Kyra Pointon v. State ( 2011 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-10-00353-CR
KYRA POINTON APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM COUNTY CRIMINAL COURT NO. 2 OF DENTON COUNTY
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MEMORANDUM OPINION1
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I. Introduction
In one point, Appellant Kyra Pointon appeals her conviction of seven
counts of cruelty to livestock animals. We affirm.
II. Factual and Procedural History
On March 10, 2009, deputies from the Denton County Sheriff’s Office
seized seventeen horses from Pointon and arrested her for animal cruelty. The
1
See Tex. R. App. P. 47.4.
State charged Pointon with seven counts of cruelty to livestock animals by
intentionally or knowingly failing unreasonably to provide necessary food, water,
or care for seven horses in her custody. See Tex. Penal Code Ann.
§ 42.09(a)(2) (West 2011). The seven horses were described as a sorrel gelding
(count 1), a bay-colored paint colt (count 2), a bay quarter horse gelding (count
3), a black mare (count 4), a gray pony (count 5), a gray fine-boned mare (count
6), and a grulla mare (count 7).
A. General Horse Health
Deputy Kirk Sissney, the animal crimes investigator for the Denton County
Sheriff’s Office who specializes in large animal cruelty cases, testified that he had
completed basic animal control officer training in addition to an animal body
scoring certification. His training taught him how to look at the body condition
score of the animal and see how the animal’s muscle layers and fat layers are
built; to determine whether the animal has clean water, proper nutrition, proper
veterinary care with regard to vaccination history; and to handle animal-specific
situations, such as hoof work on a horse. He had also received specific training
on horse nutrition, anatomy, and health care. Deputy Sissney explained that
body condition scoring is ―taking an overall look at an animal and
determining . . . on a set scale and pattern as to what level that animal’s muscle
mass, fat retention, overall nutritional health is.‖
Deputy Sissney educated the jury about body condition scoring for a
horse:
2
To body condition score an animal . . . we start with the front of the
animal looking at the head. You’re going to be looking along the top
line of the animal which would be the neck, the withers, the back, the
rump, the croup, and the tail head which would be all along the
top. . . . [W]hen you’re looking at a horse you will start with the area
around the face. You’re going to look for the area around the eyes
that will be sunken in, kind of a bug-eyed appearance to them.[ ]
The next area we move to would be the neck region. You would
look for the depth of the neck to see how—see that it—you make
sure it comes down, a good full neck. Also you would look for loss of
muscle mass in this area right here. You would be able to see the
spine in the neck on a very thin horse. Next you would move to the
withers. The shoulder blades—where the shoulder blade comes
up . . . this area right here where you see actually this crease that’s
right here, this is going to be the scapular ridge. That’s the front
blade of the shoulder. As the horse loses muscle mass you’re
actually going to see that ridge become very pronounced, and that’s
going to lead you up to the withers right here where you will see . . .
to about the midline of the croup is you’re going to have—where the
spinal process actually stands up above the horse’s shoulders—
above the horse’s back like this. . . . The hip plane, the croup area,
you will see what—you will see what is called the hooks and the pins
which is basically the two front points, the front point and the back
point on the large bones that the hip bone that—as the—as the
muscle mass deteriorates you will see those points sticking out. . . .
As the muscle mass deteriorates you will see a plane surface where
those points are sticking out very prominently. . . . The last place we
go as far as the back is the tail head. Any time you see this tail
head, that’s a pretty indicative sign of a horse that’s in bad body
shape. It should look like the hair comes strai[gh]t out of their butt,
there should not be any tail head showing. You shouldn’t see that.
Deputy Sissney testified that after the initial assessment described above, he
would move on to other areas such as hoofs, teeth, ribs, and abdominal area to
get an overall picture of the animal’s general health. He also explained that
horses need healthy hooves so that they can walk to get to food and water, that
walking contributes to a horse’s ability to digest its food, and that a horse’s
hooves should be checked for cracks, chips, and splits daily or every other day
3
and the bottom of the hooves should be checked for stones and damage
because if left unchecked, sore spots or infections could develop. Deputy
Sissney stated that severe overgrowth of hooves is extremely painful for a horse
and that it is not difficult to maintain a horse’s hooves on a regular basis.
Deputy Sissney explained that although a horse’s ribs might be the first
thing one would see, it would be one of the last things to check because ―an
animal’s body weight can fluctuate due to parasite loads, nutrition, or if it’s just a
lack of water,‖ so the animal’s condition had to be judged by the totality of the
circumstances. Teeth would be the last thing to check; if the horse’s teeth were
in bad shape, then the horse would not be able to process food to a degree that
the enzymes and bacteria in its gut could break down the food.
Deputy Sissney explained that the scale for body condition scoring is one
to nine, with one being a ―walking skeleton‖ and nine being ―very obese.‖ A
healthy horse weight would be a five; for anything that fell below a five, ―you
would have to look for reasons why that animal is not maintaining its body
weight.‖ Deputy Sissney said that when a horse is not in ideal body condition or
is in a compromised nutritional state, its nutritional needs will differ from a
regular, healthy horse and it will not have the gut load bacteria to handle eating a
bale of hay.
Dr. Sherri Swanton, a veterinarian, testified that a body condition score of
four or five out of nine is an ideal score for an animal in good shape and
receiving exercise. She also said that horses, depending on the size and activity,
4
need at least ten gallons of water a day. And depending on whether a horse is
receiving concentrated feed, it needs to consume around 1.5% to 3% of its body
weight in feed per day, so a 1000-pound horse needs to receive around twenty
pounds of dry feed daily. She also stated that parasites can keep a horse from
receiving adequate nutrients and can make a horse anemic because parasites
are usually blood feeders; regular de-worming practice is part of good horse
health. Dr. Swanton said that when hooves are left in poor condition, this
increases the risk of abscesses or foundering, the tearing of the hoof wall, which
is similar to ripping off a fingernail. Dr. Swanton said that when a horse is in
pain, it will not want to eat or stand.
B. The Seven Seized Horses
Dr. Swanton testified that in early March 2009, she examined seven
horses that the Denton County Sheriff’s Office had seized, gave them complete
physical exams ―from nose to tail,‖ and took blood and fecal samples, and she
testified, as set out below, about the horses’ conditions. The trial court admitted
Dr. Swanton’s report, State’s Exhibit 184, into evidence. Deputy Sissney was
involved in the seizure of the horses, and he described their conditions at the
time of the seizure.
1. Count 1: Ben
The jury saw photos of Ben, an emaciated sorrel gelding. The photos
showed that Ben’s mane was matted, that he had burrs in his coat, and that he
had a distinct lack of musculature. Deputy Sissney stated that even with Ben’s
5
long winter coat, ―you can still see a clear demarcation between the ribs,
probably deep enough to lay your fingers in.‖ He said that Ben was very
underweight based on his bug-eyed appearance and the thinness of his neck,
noting, ―You can actually see where the spine is starting to come through,‖ and
pointing out the ridge starting to form where the muscle had begun to deteriorate
away from Ben’s spine. He opined that Ben’s winter coat might have
camouflaged additional issues.
State’s Exhibit 8 showed Ben’s front right hoof with duct tape on it. The
officers removed the duct tape, and Deputy Sissney stated that State’s Exhibit 10
showed rough spots where the nails used to put the shoe on ―ruptured through
the lamina on the top of the hoof‖—an indication of lack of proper care. State’s
Exhibit 11 showed a piece of plastic the officers found bound underneath the
hoof when they removed the duct tape—it looked like the bottom of a milk jug
that had been cut off. When the plastic fell off, a ―green sock mess‖ fell out
underneath it. The mess was green pus, and Deputy Sissney testified that he did
not think he had ever smelled ―that particular smell associated with a live animal.
It was—it was nauseating.‖ He clarified, ―[I]t smelled like necrosis, like dead
tissue and infection.‖
Ben’s front right hoof injury was severe and very limiting for his mobility.
Ben’s hooves were also severely overgrown and had chipped and split, and, with
regard to State’s Exhibit 4, a photo showing Ben’s hooves, Deputy Sissney
stated, ―You can see this was—and—and it has been that way for some time,
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because even places where you have chips and cracks, now they have rounded
off from—from walking, you know. So even some of the—this has been a long
time in forming.‖ The photos also showed that Ben did not have appropriate
bedding for a horse with a hoof injury. Further, because of Ben’s muscle
degradation, his ribs had fallen and sunken to the point that he could not breathe
at full capacity.
Dr. Swanton said that Ben had a body condition score of one—the bottom
of the body condition score scale. He was unable to bear full weight on all four
limbs; in her written report, Dr. Swanton noted that most of the sole wall on Ben’s
abscessed foot was peeling away and a deeply penetrating hole was present.
Ben’s toe length was excessive, which could affect the hoof wall and cause
laminitis or tearing of the hoof wall.2 Dr. Swanton cleaned the hoof with a hoof
pick, probed it to determine the actual depth of the abscess, and checked for
pain sensation to determine if it was a new wound. She determined that the
abscess was ―chronic,‖ which she defined as ―[l]onger than a couple of weeks,‖
based on the scab formation on the abscess and the hoof’s condition.
Dr. Swanton explained how she would treat the horse’s abscess if he had
come to her as a patient:
2
Dr. Swanton testified that abscesses can be caused by having too long a
hoof and they are very common in horses whose feet are not regularly trimmed.
Further, a bruise to the sole of the foot due to stepping on a rock or a penetrating
wound such as stepping on a nail could cause a hoof to develop an abscess.
She explained that an abscess is ―a pocket of pus‖ that builds bigger and bigger,
causing pressure and pain.
7
The first thing I would have done—well, initially would be to
pull the shoes, have the feet trimmed to the correct length, apply
new shoes for support, and also apply a hospital plate, which is
basically a metal plate underneath the shoe. And then pack—pack
gauze and medication up inside of there to help heal that abscess.
And the only reason why I say that is because when it’s as
bad an abscess as this particular one was, it actually is infecting the
bone of the last digit, and so it needs more than just your typical
what-you-do-for-an-abscess duct tape covering.
Ben’s bone had become infected, which Dr. Swanton said would have been very
painful.3 In Dr. Swanton’s opinion, Ben had not been receiving adequate care to
maintain a good state of health—he was in pain and ―was very, very thin.‖4
In her written report, Dr. Swanton stated,
With his physical appearance and care of the feet on this horse
alone, [i]n my professional opinion I can honestly say that this horse
has not reasonably been provided with the necessary food to
maintain his body condition, nor the care that is necessary to
maintain his feet or take care of his de-worming needs to the extent
required to maintain him in a state of good health. It should also be
noted that this horse’s feet were severely neglected causing
unjustifiable pain and suffering for a long period of time.
During trial, Dr. Swanton explained her comment about Ben undergoing
unjustifiable pain and suffering by stating that a call to a farrier could have
3
On redirect examination, Dr. Swanton agreed that the shoeing pad,
plastic, and duct tape that had been put on Ben’s abscess was the equivalent of
a human putting a Band-aid over a wound with a deep infection that required
treatment. State’s Exhibits 177 and 178 were x-rays of Ben’s foot, showing
inflammation of the bone from the abscess.
4
Ben also had a couple of parasites, but Dr. Swanton agreed on cross-
examination that his parasite count could potentially reflect that he was between
de-worming treatments.
8
remedied the abscess. Dr. Swanton said that a farrier charges around $30 for a
trim.
2. Count 2: Bay Paint Colt
State’s Exhibits 18 through 22 showed a bay paint colt whose eyes bugged
out and who was thin along the edge of his muscles. With regard to the colt’s
hooves, shown in State’s Exhibit 20, Deputy Sissney stated, ―They’re very
overgrown, cracked, split, chipped out in places. I’m not sure that this horse is in
a position yet of being—not being able to walk around, but it’s getting pretty
close, especially with—you can see where this is actually grown out and
beginning to roll under now,‖ showing lack of proper care.
Dr. Swanton said that the colt’s body score was a four and that he had the
pot-bellied appearance characteristic of a horse with a lot of parasites; his lab
results showed that he had one of the largest parasite counts of all seven of the
horses. Dr. Swanton testified that the worms could have easily been removed by
using commercial de-wormer from a feed store if the horse had been on a regular
de-worming schedule. Her conclusion was that the colt had not been receiving
adequate care to maintain its good health, based on the parasite load. On cross-
examination, Dr. Swanton testified that it takes between twenty-four and forty-
eight hours for a de-worming treatment to decrease the parasite level and that
such a treatment lasts for up to two or three weeks, depending on the worms’ life
cycles. She said that with the amount of parasites he had, the colt would
probably have required more than one treatment to rid him of the worms, but she
9
also agreed that if the colt had received a de-worming treatment, he would have
been fine within twenty-four hours.
3. Count 3: Bay Quarter Horse Gelding
State’s Exhibits 23 through 27 show a bay quarter horse gelding. Deputy
Sissney testified that the horse had bugging eyes, showing there was no fat
reserve built up behind the eyes to keep the lids pushed out the way they needed
to be, the horse’s scapular ridge could be seen even through its long winter coat,
and his neck was very thin. State’s Exhibit 25 is a photo of the bay quarter horse
gelding’s hooves’ cracks, splits, and chips along the front edges, showing a
distinct lack of proper care for the animal, according to Deputy Sissney. State’s
Exhibits 26 and 27 show that the horse was in the same poor condition as the
other horses—his ribs showed, and his musculature had degenerated.
Dr. Swanton gave the horse a body condition score of two and said that he
appeared to have suffered significant muscle loss. He did not have parasites,
but he had a ―pretty high white [cell] count of 17,500,‖ indicating that he was
fighting an infection. She also said that this horse, based on his physical
appearance, did not appear to be receiving adequate nutrition to maintain himself
in a good state of health, ―and his blood work basically confirmed that.‖
4. Count 4: Black Mare
State’s Exhibits 28 through 31 show a pregnant black mare. Deputy
Sissney stated that the mare’s photo revealed that her muscles had degraded,
her neck was rounded where there was nothing filling in between the trachea and
10
the spine area, her eyes were bugging, and there was a general lack of tissue in
her face. Her mane was unkempt and full of burrs. Her hooves had not received
proper care, and Deputy Sissney stated, ―There’s a crack . . . that runs all the
way up into that hoof line in that hoof,‖ which he said was painful for the horse,
like a human splitting a fingernail. He opined that the mare had not been
receiving the necessary food, water, or care to maintain her in good health.
Dr. Swanton gave the mare a body condition score of four and said that
she had normal bloodwork, although she carried a large parasite load. Dr.
Swanton said that she would have liked the mare’s body condition score to be
higher ―because in the next trimester the foal will require a significant amount of
nutrients from the mare, and that body condition score will lower if not fed
appropriately.‖ Based on the fecal exam, Dr. Swanton concluded that the mare
was not receiving adequate de-worming to maintain herself in a good state of
health. Two days following her exam, the mare lost her fetus.
5. Count 5: Princess
State’s Exhibits 32 through 41 show Princess, an old gray female pony
with a very emaciated body. Deputy Sissney said that Princess was unkempt,
with a lot of matting and burrs stuck in her coat. He acknowledged that ―[d]ue to
her advanced age it wouldn’t be uncalled for to see her a little bit on the thin
side,‖ but he also said that Princess should have been ―not near as thin as we
found her that day.‖ State’s Exhibits 33 through 38 show in gruesome detail that
Princess was severely emaciated as well as suffering from the same lack of care
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as the other horses. Deputy Sissney stated that it takes a long period of neglect
for a horse’s hooves to reach the poor condition that Princess’s hooves were in.
Dr. Swanton gave Princess a body condition score of 1.5. Dr. Swanton
said that a horse of that age would require a higher nutrient content in her feed
because she would not be able to process the feed like a young horse.
Princess’s hooves were not well maintained, and she had a very large number of
parasites. Dr. Swanton opined that Princess was not receiving adequate food
and water to maintain her in a good state of health.
6. Count 6: Gray Fine-boned Mare
State’s Exhibits 42 through 46 showed a pregnant gray fine-boned mare
with the same body condition and lack of proper hoof maintenance as the other
horses. State’s Exhibit 46 also showed that the gray fine-boned mare had
severe diarrhea, which Deputy Sissney testified could be life-threatening if the
horse did not get enough water or nutrition to fight it off.
Dr. Swanton gave the mare, who was nine months into her eleven-month
pregnancy, a body condition score of two and said that a body condition score of
two was not acceptable for a pregnant horse. The mare was sick and suffering
from edema (fluid pooling) due to low protein in her body. Dr. Swanton
concluded that the mare was not receiving an adequate amount of nutrition to
maintain a pregnant mare in good health.
12
7. Count 7: Grulla Mare
State’s Exhibits 47 through 51 show a grulla mare. She suffered from the
same problems as the other horses regarding her thinness and lack of
appropriate muscle covering. Dr. Swanton gave the grulla mare a body condition
score of four, stating that she was in pretty good condition compared to some of
the others, even though she had a high parasite load.
8. Summary
Deputy Sissney explained that ―none of these animals were lively. None of
them were—they just stood there. They were just like, you know, sacks of meat
on legs.‖ In contrast, he said that the general personality of a horse that has
received good care is inquisitive, stating that
they’re going to come up to you as probably as much as they want
to see what you’re doing. They’re going to want to know why you’re
there. . . . You know, if they’re a friendly horse, they’re going to
follow you around wherever you’re going, you know, wanting you to
feed them, wanting you to pet them, wanting to be close to where
you are.
Deputy Sissney said that when horses have not received the necessary food,
water, or care to keep them in a good state of health, they do not maintain a
friendly, lively personality. Rather, they become very withdrawn, as these horses
were.
Deputy Sissney and Dr. Swanton both stated that they did not know when
Pointon acquired any of the horses. Pointon bought and sold horses, and she
told Deputy Sissney that she acquired horses at sale barns and then brought
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them home to get them into shape to sell.5 Deputy Sissney said that his
department investigates around four animal cruelty reports a week and that the
decision to seize animals is based on the totality of the circumstances but ―[t]he
prolonged and systematic lack of proper care to the hoofs and teeth weigh[ ] a lot
more heavily than an empty water barrel.‖ Deputy Sissney stated that none of
the seven horses had the necessary food, water, or care to maintain them in a
good state of health.
9. Post-Seizure
After the horses were seized, they were placed in the care of Mr. Webster
at the Webster Ranch in Ponder before being transferred to Hope for Horses, a
nonprofit equine rescue sanctuary. Anastasia Keyser, the nonprofit’s president
and founding director, said that she became the seven horses’ caretaker after the
seizure and was involved in their rehabilitation.6
Keyser said that Ben was in ―very, very poor shape‖ when he came into
her custody, stating, ―[h]e was barely able to walk. His feet were extremely long.
They hadn’t been trimmed or anything in a very long time. He even still had
5
According to Shannon Flanagan, another witness, the horses that Pointon
bought at horse auctions were usually not in good shape.
6
Keyser said that the goal of Hope for Horses is to rehabilitate horses and
then put them up for adoption. Before rescue horses can be adopted, the
nonprofit gets the horses to the proper weight, makes sure there are no
underlying physical conditions that are left untreated, makes sure that the horses’
teeth and feet are in good condition, and updates their shots, de-worming, and
Coggins test, which is a test to make sure a horse does not have equine
infectious anemia.
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shoes on his front feet. And he had abscesses and he was extremely
underweight.‖ Keyser testified that her veterinarian and a farrier worked together
to sedate Ben and trim his feet. When her veterinarian initially cleaned the
abscess, he found additional abscesses—four to five in each front foot. It took
about a month to heal the first abscess and then Ben went for a month or two
without abscesses, but he was abscess-prone because of his laminitis,7 and the
abscesses recurred five to ten times. Ben was never without pain. Ben was
euthanized in July 2010 after a veterinarian who specialized in foundered
laminitic horses was unable to help him.8
Keyser took the photo of the gray pony, Princess, in State’s Exhibit 41 in
September or October 2009. State’s Exhibit 41 showed Princess eating chopped
alfalfa. Keyser said that Princess also received soft pellets in her diet and that
Princess was still in her custody, was in a good state of health, was on regular
parasite treatment, and saw a farrier every six to eight weeks. A photo of the bay
quarter horse gelding taken in May 2009—State’s Exhibit 186—was shown to the
jury, as were photos of the black mare taken in September or October 2009—
7
Keyser testified that laminitis can be caused metabolically by not giving a
horse proper care and starving it or giving it too much protein too quickly. It can
also be caused physically through an injury. Laminitis can be permanent if there
has been rotation in the horse’s coffin bone; there was rotation in Ben’s coffin
bone when Keyser took custody of him. Deputy Sissney testified that the bone is
called the ―coffin bone‖ because ―if you have a problem with that bone it means
the horse needs to be put down, dead.‖
8
Dr. Swanton testified that the decision to euthanize would be based on the
horse’s quality of life and how well he responded to treatment.
15
State’s Exhibits 187 and 188. State’s Exhibits 189 and 190, from September or
October 2009, showed the gray fine-boned mare post-adoption. State’s Exhibits
191 and 192 contained photos of the grulla mare taken in September or October
2009. Keyser’s veterinarian adopted the grulla mare. These photos showed that
these horses were no longer emaciated and that they were clearly healthy and
cared for.
C. Pointon’s Arrests and the Seizure of the Horses
Deputy Sissney testified that he made contact with Pointon on March 6
after her arrest on outstanding warrants for ―animals at large‖ to check on the
welfare of Pointon, her daughter, and her animals while she was in custody. He
asked Pointon who was going to take care of her horses while she was in jail on
her warrants, and Pointon told him that Shannon Flanagan would take care of
them. Pointon had been staying at Flanagan’s house. Pointon did not say
anything to him about having water or hay or other food for the horses on her
three-acre property on FM 2450 (the FM 2450 property).
Deputy Sissney talked with Flanagan to determine whether she was going
to bring food and water to the horses at the FM 2450 property. Flanagan brought
food and water for the horses that weekend.9 Pointon was released on March 7.
Pointon called Deputy Sissney on March 9 and told him that she had moved
9
Flanagan said that she received a phone call from an animal control
officer in the middle of the night and that she agreed to bring food and water to
the horses at the FM 2450 property.
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some of the horses from the FM 2450 property out to her new address on Klein
Road and that she had some hay delivered.
On March 10, deputies seized Pointon’s horses and arrested Pointon at
Flanagan’s house. Deputy Sissney testified that the decision to seize the horses
was based on ―a prolonged systematic lack of care for the[ ] animals.‖
1. FM 2450 Property
Deputies began the seizure proceedings at the FM 2450 property. There
were no horses there, and the property appeared to be abandoned—the electric
meter had been pulled from the meter box, the side door on the south side of the
residence was standing ajar, and the inside of the house appeared to have been
ransacked with clothes ―in piles, things pulled off of hangers.‖ Deputy Sissney
said that there was no hay at the FM 2450 property. The water troughs were
empty. He also did not find any supplemental feed for the horses, such as grain,
oats, or pellets.
The trial court admitted into evidence photos of the FM 2450 house and its
surrounding acreage. State’s Exhibit 79, a photo of the pasture outside the FM
2450 house, shows no supplemental grazing pasture and there is nothing for the
horses to eat in the pasture.10 State’s Exhibit 80 shows a water trough
10
During cross-examination, Deputy Sissney agreed that the photo of the
pasture in State’s Exhibit 85 showed a round bale of hay, but he did not know
when that photo had been taken or by whom. There were no horses on the
property on March 10, and State’s Exhibit 85 shows a horse standing near the
bale of hay.
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containing water with debris and algae floating in it; according to Deputy Sissney,
it would not be adequate or healthy for the horses to drink. There was no horse
feed in the shed.
2. Klein Road Property
Pointon’s new address on Klein Road was the deputies’ next stop. No one
was home, but there were ten horses there, and they seized them.
The Klein Road property had a house and barn with surrounding pastures,
but Deputy Sissney did not know whether the pastures belonged to the Klein
property. Three of the ten horses were in the front round pen, and the other
seven were scattered in different stalls in the open barn area. A rope held each
animal in its individual stall.11
The jury viewed photos of the Klein Road residence, the corral in front of
the property, and the stable area. None of the stalls in the stable had doors on
them. State’s Exhibit 113 shows an empty water bucket hanging on the inside of
a stall. State’s Exhibit 114 shows the inside of that stall with a pony in it; Deputy
Sissney said that it looked like the stall had not been mucked out for a couple of
days.
Two other photos showed buckets containing water that were sitting on the
ground, which Deputy Sissney said would make it very easy to contaminate the
water with feces. State’s Exhibit 130 was a photo of one of the horses at the
11
State’s Exhibits 21 and 22 are photos of the bay paint colt at the Klein
Road address where he was seized.
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Klein Road property, showing that it had gotten out of its stall while the officers
were trying to round up some of the other horses. Other photos showed FM
2164, a major north-south byway in the north part of the county, in the
background, and the lack of the fence, constituting a danger to the horses if they
escaped onto the road. The officers could not access the Klein Road house so
they did not know if the electricity was turned off there, although the meter bore a
green removal tag.
During cross-examination, Deputy Sissney admitted that there was grass
on the ground at the Klein Road residence and two round bales of hay in the
barn. On redirect, he described the hay at the Klein residence as ―very old. It
had a lot of mold and dust and mildew when we began to pull part of it off. It was
very poor quality. Probably very low nutritional value left in it because of the age
of the hay.‖
3. Flanagan’s Property
Pointon had brought six of her horses to Flanagan’s about two weeks prior
to her arrest. The officers went there after visiting the Klein Road property.
Flanagan pointed out the horses that belonged to Pointon. Pointon was arrested
at Flanagan’s house.
Flanagan, who teaches horseback riding at her riding academy, described
Pointon’s horses as having long coats with dull hair and said that they looked ―a
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little bit wormy.‖12 Flanagan said that a horse receiving good quality feed will
typically have a shiny coat, even if it still has its winter coat, because of the
nutrients in the feed; she said that worms can contribute to lack of shine and that
when a horse has a dull coat, ―that’s usually an indicator that there’s something
going on.‖ One of the first things Flanagan did for the horses when they arrived
on her property was to de-worm them because worms can be dangerous to a
horse.
Flanagan stated that the horses needed to be seen by a farrier because
when horses’ hooves are not regularly trimmed, it can cause the horses pain,
and that it appeared that most of the horses had not seen a farrier in a very long
time. Flanagan had a farrier come out, but he did not tend to all of the horses.
Flanagan paid for the farrier out of her own pocket. Flanagan stated that two of
Pointon’s horses were pregnant; one had her foal while on Flanagan’s property.
During the three weeks that the six horses were on Flanagan’s property,
they had access to fresh hay, received grain twice a day, and gained weight—
Flanagan estimated that the bigger horses gained around 100 pounds. She fed
the horses ―Equine Senior,‖ even though these horses were not old, because the
pellets were soft and easier to digest, so it would be easier for the horses to gain
weight. Flanagan said that the horses looked like they needed the nutrients in
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Flanagan explained that when a horse has worms, it will appear to have
a pot belly and will not ―look as fleshy everywhere like a horse that’s in good
condition.‖
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the Equine Senior because to her they appeared to be severely nutrient-
deprived, in addition to needing a farrier’s attention for their hooves.
Officers removed five of Pointon’s horses from Flanagan’s property. They
did not transport the mare and her week-old foal because they were afraid the
foal would injure itself in transit. Flanagan was left in charge of those two horses.
Flanagan fed them, had them seen by a farrier, and said that she would have
taken them to a veterinarian if needed. Hope for Horses took the mare and foal
after the foal was weaned.
Flanagan testified that she had known that Pointon had a horse with a hoof
problem because she had been with Pointon at a feed store when Pointon
bought some pads for the horse’s feet. Pointon told her about three weeks
before the horses were removed that she had acquired the horse from a shipper
in California and that the horse had an abscess. The horse with the abscess was
never on Flanagan’s property, and Flanagan opined, based on working with
horses her entire life, giving riding lessons for twenty-five years, her degree in
animal science, and her status as a registered veterinary technician, that padding
the horse’s foot was not the proper way to treat an abscess on a hoof. Flanagan
explained that when one of her horses had an abscess, the farrier would come
out, drain the abscess, soak the foot in Epsom salt to draw out the infection, pack
the foot with a drying agent, and then repair the horse’s sole; depending on the
severity of the abscess, the horse might also be given an anti-inflamatory for
pain. Flanagan said that abscesses are not usually fatal in horses and that for an
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average healthy horse, from abscess diagnosis to being healthy again takes
around a week.
D. Pointon’s Neighbors’ Testimonies
Max Redding, Lewisville Police Officer Max Gherke, and Karen Harkins
lived near Pointon’s three-acre property on FM 2450.
Redding testified that he and his family had lived next to Pointon’s property
since July 2006, when Pointon had three to four horses. He had noticed an
increase over time in the number of horses she kept on her property, which
caused him concern about possible health issues that could spread across the
property line. Redding also noticed that the horses were thin, and he did not see
hay being delivered weekly or bi-weekly.
Officer Gherke testified that he shared a fence line with Pointon and that
they had been neighbors for two or three years. He did not recall the number of
horses Pointon had when she first moved in but said that her herd had grown to
around fifteen. Officer Gherke said that this concerned him because the horses
did not appear to be taken care of, were kept in a confined space, and did not
seem to get food or water on a regular basis. Based on his conversations with
other neighbors, he did not call animal control because he was confident that
animal control had been notified about the horses’ condition. He recalled seeing
a horse with a duct-taped hoof for a while, but he did not recall how long Pointon
had had the horse.
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Officer Gherke said that he saw hay delivered to the property before the
seizure. He did not know the people who had delivered the hay—a woman who
was not Pointon had come to his house inquiring about the horses’ condition and
when she and her husband returned, they delivered hay bales and Officer
Gherke provided water for the horses because Pointon had no electricity to run
her pump.13
Harkins testified that she lived down the road from Pointon. She had
agreed to let six or seven of Pointon’s horses use Harkins’s four-acre back
pasture for $200 per month. Harkins said that Pointon was still responsible for
providing the horses with food and giving them water. Harkins said that at one
point, in the fall or winter of 2008, she and her husband noticed that the horses
were not being watered, so they started watering them for Pointon. They also
noticed that food was not being brought on a regular basis.
Harkins said that it would take the horses three to four days to go through
a bale of hay but that hay was not delivered every three to four days—a long
enough time elapsed between deliveries that she worried about the horses
getting fed. She and her husband noticed that the horses’ ribs were starting to
show more and that their hip bones were becoming more obvious; she did not
remember them being so thin when they were first put in her back pasture. The
horses’ condition became bad enough that she worried that there would be
13
The electricity had been turned off at Pointon’s house, and her well pump
would not work.
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animal cruelty charges, so her husband wrote Pointon a letter on February 27,
2009, telling her about their concern for the animals’ welfare and telling her that
they wanted them removed from the property. By that point, Pointon had not
paid the horses’ rent in several months, and the Harkinses had previously tried to
contact Pointon by email, text message, and voice mail.
After delivering the February 27 letter and before sending another letter on
March 5, Harkins and her husband called the sheriff’s department about the
horses ―just to let them know what the situation [sic] kind of ahead of time.‖ The
horses were removed from her property on March 9. Harkins said that based on
her notification and conversations with Pointon before the horses were removed
from her property, she believed that Pointon knew about the horses’ condition.
E. Hay Delivery
Contrary to Pointon’s neighbors’ testimonies, Randy Bentley, who worked
at Schertz Feed in Sanger, testified that he sold and delivered around two or
three round bales of hay—weighing 900 to 1,200 pounds each—per week to
Pointon. He did not have any records or receipts because Pointon had a deal
with the feedstore’s owner: the owner had hay near the FM 2450 property and
he would deliver hay to her when she called.
With regard to the hay at the Klein Road residence, Bentley said that he
knew hay had been delivered to the Klein Road residence at least once. On
cross-examination, Bentley admitted that when previously asked by the State if it
would surprise him to learn that the hay was old, he had said that it would not
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surprise him. He also admitted that he had told the State that it would not
surprise him because that was what Pointon had specifically ordered.
F. Verdict
A jury found Pointon guilty on each count and assessed her confinement at
365 days for each count. They assessed a fine on count one of $2,500; a fine on
count two of $1,000; a fine on count three of $1,500; a fine on count four of
$2,000; a fine on count five of $1,500; a fine on count six of $2,000; and a fine on
count seven of $1,000. The jury also recommended to the trial court that Pointon
be granted community supervision. The trial court sentenced her in accordance
with the jury’s verdict, suspended the sentences, and placed Pointon on twenty-
four months’ community supervision. This appeal followed.
III. Sufficiency
In her sole point, Pointon argues that the evidence is insufficient to support
her conviction for cruelty to livestock animals.
A. Standard of Review and Applicable Law
In our due-process review of the sufficiency of the evidence to support a
conviction, we view all of the evidence in the light most favorable to the verdict to
determine whether any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.
307, 319, 99 S. Ct. 2781, 2789 (1979); Isassi v. State, 330 S.W.3d 633, 638
(Tex. Crim. App. 2010).
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Pointon was charged with intentionally or knowingly ―fail[ing] unreasonably
to provide necessary food, water, or care for a livestock animal in [her] custody.‖
See Tex. Penal. Code Ann. § 42.09(a)(2). A jury may infer a culpable mental
state from the circumstances surrounding the cruelty to animals offense.
Martinez v. State, 48 S.W.3d 273, 276 (Tex. App.—San Antonio 2001, pet. ref’d)
(citing Pine v. State, 889 S.W.2d 625, 629 (Tex. App.—Houston [14th Dist.]
1994, pet. ref’d), cert. denied, 516 U.S. 914 (1995)). ―Necessary food, water, or
care‖ includes food, water, or care ―provided to the extent required to maintain
the livestock animal in a state of good health.‖ Tex. Penal Code Ann.
§ 42.09(b)(6). ―The quantity and quality of food necessary to sustain a horse is a
matter of common knowledge among persons familiar with the care of horses.‖
Cross v. State, 646 S.W.2d 514, 515–16 (Tex. App.—Dallas 1982, pet. ref’d)
(defining ―necessary food‖ as ―food sufficient in both quantity and quality to
sustain the animal in question‖).
B. Analysis
The testimony of Dr. Swanton, Deputy Sissney, and Flanagan establish
that the horses had not been receiving sufficient food and care, based on their
poor physical conditions, including their low body condition scores, emaciation,
parasites, and lack of adequate hoof maintenance. Further, Pointon’s neighbors
testified that they either did not see hay being delivered regularly for Pointon’s
horses or that they were concerned about the horses receiving enough to eat.
And while Bentley, the feed store worker, testified that the feed store delivered
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two to three round bales of hay to Pointon each week in 2008 and 2009, he also
admitted that the hay delivered to the Klein Road house was old because that
was specifically what Pointon had ordered, and other witnesses testified that old
hay would not provide adequate nutrition. Furthermore, Deputy Sissney and
Harkins testified about the lack of available water or clean water for the horses,
and Officer Gherke testified that Pointon could not use her water well at the FM
2450 property because her electricity had been shut off.
Pointon argues that the evidence is insufficient because no witness knew
when she ―[came] into possession of the horses or the condition of the horses
when she acquired them.‖ She complains that for her to maintain the horses in
good health, the horses had to attain good health first, and she asserts that there
is no evidence that the horses were ever in a better state of health. However,
even if the horses had been in poor condition when she received them, the
photographic evidence showing the near-miraculous recovery of all of the horses
but Ben after the horses received food, water, and care from Hope for Horses
belies this argument. Further, Flanagan’s testimony established that Pointon
was aware of Ben’s abscess at least three weeks prior to the seizure of the
horses and that a properly treated abscess can heal in a week, and Dr. Swanton
testified that a farrier—which, based on their overgrown hooves, none of the
horses had seen in a long time prior to the seizure—could treat an abscess. The
jury could have found that Pointon allowed Ben’s condition to reach irremediable
deterioration before he was seized from her based on her failure to provide him
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with necessary care. And, as to all of the horses, the jury could have reasonably
inferred that Pointon knew of the inadequacy of the food, water, and care that
she supplied before the March 10 seizure based on their physical appearances
as well as Harkins’s February 27 and March 5 letters sent to Pointon expressing
concern about the horses. Viewing the evidence in the light most favorable to
the verdict, the jury could have found the essential elements of each count
beyond a reasonable doubt. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789;
Isassi, 330 S.W.3d at 638. Therefore, the evidence is sufficient to support
Pointon’s conviction on all seven counts of cruelty to livestock animals, and we
overrule her sole point.
IV. Conclusion
Having overruled Pointon’s sole point, we affirm the trial court’s judgment.
BOB MCCOY
JUSTICE
PANEL: WALKER, MCCOY, and GABRIEL, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: December 15, 2011
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