Opinion
04-22-00293-CR
08-30-2023
Jenna K. LEWIS, Appellant v. The STATE of Texas, Appellee
DO NOT PUBLISH
From the County Court at Law, Kerr County, Texas Trial Court No. CR191052 Honorable Susan Harris, Judge Presiding
Sitting: Rebeca C. Martinez, Chief Justice, Lori I. Valenzuela, Justice Sandee Bryan Marion, Chief Justice (Ret.)
The Honorable Sandee Bryan Marion, Chief Justice (Retired) of the Fourth Court of Appeals, sitting by assignment of the Chief Justice of the Texas Supreme Court. See Tex. Gov't Code §§ 74.003, 75.002, 75.003.
MEMORANDUM OPINION
Lori I. Valenzuela, Justice
REVERSED AND REMANDED
A jury convicted Jenna K. Lewis on thirty counts of cruelty to livestock animals and six counts of cruelty to non-livestock animals. The trial court sentenced Lewis to 365 days in jail, probated for twenty-four months, a fine of $500, and adjudged court costs, attorney's fees, classes, and probation terms. On appeal, Lewis asserts three issues: (1) jury charge error; (2) the statute of limitations; and (3) a violation of Lewis's right to a speedy trial. We reverse and remand for a new trial.
Background
On July 7, 2016, Deputy Reagan Givens responded to a call from Annette Lapham-the owner of a ranch in Kerr County, Texas and Lewis's neighbor. After contacting Lapham, Givens began investigating a possible animal abuse case. During his investigation at Lapham's ranch, Givens noticed several malnourished and injured horses. According to Lapham, the malnourished and injured horses belonged to Lewis, and Lapham allowed her to temporarily keep the horses at Lapham's ranch while Lewis was going through a difficult time after the death of her husband.
One of the horses Lewis brought to Lapham's ranch-a mare that was accompanied by two yearlings-was malnourished due to a halter being left on her that prevented the mare from being able to eat normally. The halter had been left on the mare for so long that it appeared to be "fused to the skin" or the skin was "growing around" it, and after trying to remove the halter, Lapham determined the halter could not be safely removed without further injuring the horse. Lapham testified that she had not noticed the fused halter earlier because Lewis had instructed her to stay away from the mare because the mare aggressively defended her yearlings and would attack Lapham. After Lapham discovered the halter, she ignored Lewis's warning and approached the mare, only to discover the mare was not aggressive at all. Lapham believed Lewis told her the horse was aggressive to keep her from inspecting the mare and finding the ingrown halter. Another of the horses Lewis brought to Lapham's ranch had a severe gash on its leg that appeared infected. All of Lewis's horses at Lapham's ranch appeared malnourished, with visible ribs and hipbones. Givens thereafter sought a warrant to continue his investigation on Lewis's property, also located in Kerr County, Texas.
Givens called for backup to ensure animals would not be removed while he obtained a warrant. Deputy James Lang arrived at Lapham's ranch, and later a man, Faustino Rodriguez, showed up and stated he was there to retrieve the animals. Lang informed Rodriguez that he could not remove the animals because of an ongoing investigation and that another officer was obtaining a warrant to seize the animals. Rodriguez left the property shortly thereafter.
Around the same time, Sergeant Casey Spence and Deputy Michael Earney went to Lewis's property. Because the animals themselves were evidence of a potential crime, the officers sought to secure the scene and ensure no animals were removed until police obtained a warrant. Spence and Earney approached Rodriguez, who was present on the property with Lewis. Rodriguez asked the officers if he could leave the property and take the animals. The officers told Rodriguez he could leave the property, but he could not take the animals with him. The officers also instructed Rodriguez to unload animals-two donkeys, two horses, and a cage of chickens- from a trailer attached to his pickup truck.
Officer body camera video shows Lewis angrily yelling at the officers as the animals are being unloaded. She claimed that the animals were hers and denied anything was wrong with their care or health. Lewis also stated she was the only person with a key to enter the property.
Additional video footage taken by animal control officer Nichole Golden demonstrates the animals' conditions. The barn on the property was full of "muck" because it had not been properly cleaned for a significant period of time. Inside the barn were two malnourished donkeys with hooves that exceeded approximately one foot in length; two malnourished horses; and a dead horse covered in flies and maggots that was beginning to bloat. Other than some hay mixed with muck in a couple of the stalls, there was no food or water in the barn. The dilapidated home on the property was filled in animal feces and urine. The door appeared to be off the hinges, and it appeared that at least some of the animals lived inside the home.
After receiving confirmation that a seizure and arrest warrant were obtained, Lewis was arrested. Rodriguez kissed Lewis before she was taken away by police. Police seized thirty-six animals-fourteen horses, one deceased horse, one goat, four donkeys, eight chickens, one deceased chicken, one guinea fowl, and six dogs.
Procedural History
On November 22, 2016, the State filed a complaint and information alleging thirty-six misdemeanors-one for each seized animal. On December 1, 2016, the trial court issued a warrant for Lewis's arrest. The State amended the complaint and information on December 2, 2016. Over half a year later, on June 9, 2017, Lewis was arrested in Bexar County, Texas. The trial court set Lewis's arraignment for October 3, 2017. At some point between Lewis's October 3, 2017 arraignment and May 15, 2019, a jury trial commenced, but the trial court apparently granted a mistrial at Lewis's request. It is not clear from the record when the initial trial began.
On May 15, 2019, Lewis filed a motion to quash the information. In short, the motion to quash argued that the information lacked identification of the animals necessary for Lewis to prepare a defense. The trial court granted the motion to quash on August 21, 2019. On August 22, 2019,the State filed a new complaint and information under a new 2019 cause number. The new complaint and information identified each of the animals by letters and attached pictures.
On October 29, 2019, the trial court set contested motions and pretrial for February 19, 2020,and trial for March 23, 2020. On February 10, 2020, Lewis filed various motions, including a one-page "Motion to Dismiss for Failure to Provide a Speedy Trial." The motion sought dismissal of the charges against Lewis for the State's alleged failure to provide a speedy trial.
On February 18, 2020, the trial court granted the State's request for a trial continuance and continued trial until May 18, 2020. Notably, the COVID-19 pandemic began shortly thereafter, resulting in further trial delay.
On August 18, 2021, the trial court circulated a setting for a Zoom pretrial hearing on October 19, 2021, with jury selection to begin on November 16, 2021. On September 10, 2021, Lewis filed a request for a pretrial hearing to consider, among other things, her Motion to Dismiss for Failure to Provide a Speedy Trial. On October 20, 2021, the trial court denied Lewis's request for a pretrial hearing. On January 25, 2022, the trial court circulated a new trial setting, with jury selection to begin on February 8, 2022. On February 8, 2022, the trial court denied by written order Lewis's speedy trial motion. And on April 4, 2022, the trial court circulated what would be the final trial setting, with jury selection to commence on April 19, 2022.
The three-day trial commenced with jury selection on April 19, 2022. The jury heard from seven witnesses: (1) Lapham; (2) Katchen Benak, a friend of Lapham who discovered the halter issue; (3) veterinarian William Symm, DVM; (4) Givens; (5) Spence; (6) Lang; and (7) Golden. The jury also viewed bodycam and video camera evidence of the events occurring on the day of Lewis's initial arrest and the state of the property and animals found on the property. The jury returned a guilty verdict on all counts on the final day of trial. The trial court sentenced Lewis, and this appeal followed.
Charge Error
In her first issue, Lewis asserts the trial court erred in allowing a jury charge which did not accurately state the law.
Standard of Review
If alleged charge error was the subject of a timely objection in the trial court, as here, then reversal is required if the error is calculated to injure the rights of defendant, which means no more than that there must be "some harm" to the accused from the error. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984). When jury-charge error is preserved by timely objection, we must reverse "as long as the error is not harmless." Id.
Finding error in the court's charge to the jury begins-not ends-the inquiry. The next step is to make an evidentiary review as well as a review of any other part of the record as a whole which may illuminate the actual, not just theoretical, harm to the accused. Id. at 174. To assess harm, we review (1) the entire jury charge as a whole; (2) the state of the evidence, including the contested issues and weight of probative evidence; (3) the argument of counsel; and (4) any other relevant information revealed by the record of the trial as a whole. Id. at 171.
Applicable Law
The purpose of the jury charge is to instruct the jurors on all of the law that is applicable to the case. Vasquez v. State, 389 S.W.3d 361, 366 (Tex. Crim. App. 2012). Because the charge is the instrument by which the jury convicts, it must contain an accurate statement of the law and must set out all the essential elements of the offense. Id. In examining the charge for possible error, we "must examine the charge as a whole instead of a series of isolated and unrelated statements." Id.
The application paragraph is that portion of the jury charge that applies the pertinent penal law, abstract definitions, and general legal principles to the particular facts and the indictment allegations. Id. Because that paragraph specifies the factual circumstances under which the jury should convict or acquit, it is the "heart and soul" of the jury charge. Id. at 367.
Analysis
Section I of the jury charge reads:
Our statutes provide a person commits the offense of Cruelty to Livestock Animal if she intentionally or knowingly fails unreasonably to provide necessary food, water, or care for a livestock animal in the person's custody.
Our statutes provide a person commits the offense of Cruelty to Non-Livestock Animal if she intentionally or knowingly fails unreasonably to provide necessary food, water, or care for an animal in the person's custody.
Section II of the charge defines "custody" as "includ[ing] responsibility for the health, safety, and welfare of a livestock animal subject to the person's care and control, regardless of ownership of the livestock animal."
Lewis concedes Section I accurately lays out the law, including the element requiring a defendant to have custody of the subject animals. However, Lewis argues the application paragraphs in Section VI of the jury charge improperly omitted the custodial element on each of the thirty-six counts. For example, count one reads:
Now bearing in mind, the foregoing instructions and definitions, if you believe from the evidence beyond a reasonable doubt, that the defendant, JENNA LEWIS, on or about the 7th day of July, 2016, in the County of Kerr and State of Texas, as alleged in the information, did then and there intentionally or knowingly fail unreasonably to provide necessary food, water, or care for a livestock animal, to wit: a horse, designated "A," depicted in Court 1 Exhibit Photo(s) . . .
The remaining thirty-five counts mirror the language and structure and omit the "in her custody" element that is accurately stated in Section I. At the charge conference, Lewis timely objected to the omission of "in her custody" from each count. In response, the State argued the failure to include the language was waived because it was not included in the complaint and information, and Lewis did not timely raise the issue before trial commenced. Lewis argued Section I of the jury charge correctly included the element and the language should be included throughout to "clarify" for the jury that custody is an element of the crimes. In overruling Lewis's objection, the trial court noted that the custodial element was included in Section 1 of the charge.
Given the application paragraphs are the "heart and soul" of the jury charge, the missing custodial element from all thirty-six counts inevitably leads to our conclusion that the charge was erroneous. Any other conclusion would hold the State to a lesser burden of proof-only requiring proof beyond a reasonable doubt on four of the five statutory elements of the charged offenses.
Having found the trial court erred in omitting a statutory element from the thirty-six application paragraphs, we next address harm.
To assess harm, we review (1) the entire jury charge as a whole; (2) the state of the evidence, including the contested issues and weight of probative evidence; (3) the argument of counsel; and (4) any other relevant information revealed by the record of the trial as a whole. Almanza, 686 S.W.2d at 171. Because Lewis timely and specifically objected to the trial court's failure to include the custodial element in the application paragraphs, we must reverse and remand for a new trial if there is some harm. Id.
1. The charge as a whole
The charge erroneously failed to include the custodial element in all thirty-six application paragraphs. However, each of those paragraphs incorporates by reference the instructions and definitions, which Lewis concedes are correct. Nevertheless, being the "heart and soul" of the jury charge, the wholesale omission of a statutory element from every single application paragraph weighs in favor of finding some harm because the jury, so instructed by the court, could have assessed guilt believing-errantly-the State need not prove Lewis's custody of the animals to obtain convictions. Cf. Turner v. State, 573 S.W.3d 455, 463 (Tex. App.-Amarillo 2019, no pet.).
2. The state of the evidence
The State presented evidence that Lewis maintained custody of the animals. Givens testified to his belief, based on his investigation, that Lewis owned the subject animals. Golden likewise testified that Lewis was the admitted owner of the animals. Lewis herself repeatedly claimed the animals were hers on bodycam video footage played to the jury.
Despite this evidence, Lewis attempted at trial to direct custodial blame on Lapham for the animals at Lapham's ranch. On cross-examination, the defense questioned Lapham about the length of time the animals had been on her property and whether or not she was responsible for feeding the animals. Although there was some testimony to establish the neglect of the animals predated the days that some of the animals were on Lapham's property, the exact date the animals were brought to Lapham's property was unclear. It could have been days or weeks. Additionally, Lapham testified to feeding the animals during that period of time.
Lewis also sought to direct custodial blame on Rodriguez-who was deceased by the time of trial-but the evidence demonstrated that Rodriguez was assisting Lewis and the two were in a romantic relationship. In the bodycam footage, Rodriguez repeatedly referred to Lewis as "babe," and the two of them kissed when she was arrested. The jury also heard it was Rodriguez who tried to remove animals from Lewis and Lapham's properties. Lewis stated to police in no uncertain terms that she was the only person with a key to enter the property where the animals were kept, but Givens testified that he believed Lewis was always physically present when Rodriguez was present on the property based on prior investigations.
In short, the jury considered evidence indicating Lewis neglected the animals while they were in her custody. However, they also heard evidence (1) Lapham maintained custody of some of the animals on her property for a period of time and was responsible for feeding those animals and (2) Rodriguez shared responsibility with Lewis for caring for the animals on Lewis's property. The existence of conflicting evidence on a central defensive issue weighs in favor of finding some harm.
3. The parties' arguments
In closing, the State focused on Lewis's admissions regarding ownership of the animals and outlined their disappointment that Lewis attempted to "lay this on Annette Lapham." In her closing, Lewis painted Rodriguez and Lapham as the animals' custodians:
Now, these animals were not in the custody of Ms. Lewis. They were in Faustino Rodriguez's custody, and Lapham's. Ms. Lapham's custody. Now, I know that doesn't seem fair, but it's true. That is
the law. It's who had custody of those animals is responsible. First and foremost, custody has not been proven. The - she may have admitted ownership. May not have admitted it. But, once again, ownership doesn't matter. What we have here is a matter of custody.
Lewis's arguments downplayed evidence tending to show her ownership of the animals and distinguished the concepts of ownership from custody. Lewis's closing arguments demonstrate she viewed custody as essential to her defense. The omission of an element-thirty-six times-that Lewis relied on as her central defensive issue weighs in favor of finding some harm. 4. Other relevant information in the record
In a note to the court, the jury requested to review the bodycam video footage again during deliberations: "First video-Bodycam video-Officer Spence? It's the video with Mr. Rodriguez, the trailer, chickens, animals, and Ms. Lewis." In that video, Lewis's admissions include ownership of the animals, which is at least circumstantial evidence of custody. Rodriguez- identified by the jurors in their note-was seen throughout the video dealing with the animals; Lewis was not. That the jury sought to view this video-and only this video-underscores the importance of the video to their deliberations.
Weighing the relevant factors, we conclude there is at least some harm resulting from the jury charge error. We cannot say with certainty that the jury considered the custodial element when answering the application paragraphs, and the State therefore may have been held to a lesser burden of proof by relieving it of proving beyond a reasonable doubt that Lewis had custody of the animals. We accordingly sustain Lewis's first issue.
Statute of Limitations
In her second issue, Lewis asserts the trial court erred in allowing an amended information and complaint where the statute of limitations was expired at the time of refiling.
Applicable Law
One requisite of a sufficient information is "that the time mentioned be some date anterior to the filing of the information, and that the offense does not appear to be barred by limitation." Tex. Code. Crim. Proc. art. 21.21(6). Generally, statutes of limitations insulate individuals from criminal prosecution after the passage of an express period of time after the alleged crimes are committed. Proctor v. State, 967 S.W.2d 840, 843 (Tex. Crim. App. 1998).
Both cruelty to livestock animals and cruelty to non-livestock animals are subject to a two-year limitations period. Tex. Penal Code § 42.09(c) (cruelty to livestock Class A misdemeanor); Tex. Penal Code § 42.092(c) (cruelty to non-livestock Class A misdemeanor); Tex. Code Crim. Proc. art. 12.02 (two-year limitations for Class A misdemeanor).
However, the time during the pendency of an information is not computed in the limitations period. Tex. Code Crim. Proc. art. 12.05(b). As used in the tolling statute, "during the pendency" means the period of time beginning with the day the information is filed in a court of competent jurisdiction, and ending with the day such accusation is, by an order of a trial court having jurisdiction thereof, determined to be invalid for any reason. Id. art. 12.05(c). In other words, "[t]he statute of limitations is tolled for any time period in which the defendant was under indictment for 'the same conduct, same act, or same transaction.'" Ex parte Smith, 178 S.W.3d 797, 802 (Tex. Crim. App. 2005) (quoting Hernandez v. State, 127 S.W.3d 768, 769 (Tex. Crim. App. 2004)). "Thus, if the State's pleading includes a 'tolling paragraph,' 'explanatory averments,' or even 'innuendo allegations,' this suffices to show that the charged offense is not, at least on the face of the indictment, barred by limitations." Id. at 803. "A harm analysis under Rule of Appellate Procedure 44.2(b) is necessary when an indictment is defective due to the lack of a tolling provision." Mercier v. State, 322 S.W.3d 258, 264 (Tex. Crim. App. 2010).
Analysis
The underlying incident occurred on July 7, 2016. On May 15, 2019, Lewis filed a motion to quash the information in the original 2016 cause number. The motion to quash argued that the information lacked identification of the animals necessary for Lewis to prepare a defense. On August 21, 2019, the trial court granted the motion to quash, and on August 22, 2019, the State filed a new complaint and information under a new 2019 cause number. The new complaint and information identified each animal by letter and attached pictures, but it did not contain a tolling paragraph, explanatory averments, or innuendo allegations.
Given the two-year limitation period applicable here, Lewis asserts the statute of limitations expired on July 7, 2018. Lewis argues that the lack of tolling language in the August 22, 2019 information is fatal because it was filed after July 7, 2018.
The State counters that the original complaint and information was filed on December 1, 2016-within the two-year limitations period-and the second complaint and information was filed the day after the original complaint and information was quashed by the trial court. According to the State, Lewis mistakes the operation of art. 12.05 with the pleading standards of art. 21.21(6).
We agree with the State that Article 12.05 tolled the limitations period during the pendency of the information-here, from December 1, 2016 through August 21, 2019. Therefore, when the State filed a new information on August 22, 2019, the two-year limitations period had not expired. Although Lewis filed a motion to quash that generally alleged limitations had expired on July 7, 2018, that argument was facially incorrect because it failed to account for tolling. Nevertheless, the information was facially insufficient because it lacked a tolling paragraph, explanatory averments, or innuendo allegations. See Smith, 178 S.W.3d at 803. But importantly, had the trial court granted Lewis's motion to quash the information based on the lack of limitations language, the State could have yet amended the complaint and information to include a tolling paragraph because the limitations period still had not run.
On this record, we hold the erroneous exclusion of a tolling paragraph, explanatory averments, or innuendo allegations on the face of the information was harmless. Lewis's substantial rights were not affected by the State's failure to include a tolling paragraph and the trial court's failure to quash the information on that basis. At best, Lewis would have only achieved further delay of the trial if the information were quashed again in 2020-a result contrary to her speedy trial claim. Having found the error harmless, we overrule Lewis's second issue.
Speedy Trial
In her third issue, Lewis asserts the trial court erred in denying her request to dismiss the case for a failure to provide a speedy trial.
Applicable Law
"The Sixth Amendment to the United States Constitution, made applicable to the States through the Fourteenth Amendment, guarantees a speedy trial to an accused." Gonzales v. State, 435 S.W.3d 801, 808 (Tex. Crim. App. 2014). The Supreme Court has listed four factors that courts should consider in addressing speedy-trial claims: (1) the length of delay; (2) the reason for the delay; (3) the defendant's assertion of his right; and (4) prejudice to the defendant. Barker v. Wingo, 407 U.S. 514, 530 (1972). "If the defendant can make a threshold showing that the interval between accusation and trial is 'presumptively prejudicial,' then a court must consider each of the remaining Barker factors and weigh them." Balderas v. State, 517 S.W.3d 756, 767 (Tex. Crim. App. 2016). "When reviewing the trial court's application of the Barker test, we give almost total deference to the trial court's historical findings of fact that the record supports, and we draw reasonable inferences from those facts necessary to support the trial court's findings." Id. at 767- 68. "A reviewing court should not consider in its deliberations record evidence that was not before the trial court when it made its ruling." Id. at 768. "Review of the individual Barker factors necessarily involves fact determinations and legal conclusions, but the balancing test as a whole is a purely legal question that we review de novo." Id.
Analysis
On February 10, 2020, Lewis filed a "Motion to Dismiss for Failure to Provide a Speedy Trial." The perfunctory motion is one page in length and does not discuss how the general law applicable to speedy trial claims applies in this case. At a pretrial hearing, Lewis testified that she had shown up for a jury trial prior to the trial court quashing the information in the original 2016 proceeding. Although the record is unclear when the original trial commenced, the record reflects a mistrial was granted at Lewis's request. The record also demonstrates Lewis requested a hearing on her motion to dismiss for lack of speedy trial, but the trial court both denied the request for a hearing and the motion on the merits.
Assuming without deciding Lewis met the threshold requirement to show presumptive prejudice from the delay of the trial, we nevertheless hold Lewis failed to preserve the speedy trial issue because she did not develop a sufficient record on which this court can perform a Barker analysis. See Henson v. State, 407 S.W.3d 764, 769 (Tex. Crim. App. 2013) ("Further, a requirement of preservation allows the trial court to develop the record sufficiently for a Barker analysis. At least two of the Barker factors (the reason for delay and the prejudice to the accused) are fact-specific inquiries and may not be readily apparent from the trial record."); cf. Newcomb v. State, 547 S.W.2d 37, 38 (Tex. Crim. App. 1977) (noting difficulty inherent in considering speedy trial complaint on incomplete record because Barker test by its nature "requires a full development of the facts").
Although Lewis filed a perfunctory motion to dismiss for lack of a speedy trial, Lewis made no argument specific to this case and attached no evidentiary support to the motion. And although Lewis sought a hearing on the motion, she made no additional efforts either in pretrial proceedings or at trial to develop a record on which this court could perform a Barker analysis. See Henson, 407 S.W.3d at 769; see also State v. Segura, No. 04-21-00492-CR, 2022 WL 2820941, at *3 (Tex. App.-San Antonio July 20, 2022, no pet.) ("In an unpublished opinion, our sister court in Fort Worth described as a 'tenet' that 'a speedy-trial violation may not be found in the absence of a meaningful hearing' . . . [T]he applicable balancing test 'requires a full development of the facts,' which did not occur here.") (mem. op., not designated for publication) (quoting State v. Bryan, No. 02-14-00208-CR, 2015 WL 1284969, at *3 (Tex. App.-Fort Worth Mar. 19, 2015, no pet.) (mem. op., not designated for publication)). We overrule Lewis's third issue.
Conclusion
Having sustained Lewis's assertion of jury charge error, we reverse the judgment of the trial court, and we remand the cause for a new trial.