Dixon, Wydell Lorraine

PD-0064&0065&0066&0067-1
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 3/16/2015 11:15:34 PM
Accepted 3/18/2015 4:02:38 PM
ABEL ACOSTA
TO THE COURT OF CRIMINAL APPEALS OF TEXAS CLERK

PD-0064-15, PD-0065-15, PD-0066-15, PD-0067-15
_________________________________

WYDELL DIXON,
Appellant
v.
THE STATE OF TEXAS,
Appellee

_________________________________

PETITION FOR DISCRETIONARY REVIEW
_________________________________________________________

On Petition for Discretionary Review from the Court of
Appeals for the First District, Houston, Texas in Cause
Nos. 01-13-00408-CR; 01-13-00409-CR; 01-13-00410-CR
& 01-13-00411-CR, Affirming the Conviction in Cause
Nos. 12CR0748, 12CR0749, 12CR0750, & 12CR0751
from the 56th District Court of Galveston County, Texas.
_________________________________________________________

R. Scott Shearer
TBA No. 00786464
917 Franklin, Suite 320
Houston, Texas 77002
(713) 254-5629
March 18, 2015 (713) 224-2889 FAX
ShearerLegal@Yahoo.com

Attorney for Appellant

March 16, 2015

1
 SUBJECT INDEX
Page

List of Authorities...................................................................................... iv

Names of All Parties.................................................................................. v

Statement Regarding Oral Argument........................................................... vi

Statement of the Case................................................................................ 2

Statement of the Procedural History of the Case......................................... 3

Question for Review Number One............................................................... 4

QUESTION FOR REVIEW NUMBER ONE: Appellant challenged
the jurisdiction of the trial court through a motion to dismiss.
Appellant argued that the State improperly alleged a felony by
commission of elements defined as a misdemeanor based upon State
v. Kingsbury, 129 S.W.3d 202 (Tex. App. – Corpus Christi 2004, no
pet.). The panel held that the 2007 amendments to the animal cruelty
statute overruled the Corpus Christi court’s decision. Was this error?

(Op. at 11-14)

Reasons for Review................................................................................... 4

Argument and Authorities.......................................................................... 11

Question for Review Number Two.............................................................. 14

QUESTION FOR REVIEW NUMBER TWO: Did the court of
appeals err by holding that the State could charge Appellant under the
felony provision of TEX. PENAL CODE §42.092 subsection (b)(1) based
upon an incomplete definition of the predicate misdemeanor offense
found in TEX. PENAL CODE §42.092 subsection (b)(3)?

(Op. at 20)

2
Reasons for Review................................................................................... 14

Argument and Authorities.......................................................................... 14

Question for Review Number Three............................................................. 18

QUESTION FOR REVIEW NUMBER THREE: Did the court of
appeals err by holding that the evidence was sufficient to prove the
mental state of recklessness?

(Op. at 18-19)
Reasons for Review................................................................................... 18

Argument and Authorities.......................................................................... 18

Question for Review Number Four............................................................. 20

QUESTION FOR REVIEW NUMBER FOUR: Did the court of
appeals err by finding harmless error where the trial court failed to
grant an agreed mistrial and failed to grant a motion for new trial after
previously sequestered jurors were not provided overnight facilities
and were allowed to separate in violation of TEX. CRIM. PROC. CODE
ANN. art. 35.23?

(Op. at 28-31)

Reasons for Review................................................................................... 20

Argument and Authorities.......................................................................... 20

Prayer for Relief........................................................................................ 20

Certificate of Service................................................................................. 21

APPENDIX - Copy of the opinion rendered by the court of appeals… 22

3
 LIST OF AUTHORITIES

Page

CASES

King v. State, 953 S.W.2d 266 (Tex. Cr. App. 1997) ..............................................22

State v. Kingsbury, 129 S.W.3d 202 (Tex. App. – Corpus Christi 2004, no pet.)

...................................................................................................... …ii, 4, 12, 13, 14

STATUTES

TEX. CRIM. PROC. CODE ANN. art. 29.03 ................................................. 4, 14, 15, 18

TEX. CRIM. PROC. CODE ANN. art. 29.13 ................................................. 4, 14, 15, 18

TEX. PENAL CODE §6.03…………………………………………………………16

TEX. PENAL CODE art 42.092 ........................................................................ ii, 12, 14

TEX. PENAL CODE art. 42.092(b)(3) .........................................................................15

RULES

TEX. R. APP. PROC. 38.1(a) .........................................................................................v

4
 NAMES OF ALL PARTIES

In accordance with TEX. R. APP. PROC. 38.1(a), Appellant submits that the
following are interested parties:

R. Scott Shearer - Attorney for Appellant.

917 Franklin, Suite 320
Houston, TX 77002

Wydell Dixon - Appellant.

69 Borondo Pines
La Marque, TX 77568

Elizabeth Cuchens - Trial counsel for the State of Texas.
Brent Haynes

District Attorney’s Office
600 59th Street, Ste. 1001
Galveston, TX 77551

Rebecca Klaren- Appellate counsel for the State of Texas.

District Attorney’s Office
600 59th Street, Ste. 1001
Galveston, TX 77551

Hon. Lonnie Cox - Presiding judge of the Trial Court.

600 59th Street, Suite 3302
Galveston, TX 77551

5
 STATEMENT REGARDING ORAL ARGUMENT

Appellant believes oral argument will be helpful. Appellant requests oral

argument.

6
 TO THE COURT OF CRIMINAL APPEALS OF TEXAS

PD-0064-15, PD-0065-15, PD-0066-15, PD-0067-15
_________________________________

WYDELL DIXON,
Appellant
v.
THE STATE OF TEXAS,
Appellee

_________________________________

PETITION FOR DISCRETIONARY REVIEW
_________________________________________________________

On Petition for Discretionary Review from the Court of
Appeals for the First District, Houston, Texas in Cause
Nos. 01-13-00408-CR; 01-13-00409-CR; 01-13-00410-CR
& 01-13-00411-CR, Affirming the Conviction in Cause
Nos. 12CR0748, 12CR0749, 12CR0750, & 12CR0751
from the 56th District Court of Galveston County, Texas.
_________________________________________________________

TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS:

APPELLANT, WYDELL DIXON, by and through his counsel on appeal,

files this Petition for Discretionary Review. In support of his request for review,

Appellant would respectfully show the Court the following:

7
 STATEMENT OF THE CASE

This appeal lies from Appellant's conviction in State of Texas v. Wydell

Dixon, Cause Nos. 12CR0748, 12CR0749, 12CR0750, 12CR0751 in the 56th

District Court of Galveston County, Texas. Appellant was charged with the

offense of cruelty to non-livestock animals. See TEX. PENAL CODE §42.092. (CR

at 7). Appellant proceeded to a jury trial (RR III at 32) and was found guilty. (RR

VIII at 23). On February 14, 2013, the Court assessed punishment at 2 years in the

state jail, probated for a period of five [5] years on each case, to be served

concurrently. (CR at 284). The Appellant filed a motion for new trial, which was

overruled after a hearing. (CR at 302). The Appellant perfected her appeal when

she filed a timely notice on March 1, 2013. (CR at 293).

____________________________________________________
* The record on petition for discretionary review
is cited as follows:

CR at p .......... Clerk’s record at page p.

RR V at p .......... Reporter’s record volume V at page p.

Op. at p .......... Opinion at page p.

8
 STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE

In a PUBLISHED opinion delivered December 16, 2014, a panel of the First

Court of Appeals AFFIRMED Appellant’s conviction for cruelty to non-livestock

animals. The Appellant did not file a motion for rehearing. The Appellant’s

Petition for Discretionary Review was due on January 15, 2015. Appellant filed a

Motion for Extension of Time to File Petition for Discretionary Review, which was

granted. Appellant’s Petition for Discretionary Review was due February 16,

2015. Due to the necessity of counsel having surgery for a MSRA infection,

Appellant filed a second Motion for Extension of Time to File Petition for

Discretionary Review, which was granted. Appellant’s Petition for Discretionary

Review is due March 16, 2015.

9
 GROUNDS FOR REVIEW

QUESTION FOR REVIEW NUMBER ONE: Appellant challenged the
jurisdiction of the trial court through a motion to dismiss. Appellant argued that
the State improperly alleged a felony by commission of elements defined as a
misdemeanor based upon State v. Kingsbury, 129 S.W.3d 202 (Tex. App. – Corpus
Christi 2004, no pet.). The panel held that the 2007 amendments to the animal
cruelty statute overruled the Corpus Christi court’s decision. Was this error?

(Op. at 11-14)

Reasons for Review:

1. The panel decision of the First Court of Appeals requires review because the
court decided an important question of state law that that is in conflict with another
decision of a Court of Appeals on the same matter. The panel decision is in
conflict with the Corpus Christi court’s decision in State v. Kingsbury, 129 S.W.3d
202 (Tex. App. – Corpus Christi 2004, no pet.).

2. The panel decision of the First Court of Appeals requires review because the
court has misconstrued TEX. PENAL CODE § 42.092.

3. The panel decision of the Court of Appeals requires review because the court
of appeals has decided an important question of state law, which has not been, but
should be settled by this Court.

10
Statement of facts:

Appellant, Wydell Dixon, is the owner of a non-profit cat sanctuary located

at 1112 6th Street in Texas City, Texas. (RR IV at 165). The sanctuary, known as

“Whiskerville,” has been in operation since approximately 2003. (RR IV at 71).

At a cat sanctuary, as opposed to a shelter, the cats are not euthanized or killed.

(RR IV at 21-22). The cats at Whiskerville are “free range” and are not kept in

cages. A free range environment is more comfortable to, and less stressful upon,

the cats. (RR VI at 93). It is also easier to maintain than a facility with cages. (RR

VI at 109).

Mrs. Dixon purchased the property where the shelter is located with

approximately one-hundred-fifty thousand dollars [$150,000.00] of her own

money (RR V at 122)(RR VI at 195) and paid 95% of the operating costs of the

shelter with her own funds. The Appellant had a passion for saving animals (RR

VI at 179) and the creation of Whiskerville was the Appellant’s dream. (RR VI at

180). Mrs. Dixon was particular about things that needed to be done to keep

Whiskerville sanitary and clean. (RR V at 143) and she was very meticulous when

it came to caring for the cats. (RR IV at 84 (RR VI at 189).

Mrs. Dixon had a business relationship with a local veterinarian, Dr. John

Shelby. (RR VI at 87). According to Dr. Shelby, Mrs. Dixon did well beyond

11
what most animal owners could ever possibly do to care for cats. (RR VI at 95).

Mrs. Dixon brought Dr. Shelby many animals that he treated and Mrs. Dixon did

not specify a monetary limit when it came to their treatment. (RR VI at 95). In

2004, Mrs. Dixon and Whiskerville received an award from the local paper for

making Galveston a better place to live. (RR VI at 173).

On October 18, 2011, Whiskerville underwent a State required inspection by

a licensed veterinarian. Whiskerville passed the inspection with a ‘satisfactory’

grade (the highest category) and a regional veterinary supervisor approved the

inspection on November 7, 2011. (RR IV at 125). The inspector found

Whiskerville to be “very clean” and to possess adequate food and water. (RR VI at

70).

Mrs. Dixon had one paid employee at the Whiskerville shelter, whose name

is Kimberly Jane Paskert. Ms. Paskert was a loyal and valuable employee who

could always be depended upon to show up for work. (RR VI at 125). Ms. Paskert

worked at Whiskerville for approximately six [6] years before this incident. She

worked there from August, 2005 to January 3, 2012, except for a one year absence.

(RR V at 169). The Appellant treated Ms. Paskert like family. (RR VI at 188).

The Appellant paid Ms. Paskert an agreed upon wage (RR VI at 161) gave her a

car loan (RR VI at 152) paid for her gas (RR VI at 43, 118) and also paid for her

cell phone. (RR VI at 118). The Appellant also paid Ms. Paskert extra money

12
when she did extra jobs. (RR VI at 119). Ms. Paskert enjoyed working at

Whiskerville (RR VI at 118) and thought it was a wonderful place for cats. (RR VI

at 26, 32, 122). It was her job to feed, water, and cleanup after the cats. (RR VI at

187). She was the sole custodian of the cats. (RR VI at 121). Food, water, and

medicine were always available for the cats. (RR VI at 137-138). Ms. Paskert

found the work to be satisfying. (RR VI at 117). None one watched over her

shoulder (RR VI at 122) and Ms. Paskert was confident that she could maintain the

Whiskerville facility without the help of Mrs. Dixon. (RR VI at 137). Mrs. Dixon

lived just a short distance away from Whiskerville (RR VI at 137) and Ms. Paskert

was confident that Mrs. Dixon would be there if she needed something. (RR VI at

137). Mrs. Dixon was there for her whenever Ms. Paskert needed her. (RR VI at

119, 159). Ms. Paskert had a flexible schedule (RR VI at 122) and also worked at

an unrelated job cleaning houses. (RR VI at 132). Ms. Paskert was the custodian

of the cats before the seizure (RR VI at 121) and she claimed sole responsibility for

the care and feeding of the cats and the cleanliness of the Whiskerville facility.

(RR VI at 121, 140). The system worked out between Mrs. Dixon and her

employee Ms. Paskert worked well for years (RR VI at 124-125) - that is until

January 3, 2012.

At the end of November, 2011, Mrs. Dixon took off work to reconnect with

her family and to deal with some other family issues during the holidays. (RR VI

13
at 196). Mrs. Dixon left Ms. Paskert in charge of the care and feeding of the cats.

Mrs. Paskert claims that she was approached by a volunteer named Karen Tibbits

in August or September of 2011. (RR VI at 47). Ms. Tibbits would help Ms.

Paskert at Whiskerville a few times a week. (RR VI at 47). After Christmas, 2012,

Ms. Paskert said she asked Ms. Tibbits if she would be willing to work for a week

while Ms. Paskert took off from work. (RR VI at 48). Ms. Paskert did not tell

Mrs. Dixon about her decision to ask Ms. Tibbits to fill in for her. (RR VI at 49,

65, 139). Mrs. Dixon had no knowledge of the Tibbits arrangement. (RR VI at

139). In fact, it was Mrs. Dixon’s policy not to allow 3rd parties to be in charge of

Whiskerville. (RR VI at 139, 188-189). The last time Ms. Paskert was at

Whiskerville was on December 26, 2012. (RR VI at 139). Ms. Paskert did not go

to Whiskerville at all the week after Christmas, 2012. (RR VI at 50). Ms. Paskert

believed she transferred custody of the Whiskerville cats to Karen Tibbits. (RR VI

at 139). The next time Ms. Paskert came to Whiskerville was the morning of the

seizure. (RR VI at 49, 58).

During Wydell Dixon’s absence from the shelter, Mrs. Dixon kept in contact

with Ms. Paskert via text message and telephone. Mrs. Dixon texted Ms. Paskert

and asked her how the kitties were. (RR VI at 142-143). Mrs. Paskert told Mrs.

Dixon the kitties were fine. (RR VI at 142, 153). Ms. Paskert gave Mrs. Dixon the

impression that things were okay at Whiskerville. (RR VII at 150). Ms. Paskert

14
lied to Mrs. Dixon. (RR VI at 51, 65, 141). During her absence from

Whiskerville, Ms. Paskert came to Mrs. Dixon’s house to drop off Whiskerville

laundry. (RR VI at 153). While she was there, Mrs. Dixon asked her in person

how the cats were. (RR VI at 50, 153). Ms. Paskert lied to her again and told her

the cats were okay. (RR VI at 50, 153). Ms. Paskert never told Mrs. Dixon that

she was not working at Whiskerville. (RR VI at 50). Mrs. Dixon had no

knowledge of Ms. Paskert taking off for a week. (RR VI at 50, 139). The

supervising officer on the case could find no evidence to dispute the Appellant’s

lack of knowledge. (RR V at 12).

On January 3, 2012, Galveston County Animal Control received information

from a neighbor who lived near Whiskerville. (RR IV at 23). The neighbor

informed Galveston County Animal Control that she had not seen any activity at

the Whiskerville premises for some time and suspected that the cats were not being

taken care of. (RR V at 154). Kim Schoolcraft, the animal services manager of the

Galveston County Health District, received the information about the complaint at

Whiskerville. (RR IV at 17, 23). Mrs. Schoolcraft had Mrs. Dixon’s telephone

number but did not call her on the day she received the complaint. (RR IV at 26,

93, 103). Mrs. Schoolcraft received the call concerning Whiskerville at around 4

or 5 p.m. on January 2, 2012. (RR IV at 95). Instead of contacting Mrs. Dixon,

Mrs. Schoolcraft waited until the next day, January 3, 2012, when she called the

15
Texas City Police Department and arranged for them to begin an investigation.

(RR IV at 26). After notifying the police, Mrs. Schoolcraft travelled to

Whiskerville herself in order to judge how many animals she would have to

prepare to receive at the Galveston County Animal Resource Center. (RR IV at

26-27). In response to the citizen inquiry, an animal control officer went to the

Whiskerville location and observed cats to be in distress through a window. (RR

IV at 135, 137). The officer then obtained a civil seizure warrant to enter the

premises and seize the animals. He also obtained a consent to search from Mrs.

Dixon. (RR IV at 32, 140-141, 173). State actors, in the form of Galveston

County Animal Control officers and others, removed 168 live cats from the

Whiskerville sanctuary as well as 27 deceased cats. (RR IV at 53). There was a lot

of media at the scene. (RR IV at 149). There were police cars, animal vehicles,

and newspaper companies present, and there was a helicopter flying overhead.

(RR V at 156).

The conditions inside of the sanctuary were disturbing. There were feces

and urine on the floors and walls. (RR IV at 42). The living cats were in bad

condition (RR IV at 44) and there were dead cats in various places. (RR IV at 47-

48). Each of the rooms at Whiskerville had a litter box, water dispensers, and food

bowls. (RR IV at 91). The cats did not have access to the food and water,

however. There were adequate supplies of food, water, and medicine at

16
Whiskerville; the problem was there had been no person there to distribute them to

the animals. (RR IV at 88, 102-103)(RR V at 68). The conditions at Whiskerville

deteriorated over the course of one week. (RR VI at 62). This time frame was

consistent with the testimony of a veterinarian. (RR V at 78).

Both Wydell Dixon and Kimberly Paskert arrived at Whiskerville during the

process of the cat seizures. (RR IV at 142-143). Ms. Paskert was interviewed on

television and indicated that she wanted to kill herself for her failure to take care of

the cats. (RR VI at 155). Ms. Paskert took full responsibility for what occurred at

Whiskerville. (RR VI at 146).

Ms. Paskert received immunity from the State to testify at Appellant’s trial.

(CR at 248-249). Ms. Paskert pleaded guilty to a misdemeanor animal cruelty

charge. Appellant was never offered a misdemeanor plea. (RR III at 4). The State

obtained a civil judgment against Appellant for approximately $250,000.00. (RR

IV at 101).

Argument and Authorities:

In its opinion of December 16, 2015, Appellant submits the panel fell into

error when it held that the legislature’s 2007 amendments to the animal cruelty

17
statute overruled the Corpus Christi court’s decision in State v. Kingsbury, 129

S.W.3d 202 (Tex. App. – Corpus Christi 2004, no pet.).

Appellant was indicted for allegedly committing felony cruelty to animals

under TEX. PENAL CODE §42.092. According to the plain text of the indictments,

the State alleged the Appellant caused serious bodily injury to animals under the

felony provision of TEX. PENAL CODE §42.092 subsection (b)(1) by failing

unreasonably to provide necessary food, water, care, or shelter under the

misdemeanor provisions of TEX. PENAL CODE §42.092 subsection (b)(3). This they

cannot do. The State may not allege a misdemeanor cruelty charge under the guise

of a felony. State v. Kingsbury, 129 S.W.3d 202 (Tex. App. – Corpus Christi 2004,

no pet.). The felony and misdemeanor provisions of TEX. PENAL CODE §42.092 are

separate and distinct provisions with no relation existing between the two. Id. at

206. A person can commit the misdemeanor offense of failing unreasonably to

provide necessary food, water, care, or shelter or a person may commit the felony

offense of torturing, killing, or causing serious bodily injury to an animal – but a

person cannot commit a felony offense by committing predicate acts that are listed

as a misdemeanor under the statute. Id. at 207. Were this not true, the distinctions

in punishment set forth by the legislature would be rendered meaningless. The

misdemeanor conduct proscribed by the statute would be subsumed by the felony

18
provision. See State v. Kingsbury, 129 S.W.3d 202, 207 (Tex. App. – Corpus

Christi 2004, no pet.).

The trial court in Kingsbury granted defendant Kingsbury’s motion to

dismiss and the Corpus Christi court of appeals affirmed. The court of appeals

held that the district court lacked jurisdiction because the indictment did not

sufficiently allege a felony. State v. Kingsbury, 129 S.W.3d 202, 207 (Tex. App. –

Corpus Christi 2004, no pet.).

The Kingsbury case, like the present one, dealt with animals that had

perished. The language of the indictment contained in Kingsbury is virtually

identical to the language contained in the indictments in the present case. The only

real differences being the Legislature’s addition of cruelly killing and causing

serious bodily injury to the former section defining felony “torture” under the old

statute and the fact that Kingsbury was charged before the statute was split into

separate offenses covering livestock and non-livestock.

Appellant contends that her indictments suffer from the same infirmity as the

Corpus Christi court struck down in Kingsbury. The legislature’s addition of the

cruelly killing and causing serious bodily injury provisions to the former section

defining felony “torture” under the old statute do not change the analysis. The

court of appeals erred by holding otherwise.

19
QUESTION FOR REVIEW NUMBER TWO: Did the court of appeals err by
holding that the State could charge Appellant under the felony provision of TEX.
PENAL CODE §42.092 subsection (b)(1) based upon an incomplete definition of the
predicate misdemeanor offense found in TEX. PENAL CODE §42.092 subsection
(b)(3)?

(Op. at 20)

Reasons for Review:

1. The panel decision of the First Court of Appeals requires review because the
court decided an important question of state law that that is in conflict with another
decision of a Court of Appeals on the same matter. The panel decision of the First
Court of Appeals is in conflict with the Corpus Christi court of appeals decision in
State v. Kingsbury, 129 S.W.3d 202 (Tex. App. – Corpus Christi 2004, no pet.).

2. The panel decision of the Fourteenth Court of Appeals requires review
because the court has misconstrued TEX. PENAL CODE § 42.092.

3. The panel decision of the Court of Appeals requires review because the court
of appeals has decided an important question of state law, which has not been, but
should be settled by this Court.

Argument and Authorities:

The panel erred by holding that the State could charge Appellant under the

felony provision of the animal cruelty statute by using only a portion of the

misdemeanor offense proscribed in TEX. PENAL CODE §42.092(b)(3). Assuming

20
for the sake of argument that it was permissible for the State to use the

misdemeanor offense conduct as predicate acts to allege a felony, it was still

necessary for the State to incorporate the entire misdemeanor definition of

prohibited conduct and not merely just a portion. The State conveniently forgot to

include the issues of reasonableness and custody as defined by TEX. PENAL CODE

§42.092(b)(3). TEXAS PENAL CODE Section 42.092(b)(3) proscribes an offense

when a person “fails unreasonably to provide necessary food, water, care, or

shelter for an animal in the person's custody.” TEX. PENAL CODE

§42.092(b)(3)(emphasis added).

Simply stated, the State could not cherry pick only those portions of the

misdemeanor offense they liked without also incorporating the remainder of the

definition, which includes the defensive issues of custody and reasonableness. The

court of appeals found that the State assumed a higher burden by proving the

misdemeanor acts plus the addition of death or serious bodily injury. (Op. at 13).

In fact, just the opposite is true. The misdemeanor offense as written by the

legislature requires custody. The court of appeals has authorized Appellant’s

conviction of a felony by incorporating as a predicate act only a partial and

incomplete definition of the proscribed misdemeanor offense. Failure to provide

food, water, or care to an animal is not what is prohibited by subsection (b)(3) of

the animal cruelty statute. Only when such failure is visited upon an animal in that

21
person’s custody does the statute result in a criminal offense. Were this not so,

every person in the State would be criminally responsible for every unfed or

unwatered animal though they are unaware of that animal’s location and existence.

The panel’s interpretation leads to absurd results and creates a strict liability

offense. A non-pet owner in Houston, for instance, could be charged with failing

to feed and water a horse in El Paso. Once the State proved that an animal was

harmed because it did not receive food, water, or care, the requisite mental state

with regard to the nature of conduct would be self-proved and the defendant would

be held liable regardless of duty of care, reasonableness, or custody. See TEX.

PENAL CODE §6.03.

Appellant filed a motion to quash and objected to the indictment’s failure to

include the element of custody. (RR III at 16-18). Appellant also objected to the

failure of the charge to include the definitions of custody, reasonableness, and the

defense of transference of custody. (CR at 256) (RR VII at 13-14). Appellant’s

requested charges were denied and her objections overruled. (RR VII at 14-15).

The trial court’s failure to require the State to prove the element of custody

resulted in her unjust conviction. She was deprived of a complete defense to the

misdemeanor conduct, which was a predicate to the felony conduct allegations.

Plainly, the cats were not in the Appellant’s custody. The State’s whole theory was

that Appellant was negligent in allowing them to be in the custody of someone

22
else. The evidence in this case is uncontroverted that Appellant transferred

custody of the cats to Ms. Paskert. Ms. Paskert, a witness for the State, admitted

that she was the sole custodian. (RR VI at 121). The court of appeals erred by not

finding the trial court’s actions to be error.

23
 QUESTION FOR REVIEW NUMBER THREE: Did the court of
appeals err by holding that the evidence was sufficient to prove the
mental state of recklessness?

(Op. at 18-19)

Reasons for Review:

1. The panel decision of the Court of Appeals requires review because the court
of appeals has decided an important question of state law, which has not been, but
should be settled by this Court.

2. The panel decision of the Fourteenth Court of Appeals requires review
because the court has misconstrued a state statute. The court misconstrued TEX.
PENAL CODE § 42.092 and TEX. PENAL CODE § 6.03.

Argument and Authorities:

It is undisputed that Appellant did not personally fail to provide necessary

food, water, or care for the cats at Whiskerville. Additionally, no witness ever

testified that the Appellant violated any rule, ordinance, law, or regulation

governing the question of how many employees per cat are required when working

at an animal shelter. (RR IV at 86)(RR V at 22-23). Because there is no such

standard, Appellant could not possibly have been aware of, but consciously

24
disregarded, a substantial and unjustifiable risk that the circumstances existed or

the result would occur.

Appellant’s conduct did not constitute a gross deviation from the standard of

care that an ordinary person would exercise. An ordinary person would assume,

given the past performance of Ms. Paskert over a period of six years, that she

would continue to do her job or provide some form of notice that she intended to

take off from work. The objective standard of recklessness is viewed through the

eyes of the ordinary person standing in Appellant’s shoes. A rational fact-finder

could not have found, beyond a reasonable doubt, that Appellant was aware of the

risk that Ms. Paskert would suddenly and without warning fail to show up to work

after reliably having done so for six [6] years.

This erroneous jury verdict mandates that an employer is now responsible

for foreseeing that a long time trusted employee will suddenly decide not show up

to work and then lie to them about this fact. An ordinary employer would not

assume that a trusted and reliable employee of six years would suddenly act in such

a way. Moreover, the risk that an employee will not show up to work is an

ordinary risk, not the type of risk that is substantial and unjustifiable. The mental

state of recklessness was not established by the evidence.

25
QUESTION FOR REVIEW NUMBER FOUR: Did the court of appeals err by
finding harmless error where the trial court failed to grant an agreed mistrial and
failed to grant a motion for new trial after previously sequestered jurors were not
provided overnight facilities and were allowed to separate in violation of TEX.
CRIM. PROC. CODE ANN. art. 35.23?

(Op. at 28-31)

Reasons for Review:

1. The panel decision of the First Court of Appeals requires review because the
court decided an important question of state law that that is in conflict with a
decision of this Court. The panel decision is in conflict with this Court’s decision
in King v. State, 953 S.W.2d 266, 271 (Tex. Cr. App. 1997).

2. The panel decision of the First Court of Appeals requires review because the
court has misconstrued TEX. CRIM. PROC. CODE ANN. art. 35.23.

3. The panel decision of the Court of Appeals requires review because the court
of appeals has decided an important question of state law, which has not been, but
should be settled by this Court.

Argument and Authorities:

Appellant moved to sequester the jury. (RR VII at 60). Appellant’s motion

was granted by the trial court. (RR VII at 60). According to the testimony of one

of the bailiffs who accompanied the jurors, the jurors were placed at a hotel room

at approximately 11 p.m. on December 19th. (RR VIII at 11). Thereafter, at

26
approximately 10 minutes before 2 a.m., a bomb threat was phoned into their hotel

and the jurors were evacuated. (RR VIII at 8-9). During the evacuation the jurors

were separated and intermixed with non-jurors. The jurors overheard discussions

carried on by other persons at the evacuated hotel. (RR VIII at 13-14). The Jury

was made aware that there was a bomb threat to the hotel from other guests at the

hotel. (RR VIII at 13-14).

Unfortunately, another hotel was unable to accommodate the jury and the

jurors themselves requested to be taken back to the courthouse because they felt it

would be safer. (RR VIII at 10). The jurors remained there in the jury room the

entire night without sleep. (RR VIII at 10). No separate facilities were provided

for male and female jurors. The bailiff testified that she was not able to provide

facilities to the jurors because of the lack of hotel accommodations. (RR VIII at

12).

Upon learning of the bomb threat and the circumstances of the previous

night, and before the jury rendered its verdict, Appellant moved for a mistrial. (RR

VIII at 18-19). The State agreed to the mistrial. (RR VIII at 20-21). Nevertheless,

the trial court denied Appellant’s motion. (RR VIII at 21).

Appellant broached the subject again when she filed her motion for new

trial. (CR at 302). A hearing was held on Appellant’s motion for new trial, but the

27
State called no witnesses. (RR X at 30, 32). Undersigned counsel testified that

Appellant did not consent to the separation. (RR X at 8).

The mandatory provisions of article 35.23 were violated. The jurors were

allowed to separate and they were not provided overnight facilities. During the

evacuation of the hotel, the jurors were forced to mingle with other non-juror

guests of the hotel. During this separation, the jurors learned they were the subject

of a potential bombing. The jurors would undoubtedly have (wrongly) attributed

the bomb threat to the Appellant. The jurors actually expressed their fears to the

bailiff and were so concerned for their safety that they preferred returning to the

courthouse rather than staying at another hotel. As a consequence, the jurors in the

present case rendered their verdict in an environment of hostility, fear, and

exhaustion. This undoubtedly led to the jury reaching a verdict of guilt that would

not have been rendered under normal circumstances. Any rational juror holding

doubts about the Appellant’s guilt would have simply abandoned their previous

position so as to render a quick verdict and escape the situation.

The jury deliberated from the morning of Friday, January 18th until they

were released that evening. (CR at 15). The jury was instructed to return for

deliberations on Saturday, January 19th. (RR VII at 62). The jury resumed

deliberations until noon, then came back with a verdict just a few hours after

spending all night in the jury room of the court house. (CR at 15). As a result, this

28
jury reached a verdict that was the product of coercion, rather than by thoughtful

consideration of the evidence.

Appellant has shown harm. Appellant had a right to an impartial jury

unaffected by threats, fear, coercion, exhaustion, and outside influence. The trial

court’s inability to comply with the mandatory provisions of Article 35.23 had a

substantial and injurious effect and influence on the jury’s verdict. See King v.

State, 953 S.W.2d 266, 271 (Tex. Cr. App. 1997). The court of appeals erred by

finding the error harmless.

29
 PRAYER FOR RELIEF

FOR THESE REASONS, Appellant respectfully asks this Court to grant
review of the decision of the court of appeals. Appellant further prays that this
Court will reverse the judgment of the court of appeals.

Respectfully submitted,

By: /s/ R. SCOTT SHEARER
R. Scott Shearer
TBA No. 00786464
917 Franklin, Suite 320
Houston, Texas 77002
(713) 254-5629
(713) 224-2889 FAX
ShearerLegal@Yahoo.com

Attorney for Appellant

March 16, 2015

30
 CERTIFICATE OF SERVICE

I certify that a copy of this Petition for Discretionary Review has been
served upon the State of Texas by e-mailing a copy of same to the following
parties at their respective addresses on this the 16th day of March, 2015:

A.D.A. ELIZABETH CUCHENS
DISTRICT ATTORNEY’S OFFICE
600 59TH STREET, STE. 1001
GALVESTON, TX 77551
ELIZABETH.CUCHENS@CO.GALVESTON.TX.US

LISA C. MCMINN
STATE PROSECUTING ATTORNEY
209 W. 14TH STREET
AUSTIN, TEXAS 78701

/s/ R. SCOTT SHEARER
R. Scott Shearer

31
 CERTIFICATE OF COMPLIANCE WITH RULE 9.4(i)(3)

Certificate of Compliance with Type-Volume Limitations
and Typeface Requirements.

1. This Petition for Discretionary Review complies with the type-volume
limitation of TEX. R. APP. PROC. 9.4(i)(2)(D) and (3) because:

This Petition for Discretionary Review contains 4,489
words, excluding the parts of the Petition for
Discretionary Review exempted by TEX. R. APP. PROC.
9.4(i)(1).

2. This Petition for Discretionary Review complies with the typeface
requirements of TEX. R. APP. PROC. 9.4(e) because:

this Petition for Discretionary Review has been prepared
in a conventional proportionally spaced typeface using
Microsoft WORD 97 version 7.0 in Times New Roman
14 point type.

/s/R. SCOTT SHEARER
R. Scott Shearer

32
APPENDIX

33
Opinion issued December 16, 2014.

In The

Court of Appeals
For The

First District of Texas
————————————
NOS. 01-13-00408-CR
01-13-00409-CR
01-13-00410-CR
01-13-00411-CR
———————————
WYDELL DIXON, Appellant
V.
THE STATE OF TEXAS, Appellee

On Appeal from the 56th District Court
Galveston County, Texas
Trial Court Case Nos. 12-CR-0748, 12-CR-0749, 12-CR-0750, 12-CR-0751

OPINION

A jury convicted appellant, Wydell Dixon, of four charges of cruelty to

nonlivestock animals, a state jail felony. See TEX. PENAL CODE ANN. § 42.092(b)(1),
(c) (Vernon 2011). The trial court then assessed punishment at two years’

confinement, but suspended, and placed appellant under community supervision

for five years’ on each charge, to be served concurrently. On appeal, appellant

contends (1) the evidence, when measured under a hypothetically correct jury

charge, was legally insufficient; the trial court erred by (2) overruling appellant’s

motion to dismiss because the indictments charged a misdemeanor, not a felony;

(3) permitting the State to charge strict liability offenses; (4) denying appellant’s

motion to quash based on the doctrine of in pari materia; (5) failing to submit

appellant’s requested defensive charges; (6) permitting behavior by the State that

deprived appellant of due process and due course of law; and (7) failing to grant a

mistrial and denying appellant’s motion for new trial after jurors were not provided

overnight facilities and were allowed to separate. We affirm.

BACKGROUND

Appellant, Wydell Dixon, was the owner of a non-profit cat sanctuary

located at 1112 6th Street in Texas City, Texas. The sanctuary, known as

“Whiskerville,” had been in operation since approximately 2003. At a cat

sanctuary, as opposed to a shelter, the cats are not euthanized or killed. The cats

are free to live there until they pass from old age. The cats at Whiskerville were

“free range” and were not kept in cages. The majority of the Whiskerville cats

were older cats and, therefore, not adoptable.
2
 At the time of the offense, Whiskerville had only one employee, Kimberly

Paskert. Paskert started working at Whiskerville in 2005, but left for a year in

October or November of 2009, when she and appellant had a dispute over

Paskert’s work. Paskert was paid $30 per day when she started, and she was

sometimes allowed to use a gas card for extra work.

Paskert returned to Whiskerville in October 2010 and worked there until

December 2011. She worked five days per week until a part-time employee left in

early February 2011. From the end of January or beginning of February 2011, until

December 26, 2011, Paskert worked seven days per week. Paskert took off only

three days in 11 months—one day each in October, November, and December

2011.

As the sole employee caring for nearly 200 cats, Paskert’s work at

Whiskerville was, as described by another former employee, “back breaking.”

Paskert’s daily tasks included: cleaning the messes the cats made on the floors and

counters; emptying four big litter pans, then scraping and cleaning the litter pans

with sponges and sanitizer; refilling the litter pans; sweeping and cleaning the

locations for the litter pans and putting the pans back; carrying 40 pound bags of

litter from the garage into the main building, two to three times per day; cleaning

inside the two feeders, if necessary, and refilling them; carrying 25 pound bags of

food from the garage into the main building, at least twice per day; refilling the cat

3
food bins inside the main building, usually twice per day; cleaning the outside, the

bottom, and, if necessary, the inside, of the 2.7 and 5 gallon water containers and

then refilling them; and cleaning the bed, rug, litter pan, food container, and water

container in as many as five cages.

Paskert had to do all this for the main area, the hallway, each of the six

rooms in the main building, and the back building. Paskert had to clean furniture

and take the trash out of every room. It took seven trips per day just to carry the

used cat litter to the dumpster. Paskert’s weekly tasks included: taking apart and

cleaning the feeders; brushing the laundry, rugs, and towels, before taking them to

Dixon to be washed at least three times per week; mopping once or twice per

week; and cleaning all the windows. Paskert also had additional tasks to perform as

needed: administering medicines and special foods to sick cats, sometimes feeding

them with a syringe; cleaning the cat trees, which were as high as seven feet;

soaking and rinsing the cat toys; clipping the cats’ claws, so they would not grow

into their paws; and checking the cats’ ears for mites.

It took Paskert 10 to 15 hours per day, depending on messes, to do all of the

daily chores, when she was able to finish them. Paskert always tried her hardest,

but she “couldn't keep up with it all.” She tried to do all she possibly could two to

three days per week. Some days she worked six to eight hours; the minimum was

three to five hours.

4
 On January 3, 2012, animal control officers and peace officers responded to

a complaint about Whiskerville. Kim Schoolcraft, the Animal Services Manager

for the Galveston County Health District, looked through the windows. She saw

dead animals, feces and urine on the floor and walls, and large feeders and water

containers that were empty and dumped over. A lot of live cats were roaming

freely. The cats had their mouths open, a sign of distress. There was a very strong

odor, “[e]ven outside the building.” Schoolcraft and the others waited until Texas

City Police Department officers arrived to assess the situation and then obtain a

civil animal seizure warrant.

Corporal Grandstaff, the Animal Control Supervisor of the Texas City Police

Department, arrived. When Grandstaff looked through the windows, he saw dead

cats. He also saw live cats clawing at the window and “screaming,” “like they

wanted to get out.” Grandstaff testified there was “filth everywhere,” feces all

over, and water bowls overturned. He saw cats in cages without water bowls or

food, and he smelled a stench.

Eventually, officers obtained a civil animal seizure warrant to rescue the cats

in distress. When officers forced open a door, the stench was overwhelming. One

animal control officer entered but had to exit, and vomited. Schoolcraft and

Grandstaff entered, but had to back out because the odor was overwhelming. The

5
air inside Whiskerville was so bad officers had to obtain respirators for people to

go inside and rescue the cats.

Once equipped with a respirator, Schoolcraft entered and saw several dead

cats. Feces and urine covered the floor, the walls, and even the windows—“just

about every surface.” Live cats were running everywhere, terrified. There was no

water available to the cats when officers entered the building. When officers

poured water into bowls the cats fought and climbed over each other, “yowling,

desperate for the water.”

Schoolcraft testified that every cat was matted with urine and feces. This is

unusual because cats are clean animals and it means the cats had given up trying to

clean themselves. Many of the cats were emaciated, but some were very obese.

There was evidence that some cats had cannibalized dead cats. Schoolcraft

concluded that some of the cats had taken over the sources of food and water and

not allowed the other cats near them.

Schoolcraft testified almost all of the cats had “upper respiratory infection,

mouth ulcers, parasites, ear mites, ringworms, all types of problems.” Many had

green discharge from their nose and eyes. Some of the cats had open wounds.

None of the cats were healthy.

Schoolcraft said there were five cages with cats inside that had no food or

water. The rest of the cats were roaming freely, though some were in rooms with

6
the doors shut. There was at least one dead cat in each room. Twenty-seven dead

cats and 168 live cats—a total of 195 cats—were removed from Whiskerville.

Both appellant and Paskert arrived at Whiskerville during the process of the

cat seizures. Upon arrival, appellant asked about what was going on. When

informed about the conditions inside Whiskerville, appellant became very upset

and said, “I don’t know why I pay her.” Paskert was interviewed on television and

indicated that she wanted to kill herself for her failure to take care of the cats.

During a subsequent interview with police, Paskert claimed that she had

arranged to have a volunteer named Karen Tibbets take care of the cats so that she,

Paskert, could take a week off after Christmas. Paskert said that she thought

Tibbets was taking care of the cats. Paskert also said that she did not tell appellant

about subcontracting her work to Tibbets, and that twice she told appellant that the

“kitties were fine.” Police were unable to locate anyone in the area named Karen

Tibbets and concluded that no such person existed.

Appellant and Paskert were both arrested and charged with cruelty to

nonlivestock animals. Paskert testified at appellant’s trial under an offer of use

immunity. She was not offered a plea deal in her own case.

After the case was submitted to the jury, appellant moved to sequester the

jurors, and the trial court granted her motion. The jurors were taken to a local

hotel at approximately 11 p.m. after the first day of deliberations. Approximately

7
four hours later, a bomb threat was phoned in to their hotel. The bailiffs evacuated

the jurors, who were kept together, but who overheard third parties talking about

the bomb threat. After the bailiffs were unable to find other accommodations for

the jurors, they returned the jurors to the deliberation room at the courthouse,

where the jurors slept on the floor the rest of the night. After continuing their

deliberations the next morning, the jury returned guilty verdicts on four counts of

animal cruelty.

INDICTMENT ISSUES

In her first issue on appeal, appellant contends the evidence was legally

insufficient to support her convictions. Appellant argues that, under a

hypothetically correct jury charge, she “would necessarily have been charged

either for abandoning the animals or unreasonably failing to provide necessary

food, water, or care[,]” and that she was instead “charged with killing the animals

based upon elements defined as a misdemeanor in the statute.” In her second issue

on appeal, appellant contends that “the trial court err[ed] by overruling [her]

motion to dismiss the indictments where the State alleged a felony by commission

of elements defined as a misdemeanor under the animal cruelty statute[.]” Both

issues hinge, at least in part, on appellant’s argument that failing to feed the

animals is a misdemeanor under the animal cruelty statute and that “[t]he State

may not allege a misdemeanor cruelty charge under the guise of a felony.”

8
Jurisdiction

Because appellant’s second issue on appeal challenges the jurisdiction of the

trial court, we address it first. Whether a court has subject matter jurisdiction is a

question of law. Coleman v. State, No. 07–10–00423–CR, 2011 WL 3925767, at

*2 (Tex. App.—Amarillo Sept. 7, 2011, no pet.) (mem. op., not designated for

publication) (citing Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217,

226 (Tex. 2004)). In Texas, district courts have jurisdiction over felony offenses.

TEX. CODE CRIM. PROC. ANN. art. 4.05 (Vernon 2005); see also TEX. CONST. art.

V, § 8 (“District Court jurisdiction consists of exclusive, appellate, and original

jurisdiction of all actions, proceedings, and remedies, except in cases where

exclusive, appellate, or original jurisdiction may be conferred by this Constitution

or other law on some other court, tribunal, or administrative body.”); TEX. GOV’T

CODE ANN. § 24.007(a) (Vernon Supp. 2014) (“The district court has the

jurisdiction provided by Article V, Section 8, of the Texas Constitution.”); Puente

v. State, 71 S.W.3d 340, 343 (Tex. Crim. App. 2002) (“A district court has

jurisdiction over felony offenses. It does not have original jurisdiction over

misdemeanor charges, except those involving official misconduct.”).

Appellant, relying on State v. Kingsbury, 129 S.W.3d 202, 206–07 (Tex.

App.—Corpus Christi 2004, no pet.), argues that “[a] person can commit the

misdemeanor offense of failing unreasonably to provide necessary food, water,

9
care or shelter or a person may commit the felony offense of torturing, killing, or

causing serious bodily injury to an animal—but a person cannot commit a felony

offense by committing predicate acts that are listed as a misdemeanor under the

statute.” The State responds that Kingsbury is not applicable because it interprets a

version of the animal cruelty act that has since been amended. We agree with the

State.

In Kingsbury, the State indicted Kingsbury for felony animal cruelty. Id. at

204. The animal cruelty statute in effect at the time provided that:

(a) A person commits an offense if the person intentionally or knowing:

(1) tortures an animal;

(2) fails unreasonably to provide necessary food, care, or shelter for an
animal in the person’s custody; . . . or

(5) kills, seriously injures, or administers poison to an animal, other than
cattle, horses, sheep, swine, or goats, belonging to another without legal
authority or the owner’s effective consent . . . .

Acts of 1989, 71st Leg., ch. 1253, § 2, eff. Sept. 1, 1989; Acts of 1993, 73rd Leg.,

ch. 900, § 1.01, eff. Sept. 1, 1993; Acts of 1995, 74th Leg., ch. 318, § 18, eff. Sept.

1, 1995; Acts of 1997, 75th Leg., ch. 1281, § 2, eff. Sept. 1, 1997; Acts of 2001,

77th Leg., ch. 450, § 1, eff. Sept. 1, 2001; Acts of 2003, 78th Leg., ch. 1275, §

2(11), eff. Sept. 1, 2003; Acts of 2007, 80th Leg., ch. 886, § 1, eff. Sept. 1, 2007

(current version at TEX. PENAL CODE ANN. § 42.092 (Vernon 2011). Under the

prior statute, torturing an animal under subsection (a)(1) and killing, seriously
10
injuring, or poisoning another person’s animal under subsection (a)(5) were

felonies, while failing to provide necessary food, care, or shelter to an animal in

one’s custody under subsection (a)(2) was a misdemeanor. Id. The statute did not

define “tortures.” Id.

The felony indictment against Kingsbury alleged that he intentionally or

knowingly tortured four dogs by leaving them without food and water, which led

to their deaths. Kingsbury, 129 S.W.3d at 204. Kingsbury filed a motion to

dismiss, alleging that the indictment alleged felony torture, but used, as the

defining element, language from the misdemeanor offense of failing to provide

necessary food, care, or shelter. Id. The trial court agreed, and dismissed the case

for want of jurisdiction because the indictment alleged a misdemeanor under the

guise of a felony. Id. The court of appeals affirmed, holding that “torture” could

not be interpreted to include the misdemeanor criminal acts of failing to provide

necessary food, care, or shelter. Id. at 206. To permit such an overbroad meaning

of “torture” would allow any of the misdemeanor acts of cruelty to be charged as

felonies. Id. at 207.

However, the animal cruelty statute was amended in 2007, and the current

version provides in part as follows:

(b) A person commits an offense if the person intentionally, knowingly, or
recklessly:

11
 (1) Tortures an animal or in a cruel manner kills or causes serious bodily
injury to an animal;

(2) Without the owner’s effective consent, kills, administers poison to, or
causes serious bodily injury to an animal;

(3) fails unreasonably to provide necessary food, water, care, or shelter for
an animal in the person’s custody;

(4) abandons unreasonably an animal in the person’s custody;

(5) transports or confines an animal in a cruel manner;

(6) without the owner’s effective consent, causes bodily injury to an animal;

(7) causes one animal to fight with another animal, if either animal is not a
dog;

(8) uses a live animal as a lure in dog race training or in dog coursing on a
racetrack; or

(9) seriously overworks an animal.

TEX. PENAL CODE ANN. § 42.092(b) (1–9) (Vernon 2011). Failing unreasonably to

provide food, water, care, or shelter to an animal in one’s custody and abandoning

unreasonably an animal in one’s custody are Class A misdemeanors unless the

defendant has prior convictions for animal cruelty. See id. § 42.092(c). Torturing

an animal and killing or causing serious bodily injury to an animal in a cruel

manner are state jail felonies. Id. The statute now defines “torture” as “any act

that causes unjustifiable pain or suffering” and “cruel manner” as “a manner that

causes or permits unjustified or unwarranted pain or suffering.” See id. §

42.092(a)(3), (8).
12
 The indictment in this case provided that appellant “did then and there

intentionally, knowingly, or recklessly cause serious bodily injury and/or kill, in a

cruel manner, an animal, to-wit: [cats # 1, 2, 3, and 7] by failing to provide food

and/or water and/or care . . . .” The indictment in this case, unlike the indictment

in Kingsbury, does not simply allege a misdemeanor cruelty charge “under the

guise of a felony.” It is true that the State had to prove that appellant failed to

provide food, water, or care to the cats, as prohibited by subsection (b)(3) of the

animal cruelty statute, but it also had to prove death or serious bodily injury to the

cat that was committed in a cruel manner, i.e., by causing unjustified or

unwarranted pain or suffering. In other words, the failure to provide food, water,

or care is the manner and means by which appellant killed the cats, causing them

unjustified pain or suffering. It is the killing in a cruel manner that elevates the

simple failure to provide food, water, or care from a misdemeanor to a state jail

felony in much the same way that a victim’s death elevates an assault to a murder.

Unlike Kingsbury, the current statute required the state to assume a higher burden

than merely proving the elements of the misdemeanor offense of failing to provide

food, water, or care in order to prove the felony offense alleged. As such, the

charged offense was not merely a misdemeanor cruelty charge “under the guise of

a felony.”

13
 The indictment in this case tracked the language of section 42.092(b)(1),

which is a state jail felony. An indictment that tracks the statutory language

proscribing certain conduct is sufficient to charge a criminal offense. State v.

Edmond, 933 S.W.2d 120, 127 (Tex. Crim. App. 1996). Because the criminal

offenses charged here were state jail felonies, not simply misdemeanors, the trial

court had jurisdiction over the case.

Accordingly, we overrule issue two.

Sufficiency

In her first issue on appeal, appellant contends the evidence is legally

insufficient. Specifically, appellant challenges whether there is sufficient evidence

of the culpable mental state of recklessness. We review the legal sufficiency of the

evidence by considering all of the evidence “in the light most favorable to the

prosecution” to determine whether 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, 318–19, 99 S. Ct. 2781, 2788–89 (1979). Our role is that of

a due process safeguard, ensuring only the rationality of the trier of fact’s finding

of the essential elements of the offense beyond a reasonable doubt. See Moreno v.

State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988). We give deference to the

responsibility of the fact finder to fairly resolve conflicts in testimony, weigh

evidence, and draw reasonable inferences from the facts. Williams v. State, 235

14
S.W.3d 742, 750 (Tex. Crim. App. 2007). However, our duty requires us to

“ensure that the evidence presented actually supports a conclusion that the

defendant committed” the criminal offenses of which she is accused. Id.

A person commits the offense of animal cruelty, as pleaded and submitted to

the jury in this case, if she recklessly and in a cruel manner kills or causes serious

bodily injury to an animal. TEX. PENAL CODE ANN. § 42.092(b)(2). In a “cruel

manner” includes a manner that causes or permits unjustified or unwarranted pain

or suffering. Id. § 42.092(a)(3).

A person’s culpable mental state may be inferred from her acts, words, and

conduct, and the surrounding circumstances. Hart v. State, 89 S.W.3d 61, 64 (Tex.

Crim. App. 2002); Moore v. State, 969 S.W.2d 4, 10 (Tex. Crim. App.

1998) (“Mental culpability is of such a nature that it generally must be inferred

from the circumstances under which a prohibited act or omission occurs.”).

Circumstantial evidence is as probative as direct evidence in establishing the guilt

of an actor. Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App.

2004); see Laster v. State, 275 S.W.3d 512, 524 (Tex. Crim. App. 2009) (“[O]ne’s

acts are generally reliable circumstantial evidence of one’s intent.”). The culpable

mental state of “reckless” is satisfied by evidence indicating that the defendant

consciously disregarded a substantial and unjustifiable risk that the proscribed

harm would occur—a risk that if disregarded constitutes a gross deviation from the

15
standard of care an ordinary person would exercise under the same

circumstances. Davis v. State, 955 S.W.2d 340, 348–49 (Tex. App.—Fort Worth

1997, pet. ref’d); see TEX. PENAL CODE ANN. § 6.03(c) (Vernon 2011) (“A person

acts recklessly, or is reckless, with respect to circumstances surrounding his

conduct . . . when he is aware of but consciously disregards a substantial and

unjustifiable risk that the circumstances exist or the result will occur.”) Reckless

conduct “involves conscious risk creation, that is, [that] the actor is aware of the

risk surrounding his conduct or the results thereof, but consciously disregards that

risk.” Davis, 955 S.W.2d at 349 (quoting Aliff v. State, 627 S.W.2d 166, 171 (Tex.

Crim. App. 1982)).

Appellant first argues that “[t]he jury charge and the indictment did not

accurately set out the law[,]” and that under a hypothetically correct charge she

would have been charged with misdemeanor failure to provide the cats with

necessary food, water, or care under section 42.092(b)(3). She further argues that

there is insufficient evidence that she failed to provide food or water or that she

had custody of the cats as required by the misdemeanor offense. However, we

have already held that appellant was properly charged under the felony section

42.092(b)(1), not the misdemeanor section 42.092(b)(3). Thus, her argument that

the evidence is legally insufficient to prove the elements of the misdemeanor is

irrelevant.

16
 Appellant next argues that “[t]he evidence was insufficient even though the

indictments and jury charges were defective[]” because “[t]he mental state of

recklessness was not proven.” Appellant argues that Kimberly Paskert’s testimony

proved that appellant “had no knowledge of the conditions at Whiskerville and that

she lied to the Appellant about the status of the cats whose care she was

responsible for[,]” and that appellant could not have anticipated Paskert’s failure to

show up for work.

The State responds that its “sole theory at trial was that Appellant was

reckless in relying on only one person to care for 200 cats.” In other words, the

State is contending that appellant’s operation of the shelter with only one

employee, who had no assistance or back-up, and who had expressed her need for

help on more than one occasion, created the risk of the animals’ deaths in a cruel

manner, which appellant consciously disregarded.

Here, there was evidence that Paskert, the sole employee at Whiskerville,

was overwhelmed by her workload. Paskert testified that it took 10 to 15 hours per

day to complete all of the tasks assigned to her, which she tried to accomplish at

least two to three days per week. On the other days she worked six to eight hours

per day; she never worked less than three hours.

From January 2011 until December 26, 2011, Paskert worked seven days per

week, even after she asked appellant to hire someone else to work on the two days

17
that Paskert also cleaned houses for other people. Paskert tried her best to keep up

with the tasks, but was not able to do so. Appellant’s daughter, who had worked at

Whiskerville in the past, described the work as “back breaking.”

Appellant knew that Paskert needed help, but would always respond when

questioned about it that she “was working on it.” A few months before the cats

were seized, Donna Jones, a former Whiskerville employee, came by the shelter to

pick up cat food. Jones found Paskert there, upset and crying. Paskert told Jones

that she was tired, her hands were hurting from all the cleaning, and she needed

help. Appellant was aware that Paskert, who was 48 years old, had suffered from

arthritis for many years.

Appellant, who lived approximately 20 minutes away from Whiskerville,

rarely went to the sanctuary. Appellant usually showed up only for adoption days,

and Paskert had not seen appellant at the sanctuary since early October 2011.

Indeed, a neighbor, Donna Myers, testified that she had seen no one at

Whiskerville during the entire month of December 2011.

Kim Schoolcraft, the manager at the Animal Resource Center in Galveston,

testified that she had 10 to 12 employees to take care of the 275 animals that she

averaged at her facility. In Schoolcraft’s opinion it was “absolutely” unreasonable

to expect one person to care for 200 cats.

18
 Although appellant claims that she reasonably relied on Paskert to show up

and care for the cats and that Paskert had been a reliable employee for six years

before suddenly failing to appear for work, there was evidence that Paskert had

quit or was fired once before because she was unable to keep up with the work to

appellant’s satisfaction.

Based on the evidence that appellant (1) expected Paskert alone to care for

200 cats seven days per week, (2) provided no assistance or back-up for the

arthritic Paskert, even though she knew Paskert needed and had requested

assistance, (3) rarely went to the shelter herself and had not been seen at

Whiskerville in months, and (4) was difficult to reach, other than by text message,

and that (5) Paskert had quit or been fired once before when she could not keep up

with the work, the jury could have believed beyond a reasonable doubt that

appellant created the risk that the animals would not be properly cared for, causing

them to be killed or suffer severe bodily injury in a cruel manner, and that

appellant consciously disregarded the substantial and unjustifiable risk that the

cats’ deaths would occur.

Accordingly, we overrule issue one.

Strict Liability

In issue three, appellant contends the trial court erred “by overruling the

appellant’s motion to dismiss the indictments where the state created strict liability

19
offenses.” Specifically, appellant argues that “the State alleged the misdemeanor

elements of animal cruelty without alleging the defensive elements of custody and

reasonableness.” Appellant’s issue is premised on the assumption that the

indictment charged appellant with the misdemeanor offense of failing

“unreasonably to provide necessary food, water, care, or shelter for an animal in

the person’s custody[]” under section 42.092 (b)(3). However, as we have already

held, the indictment charged appellant with committing an offense under section

42.092(b)(1), which does not contain what appellant refers to as “the defensive

elements of custody and reasonableness.”

Accordingly, we overrule issue three.

In Pari Materia

In issue four, appellant contends the trial court erred “by overruling [her]

motion to quash the indictments based upon the doctrine of in pari materia[.]”

Appellant contends that she should have been charged with the misdemeanor

offense of “abandoning” an animal under subsection (b)(4), rather than the state

jail felony of killing or causing serious bodily injury to an animal in a cruel manner

under subsection (b)(1). Specifically, appellant argues that the abandoning portion

of the statute more specifically covers the conduct she is alleged to have

committed, thus she should have been charged with that offense.

20
 When two statutes address the same general subject, they are considered as

being in pari materia. See State v. Vasilas, 253 S.W.3d 268, 271 (Tex. Crim. App.

2008). All acts and parts of acts in pari materia must be read and construed

together as though they were parts of one and the same law, even if they were

enacted at different times. Id. Whenever possible, we must harmonize any conflict

between the two statutes so that each is given effect. Id. at 272. If the statutes are

irreconcilable, then we must apply the more “special” statute as an exception to the

general one. See TEX. GOV’T CODE ANN. § 311.026 (Vernon 2013). In the context

of penal provisions, the Court of Criminal Appeals has determined statutes to

be in pari materia “where one provision has broadly defined an offense, and a

second has more narrowly hewn another offense, complete within itself, to

proscribe conduct that would otherwise meet every element of, and hence be

punishable under, the broader provision.” Jones v. State, 396 S.W.3d 558, 561

(Tex. Crim. App. 2013) (quoting Azeez v. State, 248 S.W.3d 182, 192 (Tex. Crim.

App. 2008)).

A list of four non-exclusive factors may be considered in determining

whether the statutes are in pari materia, namely, whether the statutes: (1) involve

different penalties; (2) are contained in the same legislative act; (3) require the

same elements of proof; and (4) were intended to achieve the same purpose or

objective. Burke v. State, 28 S.W.3d 545, 547 (Tex. Crim. App. 2000).

21
 Here, the statutes involve different penalties. Subsection (b)(1) is a state jail

felony and subsection (b)(4) is a Class A misdemeanor. See TEX. PENAL CODE

ANN. § 42.092(c). While both subsections were promulgated in the same 2007

legislative act, they do not require the same elements of proof. As we discussed in

issue two, the felony offense in subsection (b)(1) requires killing or causing serious

bodily injury to the animal in a cruel way, i.e., causing unwarranted pain and

suffering. The misdemeanor offense of abandoning does not require death, serious

bodily injury, or the causing of unwarranted pain and suffering. And, while both

statutes are intended to prevent animal cruelty, the “nature of the forbidden

conduct” in the misdemeanor subsection (b)(4) is abandoning an animal, while the

forbidden conduct in the state jail felony subsection (b)(1) is killing or causing

serious bodily injury in a way that causes unwarranted pain and suffering. See

Mills v, State, 722 S.W.2d 411, 415 (Tex. Crim. App. 1986) (determining statute’s

purpose and objective by considering conduct forbidden by statute).

As such, we conclude that abandonment is not a “more narrowly hewn . . .

offense, complete within itself, [that] proscribe[s] conduct that . . . otherwise

meet[s] every element of, and hence [is] punishable under” subsection (b)(1). Id.

at 414. Put simply, proof of abandonment alone will not prove the elements of the

crime charged.

We overrule appellant’s fourth issue.

22
 DEFENSIVE ISSUES

Denial of Defensive Charges

In her fifth issue on appeal, appellant contends the trial court erred “by

failing to give appellant’s requested charges on custody, assumption of custody,

and reasonableness.”

The trial court shall “deliver to the jury . . . a written charge distinctly setting

forth the law applicable to the case [and] not expressing any opinion as to the

weight of the evidence . . . .” TEX. CODE CRIM. PROC. ANN. art. 36.14 (Vernon

2007). The trial court is required to instruct the jury on statutory defenses,

affirmative defenses, and justifications when they are raised by the

evidence. Walters v. State, 247 S.W.3d 204, 208–09 (Tex. Crim. App. 2007). The

defendant is entitled to an instruction on every defensive issue raised by the

evidence, “regardless of whether the evidence is strong, feeble, unimpeached, or

contradicted, and even when the trial court thinks that the testimony is not worthy

of belief.” Id. at 209. The Court of Criminal Appeals has held, however, “that if the

defensive theory is not explicitly listed in the penal code—if it merely negates an

element of the State’s case, rather than independently justifying or excusing the

conduct—the trial judge should not instruct the jury on it.” Id.; see also Giesberg

v. State, 984 S.W.2d 245, 250 (Tex. Crim. App. 1998) (“[B]ecause the authority to

establish what constitutes a defense rests solely with the Legislature, this Court
23
concludes [that] a defense which is not recognized by the Legislature as either a

defense or as an affirmative defense does not warrant a separate instruction.”).

Here, the animal cruelty statute contains affirmative defenses to killing or

injuring someone else’s dog without their consent if (1) the animal is discovered on

one’s property and is injuring or killing livestock or damaging crops, or (2) the

person killed the animal within the scope of the actor’s employment as a public

servant or in furtherance of certain electrical or natural gas delivery activities. See

TEX. PENAL CODE ANN. § 42.092(e). Neither statutory defense is applicable here.

The statute also provides an exception to its application if the actor is involved in

“generally accepted and otherwise lawful” conduct relating to fishing, hunting, or

trapping, wildlife management and related activities, or animal husbandry or

agriculture practices involving livestock. See Id. § 42.092(f). The jury was

charged on these provisions. No other defenses are listed in the statute.

At the jury charge conference, appellant requested, and was denied, the

following charges relating to her defensive issue of “assumption of custody”:

“Custody” includes responsibility for the health, safety, and
welfare of an animal subject to the person’s care and control,
regardless of ownership of the animal.

A person may transfer custody by making reasonable
arrangements for the assumption of custody by another person.

24
The first paragraph of the requested charge is taken from the definitions in the

animal cruelty statute. See id. § 42.092(a)(4). The second paragraph is included in

the definition of “abandon.” See id. § 42.092(a)(1).

The misdemeanor subsection (b)(3) provides that a person commits an

offense by failing “unreasonably to provide necessary food, water, care, or shelter

for an animal in the person’s custody.” Custody, as defined in the statute, is an

element of the misdemeanor subsection (b)(3), and, as such, even if appellant were

charged under subsection (b)(3), which she was not, the second paragraph of the

requested charge would be an improper comment on the weight of the evidence.

See Giesberg, 984 S.W.2d at 248.

Because appellant was not charged under subsection (b)(3), but under

subsection (b)(1), which does not mention custody, the statutory definition of

custody in the first paragraph of the requested charge was not required. “The better

charging practice is to limit the definitional paragraphs [as was done here] to the

portions of the statute applicable to the allegations in the indictment.” Lewis v.

State, 676 S.W.2d 136, 143 (Tex. Crim. App. 1984).

Appellant’s strategy at trial was to assert that Kimberly Paskert, not she,

killed the animals. This attempt at shifting culpability to a third party is essentially

an alibi defense. See McGregor v. State, 394 S.W.3d 90, 123–24 (Tex. App.—

Houston [1st Dist.] 2012, pet. ref’d) (by requesting third-party-culpability issues

25
defendant “is essentially raising the defense of alibi”). Charges on defensive issues

raising alibi are not proper because they are an improper comment on the weight of

the evidence. Giesberg, 984 S.W.2d at 248–50; McGregor, 394 S.W.3d at 124. As

such, the trial court properly denied appellant’s requested defensive issues relating

to custody.

We overrule issue five.

Due Process

In her sixth issue on appeal, appellant contends that she was “deprived of

due process and due course of law by the State’s conduct in this case.”

The Due Process Clause of the Fourteenth Amendment provides that no State may

“deprive any person of life, liberty, or property, without due process of

law[.]” See U.S. CONST. amend. XIV, § 1. Similarly, the Texas Constitution

provides that “[n]o citizen of this State shall be deprived of life, liberty, property,

privileges or immunities . . . except by the due course of the law of the land.” TEX.

CONST. art. I, § 19. “The touchstone of due process is fundamental fairness.” Euler

v. State, 218 S.W.3d 88, 91 (Tex. Crim. App. 2007).

Appellant argues that the State’s conduct in the case was fundamentally

unfair because “[t]he State cobbled together an indictment that charged a felony

based upon misdemeanor conduct, and then attempted to add the misdemeanor

26
back when they requested the lesser charge so as to prevent the jury from

considering the defenses claimed in the misdemeanor statute.”

Again, appellant’s issue is based on the assumption that the case was

wrongly charged as a felony and that her defensive issues were erroneously

excluded. We have already held to the contrary on both issues. Further, we note

that even if the State’s attempts to include lesser-included offenses at the last

minute were somehow unfair, the trial court, at appellant’s request, did not include

any lesser-included offenses in the jury charge.

Accordingly, we overrule issue six.

SEQUESTRATION ISSUES

Due to the publicity in Galveston surrounding this case, appellant moved to

sequester the jury pursuant to TEX. CODE CRIM. PROC. ANN. art. 35.23 (Vernon

2006). The trial court granted the motion. Accordingly, the bailiff accompanied

the jury to a local hotel room at approximately 11 p.m. on December 19, 2012.

Approximately four hours later, around 2 a.m., a bomb threat was phoned in to the

hotel, and the hotel was evacuated. The bailiffs took the jurors outside to their van.

While leaving the hotel, the jurors overheard other people at the hotel discussing

the bomb threat; no one spoke to the jurors directly.

The bailiffs took the jurors to another hotel, but did not check them in

because the hotel was unable to accommodate all of the jurors on the same floor.
27
Some of the jurors told the bailiffs that they would feel safer at the courthouse, so

the bailiffs returned the jury to the courthouse at 3:15 a.m. The jury was kept

together in the deliberation room, where they were permitted to sleep on the floor.

At 7:30 a.m., the bailiffs took the jurors back to their original hotel to collect their

belongings and then took them to breakfast. The jurors then returned to the

courthouse to resume their deliberations.

After one of the bailiffs testified to these events, appellant moved for a

mistrial, which the State did not oppose. The trial court denied the motion, the jury

resumed its deliberations, and appellant was ultimately convicted.

Denial of Mistrial and Motion for New Trial

In her seventh issue on appeal, appellant contends the trial court “erred by

failing to grant an agreed mistrial after previously sequestered jurors were not

provided overnight facilities and were allowed to separate in violation of TEX.

CODE CRIM. PROC. ANN. art. 35.23.”1 In her eighth issue on appeal, appellant

1
TEX. CODE CRIM. PROC. ANN. art. 35.23 provides as follows:

The court may adjourn veniremen to any day of the term. When jurors have been
sworn in a felony case, the court may, at its discretion, permit the jurors to
separate until the court has given its charge to the jury. The court on its own
motion may and on the motion of either party shall, after having given its
charge to the jury, order that the jury not be allowed to separate, after which the
jury shall be kept together, and not permitted to separate except to the extent of
housing female jurors separate and apart from male jurors, until a verdict has
been rendered or the jury finally discharged. Any person who makes known to
the jury which party made the motion not to allow separation of the jury shall be
punished for contempt of court. If such jurors are kept overnight, facilities shall
28
contends the trial court erred in denying her motion for new trial urging the same

grounds. In both motions, appellant argued that the jury was allowed to separate

during the hotel evacuation and that “[i]t was during this separation that the jurors

learned that a bomb threat had been made against their hotel room—and by

extension to themselves.” Appellant also argued that the jury deliberation room, in

which the jury finally slept, “fails to qualify as ‘separate facilities’ under Article

35.23.”

A mistrial is appropriate only in extreme circumstances for a narrow class of

highly prejudicial and incurable errors. Ocon v. State, 284 S.W.3d 880, 884 (Tex.

Crim. App. 2009). We review a trial court’s denial of a motion for mistrial for

an abuse of discretion. Wead v. State, 129 S.W.3d 126, 129 (Tex. Crim. App.

2004); Juarez v. State, 409 S.W.3d 156, 166 (Tex. App.—Houston [1st Dist.]

2013, pet. ref’d). Whether a mistrial is required depends on the particular facts of

the case. Ocon, 284 S.W.3d at 884.

Similarly, we review a trial court’s rulings on a motion for new trial for

an abuse of discretion. See Holden v. State, 201 S.W.3d 761, 763 (Tex. Crim. App.

2006). In conducting our review, we may not substitute our judgment for that of

be provided for female jurors separate and apart from the facilities provided for
male jurors. In misdemeanor cases the court may, at its discretion, permit the
jurors to separate at any time before the verdict. In any case in which the jury is
permitted to separate, the court shall first give the jurors proper instructions with
regard to their conduct as jurors when so separated. (Emphasis added).
29
the trial court. Id. Rather, we decide only whether the trial court’s decision was

arbitrary or unreasonable. Id. A trial court abuses its discretion in denying a motion

for new trial only when no reasonable view of the record could support the trial

court’s ruling. Id.

The State contends that, even if we assume a violation of section 35.23

occurred, the error is harmless. We agree. Error, if any, in failing to properly

sequester the jury is a statutory violation, not a constitutional violation. Campbell

v. State, 189 S.W.3d 822, 826 (Tex. App.—Houston [1st Dist.] 2006, no pet.); see

also Rojas v. State, 986 S.W.2d 241, 252 (Tex. Crim. App. 1998) (Keller, J.,

concurring). As such, any non-constitutional error that does not affect appellant’s

substantial rights must be disregarded. Id.; TEX. R. APP. P. 44.2(b). A substantial

right is affected when the error had a substantial and injurious effect or influence in

determining the jury’s verdict. King v. State, 953 S.W.2d 266, 271 (Tex. Crim.

App. 1997). We will not overturn a criminal conviction for non-constitutional error

if, after examining the record as a whole, we have fair assurance that the error did

not influence the jury, or had but a slight effect on its verdict. See Barshaw v.

State, 342 S.W.3d 91, 93 (Tex. Crim. App. 2011).

Appellant argues that the “harm is obvious” because “[t]he jurors would

undoubtedly have (wrongly) attributed the bomb threat to the Appellant” and

“rendered their verdict in an environment of hostility, fear, and exhaustion[,]”

30
which “undoubtedly led the jury to reaching a verdict of guilt that would not have

been rendered under normal circumstances.”

Nothing in the record, however, supports appellant’s assertions. The record

shows that the jury was kept together at all times during the evacuation. And,

while they were generally aware of a bomb threat at the hotel from overhearing

others in the area, no information was given to the jury directly by third parties,

and nothing supports the conclusion that the jury attributed the bomb threat to

appellant. Indeed, the bailiff, Sergeant Elizondo, who was with the jury on the

night in question, testified that the jurors were doing “surprisingly” well and were

not in “any particular distress” over the bomb threat. He added that he had not

noticed any desire by the jury to discontinue their deliberations. As such, we

conclude that appellant’s substantial rights were not affected by returning the jury

to the deliberation room a few hours early in light of the situation presented at their

hotel.

We overrule issues seven and eight.

31
 CONCLUSION

We affirm the trial court’s judgments.

Sherry Radack
Chief Justice

Panel consists of Chief Justice Radack and Justices Jennings and Keyes.

Publish. TEX. R. APP. P. 47.2(b).

32