No. 05-03-00649-CR
Opinion Filed June 17, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 199th Judicial District Court Collin County, Texas, Trial Court Cause No. 199-81693-02. Affirmed.
Before Justices WHITTINGTON, LANG, and LANG-MIERS.
Opinion By Justice LANG-MIERS.
Michael Allen Hansen appeals his conviction and sentence for cruelty to an animal. On appeal, appellant contends that (1) he was denied effective assistance of counsel at trial, (2) the evidence produced at trial is factually insufficient to support his conviction, and (3) the trial court erred in failing to rule on appellant's request that the court recommend work release as a condition of his probation. We overrule all three points of error and affirm.
Background
In April of 2002, appellant and his wife (CH) lived in Plano, Texas with their infant daughter and CH's pet cat (Scooter). Appellant was unemployed at the time and looking for work. CH was working part-time after being laid off of her full time job in October of 2001. Appellant was under a great amount of stress and began using methamphetamine drugs. He also withdrew from his family and spent much of his time working at his personal computer. CH noticed that Scooter's skin was very red and irritated around her shoulder and neck area and she took the cat to see Doctor Lansford, Scooter's veterinarian. Doctor Lansford gave CH some ointment to place on Scooter's wounds and some other medicine. When CH returned home with Scooter, she questioned appellant about Scooter's injuries. Appellant told CH that he thought Scooter was probably injured when she was trapped under the car earlier that week. CH also noticed that there was Tobasco Sauce on Scooter's fur and that, unlike her normal behavior, Scooter was urinating outside of her litter box. CH asked appellant if he knew anything about why there was Tobasco Sauce on the cat and appellant told her that he put the sauce on the cat's fur to keep the cat out of their daughter's bedroom. In the early morning hours of April 14, 2002, CH woke up and could not find Scooter. CH found appellant in the garage smoking a cigarette and looking underneath the car. She asked him if he knew where Scooter was and he told her, "Don't worry about it; I'm sure she's fine." CH and appellant went inside the house, but CH returned to the garage a short time later and found Scooter underneath the family's car. Scooter was wrapped very tightly in twine, covered in urine, and appeared lifeless. CH tried to remove the twine from around Scooter's body, but was unable to remove it because it was wrapped too tightly. About that time appellant returned to the garage and CH made him remove the twine. He admitted that he had tied the cat up as part of a game he was playing with her. CH was frightened and left home with her daughter to stay at her father's home. CH returned home a short time later to get Scooter. CH and her father took Scooter to an emergency veterinary clinic and the veterinarian told CH that Scooter's ribs were broken. On April 15, 2002, Scooter's veterinarian examined her and found that the skin around her tail was swollen and damaged. He also discovered that the skin around Scooter's neck was beginning to harden and become rigid. The veterinarian performed surgery to repair the hardened skin around her neck and shoulder area, but Scooter's health continued to worsen. Four days later, Scooter was euthanised. The State charged appellant with cruelty to an animal under section 42.09 of the Texas Penal Code. After pleading not guilty, appellant was convicted of the charge in a bench trial. On April 4, 2003, the court sentenced appellant to eighteen months of confinement in a state jail facility, probated for five years, and ordered appellant to serve ninety days in the Collin County Detention Facility as a term and condition of his probation. Discussion
Ineffective Assistance of Counsel In his first issue, appellant claims that he was denied effective assistance of counsel at trial. To prevail on an ineffective assistance of counsel claim, an appellant must show two things: (1) that his trial counsel's performance was deficient; and (2) a probability sufficient to undermine confidence in the outcome existed that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Rylander v. State, 101 S.W.3d 107, 110 (Tex.Crim.App. 2003). Failure to establish the required showing of either deficient performance or sufficient prejudice defeats the ineffective assistance claim. Rylander, 101 S.W.3d at 110. To establish deficient performance, an appellant must demonstrate that his counsel's performance fell below an objective standard of reasonableness, as judged on the facts of a particular case and viewed at the time of counsel's conduct. Strickland, 466 U.S. at 688-90. In evaluating this standard, counsel is presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999). An appellant has the burden to overcome this presumption by proving that his attorney's representation was unreasonable under prevailing professional norms and that the challenged action was not sound strategy. Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994). To establish that his counsel's deficient performance prejudiced his defense at trial, an appellant must show that there is a reasonable probability that the result of the proceeding would have been different but for the errors made by counsel. Strickland, 466 U.S. at 694. "The question is whether there is a reasonable probability that absent the errors, the factfinder would have had a reasonable doubt respecting guilt." Id. at 695. Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson, 9 S.W.3d at 813. In the absence of evidence of counsel's reasons for the challenged conduct, we will assume that it was part of counsel's strategy and will not conclude that the conduct was deficient unless the conduct was so outrageous that no competent attorney would have engaged in it. Id. at 814. We may not reverse a conviction on the grounds of ineffective assistance of counsel when there is no specific explanation for counsel's decisions in the record and when counsel's actions or omissions may have been based on tactical decisions. See Bone v. State, 77 S.W.3d 828, 833-37 (Tex.Crim.App. 2002). Because the record rarely reveals trial counsel's strategy, the proper procedure for raising an ineffective assistance of counsel claim is almost always by habeas corpus. Aldrich v. State, 104 S.W.3d 890, 896 (Tex.Crim. App. 2003). Appellant claims that he was denied effective assistance of counsel at trial because his counsel failed to (1) object to extraneous offense evidence offered by the State, (2) make a proper objection when the State offered audio recordings into evidence, and (3) object when the State made an improper argument in relation to the relevancy of certain exhibits. As previously stated, when the record does not contain evidence of why trial counsel did or did not do something, we cannot conclude that counsel's performance was deficient. See Thompson, 9 S.W.3d at 814. The record in the present case does not contain evidence of appellant's trial counsel's reasons for the actions appellant complains about on appeal . As a result, we presume that trial counsel's actions were sound trial strategy. Id. We resolve appellant's first issue against him. Factual Sufficiency
In his second issue, appellant claims that the evidence is factually insufficient to support his conviction. The only question for us to answer when we review the factual sufficiency of the evidence is whether, considering all of the evidence in a neutral light, the fact finder was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, No. 539-02, 2004 WL 840786, *7 (Tex.Crim.App. 2004). We review all of the evidence and set aside the verdict only if (1) the evidence is so weak as to be clearly wrong and manifestly unjust, or (2) the verdict is against the great weight of the evidence. Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000). We are not free to reweigh the evidence and set aside the verdict merely because we believe that a different result is more reasonable. Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App. 1997); Clewis v. State, 922 S.W.2d 126, 135 (Tex.Crim.App. 1996). The trier of fact is the exclusive judge of the credibility of the witnesses and the weight to be given their testimony. Swearingen v. State, 101 S.W.3d 89, 97 (Tex.Crim. App. 2003). We will not disagree with the factfinder's determination unless the record clearly indicates that we must do so to stop a manifest injustice from occurring. Johnson, 23 S.W.3d at 10-12. A person commits animal cruelty if he intentionally or knowingly "tortures" an animal. Tex. Pen. Code Ann. § 42.09(a)(1) (Vernon 2004). When the law regarding cruelty to animals was codified in 1974, the Legislature omitted the definition of "torture." See Act of May 23, 1973, 63rd Leg., R.S., ch. 399, § 1, 1973 Tex. Gen. Laws 885. The term remains undefined in the present statute. Tex. Pen. Code Ann. § 42.09 (Vernon 2004). Under an earlier version of the animal cruelty statute, "torture" was held to "include every act or omission whereby unnecessary or unjustifiable pain or suffering is caused to an animal." See Barnett v. State, 35 S.W.2d 441, 443 (Tex.Crim.App. 1931). Testimony at trial established that appellant (1) wrapped Scooter up in twine and shoved Scooter under a car, (2) poured Tobasco Sauce on Scooter, (3) "scruffed "Scooter, and (4) threw Scooter against a garage door and a shoe tree. During his testimony, appellant offered an explanation for all of these events. Appellant testified that he wrapped Scooter up with twine while he was playing a "game" with Scooter. Appellant's "game" consisted of appellant taking Scooter into the garage, twirling a piece of twine around Scooter until Scooter was wrapped in the twine, and watching Scooter escape. Each time Scooter escaped, appellant wrapped the twine tighter to see if Scooter could escape again. The last time appellant wrapped Scooter up in twine, he shoved Scooter under the car because he heard his wife coming and did not want her to find Scooter in the garage with him. When CH found Scooter underneath the car, she was lifeless, wrapped in twine and soaked in her own urine. Appellant also admitted to pouring Tobasco Sauce on Scooter. Appellant testified that he used the sauce as a training method to keep Scooter out of his daughter's bedroom. Appellant believed that if he placed a couple of drops of Tobasco Sauce on Scooter's fur whenever he caught Scooter trying to enter his daughter's bedroom, Scooter would learn to stay away from the bedroom. In a letter that appellant gave to CH, he explained that on one occasion, he only meant to place a couple of drops on Scooter's fur but accidentally spilled a larger amount of the sauce on Scooter. Appellant also admitted to "scruffing" Scooter on multiple occasions. Doctor Lansford testified that ordinary scruffing could not cause Scooter's injuries. The skin around Scooter's neck was dying because it had been pulled away from the underlying tissue. Doctor Lansford testified that the injuries were so severe that they could only have been caused by applying a considerable amount of force to Scooter's skin, and that Scooter's injuries were likely caused by someone picking Scooter up by the skin on her neck and vigorously shaking her. Appellant admitted that he threw Scooter into a shoe tree and into the garage door in two separate incidents but explained that he did so because in one instance she scratched him and in another she bit him. As previously stated, the trier of fact is the exclusive judge of the credibility of the witnesses and the weight to be given their testimony. Swearingen v. State, 101 S.W.3d 89, 97 (Tex.Crim.App. 2003). From our review of the record, we believe that a factfinder could rationally determine beyond a reasonable doubt that appellant intentionally or knowingly tortured Scooter. We resolve appellant's second issue against him. Appellant's Request for Work Release Recommendation
In his third issue, appellant contends that the trial court erred by failing to rule on his request that the court recommend work release as a condition of his probation. This issue is not preserved for our review. To preserve error for appeal, a party must present to the trial court a timely request, motion, or objection, state the specific grounds therefore, and obtain a ruling that appears in the record. Tex.R.App.P. 33.1(a); Wal-Mart Stores, Inc. v. McKenzie, 997 S.W.2d 278, 280 (Tex. 1999) (emphasis added). The record does not show that appellant obtained a ruling on his request. As a result, we resolve appellant's third issue against him. Conclusion
We affirm the trial court's judgment.