APPELLANT'S PETITION FOR DISCRETIONARY REVIEW FROM THE
FIFTH COURT OF APPEALS DALLAS COUNTY
Alcala, J., delivered the opinion of the Court in which
Keasler, Richardson, Newell, and Walker, JJ., joined. Keller,
P.J., filed a concurring opinion. Yeary, J., filed a
dissenting opinion in which Hervey, J., joined. Keel, J.,
case addresses whether a deadly weapon finding is permissible
for the use or exhibition of a deadly weapon against a
nonhuman. In his petition for discretionary review, Robert
Monte Prichard, appellant, argues that a deadly weapon
finding is improper when the only thing injured or killed as
a result of a defendant's criminal conduct is an animal
rather than a human being. Rejecting that argument, the court
of appeals upheld a deadly weapon finding in this case in
which appellant was convicted of animal cruelty and the
deadly force was directed only against a dog. See
Prichard v. State, No. 05-14-01214-CR, 2016 WL 1615641,
at *1 (Tex. App.-Dallas April 20, 2016) (mem. op., not
designated for publication). We conclude that the language of
the deadly weapon statute is ambiguous with respect to
whether a deadly weapon finding may be made for weapons used
or exhibited against nonhumans, and thus, we must consider
extra-textual factors to discern the Legislature's intent
as to this matter. We determine that an analysis of those
factors supports our determination that a deadly weapon
finding may be made for human victims only. We, therefore, we
reverse the judgment of the court of appeals.
purportedly disciplining his pet dog, appellant killed her by
repeatedly hitting her head with a shovel and then drowning
her in a swimming pool. He was indicted for the state-jail
felony of cruelty to a non-livestock animal. See
Tex. Penal Code § 42.092(b)(1), (c). In a separate
paragraph, the indictment also alleged that the shovel and
pool water, singly or in combination, constituted the use of
a deadly weapon in the commission of the
offense. A jury convicted appellant of the offense
as charged in the indictment and, in a special issue in the
verdict form, made a finding that appellant had used a deadly
weapon. This finding made the state-jail felony offense
punishable within the punishment range for a third-degree
felony. See id. § 12.35(c). The jury sentenced
appellant to six and one-half years' imprisonment. The
trial court's judgment reflected that appellant had been
convicted of a third-degree felony and the judgment showed an
affirmative finding of a deadly weapon.
appeal, appellant argued that the evidence was insufficient
to support the jury's deadly weapon finding because that
finding should be limited only to human victims and no
evidence showed that a human had been harmed or placed at
risk of harm as a result of appellant's conduct.
Appellant challenged the deadly weapon finding primarily
based on three theories.
appellant asserted that, although the statutory definition of
a "deadly weapon" does not specifically address
"'the death or serious bodily injury' of a
person, " a common-sense reading of the statute
implies that it applies only to people. He argued that
interpreting "death or serious bodily injury" as
including nonhumans would lead to absurd consequences not
intended by the Legislature, such as deadly weapon findings
for a reckless driver who runs over someone's pet snake
or pet rat or hits a tree knocking off branches or leaves.
The court of appeals did not perform any statutory analysis
to decide if the plain language permitted a deadly weapon
finding in this case, nor did it respond to appellant's
absurd-results argument. The court of appeals generally
rejected this argument by explaining that, because appellant
did not dispute that his use of the shovel and pool water
caused the dog's death as he intended, the deadly weapon
special issue had been properly submitted and the evidence
was sufficient to support the deadly weapon finding.
Prichard, 2016 WL 1615641, at *2-3. The court
concluded that the "pertinent inquiry with respect to
whether a deadly weapon was used, the issue here, is
whether the weapon achieved or facilitated the intended
result." Id. at *2 (emphasis original).
appellant argued that permitting a deadly weapon finding for
death to a nonhuman would result in transforming what the
Legislature had designated as a state-jail-felony offense of
cruelty to animals into a third-degree felony. The court of
appeals rejected this argument by explaining that the
punishment range for the offense would remain a state-jail
felony if the death or serious bodily injury of an animal was
committed by omission. Id.
appellant suggested that this Court's precedent already
limits a deadly weapon finding to situations involving injury
or death to humans only. The court of appeals reviewed this
Court's precedent and determined that it was silent as to
the inclusion or exclusion of nonhumans for deadly weapon
rejecting appellant's arguments, the court of appeals
reformed the trial court's judgment to reflect that
appellant had actually been convicted of a state-jail felony,
as opposed to a third-degree felony, and that he had pleaded
not true to the deadly weapon allegation. Id. at *3.
After modifying appellant's judgment, the court of
appeals affirmed his conviction. Id.
petition for discretionary review, appellant reasserts his
three arguments that he made to the court of appeals that
contend that a deadly weapon finding may be made only when
the use or exhibition of the deadly weapon is against a human
victim. First, he argues that it "defies a common-sense
reading of the statute to assume that 'deadly weapon'
findings can apply to all living things." He suggests
that to permit a deadly weapon finding in this case would
result in absurd consequences, such as permitting a deadly
weapon finding in a felony DWI case when a defendant runs
over someone's pet snake or pet rat, or in a felony
criminal mischief case for causing the death of a tree.
Furthermore, conceding that many people consider dogs as
family members, appellant notes that dogs are nonetheless
considered property in Texas and should not be equated with
appellant also repeats his prior arguments that permitting a
deadly weapon enhancement functionally makes animal cruelty a
third-degree felony rather than, as the Legislature intended,
a state-jail felony. He also contends that permitting a
deadly weapon finding renders superfluous a section of the
animal cruelty statute that enhances punishment for repeat
offenses. See Tex. Penal Code § 42.092(c).
although he acknowledges that this Court has never expressly
addressed whether a deadly weapon finding must be limited to
offenses involving humans, appellant suggests that this
Court's precedent implies that limitation. In response,
the State argues that the plain text of the definition of
"deadly weapon" is broad enough that it permits a
deadly weapon finding for serious bodily injury or death to
animals. The State also maintains that the court of appeals
properly rejected appellant's arguments on their merits.
sufficiency challenge turns on the legal meaning of the
deadly weapon statute. Factually, appellant does not contest
that, if the law permits a deadly weapon finding under these
circumstances, the evidence is sufficient to show that he
used a deadly weapon against an animal. To resolve whether a
deadly weapon finding may be made for a weapon used or
exhibited against a nonhuman, we begin by construing the
statutory language according to the rules of statutory
construction. Applying those rules, we determine that the
statutory language is ambiguous with respect to whether it
applies to nonhuman victims. It is, therefore, necessary to
examine extra-textual considerations to ascertain the
Legislature's intent. That examination leads us to our
conclusion that the Legislature did not intend to permit a
deadly weapon finding for injury or death to a non-human.
Applicable Law for Sufficiency of Evidence to Support Deadly
conduct a sufficiency review, we examine the statutory
requirements necessary to uphold the conviction or finding.
Liverman v. State, 470 S.W.3d 831, 836 (Tex. Crim.
App. 2015). We determine the meaning of statutes de
novo. Id. When we interpret enactments of the
Legislature, "we seek to effectuate the collective
intent or purpose of the legislators who enacted the
legislation." Boykin v. State, 818 S.W.2d 782,
785 (Tex. Crim. App. 1991) (internal citations omitted). We
focus our analysis on the literal text of the statute and
"attempt to discern the fair, objective meaning of that
text at the time of its enactment." Id.
"[I]f the meaning of the statutory text, when read using
the established canons of construction relating to such text,
should have been plain to the legislators who voted on it, we
ordinarily give effect to that plain meaning."
Id. Thus, we apply the plain meaning of a term if
the statute is clear and unambiguous. Id. In
determining the plain meaning of a statute, courts read words
and phrases in context and construe them according to the
rules of grammar and common usage. Yazdchi v. State,
428 S.W.3d 831, 837 (Tex. Crim. App. 2014). Courts may
consult standard dictionaries in determining the fair,
objective meaning of undefined statutory terms. Clinton
v. State, 354 S.W.3d 795, 800 (Tex. Crim. App. 2011).
contrast to our limitation to the text of a statute with
plain language, we consider extra-textual factors to
determine the meaning of language that is not plain. When a
statute is ambiguous or its plain language would lead to
absurd results not possibly intended by the Legislature, we
may consult extra-textual factors, including legislative
history. See Boykin, 818 S.W.2d at 785-86; see
also Tex. Gov't Code § 311.023. Under those
circumstances, we consider extra-textual factors to discern
the Legislature's intent in enacting the statute.
Bays v. State, 396 S.W.3d 580, 585 (Tex. Crim. App.
2013). Ambiguity exists when a statute may be understood by
reasonably well-informed persons to have two or more
different meanings. Id.; see also Baird v.
State, 398 S.W.3d 220, 229 (Tex. Crim. App. 2013)
(statute is ambiguous when the language it employs is
"reasonably susceptible to more than one
appellant's challenge is limited to the sufficiency of
the evidence to establish the deadly weapon finding, and thus
we limit our review to that issue. Furthermore, because a
legal-sufficiency challenge need not be preserved by
objection in a trial court, appellant was permitted to
present that complaint in the first instance to the court of
appeals. Moore v. State, 371 S.W.3d 221,
225, 227 (Tex. Crim. App. 2012). We, therefore, turn to an
analysis of the meaning of the deadly weapon statute.
The Deadly Weapon Statute is Ambiguous
examining the statutory language, we determine that the
statute is ambiguous because a reasonable person could read
its terms as applying either to only humans or to all
organisms that are capable of cessation of life.
The Statute's Language
deadly weapon statute at issue here is set forth in Article
42.12, § 3g(a)(2), which provides for a stricter penalty
for an offender who has "used or exhibited [a deadly
weapon] during the commission of a felony offense or during
immediate flight therefrom." Tex. Code Crim. Proc. art.
42.12, § 3g(a)(2) (West 2013). A "deadly
weapon" includes "anything that in the manner of
its use or intended use is capable of causing death or
serious bodily injury." Tex. Penal Code §
1.07(a)(17)(B). The term "serious bodily injury" is
defined as "bodily injury that creates a substantial
risk of death or that causes death, serious permanent
disfigurement, or protracted loss or impairment of the
function of any bodily member or organ." Id.
§ 1.07(a)(46). "Bodily injury" means
"physical pain, illness, or impairment of physical
condition." Id. § 1.07(a)(8). The
statutory language is exceedingly broad in that a
"deadly weapon" may be "anything, " and
there is no limitation as to what type of thing may be
considered a deadly weapon. See id §
1.07(a)(17)(B); Plummer v. State, 410 S.W.3d 855,
858 (Tex. Crim. App. 2013) (noting that "[deadly weapon]
includes any instrument that threatens or causes serious
bodily injury, even when the instrument is not inherently or
intentionally deadly"). A deadly weapon finding can be
made even in the absence of actual harm or threat.
Plummer, 410 S.W.3d at 859 (citing Patterson v.
State, 769 S.W.2d 938, 941 (Tex. Crim. App. 1989)
(allowing a deadly weapon finding where the exhibition of the
weapon reasonably could have "protected and facilitated
appellant's care, custody, and management of the
our review in this case examines the deadly weapon statute,
the question before us is exceedingly narrow. The issue is
whether the intended target of the exhibition or use of a
deadly weapon may be a nonhuman. Nothing in this opinion
modifies this Court's existing precedent about what type
of item may constitute a deadly weapon or the circumstances
in which an object may be considered to be a deadly weapon.
Regardless of the type of weapon and the circumstances of the
use or exhibition, the question is whether a deadly weapon
finding is permissible when the weapon was used or exhibited
against a nonhuman. Although we may consider these other
matters in evaluating the intended meaning of the statutory
language, our holding in this case is limited to the
exceedingly narrow determination that a deadly weapon finding
is disallowed when the recipient or victim is nonhuman.
The Deadly Weapon Statute's ...