      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-12-00673-CR



                                Ryan Francis Chase, Appellant

                                                 v.

                                  The State of Texas, Appellee


             FROM THE COUNTY COURT AT LAW NO. 3 OF BELL COUNTY,
           NO. 2C10-01569, HONORABLE REBECCA DEPEW, JUDGE PRESIDING



                                          OPINION


               According to Ryan Chase, when he and his wife were walking their two dogs, two

of his neighbor’s dogs “escaped from their backyard on the other side of the street and attacked the

foursome.” During the encounter, Chase’s wife managed to get away with one of their dogs, but the

neighbor’s dogs continued to attack Chase and the remaining dog. Eventually, Chase was able to

separate his dog from the neighbor’s dogs and take his dog home. Once Chase returned home, he

grabbed a rope and a knife and then returned to the scene. Upon his return, he tied up one of the

neighbor’s dogs and then slashed the dog’s throat with the knife, which eventually resulted in the

dog’s death.

               After the police investigated the incident, Chase was arrested and charged with

cruelty to nonlivestock animals. See Tex. Penal Code § 42.092. At the conclusion of the trial, the

jury found Chase guilty, and the trial court sentenced him to imprisonment for 365 days but probated
the sentence and placed Chase under community supervision for 12 months. After the trial court

imposed its sentence, Chase filed this appeal. We will reverse the trial court’s judgment.


                                           DISCUSSION

               In one issue on appeal, Chase argues that the trial court erred by failing to include an

instruction in the jury charge that he requested regarding an alleged defense to the crime charged.

               As discussed above, Chase was convicted of cruelty to a nonlivestock animal. The

relevant portion of the governing statute explains that a person commits a crime if he “intentionally,

knowingly, or recklessly . . . kills . . . or causes serious bodily injury to an animal” “without the

owner’s effective consent.” Tex. Penal Code § 42.092(b)(2).1 Although the cruelty-to-animals

statute lists certain defenses and exemptions to culpability, id. § 42.092(d)-(f), the Health and Safety

Code also contains a provision governing violence against animals, Tex. Health & Safety Code

§ 822.013. In particular, under section 822.013, the legislature has expressly authorized an individual

to kill a dog “that is attacking, is about to attack, or has recently attacked livestock, domestic

animals, or fowls” if he witnesses “the attack” or if he is “the attacked animal’s owner” and “has

knowledge of the attack.” Id. § 822.013(a). During the trial, Chase asked the trial court to include

an instruction regarding section 822.013 in the jury charge, but the trial court denied that request.

               In supporting the trial court’s ruling, the State argues that Chase failed to preserve this

issue for appellate review because he failed to comply with the requirements listed in article 36.14

of the Code of Criminal Procedure. Specifically, the State asserts that Chase was required to but


       1
         Chase’s neighbor’s dog died following the injuries caused by Chase. In the charge, the
jury was instructed only regarding cruelty to animals by causing bodily injury to an animal. See
Tex. Penal Code § 42.092(b)(2).

                                                   2
failed to present to the trial court in writing any objection to the proposed charge or to dictate any

objection “to the court reporter in the presence of the court and the state’s counsel.” See Tex. Code

Crim. Proc. art. 36.14; see also id. art. 36.19 (requiring that “[a]ll objections to the charge and to the

refusal of special charges shall be made at the time of the trial”).2 Although the State acknowledges

that Chase asked for an instruction regarding section 822.013, the State insists that Chase did not

comply with the Code of Criminal Procedure because he did not submit any objections in writing

nor have them dictated into the record. See Posey v. State, 966 S.W.2d 57, 61 (Tex. Crim. App.

1998) (explaining that plain language of article 36.14 requires defendant to object to jury charge

before he may challenge on appeal errors and omissions in charge).3



        2
           In its brief, the State also argues that Chase failed to comply with the requirements of
article 36.15, which allows defendants to ask the trial court to give the jury special requested
instructions. Tex. Code Crim. Proc. art. 36.15. Although there are similarities between articles
36.14 and 36.15, the court of criminal appeals has determined that article 36.14 applies to objections
to a proposed jury charge and that article 36.15 applies to additional special instructions. Vasquez
v. State, 919 S.W.2d 433, 435 (Tex. Crim. App. 1996). In this case, Chase challenged the charge
that was given to the jury and urged that it was incomplete rather than request a new instruction. See
Loun v. State, 273 S.W.3d 406, 416-17 (Tex. App.—Texarkana 2008, no pet.) (distinguishing
between incomplete instructions and requests for new instructions). Accordingly, we believe that
article 36.14 governs this case.
        3
          On appeal, the State also urges that Chase failed to preserve the alleged error and that an
instruction would have been improper because he did not proffer any testimony that he was relying
on section 822.013 as a defense. More specifically, the State asserts that Chase failed to proffer any
testimony showing that he was aware of section 822.013 prior to the offense or that he was relying
on the provision when he acted.

        Although it is not entirely clear that Chase was required to present the type of evidence
suggested by the State in order to preserve his complaint, we note that evidence bearing upon these
considerations was introduced during trial. For example, one of the responding officers testified
that Chase informed the officer about the attack on his dog, that Chase admitted to killing one of
his neighbor’s dogs because of the attack, and that Chase thought that his actions were authorized
by law.

                                                    3
                To properly preserve an objection under article 36.14, a defendant “is merely required

to object and obtain an adverse ruling.” Loun v. State, 273 S.W.3d 406, 417 (Tex. App.—Texarkana

2008, no pet.); see also Tex. R. App. P. 33.1 (requiring timely objection stating legal basis for

objection). Provided that the objection is sufficient, the error is preserved “even though the written

requested charge was not introduced.” Loun, 273 S.W.3d at 417; see also Tex. Code Crim. Proc.

art. 36.14 (explaining that “in no event shall it be necessary for the defendant or his counsel to

present special requested charges to preserve or maintain any error assigned to the charge”). An

objection is sufficient if it drew the court’s attention to the issue raised on appeal. Starks v. State,

127 S.W.3d 127, 133 (Tex. App.—Houston [1st Dist.] 2003, pet. dism’d). Stated differently, an

objection preserves error “if the record indicates that the trial judge understood appellant’s request

to encompass the matters about which an appellant now complains.” Rue v. State, 288 S.W.3d 107,

110 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d).

                Prior to the trial court giving its charge to the jury, Chase made the following request:


        Judge, the defense would -- based on the earlier issues that we’ve raised with the
        Court, would ask that the specific provisions contained in -- in Section 822.013 of
        the Health and Safety Code, which we litigated earlier, be included in the Charge.
        That -- the defense’s position is that it’s the real issue in this case. It goes to the heart
        of the defense. And we would respectfully ask that it be included as an appropriate
        charge.


Moreover, in a hearing prior to trial, Chase extensively argued that section 822.013 applied under the

circumstances of this case, but the trial court granted the State’s motion in limine and prohibited Chase

from discussing section 822.013. In addition, during the trial, Chase asked the trial court to revisit

its ruling prohibiting him from discussing section 822.013, but the trial court denied that request.

                                                     4
               In light of the preceding, we must conclude that Chase’s objection was sufficient

and that he preserved the issue for appeal.

               In supporting the trial court’s judgment on the merits, the State contends that nothing

in the language of section 822.013 indicates that it is a defense to the crime of cruelty to animals or

that the provision even applies to criminal, rather than civil, cases. See Tex. Health & Safety Code

§ 822.013; see also Tex. Penal Code § 2.04 (explaining that affirmative defenses in Code are

identified by phrase “[i]t is an affirmative defense to prosecution”).

               For the reasons that follow, we disagree with the State. Our sister court was faced

with a similar situation involving the predecessor to section 822.013. See Volosen v. State, 192

S.W.3d 597 (Tex. App.—Fort Worth 2006) (“Volosen I”), rev’d, 227 S.W.3d 77 (Tex. Crim. App.

2007) (“Volosen II”). In Volosen I, Volosen killed his neighbor’s dog after the neighbor’s dog got

into his chicken pen. Id. at 600. As a result, Volosen was charged with cruelty to animals. Id. at

599. During the trial, Volosen contended that the predecessor to section 822.013 authorized his

actions, but the State argued that the predecessor statute only applied to civil lawsuits. Volosen II,

227 S.W.3d at 79. Similar to section 822.013, its predecessor authorized an individual to kill a dog

that attacked or was about to attack “domestic animals or fowls” if the individual witnessed or had

knowledge of the attack. Act of May 16, 1989, 71st Leg., R.S., ch. 678, § 1, sec. 822.033, 1989 Tex.

Gen. Laws 2230, 3142. In assessing the interplay between this statute and the cruelty-to-animals

provision, the court determined that a person authorized to kill a dog under the predecessor statute

cannot be guilty of the crime of knowingly or intentionally killing or causing serious bodily injury

to an animal owned by another. Volosen I, 192 S.W.3d at 600. In light of this analysis, the court



                                                  5
determined that Volosen’s conviction was not supported by legally sufficient evidence and rendered

a judgment of acquittal. Id. at 603-04.

               The decision in Volosen I was appealed and reversed, but the court of criminal

appeals did not overrule the appellate court’s determination that the predecessor statute can excuse

criminal liability under the cruelty-to-animals statute. In fact, the court of criminal appeals referred

to the predecessor statute as a defense to a cruelty-to-animals charge. Volosen II, 227 S.W.3d at 82.

Moreover, the court of criminal appeals reversed the appellate court’s judgment because Volosen

“failed to meet his burden of production to show the applicability of his claimed defense.” Id. In

particular, the court of criminal appeals was referring to the State’s allegation that the predecessor

statute was contained within a subchapter “that applied only to” counties that adopted the subchapter

by a majority vote of its residents. Id. at 79-80. Due to the fact that the predecessor statute was

located in a subchapter of limited applicability, the court determined that Volosen failed to show that

the statute had been adopted in the county in which the alleged crime occurred. Id. at 82.

               In light of the fact that the current Health and Safety Code provision is a statute of

general applicability, see Tex. Health & Safety Code § 822.013, and in light of the analysis in both

Volosen I and Volosen II, we must conclude that section 822.013 of the Health and Safety Code can,

in circumstances like those present here, serve as defense to a criminal charge of cruelty to animals.4




       4
          We note that although we conclude that section 822.013 of the Health and Safety Code
may serve to excuse criminal culpability for an allegation that an individual killed or caused serious
bodily injury to an animal “without the owner’s effective consent,” see Tex. Penal Code § 42.092(b)(2),
we express no comment on whether section 822.013 can excuse criminal liability for the other
prohibited conduct identified in the cruelty-to-animals provision, see id. § 42.092(b)(1), (b)(3)-(9)
(criminalizing, among other things, torturing, abandoning, and overworking animals).

                                                   6
               Because Chase objected to the trial court’s failure to provide an instruction regarding

section 822.013, the case must be reversed if the record shows that he suffered some harm. Reeves

v. State, No. PD-1711-12, 2013 Tex. Crim. App. LEXIS 1317, at *8 (Tex. Crim. App. Sept. 18,

2013); Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985). In ascertaining whether

there is harm, appellate courts “focus on the evidence and record to determine the likelihood that the

jury” would have concluded that the defense applied had it been given the instruction. See Wooten

v. State, 400 S.W.3d 601, 606 (Tex. Crim. App. 2013). In performing this review, appellate courts

evaluate the harm “in light of the complete jury charge, the arguments of counsel, the entirety of the

evidence, . . . and any other relevant factors revealed by the record as a whole.” Id.

               The evidence presented during trial from the various witnesses demonstrated that

Chase decided to kill his neighbor’s dog after it attacked his dog. Regarding the attack, Chase

testified that his neighbor’s dog grabbed one of his dogs by the neck and shook the dog back and

forth for several minutes. In fact, Chase explained that despite repeatedly punching the attacking

dog, he was only able to separate the dogs after another neighbor intervened and hit the dog on the

head. Moreover, although there was some disagreement regarding whether the injuries Chase’s dog

sustained were from the attack by the neighbor’s dog or from a previous attack a few weeks earlier,

Chase and an investigating police officer both testified that Chase’s dog had been injured during the

attack by the neighbor’s dog. Furthermore, Chase emphasized throughout his testimony and in his

closing argument that he decided to kill the attacking dog after observing it attack his dog.

               Finally, as evidenced by the issue on appeal, the jury charge made no mention of

section 822.013. Moreover, nothing in the remainder of the charge provided that Chase’s conduct



                                                  7
might have been authorized or that his criminal conduct might have been excused for any reason.

Instead, the charge just provided the elements of the alleged offense and instructed the jury that they

should find him guilty if those elements were met.

               In light of the preceding, we must conclude that Chase suffered some harm by the trial

court’s failure to include an instruction regarding the defense that the jury could potentially have

found to apply to Chase’s conduct under section 822.013. Accordingly, we sustain Chase’s issue

on appeal.5


                                          CONCLUSION

               Having sustained Chase’s issue on appeal, we reverse the trial court’s judgment of

conviction and remand the case for further proceedings consistent with this opinion.



                                               __________________________________________

                                               David Puryear, Justice

Before Justices Puryear, Pemberton, and Rose

Reversed and Remanded

Filed: November 26, 2013

Publish




       5
          Although we need not address the potential problem given our resolution of this appeal,
we do note that seeking to punish an individual for actions that are expressly authorized by the
legislature (rather than simply excused) might present some due-process concerns. See Pena v.
State, 191 S.W.3d 133, 136-38 (Tex. Crim. App. 2006) (discussing need to avoid “adjudication of
constitutional issues when at all possible”).

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