                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-13-00234-CR



            LINDA KAY PHARIS, Appellant

                           V.

           THE STATE OF TEXAS, Appellee



      On Appeal from the County Court at Law No. 2
                  Parker County, Texas
            Trial Court No. CCL1-11-0739




       Before Morriss, C.J., Carter and Moseley, JJ.
      Memorandum Opinion by Chief Justice Morriss
                                    MEMORANDUM OPINION
        When Karen Kessler, Animal Control Officer for the Parker County 1 Sheriff’s

Department, went to the location at which there were reported to be several dead horses, she

found Linda Kay Pharis and another person unloading a bale of hay near a dead horse. The

water troughs were empty, there was no feed around, and the temperatures had been running at

or above the century mark for several days. Eight dead horses were found on the property, and

one other was in such bad shape that a veterinarian had to euthanize it. Pharis was living rent-

free in a trailer on the property in return for an agreement to repair it and had agreed with the

owner that she would check on the horses every three days. To further complicate matters, two

neighbors, who had been the primary caretakers of the animals, had recently left the country

without Pharis’ knowledge. Pharis was convicted of nine counts of cruelty to livestock animals,

one for each of the dead horses. 2

        On appeal, Pharis has combined issues regarding double jeopardy, the jury charge, and

sufficiency of the evidence into a single argument. She also complains regarding her sentence

and fine. We modify the judgment to allow for consideration of good-time credit and, affirm the

judgment, as modified, because (1) Pharis’ right to be free from double jeopardy has not been

violated, (2) the charge is not erroneous, (3) sufficient evidence supports the conviction,

(4) good-time credit should be considered, and (5) the fine is valid.

1
 Originally appealed to the Second Court of Appeals, this case was transferred to this Court by the Texas Supreme
Court pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001 (West 2013). We are
unaware of any conflict between precedent of the Second Court of Appeals and that of this Court on any relevant
issue. See TEX. R. APP. P. 41.3.
2
The jury assessed, and the trial court sentenced Pharis to, 365 days in county jail on each charge. The sentences
were set to run concurrently, and the court levied a $4,000.00 fine.

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(1)      Pharis’ Right To Be Free from Double Jeopardy Has Not Been Violated

         Pharis contends that, because the charges do not distinguish the nine dead horses, she has

suffered multiple punishments for the same offense and thus has been improperly subjected to

double jeopardy. 3 The problem at the base of Pharis’ complaint is that neither the amended

information nor the jury charge separately identifies each animal. Every one of the charges

identically accuses Pharis of failing “unreasonably to provide necessary food, water and care for

. . . one (1) horse.”

         One problem with Pharis’ contention is that she did not raise a double jeopardy claim at

trial and also did not claim lack of notice regarding the nature of the prosecutions. A claim may

be raised for the first time on appeal if (1) the undisputed facts show the double-jeopardy

violation is clearly apparent from the face of the record, and (2) enforcement of the usual rules of

procedural default serves no legitimate state interest. Garfias, 2014 WL 714718, at *2. Here,

the violation is not clear from the face of the record. Additionally, the rules of procedural default

are appropriate where, as here, there was no lack of notice to the defendant or confusion about

the facts alleged, and, if raised below, the situation could have been easily solved by the trial

court.

         Even were we to assume that procedural default serves no legitimate interest in this case,

we do not discern a double-jeopardy violation here. The Fifth Amendment to the United States

Constitution, and Article I, Section 14, of the Texas Constitution, protect individuals from being


3
 There are three types of double jeopardy claims: (1) a second prosecution for the same offense after acquittal, (2) a
second prosecution for the same offense after conviction, and (3) multiple punishments for the same offense.
Garfias v. State, No. PD-1544-12, 2014 WL 714718, at *2 (Tex. Crim. App. 2014).
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tried twice for the same offense and possibly receiving double punishments. Albernaz v. United

States, 450 U.S. 333, 343 (1981); Illinois v. Vitale, 447 U.S. 410, 415 (1980); Stephens v. State,

806 S.W.2d 812, 814–15 (Tex. Crim. App. 1990).           But, when evaluating whether double

jeopardy has occurred, the entire record, not just the indictment, is reviewed. Gollihar v. State,

46 S.W.3d 243, 258 (Tex. Crim. App. 2001); Holz v. State, No. 06-08-00224-CR, 2009 WL

3097240, at *8 (Tex. App.—Texarkana Sept. 30, 2009, pet. ref’d). And, here, the record does

sufficiently distinguish among the animals involved in the various cases, even though

distinguishing information is not provided in the pleadings, jury charges, or judgments. The

record contains a picture or other identifying information as to each of the nine dead horses

sufficient to connect a particular horse with each case. Pharis was not placed in jeopardy more

than once for each offense.

(2)    The Charge Is Not Erroneous

       Pharis also contends that she was denied due process of law because the charge expanded

the State’s theory beyond the allegations of which she had notice.

       In analyzing a jury charge complaint, we review the charge under the Almanza standard.

Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on reh’g). We first

determine whether error exists in the charge and then, if there was error, whether sufficient harm

resulted from the error to compel reversal. Ngo v. State, 175 S.W.3d 738, 743–44 (Tex. Crim.

App. 2005). The level of harm an appellant must demonstrate as resulting from the erroneous

jury instruction depends on whether the appellant properly objected to the error. Abdnor v. State,

871 S.W.2d 726, 732 (Tex. Crim. App. 1994). When a proper objection is made at trial, reversal

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is required if the error is “calculated to injure the rights of defendant,” and the appellant need

only demonstrate “some harm” on appeal. Id.; see also Almanza, 686 S.W.2d at 171. In the case

of unpreserved error, reversal is required only when “the error is so egregious and created such

harm that [she] ‘has not had a fair and impartial trial’—in short ‘egregious harm.’” Almanza,

686 S.W.2d at 171; see Rudd v. State, 921 S.W.2d 370, 373 (Tex. App.—Texarkana 1996, pet.

ref’d). “Egregious harm” results from errors affecting the very basis of the case or that deprive

the defendant of a valuable right, vitally affect a defensive theory, or make the case for

conviction or punishment clearly and significantly more persuasive. Saunders v. State, 817

S.W.2d 688, 692 (Tex. Crim. App. 1991); Boones v. State, 170 S.W.3d 653, 660 (Tex. App.—

Texarkana 2005, no pet.).

       In this case, there was no objection to the charge. Cruelty to a livestock animal is an

offense defined by the Texas Penal Code, and the charge paraphrased the language of the statute.

Pharis specifically complains because, in addition to the language setting out the elements of the

offense, the charge also instructs the jury about two statutory exceptions to the offense. The first

exception provides that, if the conduct was a generally accepted and lawful form of conduct

performed in support of animal management, then Pharis did not commit the offense.

       The first portion of the charge defines the offense using the language of the Penal Code.

       Our law provides a person commits an offense if he intentionally or knowingly:
       Fails unreasonably to provide necessary food, water or care for a livestock animal,
       to-wit: one (1) horse, by not taking necessary actions to verify that the horse had
       adequate food, water or care, under the conditions then existing, and Defendant’s
       conduct was not a generally accepted and otherwise a lawful form of conduct
       occurring solely for the purpose of or in support of fishing, hunting, or trapping;
       or wildlife management, wildlife or depredation control, or shooting preserve

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       practices as regulated by state and federal law; or animal husbandry or agriculture
       practice involving livestock animals.

The charge then provides an application section that repeats some of the language quoted above,

and then goes on to instruct the jury:

       And [if] you further find that the Defendant’s conduct was not a generally
       accepted and otherwise lawful use of an animal solely for the purpose of fishing,
       hunting, or trapping; and was not generally accepted and otherwise lawful wildlife
       control as regulated by state and federal law; and was not generally accepted and
       otherwise lawful animal husbandry or farming practice involving livestock; then
       you will find the Defendant guilty as charged.

The charge is repetitive, but that does not make it erroneous. Pharis focuses on one phrase in the

paragraph asking if her conduct “was not a[n] . . . otherwise lawful use of an animal” and

suggests that the phrase adds a different type of theory on which the State could convict, one of

which she had no warning or notice.

       We disagree. The language is a close paraphrase of the statutory language and actually

increases the burden on the State, requiring it to also prove that her actions or inactions were not

otherwise lawful or generally accepted practices. The phrasing is not improper, although it could

be improved. It does not provide another theory for conviction, but effectively requires the State

to disprove a potential defensive theory. We find no error in the charge.

(3)    Sufficient Evidence Supports the Conviction

       Pharis also claims that the evidence is insufficient to support the verdict.

       In reviewing the legal sufficiency of the evidence, we review all the evidence in the light

most favorable to the jury’s verdict to determine whether any rational jury could have found the

essential elements of the offense beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893,

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912 (Tex. Crim. App. 2010) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)); Hartsfield v.

State, 305 S.W.3d 859, 863 (Tex. App.—Texarkana 2010, pet. ref’d).             Sufficiency of the

evidence is measured by the elements of the offense as defined by a hypothetically correct jury

charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). The hypothetically correct

jury charge “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 adequately

describes the particular offense for which the defendant was tried.” Id.

       A person commits an offense if he or she intentionally or knowingly, among other things,

fails unreasonably to provide necessary food, water, or care for a livestock animal in the person’s

custody. TEX. PENAL CODE ANN. § 42.09(a)(2) (West 2011). Evidence exists that Pharis was

aware that the horses had lost a lot of weight and were looking gaunt, that the only source of

water they had was water provided by humans, that she was a caretaker of the horses, and that

she was responsible for checking on them every three days. A veterinarian who examined the

horses testified that it was not possible that they had access to water during the preceding three

days. Based on their condition, he believed they had gone without water for at least five-to-

eight days.

       Given the evidence of temperatures exceeding 100 degrees each of several consecutive

days, which would exacerbate the animals’ predicament, Pharis’ admission that she was to look

in on the animals every three days, coupled with her background as a veterinary assistant and her

knowledge of the needs of animals, it was not unreasonable for the jury to have found from the




                                                7
evidence that she committed the crime of cruelty to a livestock animal. The evidence is legally

sufficient.

(4)     Good-Time Credit Should Be Considered

        Pharis argues that the trial court exceeded the scope of its authority by ordering her to

serve the jail portion of her sentence “day for day.” The State has conceded error, and we

conclude that error has indeed been shown because that language is contrary to the sentencing

procedures set by the Legislature. The judgment of conviction and order committing Pharis to

jail is hereby modified to allow good-time credit to be considered. See TEX. CODE CRIM. PROC.

ANN. art. 42.032 (West Supp. 2013); Kopesk v. Martin, 629 S.W.2d 743, 745 (Tex. Crim. App.

1982); Hencey v. State, 904 S.W.2d 160, 161 n.1 (Tex. App.—San Antonio 1995, no pet.).

(5)     The Fine Is Valid

        Pharis contends that the trial court abused its discretion by ordering her to pay a fine and

any amounts other than court costs because she is indigent. She also claims that requiring her to

pay off the fine through incarceration is improper. 4 However, fines are expressly sanctioned,

with limitations on time not to exceed the maximum term of confinement authorized for the

underlying offense. TEX. CODE CRIM. PROC. ANN. art. 43.03 (West Supp. 2013).

        The argument seems to be based on situations where individuals convicted of fine-only

crimes were incarcerated so that their fines could be paid off by their work for the State. See

Ex parte Minjares, 582 S.W.2d 105, 109 (Tex. Crim. App. [Panel Op.] 1978). It appears Pharis
4
 We recently ruled that, under the circumstances present in another case, “laying out” fines by serving time was
improper. See Ex parte Jeff Burks, No. 06-13-00217-CR, 2014 Tex. App. LEXIS 4507 (Tex. App.—Texarkana Apr.
25, 2014, no pet. h.) (mem. op., not designated for publication). In Burks, however, the record did not demonstrate
that the trial court held a hearing in compliance with the statute authorizing the practice. See TEX. CODE CRIM.
PROC. ANN. art 43.03(d).
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is concerned that, as an indigent person who would be required to serve time “day for day,” she

would necessarily remain incarcerated for the entire calendar year ordered by the trial court, or

perhaps she would remain incarcerated until the full amount of the fine was paid no matter how

long that might take. We hereby modify the judgment to remove the “day for day” language.

Also Article 43.03 of the Texas Code of Criminal Procedure contains safeguards to prevent the

scenario posited by counsel from occurring. Under these facts, counsel has not shown further

error.

         As modified, the judgment is affirmed.



                                             Josh R. Morriss, III
                                             Chief Justice

Date Submitted:        May 29, 2014
Date Decided:          June 17, 2014

Do Not Publish




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