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

              No. 06-09-00172-CR
        ______________________________


           BARBARA HOLZ, Appellant

                        V.

        THE STATE OF TEXAS, Appellee




         On Appeal from the County Court
             Marion County, Texas
             Trial Court No. 12,944




    Before Morriss, C.J., Carter and Moseley, JJ.
   Memorandum Opinion by Chief Justice Morriss
                                        MEMORANDUM OPINION

         There is no question that the dog named Misty, also identified as ―Lone Star 42,‖ was a

pitiful sight when the Rescue and Investigations Division of the Society for the Prevention of

Cruelty to Animals (SPCA) of Texas removed her from Barbara Holz‘s Marion County property.

Beyond that indisputable fact, however, the SPCA‘s view differed from Holz‘s perspective.

         Holz claimed that Misty was about fifteen years old at the time; the SPCA estimated her

age at around eight years. Holz claimed that she had been nursing Misty toward health, with

some success, and that Misty was properly and carefully provided food and water. The contrary

view was that Misty was not provided adequate food and water. Misty was one of the more

extreme examples among a large number of dogs taken from Holz‘s property at the same time, in

varying degrees of distress and poor condition.

         Holz was convicted of the misdemeanor offense of cruelty to animals. 1 After reviewing

the briefs before us, the record of the trial below, and the applicable law, we affirm the judgment of

the trial court because (1) veterinary reports admitted into evidence at trial were not testimonial,

(2) Holz did not preserve her complaint regarding admission of testimony about dead dogs found

nearby, and (3) the evidence was legally and factually sufficient.

1
 We have been presented with a record for only the case in which Holz was convicted. Holz asserts she was tried for
two charges of misdemeanor cruelty to animals, where each case alleged an offense against a specific animal. Holz
says she was acquitted on one charge and convicted of the other. The State does not dispute this representation of the
proceedings, and the statements at opening and closing arguments, as well as testimony throughout the trial, support
this reading of the procedural history. The parties also seem to agree that the one charge for which Holz was
convicted involved an allegation of failing to provide food, water, or shelter to an animal referred to in the SPCA
investigation and then at trial as ―Lone Star 42,‖ a dog Holz called ―Misty.‖

                                                          2
(1)     Veterinary Reports Admitted into Evidence at Trial Were Not Testimonial

        Holz‘s first two points of error claim violations of her Sixth Amendment right to confront

witnesses against her. Holz claims confrontation violations in evidence of two forms generated

by the SPCA, one by its veterinary technician (State‘s Exhibit 4, the subject of Holz‘s first point of

error), and another by its chief veterinarian (State‘s Exhibit 5, addressed in point of error 2). See

Crawford v. Washington, 541 U.S. 36, 68 (2004). In Crawford, the United States Supreme Court

held that out-of-court testimonial evidence violates the Confrontation Clause unless the declarant

is unavailable to testify and the defendant had a prior opportunity to cross-examine him or her.

Id.

        The State argues, as it did at trial, that the documents were admissible as business records.

See TEX. R. EVID. 803(6). That the reports are business records is not contested.

        Even if a statement is allowed by a rule of evidence, it may still be testimonial and

implicate the Confrontation Clause. Last year, the United States Supreme Court discussed, in this

context, hearsay exceptions such as that for business records, noting, ―[b]usiness and public

records are generally admissible absent confrontation not because they qualify under an exception

to the hearsay rules, but because–having been created for the administration of an entity‘s affairs

and not for the purpose of establishing or proving some fact at trial–they are not testimonial.‖2


2
 Melendez-Diaz was tried for distributing and trafficking in cocaine. Melendez-Diaz v. Massachusetts, 129 S.Ct.
2527, 2530 (2009). To prove the substance at issue was cocaine, the State presented certificates of analysis, which
were affidavits from analysts at the state laboratory stating, ―The substance was found to contain: Cocaine.‖ Id. at

                                                         3
Melendez-Diaz, 129 S.Ct. at 2539–40.                  For the Melendez-Diaz Court, the question of the

document qualifying as a business record was less important than the fact that it was ―prepared

specifically for use at . . . trial.‖ Id. at 2540. Evidence can qualify as a business record exception

to the hearsay rule and still be testimonial in nature.

         We must determine whether the challenged exhibits are testimonial, and we do that as a

question of law. Wall v. State, 184 S.W.3d 730, 742 (Tex. Crim. App. 2006).

         Although the United States Supreme Court has not set out a detailed definition of what

constitutes ―testimonial‖ statements, it has described such statements as those ―made under

circumstances which would lead an objective witness reasonably to believe that the statement

would be available for use at a later trial.‖ Crawford, 541 U.S. at 51–52. In a test that can be

confidently applied in this case, statements are testimonial only when ―the primary purpose of the

interrogation is to establish or prove past events potentially relevant to later criminal prosecution.‖

Davis, 547 U.S. at 822; De La Paz v. State, 273 S.W.3d 671, 680 (Tex. Crim. App. 2008). If that

purpose is medical treatment, for example, the statement would not be testimonial.

Melendez-Diaz, 129 S.Ct. at 2533 n.2 (―medical reports created for treatment purposes . . . would

not be testimonial‖).

2531. The defendant objected, asserting that the Confrontation Clause required the analysts to testify in person. Id.
The Court held that ―the analysts‘ affidavits were testimonial statements, and the analysts were ‗witnesses‘ for
purposes of the Sixth Amendment‖ and that the defendant had a right to confront the analysts at trial. Id. at 2532.
The United States Supreme Court looked to the substance of the certificates to determine if they were ―made under
circumstances which would lead an objective witness reasonably to believe that the statement would be available for
use at a later trial‖ and to the use of the affidavits to determine if they were ―functionally identical to live, in-court
testimony, doing ‗precisely what a witness does on direct examination.‘‖ Id. (quoting Davis v. Washington, 547 U.S.
813, 830 (2006); Crawford, 541 U.S. at 52).

                                                            4
         The SPCA came to Holz‘s house, corralled, cataloged, and seized the animals; and it was

employees of the SPCA, the veterinary technician and the SPCA‘s chief veterinarian who authored

the reports which form the basis of Holz‘s Crawford complaints.3 While it is possible that the

authors of those reports could have reasonably believed that these reports would be available at a

later trial, such a conclusion is not clear, and there is no evidence the documents at issue in Holz‘s

trial were prepared specifically for use at her trial. Cf. Melendez-Diaz, 129 S.Ct. at 2540

(statements at issue ―prepared specifically for use at petitioner‘s trial‖). There is nothing in the

record to suggest the documents were prepared in anticipation of or preparation for trial.

         Here, SPCA investigator Chris West testified that the Rescue Evaluation Form—State‘s

Exhibit 4, compiled by a veterinary technician—was a form that was ―done on any animal with the

exception of equine and cattle.‖ State‘s Exhibit 5, filled out by the SPCA chief veterinarian, was

described as ―a veterinarian request that the investigators and evaluators would fill out while they

are evaluating animals if we feel that they need to be seen by a vet within the first 24-hours of our

care.‖ West went on to describe the conditions in which the animals lived outside the home, and

he concluded the animals needed to be removed from the property. From the context of West‘s

testimony and pictures in the record, it appears similar ―Rescue Evaluation Forms‖ were

completed on all dogs at the scene. Exhibit 5, completed and signed by a veterinarian, has two

distinct sets of handwriting; one set says, ―Rescue–Please check body condition, hair loss, eye


3
 The only law enforcement agent to testify at trial was a Marion County sheriff‘s office investigator who testified that
(1) he was present when the warrant to seize the dogs was executed and, (2) he arrested Holz.

                                                           5
discharge *Dog was extremely hungry*.‖ The second style of handwriting, presumably by the

veterinarian, says, ―THIN & EMACIATED [;] NO [SYMBOL UNCLEAR] OR DIARRHEA

NOTED [;] EATING VORACIOUSLY [;] DIFFUSE ALOPECIA.‖ Based on the context of the

testimony from West and the exhibits, we conclude these documents were compiled for diagnostic

or medical treatment purposes, and therefore are not testimonial. See Melendez-Diaz, 129 S.Ct. at

2533 n.2; Berkley v. State, 298 S.W.3d 712, 715 (Tex. App.—San Antonio 2009, pet. ref‘d) (where

there was unchallenged evidence sexual assault nursing examination report was completed for

purpose of rendering medical treatment, report not testimonial; citing Crawford and

Melendez-Diaz).4 As State‘s Exhibits 4 and 5 were not testimonial, the trial court did not err in

admitting them to evidence. Holz‘s first two points of error are overruled.

(2)     Holz Did Not Preserve Her Complaint Regarding Admission of Testimony About Dead
        Dogs Found Nearby

        Holz also claims error in the trial court‘s admission of testimony that Don Adams, Holz‘s

neighbor, found dog carcasses on his property and that drag marks led from the container in which

the animals were found to Holz‘s property. Adams also testified that he found dead dogs on ―the

Corp‖ property, which apparently was United States Corp of Engineers property adjacent to




4
 Cf. Long v. State, No. 11-07-00319-CR, 2009 Tex. App. LEXIS 6577 (Tex. App.—Eastland Aug. 20, 2009, pet.
dism‘d) (mem. op., not designated for publication) (Trial court admitted, under hearsay exception for statements for
purposes of medical diagnosis, toxicology report completed during autopsy of murder victim. Toxicology report was
negative for use of alcohol or drugs. Court found toxicology report testimonial, and therefore trial court erred in
allowing its admission; error was found harmless beyond reasonable doubt.).

                                                         6
Adams‘, and possibly to Holz‘s as well. The inference to be drawn by the jury seems to have been

that Holz took the bodies of dead dogs to these properties.

         Adams‘ testimony and Holz‘s objection occurred as follows:

         Q.        [By the State] Did you find dead dogs on your property?

         A.        [By Adams]                   I did.

         Q.         And did you see dead dogs on the Corp property, by the way?

               [Defense counsel]: This testimony, Your Honor, for the record, we
         would object to any testimony about dogs found that had nothing to do with this
         case.

The State claims this objection was inadequate to preserve appellate review. From the context of

the questioning and the objection lodged, it appears that, while Holz may have been objecting to

any reference to any dead dogs found in the vicinity of her property (and this is how she couches

her appellate point of error), at most she timely objected to the question about finding dead dogs on

the Corp property, and failed to timely object to Adams‘ answer that he found dead dogs on his

property.5 Therefore, we find Holz only preserved error regarding the question and answer about




5
 To preserve error regarding the improper admission of evidence, the appellant must make a timely and specific
objection to the complained-of evidence at trial. TEX. R. APP. P. 33.1(a); Ramirez v. State, 74 S.W.3d 152, 154 (Tex.
App.—Amarillo 2002, pet. ref‘d). Failure to do so waives any error in the admission of the evidence. Boyington v.
State, 787 S.W.2d 469, 470–71 (Tex. App.—Houston [14th Dist.] 1990, pet. ref‘d). To be timely, a party must object
either (1) before the evidence is admitted, if possible, or (2) if not possible to object before the evidence is admitted, as
soon as the objectionable nature of the evidence becomes apparent. Ethington v. State, 819 S.W.2d 854, 858 (Tex.
Crim. App. 1991). An appellant‘s objection is untimely, and error is waived, if he or she fails to object until after an
objectionable question has been asked and answered and he or she can show no legitimate reason to justify the delay.
Dinkins v. State, 894 S.W.2d 330, 355 (Tex. Crim. App. 1995).

                                                             7
animals found on the Corp property. The matter becomes moot, though, because that objection

does not comport with the appellate point Holz now raises.

            We read Holz‘s objection as one to the relevance of the evidence. In contrast, in her

appellate brief, Holz complains that admission of evidence that ―dead dogs were found in the

vicinity‖ of Holz‘s property was erroneously admitted. Holz argues that, ―even if the evidence

fits into an exception to the extraneous offense rule such as res gestae, identify [sic], scienter,

motive or to refute a defensive theory so as to become admissible, its relevance must not be

outweighed by the prejudicial effect.‖ Holz‘s appellate point does not comport with her trial

objection and is not preserved for our review. TEX. R. APP. P. 33.1; Resendiz v. State, 112 S.W.3d

541, 547 (Tex. Crim. App. 2003).6

(3)         The Evidence Was Legally and Factually Sufficient

            Holz also complains the evidence is legally and factually insufficient to support the jury‘s

verdict. We disagree.




6
    The balance of her argument is as follows:

            Appellant urges that the evidence of dead dogs was not admissible under any exception to the
            extraneous offense rule and that the prejudicial effect of admitted evidence of dead dogs in a
            prosecution for animal cruelty is so prejudicial that the case must be reversed and retried without
            this evidence.

We infer that in this single sentence Holz is attempting to argue violations of evidentiary Rules 403 and 404(b). TEX.
R. EVID. 403, 404(b). Not only are discrete, specific objections required to raise these legal points, but individual,
specific legal arguments must be presented to address each asserted rule violation on appeal. See Montgomery v.
State, 810 S.W.2d 372, 388 (Tex. Crim. App. 1991) (op. on reh‘g); see also TEX. R. APP. P. 38.1(i).


                                                            8
         In reviewing the legal sufficiency of the evidence, we view all of the evidence in the light

most favorable to the prosecution and determine whether, based on that evidence and reasonable

inferences therefrom, any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt. Laster v. State, 275 S.W.3d 512 (Tex. Crim. App. 2009); Roberts v.

State, 273 S.W.3d 322 (Tex. Crim. App. 2008).

         In a factual sufficiency review, we review all the evidence, but do so in a neutral light

instead of the light most favorable to the verdict. We determine whether the evidence supporting

the verdict is either too weak to support the fact-finder‘s verdict, or, considering conflicting

evidence, is so outweighed by the great weight and preponderance of the evidence that the jury‘s

verdict is clearly wrong and manifestly unjust. Laster, 275 S.W.3d 512; Lancon v. State, 253

S.W.3d 699, 705 (Tex. Crim. App. 2008); Roberts v. State, 220 S.W.3d 521, 524 (Tex. Crim. App.

2007).

         In this analysis, we use a hypothetically correct jury charge to evaluate both the legal and

factual sufficiency of evidence. Grotti v. State, 273 S.W.3d 273 (Tex. Crim. App. 2008). Such a

charge accurately sets out the law, is authorized by the indictment (in this case, the information),

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. Villarreal v. State, 286 S.W.3d 321(Tex. Crim. App. 2009); Malik v. State, 953 S.W.2d

234, 240 (Tex. Crim. App. 1997). To convict Holz under this statute and the information filed by



                                                  9
the State, the State had to prove that Holz (1) intentionally or knowingly; (2) failed unreasonably

to provide necessary food, water, care, or shelter; (3) to an animal in Holz‘s custody. TEX. PENAL

CODE ANN. § 42.092(b)(3) (Vernon Supp. 2009).


        Holz lived near Lake O‘ the Pines in Marion County. She had about thirty to forty or more

dogs in and on the grounds of her house in Marion County in July 2008.7 The dogs were found in

wretched condition—many with matted fur, eye discharges which indicated infections, and living

in unclean pens. Inside the house, where many dogs were housed, was wall-to-wall compacted

excrement, which produced a dangerous level of ammonia within the residence.

        Don Adams lived across the street, about 300 yards from Holz‘s residence. Adams was

concerned about the large number of dogs on Holz‘s property. On one occasion, Adams found

dead dogs on his property. Adams also found a large plastic container on the property adjacent to

his, which at trial Adams and the State referred to as ―Corp‖ property. Track or drag marks led

from the container to Holz‘s property. Adams described seeing evidence of several puppies dead

after laying in the road and other dogs dying off. He described an unpleasant smell from Holz‘s

property when the wind blew toward Adams‘ property. Adams voiced these concerns to Marion




7
 The numbers of dogs, including on Holz‘s property outside the house and inside the house, varied. The State asked
Holz how many of the eighty dogs found were hers. Holz said there were not eighty dogs present, but that she had
twenty-four. SPCA investigator West testified there were thirty to thirty-five dogs inside the house, but never
estimated the number of dogs outside Holz‘s home. Wedding, president of the Humane Society of Marion County,
testified there were thirty to thirty-seven dogs inside the house. Several photographs admitted into evidence showed,
perhaps, tens of dogs in the fenced areas immediately outside the home.

                                                        10
County law enforcement agencies, who put him in touch with Caroline Wedding, president of the

Humane Society of Marion County.

         Wedding made contact with Holz and ultimately visited Holz‘s property. As soon as

Wedding emerged from her car at the Holz property, Wedding‘s leg was ―covered‖ with fleas.

She gave Holz flea shampoo, loaned her crates for carrying the dogs, and arranged for payment for

a local veterinarian to administer vaccines to the several puppies Holz had. Wedding and Holz

discussed that puppies were more adoptable if they had been given vaccinations. On her first

visit, Wedding did not go in Holz‘s house, but said there was a stench or smell coming from the

house.

         On July 10, 2008, when Wedding came to the house with the SPCA and the animals were

seized, Wedding described the inside of the house, where Misty was found. Wedding saw ―feces

up several feet on the walls‖ and she said ―everything‖ in the house was covered in feces and urine.

West described the feces as compacted like concrete. Wedding said she was ―[a]bsolutely‖ sure

there was insufficient food for the dogs on Holz‘s property. When Misty, the subject of the

instant information, was released from the house, the dog stopped at a food bowl and ate

―voracious[ly]:‖ there was ―no stopping the dog from eating the food.‖ The dog ―just had no hair‖

said Wedding, which she said indicated malnutrition. Wedding said the dogs in the house did not

have access to adequate water. While there was evidence of some water in bowls inside and




                                                11
outside the house, Wedding testified that there was only enough for subsistence and that ―feeding a

dog marginally or at all [sic] and giving it water is not proper care of an animal.‖

       Misty is portrayed in a picture placed into evidence. She was very thin, with ribs clearly

distinguishable under her skin. She was almost completely bereft of hair.

       West testified he was notified by Wedding about the dogs and the conditions at Holz‘s

property. West first visited the property without Wedding, July 9, and spoke to Holz, who would

not allow West to examine the interior of her home or the dogs there without a warrant. In his tour

of the exterior of the property, though, West immediately had concerns about lack of water and

shelter for the dogs he saw, as well as evidence of malnutrition. When West asked Holz about the

veterinary care the dogs received, Holz told him she ―believed in the holistic approach. . . . and

only the really worst ones needed to be seen by a vet.‖ Based on his observations, West decided

the dogs needed to be removed from the property, and he secured a warrant for their seizure. On

July 10, he oversaw the seizure, where SPCA personnel identified, catalogued, and secured

something in excess of thirty dogs.     When West tried to enter the house, he was met with an

―extremely foul odor‖ coming from inside. Using an ammonia meter, he detected a dangerous

level of ammonia. He had to use a respirator to get into the house, and in less than a minute the

ammonia meter hit its maximum reading of ninety-nine parts per million. According to West, any

reading higher than fifteen parts per million is unsafe for long-term exposure; a reading of more

than fifty, said West, would usually preclude entry ―without protection.‖ West never specifically



                                                 12
said there was no circulation or air conditioning in the house, but did say the temperature outside

was in the nineties.        Holz would later testify the house had adequate ventilation and air

conditioning.

        The animals were put in individual crates or containers and taken to the SPCA facility in

McKinney, Texas. During the seizure process, photographs were taken to detail the condition of

the property; the photographs were admitted into evidence. West described a large amount of

feces and refuse in the dogs‘ pens and said he did not see any water in the various water bowls in

the outside area. Nor did he recall seeing any food in any of the food bowls.

        Misty was described by West as ―emaciated.‖ West said, ―On a one to five scale, one

being a perfectly healthy dog, five being grossly emaciated, the dog is a five. It‘s emaciated.‖

        The State presented a veterinarian, Dr. Carol Hedges. She had reviewed the ―Rescue

Evaluation Form‖ completed by an SPCA veterinary technician and a document completed by the

SPCA‘s veterinarian.8 Hedges said that irrespective of the report from the SPCA veterinarian,

pictures she had seen of the dogs at Holz‘s property made Hedges take note of the animals‘ body

condition, hair loss, dermatitis, and long nails. She said these conditions were objectively

noticeable, as opposed to subjective descriptions she would have gleaned from other‘s reports.

These conditions indicated the dogs were not getting ―basic care.‖ Based on the pictures she had

seen of the various dogs, and Misty in particular, as well as the SPCA veterinarian‘s report, she


8
 These documents, State‘s Exhibits 4 and 5 respectively, were admitted into evidence during the testimony of West,
and form the basis of Holz‘s first two points of error.

                                                       13
opined that Misty was not being fed adequately. Hedges pointed out that, where multiple dogs are

present, a ―pecking order‖ is established where, even if food is present, some animals may not get

to eat. She expressed the specific opinion that Misty did not appear to be in good health. As for

the house in which Misty was found, Hedges said the conditions in the house would ―perpetuate

repeated infections, parasites, and other diseases.‖

       Holz took the stand in her defense. She testified that Misty was actually about fifteen

years old when seized, as opposed to the age of about eight as estimated by the SPCA forms.

Holz attributed Misty‘s skin problems to hormones, a thyroid condition, and demodex mange,

which Misty had inherited from her mother. Holz said she fed Misty holistic, natural foods

(including ground turkey) frequently, every two to three hours. She said Misty had been very

sick, but, in the two to three months before the seizure, Holz had nursed her back to the condition

in which the SPCA found her in July 2008. Holz acknowledged that Misty had not been seen by a

veterinarian since 2002. Holz also pointed out several food and water bowls throughout the

inside and outside areas where the dogs lived and said the house was well ventilated with central

air, window-unit air conditioners, and fans, which kept the house ―air conditioner cool.‖ Holz

acknowledged there was a problem with too many dogs, which ―overwhelmed‖ her, but she

blamed the problem on people routinely dumping puppies and dogs near her property and she said

she had consistently tried to get help from Marion County authorities.

       (a)     Legal Sufficiency



                                                 14
       The evidence included a picture of Misty, missing most of her hair and with ribs showing

prominently through her skin; descriptions of Misty eating ―voraciously‖ when food was placed in

front of her; and the SPCA investigator describing Misty as ―emaciated.‖ The home in which

Misty was kept had a dramatically unsafe ammonia level. There were upwards of thirty or more

animals living inside the house, which was described as filled with excrement. The evaluation

forms completed on the SPCA‘s taking possession of Misty described her as emaciated and noted

various parasites as well as discharges from her eyes and nose and the apparent presence of mange.

Looking at the verdict in the light most favorable to the prosecution, a rational jury could have

found that Holz unreasonably knowingly failed to provide, at a minimum, adequate food, care, or

shelter for the dog the subject of this suit. The evidence was legally sufficient.

       (b)     Factual Sufficiency

       Here, we also look at the evidence that opposed the judgment of the trial court. Holz told

the jury she fed Misty every two to three hours and, at the time of the seizure, had been nursing

Misty back to health for months. Holz said the floor of the house was covered in chocolate-

colored carpet, not compacted feces. As regards the ammonia-concentrated air and stench

described by State‘s witnesses, Holz said that she had ample ventilation in the house with air

conditioners and fans and that she did not notice any smell, though she did admit it could have

been because she was around it all the time. Contrary to the heart of the State‘s allegations that

Holz did not provide sufficient water and food, the testimony from State‘s witnesses was that they



                                                 15
could not be sure no food or water was set out. In some of the pictures admitted into evidence,

water and food are visible in bowls on the ground. However, West did testify that the SPCA

personnel set out food when they arrived. We defer to the jury to resolve conflicts in testimony

and evaluate witness credibility, and will not substitute our opinion unless the jury‘s finding is

clearly wrong or unjust. Jones v. State, 944 S.W.2d 642, 648 (Tex. Crim. App. 1996).

       Considering all the evidence in a neutral light, we find that the evidence was neither so

weak nor so outweighed by the great weight of any contrary evidence as to make the verdict seem

clearly wrong and manifestly unjust. The evidence was factually sufficient.




       We affirm the trial court‘s judgment.




                                                    Josh R. Morriss, III
                                                    Chief Justice

Date Submitted:       February 10, 2010
Date Decided:         March 23, 2010

Do Not Publish




                                               16
