Larry Antone Cadwell v. State , 553 S.W.3d 143 ( 2018 )

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-17-00227-CR
LARRY ANTONE CADWELL, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the County Court at Law
Rusk County, Texas
Trial Court No. 16-11-0782CR
Before Morriss, C.J., Moseley and Burgess, JJ.
Opinion by Chief Justice Morriss
OPINION
While Larry Antone Cadwell—who goes by the name Tony and who will be so referenced
in this opinion—and his estranged wife, Cheryl Cadwell, were involved in divorce proceedings,
various horses belonging to them but having been ordered into Tony’s custody lost weight,
reportedly due to inadequate nutrition, according to Cheryl and other witnesses. This was
particularly true of Diamond, an older horse that customarily had been ridden by Cheryl. This
resulted in Tony’s conviction for cruelty to livestock animals1 and a sentence of 180 days in jail,
a sentence which was probated to twenty-four months on condition that Tony serve thirty days in
jail.
On appeal, Tony argues the legal and factual2 insufficiency of the evidence to support the
element of intentional or knowing mens rea. He also asserts, as part of his legal-sufficiency
challenge—making it a multifarious3 point of error—that including the phrase “by neglect” in the
information and in the jury charge improperly lowered the mens rea requirement.
1
See TEX. PENAL CODE ANN. § 42.09(a) (West 2006).
2
Since 2010, there has not been a factual-sufficiency review of the evidence to support a conviction. See Brooks v.
State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010). Because we are not permitted to review the factual sufficiency
of the evidence to support a conviction, we will confine our sufficiency analysis to the legal sufficiency of the
evidence.
3
We could overrule the point of error entirely or at least ignore the “by neglect” argument, because it is multifarious.
See, e.g., Dickey v. State, 189 S.W.3d 339, 341 (Tex. App.—Texarkana 2006, no pet.); Newby v. State, 169 S.W.3d
413, 414 (Tex. App.—Texarkana 2005, pet. ref’d); Harris v. State, 133 S.W.3d 760, 764 n.3 (Tex. App.—Texarkana
2004, pet. ref’d); Parra v. State, 935 S.W.2d 862, 875 (Tex. App.—Texarkana 1996, pet. ref’d). However, in the
interest of justice, we will address those specific complaints raised by Tony.
2
Because (1) legally sufficient evidence supports Tony’s conviction and (2) the use of the
phrase “by neglect” did not improperly reduce the State’s burden to prove Tony’s willful or
knowing mens rea, we affirm the trial court’s judgment.
(1) Legally Sufficient Evidence Supports Tony’s Conviction
In evaluating legal sufficiency of the evidence, we review all the evidence in the light most
favorable to the trial court’s judgment to determine whether any rational jury could have found the
essential elements of the offense beyond a reasonable doubt. Brooks, 323 S.W.3d at 912 (citing
Jackson v. Virginia, 443 U.S. 307, 319 (1979)); Hartsfield v. State, 305 S.W.3d 859, 863 (Tex.
App.—Texarkana 2010, pet. ref’d). We examine legal sufficiency under the direction of the
Brooks opinion, while deferring to the responsibility of the jury “to fairly resolve conflicts in
testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate
facts.” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson, 443 U.S. at
318–19); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). Further, the jury is the
sole judge of the credibility of the witnesses and the weight to be given their testimony and may
“believe all of a witnesses’ testimony, portions of it, or none of it.” Thomas v. State, 444 S.W.3d
4, 10 (Tex. Crim. App. 2014).
In our review, we consider “events occurring before, during[,] and after the commission of
the offense and may rely on actions of the defendant [that] show an understanding and common
design to do the prohibited act.” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007)
(quoting Cordova v. State, 698 S.W.2d 107, 111 (Tex. Crim. App. 1985)). It is not required that
each fact “point directly and independently to the guilt of the appellant, as long as the cumulative
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force of all the incriminating circumstances is sufficient to support the conviction.” Id.
Circumstantial evidence and direct evidence can be equally probative in establishing the guilt of a
defendant, and guilt can be established by circumstantial evidence alone. Ramsey v. State, 473
S.W.3d 805, 809 (Tex. Crim. App. 2015); Hooper, 214 S.W.3d at 13 (citing Guevara v. State, 152
S.W.3d 45, 49 (Tex. Crim. App. 2004)).
Legal sufficiency of the evidence is measured by the elements of the offense as defined by
a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997).
The “hypothetically correct” jury charge is “one that accurately sets out the law, is authorized by
the indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily restrict
the State’s theories of liability, and adequately describes the particular offense for which the
defendant was tried.” Id.
Under the relevant statute and the information, to obtain a conviction for cruelty to
livestock animals, the State had to prove beyond a reasonable doubt that Tony (1) intentionally or
knowingly (2) failed unreasonably to provide (3) food, water, or care (4) for one or more livestock
animals (5) in Tony’s custody, where (6) Tony’s
conduct was not a generally accepted and otherwise lawful form of conduct
occurring solely for the purpose of or in support of fishing, hunting, or trapping; or
wildlife or depredation control, or shooting preserve practices as regulated by state
and federal law; or animal husbandry or agriculture practice involving livestock
animals.
See TEX. PENAL CODE ANN. § 42.09(a)(2), (f) (West 2016) (cruelty to livestock animals and
exception to offense), § 2.02 (West 2001) (negating exception to offense as element of offense).
4
Tony challenges the sufficiency of the evidence only as it relates to the intentional or knowing
mens rea component of the State’s proof.
Direct evidence of the required mens rea for an offense is not necessary. Hart v. State, 89
S.W.3d 61, 64 (Tex. Crim. App. 2002); Herrera v. State, 526 S.W.3d 800, 809–10 (Tex. App.—
Houston [1st Dist.] 2017, pet. ref’d). Seldom is mens rea proven through direct evidence. Herrera,
526 S.W.3d at 809; Stobaugh v. State, 421 S.W.3d 787, 862 (Tex. App.—Fort Worth 2014, pet.
ref’d). The fact-finder is allowed to conclude that an actor intends the natural consequences of his
or her acts. Ruffin v. State, 270 S.W.3d 586, 591–92 (Tex. Crim. App. 2008); Herrera, 528 S.W.3d
at 810.
We now set forth a sampling of evidence in this record tending to support a finding that
Tony was intentional or knowing when he failed unreasonably to provide food, water, or care for
a livestock animal.
Cheryl testified that she owned and rode Diamond for about ten years and that she loved
her horses. Cheryl moved out of the marital residence and filed for divorce from Tony in 2016,
before the events related to the horses detailed below. A court order left Tony in custody of various
items belonging to the couple, including the twenty-three horses involved here. After a conflict
over Tony’s obligation to pay Cheryl approximately $5,000.00 from a tax refund, Cheryl noticed
that Tony was not feeding the horses as much and had changed the ignition in the tractor so Cheryl
could not use the tractor to feed the horses anymore by moving bales of hay into the horses’
enclosure. At one point, the trial court overseeing the domestic relations case appointed a Larry
Galyean to sell the horses, but Tony would not cooperate with him. All the horses started losing
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weight because, Tony was not feeding the horses.4 At times Cheryl would let the horses into a
different enclosure, a “hay trap” that had grass and hay, so they could eat, but Tony moved them
out of that enclosure and back into an area that had little or no food. During Cheryl’s periodic
visits to the property where the horses were kept, she never saw hay in the horses’ enclosure. Also
during her visits, she marked the tractor’s tires with chalk and thereby determined, that, between
her visits, the tractor had not been moved. Cheryl’s horse Diamond became malnourished, and his
hooves became cracked and split badly due to malnutrition. Cheryl believed that Diamond was
being “starved to death” during Tony’s custody. But, with proper feeding and care after the
seizure, he has recovered and is now doing well.
Jamie Yoakum, an investigator with the Rusk County Sheriff’s Office, testified that his
involvement with this case began when Tony filed a complaint around the middle of October 2016
about the alleged theft of two of the twenty-three horses, thinking that Cheryl had stolen the horses.
When Yoakum reached the property, he noticed that the natural vegetation in the enclosure in
which the horses were kept was very scarce and that most of the horses were thin, but “nothing
like” Diamond. Generally, the horses were thin or in less than ideal condition. As a result, the
theft investigation turned into an animal cruelty investigation. When Tony was interviewed about
the poor condition of many of the horses, he offered the explanation that the horses had been let
into another enclosure where they ate some goat weed, resulting in them having scours, a severe
diarrhea. Yoakum did not find any evidence of the horses having had diarrhea, though. As a result
4
Cheryl observed that the enclosure in which the horses were kept did not allow them access to the hay in the other
enclosure.
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of the horses’ poor condition, they were seized. Yoakum felt that Tony was not feeding the horses
enough. Yoakum has never seen an animal get as bad as Diamond within a month or two, if the
problem had been eating some grass with herbicide, for example.
Alishia Bammel was the animal control deputy and animal cruelty investigator for the Rusk
County Sheriff’s Office. Though she had been in law enforcement for many years before, she
obtained training for, and has been in her current specialty in, animal control and animal cruelty
for the four years before trial. Bammel accompanied Yoakum to the property where the horses
were located, for the initial purpose of investigating the theft complaint. In the first enclosure they
approached, there were no horses, but it was overgrown with weeds and grass, and within it was a
tractor and older hay that had grass growing up around it, revealing lack of recent activity. As
they approached a second enclosure, they encountered a large number of horses in that enclosure
that “were in very, very poor condition” with “a lot of ribs . . . [and] hipbones showing.” Some of
the horses were in “okay” condition, but one was in very bad condition with a body score of two.
Brammel then noticed that the enclosure in which the horses were contained was “not adequate at
all” for the animals that were kept there. The horses did not have access to the first enclosure that
had hay in it. Their enclosure had “virtually no grass,” and the grass that was present was “too
short for them to eat.” All the bushes and small shrubs had been picked clean, a phenomenon that
happens when animals with access to such vegetation are underfed and desperate for food. The
troughs within that enclosure were empty, had only leaves and debris, or had been overturned. A
stock tank or pond had water, but it was filled with debris and was stagnant. There was no evidence
of hay found in the horses’ enclosure. The officers determined to seize the horses promptly and
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proceeded to arrange to do so the next day.5 Within a week or two after the seizure, with just
proper feeding and de-worming, Diamond was showing improvement. Diamond had had
parasites, but not as many as some of the other horses.
The last State’s witness was Lori Cavitt, a veterinarian with Henderson Animal Care
Hospital. Cavitt had been a veterinarian for eleven years after her training consisting of a college
bachelor’s degree and a four-year veterinary degree from Texas A&M University. Cavitt
explained the body scoring scale of from one (extremely emaciated) to nine or ten (being extremely
obese). An acceptable range for a horse is four to six. A horse that is scored under four is in a
condition that needs to be addressed. A horse scored at three on this scale is considered thin, while
a score of two would indicate a horse that is emaciated but standing, and a one would indicate
extreme emaciation, not able to stand, and not considered savable. When Cavitt saw the Cadwell
horses, the majority were thin. The horses were examined one by one, estimating their ages,
assessing the body condition score, and taking a fecal sample of each to measure the degree to
which each had parasites. Given the body condition of the horses, she was surprised with the
relatively low parasite presence in most of them. Based on her examination, she concluded that
the most likely reason for the horses’ thinness was that they were not being fed properly. If a horse
has the choice of grass, hay, and goat weed, it will usually eat grass first, then hay, and finally goat
weed if it is hungry.
5
This was true, even though fourteen of the twenty-three horses were considered to be in “good condition.”
8
From the above, a rational jury could have found beyond a reasonable doubt that Tony was
intentional or knowing in not providing one or more of the horses in his care enough nutrition. We
overrule this contention.
(2) The Use of the Phrase “By Neglect” Did Not Improperly Reduce the State’s Burden to
Prove Tony’s Willful or Knowing Mens Rea
Tony argues that, by inserting “by neglect” in the information and the jury charge, the State
and the trial court, respectively, improperly instructed the jury and improperly lowered the
mens rea requirement from intentionally or knowingly to a lower mens rea. The State argues that
the phrase “by neglect” is merely the manner or means by which the offense was committed.
Neither party cites any authority near the heart of either argument.
The State’s position on this point has support, notably from the scholarly Cathy Cochran,
former Judge of the Texas Court of Criminal Appeals: “Generally, adverbial phrases, introduced
by the preposition ‘by,’ describe the manner and means of committing the offense. They are not
the gravamen of the offense, nor elements on which the jury must be unanimous.” Jefferson v.
State, 189 S.W.3d 305, 316 (Tex. Crim. App. 2006) (Cochran, J., concurring). We agree that,
here, the phrase “by neglect” charges Tony with cruelty to animals by the manner and means of
failure to act or of behavior that was not attentive to the needs of the horses, not with negligently
doing so, especially given that the mens rea was specified in both the information and in the jury
charge as intentional or knowing.
Here, the information charged in this language:
On or about the 17th day of October, 2016, in the County of Rusk and State of
Texas, one LARRY ANTONE CADWELL did then and there intentionally and
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knowingly fail unreasonably to provide necessary food for livestock animals, to-
wit horses, in the defendant’s custody, by neglect, . . . .
At trial, the trial court charged the jury as follows:
1.
A person commits an offense if he intentiona1ly or knowingly fails
unreasonably to provide necessary food for a livestock animal in the person’s
custody.
2.
. . . . “Necessary food” includes food provided to the extent required to
maintain the livestock anima1 in a state of good health.
A person acts intentionally, or with intent, with respect to the nature of his
conduct or a result of his conduct when it is his conscious objective or desire to
engage in the conduct or cause the result.
A person acts knowingly, or with knowledge, with respect to the nature of
his conduct or to circumstances surrounding his conduct when he is aware of the
nature of his conduct or that the circumstances exist. A person acts knowingly or
with knowledge with respect to a result of his conduct when he is aware that his
conduct is reasonably certain to cause the result.
3.
Now, if you find from the evidence beyond a reasonable doubt that on or
about 17th day of October, 2016, in Rusk County, Texas, the defendant, Larry
Antone Cadwell, did intentionally or knowingly fail unreasonably to provide
necessary food for livestock animals, to-wit horses, in the defendant’s custody, by
neglect, . . . then you will find the defendant guilty of the offense of cruelty to
livestock animals as charged in the information.
In each place, Tony was accused of intentional or knowing conduct; and, after the other
elements of the offense were set out, the words “by neglect” were added. We conclude that those
two words charged the manner and means in which Tony was alleged to have committed the
offense, consistent with the above observations by former Judge Cochran.
10
Further supporting that conclusion, and further undermining Tony’s argument that the
threshold for finding a guilty mens rea was lower than was proper, are the understandings in
analogous situations that the word “neglect” connotes a failure to act in fulfilling an obligation to
care for another. In a brief survey, we have found a few such analogous situations, in all of which
such is the meaning of “neglect.” Where there is a duty to care for children, patients, or aged
persons, “neglect” connotes simply a lack of necessary action by the one responsible for the care,
not negligent behavior by that responsible person. See, e.g., 42 U.S.C.A. § 1397j(16) (West,
Westlaw through P.L. 115-173 Jun. 12, 2018) (“neglect” of elder person); TEX. FAM. CODE ANN.
§ 261.001(4)(A) (West Supp. 2017) (“neglect” of children); TEX. HEALTH & SAFETY CODE ANN.
§ 260A.001(6) (West 2017) (“neglect” of residents of certain health facilities). In a case in which
a caregiver could have been considered negligent in actions toward a geriatric patient placed in a
chair, from which the patient fell, the appellate court ruled that the caregiver could not have been
guilty of neglect. See Gonzales v. Methodist Ret. Cmtys., 33 S.W.3d 882, 885 (Tex. App.—
Houston [14th Dist.] 2000, pet. denied); see also TEX. FAM. CODE ANN. § 261.001(4)(A)(ii)(c)
(“neglect” of child includes failure to provide child with food); In re E.C.R., 402 S.W.3d 239, 240
(Tex. 2013) (termination of parental rights based on abuse or neglect, not involving negligence);
Cates v. State, 776 S.W.2d 170, 174–80 (Tex. Crim. App. 1989) (Teague, J., concurring) (reporting
neglect); In re A.A.A., 265 S.W.3d 507, 516 (Tex. App—Houston [1st Dist.] 2008, pet. denied)
(removal of child based on neglect, not involving negligence).
Because the use of the phrase “by neglect” set out the manner and means of committing
the offense and because the information and jury charge clearly set out the required mens rea of
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intentional or knowing behavior by Tony, the use of the phrase did not improperly reduce the
State’s burden to prove Tony’s willful or knowing mens rea. We overrule this contention.
We affirm the judgment of the trial court.
Josh R. Morriss, III
Chief Justice
Date Submitted: June 13, 2018
Date Decided: June 21, 2018
Publish
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