                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-13-00244-CR


MICHAEL AMOS                                                       APPELLANT

                                       V.

THE STATE OF TEXAS                                                      STATE


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     FROM CRIMINAL DISTRICT COURT NO. 4 OF TARRANT COUNTY
                   TRIAL COURT NO. 1322040R

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                                  OPINION

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      A jury found Appellant Michael Amos guilty of the offense of cruelty to a

nonlivestock animal.   After finding an enhancement paragraph true, the jury

assessed Appellant’s punishment at thirty-one months’ confinement in the

Institutional Division of the Texas Department of Criminal Justice.1 Appellant


      1
       Appellant’s charged offense constituted a state jail felony. Tex. Penal
Code Ann. § 42.092(c) (West 2011). However, the State enhanced his offense
with a prior murder conviction with an affirmative deadly weapon finding, making
asserts five issues in which he attacks, respectively, (1) the admission of a

State’s witness’s recorded statement to the police, (2) the denial of his motion to

quash the indictment, (3) the denial of six of his challenges for cause, (4) the

denial of his objection to the charge, and (5) the denial of his motion to suppress.

We affirm.

                                    Evidence

      On May 13, 2011, then ten-year-old H.C. spent the night at Appellant’s

house with Appellant’s daughter, W. That evening, Zoe, a Shih Tzu weighing

about six or seven pounds, urinated and defecated in Appellant’s and his

girlfriend’s bedroom, and Appellant got angry. Appellant asked where the broom

was, and H.C. then saw Appellant walking back to the bedroom with a broom.

H.C. heard Appellant shut the bedroom door so that only Appellant and Zoe were

in the room, and then she heard Zoe “yelping and crying, like she was scared.”

H.C. said she then heard banging against the door for a while, but she did not

know what was causing it.

      Appellant then came out of the bedroom, and Zoe ran into the game room

where H.C. and W. were and hid underneath the futon.            H.C. thought Zoe

seemed scared. Appellant then followed Zoe into the game room and, while H.C.




the offense punishable as a third degree felony. Id. § 12.35(c)(2)(B) (West Supp.
2014). The jury assessed Appellant’s punishment at thirty-one months out of a
possible 120 months. Id. § 12.34 (West 2011).


                                         2
was sitting on the futon, tried to sweep Zoe out from underneath it with the

broom.

       H.C. said she got scared, got up, and went into the living room.          W.

followed her. While standing in the doorway, H.C. saw Appellant pulling on the

part of the futon that sat against the wall and also saw Zoe “kind of crawl[ing]

out.” Then she described Appellant as “kind of hitting her like where she’s out.”

H.C. said when Zoe tried to crawl out, Appellant would start to hit her with the

broom.       When asked to describe how Appellant was using the broom, she

testified:

       A. It was kind of like—see how to explain it. He was poking
       sometimes and then kind of like hitting her, I guess. I don’t—like—
       like sideways.

       Q. Like—sort of like this (demonstrating)?

       A. Yeah.

       Q. Okay. And is he hitting the futon or is he actually hitting Zoe?

       A. Actually hitting Zoe.

       Q. And can you tell which part of the broom is actually hitting her? Is
       it the bristles or the part that holds all the bristles together?

       A. I don’t remember.

       Q. Okay. And, at that point, do you see Zoe move after that?

       A. No.

       ...

       Q. Did you think that she was dead at that point?



                                         3
      A. Yes.

      Later H.C. qualified what she actually saw:

      A. I can see the broom, like, being, like, swung at her.

      Q. Swung at her. But you can’t tell where on Zoe’s body she’s
      being hit?

      A. No. But there was only that half of her so . . .

      Q. Is he hitting the futon or is he hitting Zoe?

      A. I thought he was hitting Zoe.

      H.C. concluded, “I see her not moving when he got done, when [Appellant]

got done hitting her.” H.C. said Appellant then told her to put Zoe outside.

      The critical care nurse at Metro West Veterinary Emergency Center to

whom Appellant spoke on the telephone before bringing Zoe in said that

Appellant described Zoe as having been “flailing,” which the nurse said indicated

Zoe was in pain. The emergency and critical care specialist who examined Zoe

at the Metro West Veterinary Emergency Center said Zoe had suffered a linear

blunt force trauma injury to her head and eye consistent with being hit with a

broom handle. She concluded linear blunt force trauma, consistent with being

struck by a broom handle swung like a baseball bat and with considerable force,

caused Zoe’s death. When asked if Zoe would have felt pain, the specialist’s

response was, “Absolutely.” Regarding her office’s decision to contact the police,

the specialist said she was obligated, as a veterinarian, to report any cases

where she suspected animal cruelty. As a veterinarian, she said that she took an



                                         4
oath to protect the welfare of animals under her care and that she had a duty to

speak for those who could not.

      A veterinarian at the veterinary diagnostic laboratory at Texas A & M

University performed a necropsy on Zoe, a Shih Tzu, which the veterinarian

described as a toy breed that was bred to provide companionship to humans.

Small dogs like Zoe scare very easily, are not trained to attack or guard, and

when caught in a stressful situation, will try to escape and hide.        Another

veterinarian had submitted Zoe for the necropsy, and although the veterinarian

who performed the necropsy normally would not be allowed to discuss the case

with anyone outside the laboratory, in this instance his records were

subpoenaed. A necropsy is a systematic external and, by means of dissection,

internal inspection of an animal. After examining Zoe, he determined that the

cause of death was a severe intracranial hemorrhage that led to heart and

respiratory failure.   He described the cause as blunt trauma, which meant a

relatively hard object caused the damage.

                 The Admission of H.C.’s Recorded Statement

      In his first point, Appellant argues that the trial court erred by admitting

H.C.’s recorded statement to police (State’s Exhibit 2A) because it was

inadmissible hearsay under rule of evidence 801(d) and (e)(1)(A) and rule of

evidence 613(a). However, a trial court’s erroneous admission of evidence will

not require reversal when other such evidence was received without objection,

either before or after the complained-of ruling. Estrada v. State, 313 S.W.3d 274,


                                        5
302 n.29 (Tex. Crim. App. 2010) (citing Leday v. State, 983 S.W.2d 713, 718

(Tex. Crim. App. 1998)), cert. denied, 131 S. Ct. 905 (2011); Lane v State, 151

S.W.3d 188, 193 (Tex. Crim. App. 2004). We have reviewed State’s Exhibit 2A

and H.C.’s testimony.     The biggest difference between the two is that H.C.

describes Appellant hitting Zoe with a broom in the recording but, in her

testimony, acknowledges never actually seeing the broom strike the dog.

Detective Brian Clouse, who conducted the interview, testified and described

H.C.’s statement in the same manner as State’s Exhibit 2A, that is, in terms of

Appellant striking the dog without any qualifications. Appellant did not object to

Detective Clouse’s testimony.      Therefore, we overrule his first point without

reaching his hearsay arguments.

                  Whether the Indictment Alleged an Offense

      In Appellant’s second point, he argues the trial court erred by denying his

motion to quash the indictment for failing to allege an offense. Section 42.092(b)

of the Texas Penal Code, which is entitled “Cruelty to Nonlivestock Animals,”

provides: “(b) A person commits an offense if the person intentionally, knowingly,

or recklessly: (1) tortures an animal or in a cruel manner kills or causes serious

bodily injury to an animal . . . .” Tex. Penal Code Ann. § 42.092(b)(1) (West

2011).2 Appellant contends that, under this statute, causing serious bodily injury


      2
        “Torture” is defined as “any act that causes unjustifiable pain or suffering.”
Id. § 42.092(a)(8). “Cruel manner” is defined as including “a manner that causes
or permits unjustified or unwarranted pain or suffering.” Id. § 42.092(a)(3).


                                          6
to an animal is not an offense; rather, the statute requires a person to cause

serious bodily injury in a cruel manner. Appellant complains that the indictment

improperly alleges that causing serious bodily injury alone is a crime.          But

Appellant acknowledged at the hearing on the motion to quash that the

indictment tracked the statute and conceded that, under the statute (and hence,

the indictment), “a cruel manner” applied to both killing an animal or causing

serious bodily injury.3 The trial court denied Appellant’s motion to quash.

      An indictment that tracks the language of a criminal statue is sufficient to

allege an offense. See State v. Edmond, 933 S.W.2d 120, 127 (Tex. Crim. App.

1996).    The indictment here tracks the statutory language.           We overrule

Appellant’s second point.

            The Denial of Six of Appellant’s Challenges for Cause

      In his third point, Appellant contends the trial court erred by denying six of

his challenges for cause.    Appellant contends six venire members said they

would find someone guilty if the person killed an animal even if the State did not

prove that the killing was in a cruel manner, that is, even if the State failed to

prove pain and suffering.

      An appellate court will reverse a trial court’s ruling on a challenge for cause

only in the case of a clear abuse of discretion. Curry v. State, 910 S.W.2d 490,


      3
        Appellant’s motion to quash attacked earlier versions of the indictment
that did not track the statutory language. About a month before trial, the State
filed an indictment tracking the statutory language.


                                         7
493 (Tex. Crim. App. 1995). A clear abuse of discretion occurs only when the

trial court’s decision is so clearly wrong as to lie outside that zone within which

reasonable persons might disagree. Cantu v. State, 842 S.W.2d 667, 682 (Tex.

Crim. App. 1992), cert. denied, 509 U.S. 926 (1993). A trial court deciding a

matter within its discretionary authority in a different manner than the appellate

court would in a similar circumstance does not show an abuse of discretion.

Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990).             When

determining whether the trial court erred by refusing to excuse a juror, an

appellate court must examine the record as a whole and accord due deference to

the trial judge who was in a position to see and hear the venire person. See

McCoy v. State, 713 S.W.2d 940, 945, 951 (Tex. Crim. App. 1986), cert. denied,

480 U.S. 940 (1987). When prospective jurors provide vacillating, unclear, or

contradictory answers, appellate courts accord deference to the trial court’s

decision. Russeau v. State, 171 S.W.3d 871, 879 (Tex. Crim. App. 2005), cert.

denied, 548 U.S. 926 (2006), and cert. denied, 548 U.S. 927 (2006).

      At the start of voir dire, the trial court informed the members of the venire

that if their silence was misleading, they had to speak up. After the six venire

members said they would not follow the law, they did not speak up when asked if

they would require the State to prove every element, as illustrated in the following

exchange between defense counsel and the venire:

      [DEFENSE COUNSEL]: Beyond a reasonable doubt. So, if they
      prove—if at the close of the evidence, you say on one of the



                                         8
elements, I don’t care which one or all of them, he didn’t do it, what’s
your verdict?

VENIRE WOMAN: Not guilty.

[DEFENSE COUNSEL]: I know you’re tired, folks.

(Venire members respond, “Not guilty.”)

...

[DEFENSE COUNSEL]: Can you follow the law and make them
prove each and every element beyond a reasonable doubt?

(Venire members respond, “Yes.”)

[DEFENSE COUNSEL]: If you’re acting reasonable and find any
doubt, you’ll find him not guilty, even though you have to go home to
your wife or husband and say, you know what, I had this case, I was
pretty sure he did it, but I found him not guilty because I had to
under the law. Can you do that?

(Venire members respond, “Yes.”)

[DEFENSE COUNSEL]: Okay, Thank you, ma’am. Anybody else?
Raise your hand if you cannot do that. If you can’t, that’s okay. Go
ahead. If you can’t follow the law in that respect.

(No response.)

[DEFENSE COUNSEL]: Or you can. It doesn’t matter to me one
way or another, you just got to be honest. Okay. That’s okay.
Everybody in the center, in the center, can you follow the law in that
respect and make them prove each and every element beyond a
reasonable doubt? And if you have a doubt and you’re not sure he
did it and you’re like, man, I’m not sure about that element, I have a
doubt about that element, can you find him not guilty and follow the
law even though you’re pretty sure he did it?

(Venire members respond, “Yes.”)

[DEFENSE COUNSEL]:           Can everybody do that in this center
section?


                                   9
         (Venire members respond, “Yes.”)

         [DEFENSE COUNSEL]: Yes? Can everybody in this section? You
         won’t lower the burden? You won’t make it, well, I’m pretty sure he
         did it? You won’t lower it. Everybody can follow the law, right?
         Really? You can? Okay. Thank you, ma’am. Anyone else?

         (No response.)

         [DEFENSE COUNSEL]: Anyone else? Because once you’re over
         there, it’s too late. If you can’t do it, fine. You just got to tell me.

         (No response.)

We agree with the State that the venire members effectively gave contradictory

answers.       Therefore, according deference to the trial court’s decision, we

conclude the trial court did not abuse its discretion. See Leadon v. State, 332

S.W.3d 600, 616 (Tex. App.—Houston [14th Dist.] 2010, no pet.) (“Most of those

who, during the State’s voir dire examination, originally indicated that they could

not consider a life sentence were rehabilitated by remaining silent and not

affirmatively stating that they wished to keep their previous response.”);

Russeau, 171 S.W.3d at 879; Cubit v. State, No. 03-99-00342-CR, 2000 WL

373821, at *1 (Tex. App.—Austin April 13, 2000, no pet.) (not designated for

publication) (stating that by remaining silent when asked to respond if they would

consider race, panelists answered they would not). We overrule Appellant’s third

issue.




                                           10
                     Appellant’s Objection to the Charge

      In his fourth point, Appellant contends the trial court erred by denying his

objection to the jury charge for failing to allege an offense, arguing that causing

serious bodily injury, standing alone, is not sufficient to constitute the offense

under the cruelty-to-animals statute. Appellant argues the causing of serious

bodily injury must be coupled with a “cruel manner.” See Tex. Penal Code Ann.

§ 42.092(b). Appellant objected and requested that the “cruel manner” language

be added to the serious-bodily-injury portion of the charging paragraph. The trial

court denied Appellant’s request.      Appellant contends the jury could have

convicted him for causing bodily injury without proof of a cruel manner, which is

not an offense.

      In our review of a jury charge, we first determine whether error occurred; if

error did not occur, our analysis ends. See Kirsch v. State, 357 S.W.3d 645, 649

(Tex. Crim. App. 2012). “A jury charge that tracks the language of a particular

statute is a proper charge on the statutory issue.” Riddle v. State, 888 S.W.2d 1,

8 (Tex. Crim. App. 1994), cert. denied, 514 U.S. 1068 (1995).         The statute

provides, “A person commits an offense if the person intentionally, knowingly, or

recklessly: (1) tortures an animal or in a cruel manner kills or causes serious

bodily injury to an animal.” Tex. Penal Code Ann. 42.092(b)(1). The jury charge

provided:

            Now, if you find from the evidence beyond a reasonable doubt
      that on or about the 13th day of May, 2011, in Tarrant County,
      Texas, the defendant, [Appellant], did then and there intentionally or


                                        11
      knowingly torture or in a cruel manner kill or cause serious bodily
      injury to an animal, to-wit: a dog, by hitting the dog with a broom or
      broomstick,

             Or, if you find from the evidence beyond a reasonable doubt
      that on or about the 13th day of May, 2011, in Tarrant County,
      Texas, the defendant, [Appellant], did then and there recklessly, to-
      wit: by hitting the dog with a broom or broomstick, torture or in a
      cruel manner kill or cause serious bodily injury to an animal, to-wit:
      a dog, by hitting the dog with a broom or broomstick, then you will
      find the Defendant guilty of the offense of cruelty to animals as
      charged in the indictment.

Because the jury charge tracked the statutory language, the trial court did not err.

See Riddle, 888 S.W.2d at 8. We overrule Appellant’s fourth point.

                   Denial of Appellant’s Motion to Suppress

      In his fifth point, Appellant contends the trial court abused its discretion by

denying his motion to suppress the dog necropsy. Appellant argues a search

warrant was required before a necropsy could be performed. Appellant states

that dogs are property and that under the provisions of the Texas Health and

Safety Code, dogs cannot be seized as property unless a probable cause

warrant for seizure is first obtained. Tex. Health & Safety Code Ann. § 821.022

(West 2010); see Thomas v. State, 352 S.W.3d 95, 104 (Tex. App.—Houston

[14th Dist.] 2011, pet. ref’d); Chambers v. State, 261 S.W.3d 755, 759 (Tex.

App.—Dallas 2008, pet. denied).

      We review a trial court’s ruling on a motion to suppress evidence under a

bifurcated standard of review.    Amador v. State, 221 S.W.3d 666, 673 (Tex.

Crim. App. 2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).



                                        12
We give almost total deference to a trial court’s rulings on questions of historical

fact and application-of-law-to-fact questions that turn on an evaluation of

credibility and demeanor, but we review de novo application-of-law-to-fact

questions that do not turn on credibility and demeanor. Amador, 221 S.W.3d at

673; Estrada v. State, 154 S.W.3d 604, 607 (Tex. Crim. App. 2005); Johnson v.

State, 68 S.W.3d 644, 652–53 (Tex. Crim. App. 2002).

      Dogs are classified as ordinary property.        Strickland v. Medlen, 397

S.W.3d 184, 198 (Tex. 2013).        Abandonment of property occurs if (1) the

defendant intended to abandon the property and (2) his decision to abandon the

property was not due to police misconduct. McDuff v. State, 939 S.W.2d 607,

616 (Tex. Crim. App.), cert. denied, 522 U.S. 844 (1997); Brimage v. State, 918

S.W.2d 466, 507 (Tex. Crim. App. 1994), cert. denied, 519 U.S. 838 (1996).

Abandonment is primarily a question of intent to be inferred from words spoken,

acts done, and other objective facts and relevant circumstances. McDuff, 939

S.W.2d at 616. The issue is not abandonment in the strict property-right sense,

but rather whether the accused had voluntarily discarded, left behind, or

otherwise relinquished his interest in the property so that he could no longer

retain a reasonable expectation of privacy with regard to it at the time of the

search.   Id.   Additionally, when a defendant abandons property, he lacks

standing to contest the reasonableness of the search of the abandoned property.

Id. We can sustain a trial court’s denial on the ground that the evidence failed to




                                        13
establish standing as a matter of law even when the record does not show the

issue was ever considered by the parties or the trial court. Id.

      In McDuff, the defendant was seen, using another car, pushing his car into

a motel parking lot, where it remained for six days before the police towed it

away. Id. The police thereafter searched the car three times and recovered

papers bearing the defendant’s name, hair that was eventually determined to be

similar to the victim’s, and blood spots in the carpeting. Id. The State argued the

defendant had abandoned the car and had forsaken any reasonable expectation

of privacy in it, and the court agreed. Id. at 616–17. In support of its holding that

the defendant had abandoned the car, the court stated that the defendant had

pushed the car into the motel parking lot without any police involvement, the

defendant was in possession of another vehicle, and the defendant was found

approximately two months later in another state living under other names. Id.

      Appellant relinquished Zoe’s body to the veterinarian and requested a

communal cremation. In communal cremations, the ashes are commingled with

those of other animals and are not returned to the owner, unlike in a private

cremation where the dog’s ashes are returned to the owner. Because Appellant

had no intention of reclaiming Zoe’s body or her ashes, we hold that Appellant

voluntarily discarded, left behind, and otherwise relinquished his interest in them

such that he could no longer retain a reasonable expectation of privacy and,

therefore, that he lacked standing to contest the reasonableness of any search.

See id. at 616. The Metro West Veterinary Emergency Center made the decision


                                         14
to send Zoe’s body for a necropsy.          The veterinarian who performed the

necropsy produced his records only after being subpoenaed. Because there is

no evidence suggesting the police were in any way involved in Appellant’s

decision to abandon Zoe’s body, we further hold that it was not due to police

misconduct. Id. We overrule Appellant’s fifth point.

                                  Conclusion

      Having overruled all of Appellant’s points, we affirm the trial court’s

judgment.



                                                  /s/ Anne Gardner
                                                  ANNE GARDNER
                                                  JUSTICE

PANEL: DAUPHINOT, GARDNER, and WALKER, JJ.

PUBLISH

DELIVERED: July 2, 2015




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