Chapter 42
Disorderly Conduct and Related Offenses
42.44 Instruction—Defense from a Dangerous Dog
[Insert instructions for underlying offense.]
If you all agree the state has proved, beyond a reasonable doubt, each of the elements listed above, you must next consider whether the defendant is not guilty because of the defense of dangerous dog.
Dangerous Dog Defense
It is a defense to cruelty to nonlivestock animals that the animal killed was a dog that was attacking, was about to attack, or had recently attacked livestock, domestic animals, or fowls, and the defendant was:
- a person witnessing the attack; or
- the attacked animal’s owner; or
- a person acting on behalf of the owner of the attacked animal if the owner or person had knowledge of the attack.
Burden of Proof
The defendant is not required to prove that the defense of dangerous dog applies to this case. Rather, the state must prove, beyond a reasonable doubt, that the defense does not apply.
Defintions
Dog
“Dog” means a domesticated animal that is a member of the canine family and includes a crossbreed between a dog and a coyote.
Livestock
“Livestock” means—
- cattle, sheep, swine, goats, ratites, or poultry commonly raised for human consumption;
- a horse, pony, mule, donkey, or hinny;
- native or nonnative hoofstock raised under agriculture practices;
- native or nonnative fowl commonly raised under agricultural practices; or
- grass-eating or plant-eating, single-hooved or cloven-hooved mammals that are not indigenous to this state and are known as ungulates, including animals from the swine, horse, tapir, rhinoceros, elephant, deer, and antelope families.
Owner
“Owner” means a person who owns or has custody or control of the dog.
Application of Law to Facts
If you have found that the state has proved the offense beyond a reasonable doubt, you must next decide whether the state has proved that the defendant’s conduct was not within the defense of dangerous dog.
To decide the issue of defense of dangerous dog, you must determine whether the state has proved, beyond a reasonable doubt, that either—
- the animal killed was not a dog that was attacking, was about to attack, or had recently attacked livestock, domestic animals, or fowls; or
- the defendant was not—
- a person who witnessed the attack; or
- the attacked animal’s owner; or
- a person acting on behalf of the owner of the attacked animal and the owner or person had knowledge of the attack.
You must all agree that the state has proved, beyond a reasonable doubt, either element 1 or 2 listed above. You need not agree on which of these elements the state has proved.
If you find that the state has failed to prove, beyond a reasonable doubt, either element 1 or 2 listed above, you must find the defendant “not guilty.”
If you all agree the state has proved, beyond a reasonable doubt, each of the elements of the offense of cruelty to nonlivestock animals, and you all agree the state has proved, beyond a reasonable doubt, that the defendant did not act according to the dangerous dog defense, you must find the defendant “guilty.”
[Insert any other instructions raised by the evidence. Then continue with the verdict form found in CPJC 2.1, the general charge.]
Comment
The dangerous dog defense is defined in Tex. Health & Safety Code § 822.013, which falls within subchapter B of Tex. Health & Safety Code ch. 822 (Regulation of Animals). See Chase v. State, 448 S.W.3d 6, 28 (Tex. Crim. App. 2014) (statute provides defense to offense of cruelty to nonlivestock animals). Within that subchapter and applicable to section 822.013 are two definitions of terms that appear in section 822.013:
First, the definition of “livestock animal” in the instruction has five subparts. The first four are the “livestock anima” definition from Tex. Penal Code § 42.09—which is incorporated into section 42.092 (Cruelty to Nonlivestock Animals) under subsection (a)(6). The final subpart in the instruction is a necessary addition to that definition because section 822.011 adds to but does not replace the Penal Code definition. Thus, the offered definition is the definition of “livestock animal” from the Health and Safety Code section 822.011 grafted onto the definition from Penal Code section 42.09.
Second, definitions of “dog” and “owner” from nearby subchapter D—Tex. Health & Safety Code § 822.041(3), (5)—have also been included in the instruction. These definitions are not strictly applicable to this defense. The defense appears in subchapter B of chapter 822, and these definitions, strictly construed, only apply to subchapters A and D. The Committee decided to include these definitions because they are logically connected to the issues presented to the jury.