In the

Court of Appeals

Second Appellate District of Texas

at Fort Worth ___________________________

No. 02-18-00108-CR

___________________________

On Appeal from the 78th District Court

Wichita County, Texas

Trial Court No. 58,663-B

Before Sudderth, C.J.; Kerr and Bassel, JJ.

Memorandum Opinion by Justice Bassel

ANTHONY TYRONE WILLS, Appellant

V.

THE STATE OF TEXAS
2

MEMORANDUM OPINION

I. INTRODUCTION

In two points, Appellant Anthony Tyrone Wills challenges his conviction for 

the offense of cruelty to non-livestock animals by torture and resulting sentence of 

two years’ confinement in state jail. See Tex. Penal Code Ann. § 42.092(b)(1). We 

affirm.

II. BACKGROUND

On May 2, 2017, shortly before 8:30 p.m., a Wichita Falls police officer 

responded to a service call at an apartment complex. Upon arriving, the police officer 

witnessed 15 to 20 people “physically fighting.” When the police officer went to try 

to break up the fight, he ended up getting “picked up” and “thrown into a wall.” The 

fight was finally subdued when other police officers arrived on the scene. At that 

point, the police officers were able to question witnesses to determine the cause of the 

fight. This eventually led the original responding police officer to a dog on a balcony 

outside one of the apartments. The police officer described the dog as “laying on its 

side . . . whining and yelping” and “appear[ing] to be in pain.” The police officer 

identified Appellant as the dog’s owner.

A supervisor and officer with Wichita Falls Animal Control also arrived at the 

apartment complex. Upon entering the parking lot of the apartment complex, the 

supervisor stated that she could already hear the dog “whimpering” and “crying” 

despite having the vehicle’s windows rolled up and the air conditioning on. The 
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animal control officer testified that he could also hear the dog “yelping,” “screaming,” 

and what sounded “[l]ike a shrieking, screeching.”1

 The supervisor testified that when 

she came to the dog, she had to move it to open the apartment door, at which time 

she noticed the dog favoring his rear right leg. She also observed that the dog had 

“whale eye” and “wrinkled whisker beds.”2

Appellant signed a consent form allowing animal control to euthanize the dog. 

The dog was muzzled and transported to the animal control truck. The animal 

control officer and supervisor both testified that the dog continued to scream, yelp, 

and whimper the entire time he was in the truck. The animal control officer 

euthanized the dog later that evening.

The animal control supervisor testified that after the dog was euthanized, she 

manipulated the dog’s rear right leg and noted that it was able to make a “full 

rotation”—i.e., she could move the leg in a complete circle. When she pressed down 

on the dog’s abdomen, it was hard, which she testified was something she had 

experienced in dogs with internal injuries. Finally, the supervisor testified that when 

 1

We do note that the officer testified that his window was rolled down.

2

One neighbor testified that she saw Appellant throw the dog down and stomp 

on him, another testified that he saw Appellant strike the dog with his hand multiple 

times, and another neighbor testified that she saw Appellant stomping the dog. One 

police officer also testified that when he spoke to Appellant inside of Appellant’s 

apartment, Appellant pointed to a coffee table leg with bite and scratch marks and 

two scratch marks on the carpet and asked the officer, “You see that? That’s 

$1,000.00. You don’t think I wanted to whip his ass?”
4

she palpated the dog immediately after it was euthanized, blood came out of its mouth 

and rear.

A Wichita Falls grand jury indicted Appellant for the offense of cruelty to nonlivestock animals by torture. See Tex. Penal Code Ann. § 42.092(b)(1). In a pretrial 

supplemental designation of expert witnesses, the State disclosed the animal control 

officer and supervisor as potential expert witnesses concerning “Animal Control 

Techniques and Procedures.”

On the day of trial, Appellant’s counsel requested a rule 702 hearing to test the 

qualifications of the State’s designated experts—specifically the animal control officer 

and supervisor. The State argued, and the trial court agreed, that the hearing was 

premature, but the trial court stated that if the witnesses began offering expert 

testimony and Appellant’s counsel made a timely objection and request for a 702 

hearing, such a hearing would be conducted at that time. The exchange went as 

follows:

[APPELLANT’S COUNSEL]: Judge, since we’re on the record and

outside the presence of the jury, I will go ahead and continue our 

discussion that we had off the record about the 702 hearing and the 

Animal Control officers. I am going to ask for that hearing now. They 

were designated on December 5th as experts in animal control 

procedures and techniques, and I would like to have my 702 hearing to 

inquire about their expert opinions.

THE COURT: [Prosecutor]?

[PROSECUTOR]: Your Honor, I’m not going to say he can’t 

have the hearing. I think we should postpone that hearing until such 

time as we believe that will become relevant. I would also say for the 
5

record that that notice was given to them out of an abundance of 

caution. It doesn’t lock us into some strategy or some process of 

prosecution of this case.

[APPELLANT’S COUNSEL]: No, Judge, but if they have 

decided to designate --

THE COURT: We’re going to go ahead and proceed. We talked 

this morning about whether -- I offered time to go ahead and have that 

702 hearing. We left it that in the event it became necessary, you would 

be diligent and alert and object at an appropriate time, at which time we 

will then have the 702 hearing.

[APPELLANT’S COUNSEL]: Thank you, Judge. I’d like to 

make a record.

THE COURT: You just did, but you can make more.

[APPELLANT’S COUNSEL]: Thank you. With respect to the

locking in procedure, I’m not saying they’re locked into any particular 

way of prosecuting this case. What I’m saying, in designating these 

people as experts, I am entitled to inquire about their expert opinions 

and I will be asking to do that outside the presence of the jury before 

they testify.

THE COURT: That will be fine. The Court had given you ample 

opportunity to do that earlier. We’ll still give you that right when the 

time occurs. Let’s get the jury.

[APPELLANT’S COUNSEL]: Thank you, Your Honor.

When the State began to question the animal control officer about the Wichita 

Falls Animal Control euthanasia protocols, Appellant’s counsel approached the bench 

and requested to “702 this witness outside the presence of the jury.” The prosecutor 

contended that he was merely asking for a factual observation and not an expert 

opinion, and the trial judge overruled the objection:
6

Q. . . . [P]lease describe for the jury the protocol that the Animal 

Control department here in Wichita Falls utilizes once a dog has been 

euthanized. What happens to the dog?

[APPELLANT’S COUNSEL]: Judge, at this time -- May I

approach?

THE COURT: You may.

(Following held outside presence of jury)

[APPELLANT’S COUNSEL]: We’re now getting into testimony

about Animal Control procedures and that sort of thing. I would like to 

702 this witness outside the presence of the jury to figure out what he’s 

going to say on those expert matters that they’ve been designated on.

[PROSECUTOR]: It’s a factual question to what is the protocol. 

I’m not asking for an opinion.

THE COURT: Yeah. I know you’re concerned about this issue 

and need to keep it in mind, but with respect to what his protocols are, 

I’m going to overrule the objection.

[APPELLANT’S COUNSEL]: Thank you, Judge.

The prosecutor elicited testimony from the animal control officer regarding 

euthanasia protocols, specifically with respect to storage and disposal of the animal’s 

body after it has been euthanized.

The State also called the animal control supervisor for Wichita Falls. When the 

prosecutor began asking her about the condition of the dog’s rear right leg—

specifically, whether she believed based on her initial assessment that the leg was 

lame—Appellant’s counsel asked to question the animal control supervisor on 

voir dire, which the trial court permitted.
7

When the prosecutor asked the animal control supervisor whether she had ever 

testified as an expert witness, Appellant’s counsel objected, and the trial court 

sustained the objection as to the supervisor testifying about causation but not as to 

testifying about her experience:

[PROSECUTOR:] Okay. And -- Have you ever testified as an expert in 

any court?

A. Um, not in a -- not in this capacity as far as this court --

[PROSECUTOR:] Okay.

A. -- district court.

[APPELLANT’S COUNSEL]: Judge, at this time I’m going to

object to the witness testifying as to any sort of -- what -- any of the 

opinions as to what injuries were present or any sort of causation or the 

extent, because, as the witness’s testimony has just revealed, there’s no 

medical basis for any of that testimony. That’s expert testimony that’s 

trying to get back doored in through a lay witness.

[PROSECUTOR]: Absolutely not, Your Honor. I have not at all 

suggested the cause of why that leg on that dog is at an odd angle. 

That’s a decision the jury is going to make later. I have not asked her to 

elicit such an opinion. I’m only asking her facts about what she saw, and 

she can absolutely provide that information under 701.

THE COURT: I will sustain the objection with respect to her 

ability to opine on causation. Based on her experience, I will let her give 

her opinion with regard to the condition of the dog’s leg as shown in this 

photo.

The court granted Appellant’s counsel a running objection.

The supervisor testified only that the dog’s leg appeared “lame or damaged” in 

photos that had been introduced into evidence. Later, the supervisor began testifying 
8

about her experiences with dog behavior, and Appellant’s counsel objected under rule 

702. The trial court overruled the objection:

[PROSECUTOR:] Did he ever -- Was he ever able to bite you or

anybody else there on the porch?

A. No. He -- He did not break the skin of anyone on -- on scene.

And per my experience with dog behavior, the dog was, uh --

[APPELLANT’S COUNSEL]: I’m going to renew my objection 

as to -- Well, I’m going to object to the witness opining as to what dog 

behavior is, Judge.

THE COURT: That’s your 702 --

[APPELLANT’S COUNSEL]: Yes, Judge.

THE COURT: The Court’s going to overrule that. The factors 

for someone needing to testify about these matters can include 

experience without any formal education, and the Court’s ruling is based 

on the fact that [the supervisor] does have experience in these matters.

So I’ll overrule the objection.

. . . .

THE WITNESS: Uh, based on my experience, the dog was 

exhibiting whale eye and also wrinkled, uh, whisker beds, which is just a 

sign of fear aggression, so not normally would a dog display that 

behavior.

The supervisor was asked about the meaning of the word “palpate” and 

Appellant’s counsel objected again under rule 702: 

[PROSECUTOR:] What does it mean to palpate?

A. Well, there’s different instances to use it. Um, to, uh --
9

[APPELLANT’S COUNSEL]: I’m going to object to this 

testimony under 702, Judge. It’s expert testimony about medical

veterinarian stuff.

THE COURT: The Court’s ruling is the same based on her level 

of experience.

The supervisor then testified that she observed blood “froth” from the dog’s 

mouth after he had been euthanized and that in her experience with other dogs with 

confirmed internal injuries, it was normal for blood to come out of their nose or 

mouth. Appellant’s counsel objected, and the trial court overruled the objection:

[PROSECUTOR:] After you palpated [the dog], did he have blood 

come out of his mouth and/or nose?

[ANIMAL CONTROL SUPERVISOR:] Yes. This is directly 

after euthanization was administered.

[PROSECUTOR:] And have -- Based on your training or your

experience with other dogs that have been injured and euthanized, is the 

blood appearing in this fashion typical when dogs have suffered internal 

injuries?

[APPELLANT’S COUNSEL]: I’m going to renew my prior 

objection as to causation, Judge.

THE COURT: I don’t believe that question went to causation.

Overruled.

[APPELLANT’S COUNSEL]: I’m also just renewing my 702

objection, Judge.

THE COURT: You’ve already been given a running objection.

[ANIMAL CONTROL SUPERVISOR]: Can you repeat the 

question? I’m sorry.
10

[PROSECUTOR:] Sure. Based on your experience with other 

dogs with confirmed internal injuries, once those dogs were euthanized, 

was it a normal occurrence to see blood come out of their nose and/or 

mouth?

[ANIMAL CONTROL SUPERVISOR:] Yes, sir.

[PROSECUTOR:] And did you see the blood froth out of [the 

dog’s] nose and/or mouth?

[ANIMAL CONTROL SUPERVISOR:] Out of the mouth and 

the, uh -- the, uh, rear.

[PROSECUTOR:] Oh, okay. Now, let’s be clear about this. 

Prior to euthanizing the dog or having him euthanized, he did not have

the blood coming out of his rear or his mouth, correct?

[ANIMAL CONTROL SUPERVISOR:] I believe there was a 

little blood on the rear, um, but only increased after euthanization.

The jury returned a guilty verdict. The trial court assessed punishment at two 

years’ confinement in state jail and rendered judgment, sentencing Appellant 

accordingly. This appeal followed.

Appellant raises two points contending that (1) the trial court erred denying his 

motion to suppress, and (2) the trial court erred in permitting lay witnesses to offer 

expert opinion.

III. DID THE TRIAL COURT ALLOW LAY WITNESSES TO OFFER EXPERT 

TESTIMONY?

We conclude that the opinions challenged by Appellant were, at the most, lay 

opinions admissible under Texas Rule of Evidence 701. See Tex. R. Evid. 701. This 

basis for our disposition of this appeal obviates any claim of error predicated on the 
11

claim that the trial court denied Appellant a gatekeeper hearing to determine the 

admissibility of expert opinions or erred in overruling his objections under Texas Rule 

of Evidence 702 that deals with the admissibility of expert opinions. See Tex. R. Evid. 

702. Accordingly, our resolution of this appeal does not require that we reach 

Appellant’s first point. See Tex. R. App. P. 47.1.

A. Standard of Review

We review a trial court’s decision to admit or exclude scientific expert 

testimony under an abuse of discretion standard. See Sexton v. State, 93 S.W.3d 96, 99 

(Tex. Crim. App. 2002). The trial court ruling will be upheld if it is within the zone of 

reasonable disagreement. Id. By rule, an expert witness may offer an opinion if he 

possesses specialized knowledge, skill, experience, training, or education related to a 

fact in issue. Tex. R. Evid. 702. A lay witness may offer opinions based on his 

perception when it is helpful to a clear understanding of the witness’s testimony or 

the determination of a fact in issue. Tex. R. Evid. 701. We review a trial court’s 

decision to allow opinion testimony from a lay witness for an abuse of discretion. See 

Fairow v. State, 943 S.W.2d 895, 901 (Tex. Crim. App. 1997).

B. No expert testimony was provided.

Both the animal control officer and supervisor provided no more than lay 

opinion testimony based on their firsthand observations of the dog at the apartment 

complex and when it was euthanized. See Tex. R. Evid. 701. 
12

The animal control supervisor’s testimony that the animal exhibited fear that 

manifested itself in “whale eye” or “wrinkled whisker beds” was based on her 

firsthand observations and not some scientific theory requiring significant expertise. 

Thus, we conclude that this was not expert testimony and that the trial court did not 

abuse its discretion in admitting the testimony as lay opinion. Cf. $7,058.84 in U.S. 

Currency v. State, 30 S.W.3d 580, 585 (Tex. App.—Texarkana 2000, no pet.) 

(concluding that testimony from a police officer with the canine unit about the drug 

dog’s physical reactions—intense breathing, stiffening body, and scratching at a 

drawer—“was not expert testimony, but was merely eyewitness testimony of what the 

dog did when brought into the room”).

Relying on Davis v. State, we likewise conclude that the animal control 

supervisor’s testimony about the dog’s rear leg was not expert testimony. 313 S.W.3d 

317, 324 (Tex. Crim. App. 2010). Davis was a capital murder case in which the 

appellant had stabbed the victim. Id. A detective at the crime scene discovered the 

victim’s dead cat wrapped in a jacket inside a pillowcase and hidden in the victim’s

bedroom closet. Id. at 347. The cat had three wounds in its back. Id. In the 

detective’s opinion, the wounds on the cat were consistent with stab wounds and were

the size and shape of the knife blade used on the victim, and the trial court allowed 

the detective to testify “regarding the comparison of the victim’s injuries to those of 

her cat,” despite the fact that the detective had no scientific training in this area of 
13

veterinary medicine and despite the fact that the detective was never offered as an 

expert witness for any purpose. Id. at 349.

The appellant argued that the trial court abused its discretion by permitting the 

detective to testify as an expert comparing the victim’s and cat’s injuries because he 

was neither trained nor presented by the State as an expert. Id. The court of criminal 

appeals rejected this argument because the detective’s testimony was not expert 

opinion requiring scientific training but permissible and helpful lay testimony based 

on his personal observations of the cat’s body at the scene of the crime:

[The detective] did not purport to possess any specialized knowledge or 

to be an expert in wound determination. He testified based upon his 

first-hand observation of the wounds themselves. His observations did 

not require significant expertise to interpret and were not based on 

scientific theory. Although the jurors could view photos of the wounds, 

they were not in a position to observe the cat’s body first-hand. [The 

detective] had a superior vantage point in viewing those wounds, having 

observed the body of the cat, while the jurors could view only twodimensional photos. [The detective’s] inferences helped to provide a 

clearer understanding of what took place contemporaneously to the 

offense, and thus, the trial court did not abuse its discretion in 

concluding that the evidence was admissible as a lay opinion.

Id.

The animal control supervisor’s testimony—that based on her initial 

observation the dog’s rear leg appeared lame or broken as well as her observation that 

after the dog had been euthanized, she was able to “fully rotate” its rear leg—helped 

clarify the condition of the dog’s leg because, like in Davis, the jurors only had twodimensional photographs to observe. See id. Thus, the animal control supervisor’s 
14

testimony about the dog’s leg was not expert testimony and the trial court did not 

abuse its discretion in concluding that the testimony was admissible as a lay opinion. 

See id.

The animal control supervisor’s testimony about the hardness of the dog’s 

abdomen and blood coming out of its mouth and rear was also not expert testimony. 

It is a rational inference, not requiring scientific expertise or specialized knowledge,

that when blood is coming out of an animal’s mouth or rear, something is injured 

inside. See Gary v. State, No. 03-16-00571-CR, 2017 WL 3897313, at *3 (Tex. App.—

Austin Aug. 31, 2017, no pet.) (mem. op., not designated for publication) (“A [lay] 

witness may offer such an opinion even when he has experience or training. Even 

events not normally encountered by most people in everyday life do not necessarily 

require expert testimony. The personal experience and knowledge of a lay witness 

may establish that he or she is capable, without qualification as an expert, of 

expressing an opinion on a subject outside the realm of common knowledge.” (citing 

Osbourn v. State, 92 S.W.3d 531, 537 (Tex. Crim. App. 2002))); Tobar v. State, Nos. 14-

15-00011-CR, 14-15-00012-CR, 2016 WL 2975568, at *6–7 (Tex. App.—Houston 

[14th Dist.] May 19, 2016, no pet.) (mem. op., not designated for publication) (relying 

on Davis and concluding police officer’s testimony that “[b]usted lips typically occur 

after an impact, not during a wrestling match” was admissible as lay opinion 

testimony under rule 701 because the officer’s testimony was rationally based on his 

firsthand perceptions of the victim’s injuries).
15

Under rule 701, both witnesses were expressly permitted to provide opinion 

testimony as lay witnesses as long as their testimony was rationally based on their 

perceptions and observations. See Tex. R. Evid. 701; Tobar, 2016 WL 2975568, at *6–

7; In re J.A.M., No. 03-02-00610-CV, 2003 WL 22303115, at *4 (Tex. App.—Austin 

Oct. 9, 2003, no pet.) (mem. op.) (holding testimony from a witness “present in the 

cafeteria as the boys were telling their story [about drowning a cat] . . . was based on 

her own senses of sight and sound” and was thus admissible under rule 701); 

$7,058.84, 30 S.W.3d at 585.

The animal control officer’s testimony was limited to a description of how the 

dog was euthanized, and then how its body was stored and disposed of. This is 

simply a recitation of the facts and is not opinion testimony, either lay or expert. 

A review of their testimony quoted above makes clear that both the animal 

control officer and supervisor were testifying about their direct observations based on 

their immediate experiences with the dog on the date of the incident, through the 

euthanasia process, and concluding with disposing of the dog’s body. And, their 

testimony was rationally based on these firsthand observations. 

Thus, the trial court did not abuse its discretion in overruling Appellant’s 

objections. See Tex. R. Evid. 701; J.A.M., 2003 WL 22303115, at *4.
16

C. Even if expert testimony was erroneously admitted, it did not affect 

Appellant’s substantial rights.

However, even if the trial court abused its discretion by permitting the animal 

control officer and supervisor to provide expert testimony, a trial court’s error in 

admitting evidence should be disregarded unless the error affected Appellant’s 

substantial rights. See Tex. R. App. P. 44.2(b). A substantial right is affected when the 

error had a substantial and injurious effect or influence in the determination of the 

jury’s verdict. King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). An 

accused’s substantial rights are not affected by the erroneous admission of evidence if 

the court, after examining the whole record, has fair assurance that the error did not 

influence the jury or had but a slight effect. Solomon v. State, 49 S.W.3d 356, 365 (Tex.

Crim. App. 2001).

A person commits the offense of cruelty to a non-livestock animal by torture, 

“if the person intentionally, knowingly, or recklessly . . . tortures an animal or in a 

cruel manner . . . causes serious bodily injury to an animal.” Tex. Penal Code Ann. 

§ 42.092(b)(1). Section 42.092(a) states that torture “includes any act that causes 

unjustifiable pain or suffering.” Id. § 42.092(a)(8). There is no requirement that the 

State establish that the defendant caused the animal to die or have internal injuries.

The evidence was both undisputed and overwhelming that Appellant’s actions 

caused the dog unjustifiable pain. At trial, three different neighbors testified that they 

saw Appellant stomping, kicking, and hitting the dog. There was also testimony from 
17

numerous witnesses that they heard the dog yelping, crying, and whimpering. Finally, 

a police officer testified that Appellant showed him damage to his furniture and carpet 

and then asked the police officer, “You see that? That’s $1,000.00. You don’t think I 

wanted to whip his ass?” After reviewing the whole record, we are assured that any 

error in the admission of expert testimony from the animal control officer and 

supervisor did not affect Appellant’s substantial rights, and thus, is not reversible.

Accordingly, we overrule Appellant’s second point.

IV. CONCLUSION

Having overruled Appellant’s second point, which is dispositive, we affirm the 

trial court’s judgment without reaching his first point. See Tex. R. App. P. 43.2(a), 

47.1.

/s/ Dabney Bassel

Dabney Bassel

Justice

Do Not Publish

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

Delivered: March 28, 2019