AFFIRMED; Opinion Filed December 30, 2014.

S

In The

Court of Appeals

Fifth District of Texas at Dallas

No. 05-13-00340-CR

JANINE JOYCE CHARBONEAU, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the County Court at Law No. 6

Collin County, Texas

Trial Court Cause No. 006-80751-2012

MEMORANDUM OPINION

Before Justices Bridges, Lang, and Evans

Opinion by Justice Evans

Janine Joyce Charboneau appeals from her conviction following a jury trial for animal 

cruelty. In two issues, Charboneau contends her conviction should be reversed because the trial 

court demonstrated bias in the proceedings below and erred in not suppressing evidence obtained 

through the execution of improperly issued warrants. We affirm the trial court’s judgment.

I. FACTUAL BACKGROUND

On November 16, 2011, Collin County Animal Control Officer Danny Davis received an 

anonymous phone call concerning possible animal cruelty involving horses. Officer Davis 

responded by visiting the property where the informant stated the horses were being kept to 

investigate the allegation. The property was located in a residential area and included a half-acre 

pen containing several horses. It was later established that the property belonged to Janine 

Charboneau. According to Davis, the horses on the property were thinner than normal and the 
–2–

pen was dirty, but they had food and water and room to move around. The pen was located near 

the residence and next to a 600 square foot metal shed.

As Davis was observing the horses, he heard dogs barking inside the shed. Davis stated

he could tell from the barking that the shed contained multiple dogs of both large and small 

breeds. Davis further stated that there was an odor coming from the shed that, from his 

experience in animal control, he associated with animal hoarding.

Davis then saw a young woman walk out of the residence with a greyhound dog. The girl 

was Charboneau’s daughter, Madison McInnis. According to Davis, the greyhound with 

McInnis appeared to be “very emaciated.” McInnis told Davis that the dog did not belong to her

and she was keeping the dog for someone else. McInnis testified she also told Davis that her 

mother was a veterinarian and the dog was on a special diet. Davis denied being told either of 

these things by McInnis. Davis asked about the dogs in the shed and McInnis told Davis he 

could not go into the shed unless he spoke with her mother first.

Davis and McInnis contacted McInnis’s father who had Charboneau call Davis. 

Charboneau told Davis she was a veterinarian practicing in the area of animal behavior. Davis 

then told Charboneau he wanted a “real vet” to check on the condition of the horses. When 

Davis asked permission to check on the dogs in the shed, Charboneau refused to allow him to 

enter. Davis took several pictures of the greyhound to document its condition and contacted the 

sheriff’s department to request a warrant to enter the shed. 

Deputy Nathan Holton responded to Davis’s call and went to meet him at Charboneau’s 

property. Davis and Holton knocked on the residence door, but no one responded. McInnis 

testified she heard the officers knocking and chose not to answer. Holton testified he could hear 

dogs barking in the shed and could smell an odor of dog feces coming from inside. Holton then 

called Sergeant Chris Ware to relay his and Davis’s observations for purposes of obtaining a 
–3–

warrant to search the shed and seize any animals that were in danger. Holton stated that Davis 

never told him the property owner was a veterinarian and, accordingly, he did not relay this fact 

to Ware.

Ware testified he received a call from Holton stating there was a dog on the property that 

was emaciated and needed care. Holton further told him that if the dog did not get proper care, it 

was in danger of dying. Finally, Holton told Ware there were other animals on the property that 

possibly also needed veterinary care. Based on this information, Ware requested a seizure 

warrant under section 821.022 of the Texas Health and Safety Code. Ware submitted a probable 

cause affidavit in support of the warrant request that stated in relevant part:

On November 16, 2011, at approximately 12:30 pm, Collin County Sheriff’s 

Deputy N. Holton was dispatched to [Charboneau’s residence] in Lucas Texas in 

reference to a Cruelty to Animals call. Upon arrival, Deputy Holton made contact 

with Collin County Animal Services who alerted him to the location of the 

animals. Animal Control Officer Davis had observed a white Greyhound dog on 

property; Davis described the dog as emaciated and in poor health. Davis said 

that he could hear other dogs barking on the property but could not see them. 

Davis believes that the other dogs on the property may also be in need of 

veterinary care.

A seizure warrant was issued that afternoon and Ware delivered it to the property.

Once the warrant was received, Davis and a second deputy tried again to make contact 

with someone in the residence, but no one answered the door. At that point, Davis received 

another phone call from Charboneau who told him that she was on her way to the property and 

she would be there shortly. Charboneau asked them not to involve her children. Davis and the 

deputy waited approximately two hours, but Charboneau never arrived. They then went forward 

with executing the warrant.

Davis testified that the interior of the shed was filthy, covered in urine, feces, and dog 

hair. He stated the smell was overpowering. He found animals stacked in cages with two 

animals placed in cages that were not large enough to hold a single animal. He also found 
–4–

animals being kept in plastic tubs and trash cans in four or five inches of their own waste. Based 

on what was found in the shed, Davis requested a second warrant to seize the remainder of the 

animals located on the property, including the greyhound in the residence. The same probable 

cause affidavit was used to support issuance of the second warrant. Ultimately, 31 dogs were 

removed from the shed and approximately 17 dogs were removed from the residence.

McInnis testified that the dogs in the shed belonged to her mother and that they were not 

there because they were sick. McInnis also testified that her mother had a medical condition that 

made it hard for her to care for the dogs appropriately. McInnis conceded that the shed was dirty 

and unsanitary. According to McInnis, Charboneau was simply doing the best she could given 

her condition.

Charboneau was arrested and charged with cruelty to non-livestock animals by 

“intentionally, knowingly, or recklessly fail[ing] unreasonably to provide necessary food or 

water or care or shelter for an animal, to-wit: dogs in [her] custody . . . .” Following a trial at 

which Charboneau represented herself, the jury convicted her and assessed punishment at 365 

days’ confinement and a $2000 fine. The jury recommended that the sentence be suspended. 

The trial court placed Charboneau on community supervision for 24 months and assessed 10 

days’ confinement in jail among other conditions. Charboneau now brings this appeal.

II. ANALYSIS

A. Judicial Bias

In her first issue, Charboneau contends the verdict against her is tainted because the trial 

judge demonstrated prejudice and bias against her in the presence of the jury. Specifically, 

Charboneau complains that the trial judge made a comment to the jury that Charboneau

“voluntarily absented” herself from the proceedings when she failed to return to court following

an afternoon break. Charboneau states that her failure to return to court that day was not 
–5–

“voluntary” but rather the result of a medical emergency during which she suffered an elevation 

in her heart rate and blood pressure. Charboneau asserts that the trial judge’s characterization of 

her absence as voluntary “vitiated the presumption of innocence” before the jury.

1

To reverse a judgment based on improper conduct or comments of the judge, we must 

find that judicial impropriety was committed and that the complaining party suffered probable 

prejudice as a result. See Dockstader v. State, 233 S.W.3d 98, 108 (Tex. App.—Houston [14th 

Dist.] 2007, pet. ref’d). The scope of our review is the entire record. Id. Judicial remarks during 

the course of a trial that are critical, disapproving, or even hostile to counsel, the parties, or their 

cases, ordinarily do not support a bias or partiality challenge. Id. Such remarks may 

demonstrate bias if they reveal an opinion arising from an extrajudicial source. Id. However, 

when no extrajudicial source is alleged, such remarks will support a bias challenge only if they 

reveal such a high degree of favoritism or antagonism as to make fair judgment impossible. Id.

The comment about which Charboneau complains does not constitute judicial 

impropriety. The term “voluntarily absent” comes from article 33.03 of the Texas Code of 

Criminal Procedure which requires the presence of the defendant at trial in all misdemeanor 

cases where the punishment, or any part thereof, is imprisonment unless the defendant 

“voluntarily absents” herself after pleading to the indictment or information. TEX. CODE CRIM.

PROC. ANN. art. 33.03 (West 2006). Although the trial judge stated that Charboneau’s absence

was voluntary, he did not proceed with the trial without her, but rather recessed until the next 

morning when Charboneau returned to court. His statement related to the status of the 

proceeding and does not demonstrate any antagonism toward Charboneau. Nor can it be viewed 

 1 We note that Charboneau neither filed a motion to recuse nor raised this issue in her motion for new trial. 

Based on these failures, the State contends Charboneau failed to preserve the issue of bias for appellate review. 

Charboneau responds that she was unaware of the comment made the focus of her appellate challenge until she read 

the reporter’s record in preparation for her appeal because the comment was made outside her presence. We do not 

decide the waiver issue and address Charboneau’s arguments on the merits. 
–6–

as a comment on, or opinion about, the merits of her case. There is no evidence that the trial 

judge was aware of Charboneau’s alleged medical emergency at the time he made the statement.

Although Charboneau summarily asserts that the judge’s comment “vitiated the 

presumption of innocence,” she offers no argument or authority to support this contention or 

explain how the statement about which she complains relates to the State’s burden of proof. The 

jury charge included the following instruction: 

All persons are presumed to be innocent and no person may be convicted of an 

offense unless each element of the offense is proved beyond a reasonable doubt. 

The fact that a person has been arrested, confined, or charged with an offense 

gives rise to no inference of guilt at her trial. The law does not require a 

defendant to prove her innocence or produce any evidence at all. The

presumption of innocence alone is sufficient to acquit the defendant, unless the 

jurors are satisfied beyond a reasonable doubt of the defendant’s guilt after careful 

and impartial consideration of all of the evidence in the case.

There is nothing in the record to indicate that the jury did not follow this instruction.

Charboneau points to other actions of the trial judge that she alleges demonstrate bias 

including requiring her to serve ten days in jail and sustaining the state’s objection to the 

testimony of her personal physician. She generally asserts that these actions were biased, unfair, 

and in violation of numerous provisions of the U.S. and Texas constitutions. She presents no 

independent issues on appeal, however, assigning error to these actions. The remedy for unfair 

rulings is to assign error to the ruling itself rather than to complain of bias. See In re City of 

Dallas, 445 S.W.3d 456, 467 (Tex. App.—Dallas 2014, no. pet. h.). Furthermore, bias almost 

never can be shown based solely on the judge’s rulings in the case. See id.; see also Liteky v. 

United States, 510 U.S. 540, 555 (1994) (judicial rulings “can only in the rarest circumstances 

evidence the degree of favoritism or antagonism required to establish bias”). After examining 

the record as a whole, we conclude Charboneau has failed to demonstrate any bias on the part of 

the trial judge requiring reversal. We overrule her first issue.

B. Probable Cause Affidavits
–7–

In her second issue, Charboneau contends the trial court erred in not suppressing the 

evidence obtained through the execution of the seizure warrants because the warrants were not 

supported by probable cause. In addition, Charboneau argues the warrants were invalid because

the affidavits supporting their issuance omitted the material fact that she was a veterinarian. We 

review the evidence regarding probable cause affidavits using a “totality of the circumstances” 

standard of review. See Heitman v. State, 789 S.W.2d 607, 610 (Tex. App.—Dallas 1990, pet. 

ref’d). After reviewing the supporting affidavit realistically, and with common sense, we must 

uphold the magistrate’s decision so long as the magistrate had a substantial basis for concluding 

that probable cause existed. See State v. Duarte, 389 S.W.3d 349, 354 (Tex. Crim. App. 2012). 

The test is whether a reasonable reading by the magistrate would lead to the conclusion that the 

four corners of the affidavit provide a substantial basis for issuing the warrant. Id. Probable 

cause exists when, under the totality of the circumstances, there is a fair probability that 

contraband or evidence of a crime will be found at the specified location. Id. Even in close 

cases we give great deference to a magistrate’s determination of probable cause. Id.

The facts set forth in the probable cause affidavits at issue here showed the following: A 

deputy was dispatched to Charboneau’s residence in reference to a cruelty to animals call. The 

deputy met an animal control officer on the property who stated he had observed a dog that was 

“emaciated and in poor health.” The animal control officer also heard other dogs on the property 

barking in such a manner that he believed they could also need medical care. The combined 

logical force of these facts is that an officer, trained in the area of animal cruelty, saw and heard 

animals on the property that he believed were being unreasonably neglected and in need of

medical care. Such facts provide a substantial basis for the magistrate to conclude there was a 

fair probability that evidence of a crime would be found on the property.
–8–

Charboneau argues the warrants were invalid because they omitted the fact that she was a 

veterinarian. According to Charboneau, this fact would have negated the assertion in the 

affidavit that the dogs on her property were in need of “veterinary care” and removed probable 

cause for the warrant. In Franks v. Delaware, the United States Supreme Court recognized that,

if an affirmative misrepresentation is knowingly included in a probable cause affidavit in support 

of a warrant, and the misrepresentation is material and necessary to establishing probable cause, 

the warrant is invalid. See Franks v. Delaware, 438 U.S. 154, 164–65 (1978). A misstatement 

that is the result of simple negligence or inadvertence, however, as opposed to reckless disregard 

for the truth, will not make the warrant invalid. See Dancy v. State, 728 S.W.2d 772, 783 (Tex. 

Crim. App. 1987). The Texas Court of Criminal Appeals has not yet recognized that a Franks

analysis applies to omissions in addition to false statements. See Brooks v. State, 642 S.W.2d

791, 796–97 (Tex. Crim. App. [Panel Op.] 1982). But, the Fifth Circuit, along with other Texas 

appellate courts, including this one, has concluded that allegations of material omissions should 

be treated in the same manner as alleged material misstatements. See United States v. Martin,

615 F.2d 318, 328 (5th Cir. 1980); State v. Verde, 432 S.W.3d 475, 483–84 (Tex. App.—

Texarkana 2014, pet. ref’d); Blake v. State, 125 S.W.3d 717, 724 (Tex. App.—Houston [1st 

Dist.] 2003, no pet.); Heitman 789 S.W.2d at 610–11; Melton v. State, 750 S.W.2d 281, 284 

(Tex. App.—Houston [14th Dist.] 1988, no pet.).

 In this case, Sergeant Ware, who signed the probable cause affidavit, was never 

informed that Charboneau was a veterinarian. Officer Davis, who supplied the information upon 

which the probable cause affidavit was based, testified that although Charboneau told him she 

was a veterinarian, she also told him she practiced in the area of animal behavior, not medical 

care and treatment. According to Davis, he considered it irrelevant that Charboneau was an 

animal behaviorist because the animals appeared to need medical treatment. Furthermore, Davis 
–9–

stated that the fact that Charboneau was a veterinarian did not mean she was not engaging in acts 

of animal cruelty.

The record does not support a conclusion that the failure to include the fact that 

Charboneau was a veterinarian in the probable cause affidavit was done with reckless disregard 

for the truth. Indeed, other facts that would have supported probable cause, including the intense 

odor emanating from the shed that Davis associated with animal hoarding, were also left out of 

the affidavit. When the same affidavit was submitted for the second warrant, it omitted 

numerous new facts about the conditions found in the shed when the first warrant was executed. 

In determining whether there was a reckless disregard for the truth, the trial court could properly 

consider all the facts known when the probable cause affidavit was submitted. Finally, the 

addition of the fact that Charboneau was a veterinarian would not have rendered the affidavit, 

read as a whole, insufficient to show probable cause. The affidavit stated the animals to be 

seized were at Charboneau’s residence, not a veterinary clinic. At least one animal on the 

property appeared to an officer trained in animal cruelty to be suffering from unreasonable 

neglect. As Davis stated, nothing about Charboneau’s status as veterinarian rendered her 

incapable of committing acts of animal cruelty. We resolve Charboneau’s second issue against 

her.

We affirm the trial court’s judgment.

Do Not Publish

TEX. R. APP. P. 47

131340F.U05

/David Evans/

DAVID EVANS

JUSTICE
–10–

Court of Appeals

S

Fifth District of Texas at Dallas

JUDGMENT

JANINE JOYCE CHARBONEAU, 

Appellant

No. 05-13-00340-CR V.

THE STATE OF TEXAS, Appellee

On Appeal from the County Court at Law 

No. 6, Collin County, Texas

Trial Court Cause No. 006-80751-2012.

Opinion delivered by Justice Evans. 

Justices Bridges and Lang participating.

Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered this 30th day of December, 2014.