                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-08-00149-CR

MELISSA MATUS,
                                                           Appellant
v.

THE STATE OF TEXAS,
                                                           Appellee



                      From the County Court at Law No. 1
                          McLennan County, Texas
                         Trial Court No. 20076115CR1


                          MEMORANDUM OPINION


      A jury found Appellant Melissa Matus guilty of the offense of cruelty to an

animal.   The trial court assessed her punishment at ninety days in the McLennan

County Jail and a $2,000 fine but suspended the sentence and placed her on community

supervision for eighteen months. Raising five issues, Matus appeals. We will affirm.

      The information alleged that on or about February 15, 2006, Matus “did then and

there intentionally or knowingly fail unreasonably to provide necessary care for a horse

in the defendant’s custody, by failing to properly groom or treat or medicate … .”
        At the time of the alleged offense, section 42.09 of the Penal Code provided: “A

person commits an offense if the person intentionally or knowingly … fails

unreasonably to provide necessary food, care, or shelter for an animal in the person’s

custody.” Act of May 24, 2001, 77th Leg., R.S., ch. 450, § 1, 2001 Tex. Gen. Laws 887, 887

(current version at TEX. PENAL CODE ANN. § 42.09(a)(2) (Vernon Supp. 2010)).

“‘Necessary … care’ includes … care provided to the extent required to maintain the

animal in a state of good health.” Id. at 888 (current version at TEX. PENAL CODE ANN. §

42.09(b)(6)).

                                Sufficiency of the Evidence

        In her first issue, Matus contends that the evidence is factually insufficient to

show that she failed unreasonably to care for her horse. The court of criminal appeals

recently held that there is “no meaningful distinction between the Jackson v. Virginia

legal-sufficiency standard and the Clewis factual-sufficiency standard” and that “the

Jackson v. Virginia legal-sufficiency standard 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.”

Brooks v. State, 323 S.W.3d 893, 902, 912 (Tex. Crim. App. 2010). Accordingly, we will

apply the Jackson v. Virginia sufficiency standard to this issue. See, e.g., Valdez v. State, ---

S.W.3d ---, ---, 2010 WL 5269818, at *6 (Tex. App.—San Antonio Dec. 15, 2010, no pet. h.)

(applying legal-sufficiency standard to factual-sufficiency complaint); Kibble v. State, ---

S.W.3d ---, ---, 2010 WL 4910236, at *2 (Tex. App.—Houston [1st Dist.] Dec. 2, 2010, no

pet. h.) (same).

Matus v. State                                                                            Page 2
        When reviewing a challenge to the sufficiency of the evidence to establish the

elements of a penal offense, we must determine whether, after viewing all the evidence

in the light most favorable to the verdict, any rational trier of fact could have found the

essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443

U.S. 307, 318-19, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). Our duty is to determine if

the finding of the trier of fact is rational by viewing all of the evidence admitted at trial

in the light most favorable to the verdict. Adelman v. State, 828 S.W.2d 418, 422 (Tex.

Crim. App. 1992). In doing so, any inconsistencies in the evidence are resolved in favor

of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000).

        When performing a sufficiency review, we may not reevaluate the weight and

credibility of the evidence and substitute our judgment for that of the fact-finder.

Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). Instead, we “determine

whether the necessary inferences are reasonable based upon the combined and

cumulative force of all the evidence when viewed in the light most favorable to the

verdict.” Hooper v. State, 214 S.W.3d 9, 16-17 (Tex. Crim. App. 2007). We must presume

that the fact-finder resolved any conflicting inferences in favor of the prosecution and

defer to that resolution. Jackson, 443 U.S. at 326, 99 S. Ct. at 2793; Clayton v. State, 235

S.W.3d 772, 778 (Tex. Crim. App. 2007).

Failed unreasonably to care for the horse

        In 1995, Matus and her then-husband purchased “Paint,” a stunted quarter-horse

that was possibly part pony, for their daughter Kaitlyn. At that time, Paint’s age was

between fifteen and seventeen years. Paint was moved to Matus’s property in 2003.

Matus v. State                                                                         Page 3
Evelyn Bench, an equine investigator with Habitat for Horses, a nonprofit organization

that is a foster and rehabilitation home for horses, testified that she went to Matus’s

property in October of 2004 to get a horse (a palomino named Gusto) from Matus that

was being donated. While there, Bench noticed Paint’s long, wiry hair and told Matus

that it might have Cushing’s disease and that she might want to have her veterinarian

check it. Matus replied that she would do so.

        In the summer of 2005, Waco Police Detective Michelle Starr, a horse owner, was

passing by Matus’s rural property on a daily basis while driving to and from work. She

could see Paint from the road and became concerned about Paint’s condition because,

despite the 100-degree heat, it still had curly long hair, and on her drives home, she saw

it standing in water up to its belly. At that time, Paint looked chubby or fat. About six

months later, in February 2006, Starr noticed that Paint had lost a lot of weight. Based

on Paint’s long hair, she thought it might have Cushing’s disease, and with the weight

loss, she was concerned that it was not getting any medical attention, which she

thought it needed. Starr thus contacted a fellow detective, Donnie Morgan, who had

experience with animal-cruelty cases, and asked him to go with her to look at Paint.

        On February 14, 2006, Starr and Morgan drove to Matus’s property. Morgan

initially looked at Paint from the road through a camera lens and thought he looked

“obviously sick.” After observing Paint for about twenty minutes, Morgan thought that

“something was wrong with this horse.” When the horse tried to walk, it was like

“walking on egg shells,” “walking up on its toes, just real gingerly.” Morgan and Starr

walked up to the pen and climbed over the fence to get a closer look. Morgan and Starr

Matus v. State                                                                      Page 4
both said that Paint’s tail and rear legs were crusted with diarrhea and its hooves were

long, cracked, and needed trimming. Morgan took numerous photographs of Paint that

were in evidence. Starr and Morgan both said that the two other horses in Matus’s pens

that day looked to be in good condition.

        Morgan and Starr also noted that Paint’s mane had a lot of cockleburs in it, and

there was some type of knot or abscess on its head. Morgan said that Paint had really

labored breathing and few teeth, and that its tongue was hanging out a little, which

Morgan said was a sign that a horse or cow is about to die. Morgan concluded that

Paint was acting as if it were suffering; he thought that it was in pain from walking and

breathing. Morgan decided to seize the horse without a warrant because he thought the

horse was about to die. No one was at Matus’s adjacent mobile home, and Morgan

could not reach her by phone, so he left his card in her mailbox with a note that he had

taken her horse.

        Starr attended the post-seizure hearing before a justice of the peace, and she said

that Matus testified that she was not aware that Paint had Cushing’s disease and that

she was not seeking medical treatment for the horse.          Morgan also attended that

hearing, and he said that Matus testified that she knew that Paint had been ill for five to

six years and that she “was her own veterinarian.”

        Paint was boarded with a non-equine veterinarian for a day and then was taken

to Dr. Ronnie Edwards, an equine veterinarian. After about ten days, Dr. Edwards

euthanized Paint. Dr. Edwards testified that because of Paint’s emaciated condition and

long hair, he immediately suspected Cushing’s disease (or syndrome). Paint then tested

Matus v. State                                                                       Page 5
positive for Cushing’s disease, which is a disease of the pituitary gland and leads to

diabetes, which then causes laminitis. Its symptoms include weight loss, muscle loss,

weakness, hirsutism (long hair), depression, lethargy, excessive thirst and hunger, and

breakdown of the ligamentous structures of the leg.         The cause of Cushing’s is

unknown, and while it is treatable, it is not curable. Dr. Edwards said that Matus did

not cause Paint to get Cushing’s. Once Cushing’s reaches a certain stage in older

horses, its symptoms are largely irreversible.

        Dr. Edwards assessed Paint’s body condition with a score of 2, explaining that

horses are scored on a scale of 1 to 9, with 0 being a horse that has died from

malnutrition and 10 being a horse that has died from being overweight. Most horses

are scored at a 5 or 6. Paint’s life expectancy at that time was probably “not very long”

and real cold weather would have led to its death from hypothermia because of lack of

fat and muscle. And if a horse like Paint were to go down to the ground in real cold

weather, it would not have been able to get back up because of the weakness. Also,

Paint’s teeth were in “very bad” shape. In addition to missing teeth, Paint’s teeth had

not been floated (grinded and smoothed so the horse can grind grain and swallow it).

Dr. Edwards thought that Paint’s teeth had never been floated, but if they had been, it

had been at least two or three years. Floating Paint’s teeth and a correct diet for an

older horse would have helped Paint’s diarrhea and constipation problem.

        Dr. Edwards said that Paint’s hooves were not in good shape; they were not kept

trimmed and that they showed signs of founder (laminitis), which is linked to

Cushing’s and diabetes. Contrary to Morgan’s testimony, Dr. Edwards said that Paint

Matus v. State                                                                     Page 6
walked “pretty good.” Dr. Edwards confirmed that Paint had lots of cockleburs in its

main and dried feces on its back legs.

        Cushing’s is treated with Pergolide, a human medication, which costs between

$1.50 and $3.00 a day, depending on where one buys it.          Dr. Edwards said that

Pergolide would have helped Paint’s condition but that its other problems (diet and

teeth) would have needed to be addressed also. If Paint’s Cushing’s had been treated

earlier, the horse “probably would have done better” and could probably have had “a

few more years of quality life.” Dr. Edwards believed that Matus had not cared for

Paint—“he was in bad shape.” He could not say that Paint was suffering, but it was

uncomfortable.

        On cross-examination, Dr. Edwards answered hypothetically that if Paint were

being brushed periodically, fed and provided water daily, given pain medication, and

kept stress-free, he would not think the owner was mistreating, being cruel, or not

caring for the horse. But on re-direct, Dr. Edwards said that the horse’s condition

would have indicated that something was wrong or that the horse might have

Cushing’s and that he would have recommended to the owner of a horse in Paint’s

condition to take the horse to a veterinarian and not to try to treat the horse on their

own.

        Clay Link, Matus’s ex-boyfriend, testified that he helped Matus care for Paint

during their year-and-a-half relationship in the 2003 and 2005 time frame. Link lived on

Matus’s property then, and during the week he and Matus cared (fed, watered, and

groomed) for Paint, and Matus’s daughter Kaitlyn cared for it on the weekends. They

Matus v. State                                                                    Page 7
had a farrier come out to care for Matus’s horses’ feet. Paint’s condition in 2004 was

“pretty good.” Marc Scott, a farmer and rancher who lived near Matus, delivered hay

every week or two to Matus for her horses starting in October 2005. He noticed that

Paint had lost weight and discussed it with her, and Matus told him that Paint had

some kind of disease. He said that Matus appeared to care for Paint, but after being

shown a photo of Paint when it was seized, Scott said he would probably have taken it

to a veterinarian if the horse were his. Kaitlyn Matus testified that she thought her

mother adequately took care of Paint. She had seen Paint the weekend before it was

seized. The horse was skinny, but “he was getting bigger, like he looked like he had put

on some weight, so we thought he was doing pretty good.”

        Matus testified. She has had or has owned horses her whole life. She first

noticed something was wrong when Paint did not shed its winter coat in 2004, and she

clipped its hair that summer and in the summer of 2005. Matus explained that Paint’s

hair was long in February of 2006, when it was seized, because horses are not clipped in

the winter, a fact agreed to by Dr. Edwards. She also explained that because of the cold

weather in January and February of 2006, it had not been feasible to wash the feces off

Paint’s rear legs and tail, and at the time she was waiting for a warm day to do that.

        She suspected that Paint had Cushing’s, and she spoke with several people about

it and researched it on the Internet. She first said that she noticed that Paint had lost

weight in January of 2006, but then later said it was in the Fall of 2005 when she realized

the weight loss and changed Paint’s feed to increase the protein level, but the increase

was too sudden and it gave Paint diarrhea. She then changed its ration a little. Matus

Matus v. State                                                                       Page 8
gave Paint “Bute,” a pain reliever for horses, when it appeared to be lame or to not be

feeling well, and it seemed to help. She regularly “picked” her horses’ feet and did

some basic trimming and rasping, but she usually had a farrier care for their feet. Given

Paint’s age and the cost of treatment, Matus said she made Paint “comfortable.” At that

time, Matus was “barely making ends meet.” Because of her job, she was leaving home

before daylight and getting home after dark, so she did not see her horses every day.

An ex-boyfriend was watering and feeding her horses.

        On cross-examination, Matus admitted that Paint was never seen by a

veterinarian for Cushing’s. She also admitted that Paint was dirty from the feces and

that Paint’s teeth had not been floated “lately.” Matus said that giving Paint away was

not an option because it belonged to her daughter. She admitted to telling Morgan that

Paint “had the right to die in the pasture.”

        The jury was correctly instructed that, regarding the offense of intentionally or

knowingly failing unreasonably to provide necessary care for an animal, “necessary

care” includes “care … provided to the extent required to maintain the animal in a state

of good health.” There was ample testimony that Paint was not in a state of good

health, and Dr. Edwards gave detailed testimony about what Matus could have done to

improve Paint’s quality of life. He also said that Matus should have had Paint seen by a

veterinarian.

        As for Matus’s tacit argument that she lacked the resources to provide Paint the

veterinary care that was needed, the law provided no such excuse, as the State argued

at trial. See, e.g., Martinez v. State, 48 S.W.3d 273, 276, 277 n.1 (Tex. App.—San Antonio

Matus v. State                                                                      Page 9
2001, pet. ref’d) (“Failure to provide necessary care is cruelty to animals and a criminal

offense, even though the record in this case reveals neglect arising out of a lack of

resources rather than outright cruelty.”); see also id. at 278 (Lopez, J., concurring).

        We recognize that the jury was faced with some conflicting evidence, but the jury

is the exclusive judge of the facts, the credibility of the witnesses, and the weight to be

given to the witnesses’ testimony. Jaggers v. State, 125 S.W.3d 661, 670 (Tex. App.—

Houston [1st Dist.] 2003, pet. ref’d). The jury may believe all, some, or none of any

witness’s testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). As the

reviewing court, we “should not substantially intrude upon the jury’s role as the sole

judge of the weight and credibility of witness testimony.” Vasquez v. State, 67 S.W.3d

229, 236 (Tex. Crim. App. 2002). We must defer to the jury’s determination concerning

what weight to give contradictory or conflicting testimonial evidence. See, e.g., In re

A.B., 133 S.W.3d 869, 873-74 (Tex. App.—Dallas 2004, no pet.); Scugoza v. State, 949

S.W.2d 360, 362-63 (Tex. App.—San Antonio 1997, no pet.).

        Viewing the evidence in the light most favorable to verdict, we conclude that a

rational jury could have found that Matus failed unreasonably to care for Paint. The

evidence on that element of the offense is sufficient. We overrule issue one.

Mens rea

        Issues two and three assert that the evidence is legally and factually insufficient

to show that Matus acted intentionally and knowingly. As discussed above, because we

no longer review the evidence for factual sufficiency, we overrule issue three and will

proceed to a sufficiency review for issue two under the Jackson v. Virginia sufficiency

Matus v. State                                                                            Page 10
standard.

        Cruelty to animals is a “nature of the conduct” offense. See Amaya v. State, 733

S.W.2d 168, 174 (Tex. Crim. App. 1986). A person acts intentionally with respect to the

nature of the conduct when the person has a conscious objective or desire to engage in

the conduct; a person acts knowingly when he is aware of the nature of his conduct.

TEX. PENAL CODE ANN. § 6.03(a), (b) (Vernon 2003). Proof of a culpable mental state

almost invariably depends upon circumstantial evidence. Krause v. State, 243 S.W.3d 95,

111 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d). A jury may infer a culpable

mental state from the circumstances surrounding the offense of cruelty to animals.

Martinez, 48 S.W.3d at 276 (citing Pine v. State, 889 S.W.2d 625, 629 (Tex. App.—Houston

[14th Dist.] 1994, pet. ref’d)).

        A jury could infer a culpable mental state from the circumstantial evidence of

Paint’s physical condition. See Martinez, 48 S.W.3d at 276 (“Here, the evidence indicates

obvious and severe illness, and a long-neglected need for treatment. Presented with

such an obvious need for treatment, a jury could easily infer intent or knowledge.”).

Further evidence of Matus’s culpable mental state came from several witnesses. Bench

testified that when she told Matus that Paint might have Cushing’s and that she might

want to have her veterinarian check it, Matus replied that she would do so. Starr

testified about the palomino that Bench had come to get, stating that she had noticed it

to be “emaciated, really skinny,” and it “looked like he was starving.” Starr contacted

the Sheriff’s Department to complain, which led to Matus giving that horse away.

Finally, Matus admitted that she suspected Paint had Cushing’s, researched it, and

Matus v. State                                                                    Page 11
decided to treat it herself and not to have a veterinarian see the horse.                   These

admissions showed Matus’s deliberateness and purpose in how she chose to treat Paint.

        Viewing the evidence in the light most favorable to verdict, we conclude that a

rational jury could have found that Matus acted intentionally or knowingly in failing

unreasonably to care for Paint. See Martinez, 48 S.W.3d at 276-77; see also Pine, 889

S.W.2d at 629-30. The evidence on a culpable mental state is sufficient. We overrule

issue two.

                                        Charge Error

        In her fourth issue, Matus contends that the trial court fundamentally erred in

failing to tailor the jury charge so as to restrict the mens rea instruction to “nature of the

conduct.” In the instructions on the culpable mental states, the abstract portion of the

charge included “result-oriented” instructions with the “conduct-oriented” instructions:

               A person acts intentionally, or with intent, with respect to the
        nature of his conduct or to a result of his conduct when it is his conscious
        objective or desire to engage in the conduct or cause the result.

               A person acts knowingly, or with knowledge, with respect to the
        nature of his conduct or to circumstances surrounding his conduct when he is
        aware of the nature of his conduct or that the circumstances exist. A person
        acts knowingly or with knowledge with respect to a result of his conduct, when he
        is aware that his conduct is reasonably certain to cause the result. [Emphases
        added.]

        In analyzing a jury-charge issue, we first decide whether error exists. Ngo v.

State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). Referring to the result-oriented

portions in the above abstract paragraphs as “superfluous,” the State does not expressly

concede that error exists, but it does argue that reversible error does not exist under


Matus v. State                                                                              Page 12
applicable case law.

        We recently examined a nearly identical charge issue and the State’s same

response:

               The court properly included abstract definitions in the charge for
        both “intentional” and “knowing” conduct. However, the court erred by
        failing to limit these definitions to the nature of the defendant’s conduct
        rather than the result of his conduct. See Hughes, 897 S.W.2d at 296;
        Battaglia, 2007 WL 4098905, at *2; Whitfield, 2001 WL 40654, at *1;
        Rodriguez, 24 S.W.3d at 502. Because Garcia failed to object, reversal is
        required only for egregious harm. Trejo v. State, 280 S.W.3d 258, 261 (Tex.
        Crim. App. 2009); Battaglia, 2007 WL 4098905, at *1; Whitfield, 2001 WL
        40654, at *2; Rodriguez, 24 S.W.3d at 503.

               Citing Plata v. State, the State characterizes each of these abstract
        definitions as a superfluous instruction which “never produces reversible
        error in the court’s charge because it has no effect on the jury’s ability
        fairly and accurately to implement the commands of the application
        paragraph.” 926 S.W.2d 300, 302-03 (Tex. Crim. App. 1996), overruled on
        other grounds by Malik v. State, 953 S.W.2d 234, 239 (Tex. Crim. App. 1997).
        However, the Court in Plata also observed, “Reversible error only occurs
        in the giving of an abstract instruction when the instruction is an incorrect
        or misleading statement of a law which the jury must understand in order
        to implement the commands of the application paragraph.” Id. at 302.
        Here, Garcia’s complaint potentially fits within the category of “reversible
        error” identified in Plata because the challenged definitions were incorrect
        with regard to the culpable mental state which the jury must find in order
        to convict him of indecency by contact. And this error is magnified to the
        extent that the application paragraph itself misstates the requisite culpable
        mental state.

              Thus, we will examine the record for egregious harm under the
        standard first enunciated in Almanza v. State, 686 S.W.2d 157, 171 (Tex.
        Crim. App. 1985) (op. on reh’g). See Dougherty v. State, No. PD-1411-05,
        2006 WL 475802, at *1 (Tex. Crim. App. Mar. 1, 2006) (per curiam) (not
        designated for publication).

Garcia v. State, No. 10-09-00162-CR, 2010 WL 1269689, at *2-3 (Tex. App.—Waco Mar. 31,

2010, no pet.) (mem. op., not designated for publication).


Matus v. State                                                                          Page 13
        Because cruelty to animals is a conduct-oriented offense, the charge’s abstract

portion was erroneous by including result-oriented definitions with the conduct-

oriented definitions. See id. at *2.

        Because Matus did not object to the charge, we analyze this error under the

familiar Almanza standard. Allen v. State, 253 S.W.3d 260, 264 (Tex. Crim. App. 2008).

Unobjected-to jury charge error will not result in reversal of a conviction in the absence

of “egregious harm.”       Almanza, 686 S.W.2d at 171.     In examining the record for

egregious harm, we consider: (1) the entire jury charge; (2) the state of the evidence,

including the contested issues and the weight of the probative evidence; (3) the final

arguments of the parties; and (4) any other relevant information revealed by the record

of the trial as a whole. Olivas v. State, 202 S.W.3d 137, 144 (Tex. Crim. App. 2006).

Charge error is egregiously harmful if it affects the very basis of the case, deprives the

defendant of a valuable right, or vitally affects a defensive theory. Stuhler v. State, 218

S.W.3d 706, 719 (Tex. Crim. App. 2007).

        The application paragraph in this case was correct, and the charge correctly

instructed the jury on the substantive law for the offense of cruelty to animals, thus

informing the jury of what the State had to prove. See Garcia, 2010 WL 1269689, at *4.

Within the context of the charge as a whole, the error appears less harmful. See id.

        The evidence on Matus’s conduct and Paint’s condition was contested, but, as we

found above, the evidence was sufficient to support the conviction. Matus argues that

the State focused much of its evidence on the “result” of Matus’s conduct, but that is not

necessarily true. The State did not present evidence or argue that Matus caused Paint to

Matus v. State                                                                      Page 14
get Cushing’s or that she wanted Paint to suffer or to be in bad health. Instead, to meet

its burden of proof, the State presented evidence that Paint was not in a state of good

health.1 The evidence on Paint’s condition was thus necessary for the jury to determine

the reasonableness of Matus’s conduct. For this same reason, the State’s emphasis in

closing argument on Paint’s condition was likewise not inappropriate. Accordingly, we

find that Matus did not suffer egregious harm and overrule issue four.

                                       Motion to Suppress

        In her fifth issue, Matus contends that the trial court abused its discretion in

overruling her motion to suppress evidence of Detective Morgan’s warrantless entry

into her horse pen and warrantless seizure of Paint. It is undisputed that Morgan went

on to Matus’s property and seized Paint without a warrant.

        We review a trial court’s ruling on a motion to suppress evidence under a

bifurcated standard of review. Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App.

2007). In reviewing the trial court’s decision, we do not engage in our own factual

review. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990); Best v. State, 118

S.W.3d 857, 861 (Tex. App.—Fort Worth 2003, no pet.). The trial judge is the sole trier of

fact and judge of the credibility of the witnesses and the weight to be given their

testimony. Wiede v. State, 214 S.W.3d 17, 24-25 (Tex. Crim. App. 2007). Therefore, we

give almost total deference to the trial court’s rulings on (1) questions of historical fact,

even if the trial court’s determination of those facts was not based on an evaluation of


1“‘Necessary … care’ includes … care provided to the extent required to maintain the animal in a state of
good health.” Act of May 24, 2001, 77th Leg., R.S., ch. 450, § 1, 2001 Tex. Gen. Laws 887, 888 (current
version at TEX. PENAL CODE ANN. § 42.09(b)(6)).

Matus v. State                                                                                   Page 15
credibility and demeanor; and (2) application-of-law-to-fact questions that turn on an

evaluation of credibility and demeanor. Amador, 221 S.W.3d at 673; Montanez v. State,

195 S.W.3d 101, 108-09 (Tex. Crim. App. 2006). But when application-of-law-to-fact

questions do not turn on the credibility and demeanor of the witnesses, we review the

trial court’s rulings on those questions de novo. Amador, 221 S.W.3d at 673.

        When reviewing the trial court’s ruling on a motion to suppress, we must view

the evidence in the light most favorable to the trial court’s ruling. Kelly v. State, 204

S.W.3d 808, 818 (Tex. Crim. App. 2006).         When the trial court makes explicit fact

findings, we determine whether the evidence, when viewed in the light most favorable

to the trial court’s ruling, supports those fact findings. Id. at 818-19. We then review the

trial court’s legal ruling de novo unless its explicit fact findings that are supported by

the record are also dispositive of the legal ruling. Id. at 819.

        The suppression hearing took place at the end of the first day of trial testimony.

Only Morgan testified, but in making its ruling and stating its findings on the record,

the trial court also referred to the testimony of Detective Starr, who had testified that

day, as had Dr. Edwards. Also, Morgan’s trial testimony included testimony about his

entry onto Matus’s property and into her horse pens.

                In a review of a trial court’s suppression hearing ruling, we
        generally consider only the evidence adduced at the suppression hearing.
        Rachal v. State, 917 S.W.2d 799, 809 (Tex. Crim. App. 1996).

           However, this general rule is inapplicable where, as in this case, the
           suppression issue has been consensually re-litigated by the parties
           during trial on the merits. Id. [Hardesty v. State, 667 S.W.2d 130, 135
           n.6 (Tex. Crim. App. 1984).] Where the State raises the issue at trial
           either without objection or with subsequent participation in the

Matus v. State                                                                       Page 16
              inquiry by the defense, the defendant has made an election to re-
              open the evidence, and consideration of the relevant trial testimony
              is appropriate in our review. Id. at 135; See also Webb v. State, 760
              S.W.2d 263, 272 n.13 (Tex. Crim. App. 1988), cert. denied, 491 U.S. 910,
              109 S.Ct. 3202, 105 L.Ed.2d 709 (1989). Moreover, it would be
              unreasonable to ignore trial evidence in our review of the court’s
              suppression decision only to be confronted by the evidence in our
              consideration of whether the error was harmless. TEX. R. APP. P.
              81(b)(2).

        Id.

Kearney v. State, 181 S.W.3d 438, 446 (Tex. App.—Waco 2005, pet. ref’d); see also Gutierrez

v. State, 221 S.W.3d 680, 687 (Tex. Crim. App. 2007). We agree with Matus that the

parties consensually relitigated the suppression issue at trial, and to the extent

necessary, we will consider trial evidence as part of the suppression record.

        On appeal, the State advances several theories in support of the trial court’s

suppression ruling.        We focus only on the “emergency doctrine” exception to the

warrant requirement, as we find that it supports the trial court’s findings and ruling.

        The emergency doctrine is an exception to the constitutional prohibition of
        searches and seizures carried out without a warrant from a magistrate.
        Bray v. State, 597 S.W.2d 763, 764 (Tex. Crim. App. 1980). The Fourth
        Amendment does not prohibit a warrantless search and seizure when
        there is a need to act immediately to protect or preserve life, or to prevent
        serious injury. Id.; see also Mincey v. Arizona, 437 U.S. 385, 392, 98 S.Ct.
        2408, 2413, 57 L.Ed.2d 290 (1978).

Pine, 889 S.W.2d at 631.

        Under the emergency doctrine, a warrantless entry is permitted if the officer has

an immediate, reasonable belief that he or she must act to “protect or preserve life or

avoid serious injury.”        Laney v. State, 117 S.W.3d 854, 861 (Tex. Crim. App. 2003)

(quoting Mincey, 437 U.S. at 392, 98 S.Ct. at 2412).

Matus v. State                                                                           Page 17
               “We have used an objective standard of reasonableness in
        determining whether a warrantless search is justified under the
        Emergency Doctrine. Brimage, 918 S.W.2d at 501; Colburn, 966 S.W.2d at
        519. This objective standard looks at the police officer’s conduct and
        “takes into account the facts and circumstances known to the police at the
        time of the search.” Brimage, 918 S.W.2d at 501 (citing Garcia v. State, 827
        S.W.2d 937 (Tex. Crim. App. 1992); Janicek v. State, 634 S.W.2d 687, 691
        (Tex. Crim. App. 1982)); Colburn, 966 S.W.2d at 519. Furthermore, we look
        to ensure that the warrantless search is “strictly circumscribed by the
        exigencies which justify its initiation.” Mincey, 437 U.S. at 393, 98 S.Ct. at
        2413; Bass v. State, 732 S.W.2d 632, 635 (Tex. Crim. App. 1987). If the
        emergency doctrine applies, the police may seize any evidence that is in
        plain view during the course of their legitimate emergency activities.
        Mincey, 437 U.S. at 393, 98 S.Ct. 2408 (citations omitted); Brimage, 918
        S.W.2d at 501.

Id. at 862.

        In an animal cruelty case, to justify the warrantless seizure under the emergency

doctrine, the State must show (1) that the officer had probable cause to believe the

animal was being cruelly treated, and (2) that obtaining a warrant was impracticable

because the officer reasonably believed there was an immediate need to act to preserve

a life. Pine, 889 S.W.2d at 631 (citing Brimage v. State, 918 S.W.2d 466, 500 (Tex. Crim.

App. 1994) and Crane v. State, 786 S.W.2d 338, 346 (Tex. Crim. App. 1990)).

        At the suppression hearing, Morgan testified that he had been a peace officer for

twenty-three years and had been around horses for most of his life. He has owned

fifteen horses. He attended a course on the health and safety of horses in 2002, and

from that course he was certified to perform body condition and health and condition

ratings on animals in the field.

        As a result of Starr’s concerns about Paint’s condition, they drove together to

Matus’s property. He was able to view Paint from the road passing Matus’s property

Matus v. State                                                                           Page 18
by using his zoom camera lens. He observed Paint for about twenty minutes and saw

Paint’s tongue hanging out, its head hanging down, and its long hair, along with dried

feces on its rear. He observed Paint’s labored walking (like it was walking on egg

shells) and thought it was lame from laminitis.

        They then drove onto Matus’s property, turned into her driveway, and parked

next to her mobile home. They then walked up to the adjacent horse pen, and Morgan

climbed on the fence to better observe Paint. He noticed a knot on the side of Paint’s

face and that its eyes were half closed. Morgan next opened the gate and went into the

pen to look in Paint’s mouth to ascertain its age. Morgan did not go into the barn, but

he did not see any feed or hay in the pen for the five horses there. He saw one thirty-

gallon water bucket that was half-full.

        Based on his observations of Paint and his training and background, Morgan

believed that Paint was in imminent danger and was about to die, and he thought that it

might die in the six- to eight-hour time period that it would take him to get a warrant.

Morgan thus decided to seize the horse and get it to a veterinarian. He called the

Sheriff’s Department, which he had an arrangement to work with on animal cruelty

cases, and a person was called to come and get Paint. That person typically puts seized

animals on his place if they are in good enough condition, but when he saw Paint, he

refused to take it to his place and thus took it directly to Dr. Jager, a non-equine

veterinarian, where it stayed for a day before being taken to Dr. Edwards.

        In denying the suppression motion, the trial court made an oral finding of

emergency based on Starr’s and Morgan’s testimony, the photographs of Paint, and the

Matus v. State                                                                   Page 19
fact that Paint was soon euthanized. Relying on Pine, Matus argues that Morgan’s lay

opinion on Paint’s condition was not enough to justify seizure under the emergency

doctrine and implies that expert testimony from a veterinarian is necessary. See Pine,

889 S.W.2d at 631-32. We agree with the State that Pine did not establish a veterinarian

requirement; that case’s emphasis on the veterinarian’s opinion related to its analysis of

the reasonableness of the officer’s belief that, given the need to protect the colt’s life,

obtaining a warrant would be impracticable. See id. at 632. Also, the officer had sought

the veterinarian not to justify seizure under the emergency doctrine, but to begin

treating the colt. Id. at 631.

        Viewing the evidence in the light most favorable to the trial court’s ruling, we

cannot say the trial court abused its discretion in finding the emergency doctrine

applicable and in thus denying the motion to suppress. We overrule issue five.

        Having overruled all of Matus’s issues, we affirm the trial court’s judgment.




                                                        REX D. DAVIS
                                                        Justice

Before Chief Justice Gray
       and Justice Davis2
Affirmed
Opinion delivered and filed March 30, 2011
Do not publish
[CR25]



2The Honorable Felipe Reyna, a former justice on this court, was on the panel and present for argument,
but having left office on December 31, 2010, he did not participate in this decision. See TEX. R. APP. P.
41.1(c).

Matus v. State                                                                                   Page 20
