Herman Edward Hoffman v. State

In The

Court of Appeals

Ninth District of Texas at Beaumont

_________________

NO. 09-17-00177-CR
NO. 09-17-00178-CR
NO. 09-17-00179-CR
NO. 09-17-00180-CR
NO. 09-17-00181-CR
_________________

HERMAN EDWARD HOFFMAN, Appellant

V.

THE STATE OF TEXAS, Appellee
________________________________________________________________________
On Appeal from the County Court at Law No. 1
Montgomery County, Texas
Trial Cause Nos. 15-307438, 15-307425, 15-307422, 15-307041, 15-307040
________________________________________________________________________

MEMORANDUM OPINION

The State charged Herman Edward Hoffman (Herman) in five separate causes

of cruelty to livestock animals, alleging he failed to provide necessary food, water,

1
or care arising out of his treatment of over two hundred horses.1, 2 See Tex. Penal

Code Ann. § 42.09(a)(2) (West 2016). A jury convicted Herman in all five causes.

See id. The trial judge assessed punishment of one year in the Montgomery County

Jail for each case, to be served concurrently, and a $4,000 fine in each case. Herman

appeals his convictions.

In four issues, Herman argues: (1) the judgments should be reversed for a new

trial with separate trial counsel because appellants’ trial counsel was ineffective; (2)

the judgments should be reversed based on Brady and Michael Morton Act

violations; (3) the judgments should be reversed and an acquittal entered because the

evidence is factually insufficient in each case; and (4) the judgments should be

reversed and dismissed with prejudice because appellants were prosecuted twice for

the same offenses violating the Double Jeopardy Clauses of the United States and

Texas Constitutions. We overrule all issues and affirm the trial court’s judgment.

1
His wife, Kathleen Hoffman, was also charged and convicted for cruelty to
livestock animals arising out of the same instances. They were tried together and
filed a joint brief raising identical issues on appeal. We address Kathleen Hoffman’s
appeal in a separate opinion.
2
Mr. Hoffman and his wife were initially charged with twenty separate counts
of cruelty to livestock animals by failing to provide necessary food, water, or care;
however, the State proceeded with five counts for purposes of expediency.
2
 I. Factual Background

The State seized 207 horses from Kathleen and Herman Hoffman. Before the

criminal prosecution, the Hoffmans were subject to civil forfeiture proceedings in

Justice Court, which judgment was appealed to the County Court at Law for a trial

de novo pursuant to Texas Health and Safety Code section 821.025. See Tex. Health

& Safety Code Ann. §§ 821.023, 821.025 (West Supp. 2018).3 The Justice Court

determined they treated all seized animals cruelly, ordered the animals surrendered,

and ordered the Hoffmans to pay $150,000.00 for costs associated with the care of

the animals. The County Court at Law issued almost identical findings but ordered

the Hoffmans to pay $485,331.68 in costs incurred by the SPCA for housing and

caring for the animals. The Hoffmans were subsequently prosecuted together and

convicted in five causes each of the criminal offense of cruelty to livestock animals

under Texas Penal Code section 42.09(a)(2). See Tex. Penal Code § 42.09(a)(2). The

criminal convictions are the basis of these appeals.

The Hoffmans resided at property on League Line Road in Montgomery

County, Texas. Herman and his wife owned around fifteen acres and leased an

additional twenty-five acres adjacent to their property, or around forty acres

3
We cite the current version of the statute as it does not affect the outcome of
these appeals.
3
altogether. In addition to 207 horses,4 the Hoffmans kept dairy cows and goats on

the forty acres.5

Herman had extensive experience raising and breeding horses.6 Herman

graduated from Purdue University in 1975, majoring in farm and business

management, with a minor in economics and a minor in animal science. Herman

indicated he and his wife’s quarter horse business began in 1984 and 1985. Herman

testified he purchased animals from across the country and put a “foundation herd”

together of the closest blood to famous horses.

A deputy constable from the livestock division, Gordon Welch, indicated his

department began receiving complaints about the body weight and living conditions

of the Hoffmans’ horses in 2014.7 Between 2014 and June 2015, the deputy

constables received and responded to many complaints regarding the Hoffmans’

horses. Welch testified they gave the Hoffmans recommendations for improving the

4
State’s Exhibit 233 was a video played for the jury in which Herman
Hoffman estimated they had 190 horses on the property, fifty cows, and twenty
goats.
5
None of the Hoffmans’ other animals were seized.
6
Kathleen also had extensive experience with horses, which we address in a
separate opinion.
7
Deputy Welch testified he met the Hoffmans approximately five years prior
to trial when one of their bulls escaped. At the time, the Hoffmans gave Deputy
Welch a tour of their property where Welch observed eighty to one hundred horses
in good health.
4
horses’ condition by “stepping up” the feeding program and ensuring they wormed

the horses. The deputy suggested Herman and Kathleen were both in control of the

horses, and the recommendations were directed to them both. The deputy constables

assigned to the livestock division worked with the Hoffmans for several months

before issuing a warning on October 10, 2014. Deputy Welch circled the definition

of cruelty indicating “fails unreasonably to provide necessary food, water, or care

for a livestock animal in the person’s custody” on the written warning and directed

the Hoffmans to seek medical assistance for the horses from a licensed veterinarian.

Welch wanted a vet to examine the animals and make recommendations because he

felt the Hoffmans’ feeding program was inadequate due to the large number of

horses in the pens, and the weaker horses were not able to get adequate feed.

According to Welch, veterinarian Dr. David Husfeld visited the Hoffmans’

property and evaluated the horses. Dr. Husfeld opined in a letter dated October 27,

2014, the “condition of this group of horses ranges from [] good to very bad.” Dr.

Husfeld suggested the remedy was “more and better feeding” along with a “good

parasite control program[.]” Dr. Husfeld also suggested “the thinner animals ideally

need to be separated to [feed.]”

The deputy constables received more complaints about the horses’ condition

and made additional visits to the Hoffmans’ property where they observed a further

5
decline of the animals. On June 23, 2015, Deputy Welch, his partner, and an

investigator with the District Attorney’s office went to the Hoffmans’ property.

Based on their visual observations, they obtained a search warrant for the property

on June 24, 2015. As a result of those findings, they also secured and executed a

seizure warrant.

At trial, several witnesses who participated in the seizure described the

deplorable conditions. The participating Society for the Prevention of Cruelty to

Animals (SPCA) barn supervisor testified her first impression of the property was it

appeared to be a “kill pen.” She also observed many skinny, distressed horses. The

SPCA barn supervisor also testified there was no grass for the horses and no place

for them to graze.

Because of the large number of animals and the logistics of dealing with a

seizure of that magnitude, Montgomery County required help from the SPCA.

Deputy Welch and other State witnesses suggested the Hoffmans’ horses were

unaccustomed to handling, so it took around two weeks to round them up, give them

medical treatment, worm them, and transport them to another location. The SPCA

barn supervisor assisting with the seizure described horses with rain rot8, bones

showing, and overgrown hooves.

8
“Rain rot” is an infection of the skin.
6
 Dr. Amy Crum, an SPCA veterinarian, went to the Hoffman property to assess

the overall situation and triage horses in need of emergency veterinary care. Dr.

Crum testified her initial impression of the herd was they were in very poor condition

with nutritional and hoof care problems, respiratory disease, infected wounds, and

many other issues. Dr. Crum testified she was concerned some animals’ deaths were

imminent, so they removed eighteen of those horses to the Houston SPCA for

immediate care. According to Dr. Crum, the horses lacked basic veterinary care and

husbandry, nutrition, and foot care—things horse owners should provide. Of the

horses requiring emergency veterinary care, several were emaciated and in danger

of not being able to support their own weight, while others had debilitating wounds.

Dr. Crum explained how they tracked and cared for the seized horses by assigning

them a unique six number identification and connected the records by using that

number.

State witnesses, including Dr. Crum, discussed how they used the Henneke

Body Conditioning Score (BCS) for horses. That scale provides a score ranging from

1 to 9 for evaluating a horse’s body condition. A score of 1 means a horse is

extremely emaciated, and a score of 9 suggests an obese horse. Dr. Crum and the

SPCA barn supervisor testified an ideal BCS is 5.

7
 Several State witnesses discussed appropriate horse care and husbandry

standards at trial. These witnesses testified horses required regular hoof care by a

farrier, including trimming, and neglecting a horse’s hooves could result in laminitis

and other permanent lameness. Dr. Crum testified this was particularly important for

confined horses that had no opportunity to run or naturally wear down their hooves.

Dr. Crum also testified that horses required regular dental care. Failure to

periodically “float” or file down a horse’s teeth, results in the teeth growing to sharp

points and impeding the animal’s ability to eat.

Witnesses testified about the need for a proper parasite control program, and

evidence revealed a veterinarian made that recommendation to the Hoffmans before

the seizure of the animals. Witnesses also discussed the need to seek prompt

veterinary attention for horses with wounds or for animals that collapsed. Evidence

established when there is no grass readily available for horses, an owner should

regularly feed hay and grain to provide adequate nutrition. Finally, to ensure weaker,

thinner animals had an opportunity to feed adequately, evidence showed they should

be separated from the rest of the herd.

Montgomery County seized 207 horses. Dr. Crum testified that around

twenty-five percent of the Hoffmans’ horses were of an adequate weight. The SPCA

barn supervisor testified thirty seized horses could not be saved and were euthanized,

8
and three horses died unassisted. Some horses had been adopted, and about eight

were available for adoption. Other horses were not ready to be adopted, and the

SPCA continued to work with those.

Before trial, the State revealed it was going forward with the criminal

prosecutions against the Hoffmans for five of the horses and elected to consolidate

the trials of Herman and Kathleen. The criminal trial began on May 15, 2017, and

the jury convicted the Hoffmans on all counts on May 18, 2017.

II. Analysis

A. Sufficiency of the Evidence

Asserted as Herman’s third issue, we address his sufficiency complaint first.

Herman argues the evidence is factually insufficient to support his convictions for

cruelty to livestock animals.9 See Tex. Penal Code Ann. § 42.09(a)(2). When an

appellant raises a claim of insufficiency, we review the evidence in the light most

favorable to the verdict to determine whether any rational factfinder could have

found the essential elements of the offense beyond a reasonable doubt. See Brooks

9
Although Herman complains of factual insufficiency, for years, Texas has
recognized the legal sufficiency standard as outlined in Jackson v. Virginia as the
only standard reviewing courts should employ in determining whether the evidence
is sufficient to support each element of a criminal offense beyond a reasonable doubt.
See Jackson v. Virginia, 443 U.S. 307, 318–19 (1979); Brooks v. State, 323 S.W.3d
893, 895, 912 (Tex. Crim. App. 2010).
9
v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010) (citing Jackson v. Virginia,

443 U.S. 307 (1979)) (concluding the Jackson standard “is the only standard that a

reviewing court should apply” when examining the sufficiency of the evidence);

Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). We look to “all of the

evidence in the record, both direct and circumstantial, whether admissible or

inadmissible.” Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999)

(citations omitted). The jury is the sole judge of the witnesses’ credibility and weight

to be given to their testimony. Tate v. State, 500 S.W.3d 410, 413 (Tex. Crim. App.

2016). Juries may draw multiple reasonable inferences from facts so long as each

inference is supported by the evidence presented at trial. Id. Accordingly, we must

defer to the jury’s determinations of weight and credibility of the witnesses. See

Brooks, 323 S.W.3d at 899; Hooper, 214 S.W.3d at 13. In conducting a sufficiency

review, an appellate court considers “‘events occurring before, during[,] and after

the commission of the offense and may rely on actions of the defendant [that] show

an understanding and common design to do the prohibited act.’” Hooper, 214

S.W.3d at 13 (quoting Cordova v. State, 698 S.W.2d 107, 111 (Tex. Crim. App.

1985)).

The State was required to prove beyond a reasonable doubt Herman

intentionally or knowingly failed to provide necessary food, water, or care for each

10
of the livestock animals in his custody listed in the complaints for a jury to find him

guilty in all causes. See Tex. Penal Code Ann. § 42.09(a)(2). “Necessary food, water,

or care” is defined by the statute to mean “food, water, or care provided to the extent

required to maintain the livestock animal in a state of good health.” Tex. Penal Code

Ann. § 42.09(b)(6) (West 2016).

The evidence here was overwhelming that Herman and his wife both failed to

provide necessary food or care as needed to maintain each of the five horses in good

health. See id. The Hoffmans focus solely on the evidence of the horses’

malnourishment as being insufficient. They argue that without certain blood tests the

State cannot establish the animals were malnourished. While we disagree with

Herman’s argument the evidence was insufficient to find the horses were

malnourished, there was sufficient evidence about the lack of care for each one of

these animals. Veterinary records revealed and testimony at trial supported each of

the animals’ hooves had been neglected, and they all suffered from parasites.

Moreover, four of the animals suffered from significant untreated health problems

and wounds.

1. Evidence Regarding Horse 287593

Horse 287593 was an older palomino mare. Evidence revealed she was

extremely emaciated and had significant dental problems. The State admitted

11
photographs depicting a horse with protruding hip bones, shoulder bones, a sunken

face, and vertebrae showing. Evidence revealed the horse had a BCS of 1, indicative

of extreme emaciation.

Testimony from the SPCA barn supervisor suggested a horse would not be in

poor body condition solely because of its age, and if an older horse was provided

with proper nutrition, it should not look skinny. Dr. Crum testified the horse was

severely emaciated, suffered from muscle wasting, and completely lacked muscle

due to starvation. Dr. Crum testified the horse’s dental problems rendered her unable

to chew food, and the horse lacked dental care for an extended period. Kathleen and

Herman testified the horse had been kicked in the jaw, resulting in broken mandibles

years before, and a veterinarian told them to “leave it alone.”

Dr. Crum stated the horse was not in good health when seized, did not have

adequate food, and had been suffering for months. Testimony and veterinary records

revealed the mare had gastrointestinal parasites, particularly strongyle ova, which

Dr. Crum testified were easily treatable with over-the-counter medications and a

basic part of horse care. Dr. Crum described attempts to provide the mare soft food

in the form of mash and intravenous fluids, but even after supporting her with a sling,

they could not keep her standing, so she was humanely euthanized.

12
 2. Evidence Regarding Horse 287598

The evidence for horse 287598 revealed he had a BCS of 4 and extremely

overgrown hooves. Dr. Crum and the SPCA barn supervisor testified the horse’s

hooves had not been trimmed in a very long time, and the left front hoof was

extended into an “elf shoe” shape. Photographs admitted by the State depict the hoof

Dr. Crum described. Dr. Crum conveyed this was very abnormal, the hoof was

egregiously overgrown, and it took months for the horse’s hoof to become so

overgrown. Dr. Crum estimated it had been months to years since the horse received

farrier care. Dr. Crum also testified an animal kept in a stall requires more hoof care

because they do not wear their hooves down naturally. Dr. Crum described the

importance of hoof care and if neglected, how a horse’s hooves could lead to other

serious health problems, including laminitis. The State’s evidence and testimony

revealed the horse suffered from laminitis. The SPCA barn supervisor testified

laminitis stems from a separation of the hoof wall from the coffin bone, which is

incredibly painful for the animal. Dr. Crum testified the horse was in pain, as well.

In addition to severe hoof problems and lameness, Dr. Crum revealed this horse had

parasites, pointy teeth that had not been floated in months, and he had not been fed

adequate food. Dr. Crum suggested they euthanized him because of his poor long-

term prognosis.

13
 At trial, Herman attributed the horse’s overgrown hooves to bad genes and

asserted because the horse was lame, he was more comfortable with a long hoof than

a short hoof.

3. Evidence Regarding Horse 287609

Trial testimony and evidence revealed horse 287609 suffered from a

significant wound to a distal limb containing granulation tissue and pus, and the

horse had difficulty bearing weight on that limb.10 Dr. Crum testified the horse

suffered from the wound for at least several weeks, and a veterinarian should be

involved in the care of a wound that severe. Dr. Crum also testified she would

recommend surgical debridement, cleaning, and bandaging before closing the

wound. An x-ray of the horse’s leg was admitted as State’s Exhibit 147. Dr. Crum

said the x-ray revealed infection had spread to the bone. This condition limited

treatment options going forward, and due to the animal’s prolonged suffering, they

decided to humanely euthanize it. In addition to the leg wound, the horse had

parasites, cracked hooves, and bad teeth. Dr. Crum estimated it had been without

proper dental care for months.

10
Evidence suggested the wound was consistent with wire being wrapped
around the leg.
14
 4. Evidence Regarding Horse 287610

Evidence and testimony revealed horse 287610 had a BCS of 2. State’s

Exhibits 152 through 156 reveal this animal was extremely emaciated. Dr. Crum

testified the horse had gastrointestinal parasites, had not been getting proper food,

and was very weak because he was so emaciated. Dr. Crum suggested horse 287610

was about 400 pounds underweight, and it would take many months for him to

become that emaciated. Veterinary records admitted at trial are in accord with this

testimony. Dr. Crum stated the horse did not have healthy hooves and was without

proper farrier care for at least several months. Dr. Crum testified she did not expect

horse 287610 to survive when she first saw him, but they administered intravenous

fluids to the horse for several days, and thereafter, he only required basic care and

needed to eat.

Testimony revealed this horse collapsed during the seizure after running for

twenty or thirty minutes while they sought to load him and was unable to stand until

they administered intravenous fluids. Dr. Crum suggested it is an emergency

situation when a horse cannot stand.

At trial, Herman contradicted this testimony and claimed people ran the horse

for two-and-a-half hours during the seizure. Herman testified the horse had fought,

15
played, and ran with the rest of the herd earlier in the day. Herman also suggested

the horse was the dominant male and was always thin.

5. Evidence Regarding Horse 287611

The State admitted photographs of horse 287611, a sorrel mare, as Exhibits

166 through 185. The images depict a sorrel mare significantly underweight with

“rain rot.” The photographs also reveal several deep wounds and rotting flesh over

the horse’s left hip. Veterinary records and Dr. Crum’s testimony revealed the mare

had a BCS of 2 and was severely emaciated. The horse had bad hooves and parasites.

Dr. Crum testified the horse had large and chronic lacerations over both her hips

draining pus, suggesting they had been there for at least several weeks; the skin was

also dying from prolonged infection. Dr. Crum testified a prudent owner should have

called a veterinarian to clean appropriately and debride the wound, provide

antibiotics and pain management. Dr. Crum conveyed the injuries were painful, and

the horse was lame in the rear limbs. Dr. Crum testified the horse was not

accustomed to human interaction, would not tolerate restraint, and oral sedatives had

little effect. Dr. Crum revealed the horse was euthanized because it was determined

to be a danger.

Herman testified horse 287611 was wounded when she became wedged

between two trees. Herman contradicted the testimony of Dr. Crum and stated it was

16
protocol to leave the wound like that, and it would have healed in six months.

Herman testified there was nothing at all inherently dangerous about the wound.

6. Other Evidence

The Hoffmans testified severe weather in the spring of 2015 precluded

deliveries of hay and feed to their property. Herman testified horses “take care of

themselves[,]” and he did everything he could for the health and welfare of the horses

given the circumstances. Kathleen testified she did the same and described the

lengths she went to caring for the animals, despite her having serious heart problems.

The Hoffmans both testified they divided the ownership of the animals, where

Herman had the horses, and Kathleen owned the cattle. Kathleen testified Herman

was the actual owner of the horses in June 2015. Testimony revealed this was done

as part of a business arrangement. Ownership is not an element of the offense,

however. See Tex. Penal Code Ann. § 42.09(a)(2). Rather, the critical inquiry is

whether the animal was in the person’s custody. See id. “Custody” is defined by the

statute as including the “responsibility for the health, safety, and welfare of a

livestock animal subject to the person’s care and control, regardless of ownership of

the livestock animal.” Texas Penal Code Ann. § 42.09(b)(3) (West 2016) (emphasis

added). Testimony from employees revealed Herman and Kathleen both had control

of the horses. Vicki Henley testified she observed Kathleen heavily involved in the

17
care of the horses and directing employees on how to care for them. Deputy Welch

also testified he understood both defendants were in control of the horses.

Of the five horses included in the complaints, only Horse 287610 survived.

Viewing the evidence in the light most favorable to the verdict, we conclude

the evidence was sufficient for a reasonable jury to find beyond a reasonable doubt

every element to support the jury’s verdict finding Herman Hoffman guilty of cruelty

to livestock animals for each of the State’s complaints. Thus, we overrule his third

issue.

B. Ineffective Assistance of Counsel and Brady/Michael Morton Act Violations

We will address Herman’s first and second issues together, as they were both

raised in his motion for new trial.

We review a trial court’s denial of a motion for new trial under an abuse of

discretion standard. See Webb v. State, 232 S.W.3d 109, 112 (Tex. Crim. App. 2007);

Holden v. State, 201 S.W.3d 761, 763 (Tex. Crim. App. 2006); Lewis v. State, 911

S.W.2d 1, 7 (Tex. Crim. App. 1995). Likewise, we review a trial court’s denial of a

motion for mistrial for an abuse of discretion. See Webb, 232 S.W.3d at 112; Archie

v. State, 221 S.W.3d 695, 699 (Tex. Crim. App. 2007). We cannot substitute our

judgment for the trial court’s; rather, we determine whether the trial court was

arbitrary or unreasonable in its decision. See Holden, 201 S.W.3d at 763. We must

18
uphold the trial court’s ruling if it was within the zone of reasonable disagreement.

See Archie, 221 S.W.3d at 699 (citing Wead v. State, 129 S.W.3d 126, 129 (Tex.

Crim. App. 2004)). Mistrial is an extraordinary remedy and only appropriate for

highly prejudicial and incurable errors. Wood v. State, 18 S.W.3d 642, 648 (Tex.

Crim. App. 2000).

1. Ineffective Assistance of Counsel

In his first issue, Herman argues he received ineffective assistance of counsel.

His complaints against trial counsel fall into two main categories: (1) failure to

obtain additional discovery; and (2) a conflict between Herman and his wife

rendered the attorney representing them both ineffective.

First, he asserts trial counsel failed to “effectively obtain discovery from the

State and its agents[.]” Herman points to trial counsel’s inability to obtain blood test

results, complete records of the seizing agency, the Hoffmans’ seized medical and

feeding records, and photos taken by witnesses, which would have been favorable

evidence for his defense. Herman contends that counsel failed to properly enforce

court orders to produce documents and he failed to subpoena documents needed for

expert analysis or otherwise retain a defense expert. However, our review of the

record shows that the discovery requests and subpoenas of which they complain

19
were apparently issued improperly and were subsequently quashed while Herman

and Kathleen were defending themselves pro se.

The Hoffmans argue Kathleen was more egregiously affected by the

ineffective assistance of counsel because of a conflict of interest.11 Particularly, they

assert on appeal her best defense, considering her debilitating medical condition,

would have been to blame Herman for neglecting the horses, but trial counsel failed

to assert such a defense. Nonetheless, Herman has failed to advance a logical

argument on appeal that he was harmed in any way by counsel’s failure to adopt a

trial strategy to blame him for neglecting the horses. The Hoffmans moved for a new

trial. After a hearing, the trial court denied the motion. While trial counsel testified

at the hearing, no testimony was elicited from him regarding his trial strategy. At the

hearing, the Hoffmans did not subpoena any of the witnesses identified as favorable

defense witnesses or provide affidavits to show what each witness would have

testified to or introduce records they alleged contained exculpatory evidence.

“An appellate court looks to the totality of the representation and the particular

circumstances of each case in evaluating the effectiveness of counsel.” Thompson v.

State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999) (citing Ex Parte Felton, 815

11
We note, however, Kathleen and Herman filed a joint brief in this appeal.
20
S.W.2d 733, 735 (Tex. Crim. App. 1991)). To establish ineffective assistance of

counsel, an appellant must meet a two-pronged test:

First, the defendant must show that counsel’s performance was
deficient. This requires showing that counsel made errors so serious that
counsel was not functioning as the “counsel” guaranteed the defendant
by the Sixth Amendment. Second, the defendant must show that the
deficient performance prejudiced the defense. This requires showing
that counsel’s errors were so serious as to deprive the defendant of a
fair trial, a trial whose result is reliable.

Strickland v. Washington, 466 U.S. 668, 687 (1984); Hernandez v. State, 726 S.W.2d

53, 55–56 (Tex. Crim. App. 1986). “Unless [an] appellant can prove both prongs, an

appellate court must not find counsel’s representation to be ineffective.” Lopez v.

State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011) (citing Strickland, 466 U.S. at

687); Thompson, 9 S.W.3d at 813. Allegations of ineffectiveness must be shown in

the record, and the record must affirmatively establish the alleged ineffectiveness.

Thompson, 9 S.W.3d at 813. There is a strong presumption counsel’s conduct “[fell]

within the wide range of reasonable professional assistance[.]” Jackson v. State, 877

S.W.2d 768, 771 (Tex. Crim. App. 1994) (quoting Strickland, 466 U.S. at 689); see

also Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002).

As for a defendant being prejudiced by a trial attorney’s deficient

performance, courts have explained “[t]o show prejudice, ‘[t]he defendant must

show that there is a reasonable probability that, but for counsel’s unprofessional

21
errors, the result of the proceeding would have been different. A reasonable

probability is a probability sufficient to undermine confidence in the outcome.’”

Jackson, 877 S.W.2d at 771 (quoting Strickland, 466 U.S. at 694).

a) Discovery

Assuming without deciding that Herman met his burden under the first prong

and shown that trial counsel’s representation was deficient, Herman has failed to

meet the requisite second prong. Herman focuses on trial counsel’s “failure to

obtain” certain discovery, including but not limited to records, necropsy reports,

witness interviews, blood test results, and other documents. Beyond asserting the

foregoing information was necessary to his defense, Herman made no showing that

trial counsel’s failure to obtain the evidence would have changed the outcome at trial

or that it prejudiced him in any way. The Hoffmans complain that the State failed to

produce blood test results of each of the five horses which they assert are necessary

to accurately assess a BCS score for each horse. The evidence, though, would only

go to the weight of the evidence offered by the State’s expert witnesses and not to

the admissibility of their opinions. The record shows that requested records were

produced electronically by the State. The trial court held any information unrelated

to the five specific horses at issue was irrelevant. While the SPCA and the State

produced requested documentation in their possession or subject to their control,

22
some documentation the Hoffmans requested was shown not to exist. Thus, Herman

failed to show a different outcome would have resulted. Moreover, although Herman

claims he was unable to interview certain witnesses, he failed to call any of these

witnesses to testify at the hearing on the motion for new trial. So, there was no

indication of what they would have testified to at trial, much less whether it would

have been favorable to Herman. The Hoffmans made no showing that but for

counsel’s deficient representation, there would have been another outcome at trial.

See id. The record reveals the Hoffmans conducted much of the discovery pro se,

and even after the trial court warned them on October 26, 2016, of its intent to set

the matter preferentially, they delayed in retaining trial counsel until sometime after

January 24, 2017, for a trial that began on May 15, 2017, which would have

significantly impacted any attorney’s ability to retain experts or pursue additional

discovery.

b) Dual Representation and Conflict

Herman and Kathleen were tried jointly and represented by the same retained

counsel.12 In some situations, the same attorney’s representation of multiple

12
It has not been lost on this Court that Herman and Kathleen are represented
by shared retained appellate counsel. Prior to filing a brief, they moved to
consolidate their appeals and subsequently filed a joint brief, which may be viewed
as an attempt to invite error by advancing a claim of conflict of interest. Because we
find their claim of a conflict of interest to be wholly without merit, the Court opted
23
defendants in the same trial may constitute ineffective assistance of counsel. Pina v.

State, 127 S.W.3d 68, 73 (Tex. App.—Houston [1st Dist.] 2003, no pet.) (citing

Holloway v. Arkansas, 435 U.S. 475, 489–90 (1978); James v. State, 763 S.W.2d

776, 778 (Tex. Crim. App. 1989)). “However, multiple representation is not per se

violative of constitutional guarantees of effective assistance of counsel.” James, 763

S.W.2d at 778. A defendant who does not object at trial to multiple representation

must show actual and not merely speculative conflict of interest before an appellate

court will reverse. Id. at 778–79; see also Routier v. State, 112 S.W.3d 554, 581–82

(Tex. Crim. App. 2003). To prevail on a claim of ineffective assistance based on a

conflict of interest, Herman must show (1) his counsel was burdened by an actual

conflict of interest, and (2) the conflict had an adverse effect on specific instances of

counsel’s performance. See Cuyler v. Sullivan, 446 U.S. 335, 348–50 (1980);

Monreal v. State, 947 S.W.2d 559, 564 (Tex. Crim. App. 1997). “[A]n actual conflict

of interest exists when ‘one defendant stands to gain significantly by counsel

adducing probative evidence or advancing plausible arguments that are damaging to

not to strike the brief for violating Texas Rules of Professional Conduct 1.06,
necessitating briefs from new and separate counsel on appeal. See Tex. Disciplinary
Rules Prof’l Conduct R. 1.06, reprinted in Tex. Gov’t Code Ann., tit. 2, subtit. G.,
app. A (West 2013).
24
the cause of a co-defendant[.]’” Routier, 112 S.W.3d at 584 (quoting James, 763

S.W.2d at 779).

Although the Hoffmans argue in their brief Kathleen’s best defense would

have been to blame Herman for neglect of the horses, the existence of a better

defense for one party does not rise to the level of an actual conflict. Herman and his

wife employed the joint trial strategy that elements beyond their control prevented

them from getting food to the animals. Herman testified there were semi-loads of

hay and grain coming in twice a week. They argued torrential rains blocked eighteen

wheelers from delivering hay and feed to the livestock. They also sought to argue

there was nothing wrong with their animals, blaming overgrown hooves on bad

genetics, rationalizing that emaciated horses had always been that way, and

testifying emaciated horses had been fed adequately. Like the facts in James, the

Hoffmans’ strategy at trial was that neither was culpable. See 763 S.W.2d at 780.

Moreover, neither Herman nor Kathleen tried to incriminate the other in any way at

trial, consistent with their joint defense. See id. Kathleen testified at trial they both

did the best they could. Herman likewise testified he did everything he could for the

health and welfare of the horses given the circumstances. At trial, Herman confirmed

he felt that the general population’s expectation for the condition of these horses was

unreasonable. The acknowledgment of a hypothetically superior trial strategy on

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appeal and speculative conflicts does not retroactively create an actual conflict at

trial. Id.

Additionally, although trial counsel testified at the hearing on the motion for

new trial, no testimony was elicited from him to develop the record to support

Herman’s claim of conflict of interest or otherwise explain counsel’s strategy at trial.

Separate counsel for each co-defendant might well have proven much more

damaging than the strategy in effect adopted by trial counsel. Any attempt to

impeach the other or place blame on the other spouse would have likely elicited

specific, damaging, and prejudicial facts. We hold that this record fails to reflect any

conflict of interest on the part of retained counsel.

2. Brady/Michael Morton Act Violations

In his second issue, Herman complains the trial court erred in denying his

motion for mistrial and motion for new trial based on Brady and Michael Morton

Act violations.

In Brady v. Maryland, the United States Supreme Court held a defendant’s

due process rights are violated when the prosecution suppresses evidence favorable

to an accused where the evidence is material, regardless of the prosecution’s good

faith or bad faith. 373 U.S. 83, 87 (1963). Before an appellate court can find

reversible error for a Brady violation, the defendant must show: (1) the State failed

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to disclose evidence, regardless of the prosecution’s good or bad faith; (2) the

evidence withheld is favorable to the defendant; and (3) the evidence is material, i.e.,

there is a reasonable probability had the evidence been disclosed, it would have

changed the outcome of the trial. Hampton v. State, 86 S.W.3d 603, 612 (Tex. Crim.

App. 2002). “‘The mere possibility that an item of undisclosed information might

have helped the defense, or might have affected the outcome of the trial, does not

establish ‘materiality’ in the constitutional sense.’” Id. (quoting United States v.

Agurs, 427 U.S. 97, 109–10 (1976)); see also Pena v. State, 353 S.W.3d 797, 812

(Tex. Crim. App. 2011). Moreover, the Brady rule does not apply when the

defendant was already aware of the information. Hayes v. State, 85 S.W.3d 809, 815

(Tex. Crim. App. 2002) (citing Havard v. State, 800 S.W.2d 195, 204 (Tex. Crim.

App. 1989)).

The Michael Morton Act is codified in Texas Code of Criminal Procedure

Article 39.14. See Tex. Code Crim. Proc. Ann. art. 39.14 (West 2017). It requires

the State, upon request, to disclose certain items to a defendant. See id. art. 39.14(a);

Glover v. State, 496 S.W.3d 812, 815 (Tex. App.—Houston [14th Dist.] 2016, pet.

ref’d). If the State has not received a request, it only has an affirmative duty to

disclose exculpatory information. Tex. Code Crim. Proc. Ann. art. 39.14(h); Glover,

496 S.W.3d at 815.

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 Here, much of the evidence the Hoffmans complained of was found by the

trial court to be irrelevant or not in existence. The trial court explained

documentation and records for animals seized that were not the subject of the

criminal trial were not relevant. The Hoffmans contended those records would have

shown the large remainder of the herd was healthy. But such records were not shown

to have any bearing on the condition of the five horses in the criminal complaints.

This is particularly true given the fact law enforcement officials and a veterinarian

of the Hoffmans’ choice instructed the Hoffmans to separate the weaker and thinner

horses from the herd to ensure they had adequate access to feed. Further, with respect

to evidence of the five specific horses at issue, the State explained in pretrial hearings

necropsies were not performed on all the animals and therefore, the documents being

requested did not exist.

Dr. Crum testified at trial that the interpretation of the blood tests was included

in the veterinary records, but the full blood work was stored in a database. The

medical records summarizing the blood tests revealed the animals were

malnourished, which certainly could not be considered exculpatory. The State

maintained they provided the veterinary records on the five horses at issue, and at

trial, Dr. Crum acknowledged some of the records contained mistakes. When

defense counsel moved to strike all the veterinary records because they were

28
“inherently unreliable on critical issues[,]” the trial court overruled the objection and

noted it went to the weight and not the admissibility of the evidence. While the

Hoffmans complained about the missing blood test results, the discovery they

propounded did not specifically request those results. The State’s duty to provide

information under the Michael Morton Act is only triggered upon a timely request.

See Tex. Code Crim. Proc. Ann. art. 39.14(a). Under Brady and the Michael Morton

Act, the State has only an affirmative duty to produce exculpatory information. See

id. art. 39.14(h); Brady, 373 U.S. at 87. The Hoffmans’ suspicions the State had not

produced evidence does not establish its materiality. See Hampton, 86 S.W.3d at

612. For these reasons, we conclude the Hoffmans have not met their burden of

establishing the materiality of the evidence, that it was exculpatory, or that such

evidence existed.

The Hoffmans also complain of records seized from their home pursuant to a

warrant, specifically veterinary records and feeding records. They argue these

records are exculpatory and would prove they provided proper care and food to the

horses. At trial, Herman testified a vet recommended they not perform surgery on

Horse 287593’s broken jaw. Herman also testified two different veterinarians

examined the leg of Horse 287609 on three or four occasions and advised the

Hoffmans to spray it with a water hose, allowing it to heal from the inside out.

29
According to Herman, the vet told them there was not “a thing you can do about it.”

The Hoffmans did not call the veterinarians that allegedly gave this advice to testify

at trial nor did they subpoena records to support these claims. If the records Herman

described existed, the Hoffmans knew about them. Brady applies when there is

information the prosecution is aware of, but a defendant is not. Hayes, 85 S.W.3d at

815. Thus, Brady would not apply to these records.

The Hoffmans repeatedly argue the State “singled out” five horses in bad

shape, and since the animals were in a herd, they should be able to show the

condition of the other horses in the herd as proof they were not guilty of cruelty. At

multiple pretrial hearings, the trial court ruled evidence about the condition of the

other seized animals was not relevant. This included medical records, blood tests,

and necropsy reports. The trial court instructed the Hoffmans that they could

subpoena any necropsy reports the Hoffmans maintained were missing or that the

State did not have in its possession, directly from the SPCA, which they failed to do.

From the record before us, we conclude the trial court did not abuse its

discretion in denying Herman’s motion for mistrial or motion for new trial. We

overrule Herman’s first and second issues.

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C. Double Jeopardy

Herman argues in his fourth issue he was prosecuted twice for the same

offenses in violation of the Double Jeopardy clauses of the United States and Texas

Constitutions. The United States Constitution provides, “No person shall . . . be

subject for the same offense to be twice put in jeopardy of life or limb[.]” U.S.

CONST. amend. V. The Texas Constitution provides, “No person, for the same

offense, shall be twice put in jeopardy of life or liberty; nor shall a person be again

put upon trial for the same offense after a verdict of not guilty in a court of competent

jurisdiction.” Tex. Const. art. I, § 14.

Initially, we must determine whether jeopardy previously attached at the

justice court hearing before determining whether Herman’s subsequent prosecution

for animal cruelty was barred by double jeopardy. See State v. Almendarez, 301

S.W.3d 886, 890 (Tex. App.—Corpus Christi 2009, no pet.) (examining prosecution

for cruelty to livestock animals pursuant to Texas Penal Code section 42.09

following a civil seizure trial under Chapter 821 of the Health and Safety Code); see

also State v. Moreno, 294 S.W.3d 594, 597 (Tex. Crim. App. 2009) (explaining

“jeopardy must have attached initially” before double jeopardy protections apply).

Courts have previously examined the statutory scheme involving forfeiture of

animals through civil proceedings and subsequent criminal prosecutions or vice

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versa. See Almendarez, 301 S.W.3d at 890. The statutory scheme under Chapter 821

of the Health and Safety Code is civil in nature. See id. at 891; Chambers v. State,

261 S.W.3d 755, 759 (Tex. App.—Dallas 2008, pet. denied) (noting the State filed

“animal cruelty case pursuant to [C]hapter 821 of the [H]ealth and [S]afety [C]ode

dealing with the health and safety of animals, not as a crime” under Texas Penal

Code section 42.09); Granger v. Folk, 931 S.W.2d 390, 392 (Tex. App.—Beaumont

1996, orig. proceeding) (recognizing, although not in a Double Jeopardy case, that

this Court noted “two avenues exist for the State in protecting animals from cruel

treatment, i.e., criminal prosecution under … the [Texas] Penal Code and the civil

remedy provided under [s]ection 821.023 of the [Texas] Health and Safety Code”);

see also Bradley v. State, No. 01-08-00332-CR, 2009 WL 1688200, at *3 (Tex.

App.—Houston [1st Dist.] 2009, pet. ref’d) (mem. op., not designated for

publication). “[E]ven in those cases where the legislature has indicated an intention

to establish a civil penalty, a court must inquire further whether the statutory scheme

is so punitive in purpose or effect as to transform what was clearly intended as a civil

remedy into a criminal penalty.” Capps v. State, 265 S.W.3d 44, 49 (Tex. App.—

Houston [1st Dist.] 2008, pet. ref’d) (citing Hudson v. United States, 522 U.S. 93,

99 (1997)); see also Bradley, 2009 WL 1688200, at *3. The factors courts must look

to in making this determination are: (1) whether the sanction involves an affirmative

32
disability or restraint; (2) whether it has historically been regarded as punishment;

(3) whether it comes into play only on a finding of scienter; (4) whether its operation

will promote the traditional aims of punishment-retribution and deterrence; (5)

whether the behavior to which it applies is already a crime; (6) whether an alternative

purpose to which it may rationally be connected is assignable for it; and (7) whether

it appears excessive in relation to the alternative purpose assigned. Hudson, 522 U.S.

at 99–100 (citations omitted).

Texas courts have examined animal cruelty statutes applying the Hudson

factors. See Almendarez, 301 S.W.3d at 892–95; Bradley, 2009 WL 1688200, at

**3–4. Those courts have concluded the intent of provisions 821.022–.023 of the

Health and Safety Code are civil in nature. See Almendarez, 301 S.W.3d at 895;

Bradley, 2009 WL 1688200, at *3. Moreover, those courts analyzed sanctions

similar to the ones the Hoffmans faced here in light of the Hudson factors and

concluded the sanctions were not “so punitive either in purpose or effect as to

transform the civil action and remedies imposed into a criminal punishment” and

therefore, subsequent criminal prosecution for cruelty to animals did not violate the

double jeopardy prohibitions of the United States and Texas Constitutions. See

Almendarez, 301 S.W.3d at 895–96; Bradley, 2009 WL 1688200, at *4.

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 In Almendarez, the defendant moved to quash an indictment for cruelty to

animals on the basis it violated double jeopardy since he had already been subject to

proceedings in justice court where two of his horses were seized, and he had to pay

restitution to cover the costs. 301 S.W.3d at 888. The court there noted “proceedings

brought under Subchapter B of Chapter 821 and the remedies authorized therein are

designed to protect animals from cruel treatment, and neither divesting a party from

the ownership of cruelly treated animals nor requiring the payment of money for

their care are excessive to this alternative purpose.” Id. at 895. Like our sister court

in Almendarez, we determine that although larger in scale, the civil seizure of the

Hoffmans’ horses and fine imposed for their care was not excessive.

We conclude jeopardy did not attach to the civil proceedings, and therefore,

the criminal prosecution of Herman did not violate the Double Jeopardy Clauses of

the United States or Texas Constitutions.

Issue four is overruled.

IV. Conclusion

We conclude the evidence was legally sufficient to support Herman’s

convictions of cruelty for each of the five horses at issue. Even if we assume

Herman’s trial counsel’s performance was deficient, Herman failed to establish he

was prejudiced by any such deficiency and therefore, did not meet both prongs

34
required to show ineffective assistance of counsel. Further, Herman failed to

establish violations of the Brady or the Michael Morton Act. Finally, the civil seizure

and forfeiture proceedings for cruelty to livestock animals and the criminal

prosecution for cruelty to livestock animals is not violative of the Double Jeopardy

Clause of the United States or Texas Constitutions. The judgments of the trial court

are affirmed.

AFFIRMED.

________________________________
CHARLES KREGER
Justice

Submitted on September 4, 2018
Opinion Delivered November 14, 2018
Do Not Publish

Before McKeithen, C.J., Kreger and Johnson, JJ.

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