Appeal from the 441st District Court Midland County, Texas
Trial Court Cause No. CR40673.
consists of: Wright, C.J., Willson, J., and Bailey, J.
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
The Charged Offense
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).
Evidence at Trial
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.
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.
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.
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
Analysis of Issues One through Six
Issue One: The State adduced sufficient evidence that the
depredation exception did not apply in this case.
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.
Standard of Review
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).
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.
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).
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."
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.
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.
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).
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 ...