Amos, Michael ( 2015 )


Menu:
  •                                                      SEPTEMBER 4, 2015
    No. PD-0983-15
    _____________________________________________________
    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 Court of Appeals, Tarrant County
    Appeal Number 02-13-00244-CR
    Trial Court Number 1322040R
    Honorable Mike Thomas, presiding
    _____________________________________________________
    APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
    September 3, 2015
    _____________________________________________________
    Lisa Mullen
    Attorney at Law
    3149 Lackland Road, Suite 102
    Fort Worth, Texas 76116
    (817) 332-8900
    State Bar No. 03254375
    Lisa@MullenLawOffice.com
    Oral argument requested
    Table of Contents
    Table of Contents…………………………………………………………..ii
    Table of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . …iv
    Statement Regarding Oral Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . …v
    Statement of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..v
    Statement of Procedural History . . . . . . . . . . . . . . . . . . . . . . . . . . . . . …......v
    Interested Parties and Service………………………………………………vi
    Grounds Presented for Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ......1
    Ground 1.………………………………………………………………….....2
    THE COURT OF APPEALS ERRED IN FINDING FORFEITURE IN THE
    WHOLESALE ADMISSION OF THE STATE’S STAR WITNESS’S
    RECORDED STATEMENT IN DIRECT VIOLATION OF THE HEARSAY
    RULE WHERE THE OTHER SIMILAR TESTIMONY ADMITTED WAS
    IN NO WAY SUBSTANTIALLY THE SAME
    Ground 2……………………………………………………………………..6
    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 3……………………………………………………………………….9
    THE COURT OF APPEALS ERRED IN VALIDATING THE DENIAL 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
    ii
    THE 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………………………………………….16
    Certificate of Service………………………………………………………17
    Certificate of Compliance………………………………………………....17
    Appendix…………………………………………………………………..18
    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 [14th 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 (5th 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, Petitioner 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 paragraph 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. Petitioner 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 raising five points of error. On
    July 2, 2015, the Second Court of Appeals denied all points 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,
    2015, and will be timely filed.
    1
    Amos v. State, No. 02-13-00244-CR (Tex. App. – Fort Worth, delivered July 2, 2015
    (Attached as Appendix Exhibit A).
    v
    INTERESTED 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- Appellate 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
    Lisa Mullen
    _____________________________
    /s/ Lisa Mullen
    ATTORNEY FOR APPELLANT
    3149 Lackland Road, Ste. 102
    Fort Worth, Texas 76116
    (817) 332-8900
    FAX: (817) 332-8904
    Bar Number 03254375
    Email: Lisa@Mullenlawoffice.com
    vi
    Grounds Presented for Review
    GROUND ONE:
    THE COURT OF APPEALS ERRED IN FINDING FORFEITURE IN THE
    WHOLESALE ADMISSION OF THE STATE’S STAR WITNESS’S
    RECORDED STATEMENT IN DIRECT VIOLATION OF THE HEARSAY
    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 ABANDONMENT 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 ADMISSION OF THE STATE’S STAR WITNESS’S
    RECORDED STATEMENT IN DIRECT VIOLATION OF THE HEARSAY
    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 important question of state law-
    i.e., the defense forfeits complaint where the court admits 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 evidence 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
    2
    did because it was not house broken, and 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.
    On cross-examination it became clear that she did not actually 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 and 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.The 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, the 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
    3
    overruled and the entire audiotaped interview of the witness was admitted. R. Vol. IV –
    119 – 121. The trial court clearly 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); Pointer v. Texas, 
    380 U.S. 400
    (1965); Ohio v. Roberts, 
    448 U.S. 56
    (1980); United States v. Diaz, 637 F3d 592 (5th 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 Detective Clouse’s testimony. Therefore, we
    overrule his first point without reaching his hearsay arguments.” Amos v. State, No. 02-
    13-00244-CR (Tex. App. – Fort Worth, delivered July 2, 2015 (Attached as Appendix
    Exhibit A).
    This holding is in complete error when one compares and contrasts the
    Detective’s testimony 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
    graphically described directly seeing a brutal, intentional “beating” of the 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.
    4
    R. Vol. IV – 114 – 115. The sum total of the Detective’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 stepped 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 stated 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, described the
    events as though she had directly seen them and in very graphic terms. SX 2A.
    Additionally, on the audiotape, the Detective interjected numerous personal and
    prejudicial opinions that he did not testify to. He stated that Appellant’s acts were “pretty
    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 hearsay
    statements of Appellant’s girlfriend and daughter, 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 before with the broom
    and that his girlfriend had said he beat her head against a wall before. SX 2A. None of
    5
    this 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. see and
    compare Leday v. State, 
    983 S.W.2d 713
    (Tex. Crim. App. 1998). The 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 so 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
    This 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. Evid., 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 (5th 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
    provided 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 state 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 person 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).
    7
    The instant indictment alleged the offense as follows: intentionally, knowingly or
    recklessly “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”. 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, no 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 continued 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.
    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” 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
    8
    crime 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 CAUSE
    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. 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
    contradictory 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…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).
    9
    In the instant case, trial counsel questioned the venire regarding their ability to
    follow this law in an 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 over 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: Yes.
    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.
    10
    Mr 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 prejudice 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 challenged
    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 defense voir dire, as counsel was explaining the legal standard
    of beyond a reasonable doubt and got the panel as a whole to agree to make 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 in 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. 02-13-00244-CR (Tex. App. – Fort
    Worth, delivered July 2, 2015 (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 [14th Dist.] 2010, no pet.).
    However, Leadon is inapplicable because the general question proffered was the same
    question the jurors 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
    11
    specific 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. Proc., Art.
    35.16(c) (2); Sells v. State, 
    121 S.W.3d 748
    (Tex. Crim. App. 2003). Because the court so
    found, the supervisory intervention 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, which 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 Two, and not to be belabored
    here, 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 charging paragraph read, in pertinent part, if you find the
    12
    Defendant 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. 02-13-
    00244-CR (Tex. App. – Fort Worth, delivered July 2, 2015 (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. Penal 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 without 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 jury to
    convict Petitioner of a crime without every essential element being proven beyond a
    reasonable doubt, as the instant 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 questions of law: whether a search warrant is
    required to perform an autopsy upon an owner’s dog and whether a request for cremation
    constitutes abandonment. The court of appeals found that a dog is personal property and
    subject to the same protections as any other property. Amos v. State, No. 02-13-00244-
    CR (Tex. App. – Fort Worth, delivered July 2, 2015 (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 cremation. 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
    search or seize the dog. R. Vol. IV – 97 – 99.
    The search of the dog, i.e., the autopsy, was an illegal search under State and Federal
    constitutions 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 did not consent to the search of his dog nor
    14
    did 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 search, 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 vitiating the warrant requirement. R.
    Vol. IV – 36, 96 - 97, 143, 162 - 163. The 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 intention to retrieve her ashes, he did exercise a
    continued possessory interest by determining 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 acknowledged 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. The 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 abandonment requiring review of this Court.
    15
    Conclusion and Prayer for Relief
    WHEREFORE, 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 these important issues so that the bench and bar of this state will
    know how to address similar issues in the future.
    Respectfully submitted,
    Lisa Mullen
    ___________________________
    /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
    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, Tarrant County District Attorney’s Office, 401 West Belknap, Fort Worth, Texas
    76104, and by mail delivery upon the Office of the State Prosecuting Attorney, P.O. Box
    13046, Capitol Station, Austin, Texas 78711.
    Lisa Mullen
    ___________________________________
    /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 4,452 words and within the 4,500 word limit as required by the
    rules.
    Lisa Mullen
    __________________________
    /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
    17
    18
    19
    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 DISTRICT COURT NO. 4 OF TARRANT COUNTY
    TRIAL COURT NO. 1322040R
    ----------
    OPINION
    ----------
    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
    1
    Appellant’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
    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).
    2
    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?
    3
    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
    4
    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
    ,
    5
    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).
    6
    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
    ,
    3
    Appellant’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.
    7
    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
    8
    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?
    9
    (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.
    10
    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
    11
    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, 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 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).
    12
    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
    13
    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
    14
    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
    15