                                NUMBER 13-17-00222-CR

                                 COURT OF APPEALS

                      THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI - EDINBURG


FREDERICK JACOB EVANS,                                                                Appellant,

                                                     v.

THE STATE OF TEXAS,                                                                   Appellee.


                 On appeal from the County Court at Law No. 3
                        of Williamson County, Texas.


                          MEMORANDUM OPINION1

              Before Justices Contreras, Longoria, and Hinojosa
                  Memorandum Opinion by Justice Hinojosa

       Appellant Frederick Jacob Evans appeals his conviction for cruelty to a non-

livestock animal, a class-A misdemeanor. See TEX. PENAL CODE ANN. § 42.092(b)(3), (c)



        1 Pursuant to a docket-equalization order issued by the Supreme Court of Texas, the appeal has

been transferred to this Court from the Third Court of Appeals in Austin, Texas. See TEX. GOV’T CODE
ANN. § 73.001 (West, Westlaw through 2017 1st C.S.).
(West, Westlaw through 2017 1st C.S.). A jury returned a guilty verdict. The trial court

assessed punishment at 180 days’ confinement in the county jail and a $200 fine,

suspended imposition of the sentence, and placed appellant on community supervision

for a period of fifteen months. By two issues, appellant argues that (1) there is legally

insufficient evidence that appellant committed the offense with a culpable mental state,

and (2) the written judgment does not comport with the trial court’s oral pronouncement

of appellant’s sentence. We affirm as modified.

                                     I.     BACKGROUND

        Appellant was charged by information with “intentionally, knowingly, or recklessly

fail[ing] unreasonably to provide necessary care” for his dog “Xena, a red Australian

Kelpie canine mix . . . by failing to take [Xena] to the veterinarian after it suffered a serious

injury[.]”   See id.   Appellant leased a townhouse unit in Williamson County, Texas,

where he resided with his wife. Appellant’s neighbor Jennifer Hsu testified that she

noticed that appellant’s dog Xena was limping in late March of 2015. Hsu saw Xena on

appellant’s balcony and took photographs of the dog to document the injury. Toward the

end of April, Hsu emailed the manager of the rental complex, expressing concern for

Xena’s ongoing injury.      Around that same time period, Hsu heard the sound of a

screaming dog coming from appellant’s townhouse. Hsu testified that Xena was unable

to put her full weight on her hind leg. The trial court admitted Hsu’s photographs and her

email correspondence into evidence.

        Echo Pinson, the assistant manager at the complex, testified that she was in the




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process of evicting appellant for non-payment of rent. On May 12, 2015, Pinson entered

appellant’s townhouse through the garage to see if the residence was abandoned. Upon

entry, Pinson observed Xena tied to a water heater in the garage. Pinson described the

garage as hot and humid, and she observed feces and blood near Xena. Pinson took

photographs of Xena, which were admitted into evidence. Pinson observed an injury to

Xena’s right hind leg. She described the injury as follows: “It was a bone that was

protruding, not through the skin, but just visibly not where it should have been.” Pinson

went inside the townhouse to retrieve food and water for Xena. Pinson testified that it

seemed like Xena wanted to sit down but was unable to do so. She called the non-

emergency number to report the situation to animal control. While she was on the

phone, appellant arrived at the residence and took Xena from Pinson. Appellant then

left with the dog in his vehicle.

       Rebecca Hancock, an officer with the Austin Police Department, testified that she

was assigned to conduct a welfare check on Xena. Officer Hancock reported to the

residence and spoke to Pinson, but she was unable to make contact with appellant. She

took pictures of the area where Xena was tied up and noticed blood stains and feces

nearby. The photographs were admitted into evidence. Officer Hancock later reached

appellant by phone. During their conversation, appellant stated that he had not taken

Xena to a veterinarian but that he had researched the costs of surgeries.

       Appellant later surrendered Xena to the Austin Animal Center where veterinarian

Kathy Lund examined the dog. Dr. Lund testified that she examined Xena on May 18,




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2015. She stated that Xena exhibited grade three lameness on a scale of one to four

indicating increasing severity. This diagnosis meant that Xena was not using her injured

leg most of the time. Dr. Lund gave Xena an opioid for pain. She explained that Xena’s

right rear leg was much smaller than her left due to muscle atrophy from nonuse. The

trial court admitted photographs taken by Dr. Lund which showed “an obvious protrusion”

of the bone in her right leg. The trial court then admitted radiographs of Xena’s injury

which Dr. Lund described as indicating a fractured femur. Dr. Lund explained that the

bone in the area of the injury was “trying to remodel and fix itself,” an occurrence which

takes weeks following an injury. Xena required surgery to repair the fracture, but her

joint could not be preserved because of the delay in treatment. Dr. Lund stated that, at

the time of surgery, the injury was six to eight weeks old, which indicates that the injury

occurred in late March of 2015. Dr. Lund believed that if Xena had not received the

surgery, she would have been permanently lame. She believed that the injury was so

obvious that the average person would have known that Xena needed veterinary care.

      Appellant testified that he adopted Xena from an animal shelter in late February of

2015 as a gift for his wife. On the day Pinson discovered Xena in the garage, appellant

claimed that he was only gone for forty minutes. Appellant stated that Xena began

limping after playing with his other dog. He also stated that Xena fell down the stairs of

his residence in early May of 2015. Appellant estimated that this occurred three to four

days before Pinson discovered Xena in the garage. Appellant admitted that he did not

seek veterinary care for Xena. He noticed Xena’s bone protruding, but he stated he was




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surprised when he heard Xena suffered a fractured femur. Nevertheless, appellant had

searched online for possible reasons for Xena’s limp and treatment options. Appellant

stated that he brought Xena to the Austin Animal Center because he could not continue

to care for her due to his work schedule and financial situation.

       The jury returned a guilty verdict. This appeal followed.

                            II. SUFFICIENCY OF THE EVIDENCE

       By his first issue, appellant argues that the evidence is insufficient to support his

conviction “because there is no evidence that [he] was even reckless about the injuries

to [Xena].”

A.     Standard of Review and Applicable Law

       “The standard for determining whether the evidence is legally sufficient to support

a conviction is ‘whether, after viewing the evidence in the light most favorable to the

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

beyond a reasonable doubt.’” Johnson v. State, 364 S.W.3d 292, 293–94 (Tex. Crim.

App. 2012) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)) (emphasis in

Jackson); see Brooks v. State, 323 S.W.3d 893, 898–99 (Tex. Crim. App. 2010) (plurality

op.). The fact-finder is the exclusive judge of the credibility of witnesses and of the

weight to be given to their testimony. Brooks, 323 S.W.3d at 899; Lancon v. State, 253

S.W.3d 699, 707 (Tex. Crim. App. 2008). Reconciliation of conflicts in the evidence is

within the fact-finder’s exclusive province. Wyatt v. State, 23 S.W.3d 18, 30 (Tex. Crim.

App. 2000). We resolve any inconsistencies in the testimony in favor of the verdict.




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Bynum v. State, 767 S.W.2d 769, 776 (Tex. Crim. App. 1989).

       We measure the sufficiency of the evidence by the elements of the offense as

defined by a hypothetically correct jury charge. Cada v. State, 334 S.W.3d 766, 773

(Tex. Crim. App. 2011) (citing Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App.

1997)). Such a charge is one that accurately sets out the law, is authorized by the

indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily

restrict the State’s theories of liability, and adequately describes the particular offense for

which the defendant was tried. Id. To establish cruelty to non-livestock animals, the

State must prove that (1) appellant (2) intentionally, knowingly, or recklessly (3) failed

unreasonably to provide necessary care (4) for an animal in appellant’s custody. TEX.

PENAL CODE ANN. § 42.092(b)(3).         “Necessary care” is defined as the care that is

“required to maintain the animal in a state of good health.” Id. § 42.092(a)(7).

       Both appellant and the State focus their arguments on whether there was sufficient

evidence that appellant acted with a reckless mental state. The Texas Penal Code

provides that:

       A person acts recklessly, or is reckless, with respect to circumstances
       surrounding his conduct or the result of his conduct when he is aware of but
       consciously disregards a substantial and unjustifiable risk that the
       circumstances exist or the result will occur. The risk must be of such a
       nature and degree that its disregard constitutes a gross deviation from the
       standard of care that an ordinary person would exercise under all the
       circumstances as viewed from the actor’s standpoint.

Id. § 6.03(c) (West, Westlaw through 2017 1st C.S.). In addressing recklessness, we

must examine the defendant’s conduct to determine whether:




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      (1) the alleged act or omission, viewed objectively at the time of its
      commission, created a “substantial and unjustifiable” risk of the type of harm
      that occurred; (2) that risk was of such a magnitude that disregard of it
      constituted a gross deviation from the standard of care that a reasonable
      person would have exercised in the same situation . . . [;] (3) the defendant
      was consciously aware of that “substantial and unjustifiable” risk at the time
      of the conduct; and (4) the defendant consciously disregarded that risk.

Williams v. State, 235 S.W.3d 742, 755–56 (Tex. Crim. App. 2007). A person’s culpable

mental state may be inferred from his acts, words, and conduct, and the surrounding

circumstances. Hart v. State, 89 S.W.3d 61, 64 (Tex. Crim. App. 2002); Moore v. State,

969 S.W.2d 4, 10 (Tex. Crim. App. 1998) (“Mental culpability is of such a nature that it

generally must be inferred from the circumstances under which a prohibited act or

omission occurs.”). Further, circumstantial evidence is as probative as direct evidence

in establishing the guilt of an actor. Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim.

App. 2004); see Laster v. State, 275 S.W.3d 512, 524 (Tex. Crim. App. 2009) (“[O]ne’s

acts are generally reliable circumstantial evidence of one’s intent.”). Accordingly, a jury

may infer a culpable mental state from the circumstances surrounding the offense of

cruelty to animals, including the animal’s physical condition.     Martinez v. State, 48

S.W.3d 273, 276 (Tex. App.—San Antonio 2001, pet. ref’d).

B.    Analysis

      Appellant argues that the evidence establishes that he “only noticed lameness but

did not know that the injury required immediate medical care.” Therefore, appellant

maintains that the evidence “at most shows only that he acted with criminal negligence.”

We disagree with appellant’s characterization of the record.        Appellant’s argument




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ignores the obvious and severe nature of the injury as established by multiple witnesses.

Both Pinson and Dr. Lund described seeing the bone in Xena’s hind leg protruding at an

awkward angle. As a result of the injury, the muscle in the leg was significantly atrophied

due to nonuse. Appellant himself admitted that he was aware of the obvious injury and

that he noticed Xena limping for weeks. Xena suffered from a high level of pain because

of the fractured leg, such that she was immediately given a powerful opioid once she

received veterinary attention. The obvious nature of the injury constitutes evidence from

which the jury could infer recklessness. 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.”). Appellant also stated that that he conducted online research concerning

Xena’s injury, including possible treatment and surgery options.        Further, Dr. Lund

estimated that the fracture was six to eight weeks old at the time appellant surrendered

Xena to the Austin Animal Center. The jury could infer from this evidence that appellant

was consciously aware of a substantial risk associated with failing to seek veterinary care

but consciously disregarded that risk.   See Williams, 235 S.W.3d at 755–56. Further,

having examined appellant’s conduct, we conclude that appellant’s disregard of the

associated risk constituted a gross deviation from the standard of care a reasonable

person would have exercised in the same situation. See id.

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

rational jury could have found that appellant acted recklessly in failing unreasonably to




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provide necessary care for Xena. See Johnson, 364 S.W.3d at 293–94. We overrule

appellant’s first issue.

                                   III.   MODIFICATION

       By his second issue, appellant argues that the trial court’s written judgment should

be modified because it does not conform to the trial court’s oral pronouncement of

sentence. The State joins appellant on this issue.

       Courts are required to pronounce sentence orally in the defendant’s presence.

TEX. CODE CRIM. PROC. ANN. art. 42.03, § 1(a) (West, Westlaw through 2017 1st C.S.);

Taylor v. State, 131 S.W.3d 497, 500 (Tex. Crim. App. 2004). The judgment, including

the sentence assessed, is merely a written manifestation of that oral pronouncement.

See TEX. CODE CRIM. PROC. ANN. art. 42.01, § 1 (West, Westlaw through 2017 1st C.S.);

Coffey v. State, 979 S.W.2d 326, 328 (Tex. Crim. App. 1998). When there is a conflict

between the oral pronouncement of sentence in open court and the sentence set out in

the written judgment, the oral pronouncement controls. Thompson v. State, 108 S.W.3d

287, 290 (Tex. Crim. App. 2003). In such cases, the solution is to reform the written

judgment to conform to the sentence that was orally pronounced. Id.; see TEX. R. APP.

P. 43.2(b).

       The trial court orally sentenced appellant to 180 days’ confinement, suspended for

fifteen months, and a $200 fine.          The written judgment differs from the oral

pronouncement in that it sets appellant’s sentence at 365 days’ confinement and

assesses a $4,000 fine. We agree that the written judgment must be modified to comport




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with the trial court’s oral pronouncement of sentence. See Thompson, 108 S.W.3d at

290. We sustain appellant’s second issue.

                                    IV.    CONCLUSION

       We modify the trial court’s judgment to reflect a sentence of 180 days’ confinement

in the county jail, probated for fifteen months, and a $200 fine. We affirm the trial court’s

judgment as modified.

                                                                LETICIA HINOJOSA
                                                                Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
14th day of June, 2018.




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