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
Davis v. State Page 4
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
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