McCall v. State, 52122

• Citation: 540 S.W.2d 717
• Decision Date: 15 September 1976
• Docket Number: No. 52122,52122
• Parties: Simmie McCALL, Appellant, v. The STATE of Texas, Appellee.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

Page 717

540 S.W.2d 717

Simmie McCALL, Appellant, v. The STATE of Texas, Appellee.

No. 52122.

Court of Criminal Appeals of Texas.

Sept. 15, 1976.

Milton E. Douglas, Jr., Wichita Falls, for appellant.

Henry J. Anderson, County Atty., Wichita Falls, Jim D. Vollers, State's Atty., and David S. McAngus, Asst. State's Atty., Austin, for the State.

OPINION

BROWN, Commissioner.

This is an appeal from a conviction for cruelty to animals under V.T.C.A. Penal Code, Section 42.11. Appellant was tried before a jury which found him guilty. Punishment was assessed by the trial court at three hundred-fifty dollars ($350) fine and ninety (90) days in the Wichita County jail. Imposition of sentence was suspended and appellant was placed on probation for a period of one year.

The record reflects that Miss Tony DeStefano, a member of the Humane Society of Wichita Falls, went to a plot of property in that city which was under the control of appellant. Appellant was keeping approximately twelve dogs on the property and, based on her observation of the animals, Miss DeStefano filed a complaint with the Wichita County Attorney alleging that the animals were not being property cared for. Appellant was charged by information with intentionally and knowingly failing unreasonably to provide necessary food and care for an animal in his custody, to-wit: one Harlequin Great Dane dog. Miss DeStefano veterinarians who participated in the treatment property and with the help of other members of the Humane Society took all of the animals into custody and removed them to the Society's animal shelter where they were fed and treated for tick infestations and various other symptoms. At the trial the State introduced testimony of two local verterinarians who participated in the treatment of the animals. Both men testified that they observed symptoms of severe malnutrition, anemia and parasitic infestation in all of the animals. They also stated that in their opinion the animals had not been properly cared for. Based on all of the evidence, the jury returned a verdict of guilty.

In his first ground of error appellant challenges the constitutionality of V.T.C.A Penal Code, Section 42.11. Specifically, appellant contends that Section (a)(2) is unconstitutionally vague and indefinite. That portion of the statute states that:

'(a) a person commits an offense if he intentionally or knowingly:

'(2) fails unreasonably to provide necessary food, care, or shelter for an animal in his custody;'

Appellant relies on the case of Cinadr v. State, 108 Tex.Cr.R. 147, 300 S.W. 64 (1927) for the proposition that Article 1374 under the Penal Code of 1925 was unconstitutionally indefinite. That statute made it an offense to 'overdrive,' 'torture,' or 'needlessly mutilate or kill' any animal. It also stated that a person committed an offense if 'having the charge or custody of any animal' he 'unnecessarily fails to provide it with proper food, drink, or cruelly abandons it.' This Court did not, as appellant contends, strike down the entire statute.

The defendant in Cinadr, supra, was charged and convicted under the clause of the statute which condemns 'needlessly killing' an animal. This Court held that 'the language chosen in the statute under consideration to define the offense of which the appellant is convicted is not deemed such as to meet the requirements of the statutory and constitutional provisions' requiring a penal statute to be framed so as to apprise an accused of the nature of the offense with which he is charged. However, this Court further stated that the statute named a 'number of other offenses in which the language chosen is probably not subject to the criticism that it is indefinite.'

It was only that portion of the statute which referred to 'needlessly killing' an animal which was held unconstitutional. Although the decisions applying Article 1374 are not numerous, this Court subsequently upheld other provisions of the statute in decisions after Cinadr, supra. Barnett v. State, 117 Tex.Cr.R. 358, 35 S.W.2d 441 (1932). The statute was subsequently repealed upon passage of the new penal code provisions which enumerate six specific offenses under the heading of 'Cruelty to Animals.' Section (a)(2) quoted above is substantially the same as that portion of Article 1374 which condemned a person 'having the charge or custody of any animal' who 'unnecessarily fails to provide it with proper food, drink or cruelly abandons it.' We find that Section (a)(2) sufficiently informs an accused of the nature and cause of the accusation against him and that it is not unconstitutionally indefinite.

Appellant's first ground of error is overruled.

In his second ground of error appellant contends that the 'search' of his property by the Humane Society and the subsequent 'seizure' of the animals violated his Fourth Amendment rights and that the admission into evidence of photographs of the animals was error because such photographs were the fruits of an illegal search and seizure.

We note that State's exhibits one through five depicting the Harlequin Great Dane named in the information were introduced during the direct examination of Miss DeStefano and were admitted without objection by appellant. At the end of direct examination, the court excused the jury for lunch and appellant asked that Miss DeStefano be retained on the witness stand so that appellant could develop the facts surrounding the 'search and seizure' of the animals. A hearing was held out of the presence of the jury during which Miss DeStefano stated that she had received a telephone complaint about the animals and that she and another Humane Society member went to the scene on April 15 and walked about the property examining the animals. She then went to the county attorney to 'see what he could do about it.' The complaint and information were filed on April 23. On that same day, the animals were seized.

Following this hearing appellant filed his motion to suppress exhibits one through five, which the trial court properly overruled. It is clear that appellant's motion to suppress the photographs of the Great Dane was not timely and that appellant waived his complaint as to their admissibility. McGrew v. State, 523 S.W.2d 679 (Tex.Cr.App.1975); Allen v. State, 536 S.W.2d 364 (Tex.Cr.App.1976); Sonderup v. State, 418 S.W.2d 807 (Tex.Cr.App.1967).

Appellant later took the stand and testified that the dogs belonged to him and that he cared for them and that he and his son fed them daily and sometimes two or three times daily. He stated that he used tick insecticide, ointments, and antibiotics to treat the animals he thought were ill. He said that he thought the Great Dane had distemper and that he was treating her with antibiotics and that she would not eat for this reason.

Miss DeStefano was recalled to the stand so that the State could offer into evidence exhibits six through twenty which were photographs of several other dogs. These dogs were also in an emaciated condition and were located on appellant's property with the Great Dane. Before the offer of these exhibits appellant again requested a hearing outside the presence of the jury and, anticipating the introduction of the photographs, objected on the basis that they portrayed...