AFFIRMED AS MODIFIED and Opinion Filed November 14, 2018




                                          S    In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                       No. 05-18-00361-CR

                       STANYELLE M. MILES-MCCLOUD, Appellant
                                        V.
                            THE STATE OF TEXAS, Appellee

                            On Appeal from the 187th District Court
                                     Bexar County, Texas
                             Trial Court Cause No. 2017CR6735A

                              MEMORANDUM OPINION
                         Before Justices Bridges, Francis, and Lang-Miers
                                    Opinion by Justice Francis
       A jury convicted Stanyelle M. Miles-McCloud of the felony offense of attack by dog after

her pit bull mauled her 72-year-old neighbor. The jury assessed punishment at ten years in prison

and a $10,000 fine and recommended the sentence be suspended. The trial court placed appellant

on probation for ten years. In addition, appellant was ordered to pay $239,025.75 in restitution.

In a single issue, appellant contends the evidence was legally insufficient to support her conviction.

We affirm.

       In October 2016, appellant and her husband, Alphonso, moved into the house next door to

Doris Mixon Smith. The McClouds had three dogs, including a pit bull. Because the pit bull had

gotten loose on previous occasions, appellant’s husband put a lock on the outside of the gate to

prevent the dog from releasing the latch and escaping.
       Smith enjoyed yard work and mowed her lawn twice a week. Smith said when she mowed

her backyard, the McClouds’ dogs would run along the fence line and bark. She described them

as “angry dogs.” On March 6, 2017, Smith said she was mowing her backyard when the pit bull

pushed open the gate. Smith noticed the exterior lock was missing. Smith immediately pushed

her lawn mower against the fence to shut the gate for her safety; she said she did not do it to

antagonize the dog. Once the gate was closed, she put the lawn mower in her garage and went

next door to notify the McClouds. Neither appellant nor her husband was home, but a person she

believed to be appellant’s adult niece came to the door. Smith told her she needed to either put the

dog inside or put the lock on the gate, but the niece responded she was scared of the dog.

       About three hours later, Smith went outside in her front yard to do some gardening. She

was bending over a planting pot when she saw appellant’s pit bull coming at her with its mouth

open. Smith backed up and began yelling for help as the dog’s mouth clamped down on her arm.

Smith fought the dog and tried to get to the front door of her house but was unable to get inside.

Appellant’s ten-year-old son came outside and began hitting the dog with a PVC pipe, but the dog

continued its attack. A recording of a portion of the attack, made by Smith’s security system, was

admitted into evidence.

       Two calls were made to 911. When San Antonio Police Officer Matthew Vizcarrondo

arrived five minutes later, Smith was lying on the ground with a “massive pit bull” hovering over

her and chewing on her arm. Three men were watching but were too afraid to intervene.

Vizcarrondo shot the dog three times to stop the attack. EMS arrived at the same time and

immediately transported Smith to the hospital with life-threatening injuries. As a result of the

attack, Smith lost her left arm and sustained severe injuries to her face.

       Smith was hospitalized for sixteen days, including seven days in a rehabilitation facility.

A few weeks after she returned home, she noticed the McClouds had two new dogs, a Rhodesian

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Ridgeback and another pit bull. Animal control services removed both dogs. Other evidence

showed the pit bull that attacked Smith previously bit two other people, the McCloud’s niece and

a cable man.

       The McClouds were tried together before a jury, which convicted them both of the felony

offense of attack by dog. This appeal involves only Stanyelle Miles-McCloud. In her sole issue,

she contends the evidence is legally insufficient to support her conviction.

       In reviewing the sufficiency of the evidence, we examine the evidence in the light most

favorable to the verdict to determine whether any rational trier of fact could have found the

essential elements beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979).

This standard accounts for the factfinder’s duty to resolve conflicts in the testimony, to weigh the

evidence, and to draw reasonable inferences from basic to ultimate facts. Clayton v. State, 235

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

       As alleged in this case, a person commits an offense if she is the owner of a dog and, with

criminal negligence, fails to secure the dog and the dog makes an unprovoked attack on another

person that occurs at a location other than the owner’s real property and the attack causes serious

bodily injury or death. See TEX. HEALTH & SAFETY CODE ANN. § 822.005(a)(1) (West 2017).

       Appellant challenges only whether the State proved the attack was unprovoked. She

suggests the dog was provoked by Smith running a lawn mower next to the dog’s "confined area”

over a period of five months and then, on the day of the attack, “jamming” the lawn mower, while

it was still running, against the gate while she informed the neighbor the gate was not locked. She

argues that it was not reasonable for the jury to “speculate this event did not provoke the dog.”

       Contrary to appellant’s assertion, there was no evidence presented that Smith left the lawn

mower running against the fence while she went to report the gate was unlocked. Appellant directs

us to Smith’s deposition in a civil lawsuit as proof, but the deposition was not offered into

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evidence.1 The only evidence at trial came from Smith, who said she put the lawn mower in the

garage before she went next door. She explained the lawn mower was self-propelled, meaning it

stopped as soon as she released the handle. And even if there had been evidence that Smith left

the lawn mower running against the gate, that event occurred at least three hours before the dog

attacked her.

           Smith testified she did nothing that day to provoke the dog, saying she had “sense enough

not to do anything to a dog that’s going to result” in her being harmed. She was outside in her

own yard gardening when the dog escaped from the house or backyard and attacked her while she

was bent over a planting pot. In addition to her testimony, there was other evidence the dog

previously showed aggressive tendencies, having bitten two people in the months before this

occurred.

           We conclude the jury could determine from this evidence beyond a reasonable doubt that

Smith did not provoke the pit bull before it attacked her. We overrule the sole issue.

           Although neither party has raised the issue, our review of the record reveals an error in the

judgment. Specifically, the judgment states appellant was convicted of “DANGEROUS DOG

ATTACK-SBI” under section 822.044 of the Texas Health and Safety Code. Section 822.044

involves a misdemeanor dog attack. The indictment in this case alleged a felony dog attack under

section 822.005, the jury charge tracked the elements of section 822.005, and the jury convicted

appellant of that offense. See TEX. HEALTH & SAFETY CODE ANN. § 822.005 (West 2017) (attack

by dog).

           We have authority to correct a judgment below to make the record “speak the truth” when

we have the necessary data and information to do so. Asberry v. State, 813 S.W.2d 526, 529 (Tex.



      1
        The deposition was marked as State’s Exhibit 54 during Smith’s testimony, but it was never offered or admitted as evidence. Although the
court reporter included it in the record on appeal, we do not consider it as part of the sufficiency analysis. And even if we did, it does not support
appellant’s assertion. Smith testified at her deposition that she did not leave the mower running against the fence.

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App.—Dallas 1991, pet. ref’d). Accordingly, we modify the judgment to reflect appellant was

convicted of attack by dog under section 822.005 of the health and safety code.

       We affirm the trial court’s judgment as modified.




                                                 /Molly Francis/
                                                 MOLLY FRANCIS
                                                 JUSTICE

Do Not Publish
TEX. R. APP. P. 47.2(b)
180361F.U05




                                              –5–
                                        S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

 STANYELLE M. MILES-MCCLOUD,                        On Appeal from the 187th District Court,
 Appellant                                          Bexar County, Texas
                                                    Trial Court Cause No. 2017CR6735A.
 No. 05-18-00361-CR         V.                      Opinion delivered by Justice Francis;
                                                    Justices Bridges and Lang-Miers
 THE STATE OF TEXAS, Appellee                       participating.

        Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED
as follows:

       To reflect the “Offense for Which Defendant Convicted” as Attack by Dog and
       the “Statute for Offense” as 822.005 Texas Health and Safety Code.

As MODIFIED, the judgment is AFFIRMED.


Judgment entered November 14, 2018.




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