## NOS

. 12

- 22

- 00005 -CR 12

- 22

- 00006 -CR

IN THE COUR T OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS

KIRKLAND LAMAR WARREN , APPELLANT

V.

THE STATE OF TEXA S, APPELLEE §

§

§ APPEAL S FROM THE 114TH

JUDICIAL DISTRICT COURT

SMITH COUNTY, TEXAS

MEMORANDUM OPINION
Kirkland Lamar Warren appeals h is conviction s for possession of a controlled substance
and aggravated assault with a deadly weapon

. In thre e issues, Appellant argues that the evidence
is in sufficien t, he is entitled to a new punishment trial, and his c ourt cost assessment is illegal

. We affirm the convictions, modify the judgments to correct errors , and reverse and remand for a new punishmen t trial and court cost assessment

.

B ACKGROUND Appellant was charged with manufacture or delivery of methamphe tamine in an amount
of four grams or more but less than 200 grams 1 and aggravated assault with a deadly weapon , 2

e ach e nhanced by two previous consecut ive felony convictions. He pleaded “not guilty ,” and the matter proceeded to a bench trial

.

1 A first

- degree felon y punishable , with the alleged enhancements, by imprisonment for a term of life, or not more than ninety

- nine years or less than twenty

- five years. See T EX

. H EALTH & S AFETY C ODE A NN

. §§ 481.102(6) ( West Supp

. 2021 ), 481.112( a), (d) (We st 2017 ); T EX

. P ENAL C ODE A NN

. § 12.42( d) (West 2019 ).

2 A second

- degree felony as alleged punishabl e , with the alleged enhancements, by imprisonment for a term of life, o r not more than ninety

- nine years or less than twenty

- fi v e years. See T EX

. P ENAL C O DE A NN

. § 22.02( a)(2), (b) (West Supp. 2021 ); n.12.42( d).2 At trial, th e evidence showed that Jeana Dunbar called 911 and reported Appellant w as torturing her because he thought she stole his money. When Smith County s heriff’s deputies arrived, Dunbar said that Appellant poured gasoline on her while she was asleep in bed and she
believed her life was in danger. When the deputies contacted Appellant, he invited them into the house, which contained an overwhelming odor of gasoline that grew stronger as they approached
the bedroom. In the bedroom, they found a mattress wet wit h gasoline , a shotgun, a glass pipe, and a bag of methamphetamine. Appellant claimed possession of the methamphetamine and admitted to pouring gasoline on Dunbar be cause he wanted to “put the fear in her” and “teach
her a lesson” for tak ing his money.
Ul timately, the trial court found Appellant “guilty” of aggravated assault with a deadly weapon and the lesser included offense of possession of a c ontrolled substance in an amount of four grams or more but less than 200 grams

. 3 The court further found that Appellant used or exhibited a deadly weapon, namely the firearm, in the commission of the latter offense. Appellant pleaded “true” to the enhanc ement paragraphs. The judgments reflect that his punishment was assessed at imprisonment for a term of forty years in each case

. This appeal
followed.

E VIDENTIARY S UFFICIENCY In Appellant’s first issue, he a ssert s that the evidence is insufficient to su pport his
conviction. Standard of Review and Applicable Law
The Jackson v. Virginia 4 legal sufficiency stand ard is the only standard that a reviewing court should apply in determining whether the evidence is sufficient to support each element of a
criminal offense that the state is required to prove beyond a reasonable doubt. See Brooks v.
State , 323 S.W.3d 893, 895 (Tex. Crim. App. 2010). Legal sufficiency is the constitutional minimum required by the D u e Process Clause of the Fourteenth Amendment to sus tain a
criminal conviction. See Jackson , 443 U.S. at 315

- 16, 99 S. Ct. at 2686 -87; see also Escobedo
v. Sta te , 6 S.W.3d 1, 6 (Tex. App.

— San Antonio 1999, pet. r ef’d). The standard for reviewing a

3 With the enhancement paragraphs , the lesse r included offense i s likewise punishable by imprisonment for a term of life, or not more than ninety

- nine years or less than twenty

- five years. See T EX

. H EALTH & S AFETY C ODE A NN

. § 481.11 5( a), (d) (West Supp. 2021 ); T EX

. P ENAL C ODE A NN

. § 12.42( d).

4 443 U.S. 307, 315

- 16, 99 S. Ct. 27 81, 2786

- 87, 61 L. Ed. 2d 560 (1979).3 legal sufficiency challenge is whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson , 443 U.S. at 320, 99 S. Ct. at 2789; see also Johnson v. State , 871 S.W.2d 183, 186 (Tex. Crim. App. 1993). The evidence is examined in the light most f avorable to the verdict. See Jackson , 443 U.S. at 320, 99 S. Ct. at 2789; Johnson , 871 S.W.2d at 186. This requires the reviewing court to defer to the jury’s credibility and weight determinations, because the jury is the sole judge of the wi t nesses’

cre dibility and the weight to be given their testimony. Brooks , 323 S.W.3d at 899; see Jackson , 443 U.S. at 31 9, 99 S. Ct. at 2789. A “court faced with a record of historical facts that supports conflicting inferences must presume

— even if it does not affirm atively appear in the record

— that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that
resolution.” Jackson , 443 U.S. at 326, 99 S. Ct. at 2793. The sufficiency of the evidence is measured against the offense as defined by a hypothetically correct jury charge. See Malik v. State , 953 S.W.2d 234, 240 (Tex. Crim. App

. 1997). Such a charge would include 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 ad equately descri b es the particular offense for which the
defendant is tried.” Id. To prove Appellant guilty of possession of a controlled substance in this case , the Sta t e was required to prove that he knowingly or intentionally possessed methamphetamine in an amount of four grams or more but less than 200 grams

. See T EX

. H EALTH & S AFETY C ODE § 481.115(a), (d) (West Supp. 2021 ). To prove him guilty of aggravated assau lt with a deadly

weapon , the State was required to prove that he intentionally or knowingly threatened Dunba r with imminent bodily injury by pouring gasoline on her and used or exhibited a deadly weapon, namely gasoline, during the assault’s commission. S ee T EX

. P ENAL C ODE A NN

. § 22.02( a)(2), (b) (West Supp. 2021). Analysis
Without citations to the record or application of law to the facts of th is case, Appellant
conclud es that the evidence is insufficient to sustain the trial court’s ver dicts

. An appell ant’s brief must contain a clear and concise argument for the contentions made, with appropriate
citations t o authorities and the record. T EX

. R. A PP

. P. 38.1( i)

. An appellant waives an issue on appeal if he fails to adequately brief that issue by not providing supporting arguments,4 substantive analysis, and appropriate citations to authorities and the record. Chaves v. State , 630 S.W.3d 541, 555 (Tex. App

. — Houston [ 1 st Dist.] 2021, no pet.) (citing Lucio v. State , 351
S.W.3d 878, 896

- 97 (Tex. Crim . App. 2011); Busby v. State , 253 S.W.3d 661, 6 7 3 (Tex. Crim. App. 2008); Cardenas v. State , 30 S.W.3d 384, 393 (T ex. Crim. App. 2000) (defendant inadequately briefed complaint where he neglected to present argument with citation to appropriate authority)) ; see also Ray v. State , 176 S.W.3d 544, 553 n.7 (Tex. App

. — Hous t on [ 1 st Dist.] 2004, pet. ref’d). An appellate c ourt has no obligation to construct and compose issues, facts, and arguments with appropriate citations to authorities and the record for an appella nt

. See Wolf e v. State , 509 S.W.3d 325, 343 (Tex. Crim. App. 2017); Busby , 253 S.W.3d at 673. A brief that fails to apply the law to the facts does not comply with Texas Rule of Appellate Procedure 38.1 and presents nothing for our rev iew. See Swearinge n v. Sta t e , 101 S.W.3d 89, 100 (Tex. Crim. App. 2003). Although Appellant has waived his first issue, we wi ll consider it in the interest of justice. At trial, Smith County Sheriff’s Office dispatcher Amber Wallace sponsored a recording
of Dunbar’s 911 c all. On the recording, Dunbar speaks in a low, rushed voice and stutter s as she
tell s the dispatcher that s he is being tortured by “Kirk Warren” and must end the call quickly
be fore he return s

. Former Smith County Sheriff’s De puty Josh Hill testified that he responded to Dunbar’s
call. When he arrived at the residence, Dunbar was “hanging out the window waving [him]
down.” Appellant exited the residence and contacted Hill. A few minutes later, an observably
distressed Dunbar exited the residence yelli ng , cursing, and saying that Appellant was torturing her and poured gasoline on her. Both subjects displayed v ery dilated pupils, which often
indicates that a person is under the influence of narcotics. Two more deputies arrived and spoke
with Dunbar , leavi ng Appellant with Hill. Appellant entered the residence and began telling De puty Hill that Dunbar took his relief fund money in the approximate sum of $10,000.00

. In an ashtray in the living room, Hill saw a n object that he believed to be a glass crack c ocaine pipe. The smell of gasoline in the residence was overwhelming. When Hill inquired about the smell, Appellant said that he poured gasoline
on the bed to scare Dunbar because she took his money. Because Hill smelled the odor of gasoline on Dunbar, he asked Appellant whether he poured any gasoline on her. Appellant5 admitted that he did so but only becaus e he wanted to “put the fear in her” and “teach her a
lesson.” Under these circumstances, the gasoline could cause serious bodily injury o r death
b ecause of its extreme flammability. Because Appellant ’s body language told De puty Hill that he wanted to go to the bedroom, for officer safety, Hill motioned for the other deputies to assist him. When Appellant walked into the bedroom, he immediately gra bbed a shotgun

. Hill quickly took the gun and handed it to another deputy. On the bedroom floor, Hill saw a clear bag containing a substance he believed to be methamphetamine and a glass pipe with a rounded bulb, which is primarily used to smoke methamph etamine

. Appellant admitted that he smoked methamphetamine minutes before the police arrived. Smith County Sheriff’s Deputy J oshua Cox testified that he and Deputy John McLean were dispatched to the residence where they were greeted by a very excited Dun bar who smelled strongly of gasoline. McLean spoke with Dunbar, and then the deputies joined De puty Hill at his request. Inside the residence, Cox saw a narcotics pipe in an ashtray and smelled a strong gasoline odor. He went to the bedroom, took the sh otgun from Hill, removed a chambered shell, and handed the gun to McLean. Inside the bedroom, Cox observed a mattress with a stain and an overwhelming odor of gasoline. He further observed a clear plastic baggy containing a crystal line substance and a gl ass pipe on the floor. Appellant was at first hesitant to claim ownership of the methamphetamine but
then s aid he claim ed it even though not all of it belonged to him

. In a few minutes , Cox became lightheaded from the fumes in the bedroom

. T he room also contained exposed wiring , which,
combined with the gasoline and the size and disheveled state of the room, was a safety concern

. McLean sponsored a video of the events recorded by his body camera. I n the video,
Dunbar approaches the deputies exclaiming her gratitude that they are there. She says that she works with Appellant and filed for a “disaster thing ” for him. Appellant, high on “ice,” began “schizzing” and accused Dunbar of taking his money. He was torturing her and poured gasoline
on her wh ile she was in bed asleep

. She wanted to leave because her life was in danger. Later in the video, the deputie s walk to the house to assist De puty Hill. Appellant and the deputies enter the house and walk to ward the bedroom, outside of which Deputy Cox pass es t he shotgun to Deputy McLean. Appellant exits the bedroom and approaches M cLean with his arms
outstretch ed. McLean places him in handcuffs and informs him that he is being detained.6 Appellant has a conversation with McLean in which he admits to smokin g methamphetamine the previous night and states, “I’m guilty of all —everything they got .” He responds affir matively when McLean asks, “You’ll take possession of everything back there ? T he gun, the drugs, you’re just going to claim it all? ” He repeats , “ I’m guilty” and asks McLean, “If there was such thing as mercy, would y’all grant it?” McLean takes Appella nt outside, where his body camera
records a conversation between Appellant and Hill in which Hill asks, “Is it really worth covering her in gasoline ?” Appellant does not deny the act

. He later asks, “Would it do any good if I use the word ‘please ?’” Dun bar can be heard in the background telling someone, “He was trying to set me on fire, but the lighter wouldn’t work.”
DPS forensic scientist Micaela Steward testified that she scientifically analyzed the substance in the baggy and determined that it was 4.98 grams of methamphetamine. The methamphetamine, methamphetamine pipe, shotgun, and ammunition were admitted into
evidence. In the light most favorable to the trial court’s verdict, the ev idence shows that Appellant intentionally possessed 4.9 8 grams of methamphetamine

. Therefor e , we conclude that the court was rationally justified in finding, beyond a reasonable doubt, that Appellant committed

po ssession of a controlled substance in an amount of four grams or more but less than 200 grams

. See T EX

. H EALTH & S AFETY C ODE § 481.115(a), (d) ; Jackson , 443 U.S. at 319, 99 S. Ct. at 2789;
see also Brooks , 323 S.W.3d at 899. Furthermore, in the light mos t favorable to the trial court’s verdict, the evidence shows that Appellant intentionally threatened Dunbar with imminent bodily injury by pouring gasoline on her and used a deadly weapon, namely gasoline, during the
assault’s commission. Therefor e , we co nclude that the court was rationally justified in finding, beyond a reasonable doubt, that Appellant committ ed aggravated assault with a deadly weap on. See T EX

. P ENAL C ODE A NN

. § 22.02( a)(2), (b) ; Jackson , 443 U.S. at 319, 99 S. Ct. at 2789; see also Brooks , 323 S.W.3d at 899. For these reasons, we overrule Appellant’s first issue.

U NRELIABLE P UNISHMENT R ECORD In Appellant’s second issue, he argues that he is entitled to a new trial on punishment
because the punishment record is unreliable and cannot be c orrected. Before filing his brief, Appellant filed a motion to abate for correction of inaccuracies in volu me six of the reporter’s record, which consists of the punishment phase of trial. Substitute court reporter Beverly E.7 Dixon prepared volume six, a nd Appellant’s counsel represented that it appe ars inaccurate. In a letter responding to the motion to abat e, t he State agreed that a reasonable question existed as to the volume’s accuracy and con sequently did not object to our granting the motion. This Court
ordered the trial court to conduct a hearing and make written findings of fact as to whether the
volu me contains inaccuracies , and if so , what corrections should be made. We further ordered that if the court found the volume to be inaccurate, it sh ould order the court reporter to conform
the volume to what occurred and file certified corrections with thi s Court. After a hearing, the trial court made the following per tinent findings: (1) Appellant timely requested preparation of the reporter’s recor d , (2) any error in the transcript or missing portion of the transcript is not a result of any act or omissi on of Appellant or the Stat e, (3) the parties and the court agreed that volume six is so filled with errors as to render it unusable and wholly

unre liable, (4) volume six contains the sentencing portion of the trial, during which the parties
called one or more witnesses, (5) in accordance with Dixon’s testimony, there are no recording s , notes, or other means by which to create an accurate transcript a nd thus no basis to bel ieve that Dixon or another reporter could correct and file a new record if so ordered , and (6) the missing portion of the record is of such a nature that the parties cannot reasonably be expected to stipulate to the correct contents of its erroneous portion, nor can the court on its own recollection
recreate the record. Appellant now argue s that he is entitled to a new punishment trial, and the State agrees. An appellant is entitled to a new trial

(1) if the appellant has timely request e d a reporter’s record;
(2) if, without the appellant’s fault, a significant exhibit or a significant portion of the court reporter’s notes and records has been lost or destroyed or

— if the proceeding were electronically recorded

— a significant portion of the r e cording has been lost or destroyed or is inaudible;
(3) if the lost, destroyed, or inaudible portion of the rep orter’s record, or the lost or destroyed exhibit, is necessary to the appeal’s resolution; and
(4) if the lost, destroyed or inaudible portion of the r eporter’s reco r d cannot be replaced by agreement of the parties, or the lost or destroyed exhibit cannot be replaced either by agreement of the parties or with a copy determined by the trial court to accurately duplicate with reasonable certainty the origi nal exhibit.8 T EX

. R. A PP

. P. 34.6 (f ). “[D]epriving a defendant of part of the statement of facts to which he is
entitled results in a new trial.” Perez v. State , 824 S.W.2d 565, 567 (T ex. Crim. App. 1992). As the trial court’s findings reflect, all fou r of Rule 34.6(f)’s criteria have been met. App ellant timely requested the reporter’s record, and volume six comprised the entirety of the testimony, evidence, and argument presented during the punishment trial

. The pleadings and judgments indicate that t he State sought deadly weapon findings and penalty range
enhance ment s. It is undisputed that volume six con tains inaccurate representations of what transpired during Appellant’s punishment trial. The inaccuracies arose through no fault of either party, and the parties cannot stipulate or agree to the conten t s of the record for the appeal.
Without an accurate r ecord of what transpired during the punishment trial, neither appellate
counsel nor this Court can determine whether error exists in the judgments. Consequently, the only appropriate remedy is a new punishment trial. See id. ; see also Gonzales v. State , Nos. 12-
21-00239- CR, 12 -21-00240- CR, 2022 WL 3268014 , at * 2 (Tex. App .— Tyler Aug . 10, 2022, no pet. h.) (mem. op., not designated for publication). We sustain Appellant’s second issue.

I LLEGAL C OURT C OST A SSESSMENT In Appellant’s third issue, he argues t hat the trial court erred by assessing court costs in
both cases. The State concedes the er ror but argues that the issue is not ripe for our review
because Appellant is entitled to a new punishment hearing and , theref ore, the amount of court
costs has not been finalized because additional court costs might be i ncurred. We agree that our modification of the court costs to any particular amount might be premature, but this does not prevent us from deciding the i ssue of whether the trial court erred by asses sing duplicate court costs and, if so, remanding for a proper court cost assessment. The code of criminal procedure provides as follows:

(a) In a si ngle criminal action in which a defendant is convicted of two or more offenses or of multiple counts of the same offense, the court may assess each court cost or fee only once against the defendant.
(b) In a criminal action described by Subsect ion (a), ea ch court cost or fee the amount of which is determined according to the category of offense must be assessed using the highest category of offense that is possible based on the defend ant’s convictions.9 T EX

. C ODE C RIM

. P ROC

. A NN

. art. 102.073(a) , (b) (Wes t 2018 ). In this context, we construe the phrase “[i]n a single criminal action” to mean in a single trial or plea proceeding. Hurlburt v.
State , 506 S.W.3d 199, 203 (Tex. App.— Waco 2016, no pet.). The record in this case shows that the allegat ions and evidence of both offenses were presented in a single plea proceeding, or “criminal action.” See id. There fore, the trial court was authorized to assess each court cost and fee only once against Appellant. See T EX

. C ODE C RIM

. P ROC

. A NN

. art. 102.073(a). However, each case’s bill of costs list s many of the same fees

. We
conclude that the trial court erred by assessing each of these fees twice against Appellant. See id. Accordingly, we sustain Appellant’s third issue.

J UDGMENT E RRORS Based on the reco rd before us, w e observe that errors not rai s ed by Appellant exist in the judgments. First, the judgment in trial court cause number 114-1929-20 reflects that the punishment in that c ase was assessed by a jury, but the record indicates it was assessed by t he judge. Next, the judgment in cause number 114 -1928- 20 reflects that the deadly weapon in that

case wa s g asoline, but the State alleged it was a firearm, and the trial court so fou nd. Furthermore, the judgment in cause number 114 -1928-20 incorrectly ref lects that the
offense of conviction in that case

— possession of a controlled substance in an amount of four grams or more but less than 200 grams

— is a first

- degree felony. In pertinen t part, the possession statute provides as follows:

(a) Except as authorized by this chapter, a person commits an offense if the person knowingly or intentionally possesses a controlled substance listed in Penalty Group 1 or 1

- B, unless the person obtained the substance directly from or under a valid prescription or order of a prac titioner acting in the course of professional practice.

. . . . (d) An offense under Subsection (a) is a felony of the second degree if the amount of the controlled substance possessed is, by aggregate weight, including adulterants or dilutants, four grams o r more but less than 200 grams.

T EX

. H EALTH & S AFETY C ODE § 481.115(a). Thus, the offense of which Appella nt was convicted is a second-degree felony. See id.10 Finally, the judgment in cause number 114 -1929-20 incorrectly reflects that the offense
in tha t cas e— aggravated assault with a deadly weapon

— is a first

- degree felony. In per tinent part, the aggravated a ssault statute provides as follows:

(a) A person commits an offense if the person commits assault as defined in § 22.01 and the person: (1) causes ser ious bodily injury to another, including the person’s spous e; or (2) uses or exhibits a deadly weapon durin g the commission of the assault

. (b) An offense under this section is a felony of the second degree, except that the offense is a felony of the first d egree if: ( 1) the actor uses a deadly weapon during the commission of the assault and causes serious bodily injury to a person whose relationship to or association with the defendan t is described by Section 71.0021(b) 71.003, or 71.005, Family Code[.]

T EX

. P ENAL C ODE A NN

. § 22.02( a)(2), (b)

. The indictment in cause number 114 -1929-20 does not allege either tha t Appellant caused serious bodily injury or that he had a family, household , or dating relationship with Dunbar. Therefore, only Section 22.02(a)(2 ) applies here , and the
offense is a second -degree felony. See id. We have the authority to correct a tria l court’s judgment to make the record speak the truth when we have the necessary data and information. Asberry v. State , 813 S.W.2d 526, 529 (Tex. App.— Dallas 1991, pet. ref’d). Our authority to reform an incorrect ju dgment is not dependent on the request of any party. Rhoten v. State , 299 S.W.3d 349, 356 (Tex. App.

— Texarkana 2009, no pet.). Because we have the necessary data and information to correct the “degree of offense ,” “ findings on deadly weapon” and “ punishmen t assessed by” portions of the judg ments here , we conclude that the judgment in cause number 114-1929-20 shoul d be
modified to reflect that the judge assessed the punishment , the judgment in cause number 114-
1928-20 should be modified to reflect that the deadly weapon is a firearm, and both judgments
should be modified to reflect that the offenses are second

- degre e felonies

. See Asberry , 813
S.W.2d at 529 ; T EX

. R. A PP

. P. 43.2( b).

D I SPOSITION Having overruled Appellant’s first issue and sustained his second and third issue s , we modify the trial court’s judgment s to reflect that h e was convicted of second

- degree f elony
offenses , modify the judgment in trial court cause number 114-1929-20 to reflect that the judge assessed the punishment, modify the judgment in trial court cause number 114-1928-20 to reflect11 that the deadly weapon is a firearm , affirm the judgments as modified with resp ect to Appellant’s guilt, reverse the judgment s with respect to the punishments and court costs imposed, and re mand for a new punishment trial and court cost as sessment in accordance with this opinion.
J AMES T. W ORTHEN Chief Justice

Opinion delivered September 22, 2022. Panel consisted of Worthen, C.J., H oyle, J., and Neeley, J.

( DO NOT PUBLISH )

## COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

SEPTEMBER 22, 2022

NO. 12-22-00005- CR

KIRKLAND LAMAR WARREN , App ellant V. THE STATE OF TEXAS , Appellee

Appeal from the 114th District Court
of Smith County, Texas (Tr.Ct.No. 114-1928-20)

THIS CAUSE came to be heard on the oral arguments , appellate record and briefs filed herein, and the same being considered, because it is the opinion of this Court that there was error in the judgment of the court below, it is ORDERED, ADJUDGED and DECREED by this Court that the judgment be modif ied to reflect that Appellant wa s convicted of a second

- degree felony offense and the de a dly weapon is a firearm, the judgment is affirmed as modifi ed with respect to Appellant ’ s g ui lt , the judgment is reversed with respect to Appellant’ s punishment and court costs, the cause is remanded to the trial court for a new punishment trial and court cost assessment , and that this decision be certified to the court below for observance. James T. Worthen , Chief Justice. Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J

.

## COURT OF APPE ALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

SEPTEMBER 22, 2022

NO. 12-22-00006- CR

KIRKLAND LAMAR WARREN , Appellant V. THE STATE OF TEXAS , Appellee

Appeal from the 114th District Court
of Smith County, Texas (Tr.Ct.No. 114-1929-20)

TH IS CAUSE came to be heard on the oral arguments , appellat e record and briefs filed herein, and the same being considered, because it is the opinion of this Court that there was error in judgment of the court below, it is ORDERED, ADJUDGED and DECREED by this Court that the judgment be modi fied t o reflect t h at Ap p ellant was convicted of second

degree felony offense and the judge assessed the punishment , the judgment is affirmed as modified with resp ect to Appellant’ s guilt, the judgment is reversed with respect to Appellant ’ s punishment and court costs, the cause is remanded to the trial court for a new punishm ent trial and court cost assessment , and that this decision be certified to the court below for observance. James T. Worthen , Chief Justice. Panel consi sted of Worthen, C.J., Hoyle, J., and Neeley, J

.