No. 05-09-01433-CR
Opinion issued March 15, 2011. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the 401st Judicial District Court, Collin County, Texas, Trial Court Cause No. 401-81128-09.
Before Chief Justice WRIGHT and Justices FRANCIS and MYERS.
Opinion By Chief Justice WRIGHT.
Alicia Marie Martin waived a jury and pleaded not guilty to the offense of cruelty to animals. After finding appellant guilty, the trial court assessed punishment at two years' confinement in state jail, probated for three years, and a $500 fine. In a single issue, appellant contends the evidence is legally insufficient to support her conviction because there is a fatal variance between the manner and means of committing the offense alleged in the indictment and the proof at trial. We affirm.
Applicable Law
In reviewing a challenge to the sufficiency of the evidence, we examine all the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010) (plurality op.). We are required to defer to the jury's credibility and weight determinations because the jury is the sole judge of the witnesses' credibility and the weight to be given their testimony. See Jackson, 443 U.S. at 326 ("a court faced with a record of historical facts that supports conflicting inferences must presume-even if it does not affirmatively appear in the record-that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution"). A variance occurs when there is a discrepancy between the allegations in the charging instrument and the proof at trial. Gollihar v. State, 46 S.W.3d 243, 246 (Tex. Crim. App. 2001); see also Cada v. State, No. PD-0754-10, 2011 WL 409002, at *4 (Tex. Crim. App. Feb. 9, 2011) (discussing appealability of Gollihar). A variance between the wording of an indictment and the evidence presented at trial is fatal only if it is material and prejudices a defendant's substantial rights. Id. at 257; see also Fuller v. State, 73 S.W.3d 250, 253 (Tex. Crim. App. 2002). A variance will be construed to be a "material" variance when the variance deprives the appellant of notice of the charges or when the variance subjects the appellant to the risk of later being prosecuted for the same offense. Fuller, 73 S.W.3d at 253, Gollihar, 46 S.W.3d at 257. In determining whether the variance at issue in the matter before us is material, we are directed to consider the substantive elements of the criminal offense as defined by state law. Fuller, 73 S.W.3d at 252-53. The elements of an offense are defined as the forbidden conduct with the required culpability. Tex. Penal Code Ann. § 1.07(a)(22)(A) (B) (West Supp. 2010). Where an indictment contains alternative theories of committing the offense, and the alternate means of committing the offense are submitted to the fact finder, the evidence is sufficient to support a guilty verdict if the evidence is sufficient to prove any one of those alleged means. See Cada, 2011 WL 409002 at *4. Evidence Presented
On March 18, 2009, a five-month-old puppy named Bruce was found dead inside a small, wire crate in appellant's flooded apartment. Dr. Robert Means, a veterinarian, performed a postmortem examination on Bruce. Means testified he determined starvation was the cause of Bruce's death. Means tested Bruce for parvo, which is a virus that causes vomiting, diarrhea, and acute death in puppies. The test was negative. The examination revealed there was no food or any kind of nourishment ingested in Bruce's stomach or intestines. Bruce's pancreas was inflamed, indicating that when he was starving, his body started digesting itself to try to provide nutrition. Bruce was emaciated and had open bed sores. Means found no disease in Bruce that would contribute to Bruce not wanting to eat food on his own. Means testified it would take a normal, average puppy at least "a couple of weeks" to starve to death, and the bed sores found on Bruce's body were consistent with being inside a flooded crate. Bonnie Goodin, an animal control officer for the City of Plano, testified she was notified by the apartment complex manager that there was a deceased dog inside appellant's apartment. Goodin and Plano police officer Mary Jung went to the apartment. From outside, they smelled a strong odor of feces and waterlogged carpeting. They walked onto the apartment's patio and found a blanket covered in feces with maggots on it. Inside the apartment, Goodin found Bruce in a small, wire crate that was in the laundry room. The area in and around the room was covered in water; there were water-soaked blankets on top of the carpet; and there was standing water inside the crate. Goodin testified there were feces inside the crate and food soaked in the water, "so it wasn't like edible food." Rawhide treats inside the crate had also been soaked in the water. Bruce was "extremely skinny" and in rigor mortis. When she looked elsewhere in the apartment, Goodin saw food that had been left in the kitchen on the stove that had mold on it, and the apartment did not appear to have anyone living in it. Goodin transported Bruce's body to the animal shelter where a veterinarian performed a postmortem examination. Goodin testified that one week later, she was at the same complex to pick up a stray kitten someone had found. While there, she saw appellant standing on the patio of the apartment where she had found Bruce. When Goodin stopped her vehicle in front of the building, appellant and another person immediately went inside the apartment and closed the blinds. No one answered the door when Goodin knocked on it. Jung testified she first looked around outside the apartment and found blankets on the patio with urine, feces, and maggots on them. Inside the apartment, she found a deceased dog in a room that had flooded. There were soaked towels in a hallway and "pots of food" on the stove with a "thick layer of mold on them, indicating the food had been sitting there for quite a while." Jung called a crime scene officer to take photographs of Bruce and of the apartment. The photographs were admitted into evidence. Jung testified that after Goodin removed the deceased dog, Jung tried to contact appellant and appellant's mother. No one answered the telephone or returned Jung's messages. One week later, Goodin called Jung and said she saw appellant on the patio at the apartment. Jung went to appellant's apartment, knocked on the door, and yelled that she needed to talk with appellant, but no one answered the door. On another occasion, Jung saw appellant and several other people standing outside on the patio. When Jung drove up, everyone ran inside appellant's apartment, and no one answered the door. Plano detective Kristy Simon testified she interviewed appellant on April 13, 2009. Appellant was again living at the apartment where Bruce was found deceased. During the interview, appellant said the electricity had been turned off in her apartment prior to Bruce's death, and she moved into the Red Roof Inn for about four days. Appellant said she got Bruce from the county shelter, and she took him to a veterinarian to be neutered, but she did not take him to a veterinarian when he started losing his appetite and weight. Appellant said she called a veterinarian about Bruce's weight issue, and she also called a second veterinarian about Bruce's ankles turning inward. Appellant, who worked at the Society of Prevention of Cruelty to Animals (SPCA) Clinic, said she gave Bruce a de-wormer and did "fecal tests" to check for parvo, but she could not afford to take him to a veterinarian. Appellant said she did not take Bruce to the clinic where she worked because she was "too embarrassed" by his skinny condition and did not want her coworkers to think she could not take care of her own dog. Appellant said she believed Bruce died from parvo. Appellant said she knew the laundry area of her apartment had flooded, so she placed a "fluffy blanket" under Bruce's crate to raise it up out of the water. Appellant said she came back every evening to feed Bruce. Simon testified she did not believe appellant was being truthful during the interview. The Red Roof Inn had no record of appellant staying there at anytime during the month of March. Simon learned that appellant was actually living with her mother in March, and that the electricity in appellant's apartment had been turned off on March 5, 2009 and reconnected on April 6, 2009. Simon testified that when she talked with a supervisor at the SPCA, the supervisor said all employees know they get a fifty-percent discount on veterinarian services, and that they would also be allowed to "go on a payment plan" if needed. A video recording of appellant's interview and appellant's written statement were admitted into evidence. Rifkin Gable, the manager of the SPCA Clinic, testified she has known appellant for four years and knew appellant had adopted a German shepherd mix puppy. She said SPCA employees know they get a fifty-percent discount for medical care for their animals, and they can pay any bill over time. Gable testified that a few days before a police detective contacted her, appellant told Gable that Bruce was living with appellant's aunt. Gable knew the electricity in appellant's apartment had been turned off and that there was a water leak flooding the apartment. Gable also knew appellant first went to a hotel, then to her mother's house. Gable did not know appellant left Bruce in the flooded apartment. Gable testified appellant stopped working at the SPCA in April, after they learned she was being investigated for cruelty to animals. Dr. Michelle Rodgers, a veterinarian who works in the SPCA Clinic, testified appellant asked her questions about dogs and various issues, but appellant never specifically discussed Bruce. Rodgers recalled appellant asking what she would do with a dog who was losing weight and had diarrhea. Rodgers did not know Bruce was sick. Appellant never asked her to look at Bruce. Appellant told Rodgers that she had done "repeated fecals" and a parvo test on Bruce, and they all were negative. Rodgers said bed sores in an animal are formed when the animal is unable to move or switch positions for an extended period of time and the bones press against thinner areas of skin. The skin gets irritated and erodes away, leaving sores or ulcers. Appellant testified she would never intentionally or knowingly let a dog die in her care. Appellant adopted Bruce in December 2008, right before Christmas. Bruce was a healthy, playful puppy at first. He slowly changed. A few weeks before his death, appellant noticed he was a little thinner, but he was still active and eating food. When Bruce stopped eating as much, appellant changed to a puppy food that was higher in protein on the advice of Dr. Rodgers. Bruce continued not eating and losing weight. Appellant testified she could not afford to take Bruce to a veterinarian, and she felt she had enough experience with animals to handle the situation on her own. The electricity in her apartment was cut off for nonpayment, so she and her three-year-old daughter had to go live someplace else. Appellant testified she was gone from the apartment for "no longer than a week or about four or five days." She went to the Red Roof Inn with her ex-boyfriend, who helped her to pay cash for the room. She did not take Bruce with her because she did not believe the hotel allowed dogs. Appellant said she went back to the apartment every evening, checked on Bruce, let him outside to use the bathroom, and gave him food and water. Appellant said Bruce was always playful when she let him out of the crate. Appellant said she knew there was a "wet spot" in the apartment, but denied that it had flooded. She put blankets under Bruce's crate in case the leak got worse. Appellant said she went to check on Bruce the night before he was found dead. At that time, she did not know Bruce's crate sat in standing water because the apartment was dark. During cross-examination, appellant testified the last time she saw Bruce alive was the night of March 16th. She took Bruce out on the patio area to use the bathroom. Because the electricity was off, she did not see any bedsores on Bruce. Appellant said that after looking at the photographs taken by the police, she saw that Bruce's food bowl was turned upside down and there was no water bowl inside the crate. At that point, appellant admitted that when she let Bruce out of his crate each evening, she would let him drink water, but she did not put a water bowl inside the crate when she put him up for the night. Appellant said that about three days before Bruce died, she noticed the water leak. Appellant said she was not being truthful with the detective when she said her apartment had flooded two weeks before Bruce died. She noticed Bruce was not eating as much as he should about two weeks before he died. Appellant said she never asked the Red Roof Inn if they allowed pets, and she never asked her mother if she could keep Bruce. Appellant did not ask anyone with whom she worked if they could keep Bruce because she was "too embarrassed," and she thought she might lose her job at the clinic if they found out a dog in her care had died. Discussion
Appellant contends the evidence is legally insufficient due to a fatal variance between the manner and means pleaded in the indictment and the proof presented at trial. Appellant argues that the indictment alleged she killed a dog in a cruel manner by "failing to provide food and water for the dog," but the evidence presented showed food and water were available for the dog. Appellant asserts that because the variance between the allegation made in the indictment and the proof presented at trial was material, the evidence is insufficient to support her conviction. In this case, the elements of the offense are that appellant intentionally, knowingly or recklessly, in a cruel manner, killed an animal or failed unreasonably to provide necessary food, water, care, or shelter for an animal in appellant's custody. Tex. Penal Code Ann. § 42.092(b)(1), (3). Therefore, proof that appellant knowingly, intentionally, or recklessly killed or failed to provide food, water, care, or shelter to an animal is sufficient proof to meet the legal sufficiency standard. The evidence showed that appellant left Bruce alone inside an abandoned apartment. Bruce's crate was filled with standing water, feces, and water-soaked bits of food. Although appellant said she left a food bowl inside Bruce's crate each night, she admitted she did not leave water in the crate, and admitted the food bowl was turned upside down and the pieces of food were water-soaked. The evidence showed that Bruce was found deceased, emaciated, and with bed sores over his body. Means testified Bruce died from starvation. Although appellant said she left Bruce alone in the darkened apartment for only four or five days, Means stated it would take a healthy puppy about two weeks to die from starvation. We conclude there was no variance between the allegations in the indictment and the proof at trial. See Cada, 2011 WL 409002 at *4; Gollihar, 46 S.W.3d at 257. The culpable conduct was alleged in a manner to give appellant notice of the crime she was called upon to defend: killing a dog in a cruel manner by failing to provide necessary food and water. See Fuller, 73 S.W.3d at 253, Gollihar, 46 S.W.3d at 257. Viewing the evidence under the proper standard, we conclude a rational trier of fact could find beyond a reasonable doubt that appellant intentionally, knowingly, or recklessly killed an animal in a cruel manner. Thus, we conclude the evidence is sufficient to support the conviction. See Brooks, 323 S.W.3d at 895. We resolve appellant's sole issue against her. We affirm the trial court's judgment.