## No. PD

- 0 983

- 1 5

_____________________________________________________ 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 C ourt of Appeals, T arrant County Appeal Number 0 2

- 1 3

- 00 244

- CR

Trial Court Number 1322040R Honorable Mike Thomas, presiding

_____________________________________________________ APPELLANT’S PETITION FOR DISCRETIONAR Y REVIEW September 3, 2015

_____________________________________________________

Lisa Mullen Attorney at Law 3149 Lackland Road, Suite 102 Fort Worth , Texas 7 61 16 ( 817 ) 332

- 8900 State Bar No. 03254375 Lisa@MullenLawOffice.com 

# O ral argument requested

### Table of Contents
Table of Contents

................................................................... . ii
Table of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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

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

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

.... ... .. v Interested Parties and Service......................................................vi
Ground s Presented for Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

. . ... 1
Ground 1

. ............................................................................ .. .. 2
THE COURT OF APPEALS ERRED IN FINDING FORFEITURE IN THE WHOLESALE ADMI SSION OF THE STATE’S STAR WITNESS ’ S RECORDED STATEMENT IN DIRECT VIOLATION OF THE H EARSAY RULE WHERE THE OTHER SIMILAR TESTIMONY ADMITTED WAS IN NO WAY SUBSTANTIALLY THE SAME
Gro und 2..............................................................................

.. 6
THE COURT OF APPEALS ERRED IN FINDING THE INDICTMENT ALLEGE D 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 DEN IAL 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

iiTHE 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

.......................................... ...... .1 6
Ce rtif icate of Service.........................................................

...... 1 7 Certificate of Compliance................................................

...... .. . . 1 7 Appendix

..................................................................... ....... . 1 8
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 [14 th 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 (5 th 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, Petition er 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 parag raph 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. P etitioner 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 rais ing five point s of error. On July 2, 2015, the Second Court of Appeals denied all point s 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,
201 5 , and will be timely filed

.

1 Amos v. State , No. 0 2

- 13

- 00 244

- CR (Tex. App.

– Fort Worth, delivered July 2, 201 5 (Attached as Appendix Exhibit A).
vINTERESTED 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

- Ap pellate 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 761 16 (817) 332

- 8900 FAX: (817) 332

- 8904 Bar Number 03254375 Email: Lisa@Mullenlawoffice.com

vi

## Ground s Presented for Review
GROUND ONE :
THE COURT OF APPEALS ERRED IN FINDING FORFEITURE IN THE WHOLESALE ADMI SSION OF THE STATE’S STAR WITNESS ’ S RECORDED STATEMENT IN DIRECT VIOLATION OF THE H EARSAY 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 ABANDON MENT 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 ADMI SSION OF THE STATE’S STAR WITNESS ’ S RECORDED STATEMENT IN DIRECT VIOLATION OF THE H EARSAY 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 importa nt question of state law

i.e., the defense forfeits c omplaint where the court admit s 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 evi dence 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 cross

examination, 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 2did because it was not house broken, a nd 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.
O n cross - examination it became clear that she did not actual ly 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 a nd 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. T he 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, t he 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 3overruled and the entire audiotaped interview of the witness was admitted. R. Vol. IV

– 119

– 121

. T he trial court clearl y 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); P ointer v. Texas , 380 U.S. 400 (1965) ; Ohio v. Roberts , 448 U.S. 56 (1980) ; United States v. Diaz , 637 F3d 592 (5 th 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 D etective Clouse’s testimony. Therefore, we overrule his first point without reaching his hearsay arguments. ” Amos v. State , No. 0 2

- 13

- 00 244

- CR (Tex. App.

– Fort Worth, delivered July 2, 201 5 (Attached as Appendix Exhibit A). This holding is in complete error when one compares and contrasts the
Detective’s test imony 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 graphical ly de scribed directly seeing a brutal, intentional “beating” of th e 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. 4R. Vol. IV

– 114

– 115. The sum total of the Det ective’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 ste pped 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 s tated 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, describ ed the events as though she had directly seen them and in very graphic terms. SX 2A.
A dditionally, on the audiotape, t he Detective interjected numerous personal and prejudicial opinions that he did not testify to. He stated that Appellant’s acts were “prett y 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 hea rsay statements of Appellant’s girlfriend and dau ghter , 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 be fore with the broom
and that his girlfriend had said he beat her head agai nst a wall before. SX 2A. None of

5this evidence was before the jury through any other means than the erroneous admission of the hearsay audiotape 2

. For all these reasons’ the lower court’s argument of forfeiture fails. s ee and
compare Leday v. State , 983 S.W.2d 713 (Tex. Crim. App. 1998)

. T he 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 s o 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 T his 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. E vid., 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 (5 th 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 pro vided 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 st ate 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 perso n 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)

.

7The instant indictment alleged the offense as follows: intentionally, knowingly or recklessly “torture or in a cruel manner kill or cause serious b odily 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, n o 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 c ontinued 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.

C ausing 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

8crime 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 CAUS E



### 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 law

i.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. P ro. 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 contradi ctory 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...intentionall y, 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)

.

9In the instant case, trial counsel questioned the venire regar ding their ability to
follow this law in a n 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 ov er 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: Y es. 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.

10Mr 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 p rejudice 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 chall enged 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 defens e voir dire , as counsel was explaining the legal standard of beyond a reasonable doubt and got the panel as a whole to agree to mak e 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 i n 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. 0 2

- 13

- 00 244

- CR (Tex. App.

– Fort Worth, delivered July 2, 201 5 (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 [14 th Dist.] 2010, no pet.)

. However, Leadon is inapplicable because the general question proffered was the same question the juro rs 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 11specific 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. Pro c., Art. 35.16(c) (2); Sells v. State , 121 S.W.3d 748 (Tex. Crim. App. 2003)

. Because the court so found, the supervisory interv ention 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 , w hich 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 Tw o, and not to be belabored
he re, 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 c harging paragraph read, in pertinent part, if you find the

12Defendant 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. 0 2

- 13

- 00 244

- CR (Tex. App.

– Fort Worth, delivered July 2, 201 5 (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. Pena l 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 wit hout 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 ju ry to convict Petitioner of a crime without every essential element being proven beyond a reasonable doubt, as the i nstant 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 question s of law: whether a search warrant is required to perform an autopsy upon an owner’s dog and whether a request for cremation
constitute s abandonment

. The court of appeals found that a dog is personal prop erty and subject to the same protections as any other property. Amos v. State , No. 0 2

- 13

- 00 244

- CR (Tex. App.

– Fort Worth, delivered July 2, 201 5 (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 crematio n. 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

sear ch or seize the dog. R. Vol. IV

– 97

– 99. The search of the dog, i.e., the autopsy, w as an illegal search under State and Federal
constituti ons 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 di d not consent to the search of his dog nor

14did 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 sea rch, 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 vit iating the warrant requirement . R.
Vol. IV

– 36, 96

- 97, 143, 162

- 163. T he 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 intentio n to retrieve her ashes, he did exercise a continued possessory interest by determin ing 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 ack nowledged 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

. T he 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 aba ndonment requiring review of this Court.

15C 

### o nclusion and Prayer for Relief
W HEREFORE, 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 th ese important issue s 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 7 61 16 ( 817 ) 332

- 8900 State Bar No. 03254375 Lisa@MullenLawOffice.com

16

### 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 , T arrant County District Attorney’s Office, 401 West Belknap , Fort Worth , Texas
7 6104 , and by mail delivery upon the Office of the State Prosecuting Attorney , P.O. Box 13046, Capi tol 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, 4 52 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

171819

## 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 DISTRI CT COURT NO. 4 OF TA RRANT COUNTY

TRIAL COURT NO. 1322 040R

---------- 

### OPINION

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

non livestock animal. After finding an enhancement paragraph true, the jury assessed Appellant’s punishment at thirty

- one months’ confinement in the Institutional Division of th e Texas Department of Criminal Justice. 1 

### Appellant

1 

### Appellant’s charged offense constituted a state jail felony . Tex. Penal Code Ann. § 42.092(c) (West 2011). H owever, 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 si x 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. Tha t 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 bed room 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, w hile H.C.

the offense punishable as a third degree felony. Id. § 12.35(c) (2)(B) (West S upp. 201 4 ). 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 wa ll and also saw Zoe “kind of crawl[ing]
out

. ” T hen 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 us ing 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 hit ting 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 [Appellan t] 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 havin g been “flailing,” which the nurse said indicated Zoe was in pain. T he 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 consi stent with being hit with a broom handle. S he 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 speci alist’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 suspect ed 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 t he veterinary diagnostic laboratory at Texas A & M University performed a necropsy on Zoe, a Shih Tzu, which the veterinarian de scribed 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 stressf ul situation, will try to escap e and hide

. A nother veterinarian had submitted Zoe for the necropsy, and although t he 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 i s 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 relati vely 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 s eeing the broom strike the dog

. Detective Brian Clous e , who conducted the interview, testi fied and describe d 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. There fore, 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 offens e. 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 cau ses 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 defin ed 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

se rious 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 statut e 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 crim inal 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 Cau se In his third point, Appellant contends the trial court erred by denying six of his challenges for cause. Appellant contends six venire members said they would find someone guilty if the person killed an animal even if the State did not
prove that the killing was in a cruel manner, that is, even if the State failed to prove pain and suffering. An appellate court will reverse a trial court’s ruling on a challenge for cause only in the case of a clear abuse of discretion. Curry v. State , 910 S.W.2d 490 ,

3 

### Appellant’s motion to quash attacked earlier versions of the indictment that did not track the statutory l anguage. About a month before t rial, the State filed an indictment tra cking 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. 199 2) , 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. 199 0 ). 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 ven ire 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 dec ision. 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 misleadi ng, they had to speak up. After the six venire members said they would not follow the law , the y did not speak up when asked if they would require the State to prove every element , as illustrated in the follow ing exchange between defense counsel and the ve nire : [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 COUN SEL]: 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 y ou’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 dou b t? 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? (Ve nire 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 s ure 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

. Se e 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 an d 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, 20 00 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 bodil y 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 Appel lant’s request. Appellant contends the jury could have convicted him for causing bodily injury without proof of a cruel man ner, which is not an offense. In our review of a jury charge, we first determine whether error occurred; if error did not occur, ou r 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 dou b t 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 dou b t that on or about the 13th day of May, 2011, in Tarrant Count y, Texas, the defendant, [Appellant], did then and there recklessly, to

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

- wit: a dog, by hitting the dog with a broom or b roomstick, 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 probabl e 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 (T ex. App.

— Dallas 2008, pet. denie d). W e review a trial court’s ruling on a motion to suppress eviden ce 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 an d 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 intend ed 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. 199 4) , cert. denied , 519 U.S. 838 (1996)

. Abando n ment 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. T he 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 standin g 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 b efore 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
pus hed 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 Zo e’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, w e 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 a nd, therefore , that he lacked standing to contest the reasonableness of any search. See id. at 616. The Metro West Veterinary Emergency Cente r 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 p oint. 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