In The
Court of Appeals
Seventh District of Texas at Amarillo
________________________
No. 07-18-00208-CR
No. 07-18-00209-CR
________________________
JADE DERRICK SCALES, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 181st District Court
Potter County, Texas
Trial Court No. 70,813-B; Honorable John B. Board, Presiding
March 11, 2020
OPINION
Before QUINN, C.J., and PIRTLE and PARKER, JJ.
Appellant, Jade Derrick Scales, was convicted of two counts of cruelty to non-
livestock animals1 alleged to have been committed on February 8, 2015. Because the
law applicable to the offense of cruelty to non-livestock animals was amended
1 See TEX. PENAL CODE ANN. § 42.092(b)(1) (West Supp. 2019).
subsequent to the alleged commission of the offense charged, we apply the law in effect
on the date of the offense. See Act of May 25, 2017, 85th Leg., R.S., ch. 739, § 9, 2017
Tex. Gen Laws 3157, 3160. Accordingly, as charged, each offense was a state jail felony.
TEX. PENAL CODE ANN. § 42.092(c) (West Supp. 2019).
The range of punishment for each offense was enhanced to that of a third degree
felony as a result of a finding regarding the use or exhibition of a deadly weapon during
the commission of the offense or during immediate flight following the commission of the
offense. See id. at § 12.35(c)(1) (West Supp. 2019). The range of punishment was
further enhanced to that of a second degree felony by virtue of a prior felony conviction
to which Appellant pleaded “true.” See id. at § 12.425(c) (West Supp. 2019).2
Punishment was assessed by the jury at seven years confinement in the
Institutional Division of the Texas Department of Criminal Justice and a fine of $2,000, as
to each count. The trial court ordered the two sentences to be served concurrently.
Raising five issues, Appellant contends: (1) the evidence is insufficient to support the
deadly-weapon finding, (2) the trial court erred by failing to instruct the jury that a deadly-
weapon finding is only appropriate when the weapon is used or exhibited against a human
being, (3) trial counsel provided ineffective assistance of counsel because (a) he did not
request a jury instruction concerning the use of a deadly weapon and (b) he failed to
object to the amendment of the indictment, (4) prosecution of two identical indictments,
at the same time, for the same conduct, violates double jeopardy and due process
principles, and (5) he was subjected to an illegal sentence because the range of
2An offense “punished as” a higher offense raises the level of punishment, not the degree of the
offense. Oliva v. State, 548 S.W.3d 518, 526-27 (Tex. Crim. App. 2018).
2
punishment for the offense for which he was convicted was illegally enhanced.3 We
affirm.
BACKGROUND
Appellant does not challenge the sufficiency of the evidence concerning the merits
of the charge. What he does challenge is the appropriateness of a deadly-weapon finding
where the victim of the offense is a nonhuman. Accordingly, we will limit our discussion
of the evidence to those facts relevant to Appellant’s specific issues.
At trial, Michelle Stopka testified that on February 8, 2015, she was residing with
Leonard Willey at a residence located in Amarillo, Potter County, Texas. Living with her
at that residence were two terrier puppies, Beau and Little One, which she had taken in
after finding them in an alley. On that particular day, she was confronted in her front yard
by a man holding a knife and wearing a white mask and brass knuckles. Michelle yelled
for Leonard and he quickly confronted the masked man. During that brief confrontation
Leonard sustained a cut to his head and the masked man sustained a cut to his leg.
Although the man in the white mask left the scene before the police arrived, evidence
soon established Appellant as that man.
After the masked man had left, Michelle went to check on her two puppies. She
found them lying on their backs, sliced open and bleeding. The puppies did not survive
their injuries. At trial, Dr. Stacy Smith, a veterinarian, testified that the puppies’ injuries
were caused by a sharp instrument, such as a knife. She further opined that the puppies
3Appellant originally raised only the first three issues. By order of the court for supplemental
briefing, Appellant raised issues four and five. The State was likewise granted the opportunity to respond
to Appellant’s Supplemental Brief.
3
had been killed in a cruel manner that caused them serious bodily injury, accompanied
by severe pain and suffering.
Appellant was arrested and charged with cruelty to a non-livestock animal
originally identified simply as “a black and white dog.” The indictment also contained a
deadly-weapon notice and an enhancement paragraph alleging a prior conviction for the
second-degree-felony offense of burglary of a habitation. On May 3, 2018, the State
moved to amend the indictment to allege two identical counts of cruelty to non-livestock
animals, one for each puppy killed. The two identical counts in the amended indictment
simply identified the subject of the cruelty to non-livestock animals as being “a dog.”
Appellant’s counsel did not object to the amended indictment and on May 10, 2018, the
trial court granted the State’s motion to amend. Trial commenced on May 14, 2018, and
the jury returned its guilty verdicts on May 17.
ISSUE ONE—DEADLY-WEAPON FINDING
In 2017, after carefully considering the legislative history of section 42.092(b)(1) of
the Texas Penal Code pertaining to cruelty to non-livestock animals, the Texas Court of
Criminal Appeals concluded that the Legislature did not intend to permit a deadly-weapon
finding in those situations where the only “recipient” of the use or exhibition of a deadly
weapon was a nonhuman. See Prichard v. State, 533 S.W.3d 315, 330 (Tex. Crim. App.
2017). The facts in Prichard were that the appellant killed his pet dog by repeatedly hitting
it in the head with a shovel and then drowning it in a swimming pool. Other than Prichard
himself, no humans were involved and there was no evidence showing that any human
had been harmed or placed at risk of harm during the commission of the offense as a
result of his conduct. At trial, the jury returned a verdict that included a deadly-weapon
4
finding and the Fifth Court of Appeals subsequently affirmed the trial court’s judgment.
Prichard v. State, No. 05-14-01214-CR, 2016 Tex. App. LEXIS 4126, at *1 (Tex. App.—
Dallas April 20, 2016), rev’d, 533 S.W.3d 315 (Tex. Crim. App. 2017).
In reversing the judgment of the court of appeals, the Court of Criminal Appeals
acknowledged that the question before the court was “exceedingly narrow” and limited to
the facts of that case. Prichard, 533 S.W.3d at 321. The Court found that the evidence
was insufficient to support a deadly-weapon finding “under circumstances in which the
sole recipient or being against whom a deadly weapon was used or exhibited was a
nonhuman.” Id. at 331. (Emphasis added). Subsequent to Pritchard, the First Court of
Appeals, in Galindo v. State, 564 S.W.3d 223, 227 (Tex. App.—Houston [1st Dist.] 2018,
no pet.), held that the Court of Criminal Appeals’ reference to the “sole” object of the use
of a deadly weapon “left open the possibility of a deadly-weapon finding under
circumstances where the weapon was used or exhibited against a human during the
commission of an offense against an animal.” Id. The First Court of Appeals found that,
in the case before it, the evidence was legally sufficient to support a deadly-weapon
finding because there was evidence that showed the nonhuman victim (a dog) was not
the “sole” object of the defendant’s use or exhibition of a deadly weapon because, while
in the course of committing the offense of cruelty to non-livestock animals, the defendant
had also threatened bystanders with the same knife that he used to injure the dog. Id.
Here, Appellant asks this court to expand the Court of Criminal Appeals’ reasoning
in Prichard to every case where the indictment or notice fails to allege a human victim.
That is not, however, what the Court held in Prichard. To the contrary, the Court held that
there is nothing in the deadly-weapon statute that suggests the Legislature did not intend
5
to permit a finding “anytime the facts established that a deadly weapon was used or
exhibited against a person with intent to facilitate an offense.” Prichard, 533 S.W.3d at
325. (Emphasis added). The general purpose of the deadly-weapon statute “is to provide
more severe punishment against actors who risk serious bodily injury or death for crimes
against people” during the commission of an offense. Id. at 327. This policy of protecting
people from criminals who use deadly weapons to commit their offenses would be
diminished if the provisions of the statute were limited to actual victims named in the
indictment. If Appellant’s argument were to be universally applied to all offenses, a
deadly-weapon finding would never be appropriate in a drug possession case unless the
indictment or deadly-weapon notice alleged the use or exhibition of the weapon against
a particular person. Based on the number of cases involving possession of a controlled
substance containing a deadly-weapon finding that have been affirmed, that would be an
entirely illogical position to take. Accordingly, we are confident that requiring the human
victim to be named in the indictment was not the intent of the Legislature. For us to
require that a charging instrument specify the person against whom a deadly weapon was
used or exhibited in order to justify a deadly-weapon finding would be “legislating from
the bench” and, as such, a gross abuse of judicial authority.
Here, the evidence establishes that Appellant brandished and even used a knife,
in the course of his flight from the offense in question, when he confronted Leonard. A
reasonable juror would be justified in finding that confrontation occurred during the course
of, or immediate flight from, the underlying offense. As such, where the evidence
presented at trial established that a deadly weapon was used against a human, during
the course of the commission of the offense or during the immediate flight following the
6
commission of that offense, we conclude a deadly-weapon finding was statutorily
authorized.
Because we find a deadly-weapon finding was appropriate, we are persuaded that
Appellant was appropriately punished pursuant to the provisions of section 12.35(c)(1) of
the Code. See TEX. PENAL CODE ANN. § 12.35(c)(1) (West Supp. 2019) (providing for the
enhancement of punishment from a state jail to a third degree felony where the accused
has used a deadly weapon during the commission of a state jail felony or during the
immediate flight following the commission of a state jail felony).
Furthermore, where, as here, “it is shown on the trial of a state jail felony for which
punishment may be enhanced under section 12.35(c) that the defendant has previously
been finally convicted of a felony other than a state jail felony punishable under section
12.35(a), on conviction the defendant shall be punished for a felony of the second
degree.” See id. at § 12.425(c). Therefore, under the facts of this case, where the offense
was punishable under section 12.35(c), and the State was able to establish that Appellant
had previously been convicted of the felony offense of burglary of a habitation, the
appropriate range of punishment for this offense was the range of punishment applicable
to a second degree felony. Issue one is overruled.
ISSUE TWO—JURY INSTRUCTION ERROR
By his second issue, Appellant contends the trial court erred by failing to instruct
the jury that a deadly-weapon finding is only appropriate when the weapon is used or
exhibited against a human being. In assessing jury charge error in a criminal case, an
appellate court engages in a two-step process. Kirsch v. State, 357 S.W.3d 645, 649
7
(Tex. Crim. App. 2012). First, we must determine if the court’s charge contains error. Id.
(citing Middleton v. State, 125 S.W.3d 450, 453 (Tex. Crim. App. 2003)). Second, if error
occurred, then an appellate court must analyze that error for harm. Kirsch, 357 S.W.3d
at 649.
The State contends the trial court did not err in failing to give the requested
instruction because such an instruction was “not applicable to the facts of the case.” By
this logic, the deadly-weapon finding itself would be not be applicable to the facts of the
case and should have been excluded—a result the State otherwise argues against.
Where, as here, the State relies upon a deadly-weapon finding to support the range of
punishment it contends applies, an appropriate deadly-weapon instruction should have
been given. Because no instruction was given, the trial court erred.
Where, as here, Appellant’s counsel neither requested an appropriate instruction,
nor objected to the absence of such an instruction in the court’s charge, we review the
trial court’s failure to provide an appropriate instruction for “egregious harm.” See
Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985). Jury charge error is
egregiously harmful if it affects the very basis of the case, deprives the defendant of a
valuable right, or vitally affects a defensive theory. Allen v. State, 253 S.W.3d 260, 264
(Tex. Crim. App. 2008). Egregious harm is a “high and difficult standard which must be
borne out by the trial record.” Reeves v. State, 420 S.W.3d 812, 816 (Tex. Crim. App.
2013).
When reviewing harm resulting from charge error, an appellate court must
determine harm in light of four factors: (1) the entire jury charge, (2) the state of the
8
evidence, including contested issues and the weight of the probative evidence, (3) the
arguments of counsel, and (4) any other relevant information revealed by the record of
the trial as a whole. Almanza, 686 S.W.2d at 174. Additionally, there is no burden of
proof or persuasion in a harm analysis conducted under Almanza. See Anaya v. State,
381 S.W.3d 660, 665 (Tex. App.—Amarillo 2012, pet. ref’d).
Under the facts of this case, a proper jury instruction would have advised the jury
that a deadly-weapon finding could only be made if the jury were to determine beyond a
reasonable doubt that a deadly weapon was used or exhibited by the defendant against
a human being during the course of the commission of the underlying offense or during
the immediate flight following the commission of that offense. As discussed above, given
the state of the evidence and the arguments of counsel, there is little doubt the jury could
have reasonably believed Appellant used the same sharp instrument used in the
commission of the underlying offense to inflict the wound suffered by Leonard. As such,
it is also reasonable to assume that same jury would have been persuaded that Leonard’s
injuries were sustained during Appellant’s immediate flight following the commission of
the offense at issue. Because there is no reasonable likelihood that the failure to include
an appropriate instruction materially affected the jury’s deliberations or verdict, the error
was not egregious. Issue two is overruled.
ISSUE THREE—INEFFECTIVE ASSISTANCE OF COUNSEL
By his third issue, Appellant contends his trial counsel provided ineffective
assistance of counsel because (a) he did not request a jury instruction concerning the
use of a deadly weapon and (b) he failed to object to the amendment of the indictment.
The United States Constitution’s guarantee of the right to counsel encompasses the right
9
to effective assistance of counsel. U.S. CONST. amend. VI; Strickland v. Washington, 466
U.S. 668, 686, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). In determining whether counsel’s
representation was so inadequate as to violate a defendant’s Sixth Amendment right to
counsel, Texas courts apply the two-pronged test enunciated in Strickland. See
Hernandez v. State, 726 S.W.2d 53, 55 (Tex. Crim. App. 1986) (en banc). First, the
appellant must show that counsel’s performance was deficient, i.e., that it fell below an
objective standard of reasonableness. Strickland, 466 U.S. at 687-88. Second, the
appellant must show that he was prejudiced by counsel’s deficient performance. Id. To
establish prejudice, an appellant must show that there is a reasonable probability, i.e., a
probability sufficient to undermine confidence in the outcome, that the result of the
proceeding would have been different. Id. at 687.
Judicial review of a claim of ineffective assistance of counsel must be highly
deferential, and there is a strong presumption that trial counsel’s conduct fell within the
wide range of reasonable professional assistance. See id. at 689. Failure to make the
required showing of either deficient performance or sufficient prejudice is fatal to an
ineffectiveness claim. Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011).
As stated above, because it is reasonable to conclude that the trial court’s failure
to give the jury an appropriate deadly-weapon instruction did not materially affect the
jury’s deliberations or verdict, it is likewise reasonable to conclude that counsel’s failure
to request such an instruction was harmless. As to counsel’s failure to object to the
amendment of the indictment, we find counsel’s decision in such a situation to be a matter
that lies within the wide range of reasonable professional assistance. Because there is
nothing in the record to show why counsel chose not to object to the amendment of the
10
indictment, we cannot say with certainty that counsel’s performance was deficient or that
it fell below an objective standard of reasonableness. Without some indication of trial
counsel’s strategy, we cannot meaningfully evaluate his reasons for not objecting. Bone
v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002) (finding that in most cases “the
record on direct appeal will not be sufficient to show that counsel’s representation was so
deficient and so lacking in tactical or strategic decision-making as to overcome the
presumption that counsel’s conduct was reasonable and professional”). Issue three is
overruled.
ISSUE FOUR—DOUBLE JEOPARDY AND DUE PROCESS
By his fourth issue, Appellant contends his prosecution, based on two identical
indictments for the same conduct committed in one criminal episode, violated double
jeopardy and due process principles.
By way of a single-count indictment, Appellant was originally charged with cruelty
to a non-livestock animal simply identified as “a black and white dog.” On May 3, 2018,
eleven days prior to trial, the State filed a Motion to Amend that indictment to allege two
separate but identical counts of cruelty to non-livestock animals. Each count of the
amended indictment identified the animal that was the object of the cruel treatment simply
as “a dog.” Appellant’s counsel did not object to the amended indictment and on May 10,
2018, four days prior to trial, the court granted the State’s motion. At no time did Appellant
raise the issue of double jeopardy to the trial court. On appeal, Appellant contends he is
being subjected to multiple punishments for the same offense—a violation of the Double
Jeopardy Clause of the United States Constitution—because the indictments are
identical.
11
Normally, a claim of double jeopardy must be preserved. One does this by raising
the matter “at or before the time the charge [is] submitted to the jury.” Gonzalez v. State,
8 S.W.3d 640, 642 (Tex. Crim. App. 2000) (stating that “we agree with the Court of
Appeals that appellant had the burden to ‘preserve, in some fashion, a double jeopardy
objection at or before the time the charge [was] submitted to the jury’”); Kalie v. State, No.
09-11-00352-CR, 2012 Tex. App. LEXIS 5112, at *7-8 (Tex. App.—Beaumont June 27,
2012, no pet.) (mem. op., not designated for publication). Because that was not done
here, Appellant has failed to preserve his complaint.
There is, however, an exception to the preservation rule described in Gonzalez.
As stated in Ex parte Denton, 399 S.W.3d 540, 544-45 (Tex. Crim. App. 2013), “a double-
jeopardy claim may be raised for the first time on appeal or on collateral attack if two
conditions are met: 1) the undisputed facts show that the double-jeopardy violation is
clearly apparent on the face of the record; and 2) when enforcement of the usual rules of
procedural default serves no legitimate state interest.” A double jeopardy claim is
“apparent on the face of the record” when additional proceedings are not required for the
purpose of introducing evidence to support the alleged violation. Id. The mere fact that
a jury’s verdict “could have relied on a theory that would violate the Double Jeopardy
Clause is not sufficient to show a constitutional violation is ‘clearly apparent on the face
of the record.’” Langs v. State, 183 S.W.3d 680, 687 (Tex. Crim. App. 2006). (Emphasis
in original).
Here, the record establishes that, although indistinguishable in the description, two
separate dogs were the object of the criminal act being prosecuted. Because each dog
12
could have constituted a separate unit of prosecution,4 the record does not clearly
establish a double jeopardy claim “apparent on the face of the record.” Accordingly, we
find Appellant did not preserve this alleged error. Issue four is overruled.
ISSUE FIVE—ILLEGAL SENTENCE
By his fifth issue, Appellant contends his sentence is illegal because the range of
punishment for the offense for which he was convicted was illegally enhanced. As stated
above, the offense of cruelty to non-livestock animals is a state jail felony. TEX. PENAL
CODE ANN. § 42.092(c). The range of punishment for cruelty to non-livestock animals is
enhanced to that of a third degree felony if there is a finding regarding the use or exhibition
of a deadly weapon during the commission of the offense or during immediate flight
following the commission of the offense. See id. at § 12.35(c)(1). Furthermore, if it is
shown on the trial of a state jail felony for which punishment has been enhanced under
section 12.35(c) (the situation we have here) that the defendant has previously been
finally convicted of another felony, other than a state jail felony punishable under section
12.35(a), on conviction the defendant shall be punished for a felony of the second degree.
See id. at § 12.425(c). Here, we have just that. Appellant was charged with the offense
of cruelty to non-livestock animals, a state jail felony. The range of punishment for that
offense was enhanced by the use of a deadly weapon and that enhanced punishment
4 Whether cruelty towards multiple animals constitutes a single unit or multiple units of prosecution
appears to depend on whether those animals are usually and customarily viewed as pets or food products.
See Hoffman v. State, Nos. 09-17-00172-CR through 09-17-00176-CR, 2018 Tex. App. LEXIS 9277 (Tex.
App.—Beaumont 2018, pet. ref’d) (mem. op., not designated for publication) (affirming five separate
convictions for cruelty to five horses); Gonzalez v. State, No. 12-11-00128-CR, 2012 Tex. App. LEXIS 2660
(Tex. App.—Tyler March 30, 2012, pet. ref’d) (mem. op., not designated for publication) (single conviction
in prosecution involving two roosters); State v. Almendarez, 301 S.W.3d 886 (Tex. App.—Corpus Christi
2009, no pet.) (two counts for two horses); Qaddura v. State, No. 02-05-361-CR, 2007 Tex. App. LEXIS
1493 (Tex. App.—Fort Worth 2007, pet. ref’d) (mem. op., not designated for publication) (single prosecution
involving ninety-three goats).
13
was further enhanced to that of a second degree felony by virtue of a prior felony
conviction to which Appellant pleaded “true.”
An offense “punished as” a second degree felony is punishable by imprisonment
in the Texas Department of Criminal Justice for any term of not more than twenty years
or less than two years and by a fine not to exceed $10,000. See id. at § 12.33. Because
the jury assessed Appellant’s sentence at seven years confinement and a fine of $2,000,
as to each count, said sentences were not illegal. Accordingly, Appellant’s fifth issue is
overruled.
CONCLUSION
Having overruled each of Appellant’s issues, the trial court’s judgments are
affirmed.
Patrick A. Pirtle
Justice
Publish.
14
Jade Derrick Scales v. State
Combined Opinion