         COUNT II


      And it is further presented in and to said Court that on the 15 th day of
      August, 2010, the [appellant] did then and there intentionally or knowingly
      cause the penetration of the sexual organ of R.E. by [appellant‘s] sexual
      organ, without the consent of R.E., and the [appellant] did then and there
      by acts or words threaten to cause or place, R.E. in fear that death or
      serious bodily injury would be imminently inflicted on R.E., and said acts
      or words occurred in the presence of R.E.

5
 CR-101-106 was the original indictment alleging two counts of aggravated sexual
assault.
                                            3
The caption on the indictment at issue states that the offenses in Count I and Count II of

the indictment are aggravated sexual assault. At a pretrial hearing on August 11, 2011,

at the State‘s request and with appellant‘s agreement, the trial court carried forward all

of the previously entered orders on the motions filed in the original cause numbers.

The case then commenced to trial on August 15, 2011.


       During voir dire, both the State and appellant discussed the nature of the case.

The record reveals that the prospective jury was told that the charges against appellant

were two counts of aggravated sexual assault and a separate indictment for felony

assault.   Appellant‘s trial counsel went into some detail regarding the first count of

aggravated sexual assault. After the jury was selected and appellant had entered a

plea of ―Not guilty‖ to the indictments, the State presented its opening statement. In this

opening statement, the State again outlined the evidence it intended to present to prove

appellant guilty of two counts of aggravated sexual assault. During appellant‘s opening

statement, trial counsel presented a theory that what occurred was consensual. At no

time did appellant‘s trial counsel object that the indictment only charged appellant with

the offense of sexual assault.


       At the conclusion of the evidence, the trial court prepared its charge to the jury.

The court‘s charge sets forth the charges of two counts of aggravated sexual assault

with the lesser included offense of sexual assault as to each count. The record reveals

that appellant did not object to the submission of the charge on the two offenses of

aggravated sexual assault. During closing argument, appellant‘s trial counsel argued

that the case was one of consensual sexual contact.

                                            4
         After hearing the evidence, the jury convicted appellant of sexual assault in

Count I of the indictment and aggravated sexual assault in Count II of the indictment.

Further, the jury also convicted appellant of felony assault. After hearing the evidence

regarding punishment, the jury sentenced appellant to confinement in the Institutional

Division of the Texas Department of Criminal Justice, (ID-TDCJ) for a period of ten

years in 07-11-00353-CR, twenty years in Count I of 07-11-00354-CR, and fifty years in

Count II of 07-11-00354-CR. In each sentence, the jury assessed a fine of $10,000.

The trial court entered judgment in each case to include the $10,000 fine. No motion for

new trial was filed by appellant.    Appellant gave notice of appeal, and this appeal

follows.


         Through six issues, appellant contests his convictions. Appellant contends that

the indictment in Count II of No. 07-11-00354-CR charges only the offense of sexual

assault and therefore, through four issues, asserts that the judgment is void. In the

alternative, he contends that because the jury returned a verdict of guilt ―as alleged in

the indictment,‖ his right to a jury trial was violated.   In the further alternative, he

maintains he suffered egregious harm by the submission to the jury of aggravated

sexual assault. And, finally, in the further alternative, he argues that the jury charge

caused egregious harm to appellant by permitting a guilty verdict on an invalid theory of

guilt.     Appellant‘s fifth issue contends that the judgment in No. 07-11-00354-CR

improperly cumulates the fines. Appellant‘s sixth issue contends the evidence was

insufficient to sustain the requirement that appellant pay for his appointed attorney. We

will modify the judgment in cause No. 07-11-00354-CR and affirm the judgments of the

trial court as modified.
                                            5
                                       Indictment


      Appellant‘s first three issues all revolve around the central contention that Count

II of the indictment in No. 07-11-00354-CR could be read to charge only sexual assault.

We will review these three issues together.      Initially, we observe that appellant is

adamant that he is not challenging the sufficiency of the indictment.        Rather, he

challenges the verdict rendered by the jury upon the charge submitted by the trial court.

In essence, appellant‘s first contention is that the judgment convicting him of a first-

degree felony of aggravated sexual assault is void because the indictment only charged

him with sexual assault.   It follows, under appellant‘s analysis, that the trial court‘s

charge authorized punishment outside the range of punishment for the offense charged

and is, accordingly, void. However, from the perspective of the Court, we must first

review the indictment in question to ascertain to what charge appellant was asked to

answer.


Standard of Review


      Construction of an indictment is a matter of law that we review de novo. See

State v. Moff, 154 S.W.3d 599, 601 (Tex.Crim.App. 2004).


Applicable Law


      The requirements for an indictment are located in Article V, section 12 of the

Texas Constitution:


      An indictment is a written instrument presented to a court by a grand jury
      charging a person with commission of an offense. An information is a
      written instrument presented to a court by an attorney for the State
                                           6
      charging a person with the commission of an offense. The practice and
      procedures relating to the use of indictments, including their contents,
      amendments, sufficiency and requisites are provided by law. The
      presentment of an indictment or information to a court invests the court
      with jurisdiction of the case.
TEX. CONST. art. V, § 12. In addition to the constitutional requirement regarding an

indictment, the Texas Code of Criminal Procedure provides, in pertinent part:


      If the defendant does not object to a defect, error, or irregularity of form or
      substance in the indictment or information before the date on which the
      trial on the merits commences, he waives and forfeits the right to object to
      the defect, error, or irregularity and may not raise the objection on appeal
      or in any postconviction proceeding. . . .
See TEX. CODE CRIM. PROC. ANN. art. 1.14(b) (West 2005).6


Analysis


      These provisions of the law have been the subject of numerous cases before the

appellate courts in Texas.    From these cases, we can glean some guidance.             In

Harrison v. State, 76 S.W.3d 537, 539 (Tex.App.—Corpus Christi 2002, no pet.), the

Corpus Christi court pointed out that an indictment must contain the elements of the

offense charged, fairly inform the defendant of charges he must prepare to meet, and

enable the defendant to plead acquittal or conviction in bar to future prosecution for the

same offense. How, then, do we view the language of Count II of the indictment in No.-

07-11-00354-CR?


      Appellant specifically challenges the following portion of the indictment:




6
 Further reference to the Texas Code of Criminal Procedure Ann. will be by reference to
―Article ___,‖ ―article ___,‖ or ―art. ____.‖
                                            7
      ―[appellant] did then and there by acts or words threaten to cause or place,
      R.E. in fear that death or serious bodily injury would be imminently inflicted
      on R.E., and said acts or words occurred in the presence of R.E.
He contends that we must take a very technical view and, therefore, because of the

perceived grammatical error in the placement of a comma, we must conclude that the

indictment charged only sexual assault and not aggravated sexual assault. The State,

on the other hand, simply says that this is a belated objection to the indictment that has

been waived because the same was not made before the trial commenced. See art.

1.14(b).


      Even before the amendments to Article V, section 12 of the Texas Constitution in

1985 and the amendment to article 1.14(b), in Oliver v. State, 692 S.W.2d 712, 714

(Tex.Crim.App. 1985), the Texas Court of Criminal Appeals stated that ―an indictment

which alleges all of the requisite elements of the particular offense in question will not

be found to be deficient simply because it fails to precisely track the language of the

statute.‖ The court went on to point out that we should construe the indictment in the

context and subject matter in which the words are employed. Id. Finally, the court

directed that the construction of an indictment be done by reading the indictment as a

whole and by practical rather than technical considerations. Id.


      What does it mean to construe an indictment in the context and subject matter in

which the words are employed? Id. First, in the case of Teal v. State, 230 S.W.3d 172,

173 (Tex.Crim.App. 2007), the Texas Court of Criminal Appeals dealt with a case which

attempted to charge the felony offense of hindering apprehension under section 38.05

of the Texas Penal Code; yet the indictment failed to allege that appellant knew that the


                                            8
person whose apprehension he hindered was a fugitive for a felony offense.              Teal

contended that the indictment only alleged a misdemeanor offense. Id. In writing for

the court, Judge Cochran summed up the court‘s position in interpreting the changes to

Article V, section 12 of the Texas Constitution and article 1.14(b) regarding whether the

indictment in question charges an offense: the question is ―whether the allegations in it

are clear enough that one can identify the offense alleged.‖ Id. at 180. The court then

added, ―Stated another way: Can the trial court (and appellate courts who give

deference to the trial court‘s assessment) and the defendant identify what penal code

provision is alleged?‖ Id. The court then analyzed the indictment and pointed out that,

although the indictment was missing the required mens rea—that appellant knew the

person he was assisting was a felony fugitive—the indictment clearly stated that the

subject was a fugitive for the offense of failure to register as a sex offender, which is a

felony. Id. at 182. The court concluded that the indictment, while defective in certain

aspects, was clearly sufficient to charge an offense and that ―one could fairly conclude

from the face of the charging instrument that the State intended to charge a felony

offense.‖ Id.   After finding that, in the case before it, the indictment when read as a

whole was sufficient to vest the district court with subject matter jurisdiction and give the

defendant notice of the offense the State intended to prosecute defendant for, the court

pointed out that, if appellant was unsure of the offense, he should have challenged the

indictment before trial commenced. Id.


       Following Teal, the Texas Court of Criminal Appeals again addressed a situation

where indictments purported to charge a felony but, on the face of the indictments, only

alleged misdemeanor offenses.         See Kirkpatrick v. State, 279 S.W.3d 324, 326
                                             9
(Tex.Crim.App. 2009).     In Kirkpatrick, the court considered the general question of

whether the indictments at issue were sufficient to allege a felony offense and thereby

vest the district court with jurisdiction.7 Id. In analyzing the facts, as pertinent to the

questions presented, the court pointed out that appellant in the case had been put on

notice of the intent by the State to charge a felony. Id. at 329. Specifically, the face of

each indictment contained the heading: ―Indictment--Tampering with a Governmental

Record 3rd Degree Felony, --TPC § 37.10(a).‖ Id. Therefore, according to the court, the

appellant had adequate notice that she was charged with a felony. Id. If she had been

confused about the charge, appellant could have, and should have, objected to the

defective indictment before the date of trial. Id.


       When we analyze the indictment under consideration in light of the opinions of

the Texas Court of Criminal Appeals, we make the following observations: 1) the

indictments were intended to charge the offenses of aggravated sexual assault, 2) the

caption of the indictments contained language that indicated Counts I and II were

charging appellant with the crime of aggravated sexual assault, 3) appellant filed a

waiver of arraignment to the original indictment acknowledging that he was indicted for

the offense of aggravated sexual assault in Counts I and II of the prior indictment, 4) the


7
  The Court of Criminal Appeals granted the State‘s petition for discretionary review on
three grounds.
    1) Did the Court of Appeals err by concluding that the district court did not have
       subject-matter jurisdiction?
    2) Where an offense can be charged as either a felony or a misdemeanor, does the
       return of the indictment into a court with subject-matter jurisdiction of only the
       felony offense indicate the State‘s intent to charge the felony offense?
    3) Is ambiguity or confusion about the particular offense that has been charged [sic]
       the type of objection to an indictment that must be raised by a defendant prior to
       the date of trial?
                                             10
subsequent indictment did not materially change the charge, 5) the face of the

reindictment again reflected that appellant was charged with two counts of aggravated

sexual assault, 6) at the pretrial hearing on the new indictments on August 11, 2011, by

the agreement of both parties, all previous rulings and motions were carried forward to

the reindicted cause numbers, to include appellant‘s acknowledgement that he was

charged with two counts of aggravated sexual assault, 7) during voir dire, the State

explained, without objection from appellant, that appellant was charged with the offense

of aggravated sexual assault, 8) during opening statements, the State outlined its

proposed evidence and ended with asking the jury to convict appellant of two counts of

aggravated sexual assault, 9) the court‘s charge outlined the elements of the offense of

aggravated sexual assault as to both Count I and II of the indictment, and 10) appellant

did not object to the charge.       When this indictment is read in context and in

consideration of the subject matter before the trial court, it is clear that appellant knew

that he was charged with two counts of aggravated sexual assault. See Oliver, 692

S.W.2d at 714.     Appellant invites this Court to read the indictment at issue in a

hypertechnical manner without considering the context or subject matter of the

indictment. Id. Further, it is equally clear that, if appellant had any question about what

charge he had been asked to defend against, it was incumbent on appellant to file an

objection with the court. See Kirkpatrick, 279 S.W.3d at 329. Having failed to do so,

appellant has waived any such objection. Art. 1.14(b). Appellant‘s issue is simply an

attempt to avoid the results of failing to object or filing a motion to quash. Accordingly,

we reach the conclusion that the indictment in question in No. 07-11-00354-CR charged

appellant with two counts of aggravated sexual assault.

                                            11
       Appellant relies on the case of Thomason v. State, 892 S.W.2d 8 (Tex.Crim.App.

1994), for the proposition that when an indictment facially charges a complete offense

the intent of the State to charge a different offense is immaterial. Id. at 11. Thomason

dealt with an indictment alleging felony theft of at least $20,000; however, the indictment

contained no language that would aggregate the theft. Id. at 9. The evidence produced

at trial showed that appellant had procured a total of ten checks, eight of which were in

excess of $20,000. Id. at 10. At the conclusion of the State‘s case in chief, appellant

filed a request to require the State to elect which check it sought to obtain a conviction

on, and the trial court denied the request. Id. The Texas Court of Criminal Appeals

subsequently reversed the judgment and remanded the case for the intermediate

appellate court to consider appellant‘s remaining issues. Id. at 12.


       When considering the Thomason case in the Kirkpatrick opinion, the Texas

Court of Criminal Appeals pointed out that Thomason was factually distinguishable for

two reasons, only one of which is important to our consideration.         Kirkpatrick, 279

S.W.3d at 327. The court pointed out that appellant in Thomason had directed the trial

court‘s attention to the error by his motion to require the State to elect which check it

desired to convict appellant on. Id. In Kirkpatrick, this fact was enough to distinguish

Thomason from the case before the court. Id. For the same reasons, the facts of

Thomason are distinguishable from the case before the Court and, Thomason does not

dictate the result appellant would have us reach.


       Further, appellant cites this Court to Harris v. State, 359 S.W.3d 625, 629

(Tex.Crim.App. 2011), and Pruett v. State, 685 S.W.2d 411, 413 (Tex.App.—Austin

                                            12
1985, pet. ref‘d), for the proposition that we must view this indictment in light of the rules

of grammar in making our determination about what the indictment charges. However,

appellant takes these cases further than their respective holdings would indicate. First,

Harris is a statutory construction case and, while on its face it does seem to stand for

the proposition appellant cites it for, the fact that it is involving the question of

interpretation of a statute distinguishes it from our situation.       Harris holds that in

construing a statute, we must ―seek to effectuate the ‗collective‘ intent or purpose of the

legislators who enacted the legislation.‖ Harris, 359 S.W.3d at 629 (quoting Boykin v.

State, 818 S.W.2d 782, 785 (Tex.Crim.App. 1991)). Boykin makes clear that the reason

we must focus our attention in a statutory construction case on the precise language

and literal text of the statute is because the Texas Constitution delegates the lawmaking

function to the Legislature while assigning the law interpreting function to the Judiciary.

Boykin, 818 S.W.2d at 785 (citing TEX. CONST. art. II, § 1). The case before us is not a

statutory construction case; accordingly, appellant‘s citation to Harris is not controlling.

Regarding appellant‘s reliance on Pruett, we note that Pruett was a pre-1985

Constitutional amendment case and, in the final analysis, even without the amendment

to Article V, § 12 of the Constitution, the court held that when applying the rules of

grammar and making a common sense reading of the charging instrument, the

information was not fundamentally defective.           See Pruett, 685 S.W.2d at 413.

Accordingly, we do not find these cases to carry the day as appellant would direct.


       To the contrary, Texas courts have long-recognized ―the sensible proposition that

incorrect grammar, bad spelling, bad hand writing, the use of words not technically in

their correct sense or places will none of them make an indictment bad unless same
                                             13
causes the thing intended to be charged, to lack sense or certainty.‖ Westbrook v.

State, 227 S.W. 1104, 1105 (Tex.Crim.App. 1921). Indeed, this Court has recognized

this ―sensible proposition‖ when it concluded that appellant was given specific notice by

an indictment in which a comma placed after the last name in a series separated it from

the verb following. Childress v. State, 807 S.W.2d 424, 431 (Tex.App.—Amarillo 1991,

no writ) (citing Westbrook, 227 S.W. at 1105); see Hogue v. State, 711 S.W.2d 9, 14

(Tex.Crim.App. 1986), cert. denied, 479 U.S. 922, 93 L. Ed. 2d 301, 107 S. Ct. 329

(1986) (―fail[ing] to see how the wording of the indictment, although not grammatically

correct, misled or confused appellant‖); Malagon v. State, No. 05-97-01530-CR, 1999

Tex. App. LEXIS 6924, *12–13 (Tex. App.—Dallas Sept. 13, 1999, no pet.) (observing,

simply, that ―[a] misplaced comma does not alone nullify an indictment‖). Nothing in the

record before us indicates that appellant was misled or confused by the misplaced

comma or that, as a result of it, appellant lacked notice of the allegations against him.


       Having determined that appellant was charged by indictment in No. 07-11-00354-

CR with the offense of aggravated sexual assault, we overrule appellant‘s first issue.

The verdict of the jury–guilty as charged in the indictment–convicted appellant of the

offense of aggravated sexual assault, and the punishment assessed was within the

range of punishment for the convicted offense.


       Because of our holding regarding the reading of the indictment, appellant‘s right

to a jury trial upon the return of a verdict of guilty as charged in the indictment was met

because the indictment did charge appellant with aggravated sexual assault.

Appellant‘s second issue is overruled.

                                            14
      Appellant next contends that he suffered egregious harm by the submission to

the jury of the offense of aggravated sexual assault. This argument is predicated upon

appellant‘s erroneous assumption that the indictment did not charge that offense.

Again, having determined that the indictment in No. 07-11-00354-CR was sufficient to

charge that offense, appellant‘s basic premise is incorrect and, therefore, appellant has

not suffered any egregious harm. Appellant‘s third issue is overruled.


                                 Invalid Theory of Guilt


      Appellant‘s fourth issue contends that he suffered egregious harm because the

court‘s charge permitted him to be convicted on an invalid theory of guilt. Here, he

offers an alternative reading based on comma placement: the jury charge, which mirrors

the language of the indictment, may be read to allege one manner of committing

aggravated sexual assault, but it should also be read to allege conduct that is not

defined as a criminal act. Appellant further posits that since the verdict was a general

verdict, and even if we have read the indictment to charge aggravated sexual assault, a

valid theory of guilt, there is no way to ascertain whether appellant was convicted under

a valid theory of guilt.   This leads appellant to contend that we must reverse the

judgment and remand the case for another trial.


      Appellant couches his fourth issue as ―a further alternative to Issue One.‖ Issue

one contended that the indictment in question only charged the offense of sexual

assault and not the offense of aggravated sexual assault. For the reasons stated in the

section regarding the indictment, we have previously found that the indictment in

question did allege the offense of aggravated sexual assault.        His fourth issue is

                                           15
founded on the reading of the language in the jury charge that, based on his

interpretation of the comma placement, permitted him to be convicted of aggravated

sexual assault if the jury found that appellant placed the victim in the requisite fear or

―threaten[ed] to cause‖ such fear, the latter not being a valid theory of guilt. However,

appellant‘s alternate reading is also grounded in a hypertechnical construction, based

upon a perceived error in the placement of a comma. We have previously rejected

appellant‘s general approach.


      Texas Penal Code section 22.021(a)(2)(A), as applicable in this case, provides

two methods of demonstrating conduct that elevates the offense to an aggravated

offense:


      (ii) by acts or words that places the victim in fear that death, serious bodily
      injury, or kidnapping will be imminently inflicted on any person;
      (iii) by acts or words occurring in the presence of the victim threatens to
      cause the death, serious bodily injury, or kidnapping of any person.
See TEX. PENAL CODE ANN. § 22.021(a)(2)(A)(ii),(iii). In a rather clumsy manner, the jury

charge appears to combine the two methods of alleging the aggravating conduct by

tracking the language of the indictment: ―did then and there by acts or words threaten to

cause or place, R.E. in fear that death or serious bodily injury would be imminently

inflicted on‖ her. While this may not be a model of drafting, we remain convinced that

the charge, as did the indictment, alleges the requirements of subsections (ii) and (iii).

See id.


      To support appellant‘s position, he cites the Court to Hammock v. State, 211

S.W.3d 874, 876 (Tex.App.—Texarkana 2006, no pet.).               Hammock involved an

                                            16
accusation that the defendant possessed certain chemicals with intent to manufacture

methamphetamine. Id. at 875. The indictment at issue listed the chemicals that the

defendant was accused of possessing. Id. However, of the six chemicals alleged, the

possession of only three was criminalized. Id. at 876. The charge submitted all of the

chemicals at issue and explicitly allowed conviction on a finding that appellant

possessed chemicals the possession of which were not criminalized. Id.        Only if we

accept appellant‘s proposed reading of the jury charge are we facing a Hammock issue.

We have already rejected that proposition.      Accordingly, appellant‘s fourth issue is

overruled.


                                  Cumulating of Fines


      Appellant‘s fifth issue contends that the judgment in No. 07-11-00354-CR

improperly cumulates the fines. The record reflects that appellant was convicted of

felony assault in No. 07-11-00353-CR and sentenced to confinement for ten years in the

ID-TDCJ and to pay a fine of $10,000. Additionally, in No. 07-11-00354-CR, the record

reflects that appellant was found guilty in Count I of sexual assault and sentenced to 20

years confinement and a fine of $10,000. Further, the record reflects that appellant was

found guilty of aggravated sexual assault in Count II and sentenced to 50 years

confinement in the ID-TDCJ and a fine of $10,000. The sentences are to be served

concurrently, yet appellant is ordered to pay all of the fines. The State has candidly

admitted that the fines in No. 07-11-00354-CR have been improperly cumulated and, as

such, should be omitted. Accordingly, we will modify the judgment in No. 07-11-00354-

CR to delete the fines.

                                           17
                                     Attorney‘s Fees


      Appellant‘s last issue contends that there was no evidence upon which to support

the order that appellant pay for his appointed attorney, as required by the judgment in

appellate cause No. 07-11-00354-CR. Here, the State again candidly admits that the

evidence does not support the order for appellant to repay his appointed attorney‘s fees.

Accordingly, we will modify the judgment in cause No. 07-11-00354-CR to delete the

payment of the attorney‘s fees by appellant.


                                       Conclusion


      Having overruled all of appellant‘s first four issues and having modified the

judgment in cause No. 07-11-00354-CR to omit the cumulated fines and the order for

appellant to pay his appointed attorney‘s fees, we affirm the judgments of the trial court

as modified.




                                                       Mackey K. Hancock
                                                            Justice




Publish.




                                           18
