COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-12-00411-CR

SANDEN COTTONGAME APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM COUNTY CRIMINAL COURT NO. 4 OF DENTON COUNTY

TRIAL COURT NOS. 11604-4299, CR-2011-08399-Y

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MEMORANDUM OPINION1

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Appellant Sanden Cottongame appeals from her conviction for violating a 

city ordinance regarding the number of animals that may be kept without a 

permit. We affirm.2

 

1See Tex. R. App. P. 47.4.

2

This appeal was originally submitted without oral argument on March 29, 

2013, before a panel consisting of Justice Gardner, Justice McCoy, and Justice 

Meier. See Tex. R. App. P. 39.8; 2nd Tex. App. (Fort Worth) Loc. R. 3B(2). The 
2

I. BACKGROUND

Appellant lived in Krum, Texas (the city), and she apparently was widely 

known to feed and take care of feral cats. The city had an ordinance limiting the 

number of cats or dogs that could be kept on a person’s property: “A person may 

keep three (3) dogs and three (3) cats, plus a litter of each to age three (3) 

months, without a permit, and, with a permit, may keep a larger specified number 

of dogs or cats.” Appellant did not have a permit to keep more than three cats. 

One of the city’s animal-control officers, Roger Hooten, knew Appellant had more 

than three cats but did not enforce the ordinance against her because she was 

helping with the feral-cat problem in the city and because “she was . . . 

attempting to bring into compliance [her] animal rescue.” Before Hooten left his 

job as an animal-control officer, he sent Appellant a letter stating that she would 

be issued a citation if she did not come into compliance with the ordinance after 

he discovered that “[t]he cats weren’t being contained or controlled on the 

property” and “there was a problem with an outbreak of the calici virus in her cat 

population.”

Appellant’s neighbor, George Schneider, saw several cats on many 

occasions going in and out of Appellant’s garage, where she left open cans of cat 

 

court, on its own motion on June 10, 2014, ordered this appeal resubmitted 

without oral argument on July 1, 2014; assigned the appeal to a new panel, 

consisting of Justice McCoy, Justice Meier, and Justice Gabriel; and assigned 

the undersigned to author the opinion.
3

food for the feral cats. Schneider repeatedly saw Appellant leave garbage cans 

full of cat litter for weekly trash pickup, which was more litter than three cats 

could use. Schneider eventually discovered that Appellant had twenty-six cats 

and became “concerned about the possibility of disease” after many of the cats 

began “intruding in [Schneider’s] yard and . . . diminishing the joy [he was] having 

living there.” Schneider called the city and reported the problem in July 2011.

Officer Curtis Watkins, an animal-control officer for the city, investigated 

Schneider’s complaint on July 16, 2011 by visiting the home of Appellant. He 

saw cats running from shelters in front of Appellant’s house and noticed cats 

going in and out of the partially-open garage. Appellant’s husband allowed 

Watkins to enter the home where Watkins saw more than twenty “free-running 

cats.” All the cats were adults. Everything in the house was covered in cat litter, 

there was no carpet in the home, and cat urine was on the living-room floor. The 

smell of cat urine and feces sickened Watkins to the point that he had to leave 

the house to get fresh air. Watkins issued Appellant a citation for violating the 

ordinance.

The State filed a complaint alleging Appellant’s violation of the ordinance. 

See Tex. Code Crim. Proc. Ann. art. 45.018 (West 2006). Appellant pleaded not 

guilty in the municipal court and waived her right to a jury trial. See id. art. 

45.023 (West Supp. 2013), art. 45.025 (West 2006). The municipal court found 

her guilty of the offense of “ANIMAL-OVER NUMBER ALLOWED” and ordered 

her to pay a $200 fine. See id. art. 45.041 (West Supp. 2013). Appellant 
4

appealed the municipal-court judgment to the county criminal court. See id. art. 

45.042(a) (West 2006).

Before trial, Appellant filed a motion to quash the complaint arguing that 

the enforcement of the ordinance would violate the Privileges or Immunities 

Clause of the Fourteenth Amendment. U.S. Const. amend. XIV, § 1, cl. 2. The 

trial court denied the motion. A jury found Appellant guilty of the offense as 

alleged in the complaint and assessed her punishment at $75 plus court costs. 

Appellant filed a motion for new trial, arguing that her prosecution violated the 

Privileges or Immunities Clause of the Fourteenth Amendment and that her 

conviction was supported by insufficient evidence. The motion was overruled by 

operation of law. See Tex. R. App. P. 21.8(c). Appellant now appeals and raises 

the same issues presented in her motion for new trial.

II. SELECTIVE ENFORCEMENT

In her first issue, Appellant asserts that her conviction violated the 

Privileges or Immunities Clause of the Fourteenth Amendment because the city 

“selectively enforced its purported ordinance that prohibits any person from 

having possession of more than three cats without a permit.” Although Appellant 

consistently argues that her claim arises under the Privileges or Immunities 

Clause of the Fourteenth Amendment, the substance of her claim at trial and now 

on appeal is selective enforcement of the ordinance. We will address this claim 

as a claim of selective enforcement and note that Appellant clearly preserved this 
5

issue for our review.3 See Galvan v. State, 988 S.W.2d 291, 295 (Tex. App.—

Texarkana 1999, pet. ref’d).

After the State rested its case in chief, Appellant argued that the ordinance 

was “selectively enforced,” entitling her to present testimony “about the unfair 

treatment and how they treated other folks better or differently than her.” In an 

offer of proof, Appellant’s counsel orally stated that several city residents, 

identified by name, had more than three cats and were not cited for violating the 

ordinance. See Tex. R. Evid. 103(b). The trial court assumed Appellant’s 

counsel’s assertions about what the evidence would be were true and denied 

Appellant’s request.

At the punishment phase of her trial, Appellant again attempted to 

introduce evidence showing that the city allowed other citizens to have more than 

three cats without a permit but did not cite those citizens for violating the 

ordinance. In Appellant’s offer of proof, a city councilwoman testified that she 

had five cats, did not have a permit, and had never been cited for a violation of 

the ordinance. A city councilman testified that he had six barn cats and was 

unaware of the ordinance. A former city mayor stated that the ordinance 

previously was not enforced against Appellant because there were no 

 

3Even under the Privileges or Immunities Clause, Appellant would not be 

entitled to relief. See McDonald v. City of Chicago, Ill., 561 U.S. 742, ___, 130 S. 

Ct. 3020, 3030–31 (2010) (recognizing rights protected by Fourteenth 

Amendment against state infringement are analyzed under Due Process Clause 

and not Privileges or Immunities Clause). Appellant has not argued a dueprocess violation.
6

complaints. The trial court denied Appellant’s request and did not allow the 

admission of evidence “for selective prosecution or vindictiveness or anything of 

that sort” but did allow Appellant to call witnesses to “testif[y] they encouraged 

[Appellant] to proceed by suggesting that she take animals and . . . not issuing

citations at previous times.”

The former city mayor then testified that he believed Appellant’s unofficial 

feral-cat program was beneficial to the city. Officer Terry Hargis, a police officer 

for the city, testified that he “referred people to take cats” to Appellant but 

stopped when he was made aware that her cats were sick. Appellant admitted 

that she was notified what was required to come into compliance with the 

ordinance but that she never applied for a permit.

A claim of selective enforcement is not a defense to the merits of the 

criminal charge but is “an independent assertion that the prosecutor has brought 

the charge for reasons forbidden by the Constitution.” United States v. 

Armstrong, 517 U.S. 456, 463, 116 S. Ct. 1480, 1486 (1996). We presume that 

prosecutions are proper. Id. at 464, 116 S. Ct. at 1486. To overcome this 

presumption and establish a prima facie case of selective enforcement, Appellant 

must show that (1) while others similarly situated generally have not been 

proceeded against because of conduct of the type forming the basis of the 

charge against her, she was singled out for enforcement and (2) the city’s 

discriminatory selection of her for enforcement was in bad faith or invidious, 

which means that the enforcement was based on impermissible considerations 
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such as race, religion, or the desire to prevent her exercise of constitutional 

rights. Gawlik v. State, 608 S.W.2d 671, 673 (Tex. Crim. App. [Panel Op.] 1980); 

Garcia v. State, 172 S.W.3d 270, 273–74 (Tex. App.—El Paso 2005, no pet.); 

accord Bryan v. City of Madison, Miss., 213 F.3d 267, 277 (5th Cir. 2000), cert. 

denied, 531 U.S. 1145 (2001). Appellant must proffer “exceptionally clear 

evidence” of the second prong, i.e., the enforcement was initiated for an improper 

reason. Galvan, 988 S.W.2d at 296 (quoting County v. State, 812 S.W.2d 303, 

308 (Tex. Crim. App. 1989) (op. on reh’g)).

The former mayor of the city testified that the ordinance had not been 

enforced before because no one had complained about a violation of the 

ordinance. The citation against Appellant was initiated after a complaint by 

Appellant’s neighbor. Hargis stated that Appellant was not singled out for 

enforcement. There was no evidence before the trial court indicating that 

Appellant was singled out for enforcement or that her selection for enforcement 

was based on anything other than a valid citizen complaint. See, e.g., Nelloms v. 

State, 63 S.W.3d 887, 893 (Tex. App.—Fort Worth 2001, pet. ref’d), cert. denied, 

537 U.S. 960 (2002). Thus, Appellant did not meet her burden to show selective 

enforcement, and the trial court did not err in denying her motion to quash the 

complaint, denying her motion for directed verdict, or allowing her motion for new 

trial to be denied by operation of law on this basis.
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III. EVIDENCE SUFFICIENCY

In her second issue, Appellant argues that the evidence was insufficient to 

support her conviction. In our due-process review of the sufficiency of the 

evidence to support a conviction, we view all of the evidence in the light most 

favorable to the verdict to determine whether any rational trier of fact could have 

found the essential elements of the crime beyond a reasonable doubt. Jackson 

v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Winfrey v. State, 393 

S.W.3d 763, 768 (Tex. Crim. App. 2013).

Appellant asserts that there was insufficient evidence to show that she 

kept more than three cats, plus a litter of each, without a permit. Appellant 

contends that because there were no kittens at her home, she cannot be found 

guilty of violating the ordinance as stated in the complaint. But the ordinance 

allows for a maximum of three adult cats plus three litters of kittens without a 

permit. Here, the evidence showed Appellant had more than twenty cats, none 

of which were kittens, and did not have a permit to have more than three adult 

cats. The number of adult cats in Appellant’s home, as shown by the evidence, 

violated the plain language of the ordinance. Therefore, the evidence was 

sufficient to support the jury’s finding that Appellant was in violation of the 

ordinance. We overrule issue two.
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IV. CONCLUSION

Having overruled Appellant’s issues, we affirm the trial court’s judgment. 

See Tex. R. App. P. 43.2(a).

/s/ Lee Gabriel

LEE GABRIEL

JUSTICE

PANEL: MCCOY, MEIER, and GABRIEL, JJ.

DO NOT PUBLISH

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

DELIVERED: July 17, 2014