             In the
        Court of Appeals
Second Appellate District of Texas
         at Fort Worth
     ___________________________

          No. 02-18-00108-CR
     ___________________________

 ANTHONY TYRONE WILLS, Appellant

                      V.

          THE STATE OF TEXAS


  On Appeal from the 78th District Court
        Wichita County, Texas
       Trial Court No. 58,663-B


  Before Sudderth, C.J.; Kerr and Bassel, JJ.
  Memorandum Opinion by Justice Bassel
                          MEMORANDUM OPINION

                                 I. INTRODUCTION

      In two points, Appellant Anthony Tyrone Wills challenges his conviction for

the offense of cruelty to non-livestock animals by torture and resulting sentence of

two years’ confinement in state jail. See Tex. Penal Code Ann. § 42.092(b)(1). We

affirm.

                                  II. BACKGROUND

      On May 2, 2017, shortly before 8:30 p.m., a Wichita Falls police officer

responded to a service call at an apartment complex. Upon arriving, the police officer

witnessed 15 to 20 people “physically fighting.” When the police officer went to try

to break up the fight, he ended up getting “picked up” and “thrown into a wall.” The

fight was finally subdued when other police officers arrived on the scene. At that

point, the police officers were able to question witnesses to determine the cause of the

fight. This eventually led the original responding police officer to a dog on a balcony

outside one of the apartments. The police officer described the dog as “laying on its

side . . . whining and yelping” and “appear[ing] to be in pain.” The police officer

identified Appellant as the dog’s owner.

      A supervisor and officer with Wichita Falls Animal Control also arrived at the

apartment complex. Upon entering the parking lot of the apartment complex, the

supervisor stated that she could already hear the dog “whimpering” and “crying”

despite having the vehicle’s windows rolled up and the air conditioning on. The

                                           2
animal control officer testified that he could also hear the dog “yelping,” “screaming,”

and what sounded “[l]ike a shrieking, screeching.”1 The supervisor testified that when

she came to the dog, she had to move it to open the apartment door, at which time

she noticed the dog favoring his rear right leg. She also observed that the dog had

“whale eye” and “wrinkled whisker beds.” 2

      Appellant signed a consent form allowing animal control to euthanize the dog.

The dog was muzzled and transported to the animal control truck. The animal

control officer and supervisor both testified that the dog continued to scream, yelp,

and whimper the entire time he was in the truck.          The animal control officer

euthanized the dog later that evening.

      The animal control supervisor testified that after the dog was euthanized, she

manipulated the dog’s rear right leg and noted that it was able to make a “full

rotation”—i.e., she could move the leg in a complete circle. When she pressed down

on the dog’s abdomen, it was hard, which she testified was something she had

experienced in dogs with internal injuries. Finally, the supervisor testified that when


      1
       We do note that the officer testified that his window was rolled down.
      2
        One neighbor testified that she saw Appellant throw the dog down and stomp
on him, another testified that he saw Appellant strike the dog with his hand multiple
times, and another neighbor testified that she saw Appellant stomping the dog. One
police officer also testified that when he spoke to Appellant inside of Appellant’s
apartment, Appellant pointed to a coffee table leg with bite and scratch marks and
two scratch marks on the carpet and asked the officer, “You see that? That’s
$1,000.00. You don’t think I wanted to whip his ass?”


                                           3
she palpated the dog immediately after it was euthanized, blood came out of its mouth

and rear.

      A Wichita Falls grand jury indicted Appellant for the offense of cruelty to non-

livestock animals by torture. See Tex. Penal Code Ann. § 42.092(b)(1). In a pretrial

supplemental designation of expert witnesses, the State disclosed the animal control

officer and supervisor as potential expert witnesses concerning “Animal Control

Techniques and Procedures.”

      On the day of trial, Appellant’s counsel requested a rule 702 hearing to test the

qualifications of the State’s designated experts—specifically the animal control officer

and supervisor. The State argued, and the trial court agreed, that the hearing was

premature, but the trial court stated that if the witnesses began offering expert

testimony and Appellant’s counsel made a timely objection and request for a 702

hearing, such a hearing would be conducted at that time. The exchange went as

follows:

      [APPELLANT’S COUNSEL]: Judge, since we’re on the record and
      outside the presence of the jury, I will go ahead and continue our
      discussion that we had off the record about the 702 hearing and the
      Animal Control officers. I am going to ask for that hearing now. They
      were designated on December 5th as experts in animal control
      procedures and techniques, and I would like to have my 702 hearing to
      inquire about their expert opinions.

             THE COURT: [Prosecutor]?

            [PROSECUTOR]: Your Honor, I’m not going to say he can’t
      have the hearing. I think we should postpone that hearing until such
      time as we believe that will become relevant. I would also say for the

                                           4
      record that that notice was given to them out of an abundance of
      caution. It doesn’t lock us into some strategy or some process of
      prosecution of this case.

            [APPELLANT’S COUNSEL]:               No, Judge, but if they have
      decided to designate --

             THE COURT: We’re going to go ahead and proceed. We talked
      this morning about whether -- I offered time to go ahead and have that
      702 hearing. We left it that in the event it became necessary, you would
      be diligent and alert and object at an appropriate time, at which time we
      will then have the 702 hearing.

            [APPELLANT’S COUNSEL]: Thank you, Judge. I’d like to
      make a record.

             THE COURT: You just did, but you can make more.

             [APPELLANT’S COUNSEL]: Thank you. With respect to the
      locking in procedure, I’m not saying they’re locked into any particular
      way of prosecuting this case. What I’m saying, in designating these
      people as experts, I am entitled to inquire about their expert opinions
      and I will be asking to do that outside the presence of the jury before
      they testify.

            THE COURT: That will be fine. The Court had given you ample
      opportunity to do that earlier. We’ll still give you that right when the
      time occurs. Let’s get the jury.

             [APPELLANT’S COUNSEL]: Thank you, Your Honor.

      When the State began to question the animal control officer about the Wichita

Falls Animal Control euthanasia protocols, Appellant’s counsel approached the bench

and requested to “702 this witness outside the presence of the jury.” The prosecutor

contended that he was merely asking for a factual observation and not an expert

opinion, and the trial judge overruled the objection:


                                           5
      Q. . . . [P]lease describe for the jury the protocol that the Animal
      Control department here in Wichita Falls utilizes once a dog has been
      euthanized. What happens to the dog?

            [APPELLANT’S COUNSEL]:                Judge, at this time -- May I
      approach?

             THE COURT: You may.

             (Following held outside presence of jury)

             [APPELLANT’S COUNSEL]: We’re now getting into testimony
      about Animal Control procedures and that sort of thing. I would like to
      702 this witness outside the presence of the jury to figure out what he’s
      going to say on those expert matters that they’ve been designated on.

            [PROSECUTOR]: It’s a factual question to what is the protocol.
      I’m not asking for an opinion.

            THE COURT: Yeah. I know you’re concerned about this issue
      and need to keep it in mind, but with respect to what his protocols are,
      I’m going to overrule the objection.

             [APPELLANT’S COUNSEL]: Thank you, Judge.

The prosecutor elicited testimony from the animal control officer regarding

euthanasia protocols, specifically with respect to storage and disposal of the animal’s

body after it has been euthanized.

      The State also called the animal control supervisor for Wichita Falls. When the

prosecutor began asking her about the condition of the dog’s rear right leg—

specifically, whether she believed based on her initial assessment that the leg was

lame—Appellant’s counsel asked to question the animal control supervisor on

voir dire, which the trial court permitted.


                                              6
      When the prosecutor asked the animal control supervisor whether she had ever

testified as an expert witness, Appellant’s counsel objected, and the trial court

sustained the objection as to the supervisor testifying about causation but not as to

testifying about her experience:

      [PROSECUTOR:] Okay. And -- Have you ever testified as an expert in
      any court?

             A. Um, not in a -- not in this capacity as far as this court --

             [PROSECUTOR:] Okay.

             A. -- district court.

             [APPELLANT’S COUNSEL]: Judge, at this time I’m going to
      object to the witness testifying as to any sort of -- what -- any of the
      opinions as to what injuries were present or any sort of causation or the
      extent, because, as the witness’s testimony has just revealed, there’s no
      medical basis for any of that testimony. That’s expert testimony that’s
      trying to get back doored in through a lay witness.

              [PROSECUTOR]: Absolutely not, Your Honor. I have not at all
      suggested the cause of why that leg on that dog is at an odd angle.
      That’s a decision the jury is going to make later. I have not asked her to
      elicit such an opinion. I’m only asking her facts about what she saw, and
      she can absolutely provide that information under 701.

              THE COURT: I will sustain the objection with respect to her
      ability to opine on causation. Based on her experience, I will let her give
      her opinion with regard to the condition of the dog’s leg as shown in this
      photo.

The court granted Appellant’s counsel a running objection.

      The supervisor testified only that the dog’s leg appeared “lame or damaged” in

photos that had been introduced into evidence. Later, the supervisor began testifying


                                            7
about her experiences with dog behavior, and Appellant’s counsel objected under rule

702. The trial court overruled the objection:

      [PROSECUTOR:] Did he ever -- Was he ever able to bite you or
      anybody else there on the porch?

           A. No. He -- He did not break the skin of anyone on -- on scene.
      And per my experience with dog behavior, the dog was, uh --

             [APPELLANT’S COUNSEL]: I’m going to renew my objection
      as to -- Well, I’m going to object to the witness opining as to what dog
      behavior is, Judge.

             THE COURT: That’s your 702 --

             [APPELLANT’S COUNSEL]: Yes, Judge.

              THE COURT: The Court’s going to overrule that. The factors
      for someone needing to testify about these matters can include
      experience without any formal education, and the Court’s ruling is based
      on the fact that [the supervisor] does have experience in these matters.
      So I’ll overrule the objection.

             ....

             THE WITNESS: Uh, based on my experience, the dog was
      exhibiting whale eye and also wrinkled, uh, whisker beds, which is just a
      sign of fear aggression, so not normally would a dog display that
      behavior.

      The supervisor was asked about the meaning of the word “palpate” and

Appellant’s counsel objected again under rule 702:

      [PROSECUTOR:] What does it mean to palpate?

             A. Well, there’s different instances to use it. Um, to, uh --




                                           8
             [APPELLANT’S COUNSEL]: I’m going to object to this
      testimony under 702, Judge. It’s expert testimony about medical
      veterinarian stuff.

            THE COURT: The Court’s ruling is the same based on her level
      of experience.

      The supervisor then testified that she observed blood “froth” from the dog’s

mouth after he had been euthanized and that in her experience with other dogs with

confirmed internal injuries, it was normal for blood to come out of their nose or

mouth. Appellant’s counsel objected, and the trial court overruled the objection:

      [PROSECUTOR:] After you palpated [the dog], did he have blood
      come out of his mouth and/or nose?

             [ANIMAL CONTROL SUPERVISOR:] Yes. This is directly
      after euthanization was administered.

             [PROSECUTOR:] And have -- Based on your training or your
      experience with other dogs that have been injured and euthanized, is the
      blood appearing in this fashion typical when dogs have suffered internal
      injuries?

             [APPELLANT’S COUNSEL]:            I’m going to renew my prior
      objection as to causation, Judge.

           THE COURT: I don’t believe that question went to causation.
      Overruled.

             [APPELLANT’S COUNSEL]: I’m also just renewing my 702
      objection, Judge.

             THE COURT: You’ve already been given a running objection.

             [ANIMAL CONTROL SUPERVISOR]:                 Can you repeat the
      question? I’m sorry.



                                          9
             [PROSECUTOR:] Sure. Based on your experience with other
      dogs with confirmed internal injuries, once those dogs were euthanized,
      was it a normal occurrence to see blood come out of their nose and/or
      mouth?

             [ANIMAL CONTROL SUPERVISOR:] Yes, sir.

             [PROSECUTOR:] And did you see the blood froth out of [the
      dog’s] nose and/or mouth?

             [ANIMAL CONTROL SUPERVISOR:] Out of the mouth and
      the, uh -- the, uh, rear.

             [PROSECUTOR:] Oh, okay. Now, let’s be clear about this.
      Prior to euthanizing the dog or having him euthanized, he did not have
      the blood coming out of his rear or his mouth, correct?

               [ANIMAL CONTROL SUPERVISOR:] I believe there was a
      little blood on the rear, um, but only increased after euthanization.

      The jury returned a guilty verdict. The trial court assessed punishment at two

years’ confinement in state jail and rendered judgment, sentencing Appellant

accordingly. This appeal followed.

      Appellant raises two points contending that (1) the trial court erred denying his

motion to suppress, and (2) the trial court erred in permitting lay witnesses to offer

expert opinion.

     III. DID THE TRIAL COURT ALLOW LAY WITNESSES TO OFFER EXPERT
                              TESTIMONY?

      We conclude that the opinions challenged by Appellant were, at the most, lay

opinions admissible under Texas Rule of Evidence 701. See Tex. R. Evid. 701. This

basis for our disposition of this appeal obviates any claim of error predicated on the


                                         10
claim that the trial court denied Appellant a gatekeeper hearing to determine the

admissibility of expert opinions or erred in overruling his objections under Texas Rule

of Evidence 702 that deals with the admissibility of expert opinions. See Tex. R. Evid.

702. Accordingly, our resolution of this appeal does not require that we reach

Appellant’s first point. See Tex. R. App. P. 47.1.

                                A. Standard of Review

      We review a trial court’s decision to admit or exclude scientific expert

testimony under an abuse of discretion standard. See Sexton v. State, 93 S.W.3d 96, 99

(Tex. Crim. App. 2002). The trial court ruling will be upheld if it is within the zone of

reasonable disagreement. Id. By rule, an expert witness may offer an opinion if he

possesses specialized knowledge, skill, experience, training, or education related to a

fact in issue. Tex. R. Evid. 702. A lay witness may offer opinions based on his

perception when it is helpful to a clear understanding of the witness’s testimony or

the determination of a fact in issue. Tex. R. Evid. 701. We review a trial court’s

decision to allow opinion testimony from a lay witness for an abuse of discretion. See

Fairow v. State, 943 S.W.2d 895, 901 (Tex. Crim. App. 1997).

                       B. No expert testimony was provided.

      Both the animal control officer and supervisor provided no more than lay

opinion testimony based on their firsthand observations of the dog at the apartment

complex and when it was euthanized. See Tex. R. Evid. 701.



                                           11
      The animal control supervisor’s testimony that the animal exhibited fear that

manifested itself in “whale eye” or “wrinkled whisker beds” was based on her

firsthand observations and not some scientific theory requiring significant expertise.

Thus, we conclude that this was not expert testimony and that the trial court did not

abuse its discretion in admitting the testimony as lay opinion. Cf. $7,058.84 in U.S.

Currency v. State, 30 S.W.3d 580, 585 (Tex. App.—Texarkana 2000, no pet.)

(concluding that testimony from a police officer with the canine unit about the drug

dog’s physical reactions—intense breathing, stiffening body, and scratching at a

drawer—“was not expert testimony, but was merely eyewitness testimony of what the

dog did when brought into the room”).

      Relying on Davis v. State, we likewise conclude that the animal control

supervisor’s testimony about the dog’s rear leg was not expert testimony. 313 S.W.3d

317, 324 (Tex. Crim. App. 2010). Davis was a capital murder case in which the

appellant had stabbed the victim. Id. A detective at the crime scene discovered the

victim’s dead cat wrapped in a jacket inside a pillowcase and hidden in the victim’s

bedroom closet. Id. at 347. The cat had three wounds in its back. Id. In the

detective’s opinion, the wounds on the cat were consistent with stab wounds and were

the size and shape of the knife blade used on the victim, and the trial court allowed

the detective to testify “regarding the comparison of the victim’s injuries to those of

her cat,” despite the fact that the detective had no scientific training in this area of



                                          12
veterinary medicine and despite the fact that the detective was never offered as an

expert witness for any purpose. Id. at 349.

      The appellant argued that the trial court abused its discretion by permitting the

detective to testify as an expert comparing the victim’s and cat’s injuries because he

was neither trained nor presented by the State as an expert. Id. The court of criminal

appeals rejected this argument because the detective’s testimony was not expert

opinion requiring scientific training but permissible and helpful lay testimony based

on his personal observations of the cat’s body at the scene of the crime:

      [The detective] did not purport to possess any specialized knowledge or
      to be an expert in wound determination. He testified based upon his
      first-hand observation of the wounds themselves. His observations did
      not require significant expertise to interpret and were not based on
      scientific theory. Although the jurors could view photos of the wounds,
      they were not in a position to observe the cat’s body first-hand. [The
      detective] had a superior vantage point in viewing those wounds, having
      observed the body of the cat, while the jurors could view only two-
      dimensional photos. [The detective’s] inferences helped to provide a
      clearer understanding of what took place contemporaneously to the
      offense, and thus, the trial court did not abuse its discretion in
      concluding that the evidence was admissible as a lay opinion.

Id.

      The animal control supervisor’s testimony—that based on her initial

observation the dog’s rear leg appeared lame or broken as well as her observation that

after the dog had been euthanized, she was able to “fully rotate” its rear leg—helped

clarify the condition of the dog’s leg because, like in Davis, the jurors only had two-

dimensional photographs to observe. See id. Thus, the animal control supervisor’s


                                          13
testimony about the dog’s leg was not expert testimony and the trial court did not

abuse its discretion in concluding that the testimony was admissible as a lay opinion.

See id.

          The animal control supervisor’s testimony about the hardness of the dog’s

abdomen and blood coming out of its mouth and rear was also not expert testimony.

It is a rational inference, not requiring scientific expertise or specialized knowledge,

that when blood is coming out of an animal’s mouth or rear, something is injured

inside. See Gary v. State, No. 03-16-00571-CR, 2017 WL 3897313, at *3 (Tex. App.—

Austin Aug. 31, 2017, no pet.) (mem. op., not designated for publication) (“A [lay]

witness may offer such an opinion even when he has experience or training. Even

events not normally encountered by most people in everyday life do not necessarily

require expert testimony. The personal experience and knowledge of a lay witness

may establish that he or she is capable, without qualification as an expert, of

expressing an opinion on a subject outside the realm of common knowledge.” (citing

Osbourn v. State, 92 S.W.3d 531, 537 (Tex. Crim. App. 2002))); Tobar v. State, Nos. 14-

15-00011-CR, 14-15-00012-CR, 2016 WL 2975568, at *6–7 (Tex. App.—Houston

[14th Dist.] May 19, 2016, no pet.) (mem. op., not designated for publication) (relying

on Davis and concluding police officer’s testimony that “[b]usted lips typically occur

after an impact, not during a wrestling match” was admissible as lay opinion

testimony under rule 701 because the officer’s testimony was rationally based on his

firsthand perceptions of the victim’s injuries).

                                            14
      Under rule 701, both witnesses were expressly permitted to provide opinion

testimony as lay witnesses as long as their testimony was rationally based on their

perceptions and observations. See Tex. R. Evid. 701; Tobar, 2016 WL 2975568, at *6–

7; In re J.A.M., No. 03-02-00610-CV, 2003 WL 22303115, at *4 (Tex. App.—Austin

Oct. 9, 2003, no pet.) (mem. op.) (holding testimony from a witness “present in the

cafeteria as the boys were telling their story [about drowning a cat] . . . was based on

her own senses of sight and sound” and was thus admissible under rule 701);

$7,058.84, 30 S.W.3d at 585.

      The animal control officer’s testimony was limited to a description of how the

dog was euthanized, and then how its body was stored and disposed of. This is

simply a recitation of the facts and is not opinion testimony, either lay or expert.

      A review of their testimony quoted above makes clear that both the animal

control officer and supervisor were testifying about their direct observations based on

their immediate experiences with the dog on the date of the incident, through the

euthanasia process, and concluding with disposing of the dog’s body. And, their

testimony was rationally based on these firsthand observations.

      Thus, the trial court did not abuse its discretion in overruling Appellant’s

objections. See Tex. R. Evid. 701; J.A.M., 2003 WL 22303115, at *4.




                                           15
    C. Even if expert testimony was erroneously admitted, it did not affect
                         Appellant’s substantial rights.

       However, even if the trial court abused its discretion by permitting the animal

control officer and supervisor to provide expert testimony, a trial court’s error in

admitting evidence should be disregarded unless the error affected Appellant’s

substantial rights. See Tex. R. App. P. 44.2(b). A substantial right is affected when the

error had a substantial and injurious effect or influence in the determination of the

jury’s verdict.   King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997).             An

accused’s substantial rights are not affected by the erroneous admission of evidence if

the court, after examining the whole record, has fair assurance that the error did not

influence the jury or had but a slight effect. Solomon v. State, 49 S.W.3d 356, 365 (Tex.

Crim. App. 2001).

       A person commits the offense of cruelty to a non-livestock animal by torture,

“if the person intentionally, knowingly, or recklessly . . . tortures an animal or in a

cruel manner . . . causes serious bodily injury to an animal.” Tex. Penal Code Ann.

§ 42.092(b)(1). Section 42.092(a) states that torture “includes any act that causes

unjustifiable pain or suffering.” Id. § 42.092(a)(8). There is no requirement that the

State establish that the defendant caused the animal to die or have internal injuries.

       The evidence was both undisputed and overwhelming that Appellant’s actions

caused the dog unjustifiable pain. At trial, three different neighbors testified that they

saw Appellant stomping, kicking, and hitting the dog. There was also testimony from


                                           16
numerous witnesses that they heard the dog yelping, crying, and whimpering. Finally,

a police officer testified that Appellant showed him damage to his furniture and carpet

and then asked the police officer, “You see that? That’s $1,000.00. You don’t think I

wanted to whip his ass?” After reviewing the whole record, we are assured that any

error in the admission of expert testimony from the animal control officer and

supervisor did not affect Appellant’s substantial rights, and thus, is not reversible.

        Accordingly, we overrule Appellant’s second point.

                                   IV. CONCLUSION

        Having overruled Appellant’s second point, which is dispositive, we affirm the

trial court’s judgment without reaching his first point. See Tex. R. App. P. 43.2(a),

47.1.

                                                        /s/ Dabney Bassel

                                                        Dabney Bassel
                                                        Justice

Do Not Publish
Tex. R. App. P. 47.2(b)

Delivered: March 28, 2019




                                            17
