No. PD-0983-15 _____________________________________________________

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

AUSTIN, TEXAS

_____________________________________________________

MICHAEL AMOS

 Appellant-Petitioner

vs.

THE STATE OF TEXAS

Appellee-Respondent

_____________________________________________________

Petition for Discretionary Review from the

Second Court of Appeals, Tarrant County

Appeal Number 02-13-00244-CR

Trial Court Number 1322040R

Honorable Mike Thomas, presiding

_____________________________________________________

APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

September 3, 2015

_____________________________________________________

Lisa Mullen

Attorney at Law

3149 Lackland Road, Suite 102

Fort Worth, Texas 76116

(817) 332-8900

State Bar No. 03254375

Lisa@MullenLawOffice.com

Oral argument requested
Table of Contents

Table of Contents....................................................................ii

Table of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ...iv

Statement Regarding Oral Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . ...v

Statement of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..v 

Statement of Procedural History . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .........v

Interested Parties and Service......................................................vi

Grounds Presented for Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ......1

Ground 1.................................................................................2

THE COURT OF APPEALS ERRED IN FINDING FORFEITURE IN THE 

WHOLESALE ADMISSION OF THE STATE’S STAR WITNESS’S 

RECORDED STATEMENT IN DIRECT VIOLATION OF THE HEARSAY 

RULE WHERE THE OTHER SIMILAR TESTIMONY ADMITTED WAS 

IN NO WAY SUBSTANTIALLY THE SAME 

Ground 2................................................................................6

THE COURT OF APPEALS ERRED IN FINDING THE INDICTMENT

ALLEGED CRUELTY TO ANIMALS WHERE THE ESSENTIAL 

ELEMENT OF ‘IN A CRUEL MANNER’ WAS NOT ALLEGED

 

Ground 3..................................................................................9

THE COURT OF APPEALS ERRED IN VALIDATING THE DENIAL OF

SIX PROPER CHALLENGES FOR CAUSE

Ground 4.................................................................................12

THE COURT OF APPEALS ERRED IN VALIDATING A JURY CHARGE 

THAT OMITTED THE ESSENTIAL ELEMENT OF ‘IN A CRUEL 

MANNER’ IN A CRUELTY TO ANIMALS OFFENSE

Ground 5..................................................................................14

ii
THE COURT OF APPEALS ERRED IN FINDING ABANDONMENT OF 

THE DOG IN ORDER TO DENY THE MOTION TO SUPRESS THE DOG 

AUTOPSY

Conclusion and Prayer for Relief.................................................16

Certificate of Service...............................................................17

Certificate of Compliance..........................................................17

Appendix.............................................................................18

EXHIBIT A: Second Court of Appeals’ July 2, 2015, published,

 Opinion

iii
TABLE OF AUTHORITIES

Cases

Amos v. State, No. 02-13-00244-CR (Tex. App. – Fort Worth, delivered July 2, 2015 ....................11, 13, 14

Crawford v. Washington, 541 U.S. 36 (2004).............................................................................................4, 6

Leadon v. State, 332 S.W.3d 600 (Tex. App. – Houston [14th Dist.] 2010, no pet.)..................................... 11

Leday v. State, 983 S.W.2d 713 (Tex. Crim. App. 1998)............................................................................... 6

Lopez v. State, 18 S.W.3d 220 (Tex. Crim. App. 2000)..............................................................................4, 6

McDuff v. State, 939 S.W.2d 607 (Tex. Crim. App. 1997), cert denied, 522 U.S. 844 (1997)..................... 15

Ohio v. Roberts, 448 U.S. 56 (1980) ...........................................................................................................4, 6

Pointer v. Texas, 380 U.S. 400 (1965) ........................................................................................................4, 6

Sells v. State, 121 S.W.3d 748 (Tex. Crim. App. 2003)..........................................................................11, 12

State v. Kingsbury, 129 S.W.3d 202 (Tex. App. – Corpus Christi 2004, no pet.) .....................................8, 12

Studer v. State, 799 S.W.2d 263 (Tex. Crim. App. 1990) .............................................................................. 8

United States v. Diaz, 637 F3d 592 (5th Cir. 2011)......................................................................................4, 6

Woodall v. State, 336 S.W.3d 634 (Tex. Crim. App. 2011) ........................................................................... 6

Statutes

Tex. Code Crim. Proc., Art. 38.23................................................................................................................ 20

Tex. Code Crim. Proc., Art. 35.16(c)(2)....................................................................................................... 17

Tex. Penal Code, Sec. 42.092(a)(3).............................................................................................................. 14

Tex. Penal Code, Sec. 42.092(a)(8).............................................................................................................. 13

Tx. Penal Code, Sec. 42.092(b).........................................................................................................13, 14, 16

Rules

Tex. R. App. Pro. 9.4(i)(3) ........................................................................................................................... 23

Tex. R. App. Pro. 66.3 (f)....................................................................................................................8, 13, 15

Tex. R. App. Pro.66.3 (b)....................................................................................................................8, 13, 15

Tex. R. Evid., R. 801 (e) (1)(A) ................................................................................................................... 10

Constitutional Provisions

TEX. CONST. Art. I, Sec. 9......................................................................................................................... 20

U.S. Const. Amend. VI............................................................................................................................10, 12

U.S. Const. Amend. VI, XIV........................................................................................................................ 12

iv
Statement Regarding Oral Argument

Petitioner believes oral argument would assist this Court in the discussion and 

exploration of the issues presented. Because this petition presents new and important 

issues of jurisprudential value, its disposition will have significant impact on the bench 

and bar of the State of Texas. Therefore, Petitioner respectfully requests the opportunity 

to participate in oral argument in the instant case.

Statement of the Case

 A jury found Petitioner guilty of cruelty to nonlivestock animal. R. Vol V -143; 

CR – 135. After finding the enhancement paragraph true, the jury assessed punishment at 

two years and seven months confinement in the Institutional Division of the Texas 

Department of Criminal Justice. CR – 6; R. Vol. VII -122; CR – 135. Petitioner timely 

filed written notice of appeal and the trial court certified his right of appeal. CR – 134, 

140. 

Statement of Procedural History

 On April 24, 2014, Petitioner’s brief was timely filed raising five points of error. On 

July 2, 2015, the Second Court of Appeals denied all points of error to affirm the 

conviction.

1

 A Motion for Rehearing was not filed. This court granted an extension of 

time to file this petition for discretionary review which is presently due on September 3, 

2015, and will be timely filed.

1 Amos v. State, No. 02-13-00244-CR (Tex. App. – Fort Worth, delivered July 2, 2015

(Attached as Appendix Exhibit A).

v

 
INTERESTED PARTIES & CERTIFICATE OF SERVICE

 I, Lisa Mullen, do hereby certify that a true and correct copy of the foregoing 

Appellant’s brief was mailed on September 3, 2015, to the interested parties listed below:

1) Tarrant County District Attorney’s Office- Appellate Division

401 West Belknap

 Fort Worth, Texas 76196

2) Ms. Page Simpson & Ms. Brooke Panuthos

Assistant District Attorney, Tarrant County

 401 West Belknap

 Fort Worth, Texas 76196

3) Mr. Edward Jones, Esq.

Attorney at Law

 1319 Ballinger Street

 Fort Worth, Texas 76102

4) Mr. Michael Amos

Appellant

5009 Roanoke Street

Fort Worth, Texas 76116

 

 

_____________________________

/s/ Lisa Mullen

ATTORNEY FOR APPELLANT

3149 Lackland Road, Ste. 102

Fort Worth, Texas 76116

(817) 332-8900

 FAX: (817) 332-8904

Bar Number 03254375

 Email: Lisa@Mullenlawoffice.com

vi

 Lisa Mullen
Grounds Presented for Review

GROUND ONE:

THE COURT OF APPEALS ERRED IN FINDING FORFEITURE IN THE 

WHOLESALE ADMISSION OF THE STATE’S STAR WITNESS’S 

RECORDED STATEMENT IN DIRECT VIOLATION OF THE HEARSAY 

RULE WHERE THE OTHER TESTIMONY ADMITTED WAS IN NO 

WAY SUBSTANTIALLY THE SAME 

 

GROUND TWO:

THE COURT OF APPEALS ERRED IN FINDING THE INDICTMENT

ALLEGED CRUELTY TO ANIMALS WHERE THE ESSENTIAL 

ELEMENT OF ‘IN A CRUEL MANNER’ WAS NOT ALLEGED

 

GROUND THREE:

THE COURT OF APPEALS ERRED IN VALIDATING THE DENIAL OF 

SIX PROPER CHALLENGES FOR CAUSE

GROUND FOUR:

THE COURT OF APPEALS ERRED IN VALIDATING A JURY CHARGE 

THAT OMITTED THE ESSENTIAL ELEMENT OF ‘IN A CRUEL 

MANNER’ IN A CRUELTY TO ANIMALS OFFENSE

GROUND FIVE:

THE COURT OF APPEALS ERRED IN FINDING ABANDONMENT OF 

THE DOG IN ORDER TO DENY THE MOTION TO SUPRESS THE DOG 

AUTOPSY

1
Argument Amplifying Reasons for Granting Review

Ground 1: THE COURT OF APPEALS ERRED IN FINDING FORFEITURE IN 

THE WHOLESALE ADMISSION OF THE STATE’S STAR WITNESS’S 

RECORDED STATEMENT IN DIRECT VIOLATION OF THE HEARSAY 

RULE WHERE THE OTHER SIMILAR TESTIMONY ADMITTED WAS IN NO 

WAY SUBSTANTIALLY THE SAME 

REASONS FOR GRANTING REVIEW

1) Review should be granted pursuant to Tex. R. App. Pro.66.3 (c) and (a) 

because the court of appeals has decided an important question of state lawi.e., the defense forfeits complaint where the court admits inadmissible 

hearsay evidence but other evidence is admitted that is not the same import 

of the inadmissible hearsay- in a way that conflicts with the applicable 

decisions of the Court of Criminal Appeals, the United States Supreme 

Court and other courts of appeals’ decisions.

2) Review should be granted pursuant to Tex. R. App. Pro. 66.3 (f) because 

the court of appeals has so far departed from the accepted and usual course 

of judicial proceedings in their incorrect application of the law regarding 

forfeiture where the other evidence admitted is not substantively the same 

as the inadmissible hearsay so as to call for the exercise of this Court’s 

supervisory power. 

3) Review should be granted pursuant to Tex. R. App. Pro. 66.3 (b) because 

the court of appeals has decided an important question of state law i.e., 

whether other evidence admitted without objection that is not the same 

import as the admitted inadmissible evidence can result in error forfeiture,

an issue that has not been, but desperately needs to be, settled and clarified 

by this Court.

The state’s only eyewitness to the incident testified in court and did not

graphically describe Petitioner hitting or beating the dog intentionally and, through crossexamination, admitted she did not actually see all the events she described. R. Vol. IV –

24 – 78. The witness testified that the dog went to the bathroom on the floor, as it often 

2
did because it was not house broken, and ran under the bed. R. Vol. IV – 26, 48, 51-52. 

Petitioner got mad, got a broom and she heard noises in the bedroom and the dog yelping 

like she was scared but she could not see what was happening. R. Vol. IV – 28 – 30. She 

then saw the dog run out of the bedroom and under the futon where she was sitting and 

Petitioner continue to try to get the dog outside by sweeping and hitting the dog “like 

sideways” with the broom. R. Vol. IV – 30 – 33. 

On cross-examination it became clear that she did not actually see Appellant hit 

the dog. R. Vol. IV – 55. She admitted she could not see what was going on in the 

bedroom but only heard and guessed as to what was happening. R. Vol. IV – 55- 56. She 

said the dog’s crying was consistent with it getting into trouble and not necessarily being 

hit. R. Vol. IV – 55 - 56. She “thought” or “guessed” he had hit the dog and his use of the 

broom was more in a sweeping motion, from “side to side” to get her out from under the 

futon and outside. R. Vol. IV – 55, 60, 63, 76 - 77. When asked directly about her 

location during the incident and ability to see what was happening, she admitted she 

never actually saw the dog get hit. R. Vol. IV – 55 - 63.The prosecutor tried to 

rehabilitate her testimony by asking about her position in the room to develop that she 

could actually see the events. R. Vol. IV – 69 – 74. The witness still stated she did not 

actually see Appellant hit the dog with the broom but ‘thought’ he had. R. Vol. IV- 74 –

75. 

Ultimately, the prosecutor, making no attempt to impeach her own witness nor lay 

a proper predicate to do so, simply offered the witness’s unsworn audio statement 

through the detective as a “prior inconsistent statement...that is [an] exception to the 

hearsay rule”. R. Vol. IV – 119 – 121. The defense vehement hearsay objection was 

3
overruled and the entire audiotaped interview of the witness was admitted. R. Vol. IV –

119 – 121. The trial court clearly erred in the admission of highly prejudicial and 

completely inadmissible hearsay. Tex. R. Evid., R. 801; Tex. R. Evid., R. 801 (e) (1)(A); 

Tex. R. Evid., R. 613 (a); Pointer v. Texas, 380 U.S. 400 (1965); Ohio v. Roberts, 448 

U.S. 56 (1980); United States v. Diaz, 637 F3d 592 (5th Cir. 2011); Crawford v. 

Washington, 541 U.S. 36 (2004); Woodall v. State, 336 S.W.3d 634 (Tex. Crim. App. 

2011); Lopez v. State, 18 S.W.3d 220 (Tex. Crim. App. 2000); U.S. Const. Amend. VI, 

XIV. 

The Court of Appeals held, “Detective Brian Clouse, who conducted the 

interview, testified and described [the witnesses] statement in the same manner as [the 

audiotaped interview], that is, in terms of Appellant striking the dog without 

qualifications. Appellant did not object to Detective Clouse’s testimony. Therefore, we 

overrule his first point without reaching his hearsay arguments.” Amos v. State, No. 02-

13-00244-CR (Tex. App. – Fort Worth, delivered July 2, 2015 (Attached as Appendix 

Exhibit A).

This holding is in complete error when one compares and contrasts the

Detective’s testimony with the audiotaped statement. SX 2A, R. Vol. IV – 114 – 115. The 

Detective in no way describes the incident “in the same manner” as the audiotape. In the 

taped interview, and with the help of the Detective’s questioning skills, the witness 

graphically described directly seeing a brutal, intentional “beating” of the dog. SX 2A. 

The witness stated “he starts beating her with a broom,” and, “he started beating her until 

she stopped moving”. SX 2A (6:13 – 16, 6:41 – 44). These statements, among numerous 

others in the audio statement, are in no regard the same as the testimony of the Detective. 

4
R. Vol. IV – 114 – 115. The sum total of the Detective’s testimony on the topic was as 

follows:

[Prosecutor]: Okay. So your testimony is that from your investigation and from 

[the witnesses] statements that she was in that room, in the game room, when 

[Petitioner] allegedly beat the dog and she saw it?

[Detective]: Okay. They initially heard something in the master bedroom. The 

dog – [Petitioner] had slammed the door closed. The dog came running out, hid 

underneath the futon where they were. And then [Petitioner] told them to get up. 

And they kind of stepped to the hallway. And that’s when [Petitioner] began 

beating the dog.

(emphasis supplied) R. Vol. IV-114 – 115. This testimony in no way covers as much nor 

the same information and it is not near as graphic and damning as the audio statement. 

SX 2A, R. Vol. IV – 114 – 115. He also stated this information was from his 

investigation as a whole which does not mean that the witness actually told him this 

information. However, on the audiotape the witness, in her own words, described the 

events as though she had directly seen them and in very graphic terms. SX 2A.

Additionally, on the audiotape, the Detective interjected numerous personal and 

prejudicial opinions that he did not testify to. He stated that Appellant’s acts were “pretty 

bad”, what “he did was very, very wrong”, people should “not hurt animals at all” and 

this “should not have happened at all”. SX 2A. He also stated Appellant had admitted 

what he did and that this was “pretty bad”. SX 2A. The audio also contained the hearsay 

statements of Appellant’s girlfriend and daughter, as recited by the witness, none of 

which was testified to in court. SX 2A. Further, the audio discusses extraneous bad acts

in that the witness states she was told Petitioner had hit the dog before with the broom 

and that his girlfriend had said he beat her head against a wall before. SX 2A. None of 

5
this evidence was before the jury through any other means than the erroneous admission 

of the hearsay audiotape2

. 

For all these reasons’ the lower court’s argument of forfeiture fails. see and 

compare Leday v. State, 983 S.W.2d 713 (Tex. Crim. App. 1998). The Detective’s 

testimony was not in any regard the same substantive evidence as was contained on the 

inadmissible hearsay audio tape; thus, the court of appeals erred in finding forfeiture of 

Petitioner’s complaint. The lower court has so minimized and incorrectly applied the law

regarding forfeiture as to require the corrective intervention, clarification and direction of 

this Court and Petitioner requests this Court to grant review and ultimately reverse and 

remand for the lower court to properly address Petitioners hearsay complaint. 

Ground 2: THE COURT OF APPEALS ERRED IN FINDING THE 

INDICTMENT ALLEGED CRUELTY TO ANIMALS WHERE THE ESSENTIAL 

ELEMENT OF ‘IN A CRUEL MANNER’ WAS NOT ALLEGED

REASONS FOR GRANTING REVIEW

1) Review should be granted pursuant to Tex. R. App. Pro. 66.3 (b) because 

the court of appeals has decided an important question of state law i.e., 

whether ‘in a cruel manner’ is an essential element of the offense of animal 

cruelty, which is an issue that has not been, but needs to be, settled and 

clarified by this Court.

2 This recorded statement provides the perfect example of why out of court, unsworn and 

unquestioned statements are inadmissible in our court system and why the right to confront and cross 

examine witness’s is a cornerstone of our system of justice. Tex. R. Evid., R. 801; Pointer v. Texas, 380 

U.S. 400 (1965); Ohio v. Roberts, 448 U.S. 56 (1980); United States v. Diaz, 637 F3d 592 (5th Cir. 2011); 

Crawford v. Washington, 541 U.S. 36 (2004); Woodall v. State, 336 S.W.3d 634 (Tex. Crim. App. 2011); 

Lopez v. State, 18 S.W.3d 220 (Tex. Crim. App. 2000); U.S. Const. Amend. VI, XIV. In offering the prior 

audio statement, the prosecutor was merely seeking to get a better rendition of fact before the jury than was 

provided when cross examination brought to light the actual facts of the case and the witness’s inability to 

see what she had assumed or ‘thought’ occurred. See and compare state exhibit 2A (the recording) with 

witness testimony.

6

 
2) Review should be granted pursuant to Tex. R. App. Pro.66.3 (c) and (a) 

because the court of appeals has decided an important question of state law, 

i.e., is ‘in a cruel manner’ an essential element of the offense, in a way that 

conflicts with decisions of the Court of Criminal Appeals and other courts 

of appeals’.

3) Review should be granted pursuant to Tex. R. App. Pro. 66.3 (f) because 

the court of appeals has so far departed from the accepted and usual course 

of judicial proceedings in their incorrect application of the law so as to call 

for the exercise of this Court’s supervisory power. 

Under section 42.092(b) of the Texas Penal Code, the State Jail Felony offense of cruelty 

to animals is legally defined as:

 (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 [or];

(2) without the owner’s effective consent, kills, administers poison to, or 

causes serious bodily injury to an animal....

Tx. Penal Code, Sec. 42.092(b). Thus, under the statute, there are four ways cruelty to 

animals is defined as an offense: first, torture an animal; second, in a cruel manner kill 

an animal; third, in a cruel manner cause serious bodily injury to an animal; or, fourth, 

without the owner’s consent, kill or cause serious bodily injury to an animal. Tx. Penal 

Code, Sec. 42.092(b). The term “torture” is legally defined as “any act that causes 

unjustifiable pain or suffering.” Tex. Penal Code, Sec. 42.092(a)(8).The term “cruel 

manner” is legally defined as “ a manner that causes or permits unjustified or 

unwarranted pain or suffering. Tex. Penal Code, Sec. 42.092(a)(3). 

7
The instant indictment alleged the offense as follows: intentionally, knowingly or 

recklessly “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”. CR – 6. This indictment 

alleges causing serious bodily injury alone as a crime. This is clearly not the law. Tx. 

Penal Code, Sec. 42.092(b). The serious bodily injury must occur either in a “cruel 

manner” or without the owner’s consent as it is legally defined. Tx. Penal Code, Sec. 

42.092(b). The state alleged neither in the indictment; thus, the indictment attempts to 

charge an offense that is not an offense under the law. See State v. Kingsbury, 129 

S.W.3d 202 (Tex. App. – Corpus Christi 2004, no pet.). The defense filed and argued a 

Motion to Quash the indictment based on these grounds. CR – 106 – 109; R. Vol. III – 6-

10. He continued to object and argue this issue throughout the trial. R. Vol. III – 42, 90, 

104 - 107, 117 – 120, 164 – 165; R. Vol. V - 116 – 117. 

Causing serious bodily injury to a dog, standing alone, does not constitute a 

felony offense. Tx. Penal Code, Sec. 42.092(b); See State v. Kingsbury, 129 S.W.3d 202 

(Tex. App. – Corpus Christi 2004, no pet.). The act of causing serious bodily injury must 

be coupled with a “cruel manner” or without the owner’s consent for it to be an offense. 

Id. Because the instant indictment alleges the offense without these essential elements, it 

does not sufficiently allege a felony offense under the serious bodily injury portion and, 

as such is fundamentally defective. Studer v. State, 799 S.W.2d 263 (Tex. Crim. App. 

1990). The trial court reversibly erred in denying the motion to quash, allowing the state 

to go forward with this charge and allowing a jury to convict for conduct that is not a 

8
crime requiring this Court’s review. Id.; CR – 113 – 118; R. Vol. III – 42, 90, 104 - 107, 

117 – 120, 164 – 165; R. Vol. V - 116 – 117. 

Ground 3: THE COURT OF APPEALS ERRED IN VALIDATING THE 

DENIAL OF SIX PROPER CHALLENGES FOR CAUSE

REASONS FOR GRANTING REVIEW

1) Review should be granted pursuant to Tex. R. App. Pro.66.3 (c) and (a) 

because the court of appeals has decided an important question of state lawi.e., that general questions of the panel as a whole can be contradictory 

answers as to individual questions on voir dire sustaining the court’s denial 

of challenges for cause- in a way that conflicts with the applicable decisions 

of the Court of Criminal Appeals, the United States Supreme Court and 

other courts of appeals’ decisions and should be settled by this Court.

2) Review should be granted pursuant to Tex. R. App. Pro. 66.3 (f) because 

the court of appeals has so far departed from the accepted and usual course 

of judicial proceedings in their incorrect application of the law regarding 

contradictory answers in voir dire and challenges for cause so as to call for 

the exercise of this Court’s supervisory power. 

 Under section 42.092(b) of the Texas Penal Code, cruelty to animals occurs when:

 (b) A person...intentionally, knowingly, or recklessly:

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

injury to an animal [or];

(2) without the owner’s effective consent, kills, administers poison to, or 

causes serious bodily injury to an animal....

Tx. Penal Code, Sec. 42.092(b). 

9
In the instant case, trial counsel questioned the venire regarding their ability to 

follow this law in an animal cruelty case. Specifically, counsel questioned the jurors as to 

whether they could follow the law that states killing or causing serious bodily injury to an 

animal, standing alone, is not an offense. Tx. Penal Code, Sec. 42.092(b). After some 

preamble and discussion of the statutory law, defense counsel developed the following 

six challenges for cause: 

So I’m going to ask this section, if you can’t follow the law, that’s fine. But if 

you’re sitting over here, you have to follow the law.

If they prove—and I’m not saying they will, but let’s say intentionally, 

knowingly, recklessly they prove—and we’ll go through all that—someone killed 

something, an animal, but they don’t prove beyond a reasonable doubt cruel 

manner, i.e., pain and suffering, can you find the person not guilty? Can you 

follow the law? Can you really do it?

If you cannot follow the law, please raise your hand because you shouldn’t be on 

this jury. And there’s nothing wrong with that.

Okay. Keep your hands up. If you can’t follow the law, there’s nothing wrong 

with that, nobody is saying you’re a bad person.

...[irrelevant jurors raise hand, state they cannot follow law]

Mr. Jones [Defense counsel]: Daniel Richmond?

Venireman Richmond: Yes.

Mr Jones: You cannot follow the law in that respect. Is that a fair statement?

Venireman Richmond: That’s a fair statement.

Mr. Jones: Teresa Fay, you cannot follow the law in that respect?

Venirewoman Fay: No.

Mr. Jones: Ms. Whitley?

Venirewoman Whitley: Yes.

Mr. Jones: You cannot follow the law in that respect. Is that a fair statement?

Venirewoman Whitley: Yes. 

Mr. Jones: Mr. Lucas, you cannot follow the law in that respect. Is that a fair 

statement?

Venireman Lucas: Yes.

...[irrelevant jurors state they cannot follow law]

Mr. Jones: Just a second. Mr. –

Venireman Santocono: Santocono.

10
Mr Jones: oh, okay. Under the – you cannot follow the law under that respect. Is 

that a fair statement?

Venireman Santocono: Yes.

R. Vol. III – 101 – 115. Additionally, on the same qualifying question Venireman 

Laroche later raised his hand stating he could not follow the law. R. Vol. III – 115. Thus, 

each juror specifically understood the law and could not follow it, demonstrating their 

bias or prejudice against the law applicable to the case upon which the defense was 

entitled to rely. Tex. Code Crim. Proc., Art. 35.16(c) (2). Defense counsel challenged 

each of these jurors for cause, and each of his challenges were denied. R. Vol. III – 164 –

165. The trial court erred in denying these proper challenges for cause. Tex. Code Crim. 

Proc., Art. 35.16(c) (2); Sells v. State, 121 S.W.3d 748 (Tex. Crim. App. 2003).

The court of appeals held that these jurors gave “contradictory answers” by not 

raising their hand later in defense voir dire, as counsel was explaining the legal standard 

of beyond a reasonable doubt and got the panel as a whole to agree to make the state 

prove the elements of the offense beyond a reasonable doubt. R. Vol. III – 132 – 135. The 

court then ruled, because the jurors gave contradictory answers by agreeing in mass, 

“[t]herefore, according deference to the trial court’s decision, we conclude the trial court 

did not abuse its discretion.” Amos v. State, No. 02-13-00244-CR (Tex. App. – Fort 

Worth, delivered July 2, 2015 (Attached as Appendix Exhibit A).

The court cited a Houston court of appeals case as authority for this statement: 

Leadon v. State, 332 S.W.3d 600 (Tex. App. – Houston [14th Dist.] 2010, no pet.).

However, Leadon is inapplicable because the general question proffered was the same 

question the jurors had answered differently prior thereto and was asked by different trial 

counsel. Id. When jurors individually and very specifically state they would not follow a 

11
specific portion of the law and not require the state to prove a specific element of an 

offense, a general question to the entire panel via the same attorney on a different legal 

topic cannot suffice as a “contradictory” answer. See Tex. Code Crim. Proc., Art. 

35.16(c) (2); Sells v. State, 121 S.W.3d 748 (Tex. Crim. App. 2003). Because the court so 

found, the supervisory intervention of this court is respectfully requested.

Ground 4: THE COURT OF APPEALS ERRED IN VALIDATING A JURY 

CHARGE THAT OMITTED THE ESSENTIAL ELEMENT OF ‘IN A CRUEL 

MANNER’ IN A CRUELTY TO ANIMALS OFFENSE

REASONS FOR GRANTING REVIEW

1) Review should be granted pursuant to Tex. R. App. Pro. 66.3 (b) because 

the court of appeals has decided an important question of state law i.e., 

whether ‘in a cruel manner’ is an essential element of the offense of animal 

cruelty required to be plead in the jury charge, which is an issue that has not 

been, but needs to be, settled and clarified by this Court.

 As stated heretofore in Reason for Review Number Two, and not to be belabored

here, under our cruelty to animal statute, the act of causing serious bodily injury to a dog, 

standing alone, does not constitute a felony offense. Tx. Penal Code, Sec. 42.092(b); See 

State v. Kingsbury, 129 S.W.3d 202 (Tex. App. – Corpus Christi 2004, no pet.). The act 

of causing serious bodily injury must be coupled with a “cruel manner”. Id. The instant 

indictment did not properly allege the serious bodily injury aspect of the offense. CR- 6; 

see also discussion in Ground for Review Number Two. The court’s charge, likewise, did 

not require the jury to require to find serious bodily injury occurred to the dog in a “cruel 

manner”. CR – 113 – 118. The charging paragraph read, in pertinent part, if you find the 

12
Defendant did “intentionally or 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” then you will find the Defendant guilty. CR – 114. Trial counsel objected to 

the charge and asked that the charging paragraph include the statutory requirement of 

“cruel manner” be applied to the serious bodily injury portion of the charging paragraph. 

R. Vol. V – 116 – 117. The state did not object, yet the court denied the request. R. Vol. 

V – 117.

 The court of appeals upheld the trial court’s denial stating “[b]ecause the jury charge 

tracked the statutory language, the trial court did not err.” Amos v. State, No. 02-13-

00244-CR (Tex. App. – Fort Worth, delivered July 2, 2015 (Attached as Appendix 

Exhibit A). The jury charge allowed the jury to convict Appellant without requiring them 

to find all the essential elements of the offense beyond a reasonable doubt, i.e., of causing 

serious bodily injury to the dog without proof that it was done in a ‘cruel manner’ as 

required by law. Tx. Penal Code, Sec. 42.092(b). Because the verdict was a general 

verdict and the jurors were not required to agree on which theory to convict, as pointed 

out in the state’s closing argument, Appellant could have been convicted of causing 

serious bodily injury without proof of a cruel manner which is not an offense under our 

law. R. Vol. V – 122; CR – 114; Tx. Penal Code, Sec. 42.092(b). To allow a jury to 

convict Petitioner of a crime without every essential element being proven beyond a 

reasonable doubt, as the instant jury charge does, requires reversal. Thus, the lower court 

erred requiring this Court’s intervention and review. 

13
Ground 5: THE COURT OF APPEALS ERRED IN FINDING ABANDONMENT 

OF THE DOG IN ORDER TO DENY THE MOTION TO SUPRESS THE DOG 

AUTOPSY

REASONS FOR GRANTING REVIEW

1) Review should be granted pursuant to Tex. R. App. Pro. 66.3 (b) because 

the court of appeals has decided an important question of state law i.e., 

whether cremation of a deceased dog is abandonment, which is an issue 

that has not been, but needs to be, settled and clarified by this Court.

This case presents interesting and novel questions of law: whether a search warrant is 

required to perform an autopsy upon an owner’s dog and whether a request for cremation 

constitutes abandonment. The court of appeals found that a dog is personal property and

subject to the same protections as any other property. Amos v. State, No. 02-13-00244-

CR (Tex. App. – Fort Worth, delivered July 2, 2015 (Attached as Appendix Exhibit A).

In the instant case, Petitioner took the dog to the vet and, upon learning she was 

deceased, requested and paid for the dog’s cremation. R. Vol. IV – 36, 96 - 97, 162 –

163, 194. Further, Appellant’s girlfriend came back to the vet at a later time to pay the 

remainder of the fee for cremation. R. Vol. IV – 96 - 97. However, rather than cremating 

the dog, the vet contacted the detective who then had the dog sent to another vet to have 

an autopsy or “necropsy” performed. R. Vol. IV – 97 – 99. No warrant was obtained to 

search or seize the dog. R. Vol. IV – 97 – 99.

The search of the dog, i.e., the autopsy, was an illegal search under State and Federal 

constitutions requiring suppression because it was conducted at the behest of law 

enforcement without a warrant. TEX. CONST. Art. I, Sec. 9; U.S. CONST. amend. IV ; 

Tex. Code Crim. Proc., Art. 38.23. Appellant did not consent to the search of his dog nor 

14
did he abandon the dog, he, in fact, requested and paid for cremation, exhibiting an 

expectation of privacy and ownership. R. Vol. IV – 36, 96 - 97, 143, 162 - 163. 

The court of appeals agreed on all the Fourth Amendment issues concerning the dog 

being protected property and a warrant would be required to do the search, i.e., the 

autopsy on the dog. However, the court found Petitioner abandoned the dog when he left 

her at the vet and paid for a communal cremation vitiating the warrant requirement. R. 

Vol. IV – 36, 96 - 97, 143, 162 - 163. The very fact Petitioner paid for a communal 

cremation and his girlfriend returned to pay the rest of the fee, reflects his continued 

possessory interest in his dog after leaving her at the vet. R. Vol. IV – 96 - 98, 143, 162 -

163. Although he did not express intention to retrieve her ashes, he did exercise a 

continued possessory interest by determining what happened to her after he left her

constituting a continuing possessory interest in his property, not abandonment. R. Vol. IV 

– 36, 96 - 97, 162 – 163, 194.

The vet tech herself acknowledged and sanctioned Petitioner’s continued possessory

interest in the dog by discussing with him the options and ultimately asking him what he 

wished to do with the dog. R. Vol. IV – 36, 96 - 97, 162 – 163, 194. The misconduct of 

the vet and the police resulted in the dog not being cremated as Petitioner had paid for 

but, instead, being seized for autopsy. See and compare McDuff v. State, 939 S.W.2d 607 

(Tex. Crim. App. 1997), cert denied, 522 U.S. 844 (1997). For all these reasons, the 

court erred in finding abandonment requiring review of this Court.

15
 Conclusion and Prayer for Relief

WHEREFORE, ALL PREMISES CONSIDERED, petitioner prays this Court 

grant review and, after a full briefing on the merits, issue an opinion reversing and 

remanding and resolving these important issues so that the bench and bar of this state will 

know how to address similar issues in the future. 

 Respectfully submitted,

___________________________

/s/ Lisa Mullen

Attorney at Law

3149 Lackland Road, Suite 102

Fort Worth, Texas 76116

(817) 332-8900

State Bar No. 03254375

Lisa@MullenLawOffice.com

16

 Lisa Mullen
Certificate of Service

I hereby certify that a true copy of this document was served on September 3, 

2015, by mail delivery upon Assistant District Attorney Charles Mallin, Appellate 

Section, Tarrant County District Attorney’s Office, 401 West Belknap, Fort Worth, Texas 

76104, and by mail delivery upon the Office of the State Prosecuting Attorney, P.O. Box 

13046, Capitol Station, Austin, Texas 78711.

___________________________________

 /s/ Lisa Mullen

 Attorney at Law

CERTIFICATE OF COMPLIANCE

 I, Lisa Mullen, pursuant to Rule 9.4(i)(2)(D) of the Texas Rules of Appellate 

Procedure, do hereby certify the word count of the applicable portions of this Petition for 

Discretionary Review is 4,452 words and within the 4,500 word limit as required by the 

rules. 

__________________________

/s/ Lisa Mullen

Attorney at Law

3149 Lackland Road, Suite 102

Fort Worth, Texas 76116

(817) 332-8900

State Bar No. 03254375

Lisa@MullenLawOffice.com

17

 Lisa Mullen Lisa Mullen
18
19
COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-13-00244-CR

MICHAEL AMOS APPELLANT

V.

THE STATE OF TEXAS STATE

----------

FROM CRIMINAL DISTRICT COURT NO. 4 OF TARRANT COUNTY

TRIAL COURT NO. 1322040R

----------

OPINION

----------

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 

 

1Appellant’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 
2

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).
3

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?
4

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 
5

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, 
6

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).
7

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, 

 

3Appellant’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.
8

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 
9

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?
10

(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.
11

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 
12

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, towit: 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). 
13

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 
14

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 
15

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