                          COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH

                               NO. 02-13-00569-CR


CHRISTOPHER SWILLEY                                                     APPELLANT

                                         V.

THE STATE OF TEXAS                                                              STATE


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      FROM CRIMINAL DISTRICT COURT NO. 4 OF TARRANT COUNTY
                    TRIAL COURT NO. 1329409R

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                                    OPINION1

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      Appellant Christopher Swilley appeals his conviction for the felony offense

of cruelty to animals. Appellant contends that the trial court erred by denying his

motion for a mistrial after the jury heard evidence of an extraneous offense also

involving cruelty to animals.      Appellant further asserts the evidence was

insufficient to support his conviction. We affirm the trial court’s judgment.


      1
       See Tex. R. App. P. 47.2(a).
                                    Background

      In the indictment, the State alleged Appellant intentionally, knowingly, or

recklessly tortured or in a cruel manner killed or caused serious bodily injury to

an animal, to-wit, a dog, by shooting said dog with a crossbow, a state jail felony.

See Tex. Penal Code Ann. § 42.092(b)(1), (c) (West 2011). The dog in question

was a stray, which falls within the statutory definition of an “animal.” See id.

§ 42.092(a)(2). The offense was punishable by confinement in a state jail facility

for not more than two years or less than 180 days and a fine not to exceed

$10,000. Id. § 12.35 (West Supp. 2014). After a jury found Appellant guilty, the

trial court assessed his punishment at two years’ confinement in a state jail.

                                      Evidence

      Roy Ponce testified that on April 11, 2012, he heard a loud noise like a dog

in a lot of pain “just screamed and took off running.” He looked out his front door

through his glass storm door and saw Appellant, his neighbor, carrying a

crossbow and walking away from the street toward the back of Appellant’s

house, which was directly across the street from Ponce’s home.

      Ponce testified that a Husky mix that had taken up residence as the

neighborhood dog was not lying in his front yard as it normally did.         Ponce

described the dog as a friendly stray that often played with his children and who

came through a break in his wooden fence to eat with his other dogs. Ponce

denied ever seeing the dog act in a rough or aggressive manner. He, his wife,

and his children were not afraid of it.


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      Ponce’s next-door neighbor said there were many strays in the

neighborhood over the years. She said this dog had been in the neighborhood

four to five months and often slept in her front yard; during that time she had

never seen any aggressive behavior. She said, “I saw the dog on almost a daily

basis and he was never aggressive to me.”

      Ponce testified that he walked to the back of his house and found the dog

had come through the hole in the fence and was lying under his carport with an

arrow in it. He said there was a lot of blood and described the dog as breathing

heavily. As Ponce approached, the dog got up, bumped into a carport post—

which caused the arrow to fall out—walked down the alley where it laid itself

down again, and did not get back up. Ponce’s children were in the backyard and,

after seeing the dog, became angry. Ponce’s wife called 9-1-1.

      Fort Worth Police Officer Nathan Owens was dispatched to the scene and

found the wounded dog—whining, bleeding, and hurt—lying in the alley. The

dog was a black and white, medium-sized Husky or shepherd mix that weighed

about fifty pounds and had different colored eyes. Officer Owens observed a

considerable amount of blood on the pavement and in the grass of the house

next door to Ponce’s house. Officer Owens explained that he called Animal

Control when he arrived, but he cancelled his call to it when the Humane Society,

whom someone else had called, arrived first. He crossed the street and knocked

on the door of Appellant’s house, but no one answered, and Appellant’s Jeep

was not at the house. Witnesses told him Appellant had gotten in his Jeep and


                                       3
left the area. Officer Owens estimated the Humane Society arrived within ten

minutes after he did and provided medical assistance to the dog. Officer Owens

did not recall any neighbors complaining about the dog being aggressive. He

said people cannot act with cruelty towards animals just because they are strays.

      Eric Hopkins had previously worked in animal hospitals off and on for

twenty years and had worked for the Humane Society of North Texas for about

two and one-half years, taking care of animals during the day and acting as on-

call emergency responder at night for Tarrant and Parker Counties. He recalled

that the dog in this case appeared to be in a great deal of pain and was “very

bloody, [with] holes in his neck around the chest area. It was very complacent. It

wasn’t acting mean. [I] [p]icked it up, [and it] licked on me as I was putting it

inside the transit van to take it away.”    Hopkins transported the dog to the

Humane Society’s East Lancaster location, where the veterinarian prescribed

antibiotics and pain medications until she could see it the next morning. Hopkins

visited the dog almost daily and described it as a “[s]weet, loving dog. One of the

best dogs I’ve seen up there.”

      Detective Ryan Stepp, with the Fort Worth Police Department’s central

criminal investigations unit, was assigned to the case the next day. Detective

Stepp testified he reviewed the report and went to the scene to get his own

perspective on it. He talked to witnesses, including Ponce and other neighbors,

and viewed the bloodstains and a trail of blood from which he determined that the




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dog was shot in the driveway between Ponce’s and Ponce’s neighbor’s houses

and then went through the hole in the fence into Ponce’s back yard.

      Detective Stepp learned that the week before the dog was shot, Appellant

had called in complaints on April 5 and April 6 to Animal Control about a large

stray dog digging in flower beds and fighting with other dogs in the neighborhood.

Appellant’s complaints to Animal Control said nothing about the dog being

aggressive towards Appellant or his wife. Detective Stepp went to Appellant’s

house and said “there [might] have been a few flower beds, but they looked like

they had been kept up.” He said he knocked on the door but no one answered.

      Detective Stepp spoke with Appellant’s next door neighbor, N.P., who

owned a compound bow and arrows, which Detective Stepp photographed, but

no crossbow. Detective Stepp described a crossbow as more like a rifle with a

bow set on top of it, whereas a compound bow was an actual bow with gears at

the end that helped a person with the draw. A “fixed blade broadhead” bolt from

a crossbow was found at the scene where the dog was shot and was introduced

into evidence as State’s Exhibit 35. Detective Stepp said his understanding was

that a bolt was different from an arrow used with a compound bow in that a bolt

was shorter than an arrow and a bolt did not necessarily have a nock at the end.

He said a bolt from a crossbow was capable of killing someone or an animal,

torturing an animal, or causing serious bodily injury.

      Detective Stepp processed the bolt for DNA but not for fingerprints

because it was covered in blood. The DNA results did not relate to Appellant.


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      Based upon his investigation, Detective Stepp concluded that Appellant

shot the dog and that there was no evidence of justification as the dog was not

aggressive or attacking anyone.      He also spoke to Dr. Cynthia Jones of the

Humane Society; she explained the severity of the wounds to him, and he

concluded the wounds constituted serious bodily injury. He explained that in

Texas it is a criminal offense to cause even a stray animal serious bodily injury

unjustifiably. He wrote out an arrest warrant for Appellant for cruelty to animals.

      Appellant’s wife, Delia Swilley, testified that she and Appellant had lived at

the residence across from Ponce’s since 2007. Their home had been broken

into six or seven years earlier, and they had reported stolen electronics to the

police. Later, they learned that other things had been stolen as well, such as

tools, speakers, and things Appellant was using in a church program.            She

testified that Appellant did not own a crossbow and that if he had one, she had

never seen it. She denied that Appellant ever went hunting and denied that he

had either blade or camouflage arrows for hunting.

      Appellant’s wife testified she got home from work on the evening of the

dog’s injury at about 6:45 p.m. They both took showers, ate dinner, and watched

television.   She testified she did not hear an animal scream, did not hear a

commotion of adults and children outside or across the street, did not hear the

police arriving, and did not hear anyone knock on the front door or ring the

doorbell. She had seen the dog around for some time in the neighborhood. The

dog would lie down in front of her door and not move. She stated the dog never


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growled, bit, or jumped on her. It would just jump down, and that was what

scared her. If she came out of the front door, it would move, but it would then go

and “undo” the tulips. She denied knowing that the dog had been living across

the street for four or five months or that it played with the children there, but she

added that she was almost never at home. About two weeks before the dog was

shot with the arrow, she had seen it playing in her yard and had asked Appellant

if he knew that dog. She denied telling her husband to shoot the dog or to get rid

of it because it was digging up her garden. She denied that Appellant left in his

Jeep to go anywhere that night and said that the policeman lied if he said

Appellant’s Jeep was not there.

      Appellant denied shooting the dog with a crossbow. He testified he had

always had pets and had a mix that looked like “Benji” now. He denied wanting

to hurt an animal.    Regarding the photos of the dog, Appellant said, “[T]he

pictures were horrific. I thought that was terrible.” He denied leaving the house

in his Jeep at any time that evening. He insisted he was there all evening and

heard nothing—not the dog’s yelp, not the neighbors coming out to help the dog,

not the commotion across the street, and not the police arriving, interviewing

people in the street, and knocking at his door. Appellant explained that his house

was further away and that he was probably taking a shower. Appellant denied

not being there.

      Appellant admitted he had at one time owned both a compound bow and a

crossbow but said his crossbow had been stolen. He thought his house was


                                         7
burglarized around 2009. He reported to the police everything that was stolen.

Detective Stepp confirmed that a burglary was reported in 2006 but said that the

report made no mention of a crossbow. Appellant said it was only later, when

going on a camping trip, that he discovered his crossbow had also been stolen.

He said he called the police to report it but hung up when he determined it was

pointless. Appellant admitted to Detective Stepp that he had owned a Horton

crossbow and that the bolt in question that the dog was shot with was a Horton

bolt. Appellant maintained, however, that his bolts had also been stolen, that

they had only been target bolts, and that he had never owned bolts like the one

used on the dog, which was an expensive fiberglass bolt. Appellant said State’s

Exhibit 35 was short enough to be a crossbow bolt and had a hunting tip.

Appellant maintained he used only target bolts because targets were the only

things for which he used the crossbow. Appellant said his bolts had bullet tips

with mild points. Appellant denied ever owning a high-dollar fiberglass bolt with a

hunting razor edge like the one on State’s Exhibit 35. Appellant admitted hunting

once in his life but denied ever hunting with a bow.

      Appellant admitted calling Animal Control to complain about the Husky two

days in a row the week before the dog was shot. Appellant also said that before

the offense, he had called the police several times on Saturday nights because of

loud parties at Ponce’s home; Appellant explained that he had to get up early

Sunday morning to go to church. Appellant suggested that Ponce shot the dog

and, knowing Ponce’s children would be upset with him if they found out, Ponce


                                         8
made up the story blaming Appellant. Appellant theorized that his complaints to

the police about loud parties at Ponce’s house gave Ponce a reason for revenge.

Appellant even suspected that Ponce might have stolen his crossbow in the

burglary six years earlier and shot the dog with it. Appellant had not mentioned

his theory that Ponce stole the crossbow and shot the dog in his statement to

Detective Stepp, and he admitted it “was just a thought that I had.” Appellant

acknowledged Ponce and his family told the police that they saw him drive away

after putting the crossbow in his Jeep.

      Appellant admitted the dog never acted aggressively toward him but

claimed the dog frightened his wife; he then admitted all the dog ever did was

sleep on his porch and, when it encountered his wife, jump up and run off. He

agreed it never harmed him or his wife and that it did “no growling, no biting, no

nothing.” Appellant asserted his admission that the dog was not aggressive at all

showed that he had no reason to have shot the dog. Appellant contended it was

not his job to find out who shot the dog but the State’s. “Take prints and go get

that guy. It’s real simple. . . . I mean, anyone that just watches TV can do that.”

      Dr. Cynthia Jones, the attending veterinarian who worked full-time for the

Humane Society, said she was called the night the dog came into care, was

given the dog’s weight and condition, and instructed the person who called her to

give the dog pain management. Dr. Jones performed her full examination the

next morning. Regarding her first encounter with the dog, she said,




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      The dog—when I first saw the dog, there was a lot of mud and a lot
      of blood on his chest and front legs. He was in good spirits.
      Difficulty walking a little bit on his front legs. He was not aggressive.
      He was hungry. He was fairly docile. I did not, when I first
      examined him, have to sedate him in any way. I had no difficulty
      trying to determine his injuries. During the shaving and cleaning
      process, I was given no trouble by him whatsoever.


      She described four wounds that the dog received from the bolt and stated

that, in her opinion, the only way for it to have received those four wounds in the

way that it did was for it to have been lying down when it was shot. She added

that the person who shot the dog had to have come from the side and was not

facing the dog head on.

      She demonstrated the wounds with photographs that were admitted into

evidence. She said the bolt came in the left side between the shoulder and the

elbow and penetrated through the muscle, damaging the radial nerve. Regarding

the radial nerve, she said, “[I]f you’ve ever hit your funny bone, it sends tingling

sensations up and down your arm[,] and then it’s hard to use your hand for a few

minutes. That’s the radial nerve.” She said the bolt damaged the radial nerve to

the point that for several days afterwards the dog had difficulty placing its feet

very well because “he just didn’t like the constant tingling in that leg all the time.”

      Dr. Jones then showed how the bolt “came through the leg and came out

through the front of the chest” under the neck. The bolt then “glanced” across

the chest deeply enough to cut through some of the muscle. State’s exhibit 34

showed a gash about three-and-a-half-inches long and about a half-inch wide



                                          10
where the skin appears to have split apart. The bolt finished by entering the front

part of the right leg and chipping the bone. Dr. Jones said she had to pull out

three little pieces of bone.

      Dr. Jones asserted the manner in which the dog was shot caused it

unjustifiable pain and suffering and constituted illegal torture. She said that it

suffered serious bodily injury and could have died without treatment.

      Although the dog’s injuries were no longer life-threatening when it was

adopted a couple weeks later, Dr. Jones said the dog still had some muscle and

limb pain in his front legs and still limped slightly.    She said the dog had a

protracted loss or impairment of his front legs. In her nearly twenty-eight years of

veterinary medical practice, this was the first time she had seen an animal who

had survived being shot by an arrow.

      Because of the publicity about the dog’s injuries, survival, and recovery

from being shot with a crossbow, there were numerous applications for adoption.

A couple fell in love with and adopted the dog while it was still recovering from its

injuries. The dog’s family now consisted of the couple, their three-month old

daughter, and Jack, a Maltese. The dog’s owner testified it did not show any

aggression whatsoever. The owner said he had no problem with the dog at the

dog park near their neighborhood. He said the dog was no longer in pain but still

favored one side when it ran.




                                         11
                              Extraneous Offense

      In his first issue, Appellant contends the trial court abused its discretion by

denying his motion for mistrial when a reference was made to an extraneous

offense for which Appellant had been found not guilty.

      A video recording of Detective Stepp’s interview with Appellant was

admitted without objection and played to the jury. About twenty minutes into the

interview, Detective Stepp said, “You haven’t been in trouble for a long time. I

know your criminal history out of Georgia. I know your criminal history here.”

Appellant did not object. About thirty minutes into the interview, Detective Stepp

said, “I know you have been down this road before, okay, and I know you got

away with it once already. I know that.” At this point, Appellant moved for a

mistrial because the State had violated his motion in limine.

      Outside the presence of the jury, the trial court suggested that it thought

any error was not preserved because the evidence came in once before without

objection. The State responded that it did not recall that comment being in the

interview and suggested an instruction to disregard. The trial court adjourned the

jury for the day. When trial resumed the next day, the trial court again suggested

it thought any error was waived because, in addition to Appellant’s failure to

object to the first comment, the video had been admitted without objection. The

trial court nevertheless wanted Appellant and the State to work out an instruction.

When trial resumed, the trial judge instructed the jury: “You are instructed to

disregard any mention of prior history, if any, of the Defendant with regard—


                                        12
during the interview with Detective Stepp. Such questions were improper and

inadmissible and not to be used by you in any way in deciding the verdict in this

case.”

         The State argues that any error is not preserved because the video was

admitted without objection. We agree. Although Appellant complained that the

State had violated his motion in limine, generally the granting or denial of a

motion in limine is a preliminary ruling only and preserves nothing for appellate

review. Geuder v. State, 115 S.W.3d 11, 14–15 (Tex. Crim. App. 2003). A

defendant must make a timely objection to preserve an error in the admission of

evidence. Dinkins v. State, 894 S.W.2d 330, 355 (Tex. Crim. App.), cert. denied,

516 U.S. 832 (1995). A party should make an objection as soon as the ground of

objection becomes apparent. Id. Generally this occurs when the evidence is

admitted.     Id.   Consequently, if a question clearly calls for an objectionable

response, the party should make the objection before the evidence is admitted.

See id. If the party fails to object until after an objectionable question has been

asked and answered, and he can show no legitimate reason to justify the delay,

his objection is untimely, and the party waives any error. Id. At trial, Appellant

acknowledged having access to the video for some time and having reviewed it.

The trial court noted Appellant had not presented it with any motion to redact the

video.    A mistrial is not required on the basis of an unpreserved evidentiary

complaint. See Glassey v. State, 117 S.W.3d 424, 432 (Tex. App.—Fort Worth




                                         13
2003, no pet.) (holding that the appellant failed to preserve error because the

evidence came in without objection during another witness’s testimony).

      Notwithstanding the fact Appellant had not preserved error, the trial court,

as noted above, nevertheless gave the jury an instruction to disregard.         On

appeal, Appellant attacks this instruction to disregard because it was not given

immediately and served only to compound the error. See Rojas v. State, 986

S.W.2d 241, 250 (Tex Crim. App. 1998) (stating instruction to disregard must be

given promptly); Hagood v. State, 284 S.W. 547, 547 (Tex. Crim. App. 1925)

(stating defendant, by objecting to instruction because it would only compound

error, preserved error notwithstanding absence of corrective instruction). At trial,

Appellant did not object to the instruction. Just the contrary, absent a mistrial,

Appellant favored an instruction to disregard. We hold any error regarding the

instruction to disregard was not preserved. Tex. R. App. P. 33.1(a). We hold the

trial court did not err by denying Appellant’s motion for mistrial or by giving the

instruction to disregard and overrule Appellant’s first issue.

                           Sufficiency of the Evidence

      In his second issue, Appellant contends the evidence is insufficient to

support his conviction.    He stresses the lack of fingerprint or other physical

evidence tying him to the shooting. Appellant argues that Ponce was a biased

witness and that even Ponce said he only saw Appellant walking with a

crossbow.




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      In our due-process review of the sufficiency of the evidence to support a

conviction, we view all of the evidence in the light most favorable to the verdict to

determine whether any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.

307, 319, 99 S. Ct. 2781, 2789 (1979); Dobbs v. State, 434 S.W.3d 166, 170

(Tex. Crim. App. 2014). This standard gives full play to the responsibility of the

trier of fact to resolve conflicts in the testimony, to weigh the evidence, and to

draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S.

at 319, 99 S. Ct. at 2789; Dobbs, 434 S.W.3d at 170. The trier of fact is the sole

judge of the weight and credibility of the evidence. See Tex. Code Crim. Proc.

Ann. art. 38.04 (West 1979); Dobbs, 434 S.W.3d at 170. Thus, when performing

an evidentiary sufficiency review, we may not re-evaluate the weight and

credibility of the evidence and substitute our judgment for that of the factfinder.

Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010).            Instead, we

determine whether the necessary inferences are reasonable based upon the

cumulative force of the evidence when viewed in the light most favorable to the

verdict. Sorrells v. State, 343 S.W.3d 152, 155 (Tex. Crim. App. 2011); see

Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013).               We must

presume that the factfinder resolved any conflicting inferences in favor of the

verdict and defer to that resolution. Jackson, 443 U.S. at 326, 99 S. Ct. at 2793;

Dobbs, 434 S.W.3d at 170.




                                         15
      The evidence showed Appellant had complained twice about the dog a

week before the offense. Appellant acknowledged having owned a crossbow.

Ponce saw Appellant with a crossbow only moments after the dog was shot with

a bolt from a crossbow. The jury could have reasonably concluded Appellant

was the person who shot the dog with a crossbow and could have reasonably

disbelieved Appellant’s testimony about the crossbow having been stolen and

about his use of bolts other than the one that injured the dog. The jury further

disbelieved Appellant’s purely speculative theory that Ponce lied and accused

Appellant in retaliation for Appellant having reported Ponce to the police earlier.

It was the jury’s prerogative to decide whom to believe. See Dobbs, 434 S.W.3d

at 170. We may not substitute our judgment for that of the jury. See Isassi, 330

S.W.3d at 638. We hold the evidence was sufficient for a rational trier of fact to

have found, beyond a reasonable doubt, that Appellant intentionally, knowingly,

or recklessly tortured or in a cruel manner killed or caused serious bodily injury to

an animal by shooting it with a crossbow. See Jackson, 443 U.S. at 319; Dobbs,

434 S.W.3d at 170. We overrule Appellant’s second issue.




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                                 Conclusion

      Having overruled both of Appellant’s issues, we affirm the trial court’s

judgment.



                                                /s/ Anne Gardner
                                                ANNE GARDNER
                                                JUSTICE

PANEL: LIVINGSTON, C.J.; GARDNER and GABRIEL, JJ.

PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: June 11, 2015




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