Facts:

Man takes in stray female dog b/c the dog is about to have a litter of puppies. Dog has litter of pups. After 8 weeks, man sells all puppies. Mama dog is later found in Defendant's yard with her head cut off and gutted. Defendant does not dispute that he killed the mama dog.

Law enforcment cannot locate any owner of the killed dog (prior to it being a stray and being taken in by the Defendant).

No autopsy performed on the dog to determine the cause of death.

Do I have a charge of cruelty to animals if I can't prove who the "another" is that the dog belonged to?

sounds like the dog was tortured -- which a SJF under 42.09(a)(1) regardless of issues of ownership. What does the guy say about how he killed the dog?

Just admitted that he killed it. Did not state how or why. The body was found in the back yard gutted. The head was found in the front yard with a large ceremonial sword stuck through it into the ground.

We have debated the torture angle in our office, but have no proof of whether the dog was quickly beheaded by the large sword or was gutted and then beheaded.

Torture is a fact issue for the jury. Given these facts, I think a rational jury can put two and two together. I would charge it and prosecute it. You might also want to check out whether this guy has kids. There is a very high correlation between cruelty to animals and child abuse. CPS might be interested.

I would be arguing that any kind of beheading, quick or slow, is torturous. And I think any juror who has watched the nightly news in the last couple of years would agree.

Add a deadly weapon as well. We have done that here in dallas

The facts suggest a perfect jury case. The defendant's complete lack of compassion is amply demonstrated by his mercenary reason for temporarily housing the abandoned bitch. The wholly unnecesary gutting also indicates a high degree of callousness--as does leaving the sword buried in the skull as in some gaudy display of medieval triumph. In fact, only a picture of evil pleasure is conjured up.

I think the beheading more problematic. Some might consider that an expeditous, if shockingly brutal, method of killing. (Recall the Fort Worth doctor who dispatched his field of ratites with a baseball bat. And, who said licensed slaughter-house killings weren't violent and gross?) I suspect the more rural your panel, the greater advocate you will have to be. Also, an absence of evidence he performed the gutting before death makes your job that much harder. Despite these issues, the overall picture is one of pleasure taken in using and abusing those less fortunate. The facts stink of base cruelty. Let the jury decide. Good luck

You may wan to look at State V Kingsbury 129 S.W.3d 202 and see if it makes any difference. The CA held that, where the State tried to prosecute a failure to provide adequate food and water under (a)(2) as torture under (a) (1) (in an effort to make the misdemeanor facts a felony) improper. You might get around this since both of your charges are felonies.

I recently had a defendant starve 24 horses to death. Failure to provide adequate food and water gets they guy 24 Class As. Killing the animals does not fit because horses are excluded from Sec (a)(5) and, because of Kingsbury, I can't use (a)(1) torture to make a felony. However, if he had just "tripped" the horses, I would have had my felony. Lucky for him, he only starved them to death

As someone who grew up in a rural area and was involved in farming and raising animals (including assisting bulls to become steers), I do not think that you would have a problem trying this case to a rural panel, because there is absolutely no reason that someone would need to behead a dog, gut it, and leave its head impaled on a ceremonial sword. People who are familiar with animal husbandry should know that, and I think every fact should offend their sensibilities. If your defendant had merely shot the dog in the head, you might have a problem.

I gotta agree. If anything, I think rural people are probably more accustomed to owning a caring for animals, both as pets as well as for profit. The facts here would violate just about anyones sense of decency.
Out of curiosity, did the def. give any reason as to why the dog was gutted? Going to that much effort for no reason seems to just drive the nail a little deeper.

Your concern is well-founded. The statute does not prohibit killing a dog that does not belong to another, as long as the killing is not carried out in a cruel manner prohibited by the statute.

It is not animal cruelty to mutilate a carcass. So you have to prove the dog either belonged to another or was tortured while it was still alive.

Without a dog autopsy or some other expert testimony, I don't know how to do that.

From a legal standpoint, I would simply be concerned about proving the cause of death. You have horrible facts and the impaling with the sword is just insult compounding injury, good luck in your prosecution. I lost a cruelty case I second chaired because the defense was the dog was allegedly attacking or threatening to attack children and was running loose. Jeez, that dog's name was "fluffy" and poor thing was all of 10 pounds. We were able to show cause of death (pellet through the heart) and during the investigation defendant said he was tired of dog using his high dollar home yard as a restroom and tearing up his garden. At trial, defense testimony showed poor fluffy became a terroristic pooch...yeah.

Two bills would have solved the ownership problem last session: HB326 and SB172. They died quietly after committee hearings last session. No suspect has been charged.

Yes, John, they would have solved this problem. And they would have done more. That's what led to its demise.

The language in this bill will be making a comeback next session, so I'd be interested in hearing other comments on the bill as a whole, esp. the additions of recklessness, SBI, and BI.

SB 172 (as introduced)

(oh, and before you get excited about the exception being changed to a defense -- that part won't be in the next bill)

even without autopsy on dog, can you tell if one clean swipe took off the head - would have to be a very sharp blade and fast/hard blow to get through on one try. If more than one blow, or any sawing action, then I would say that adds tremendously to torture argument.

SB 172 concerned me and others at my agency because of its potential to allow felony prosecution of a hunter who commits a minor violation of the hunting laws.

A wild animal does not belong to an individual until the animal has been lawfully reduced to possession. So a hunter who kills or wounds an animal illegally, say without a hunting license, or after the hunter has already killed the daily bag limit allowed by law, has killed an animal that does belong to him, without legal authority. The hunting defense does not apply because the hunter was not lawful. The game violations are Class C offenses, but arguably, the hunter has also violated the animal cruelty law, to the tune of a state jail felony.

Shannon, I thought a more toned-down version of this was heard in committee . . . reckless b/i is a pretty low threshold for an offense, granted. What about changing the exception to a "does not apply"?

There were other versions being floated, John, but none were ever accepted as a substitute, so there's no link to them. Since I don't know what version we'll see out of the gates next session, I'm still interested in hearing concerns about the language (reckless, sbi, bi) in the bill as introduced.

Or do prosecutors want to handle reckless bodily injury to an animal crimes?

(p.s. - trust me, you're wasting your time on the exception!)

OK, that last inquiry fell on deaf ears. Let's try another tack.

Here's an interesting and timely article.

Would current Texas law apply?
Should it?
______________________

Office had bird's-eye view to kill: Workers say window washer slayed gull with vengeance

Boston Herald
Tuesday, June 13, 2006

Bird-bashing window washer Christopher Guay - arrested after killing a sea gull - had his goose cooked by his boss yesterday as eagle-eyed witnesses from a nearby office building pecked away at his self-defense claim.

Guay, 40, was canned by his employer after news of his battle with the bird took flight. "They said there was too much bad publicity," he said. "I'm out looking for another job right now."

Guay was arrested by an MSPCA officer and has been charged with animal cruelty, a felony. The owner of Cliffhangers Inc., Guay's employer, could not be reached for comment.

The window washer says he has numerous pet birds and loves them. But some Hub office workers say they watched in horror as he cold-heartedly delivered a fatal blow to the gull - then saw them watching and promptly flipped them the bird.

Sarah, a witness who spoke on condition that her last name not be used, works in a cubicle overlooking the Devonshire Street rooftop where the sea gulls built their nest as she and her co-workers kept a daily vigil at the window.

She called Guay's self-defense claim �absolute crap."

"He deliberately walked over to the nest and began to beat them," said Sarah. "He was batting at them, swinging and missing quite a bit. When he swung, he completely hit her and she flew. It was not a nice, gentle, get-out-of-the-way swing."

For six weeks, she said, she and other employees watched as the pair of sea gulls built a nest for their family. Two of their eggs hatched Thursday, and the workers hung out a "congratulations" sign and another urging window washers to be careful of the gull babies.

Guay told the Herald he fended off three birds all day Friday while washing windows. He said he didn't mean to kill the bird and said he used a broom stick. Sarah said the gulls had swooped down toward the window washers Friday only when they came near their nest. Guay went after them with a three-foot-long pipe, she said.

"My whole floor, as every other floor from my company, was banging on the glass and screaming," Sarah said. "He started batting at them up in the sky intentionally and then beat the mother bird down totally dead to the ground."

"It was horrifying," she said. "We were screaming, crying and banging on the window." She said Guay dropped the pipe, noticed the pleading employees and then "flipped us off, grabbed his crotch at us and started shaking himself and flipping us off."

Meanwhile, the MSPCA - which has refused comment on the story from the outset - reported yesterday it has been flooded with angry calls it blamed on "unbalanced media reports." The animal welfare agency declined to elaborate due to pending legal proceedings, but said, "suffice to say that if the MSPCA had found the defendant�s self-defense story credible, it would have chosen a different course of action."

Theoretically, he may have committed a state jail felony by torturing a bird. This is the only part of the statute that might fit these facts.

I can't believe any jury (except one made up of the witnesses) would tag someone with a felony conviction for killing a flying rat or 3. He should be cited for killing a protected bird (Class C) and that's that.