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Chapter 42

Charges

Chapter 42

Disorderly Conduct and Related Offenses

42.40  Instruction—Felony Cruelty to Nonlivestock Animal—Killing or Causing Serious Bodily Injury without Effective Consent

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 an offense if the person intentionally, knowingly, or recklessly, without the owner’s effective consent, [kills/causes serious bodily injury to] an animal.

Conduct coming within the definition of this offense is not a crime if the conduct constituting the offense is either—

  1. a generally accepted and otherwise lawful form of conduct occurring solely for the purpose of or in support of—
    1. fishing, hunting, or trapping; or
    2. wildlife management, wildlife or depredation control, or shooting preserve practices as regulated by state and federal law; or
  2. 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.

Consent

“Consent” means assent in fact, whether express or apparent.

Effective Consent

[Include relevant parts of definition as raised by the evidence.]

“Effective consent” includes consent by a person legally authorized to act for the owner. Consent is not effective if it is—

  1. induced by force, threat, or fraud;
  2. given by a person the actor knows is not legally authorized to act for the owner;
  3. given by a person who by reason of youth, mental disease or defect, or intoxication is known by the actor to be unable to make reasonable decisions; or
  4. given solely to detect the commission of an offense.

[Include the following definitions for the “killing” manner of committing the offense.]

Intentionally Killing an Animal

A person intentionally kills an animal if it is the person’s conscious objective or desire to kill the animal.

Knowingly Killing an Animal

A person knowingly kills an animal if the person is aware that he is killing the animal.

Recklessly Killing an Animal

A person recklessly kills an animal if the person is aware of but consciously disregards a substantial and unjustifiable risk that he is killing the animal. The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that a reasonable person would exercise under all the circumstances as viewed from the defendant’s standpoint.

[Include the following definitions for the “causing serious bodily injury” manner of committing the offense.]

Bodily Injury

“Bodily injury” means physical pain, illness, or any impairment of physical condition.

Serious Bodily Injury

“Serious bodily injury” means bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.

Intentionally Causing Serious Bodily Injury

A person intentionally causes serious bodily injury to an animal if it is the person’s conscious objective or desire to cause serious bodily injury to the animal.

Knowingly Causing Serious Bodily Injury

A person knowingly causes serious bodily injury to an animal if the person is aware that the person’s conduct is reasonably certain to cause serious bodily injury to the animal.

Recklessly Causing Serious Bodily Injury

A person recklessly causes serious bodily injury to an animal if the person is aware of but consciously disregards a substantial and unjustifiable risk that the person's action will cause serious bodily injury to the animal. The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor’s standpoint.

[Continue with the following.]

Knowing that He Does Not Have the Owner’s Effective Consent

A person knows that he does not have the owner’s effective consent if the person is aware that he does not have the owner’s effective consent.

Reckless about Not Having the Owner’s Effective Consent

A person is reckless about not having the owner’s effective consent if the person is aware of but consciously disregards a substantial and unjustifiable risk that the person does not have the owner’s effective consent. The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor’s standpoint.

Application of Law to Facts

You must determine whether the state has proved, beyond a reasonable doubt, seven elements. The elements are that—

  1. in [county] County, Texas, on or about [date], the defendant [killed/caused serious bodily injury to] [insert specifics, e.g., Dog # 1];
  2. the defendant did so intentionally, knowingly, or recklessly;
  3. [insert specifics, e.g., Dog # 1] was an animal;
  4. [insert specifics, e.g., Dog # 1] was owned by [name of owner];
  5. the defendant did not have the effective consent of [name of owner] to [kill/cause serious bodily injury to] [insert specifics, e.g., Dog # 1];
  6. the defendant knew [he/she] did not have, or was reckless about not having, the effective consent of the owner; and
  7. the conduct constituting the offense was neither—
    1. a generally accepted and otherwise lawful form of conduct occurring solely for the purpose of or in support of—
      1. fishing, hunting, or trapping; or
      2. wildlife management, wildlife or depredation control, or shooting preserve practices as regulated by state and federal law; nor
    2. a generally accepted and otherwise lawful animal husbandry or agriculture practice involving livestock animals.

You must all agree on elements 1, 2, 3, 4, 5, 6, and 7 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 seven 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

Tex. Penal Code § 42.092(b)(2) penalizes three acts: to kill, to administer poison to, and to cause serious bodily injury. For simplicity’s sake, the Committee decided to create two instructions—this one for killing or causing serious bodily injury and CPJC 42.41 for administering poison to an animal. All three acts are the same level offense under subsection (c–1). The Committee considered in what way “to kill,” as recited in this statute is the same as or different from the statutory phrase “to cause death” as recited in the homicide offenses. The Committee concluded that the terms were similar enough to treat them the same for purposes of assigning a mens rea, and so the instruction includes a definition of recklessness, even though phrasing the element as “to kill” might otherwise suggest it is a nature-of-conduct element for which there is no definition of “reckless.” Unlike in homicide offenses, the different levels of mens rea do not change the offense level for this type of animal cruelty.

Grammatically, the element “without the effective consent” follows immediately after the culpable mental state in the statute, which suggests the culpable mental state applies to it as well as to the gravamen. In addition, this element is the circumstance that makes the otherwise lawful conduct unlawful. Because this element is a circumstance of the offense, the mens rea of intentional does not apply. See Tex. Penal Code § 6.03(a).