Comment

In 2007, the legislature separated cruelty to livestock animals from cruelty to other animals by limiting section 42.09 of the Texas Penal Code to situations involving livestock animals and creating section 42.092 covering nonlivestock animals. Acts 2007, 80th Leg., R.S., ch. 886, § 2 (H.B. 2328), eff. Sept. 1, 2007. The two crimes have some similarities. Recklessness, however, is sufficient for liability under section 42.092 but not under section 42.09.

A charging instrument alleging that the offense was committed recklessly is subject to the requirement of article 21.15 that it specify the acts constituting recklessness. Tex. Code Crim. Proc. art. 21.15; see Thomas v. State, 352 S.W.3d 95, 103 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d); State v. Vasquez, 34 S.W.3d 332, 334 (Tex. App.—San Antonio 2000, no pet.).

Applying Culpable Mental State Requirement. Providing definitions of the required culpable mental states is difficult. Section 42.092(b) provides that the offense can be committed in nine distinguishable ways. Some of those ways focus on the “result-of-conduct” causing of a result-causing the death of, serious bodily injury to, or bodily injury to a covered animal. See Tex. Penal Code § 42.092(b)(1), (b)(2), (b)(6). Other provisions, in contrast, seem to define the offense in terms of the “nature-of-conduct.” The offense can be committed by abandoning or transporting an animal under certain circumstances. Some are more difficult to define, such as torturing or administering poison to an animal.

Section 6.03(c) defines “reckless” and restricts its application to result-of-conduct offenses and to the circumstances surrounding the conduct. It contains no language permitting it to be applied to nature-of-conduct elements. See Price v. State, 457 S.W.3d 437, 442–43 (Tex. Crim. App. 2015) (considering recklessness in context of third-degree family-violence assault). This might mean that the legislature intended section 42.092 to be construed so that recklessness does not apply if the state proceeds on one of those statutory alternatives that involve a nature-of-conduct element. In those situations, the legislature must have meant that the courts should require proof that the accused acted intentionally or knowingly and should prohibit convictions for reckless behavior. But see Price, 457 S.W.3d at 444–45 (Yeary, J., concurring). Further discussion relevant to individual charges can be found in the comments to those instructions.

Statutory “Exception.” Section 42.092(f) contains an exception to the application of the statutory section. Under section 2.02, this must be negated in the charging instrument and—like an element of the offense—submitted to the jury whether or not the evidence raises an issue as to whether or not it has been proved inapplicable. Tex. Penal Code § 2.02; Baumgart v. State, 512 S.W.3d 335, 338–39 (Tex. Crim. App. 2017); LaBelle v. State, 692 S.W.2d 102, 105 (Tex. Crim. App. 1985).

Defenses Created by Section 42.092. Section 42.092 itself provides for a number of defenses. See Tex. Penal Code § 2.03. If evidence is submitted supporting a defense, refer to CPJCs 42.42 and 42.43 for sample instructions.

Under section 42.092(d)(1), it is a defense that the defendant was in fear of harm from a dangerous wild animal as defined in Tex. Health & Safety Code § 822.101. That section defines “dangerous wild animal” as any one of nineteen enumerated wild animals or their hybrids. The offense penalizes cruelty, however, to any “wild living creature” only if it was previously captured. Tex. Penal Code § 42.092(a)(2). Although the defense is theoretically available for a dangerous wild animal that has never been previously captured (as with a coyote, for instance), the offense itself does not apply to cruelty against still-in-the-wild animals. Other statutory defenses may still apply for situations involving wild creatures not on the “dangerous” list. See Chase v. State, 448 S.W.3d 6, 13–14 (Tex. Crim. App. 2014).

Under section 42.092(d)(2), it is a defense that the accused was engaged “in bona fide experimentation for scientific research.”

A section 42.092(e) defense applies only to offenses under sections 42.092(b)(2) and (b)(6) (killing, poisoning, or causing serious bodily injury or bodily injury to the animal of another). Subsection (e)(1) addresses action against an animal believed to have done damage to animals or crops. Subsection (e)(2) gives a defense to public servants or a person associated with electricity generation or transmission or natural gas delivery, and only when acting within the scope of their employment.

Defense Created by Health and Safety Code. According to section 822.013(a) of the Health and Safety Code, “a dog or coyote that is attacking, is about to attack, or has recently attacked livestock, domestic animals, or fowls may be killed by (1) any person witnessing the attack; or (2) the attacked animal’s owner or a person acting on behalf of the owner if the owner or person has knowledge of the attack.” The court of criminal appeals has held that this language creates a defense under section 42.092(b)(6) (causing bodily injury to the animal). Chase, 448 S.W.3d at 28. This defense is probably applicable in prosecutions under other result-of-conduct versions of this offense that result in death or serious bodily injury to the animal. See CPJC 42.44 for a sample instruction.

Deadly Weapon. A deadly-weapon instruction generally may not be included in animal cruelty cases. Prichard v. State, 533 S.W.3d 315, 330–31 (Tex. Crim. App. 2017). Some courts of appeals have held the Prichard rule not to be absolute. See Scales v. State, 601 S.W.3d 380, 384–87 (Tex. App.—Amarillo 2020, no pet.); Galindo v. State, 564 S.W.3d 223, 227 (Tex. App.—Houston [1st Dist.] 2018, no pet.). Rather, according to those courts, if a weapon is used against a person while committing or in flight from the commission of animal cruelty, then a deadly-weapon instruction could be appropriate in the animal-cruelty charge. In such cases, “a proper jury instruction would have advised the jury that a deadly-weapon finding could only be made if the jury were to determine beyond a reasonable doubt that a deadly weapon was used or exhibited by the defendant against a human being during the course of the commission of the underlying offense or during the immediate flight following the commission of that offense.” Scales, 601 S.W.3d at 387.