We do not have to prove that someone is not authorized to possess a controlled substance under such statutes as 481.112(a) of the Health & Safety Code. But the State has the burden of disproving authority under 822.033 of the Health & Safety Code when prosecuting for the killing of a dog under 42.09(a)(5), PC. Volosen This case involves one cruel veterinarian, in my opinion. But, the law does seem designed to protect chickens against playful dogs. Would not a statute which says "without A or B" normally be interpreted to mean the State could prove either A or B was missing, rather than being required to prove both? Is not the burden of proving lawful authority a defensive issue despite the poor phrasing of 42.09?

I have to doubt that the Court of Criminal Appeals would grant PDR, but I hope this one gets appealed!

Janette Ansolabehere

Pet granted 9/13/06

The Governor has just signed a bill, HB 2328, that will overrule Volosen for offenses to non-livestock animals -- by deleting the phrase "without legal authority" relied upon by Volosen.

HB 2328
http://www.capitol.state.tx.us/tlodocs/80R/billtext/pdf/HB02328F.pdf

reversed

http://www.cca.courts.state.tx.us/OPINIONS/HTMLOPINIONINFO.ASP?OPINIONID=15577

The answer is, yes, it is a defensive issue which must be proved by the defendant. Thank goodness!

It begins again. The FW Court now holds that the plain language of "in the act of . . . injuring" includes chasing. I would have thought that the "act of injuring" was the act wherein injury took place -- not the mere (alleged) attempt to injure.

http://www.2ndcoa.courts.state.tx.us/opinions/htmlopinion.asp?OpinionId=18999

I can understand the argument that chasing the chickens can be considering being "in the act of injuring" them. But I think a reasonable fact-finder could also conclude that the dog was just being playful or that it was returning to its owner and no longer in the act. In that case, it would seem to be the jury's perogative to make a decision based on the described conduct and past actions of the dog whether it was actually in the act of injuring the chickens. Not a sufficiency question, IMO.

Ginger was supposed to know she was signing her death warrant upon entry into the pen. She was also plainly shown to be a repeat offender. I have changed my mind, except that the means of execution still seems cruel and unusual, though very prompt. That Ginger is presumed guilty is also a little troublesome. Actually, I guess Justice Walker is saying she was shown to be guilty as a matter of law. Ah, the backyard justice system at work.

Bird watcher says he thought he killed feral cat
Lawyer tells jury in animal cruelty trial that naturalist believed shooting animal was legal

By HARVEY RICE
Copyright 2007 Houston Chronicle

GALVESTON � A prominent naturalist would not have killed a stray cat had he known that it was being fed and cared for by a toll-booth worker on the San Luis Pass Bridge, his attorney said Tuesday.

Jim Stevenson, 54, a well-known bird watcher and founder of the Galveston Ornithological Society, told the grand jury that indicted him on animal cruelty charges that he sincerely believed he was killing a feral cat that was preying on endangered species of birds, defense attorney Tad Nelson said.

"If I had known this man owned it, I would never have killed it," Stevenson told the grand jury, according to Nelson.

Explaining to jurors what he intended to prove during the trial before Galveston County District Judge Frank Carmona, Nelson said that Stevenson researched the law and determined that killing the cat was legal.

Carmona, responding to an objection from Assistant Galveston District Attorney Paige Santell, told the jury that a mistake about the law was no defense, only a mistake about the facts.

Santell told the four men and eight women on the jury that the evidence would show that the cat was a pet being fed and cared for by toll-bridge employee John Newland. The cat, called "Mama Cat," was one of several strays that Newland had taken under his wing.

"The evidence is going to show that this is not a feral cat, it was somebody's domesticated cat that got love," Santell said.

She said Stevenson made no effort to report to authorities that endangered species of birds were being threatened by the cat he killed Nov. 8, 2006, with a .22-caliber rifle.

The bullet severed the cat's spine, causing a lingering, painful death, she said.

Galveston police officer John Bertolino, the prosecution's first witness, identified photos showing bedding, toys hanging from string and trays of food that Newland had placed under the bridge for the cats.

Bertolino resisted Nelson's efforts on cross-examination to get him to say that Stevenson could not have seen the trays of food from where he fired his shot and therefore was not aware that the cat was being cared for by Newland.

The officer testified that Newland chased Stevenson's white van after hearing the shot and that the two collided at one point, each blaming the collision on the other.

A .22-caliber, scoped rifle with seven hollow point bullets in the magazine was confiscated from Stevenson's van, which had Galveston Ornithological Society emblazoned on the side with a phone number, Bertolino said.

Bertolino said Newland was visibly affected by the cat's death. "He was very upset; he was crying, actually," Bertolino said.

The cat died while Bertolino was driving it to the Animal Shelter & Adoption Center of Galveston Island Inc. at the other end of Galveston Island, he said. "It was very evident it was in great pain," Bertolino testified.

Stevenson is free on $10,000 bond. If convicted, he faces a sentence of six months to two years in prison and a $10,000 fine.

quote:

---

The cat died while Bertolino was driving it to the Animal Shelter & Adoption Center of Galveston Island Inc. at the other end of Galveston Island, he said.

---

Oh brilliant. He drove the cat to the animal shelter after shooting it! Why not just capture the cat and take it to the shelter, or inform animal control so they can do it? No sympathy for this guy.

Bertolino was the officer; Stevenson is the defendant.

Ah, missed that. Well, the main point still stands -- the defendant had a multitude of options other than killing the cat, whether it had an owner or not.

This is a cat, not a dog. What's all the fuss about?

JAS

Oh go back to your llamas, John!

Apparently, JAS had some friends on the jury:

Mistrial declared in Galveston cat-killing case

By HARVEY RICE
Copyright 2007 Houston Chronicle

GALVESTON � After 8 1/2 hours of deliberation over two days, jurors today said they were hopelessly deadlocked in the trial of well-known bird watcher Jim Stevenson on animal cruelty charges for the killing of a feral cat.

Galveston County District Judge Frank Carmona declared a mistrial after the four men and eight women on the jury sent out a note saying they could not change their votes without violating their consciences.

Eight jurors voted to convict and four held out for acquittal in an at times heated atmosphere, according to juror Donald Cook, 42, a network administrator from League City.

Stevenson, 54, the founder of the Galveston Ornithological Society, said the divide among jurors was similar to the divide between cat and bird fanciers on feral cats who prey on birds.

"I think it reflects the attitude of America on the cat issue," he said."People need to come together and work out a solution."

No retrial planned in Galveston animal cruelty case

By HARVEY RICE
Copyright 2007 Houston Chronicle


GALVESTON Well-known bird watcher Jim Stevenson will not be retried on animal cruelty charges for killing a feral cat after the jury failed Friday to reach a verdict, Galveston County District Attorney Kurt Sistrunk said.

After being notified of the decision, Stevenson said: "I think it's a real positive step from the DA's office because it shows they are making some progress in bringing bird and cat lovers together and will save a lot of money."