COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-13-00244-CR

MICHAEL AMOS APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM CRIMINAL DISTRICT COURT NO. 4 OF TARRANT COUNTY

TRIAL COURT NO. 1322040R

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OPINION

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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 
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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?
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(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.
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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