### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-10-00666- CR

P riscilla Limon, Appellant

v. The State of Texas, App ellee

F ROM TH E CO UNTY COURT O F LLANO COUNTY NO. 142 79, TH E H ONO RAB LE WAY NE B RASCOM , JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

A jury convicted appellant Priscilla L imon of the misdemeanor offe nse of crue lty to animals. The trial judge sentenc ed her to confine ment in the county jail and p l ac ed h er o n community supervision. Appellant ra i s es fo u r points of err or on appea l. We sustain her second point of err or complaining of er ror in the jury

char g e, re verse her c onviction, and re mand the ca se to the trial court f

or fur ther proc eeding s.

F ACTUAL AND P ROCEDURAL BACK GR OUND The jury hear d evidenc e that Sandra Kott, a L lano County

Animal Control Office r,

rec eived a complaint on April 17, 2007, about s ever al dogs runni n g loose. When Kott responde d

to the location, she obse rved one dog that had bee n killed by a car and others running loose in the neig hborhood. She descr ibed these dog s as emac iated and “in bad condition,” and it appea red to her that they wer e not being fed or water ed. She wa s i n formed by a neig hbor that appellant was theowner

of the dog s, but tha

t she had moved awa

y approximately two months be fore . The e vidence ref lected that at one point appellant’ s family owned the residenc e near the location wher e the dog s

wer e found. The evidenc e was contested as to who owned the residenc e and was living there at the time Kott found the dog s running loose near by

. Kott further testified that afte r captur ing the dog s, she plac ed them in the ca re of a loca l animal shelter whe re the y subsequently

died. The jury convicted appellant of the offe nse as char g ed in the information. Appellant elec ted to have the court assess punishment. The trial judge assessed appella n t’s punishment at 18 months confine ment in the county jail and place d her on community supervision for 18 months, order ing her to serve 120 day s in the county jail as a condition of supervision. This appea l followed.

DISCUSSIO N
I n her second point of err or, appellant maintains that the trial court err oneously char g ed the jury on law applicable to the offe nse of crue lty to animals that only beca me eff ective on September 1, 2007, afte r the date of the alleg ed offe nse. She arg ues that the jury char g e incorre ctly included the mental state of “re cklessly ,” which allowed the jury to convict her of an offe nse that did not exi st at the time of the alleg ed conduct: rec kless crue lty to a nimals. She further contends that this jury -cha

rg e er ror c aused e g reg ious harm.
At the time o f t h e all eg ed conduct, section 42.09 of the penal code, the

crue lty -to-animals statute, provided that “[a] person commits an offe nse if the person intentionally

or knowing ly

. . . abandons unrea sonably an animal i n t h e p erson’s custody [.] ” See Act of May 24, 2001, 77th L eg ., R.S., ch. 450, §1, 2001 Tex. Gen. L aws 887 (ame nded 2007) (cur rent version at Tex. Penal Code Ann. § 42.09(a) (3) (West 2011)). The jury char g e in this case , howeve r,

2contained the mental states of “intentionally , knowing ly , or rec k lessly ” throug hout the jury

char g e—in the abstrac t portion of the char g e defining the offe nse and in the subsequent application
para g raphs. The jury char g e also provided the statutory definition of “re ckles s ly ” in the abstrac t

1 portion of the cha

rg e. See Tex. P enal Code A nn. § 6.03(c) (West 2011).

The jury char g e contained the following traditional appli ca t i o n p ar ag raph trac king the 1 lang uag e of the information:

Now if y ou find from the evidenc e bey ond a rea sonable doubt that on or about the [si c] April 17, 200 7 i n t h e C o u nty of L lano, State of Texas, PRI SCI L L A L I MON, Def

endant, did then and there , intentional ly , knowing ly , or rec klessly abandone d [si c] unrea sonably an animal; to wit: a dog in the defe ndant’s custody , by leaving t he dog and not providing food, water , car e or shelter, and the defe ndant’s conduct was not a g ener ally acc epted and otherwise lawful form of conduct occur ring solely for the purpose of or in support of fishing, hunting, or trapp i n g; o r wildlife manag ement, wildlife or depre dation control, or s h o oting prese rve prac tices as reg ulated by state and fede ral law; or animal husbandry or agr icultural prac tice involving livestock a

nimals. Un l es s y ou so find from the evidenc e bey ond a rea sonable doubt, or if y ou have a rea sonable doubt there of, y ou will find the defe ndant not g uilty

. Following those para g raphs, the jur y char g e conta ined the following additional para g raph:
To find the def

en d ant guilty , y ou must find bey ond a reasonable doubt that the defe ndant did then and there intentiona l l y , k n owing ly , or rec klessly abandon unrea sonably an animal, to wit: a dog in the defe ndant’s custody , by leaving the dog and not providing food, water, care or shelter and the defe ndant’s co n duct was not a g ener ally

acc epted a

nd otherwise lawful form of conduct occur ring solely

for the purpose of or in support of fishing, hunting, or trapping; o r wildlife manag ement, wildlife or depr edation control, or shooting pre serve prac tices as r eg ulated by state and fede ral law; or animal husbandry o r agr i cu ltural prac tice involving livestock an imals. You are further char g ed that the defe ndant is not g uilty of the o ff en s e alleg ed if the evidenc e prese nted does not prove bey ond a rea sonable doubt that the act was done e ither intentionally , knowing ly , or re cklessly . Also, y ou will find the defe ndant not g uilty if, by the evidence p resented, there is a rea sonable doubt that crue lty to an animal occ urre d.

3We revie w alleg ed jury -cha rg e err or in two steps: first, we deter mine whether err or exis ts; if err or exis ts, we then revie w for harm. Ngo v. State , 175 S.W .3d 738, 743 (Tex. Crim. App. 2005); Swearingen v. State , 270 S.W .3d 804, 808 (Tex. App.—Austin 2008, pet. ref ’d). The trial

court must char g e the jury on the “law applicable to the case ,” wh i ch re q u ires that the jury be instructed on eac h element of the offe n s e ch ar ged

. See Tex. Code Crim. Proc. art. 36.14 (West 2007); see also Dinkins v. State , 894 S.W .2d 330, 339 (Tex. Crim. App. 1995) (bec ause jury char g e i n s tructs jury on law applicable to case , it must contain acc urate statement of law and s et o u t al l essential elements of offe nse). The judge ’s duty to instruct the jury on the law applicable to the case exis ts even when defense counsel fails to object to inclusions or ex clusions in the charg e. Taylor

v. State , 332 S.W .3d 483, 486 (Tex. Crim. App. 2011). The jury char g e should tell the jury what law appli es an d how it applies to the case . Delgado v. State , 235 S.W .3d 244, 249 (Tex. Crim. App. 2007). Her e, the trial court failed to c orre ctly instruct the jury on the statutory element conce rning the requisite mens rea . The trial court err oneously included a mental state—“r eckle ssly ”—not contained in the sta tutory offe nse. 2
T h e State conce des that the inclusion of the mental state “re cklessly ” in t h e j u ry char g e was err or beca

use “[a]t the time of the offe nse, rec kless crue lty to an animal was n o t an offe nse.” The State contends, howeve r, that beca use the jury char g e contained the applicable mental

Both pa rties discuss the cha

ng e to the cr

uelty -to-animals off

ense tha t added the c ulpable 2 mental state of “re cklessly ” to the offe nse, eff ective September 1, 2 0 0 7

. We note that afte r the 2007 chang es in the law, section 42.09, “Cruelty to Animals,” becam e “Cruelty to L ivestock Animals” and s e c ti o n 4 2

. 0 9 2 , “ Cr u e lt y to N onlivestock Animals,” apply ing to domestic animals, was enac ted as a separ ate offe nse. See Act of May 23, 2007, 80th L eg ., R.S., ch. 886, §§ 1, 2, 2007 Tex. Gen. L aws 2163, 2163–66. 4states of “intentionally ” and “knowing ly ” along with the err oneous “re cklessly ” mental s tate, “no

harm wa s done to the Appe llant.” We disag ree .

The deg ree of harm require d for rever sal depends on whether the j ury -cha rg e error

was prese rved in the trial court. I f the appellant objected to the err or at trial, reve rsal is r equire d if the error “ is calcula ted to injure the rig hts of the defendant,” which has been defined to mean that there is “some harm.” Barrios v. State , 283 S.W

. 3 d 348, 350 (Tex. Crim. App. 2009) (quoting Almanza v. State , 686 S.W .2d 157, 171 (Tex. Crim. App. 1984) (op. on re h’g )). I n contra st, if the appellant did not object at trial, the err or must be “funda mental,” and reve rsal is require d only if the

err or was so eg reg ious and crea ted s u ch h ar m t h at the defendant “has not had a fair and i mpartial trial.” Id. Appellant did not object to the jury char g e at tria l. Thus, the err or does not c all for

a reve rsal of the conviction unless it was so eg reg iously harmful under the circ umstances as to have denied appellant a fair and i mpartial t rial. Delgado , 2 3 5 S

. W

. 3d at 249; Almanza , 686 S.W .2d at 171. Any harm that is inflicted by the err oneous char g e must be “assa y ed in light of the entire jury char g e, the state of the evidenc e, including the contested issues and weig ht of the probative evidenc e, the arg ument of counsel, and any other rele vant information reve aled by the rec ord of the trial as a whole.” Almanza , 686 S.W .2d at 171; see Ngo , 175 S.W .3d at 750 n.48. “J ury -cha rg e err or is
eg reg iously harmful if it aff ects the very basis of the case , deprive s the defe ndant of a valuable rig ht,

or vitally aff

ects a defe nsive theory .” Stuhler v. State , 218 S.W .3d 706, 719 (Tex. Crim. App. 2007) (citing Hutch v. State , 922 S.W .2d 166, 171 (Tex. Crim. App. 1996)). We eng ag e in this assessment
to illumi nate the actua l, not just theore tical, harm to the acc used. Almanza , 686 S.W .2d at 174.

5Eg reg ious harm is a difficult standard to meet and must be deter mined on a case -by -ca se basis. See Ellison v. State , 86 S.W .3d 226, 227 (Tex. Crim. App. 2002); Hutch , 922 S.W .2d at 171.

L ooking at the entirety of the jury char g e, the err oneous inclusion of the mental state of “re cklessly ” occur

red in multipl e place s in the ju ry char g e. I n addition to its inclusion in the abstrac t port ion of t he charg e defining the offe nse of crue lty to animals and the applicable mental states, “re cklessly ” was also included in the application para g raph. The trial court further instructed the jury , “You are further char g ed that the defen d ant is not g uilty of the offe nse alleg ed if the evidenc e prese nted d o es n ot prove bey ond a rea sonable doubt that the act was done either intentionally , knowing ly , or rec klessly .” (Emphasis added.) This instruction emphasized the option

o f co n v i ct ing appellant only on the basis of rec kless conduct. The err oneous inclusion of t h e “re cklessly ” mental state was not “cor rec ted or ameliora

ted” in another portion of the char g e; rathe r, the err or was consistently repe ated throug hout. See Ngo , 175 S.W .3d at 752. As a result, no portion of the jury char g e acc urate ly informed the jury that the State h ad t o prove intentional or knowing conduct by appellant. As a whole, the jury char g e authorized the jury to convict appellant of an offe nse that did not exis t at the time of the al l eged conduct: rec kless crue lty to animals. We presume that the j urors understood and followed the court’s instructions in the j ury ch ar ge absent evidenc e to the contra

ry . See Taylor , 332 S.W .3d at 492; Hutch , 922 S.W .2d at 172. Consideration of the e ntirety

of the jury

char g e we ighs in fa

vor of a finding of eg reg ious harm. Reg arding the state of the evidenc e, the primary contested issue at trial was whether appellant owne d the dog s and was the i ndividual who aba ndoned them. Appe llant did not testi fy , b u t h er at t orney challeng ed the testimony of the State’s witnesses reg arding this issue. We

6acknow ledg e that appe l l an t d i d n ot arg ue that she lacke d the requisite culpable mental state to

commit the offe nse. Nor did she sug g est that she acte d only rec klessly

. Howeve r, evidenc e in the

rec ord ref lects that appellant attempted at some point to g et a neig hbor to take her dog s. I n fac t, that neig hbor’s husband t estified that he “ende d up with two dog s that came from that residenc e.” 3 Moving awa

y to attend school afte r attempting to provide alterna tive car e for the dogs , al t h o u g h those attempts appar ently failed, could constitute conduct that was rec kless as opposed to intentional

or knowing

. See Tex. Penal Code Ann. §6

. 0 3 (c) (“r eckle ssness” define d, in part, as conduct committed by person who “is awa re of but consciously disr ega rd s a substantial and unjustifiable risk” that her conduct will cause prohibited result). Thus, the state of the evidenc e weig hs in favor of a f inding of eg reg ious harm.
We next addre ss the arg uments of counsel. During closing arg ument, both the
prosec utor and appellant’ s counsel ref err ed to the require ment t h at ap pellant act “intentionally , knowing ly , or rec klessly .” There fo r e , th e a r g u me n t o f b o th parties contributed to a misunderstanding of th e S t at e’ s burden of proof. The prosec utor arg ued, “We had to prove that she knowing ly , intentionally

or wre cklessly

[si c] abandone d the animals.” A ppellant’s counse l arg ued,

So it only takes one rea sonable doubt on one of these elements. Wit h reg ard to my client, t he st ate only has t o prove that she recklessly ab an d oned thos e dogs. They can prove that she intentionally , knowing ly or wre cklessly [si c] abandone d the dog s but I submit to y ou that none of the evidenc e that y ou h ea rd today comes toge ther to show bey ond a rea sonable doubt that my client wre cklessly [si c] abandone d any

dog s.

The rec ord does not indicate when he obtained these dog s or whether these wer e the same 3 dog s later r ecove red by

the animal contr ol office r.

7Both parties misinformed the jury , asser ting that rec kless conduct supported a convictio n fo r the offe nse char g ed ag ainst appellant. Consequently , the jury was misled by the arg uments of counsel. The a rg uments of counse l weig h in favor of a finding of eg reg ious harm.
I n our revie w of the rec ord, we note that when appellant’ s counsel addre s s ed the venire panel in voir dire , she stated,

Now in this particula

r case , crue lty to a

nimals, there is -- and in this pa rticular case the state is g onna’ have to prove that my client, Priscilla L imon intentionally , knowing ly or wrecklessly [si c], that’s an element, abandoned, unrea sonably , a dog in the Def

endant’ s custody leaving th e d o g b y not providing food, water , car e or shelter, that will be number eig ht.

Also, in the State’s opening statement, the prosec utor told the jury , “So we have to prove the date,

on or about. Where it happene d. Who the Def endant is. Whether she acte d intentionally , knowing ly

or wre cklessly [si c] by abandoning unrea sonably , these animals.” Subsequently , during the State’s

case -in-chie f, the prosecutor asked t he animal c ontrol office r, “I s it y our opinion or base d on y our investiga tion, that the Def endant intentionally , k n o wing ly or wre cklessly [si c], unrea sonably abandone d these dog s? ” Thus, the rec ord ref lects that beg inning with voir dire and continuing throug hout the course of trial, the jury was misinformed about the mens rea element of the offe nse and prese nted with the possibili ty that rec kless crue lty to animals was an offe nse of which appellant could be convicted. This additional rele vant information in the rec ord weig hs in favor of a finding of eg reg ious harm.

Appellant was “entitled to be convicted upon a corr ect statement of the law.” Hutch , 922 S.W .2d at 174. A jury that followed the trial judge ’s instructions would consider the evidenc e

8prese nted at trial to deter mine whether appellant acte d intentionally , knowing ly , or rec klessly

. After considering the entire char g e, the evidenc e, the arg ument of counsel, and other rele vant information

reve aled by the rec ord, we cannot conclude , as the State arg ues, that the jury -cha

rg e err or did not rise

t o t h e level of eg reg ious harm. Ba sed on our revie w of the rec ord and the Almanza fac t o rs , we conclude that appellant was denied a fair and impartial trial. J ury -cha rg e err or is eg reg iously harmful
i f i t af fects the very basis of the case or deprive s the defe ndant of a valuable rig ht. See Stuhler , 218 S.W .3d 719. Her e, the err or in the jury char g e “af fec ted t h e v er y b as i s of the case ” in that it allowed the jury to convict appellant of an offe nse that did not exis t at the time of the al l eged conduct: rec kless crue lty to animals. We hold that the submissi on of the err oneous jury char g e—author izi ng the jury to convict appellant for re ck l es s conduct when the statute require d intentional or knowing c o n d u c t— e g r e g io u s ly h a

r me d a p p ellant. Acc ording ly , we sustain appellant’ s second point of e rror . 4

CONCLUSION

Having conclude d that appellant suffe red eg reg ious harm due to the complained- of jury -cha rg e error, w e re verse appellant’ s judgme nt of conviction and remand the cause to the t rial court for further proce eding s.

I n light of our dispositi on of this point of err or, we need not and do not addre ss appellant’ s 4 rema ining points of err or, which complain about defe cts in the information and an illega l sentenc e. See Tex. R. App. P . 47.1. 9__________________________________________ J . Woodfin J ones, Chief Just ice
Be fore Chief J ustice Jones, J ustices Pemberton a nd Henson Dissenting O pinion by J ustice Pemberton
Reverse d and Remande d Filed: Nove mber 2, 2012 Do Not Publish

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