Reverse and Render in part, Modify in part, and Remand for new punishment and
Opinion Filed July 22, 2015




                                         S   In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                      No. 05-14-00215-CR

                                BRIAN MARTIN, Appellant
                                          V.
                              THE STATE OF TEXAS, Appellee

                       On Appeal from the County Court At Law No. 1
                                  Kaufman County, Texas
                             Trial Court Cause No. 31995CC

                             MEMORANDUM OPINION
                       Before Justices Francis, Lang-Miers, and Whitehill
                                   Opinion by Justice Francis
       Brian Martin appeals his convictions for engaging in organized criminal activity by

causing a dog to fight another dog and using real estate for dog fighting. After finding appellant

guilty, the jury assessed punishment, enhanced by a prior felony conviction, at three and five

years respectively, and a $10,000 fine for each offense. In thirteen issues, appellant contends the

evidence is legally insufficient to support his convictions, the trial court erred by denying his

motion to quash and by giving an incorrect parole instruction to the jury, and his convictions on

both counts violate his right against double jeopardy under the United States Constitution. We

reverse the trial court’s judgment in both counts to the extent appellant was found guilty of

engaging in organized criminal activity and render judgment he is not guilty of engaging in

organized criminal activity in counts one and two. We modify the trial court’s judgments to
reflect appellant was found guilty of the lesser included offenses of dog fighting by causing a

dog to fight another dog and using his property for dog fighting. We remand this case to the trial

court for a new punishment hearing as to each offense.

       In his first six issues, appellant challenges the sufficiency of the evidence to support his

convictions. In issues one and two, appellant claims no evidence shows he intentionally or

knowingly caused a dog fight or used or permitted his property to be used for dog fighting, and

in issues three and four, he contends the evidence is insufficient to show one particular dog

fought another or did so on certain real estate. In issues five and six, he argues no evidence

shows he intended to establish, maintain, or participate in a group of three or more to work

together in a continuing course of criminal activity; the State concedes issues five and six but

maintains the evidence is sufficient to support the lesser included offenses of dog fighting by

causing one dog to fight another and by permitting his property to be used for dog fighting.

       When reviewing a challenge to 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). The jury, as factfinder, resolves conflicts in the testimony, weighs the evidence, and

draws reasonable inferences from basic to ultimate facts. Clayton v. State, 235 S.W.3d 772, 778

(Tex. Crim. App. 2007). Thus, when analyzing the sufficiency of the evidence, 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.” Id. For purposes of

proving guilt beyond a reasonable doubt, direct and circumstantial evidence are treated equally.

Id.

       As set out in the court’s charge, a person commits the offense of engaging in organized

criminal activity if, “with the intent to establish, maintain, or participate in a combination or in

                                                –2–
the profits of a combination or as a member of a criminal street gang, the person commits or

conspires to commit” the offense of dog fighting. TEX. PENAL CODE ANN. § 71.02(a)(15) (West

Supp. 2014). Dog fighting includes (1) intentionally or knowingly causing a dog to fight with

another dog or (2) using real estate for dog fighting. Id. § 42.10(a)(1), (3) (West 2011). “Dog

fighting” is defined as “any situation in which one dog attacks or fights with another dog.” Id. §

42.10(b)(1). Under each organized criminal activity count, the trial court also instructed the jury

on each of the lesser included offenses of dog fighting.

        In the dog fighting counts, appellant was first charged with intentionally or knowingly

causing one dog to fight with another dog. In the second, he was charged with intentionally or

knowingly using real estate for dog fighting. To support a conviction for the first offense, the

State was required to show, either by direct or circumstantial evidence, that appellant caused one

dog to attack or fight another dog. See id. § 42.10(a)(1), (b)(1). In contrast, to convict appellant

of the second offense, the State was required to prove only that appellant allowed a dog fight on

his property; the second offense did not require a showing that appellant caused a dog fight. See

id. § 42.10(a)(3).

        At trial, Corporal James Lyons of the Terrell Police Department said he responded to a

call about dog fighting. He drove to appellant’s property at 507 West Newton where he saw a

group of middle-aged men standing near a partially built structure. Lyons heard a “commotion,

barking and snarling of dogs, you know, the yelling of people.” He stopped and got out of his

patrol car. As he approached the group, the men began to disburse, and at least one man ran off

into the bushes. Appellant walked up to Lyons and asked why he was there. When Lyons said

he was responding to a call about dog fighting, appellant said a couple of his dogs got off their

chains and started fighting. He later told Lyons he was trying to breed two of the dogs and they

got into a fight.

                                                –3–
       Lyons noticed several of the men had blood on their hands, pants, and shoes; one or two

of them were trying to wash their hands off in a large drum container full of water. There were

eleven pit bull dogs visible in the area; several had fresh wounds that were “extensive,” and one

or two appeared to be “bait dogs.” Lyons noticed most of the dogs were heavily chained while

others were tied up with nylon rope. A lot of blood was found in a central area, near the partially

built structure, but no puddles of blood were near each chained dog. The amount of blood and its

location led Lyons to believe a dog fight had occurred and that it was not an accident, as

appellant claimed. Lyons also found bloody tow chains and a bloody stick, implements of dog

fighting. He knew tow chains were used in dog fighting for “exercising the dogs, or hanging

them up” and the “bloody stick is used to break apart their jaws when one dog latches onto

another one.” Appellant initially said all the dogs were his but later admitted one of the female

dogs, a brown pit bull, belonged to Antwine Thomas, who was at the scene when Lyons arrived.

Lyons said based on his knowledge of animals, the recent injuries to the female dog were not

consistent with breeding because her injuries were to the face and legs and not to the neck and

back. He also told the jury the brown female pit bull did not appear to be in heat. Lyons called

for backup, including Animal Control, and notified the chief inspector for the SPCA. He also

called for a detective, a forensic detective, and the forensic unit to come to the scene.

       Cecila Wuichmann, the Terrell Animal Control officer, responded to Lyon’s call. One of

her primary concerns was to determine whether any of the dogs on the property needed medical

attention. Most of the dogs were in bad shape, and several had open lacerations, bleeding

wounds, and fractures. She saw no dog food in the vicinity and although there were buckets with

water, the water was dirty or bloody. She did not believe this was a situation where two dogs

had been breeding because four dogs had open wounds. She believed it was a dog fight. Erica

Angel, a forensic investigator, took over one hundred photographs of the scene, including

                                                 –4–
photographs of the dogs and their injuries. She also collected the chains, collars, bloody stick, a

large fishing scale hanging in a tree, and other items at the scene. Officer David Bridges said the

“condition of the property itself based on how the dogs were housed, and how they were kept on

the property” was not consistent with somebody who was a pet owner; rather, it “looked like the

dogs were kept there for a purpose.” According to Bridges, that purpose was dog fighting.

       Pamela Ashley is a veterinarian with the SPCA of Texas. She was called to appellant’s

property to assess the extent of the dogs’ injuries. A male blood-covered dog lying by a fence

had the most serious injuries and was examined first. Although the decision was made to

euthanize the dog at the scene due to its injuries, it bit Ashley and had to be transported to the

SPCA to be checked for rabies prior to euthanization. Ashley saw at least three other dogs with

fresh wounds. After she completed her initial assessment of the dogs, they were loaded into vans

and taken to the SPCA facility in Dallas where they were vaccinated, examined, and

photographed.    One brown female had blood dripping from its muzzle at the time it was

photographed.

       According to Ashley, the entire group showed a lack of basic health maintenance. She

noted no dog food, dog bowls, or clean water had been found on appellant’s property. All the

dogs she examined were underweight, yet very muscular. Each dog had parasites, including

round worms and hook worms. Four tested positive for heartworms. Ashley concluded, based

on the scars, injuries, and lesions, that all had been “in a fight with a dog at some point and time

except, for the younger one.” One male (not the one that bit Ashley at the scene) and two

females had recent injuries on the face, neck, and legs that Ashley described as significant

wounds, like wounds a dog would sustain in a dog fight, but not during breeding. Ashley

classified one of the dogs with fresh wounds as a bait dog.




                                                –5–
       Art Munos is a special investigator with the animal cruelty unit. He was called to

appellant’s property to assist in the investigation. As someone familiar with dog fighting, he

explained to the jury how a person would get his dog ready for fighting as well as the process of

dog fighting.   In Munos’s opinion, the large chains at appellant’s property were used to

strengthen each dog’s neck. The dogs were tethered just outside of each other’s reach to increase

antagonism and heighten the anticipation of the fight. Munos explained that the purpose of a bait

dog, generally an older or injured dog, was to spar with the fighting dog to warm it up without

harming it. He described the various “tools” found on appellant’s property as typical dog

fighting tools, including the bloody stick used to break up a fight, the heavy chains for

strengthening a dog’s musculature, and a hook scale for weighing dogs. The scale is hung from

a tree; the dog is then hoisted and hung by its collar to get its fighting weight. Several buckets of

bloody water and soap were also found.

       According to Munos, if the people fighting the dogs follow “Cajun” rules, a person is

allowed to wash his opponent’s dog to ensure there are no toxins, poisons, or other bad-tasting

substances on the dog’s coat that would prevent the dog from being bitten by its opponent. The

soap and buckets of water were like those used to wash off foul-tasting substances. Munos also

said it was unlikely the injuries on appellant’s dogs were caused by breeding because most

breeders use a “rape stand” to protect the female from injury during breeding. Munos told the

jury the dogs on appellant’s property were from the Nigerino bloodline, a “high bloodline for

fighting. And, it’s a very popular bloodline in Texas.” Although most of the dogs belonged to

appellant, one of the female dogs, a brown pit bull with a laceration on its paw and bite wounds

to the face, belonged to Thomas. Finally, Munos reviewed certain documents appellant filed

with the trial court and noted several phrases, such as “yard accident” and “shot the dogs up,”




                                                –6–
that indicated appellant was familiar with dog fighting and its terminology. Munos believed

appellant was fighting his dogs and had done so that day.

       Appellant contends, and the State concedes, the evidence is insufficient to support his

conviction for engaging in organized criminal activity because no evidence shows he committed

or conspired to commit the offense of dog fighting “with the intent to establish, maintain, or

participate in a combination or in the profits of a combination or as a member of a criminal street

gang.” After reviewing the record, including the testimony of all witnesses, we agree. We

sustain appellant’s fifth and sixth issues. In light of our disposition of these two issues, we need

not address appellant’s ninth, tenth, and thirteenth issues which further challenge his convictions

for engaging in organized criminal activity.

       Although appellant also contends the evidence does not support his convictions for the

lesser included offenses of dog fighting, we do not agree. The evidence shows Lyons responded

to a call about dog fighting and found activity consistent with a dog fight. The group of men

present had blood spattered clothes and shoes, and several were washing blood off their hands.

Most of the eleven pit bull dogs were tethered with heavy tow chains although several were tied

up with nylon rope. The ground near the partially built structure was bloody, and the buckets

contained bloody water. At least four dogs showed recent injuries consistent with being in a dog

fight. An injured female dog with fresh wounds belonged to Thomas, one of the men present at

the time. The remaining dogs belonged to appellant; of those, at least three showed signs of

recent fighting, including a severely injured male dog covered in blood and another dog with

characteristics typical of a bait dog. Various dog fighting “tools” were found, including a scale

for weighing dogs prior to a fight, a bloody stick for breaking up fights, and the heavy chains

used to tether many of the dogs. Viewing all the evidence in the light most favorable to the

verdict, we conclude a rational jury could have determined beyond a reasonable doubt that

                                                –7–
appellant intentionally or knowingly caused one of his dogs to fight with another one of his dogs.

Furthermore, the jury could have determined that Thomas caused his dog to fight with one of

appellant’s dogs and that appellant allowed his property to be used for that dog fight. We

overrule appellant’s first, second, third, and fourth issues.

        In his seventh and eight issues, appellant contends the trial court erred by denying his

motion to quash the indictment. During a pretrial hearing on his motion to suppress, appellant

also sought to quash the indictment for alleging a pit bull as a deadly weapon. We note that, at

trial, appellant did not object to the deadly weapon allegation in the jury charge nor does he now

challenge the sufficiency of the evidence to support the deadly weapon finding by the jury.

        We review a trial court’s ruling on a motion to quash de novo. Lawrence v. State, 240

S.W.3d 912, 915 (Tex. Crim. App. 2007). Only certain limited matters may be reviewed on a

pretrial basis with respect to indictments. Patterson v. State, 353 S.W.3d 203, 209 (Tex. App. –

San Antonio 2011, pet. ref’d). “An indictment must be facially tested by itself under the law, as

a pleading; it can neither be supported nor defeated as such by what evidence is introduced on

trial.” State v. Rosenbaum, 910 S.W.2d 934, 948 (Tex. Crim. App. 1994) (op. on reh’g adopting

dissent).     A trial court may not go behind the face of an indictment to make a pretrial

determination of the merits of allegations made in the charging instrument. Id.

            All felonies are theoretically susceptible to an affirmative finding of the use or

exhibition of a deadly weapon. Patterson v. State, 769 S.W.2d 938, 940 (Tex. Crim. App. 1989).

A deadly weapon means “a firearm or anything manifestly designed, made, or adapted for the

purpose of inflicting death or serious bodily injury” or “anything that in the manner of its use or

intended use is capable of causing death or serious bodily injury.” TEX. PENAL CODE ANN. §

1.07(a)(17)(B) (West Supp. 2014). We give effect to the plain meaning of the statutory text,




                                                 –8–
unless the language is ambiguous or the plain meaning leads to absurd results that the Legislature

could not have intended. Thompson v. State, 236 S.W.3d 787, 792 (Tex. Crim. App. 2007).

       In both counts of the indictment, the deadly weapon allegation provided:

       And it further presented in and to said Court that a deadly weapon, to-wit: a pit
       bull, was used or exhibited during the commission of the aforesaid offense or
       during immediate flight following the commission of the aforesaid offense, and
       that the defendant used or exhibited said deadly weapon or was a party to the
       aforesaid offense and knew that a deadly weapon would be used or exhibited.

       We first note that appellant’s argument on appeal assumes that the use of a pit bull as a

deadly weapon was directed only at another dog and not at a human being. He contends that the

legislature never intended for a dog involved in a dogfighting case to be a deadly weapon against

the other dog or dogs in the incident. We do not agree with appellant’s limited reading of this

indictment. This specific argument was addressed in the written motion to quash as “A pit bull is

not a deadly weapon,” and was not touched upon during the questioning of the one witness,

officer Lyons, who testified during the hearing on the motion to quash. The primary focus of the

hearing on the motion to suppress was on the arrest of appellant, the lack of a search warrant, and

the admissibility of statements made by appellant at the scene. Only during closing argument at

the hearing did counsel argue his motion to quash, claiming that as to the deadly weapon

allegation, the officer did not testify to anyone being “in danger or hurt” by a pit bull; the

indictment failed to name a specific pit bull; or that it had to be “another human, Your Honor,

not that two dogs were in danger.” The trial court overruled the motion to quash.

       At the time appellant’s argument was made, the only evidence the trial court had about

the charged offenses was that Lyons arrived at appellant’s property and discovered several men

with blood on their clothing and shoes, large amounts of blood on the ground, buckets of bloody

water, and several pit bull dogs displaying recent injuries consistent with dog fighting. Although

it was unclear whether the State intended to prove the deadly weapon allegations were directed at


                                               –9–
a person or an animal, appellant was not entitled to a pretrial determination of the facts

surrounding those allegations. See Rosenbaum, 910 S.W.2d at 948 (holding a trial court cannot

go behind the face of the indictment and make a pretrial determination regarding the sufficiency

of the evidence to support or defeat an element of the offense); Patterson, 353 S.W.3d at 210

(because the trial court had no evidence before it establishing the facts surrounding the charged

offenses, appellants cannot complain of adverse ruling made by the trial court on a matter the

trial court was not permitted to consider). On appeal, appellant cannot complain of an adverse

ruling made by the trial court on a matter the trial court was not permitted to consider. See

Patterson, 353 S.W.3d at 210.

          As to the merits of appellant’s argument that a pit bull can never be used as a deadly

weapon against another dog in a dogfighting case, we decline to make that determination.

Nothing in the plain language of section 1.07 limits the definition of a deadly weapon to offenses

against human beings. See McMillian v. State, No. 05-04-01321-CR, 2005 WL 2901720, at *3

(Tex. App.―Dallas Nov. 4, 2005, no pet.) (not designated for publication). And the plain

language of section 42.10, entitled “Dog Fighting,” does not preclude a deadly weapon allegation

of any kind for enhancement to the charged offense. Because the language of these statues is

unambiguous, we decline to read the limiting language appellant proposes into either statute.

          Thus, we reject appellant’s argument that section 1.07 precluded a deadly weapon

allegation in his indictment. Under these circumstances, we cannot conclude the trial court erred

by denying his motion to quash the indictment. We overrule appellant’s seventh and eighth

issues.

          In issues eleven and twelve, appellant claims his guarantee against double jeopardy was

violated because he was punished twice for the same conduct. Appellant concedes that the two

offenses with which he was charged, causing one dog to fight another and using or permitting

                                               –10–
another to use any real estate for dog fighting, are separate offenses but argues that, according to

the State’s pleadings and evidence, he committed only one offense: causing one dog to fight

another dog on his property.

       The protection against double jeopardy includes the protection against multiple

punishments. Speights v. State, No. PD-0543-14, 2015 WL 3988969, at *2 (Tex. Crim. App.

July 1, 2015). In the multiple punishment context, the double jeopardy clause prevents a court

from prescribing greater punishment than the legislature intended. Ex parte Benson, 459 S.W.3d

67, 72 (Tex. Crim. App. 2015). The proper analysis is to determine whether the Legislature

intended for the separate statutory subsections in a single statute to constitute distinct offenses.

Loving v. State, 401 S.W.3d 642, 645 (Tex. Crim. App. 2013). We do so by conducting a

“units” analysis.   Loving, 401 S.W.3d at 645; see Speights, 2015 WL 3988969, at *2

(determining Legislature’s intent concerning multiple punishments for different offenses defined

within same statute may be ascertained by “unit[s] of prosecution” analysis).

        The “units” analysis consists of two parts: (1) determining what the allowable unit of

prosecution is, and (2) determining how many units have been shown. Benson, 459 S.W.3d at

73. The first part of the analysis is purely a question of statutory construction and generally

requires ascertaining the focus or gravamen of the offense to determine the legislative intent.

Speights, 2015 WL 3988969, at *4. The second part requires an examination of the trial record,

which can include the evidence presented at trial. Benson, 459 S.W.3d at 74.

       Under the first part of the analysis, “[a]bsent an express statement defining the allowable

unit of prosecution, the gravamen of an offense best describes the allowable unit of prosecution.”

Gonzales v. State, 304 S.W.3d 838, 847–48 (Tex. Crim. App. 2010). The gravamen of an

offense can be (1) the result of the conduct, (2) the nature of the conduct, or (3) the

circumstances surrounding the conduct. See TEX. PENAL CODE ANN. § 6.03 (West 2011). To

                                               –11–
determine the gravamen of a statutory provision, we use various tools, including a focus on

grammar, and when examining the statute, we focus on sentence syntax and whether the statute

refers to an item in the singular or plural. See Jones v. State, 323 S.W.3d 885, 888 (Tex. Crim.

App. 2010).

       Here, the gravamen of the dog fighting statute is the nature of the prohibited conduct,

whether the defendant is accused of causing the dogs to fight or allowing the same to occur on

his property. See TEX. PENAL CODE ANN. § 42.10(a)(1), (3); Young v. State, 341 S.W.3d 417,

423 (Tex. Crim. App. 2011) (in nature of conduct offenses, it is the act or conduct that is

punished, regardless of any result that might occur). A person could commit dog fighting by

allowing a dog fight on his property without being the person who caused one dog to fight

another. Likewise, he could commit dog fighting by causing a dog to fight on property he does

not own. “By these two distinct prohibitions, the Legislature has proscribed two distinct types of

conduct.” Speights, 2015 WL 3988969, at *3. Furthermore, because subsections (a)(1) and (3)

prohibit either of those acts, the two subsections constitute separate and distinct statutory

offenses, and are “discrete allowable unit[s] of prosecution.” Id.; Loving, 401 S.W.3d at 648.

When both offenses are committed, the State may indict a defendant for each offense, and he

may be convicted and sentenced for each offense in a single prosecution. Speights, 2015 WL

3988969, at *4.

       The second part of the analysis asks “how many units have been shown,” and requires an

examination of the record, including the evidence presented at trial. Benson, 459 S.W.3d at

73−74. We ask whether the evidence presented would support conviction and punishment under

each theory of the offense. Speights, 2015 WL 3988969, at *4. As detailed above, the evidence

showed appellant caused one of his dogs to fight another one of his dogs (most likely a bait dog).

The evidence also showed that appellant allowed his property to be used for a dog fight when

                                              –12–
Thomas caused his dog to fight with one of appellant’s dogs. Although appellant has been

punished for both offenses, his double jeopardy right to avoid being punished twice for the same

offense has not been violated. See id. We overrule issues eleven and twelve.

       We reverse the trial court’s judgments to the extent appellant was found guilty of

engaging in organized criminal activity in counts one and two and render judgment he is not

guilty of engaging in organized criminal activity in counts one and two. We modify the trial

court’s judgments to reflect appellant was found guilty of the lesser included offenses of dog

fighting by causing a dog to fight another and using his property for dog fighting. We remand

this case to the trial court for a new punishment hearing as to each offense.



Do Not Publish                                      /Molly Francis/
TEX. R. APP. P. 47.2(b)                             MOLLY FRANCIS
140215F.U05                                         JUSTICE




                                               –13–
                                         S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

BRIAN MARTIN, Appellant                              On Appeal from the County Court At Law
                                                     No. 1, Kaufman County, Texas
No. 05-14-00215-CR         V.                        Trial Court Cause No. 31995CC.
                                                     Opinion delivered by Justice Francis,
THE STATE OF TEXAS, Appellee                         Justices Lang-Miers and Whitehill
                                                     participating.

        Based on the Court’s opinion of this date, we REVERSE the trial court’s judgments to
the extent appellant was found guilty of engaging in organized criminal activity in counts one
and two and RENDER judgment he is not guilty of engaging in organized criminal activity in
counts one and two. We MODIFY the trial court’s judgments to reflect appellant was found
guilty of the lesser included offenses of dog fighting by causing a dog to fight another and using
his property for dog fighting. We REMAND this case to the trial court for a new punishment
hearing as to each offense.



Judgment entered July 22, 2015.




                                              –14–
