Mark Anthony Mitchell v. State of Texas ( 2010 )

Opinion filed September 2, 2010
In The
Eleventh Court of Appeals
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No. 11-09-00097-CR
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MARK ANTHONY MITCHELL, Appellant
V.
STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 1
Tarrant County, Texas
Trial Court Cause No. 1121287D
MEMORANDUM OPINION
The jury convicted Mark Anthony Mitchell of the state jail felony offense of dog
fighting. Appellant pleaded “true” to an enhancement paragraph alleging that he had two prior,
sequential felony convictions. The jury found the enhancement allegations to be true, making
the offense punishable as a second-degree felony. The jury assessed appellant’s punishment at
seven years confinement. In two points of error on appeal, appellant challenges the legal and
factual sufficiency of the evidence to support his conviction. We affirm.
Sufficiency of the Evidence Standards of Review
To determine if the evidence is legally sufficient, the appellate court reviews all of the
evidence in the light most favorable to the verdict and determines 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 (1979); Laster v. State, 275 S.W.3d 512, 517-18 (Tex. Crim. App. 2009);
Jackson v. State, 17 S.W.3d 664, 667 (Tex. Crim. App. 2000). To determine if the evidence is
factually sufficient, the appellate court reviews all of the evidence in a neutral light. Laster, 275
S.W.3d at 519; Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006); Johnson v. State, 23
S.W.3d 1, 10-11 (Tex. Crim. App. 2000); Cain v. State, 958 S.W.2d 404, 407-08 (Tex. Crim. App.
1997); Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). Then, the reviewing court
determines whether the evidence supporting the verdict is so weak that the verdict is clearly wrong
and manifestly unjust or whether the verdict is against the great weight and preponderance of the
conflicting evidence. Watson, 204 S.W.3d at 414-15; Johnson, 23 S.W.3d at 10-11. The jury, as the
finder of fact, is the sole judge of the weight and credibility of the witnesses’ testimony. TEX. CODE
CRIM. PROC. ANN. art. 36.13 (Vernon 2007), art. 38.04 (Vernon 1979).
The Evidence at Trial
Manuel Cortez woke up to the sound of his dogs barking in his backyard at about
midnight on May 6, 2008. He went outside to see what was disturbing his dogs. Cortez testified
that he heard a “loud commotion” coming from across the alley. The record shows that the noise
was coming from the backyard of the residence at 1608 Daniel Street. Cortez described the
commotion as “dogs fighting [and] people yelling, laughing, [and] carrying on.” Cortez said that
“[g]uys [were] yelling [things] like, kill him, get him, [and] don’t let him go” and that the dogs
were “growling and snarling.”
Cortez looked through his fence into the backyard across the alley. He said that there
were about eighteen to twenty men and five dogs in the backyard. He said that car lights were
being used to light the area. Cortez saw appellant holding onto a brown pit bull dog and another
man holding onto a black pit bull dog. Cortez said that the brown dog was fighting with the
black dog. The record shows that appellant owned the brown dog. At one point, appellant
pulled his dog away from the fight but then let it fight again. Cortez said that appellant told his
dog to kill the other dog. Cortez testified that, at one point, appellant said, “I bet you $100 my
dog kill[s] your dog.”
Cortez’s wife called the police. Cortez said that many of the men left the scene and that
three dogs were taken away from the scene before the police officers arrived. Fort Worth Police
Officers J.C. Williams and C.S. Sesbedez responded to the call. When they arrived at the scene,
they saw a parked SUV that was facing toward the backyard. Officer Williams testified that the
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SUV’s headlights were being used to light the backyard. The officers heard yelling coming from
the backyard. Officer Williams said that people were saying “get ’em [and] kill ’em” and that
dogs were growling at each other. The officers walked to the backyard and saw seven people
standing in a semi-circle around a brown pit bull dog and a black pit bull dog. The people were
facing away from the officers and did not notice that the officers had arrived. The dogs were
being held with chains. Officer Williams testified that appellant was holding the chain on the
brown dog and that the brown dog was fighting with the black dog. Officer Williams said that
appellant was allowing the brown dog to attack the black dog. At that time, the brown dog was
biting the black dog on the neck. The officers told appellant and the person holding the chain on
the black dog to break up the fight. Officer Williams said that appellant pulled the brown dog
away from the black dog by yanking its chain. When appellant yanked the chain, the brown dog
let go of the black dog’s neck but then started biting the black dog on its legs. With a few more
yanks of the chain, appellant was able to separate the brown dog from the black dog. After the
dogs were separated, the officers observed several lacerations on the black dog’s neck and legs.
Both of the dogs’ faces were covered in blood. Appellant told the officers that he owned the
brown dog.
Fort Worth Animal Control Officer Barry Alexander arrived at the scene at about
1:30 a.m. He testified that the brown dog and the black dog had fresh, bleeding bite wounds on
their bodies. He said that the brown dog had multiple wounds to the face and neck and that the
black dog had a few less wounds. Officer Alexander also said that the dogs were in need of
medical treatment.
Cris Berry, an animal cruelty investigator for Fort Worth, examined the dogs. Berry
testified that the dogs had multiple bite wounds and that the pattern of wounds on the dogs was
consistent with and common to dog fighting. Berry cleaned the dogs and gave medication to
them.
Appellant called his son, Mark Anthony Mitchell Moore, as a witness. Moore testified
that he learned in a phone call that appellant’s dog was fighting another dog. Moore said that the
dogs had gotten loose and were fighting. He said that appellant was not present when the dogs
started fighting. Moore said that appellant lived on Spiller Street but that appellant kept his dog
at the address where the dogs were fighting. Moore testified that he picked up appellant from his
house on Spiller Street and took him to the scene of the dog fight so that he could break up the
fight. Moore said that, when they arrived at the scene, the dogs were fighting. He said that
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appellant pulled his dog back and tried to get him by the collar. Moore said that it was a struggle
to get the dogs loose from each other. Moore testified that there was no planned, organized dog
fight.
Appellant also called Janice Philips as a witness. She testified that she was at home with
appellant on the night of the incident. She said that Moore came to their house and that appellant
left with Moore.
Analysis
A person commits the offense of dog fighting if the person “intentionally or knowingly
causes a dog to fight with another dog.” TEX. PENAL CODE ANN. § 42.10(a)(1) (Vernon Supp.
2009). “Dog fighting” is defined as “any situation in which one dog attacks or fights with
another dog.” Id. § 42.10(b)(1). The evidence was undisputed that appellant’s brown dog was
fighting with the black dog. Cortez and Officer Williams both saw appellant holding his dog’s
chain while the dogs were fighting. The SUV’s headlights were being used to light the area, and
a number of people were watching the dogs fight. Officer Williams testified that appellant
allowed his dog to attack the other dog. Cortez said that appellant told his dog to kill the other
dog and that appellant said to the handler of the other dog, “I bet you $100 my dog kill[s] your
dog.” Both dogs had fresh wounds and were bleeding after the fight. Moore testified that
appellant was merely trying to separate his dog from the other dog. However, as the sole judge
of the credibility of the witnesses, the jury was free to disbelieve Moore’s testimony. Sharp v.
State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). The evidence was legally and factually
sufficient to establish that appellant intentionally or knowingly caused a dog to fight with another
dog. We overrule appellant’s points of error.
This Court’s Ruling
The judgment of the trial court is affirmed.
TERRY McCALL
JUSTICE
September 2, 2010
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.
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