Nelson v. State
| Decision Date | 11 December 2018 |
| Docket Number | NO. 01-17-00747-CR,NO. 01-17-00746-CR,NO. 01-17-00748-CR,01-17-00746-CR,01-17-00747-CR,01-17-00748-CR |
| Parties | CHARLES ERVIN NELSON, WILLIAM FRANK BANE, JOSEPH SAVOIE, Appellants v. THE STATE OF TEXAS, Appellee |
| Court | Texas Court of Appeals |
On Appeal from the County Court Lampasas County, Texas
In these three cases that were tried together, a jury convicted appellants Charles Ervin Nelson and Joseph Savoie of the Class A misdemeanor offense of possessing an implement of cockfighting.1 The trial court assessed their punishment at confinement for one year, probated for one year, and imposed a $2,000 fine. The jury also convicted appellant William Frank Bane of the Class C misdemeanor offense of attending a cockfighting exhibition as a spectator.2 The trial court assessed Bane's punishment at a $500 fine.
On appeal, the appellants raise numerous issues challenging their convictions, including (1) challenges to the trial court's jurisdiction; (2) challenges to the sufficiency of the evidence; (3) Fourth and Fifth Amendment challenges, including the lack of probable cause to support the search warrant and an inadequate affidavit to support the search warrant; (4) violations of Brady v. Maryland; (5) improper exclusion of a witness's testimony; (6) failure to instruct the jury on a statutory defense; and (7) double jeopardy, among other challenges.3
We affirm.
In June 2016, Investigator J. Seery with the Lampasas County Sheriff's Department was contacted by a senior investigator with the Humane Society of the United States who informed Seery that he had an informant who lived in the Lampasas area and wanted to pass on to local law enforcement information about a cockfighting operation. Based on the information provided by the informant, Investigator Seery and another officer went to the area described and observed a "lean-to building," a couple of smaller buildings, and a "pit for fighting cocks." Investigator Seery testified that, based on the design of the pit, it was "obvious" that it was intended for cockfighting.
Investigator Seery set up a camera on a public road outside the entrance to this location to determine if, as reported by the informant, a large number of people were to enter the property. On June 11, 2016, the date supplied by the informant, the camera transmitted to Investigator Seery pictures of numerous cars assembling on the property. He estimated that "a couple hundred people" were at the property onthis day. Investigator Seery obtained a search warrant for the property, which allowed the officers to search for cockfighting equipment and paraphernalia.
The Sheriff's Department had the assistance of a Texas Department of Public Safety helicopter when executing the search warrant. Investigator Seery testified that pandemonium ensued when law enforcement arrived at the property, with people jumping fences and running away, and other people driving through bushes and getting stuck in the mud. The trial court admitted a copy of the video of the encounter taken from the helicopter.
Investigator Seery testified that it was "obvious" that a cockfighting event was occurring when law enforcement arrived at the property. He observed numerous people running away from the area, and he saw live roosters in the fighting pit, as well as dead roosters lying in various locations around the pit. The trial court admitted photographs depicting the set-up of the pit, as well as some of the live and dead roosters in the area. Investigator Seery observed wounds on the dead roosters, and these roosters had bands around their legs where the participants would strap sharp instruments called "gaffs" or "slashers" to cause injury to other roosters during the fight. These instruments had been removed from the dead roosters, but some of the live roosters recovered from an area underneath the fighting pit still had gaffs strapped to their legs. Investigator Seery also observed a box at the scene thatparticipants placed the roosters in to allow the participants to strap the instruments to the rooster's legs before a fight.
The officers received information that spectators were charged $30 to park and enter the event, and participants were charged $350 to enter their roosters in the fight. Most of this money was used as prize money for the individual who won the event. Investigator Seery observed a board that displayed numbers assigned to the roosters, as well as which roosters had won or lost fights, and he also observed betting slips at the scene, as well as a scale next to the board. Investigator Seery identified each of the three appellants as individuals he encountered during the raid on the property.
Investigator M. Barnes also participated in the execution of the search warrant. Immediately upon arriving at the entrance to the property, Investigator Barnes started chasing a man who was fleeing from the scene on foot. Investigator Barnes was unable to apprehend this man, but the man threw a grocery bag into a tank while he was running, and Barnes recovered the bag and its contents. The bag contained two plastic containers that held a total of about $19,000.
Investigator Barnes also searched appellant Nelson's vehicle. He discovered a box, which had a label reading "C.E. Nelson" on top, sitting on the passenger floorboard. The box contained numerous gaffs—defined in the Penal Code as "an artificial steel spur designed to attach to the leg of a cock to replace or supplementthe cock's natural spur"4—and knives. Investigator Barnes testified that cockfighting participants typically attach the gaffs to the roosters by wrapping the leg in moleskin and using tape and wax string. The box found in Nelson's vehicle also contained moleskin, wax string, scissors, and guards to protect the person from cutting himself on the gaffs. This box was admitted into evidence.
Investigator Barnes also testified that officers recovered a tackle box belonging to appellant Savoie. Due to a misunderstanding concerning which officer initially retrieved the box, the county attorney indicated that he would not accept charges of possession of cockfighting paraphernalia against Savoie. However, Savoie then contacted Investigator Barnes, claiming that the tackle box was his and that he "had gaffs and other property that was taken from him out in the field." The box that Savoie claimed was also admitted into evidence. Investigator Barnes testified that the contents of the box included strips of moleskin, knife guards, knives, a training spur used to train roosters to fight without injuring them, scissors, and wax string.
Finally, Investigator Barnes testified that he had heard appellant Bane testify at a prior hearing before the justice of the peace. Bane admitted being at the property at the time of the raid, although he stated that he "was just there drinking beer with his friends." Bane also stated that he had paid $35 to get onto the property.
The appellants indicated that they wished to call a witness, Steve Perry, to the stand. The prosecutor requested that he be allowed to question Perry on voir dire. Perry stated that he was not at the property on June 11, 2016, and he had not been involved in setting up or organizing the cockfighting event. He stated that the appellants had asked him to testify because he had been involved in drafting Penal Code section 42.105, which criminalizes cockfighting, and he intended to present testimony concerning one of the defenses built into the statute. The defense provides that it is an affirmative defense to prosecution under section 42.105 that the person's conduct "was incidental to collecting bridles, gaffs, or slashers." See TEX. PENAL CODE ANN. § 42.105(c)(2) (West 2016); see also id. § 42.105(a)(5) (). Perry agreed with the State that he intended to testify about the status of the law, and he stated, The trial court refused to allow Perry to testify, ruling that the court would provide the law to the jury. The appellants did not call any other witnesses.
During the charge conference, none of the parties presented any objections to the language of the charges. The charges for appellants Nelson and Savoie—who were both charged with possession of cockfighting implements—did not include aninstruction that it was a defense to prosecution that their conduct was incidental to collecting gaffs or slashers.
Ultimately, the jury found appellants Nelson and Savoie guilty of possession of cockfighting implements, a Class A misdemeanor, and the jury found appellant Bane guilty of attending a cockfight as a spectator, a Class C misdemeanor. The trial court sentenced both Nelson and Savoie to confinement for one year, probated for one year, and imposed a $2,000 fine. The trial court imposed a $500 fine on Bane. This appeal followed.
In several issues, the appellants contend that the Lampasas County Court lacked jurisdiction over their cases. Specifically, they argue that the State of Texas had no standing to sue or bring charges against them; that the county attorney and the trial court acted "outside their public capacity" which "removes standing and immunity from them"; that the State never established who was injured by the alleged offenses; and that the trial court did "not have subject matter jurisdiction over common law issues."
Constitutional county courts, such as the Lampasas County Court, have "exclusive original jurisdiction of misdemeanors other than misdemeanors involving official misconduct and cases in which the highest fine that may be imposed is $500 or less." TEX. GOV'T CODE ANN. § 26.045(a) (West Supp. 2018); TEX. CODE CRIM.PROC. ANN. art. 4.07 (West 2015) (...
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