Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Atnipp v. State

Court of Appeals of Texas, Eleventh District

April 20, 2017

STANLEY LUCIUS ATNIPP, Appellant
v.
THE STATE OF TEXAS, Appellee

         On Appeal from the 441st District Court Midland County, Texas Trial Court Cause No. CR40673.

          Panel consists of: Wright, C.J., Willson, J., and Bailey, J.

          OPINION

          MIKE WILLSON JUSTICE

         The jury found Stanley Lucius Atnipp guilty of the offense of cruelty to a nonlivestock animal and assessed punishment at confinement for two years. See Tex. Penal Code Ann. § 42.092(b)(2) (West 2016). However, the jury recommended that the trial court suspend the imposition of the sentence and place Appellant on community supervision. The trial court agreed, suspended the imposition of the sentence, and placed Appellant on community supervision for four years. Appellant asserts seventeen issues on appeal. We affirm.

         I. The Charged Offense

         The grand jury indicted Appellant, in relevant part, for cruelty to a nonlivestock animal. A person commits the offense of cruelty to a nonlivestock animal when he "kills, administers poison to, or causes serious bodily injury to an animal" without the owner's effective consent. Id. This particular variation of the offense is a state jail felony, but it is punishable as a third-degree felony if a deadly weapon is used or exhibited during the commission of the offense. See id. § 42.092(c), § 12.35(c)(1) (West Supp. 2016).

         II. Evidence at Trial

         Appellant walked out of his home one fall day to take his Chihuahua outside. There, he encountered three dogs-a boxer, a German shepherd, and a black Labrador retriever mix-that had escaped their owners' yard and were wandering the neighborhood. Lori Winter, a neighbor, had found the three dogs and was attempting to use her pickup to lead them back to their owners' yard. When the three dogs were approximately fifty feet from Appellant's home, they apparently noticed Appellant and his Chihuahua in Appellant's yard and "trotted" toward them. Winter parked her pickup and called the three dogs.

         According to Winter, Appellant immediately picked up his Chihuahua and walked into his house. Appellant then came back outside and said to Winter, "I will shoot you and the dogs." Winter told Appellant that she was trying to help her neighbors get their three dogs back home. She then saw what she believed to be a pistol in Appellant's hand. Winter testified that Appellant pointed the pistol at her, which caused her to "[h]it the ground" behind a bush. She then heard one or two gunshots, saw the German shepherd and Labrador run away, and saw the boxer stumble into the street and die. Winter testified that the boxer had not acted aggressively, barked, or snarled and that the boxer was approximately ten feet away from Appellant when Appellant shot the boxer.

         Appellant testified on his own behalf that the boxer acted aggressively toward him and his dog and that he was concerned for the safety of his Chihuahua. Appellant told Winter, "Get your dogs out of my yard, " to which she responded, "They're not my dogs." When the dogs had approached to within arm's reach of Appellant, he picked up his Chihuahua, went inside his home, and shut the door. Once inside, Appellant put his Chihuahua down. Then, he said, "[i]t dawn[ed] on [him that he has] got a lady out front, " so he grabbed his shotgun from next to the door and went back outside. At that time, he could only see the boxer and the German shepherd. Appellant claimed that the dogs moved toward him, so he fired at the boxer and tried to hit its back legs to scare it away but not to kill it. The boxer was twenty to thirty feet away from Appellant when he fired the shotgun; Appellant admitted that the boxer died from the gunshot wound.

         III. Issues Presented

         In his first of seventeen issues, Appellant asserts that the trial court erred when it denied his motion for instructed verdict because the State failed to meet its burden of proof to disprove the depredation exception. In Issues Two through Five, Appellant asserts that the trial court erred when it denied his request for jury instructions on necessity, depredation, property, and personal property, respectively. In his sixth issue, Appellant asserts that the trial court erred when it instructed the jury, over his objection, that depredation control did not apply to his case. In Issues Seven and Eight, Appellant asserts that the trial court erred when it permitted the State to impeach a witness with a specific instance of misconduct in violation of Rules 401 and 608(b) of the Texas Rules of Evidence. In Issues Nine through Sixteen, Appellant asserts that the trial court erred when it admitted evidence of various extraneous offenses under exceptions to Rules 404(b) and 403 of the Texas Rules of Evidence. In his seventeenth issue, Appellant asserts that the trial court erred when it failed to submit instructions to the jury to restrict the jury's consideration of extraneous offenses.

         IV. Analysis of Issues One through Six

         A. Issue One: The State adduced sufficient evidence that the depredation exception did not apply in this case.

         Appellant challenges the trial court's denial of his motion for directed verdict. He contends that the State adduced insufficient evidence to prove beyond a reasonable doubt that he was not engaged in wildlife or depredation control, an exception to the application of Section 42.092. Penal § 42.092(f)(1)(B). As we explain below, we disagree with Appellant because the State adduced sufficient evidence that he was not engaged in wildlife depredation control.

         1. Standard of Review

         We review a challenge to the trial court's denial of a motion for an instructed verdict under a sufficiency analysis. See Madden v. State, 799 S.W.2d 683, 686 (Tex. Crim. App. 1990) ("A challenge to the trial judge's ruling on a motion for an instructed verdict is in actuality a challenge to the sufficiency of the evidence to support the conviction."). We review the sufficiency of the evidence under the standard of review set forth in Jackson v. Virginia. See Jackson v. Virginia, 443 U.S. 307 (1979); see also Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010); Polk v. State, 337 S.W.3d 286, 288-89 (Tex. App.-Eastland 2010, pet. ref'd). Under the Jackson standard, we examine all of the evidence in the light most favorable to the verdict and determine whether, based on that evidence and any reasonable inferences from it, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319; Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010). When, as here, the statute contains an exception to the offense, the State must "prove beyond a reasonable doubt that the defendant or defendant's conduct does not fall within the exception." Penal § 2.02(b) (West 2011).

         In our review, we must presume that the factfinder resolved any conflicting inferences in favor of the verdict and defer to that resolution. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). The jury is free to draw reasonable inferences from basic facts to ultimate ones. Sanders v. State, 119 S.W.3d 818, 820 (Tex. Crim. App. 2003). Further, the factfinder is the sole judge of the weight and credibility of the evidence; we may not reevaluate the weight and credibility of the evidence so as to substitute our own judgment for that of the factfinder. Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). We also measure the sufficiency of the evidence by the elements of the offense as defined in a hypothetically correct jury charge for the case. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). A hypothetically correct jury charge is one that "accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried." Id.

         2. Depredation Control

         It is an exception to the application of Section 42.092 that the conduct engaged in is a generally accepted and otherwise lawful "form of conduct occurring solely for the purpose of or in support of . . . wildlife management, wildlife or depredation control, or shooting preserve practices as regulated by state and federal law." Penal § 42.092(f)(1)(B). Appellant argues that the State failed to prove that he was not engaged in depredation control. Under the statute, "'Depredation' means the loss of or damage to agricultural crops, livestock, poultry, wildlife, or personal property." Tex. Parks & Wild. Code Ann. § 71.001(10) (West Supp. 2016) (emphasis added); see Penal § 42.092(a)(5) (providing that the definition of depredation is the same as that in Section 71.001 of the Texas Parks and Wildlife Code).

         Appellant's counsel argued that Appellant had engaged in depredation control when Appellant shot the boxer to protect his personal property, namely his Chihuahua. While Appellant's characterization of his Chihuahua as personal property is supported by Texas law, the State and Appellant disagree as to the applicability of the depredation control exception to "dogs" or "domestic dogs."

         But even if we assume, without deciding, that Section 42.092 applies to depredation control against "dogs" or "domestic dogs"-as Appellant advocates-a reasonable factfinder could conclude that Appellant was not attempting to prevent "loss of or damage to" his Chihuahua when he shot the boxer. Winter testified that Appellant had put his dog inside the house prior to coming back outside and shooting the boxer. Additionally, Appellant testified that, as the three dogs approached him, he picked up his Chihuahua, walked into his home, and put his Chihuahua safely inside his home. Appellant said that, after he put the Chihuahua down, "[i]t dawn[ed] on [him that he has] got a lady out front, " so he grabbed his shotgun and went back outside. However, he only did this after he placed the Chihuahua inside the house and, thus, after he had eliminated any risk of damage to his dog. The jury chose not to believe his claim that he was protecting his dog. The jury, as the trier of fact, was the sole judge of the credibility of the witnesses and of the weight to be given their testimony. See Tex. Code Crim. Proc. Ann. art. 36.13 (West 2007), art. 38.04 (West 1979). After a review of the record in the light most favorable to the verdict, we hold that a reasonable factfinder could have concluded beyond a reasonable doubt that Appellant did not shoot the boxer to prevent loss of or damage to his personal property. See Penal § 42.092(a)(5), (b)(2), (f)(1)(B); Parks & Wild. § 71.001(10); see also Jackson, 443 U.S. at 319; Clayton, 235 S.W.3d at 778. We overrule Appellant's first issue.

         B. Issues Two through Five: The trial court did not err when it charged the jury on the definition of property, refused to provide the requested instructions for necessity and depredation, and declined to define that personal property includes a dog.

         In Issues Two through Five, Appellant contends that the trial court erred when it denied his request to instruct the jury on the defense of necessity, refused to give definitions for the terms "depredation" and "property, " and denied his request to instruct the jury that dogs are personal property. When we review a jury-charge issue, we first decide whether error exists, and if it does, then we conduct a harm analysis. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985); see Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005).

         To be entitled to a necessity instruction, there must have been evidence that Appellant reasonably believed his conduct was immediately necessary to avoid imminent harm, and he must have admitted to the conduct charged. Penal § 9.22; Young v. State, 991 S.W.2d 835, 838-39 (Tex. Crim. App. 1999). A trial court must give a requested instruction on every defensive issue that is raised by the evidence. See Krajcovic v. State, 393 S.W.3d 282, 286 (Tex. Crim. App. 2013). A defensive issue is raised by the evidence if there is some evidence, regardless of its source, on each element of a defense that, if believed by the jury, would support a rational inference that the element is true. See Shaw v. State, 243 S.W.3d 647, 657-58 (Tex. Crim. App. 2007). Appellant testified that he placed his own dog in his house and then went outside with his shotgun and shot the boxer. He said that he was concerned about a woman out there, but there was no evidence from any source that the dogs threatened the woman or that Appellant's conduct was immediately necessary to protect her or anyone else ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.