Arispe v. Velazquez
| Docket Number | 01-23-00188-CV |
| Decision Date | 28 December 2023 |
| Parties | ROBERT ARISPE AND KASIE O'DELL, Appellants v. MELISA VELAZQUEZ AND FRANCISCO VELAZQUEZ, Appellees |
| Court | Texas Court of Appeals |
1
ROBERT ARISPE AND KASIE O'DELL, Appellants
v.
MELISA VELAZQUEZ AND FRANCISCO VELAZQUEZ, Appellees
No. 01-23-00188-CV
Court of Appeals of Texas, First District
December 28, 2023
On Appeal from the County Civil Court at Law No. 4 Harris County, Texas Trial Court Case No. 1198118
Panel consists of Chief Justice Adams and Justices Landau and Rivas-Molloy.
MEMORANDUM OPINION
Veronica Rivas-Molloy Justice
Appellants Robert Arispe and Kasie O'Dell, acting pro se, appeal the trial court's final judgment ordering that their two pit bull terriers be humanely destroyed because of Appellants' failure to comply with the State's "dangerous dog" statute. Although it is difficult to ascertain the issues Appellants raise on
appeal, it appears Appellants (1) complain about the admission of unidentified hearsay testimony, and (2) argue that the evidence was legally insufficient to support the trial court's verdict.
Because the hearsay objection was not preserved and the evidence supports the trial court's judgment, we affirm.
Background
Robert Arispe and Kasie O'Dell are neighbors of Appellees Melissa Velazquez and her father, Francisco Velazquez, in Katy, Texas. Appellants owned at least three pit bulls, two of which are the subject of the present appeal.[1]
On May 6, 2022, Appellees filed a "Report of Unprovoked Attack or Acts by Dog to be Declared Dangerous" in Harris County Justice Court.[2] The petition complained of three incidents involving two pit bull terriers in 2020 and 2022.[3]On July 6, 2022, after a hearing pursuant to Section 822.0423 of the Texas Health and Safety Code, the Justice of the Peace found the dogs to be "dangerous dogs" as defined by Section 822.041(2) of the Health and Safety Code. The trial court's
dangerous dog finding required Appellants to comply with certain requirements of Chapter 822, Subchapter D, of the Texas Health and Safety Code and Section 8 of the Harris County Animal Regulations. Among other things, Appellants were required to "restrain the dangerous dog at all times on a leash in the immediate control of a person or in a secure enclosure."[4]
On November 9, 2022, Harris County Advanced Animal Control Officer Allie Post filed a "Request for Hearing on Whether Owner of Dangerous Dog has Failed to Comply with Requirements" in the Justice Court. According to the request, Harris County Animal Control
received a call reporting "two loose dogs aggressively charging and had just killed complainant['s] dog. Upon [Post's] arrival, the deputy had made contact with the owner of the dangerous dogs and confined them. However as the deputy and [Post] were speaking to the owner, the dogs broke out of the house and began charging and lunging[,] causing the deputy to unholster his taser and prep[are] to engage
In response to Officer Post's request, the Justice Court conducted a hearing to determine whether Appellants had failed to comply with the "dangerous dog" requirements.[5] After the hearing, the Justice of the Peace signed an order on December 20, 2022 providing in part:
[T]he Court FINDS that the dog[s] were declared to be a [sic] dangerous dogs on 07/06/2022, and that more than 30 days have elapsed and the owner, Robert Arispe has failed to comply with the
requirements of owning a dangerous dog by failing] to comply with the requirements of owning a dangerous dog by failing to secure the dog in a kennel where they escaped multiple times and one time resulting in attacking and killing a neighbor[ s] pet dog.
It is therefore ORDERED that Veterinary Public Health shall seize the dogs if not already impounded and keep the dogs in secure and humane conditions; and that on or after the 11th day from the date the dogs are seized or today's date, whichever is later, Veterinary Public Health shall humanely destroy the dogs.[6]
(Emphasis in original.) Appellants appealed the trial court's order to Harris County Court at Law No. 4.[7]
The County Court at Law Trial
A trial was conducted on February 6, 2023 in Harris County Court at Law No. 4. All parties appeared pro se. Five witnesses testified.
A. Melisa Velazquez
According to Appellee Melisa Velazquez, the first incident with the pit bulls occurred on February 23, 2020, when they broke down her neighbor's fence and also her fence. The pit bulls were "trying to maul" her dog and then the dogs "came at" her. She testified, "[T]he only reason that they didn't bite me or attack me was because my mother was right there holding a steak and trying to push them
away. So while that was happening, we were screaming and trying to get help. And my neighbors hear this, so they came in and burst[] through our fence to try to get these dogs away." Appellees live roughly three houses away but behind Appellants.
Melisa testified that the dogs "did bang at our window. And both of them were trying-it seemed like they were trying to break it down as they saw my dog . . . . I saw that it was [] the same dogs and I took pictures of them." She said she filed a police report about the incident. Melisa testified that on October 3, 2022 the pit bulls got out of Appellants' yard again.
B. Francisco Velazquez
Appellee Francisco Velazquez testified that when he came home from work the day of the first incident, "the dogs were banging the glass of the window. And then I thought the dog was gonna go through the window." He got out of his van to yell at the dogs and then they charged him. "[T]hose dogs, they were not scared. They were mean dogs."
C. Christine Luque
Christine Luque, another neighbor, testified that on November 5, 2022, the dogs "broke down [her] back fence and came into [her] back yard and killed [her] Boston terrier, and [her] gate was locked and shut at the time."[8] Luque lives across
the street and down the block from Appellants. She said the pit bulls disemboweled her dog, which died at the veterinarian's office. She said that at the time he was attacked, her dog "was doing nothing except for . . . lounging in the sun on a . . . Saturday afternoon" in her backyard. She said the pit bulls' owners have "had multiple, multiple complaints against these dogs and . . . these dogs need to be dealt with and the owner needs to be held accountable."
D. Allie Post
Animal Control Officer Allie Post testified that she became involved with the pit bulls on November 5, 2022, after Luque's dog was killed. When she arrived, a deputy from the sheriff's office was there and had chased the dogs back to Appellants' house. After talking to O'Dell, Officer Post issued citations based on Appellants' noncompliance with the dangerous dog requirements, "due to dangerous dogs running loose." While Officer Post and the Deputy were there, three pit bulls broke out of a side window of Appellants' house.[9]
Officer Post testified that to have a "secured enclosure" for a dangerous dog "means to take steps that a reasonable person would take to ensure a dog remains on the owner's property, including confining the dog in an enclosure that is capable of preventing the escape or release of the dog. The house alone is not
secure for these dogs." Officer Post said she has responded to sixteen calls regarding Appellants' pit bulls.
According to Officer Post, O'Dell's failure to comply with the dangerous dog guidelines "allowed [the dogs] to get out, which allowed them to go into somebody else's backyard and destroyed their dog." She continued, "[T]he reason that the dogs were being human[e]ly euthanized was because she's not being responsible. She's not doing what it takes per the law, the minimum requirements she's not compliant to."
E. Kasie O'Dell
Kasie O'Dell testified that when the dogs escaped on November 5, 2022, "the cage was not that safe." She said she was not given a fair chance for the cage to be examined to determine it was safe enough to contain the dogs. According to O'Dell, she used zip ties around a chain link enclosure, but the dogs got past it. She has not put the dogs back into the cage since then because she has been "waiting for [Officer Post] to come out there to tell me where the mistakes went wrong to fix it to make sure that these are safe before I put my dogs back in there." She said she has not attempted to fix the enclosure because she has been waiting for an animal control officer "to come out and tell me the proper materials I need to fix it to make it a safe place for these dogs, that way they don't get out and they
won't get hurt."[10] She said she chose not to reconstruct the enclosure after it broke on November 5, 2022 because she is "not a professional with animal control and [does not] want to make a mistake . . . on the enclosure[.]" She said she wants "a professional" to come out and to help her fix it.
O'Dell testified she put burglar bars on a window of her house at the Justice of the Peace's suggestion, because the dogs had escaped through the window. According to O'Dell, the dogs do not always wear a muzzle because one of them does not fit into the muzzle she has for him, but she is looking for a bigger muzzle. And she testified she walks the dogs on a leash. But, she stated, she is not putting them back into the cage "until somebody comes out and helps me do the right thing and make it safe." O'Dell testified the dogs were restrained by a leash at all times, and that they never bit or committed an "unprovoked attacking" of a person.
On February 9, 2023, the County Court issued an order that stated in part:
Having considered the evidence and arguments, the Court finds that the dog[s] were declared to be a dangerous dogs on 7/6/2022, and that more than 30 days have elapsed and the owner Kasie Eileen Odell [sic] has failed to comply with the requirements of owning a dangerous dog by fail[ing] to comply with the requirements of owning a dangerous dog by failing to secure...
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