Chapter 42
Disorderly Conduct and Related Offenses
42.39 Instruction—Felony Cruelty to Nonlivestock Animal—Torturing an Animal
LAW SPECIFIC TO THIS CASE
The state accuses the defendant of having committed the offense of cruelty to nonlivestock animals.
Relevant Statutes
A person commits the offense of cruelty to nonlivestock animals if the person intentionally, knowingly, or recklessly tortures an animal.
Conduct coming within the definition of this offense is not a crime if the conduct constituting the offense is either—
- a generally accepted and otherwise lawful form of conduct
occurring solely for the purpose of or in support of—
- fishing, hunting, or trapping; or
- wildlife management, wildlife or depredation control, or shooting preserve practices as regulated by state and federal law; or
- a generally accepted and otherwise lawful animal husbandry or agriculture practice involving livestock animals.
Definitions
Animal
“Animal” means a domesticated living creature, including any stray or feral cat or dog, and a wild living creature previously captured. The term does not include an uncaptured wild living creature or a livestock animal.
Torture
“Torture” includes any act that causes unjustifiable pain or suffering.
Intentionally Torture an Animal
A person intentionally tortures an animal if it is the person’s conscious objective or desire to torture the animal.
Knowingly Torture an Animal
A person knowingly tortures an animal if the person is aware that he is torturing an animal.
Application of Law to Facts
You must determine whether the state has proved, beyond a reasonable doubt, four elements. The elements are that—
- in [county] County, Texas, on or about [date], the defendant tortured [insert specifics, e.g., Dog # 1];
- the defendant did so intentionally or knowingly;
- [insert specifics, e.g., Dog # 1] was an animal; and
- the conduct constituting the offense was neither—
- a
generally accepted and otherwise lawful form of conduct occurring
solely for the purpose of or in support of—
- fishing, hunting, or trapping; or
- wildlife management, wildlife or depredation control, or shooting preserve practices as regulated by state and federal law; nor
- a generally accepted and otherwise lawful animal husbandry or agriculture practice involving livestock animals.
- a
generally accepted and otherwise lawful form of conduct occurring
solely for the purpose of or in support of—
You must all agree on elements 1, 2, 3, and 4 listed above.
If you all agree the state has failed to prove, beyond a reasonable doubt, one or more of the elements listed above, you must find the defendant “not guilty.”
If you all agree the state has proved, beyond a reasonable doubt, each of the four elements listed above, you must [find the defendant “guilty”/next consider whether the defendant is not guilty because of the defense of [insert defense]].
[Insert any other instructions raised by the evidence. Then continue with the verdict form found in CPJC 2.1, the general charge.]
Comment
The definition of “torture” comes from Tex. Penal Code § 42.092(a)(8) (“‘Torture’ includes any act that causes unjustifiable pain or suffering.”). The Code Construction Act specifies that the term includes is a “term[] of enlargement and not of limitation or exclusive enumeration” and “does not create a presumption that components not expressed are excluded.” Tex. Gov’t Code § 311.005(13). The Committee notes that this formulation could make “torture” broad enough to encompass conduct by omission, not just by an act. Of course, any such omission must comply with Tex. Penal Code § 6.01(c) in that the law provides that the omission is an offense or “otherwise provides that [a person] has a duty to perform [a particular] act.”
The Committee debated whether “torture” is a nature-of-conduct or result-of-conduct offense. Although the Committee offers the instruction based on its conclusion that torture is a nature-of-conduct offense, thus requiring the omission of a reckless mens rea (see Tex. Penal Code § 6.03(c), providing no reckless definition for nature of conduct), the Committee recognizes there are arguments that torturing is a result-of-conduct offense, in particular because the act can be tied to the result of causing unjustifiable pain or suffering.