McMillian v. State

Full title: CAREY DEUNDRA McMILLIAN, Appellant, v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: Nov 4, 2005

No. 05-04-01321-CR (Tex. App. Nov. 4, 2005)

Opinion

No. 05-04-01321-CR

Opinion issued November 4, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.

On Appeal from the 291^st Judicial District Court, Dallas County, Texas, Trial Court Cause No. F03-73910-NU. Affirmed.

Before Justices MORRIS, WHITTINGTON, and LANG.

OPINION

Opinion By Justice MORRIS.

In this appeal from convictions for cruelty to an animal and dog fighting, Carey Deundra McMillian contends the evidence is legally insufficient to show he possessed the required mental state to be found guilty. McMillian further contends the trial court erred in entering a deadly weapon finding and in enhancing his punishment based on that finding. Finally, McMillian argues the trial court violated the requirement for a unanimous jury verdict by submitting disjunctive theories of cruelty to an animal in the jury charge. Concluding McMillian's complaints are without merit, we affirm the trial court's judgment.

Factual Background

On September 26, 2003, Terry Baldwin was in his driveway when he heard what sounded like dogs fighting. Baldwin crossed the street to investigate and saw Carey Deundra McMillian dragging his neighbor's dog, Sisco, by the leg. Baldwin testified that McMillian's two pit bull dogs were "locked on" to Sisco at the neck and hind quarters and McMillian was dragging all three dogs toward his yard. According to Baldwin, as McMillian was dragging the dogs, the pit bulls stopped "tearing at" Sisco and McMillian shook the injured animal, exciting the pit bulls into resuming their attack. McMillian then dragged the dogs through his gate and dropped Sisco in his backyard. McMillian's dogs continued attacking Sisco in the yard for sometime and then stopped. When the pit bulls let go of Sisco, McMillian walked over and shook Sisco again causing the pit bulls to resume their attack. At that point, Baldwin walked back to his house to find a way to contact Ronald Huff, Sisco's owner. Baldwin was in his front yard when another neighbor, Alvin High, drove up. Baldwin told High he had seen McMillian's dogs "killing" Huff's dog. High got out of his car and both men walked to High's backyard where they could see into McMillian's backyard. From where they were standing, the men could see McMillian's pit bulls still attacking Sisco. High brought out his video camera and began filming the dogs. The videotape shows the pit bulls biting and tossing Sisco's body. When the dogs disengage their attack, McMillian can be seen on the tape walking over to Sisco body and turning him until the dogs begin to bite him again. When the dogs disengage again, McMillian is seen on the tape picking up Sisco's leg and dragging the dog out of the yard. High later filmed the alley behind McMillian's house showing a trail through dead leaves where McMillian had dragged Sisco's body. When Huff returned home from work that afternoon, he noticed that Sisco was missing. Huff testified he went out to look for the dog and saw McMillian in his yard. Huff asked McMillian if he had seen Sisco and McMillian replied he had not. Huff noticed that one of McMillian's pit bulls had blood around his mouth and he asked if the dog had been in a fight. McMillian said he did not know anything about that because he had just gotten home. Huff continued to look for Sisco and found the dog lying next to a fence in the alley. Huff called McMillian over and asked him again if his dogs had been in a fight with Sisco. McMillian told Huff that it looked like Sisco was just tired. Huff tried to give Sisco some water, but the dog was unable to drink it. Huff stayed with Sisco until the dog died a short while later. Later that evening, Baldwin spoke with Huff and told him what he had seen. Baldwin also told Huff about the videotape. Huff obtained the videotape from High the next day and turned it over to the SPCA. Huff also contacted the Dallas Police Department and made a report about what happened to his dog. On October 23, 2003, McMillian was charged with the offenses of dog fighting and cruelty to an animal. The case was tried to a jury and McMillian was convicted on both counts. The trial court made an affirmative finding that a deadly weapon was used or exhibited during the offense and enhanced McMillian's punishment to that of a third degree felony. McMillian then brought this appeal.

Discussion

In his first issue on appeal, McMillian contends the evidence is legally insufficient to show he intentionally or knowingly engaged in dog fighting or cruelty to an animal. In reviewing a challenge to the legal sufficiency of the evidence, we examine the evidence in the light most favorable to the judgment, and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Sanders v. State, 119 S.W.3d 818, 820 (Tex.Crim.App. 2003). A person commits the offense of dog fighting if he intentionally or knowingly causes a dog to fight with another dog. See Tex. Pen. Code Ann. § 42.10 (Vernon 2003). "Dog fighting" is defined as any situation in which one dog attacks or fights with another dog. Id. A person commits the offense of cruelty to animals if he intentionally or knowingly tortures an animal or kills, seriously injures, or poisons an animal without legal authority or the owner's consent. See Tex. Pen. Code Ann. § 42.09 (Vernon Supp. 2005). McMillian contends the evidence is legally insufficient to show he knowingly or intentionally caused the dogs to fight because there is no evidence of how the fight began. Although there was no testimony at trial about how the dogs first began to fight, there was testimony from two witnesses that when the pit bulls broke away from Sisco, McMillian shook the injured dog's body causing his pit bulls to resume their attack. Even if McMillian did not instigate the fight, we conclude this evidence is legally sufficient to show McMillian subsequently caused his dogs to attack and kill Sisco. McMillian also disputes that the evidence he shook Sisco's body shows he intentionally or knowingly tortured and killed the dog. McMillian argues it is equally possible that his actions were an attempt to free Sisco from the attack. This argument appears to be a proposed alternative reasonable hypothesis supported by the evidence. This construct for legal sufficiency analysis was abandoned by the Texas Court of Criminal Appeals more than a decade ago. See Geesa v. State, 820 S.W.2d 154, 161 (Tex.Crim.App. 1991). To the extent that McMillian is arguing the there is no evidence of intent, a jury may infer intent from any facts that tend to prove its existence, including the acts, words, and conduct of the accused. See Manrique v. State, 994 S.W.2d 640, 649 (Tex.Crim.App. 1999). A jury may also infer knowledge from such evidence. Id. In this case, the evidence showed that McMillian repeatedly shook Sisco's body causing his pit bulls to resume their attack on the injured dog. The continued attacks resulted in the animal being tortured and killed. Given the repeated cause and effect of McMillian's actions, we conclude the evidence was legally sufficient for the jury to infer knowledge or intent. We resolve McMillian first issue against him. In his second issue, McMillian contends the trial court erred in entering a deadly weapon finding because the jury did not find that he "used or exhibited" a deadly weapon in the commission of the cruelty to an animal offense. The indictment against McMillian for cruelty to an animal alleged that he

. . . did then and there intentionally and knowingly torture a dog, to-wit: by encouraging a pit bull dog, a deadly weapon, to attack and injure said dog, and further did then intentionally and knowingly seriously injure and kill a dog, to-wit: by encouraging a deadly attack by a pit bull dog, a deadly weapon, on said dog . . .

The jury found McMillian guilty "as charged in the indictment." McMillian argues the use of the term "encouraging" in the indictment resulted in a lesser burden of proof for the State and there was no showing, and no jury finding, that he "used or exhibited" a deadly weapon as required for a deadly weapon finding under section 12.35(c) of the Texas Penal Code. See Tex. Pen. Code Ann. § 12.35(c) (Vernon 2003).¹ We disagree. A deadly weapon is defined in the Texas Penal Code to include "anything that in the manner of its use or intended use is capable of causing death or serious bodily injury. Tex. Pen. Code Ann. § 1.07(17) (Vernon Supp. 2005). To "use" a deadly weapon for purposes of an affirmative finding, it is sufficient that the weapon be utilized to achieve the commission of a felony offense separate and apart from mere possession of the weapon. See Narron v. State, 835 S.W.2d 642, 644 (Tex.Crim.App. 1992). The term "use" extends to any employment of the weapon. See Ramirez v. State, 822 S.W.2d 240, 245 (Tex.App.-Houston [1^st Dist.] 1991, pet. ref'd). An allegation in an indictment that a death was caused by a named weapon or instrument will support a deadly weapon finding. See Gilbert v. State, 769 S.W.2d 535, 536 (Tex.Crim.App. 1989). McMillian does not dispute that a dog can be used as a deadly weapon. The indictment in this case accused McMillian of causing serious injury or death by encouraging his pit bull to attack another dog. Rather than reciting the general terms "used" or "exhibited," the indictment instead specified the manner in which McMillian used the pit bull dog as a deadly weapon. As stated above, the term "use" in section 12.35(c) encompasses any manner in which a weapon is used. Accordingly, a jury finding that a weapon was used in a specific way to cause serious injury or death is sufficient to support a deadly weapon finding. We resolve McMillian's second issue against him. In his third issue, McMillian contends the trial court erred in using the deadly weapon finding under section 12.35(c) to enhance the punishment range for his cruelty to an animal conviction to that of a third degree felony because the statute controlling the offense of cruelty to animals contains separate conditions under which the punishment range for the offense may be enhanced. Section 42.09(i) states that if a person commits the offense of cruelty to an animal by killing, seriously injuring, or poisoning the animal without the owner's consent, the offense is punishable as a state jail felony. Tex. Pen. Code Ann. § 42.09(i) (Vernon Supp. 2005). If the person has had two previous convictions under section 42.09, the offense becomes punishable as a third degree felony. Id. McMillian argues that because section 42.09 has specific conditions under which the offense may be punished as a third degree felony, these conditions should be considered exclusive of all other enhancement provisions. McMillian acknowledges that all felonies are theoretically susceptible to an affirmative finding of use or exhibition of a deadly weapon. See Patterson v. State, 769 S.W.2d 938, 940 (Tex.Crim.App. 1989). McMillian cites no case law, and we have found none exempting cruelty to an animal from this general rule. Although section 42.09 sets forth one means by which the punishment for cruelty to an animal may be enhanced to a third degree felony, nothing in the statute suggests that 42.09(i) was intended to be the exclusive means of enhancement or that the legislature intended to exempt cruelty to animals from the application of section 12.35(c). Absent an exemption from the application of section 12.35(c), the trial court did not err in enhancing McMillian's punishment range based on the deadly weapon finding. We resolve McMillian's third issue against him. In his final issue, McMillian contends his right to a unanimous jury verdict was violated because the trial court allowed the jury to be charged on disjunctive theories of cruelty to an animal. At trial, however, McMillian's sole objection to the charge on cruelty to an animal was that he should be charged only with the more specific offense of dog fighting because "the specific rules over the general." McMillian never raised the issues of disjunctive theories and his right to a unanimous jury verdict before the trial court. An objection based on one legal theory may not be used to support a different legal theory on appeal. Because McMillian failed to object to the jury charge on the ground he now asserts on appeal, he is entitled to reversal only if he can show both error and egregious harm. See Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1985). McMillian contends the charge was erroneous because it allowed the jury to convict him for cruelty to animal if some of them found he tortured Sisco and others found he seriously injured or killed the dog. Because the jurors could pick either means of committing the offense, McMillian contends he was denied his right to a unanimous jury verdict. We note that the same facts underlie both the allegation of torture and the allegation of causing serious injury or death. Furthermore, both means of committing cruelty to an animal are punishable as a state jail felony. Alternate theories of committing the same offense may be submitted to the jury disjunctively without violating the defendant's right to a unanimous jury verdict. See Murchison v. State, 93 S.W.3d 239, 258 (Tex.App.-Houston [14^th Dist.] 2002, pet. ref'd). There is no requirement that the jury designate which of the alternative means of committing the offense they found to have been proven. See id. In this case, the court's charge did not submit more than one offense, but merely two different means by which McMillian could have committed the single offense of cruelty to an animal. Accordingly, the charge did not violate McMillian's constitutional right to a unanimous jury verdict. See id. We affirm the trial court's judgment.