AT AUSTIN
NO. 3-93-317-CR
MICHAEL RODDY,
APPELLANT
vs.
THE STATE OF TEXAS,
APPELLEE
FROM THE COUNTY COURT AT LAW NO. 5 OF TRAVIS COUNTY
NO. 341721, HONORABLE WILFRED AGUILAR, JUDGE PRESIDING
PER CURIAM
The county court at law found appellant guilty of cruelty to an animal and assessed punishment at incarceration for sixty days and a $1000 fine, probated. Tex. Penal Code Ann. § 42.11(a)(1) (West 1989). We will affirm.
It is an offense to intentionally or knowingly torture an animal. Penal Code § 42.11(a)(1). The information alleged that appellant struck a dog "with a sharp object about the head and that said act constituted torture to said animal." Appellant challenges the legal sufficiency of the evidence, arguing that the State failed to prove that he tortured the animal within the meaning of the statute. In a related point of error, appellant contends his conduct was justified by necessity.
Around midnight on June 1, 1990, Garfield Britton heard his dog barking in the back yard. He looked outside and saw appellant, his neighbor, reaching over the fence and striking at the animal. Appellant appeared to be holding a knife. "As he went in a downward motion with the object in his hand, my dog grabbed him. Every time he -- and I would see his arm shake, he would come back up and I would see him go back down and the arm would shake and I seen him come -- I saw him do it at least three times." Britton called the dog inside and found a half-inch cut above its eye that required stitches to close.
Britton had been living next door to appellant for about three weeks. Appellant testified that the dog had barked continuously during this time, and was doing so on the night in question. In hopes of quieting the animal, appellant went outside to the fence and motioned, saying "Go away. Go away." The dog bit appellant's hand and did not let go. According to appellant, the bite required hospital treatment. To free himself from the dog, appellant struck the animal with his other hand. Appellant admitted that he was holding a small kitchen knife in that hand, but he denied stabbing the dog.
"Torture" is not defined in the Penal Code. Thus, we must construe the term in context and according to common usage. Tex. Penal Code Ann. § 1.05 (West 1974 & Supp. 1994); Tex. Gov't Code Ann. § 311.011(a) (West 1988). Both appellant and the State suggest that an appropriate definition is found in the former civil statute dealing with cruelty to animals, which defined "torture" as "every act, omission or neglect whereby unnecessary or unjustifiable pain or suffering is caused, permitted or allowed to continue when there is a reasonable remedy or relief." Revised Statutes, 39th Leg., R.S., § 1, art. 180, 1925 Tex. Rev. Civ. Stat. 2, 59 (repealed 1989). Before article 180 was repealed, the Court of Criminal Appeals relied on this definition in a prosecution under section 42.11(a)(1). McGinnis v. State, 541 S.W.2d 431 (Tex. Crim. App. 1976).
Appellant argues that proof of torture requires proof of four elements: (1) severe pain, (2) inflicted for some improper purpose (3) over a prolonged period of time, and (4) accompanied by some element of restraint. We agree that proof of such conduct against an animal would be sufficient to prove an offense under section 42.11(a)(1). We do not agree, however, that all four elements must be proved in every case. Both in common usage and under the article 180 definition, the infliction of any unnecessary or unjustifiable pain can constitute torture. Stated another way, a person tortures an animal whenever he inflicts pain merely for the sake of inflicting pain. The circumstances surrounding the defendant's conduct, including the nature of any restraint and the severity of the pain inflicted, are of course relevant in determining the nature of that conduct.
Appellant argues that he should have been prosecuted pursuant to section 42.11(a)(5), which declares that it is cruelty to injure an animal belonging to another without legal authority or the consent of the owner. We agree that appellant could have been prosecuted under this subsection. But section 42.11 lists seven different circumstances under which a person may commit cruelty to an animal, and some overlap among these subsections is inevitable. Even an act of torture satisfying all four of appellant's proposed elements would also constitute the infliction of injury under subsection (a)(5). We decline to hold as a matter of law that appellant's conduct, as described by the State's evidence, cannot constitute torture within the meaning of section 42.11(a)(1).
The law contemplates that in some circumstances the infliction of pain on an animal may be necessary and justifiable, and in such circumstances would not be torture of the animal. McGinnis, 541 S.W.2d at 432; and see Tex. Penal Code Ann. § 9.22 (West 1974). Appellant argues that if he injured the dog, he was justified in doing so because the dog bit him on the hand and would not release him. This contention was presented to the trial court through appellant's testimony and the argument of counsel, and was clearly rejected. In finding appellant guilty, the court stated, "Based on the evidence I've heard, I'm going to find the defendant guilty and I'm going to do it for one reason: I don't believe him. The story is rather ludicrous as to why he went out there and why his hand was over the fence. And as I recall there was no doubt as to his hand being over the fence, so I'm going to find him guilty."
In determining the legal sufficiency of the evidence to support a criminal conviction, the question is whether, after viewing all the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979); Geesa v. State, 820 S.W.2d 154 (Tex. Crim. App. 1991); Griffin v. State, 614 S.W.2d 155 (Tex. Crim. App. 1981). In this cause, a rational trier of fact could find beyond a reasonable doubt that appellant intentionally or knowingly stabbed the dog on the head without justification, and that this conduct constituted torture under the circumstances. We conclude that the evidence is legally sufficient to sustain the conviction and overrule points of error one and two.
In his final point of error, appellant contends he was denied due process of law because, at the time the county court at law rendered its verdict, the court had forgotten and thus failed to consider the "core" of appellant's evidence. The testimony in this cause was taken on March 2, 1993. The parties returned to court on May 28 for the verdict, before which brief argument by counsel was presented. When defense counsel mentioned that the injuries to appellant's hand required a trip to the hospital and resulted in "a good bill," the court remarked, "I don't recall you introducing any evidence as to the hospital bills or anything else. I have no recollection of that whatsoever." The record reflects that when appellant testified that his medical bill was over $800, the State objected on the ground of relevance. The court responded, "Injuries might be relevant. The amount of the bill is not."
Contrary to appellant's argument under this point or error, the record does not support the conclusion that the county court at law forgot or failed to consider appellant's testimony describing the bite to his hand and the nature and extent of his injuries. Whether or not the amount of appellant's hospital bill was in evidence, it was plainly not the "core" of appellant's necessity defense. It is clear from the record that the court did not reject appellant's defense because it forgot appellant's testimony, but because it did not believe appellant's testimony. Point of error three is overruled.
The judgment of conviction is affirmed.
Before Justices Powers, Aboussie and Jones
Affirmed
Filed: June 22, 1994
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