Christopher Swilley v. State , 465 S.W.3d 789 ( 2015 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-13-00569-CR
CHRISTOPHER SWILLEY APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM CRIMINAL DISTRICT COURT NO. 4 OF TARRANT COUNTY
TRIAL COURT NO. 1329409R
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OPINION1
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Appellant Christopher Swilley appeals his conviction for the felony offense
of cruelty to animals. Appellant contends that the trial court erred by denying his
motion for a mistrial after the jury heard evidence of an extraneous offense also
involving cruelty to animals. Appellant further asserts the evidence was
insufficient to support his conviction. We affirm the trial court’s judgment.
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See Tex. R. App. P. 47.2(a).
Background
In the indictment, the State alleged Appellant intentionally, knowingly, or
recklessly tortured or in a cruel manner killed or caused serious bodily injury to
an animal, to-wit, a dog, by shooting said dog with a crossbow, a state jail felony.
See Tex. Penal Code Ann. § 42.092(b)(1), (c) (West 2011). The dog in question
was a stray, which falls within the statutory definition of an “animal.” See id.
§ 42.092(a)(2). The offense was punishable by confinement in a state jail facility
for not more than two years or less than 180 days and a fine not to exceed
$10,000. Id. § 12.35 (West Supp. 2014). After a jury found Appellant guilty, the
trial court assessed his punishment at two years’ confinement in a state jail.
Evidence
Roy Ponce testified that on April 11, 2012, he heard a loud noise like a dog
in a lot of pain “just screamed and took off running.” He looked out his front door
through his glass storm door and saw Appellant, his neighbor, carrying a
crossbow and walking away from the street toward the back of Appellant’s
house, which was directly across the street from Ponce’s home.
Ponce testified that a Husky mix that had taken up residence as the
neighborhood dog was not lying in his front yard as it normally did. Ponce
described the dog as a friendly stray that often played with his children and who
came through a break in his wooden fence to eat with his other dogs. Ponce
denied ever seeing the dog act in a rough or aggressive manner. He, his wife,
and his children were not afraid of it.
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Ponce’s next-door neighbor said there were many strays in the
neighborhood over the years. She said this dog had been in the neighborhood
four to five months and often slept in her front yard; during that time she had
never seen any aggressive behavior. She said, “I saw the dog on almost a daily
basis and he was never aggressive to me.”
Ponce testified that he walked to the back of his house and found the dog
had come through the hole in the fence and was lying under his carport with an
arrow in it. He said there was a lot of blood and described the dog as breathing
heavily. As Ponce approached, the dog got up, bumped into a carport post—
which caused the arrow to fall out—walked down the alley where it laid itself
down again, and did not get back up. Ponce’s children were in the backyard and,
after seeing the dog, became angry. Ponce’s wife called 9-1-1.
Fort Worth Police Officer Nathan Owens was dispatched to the scene and
found the wounded dog—whining, bleeding, and hurt—lying in the alley. The
dog was a black and white, medium-sized Husky or shepherd mix that weighed
about fifty pounds and had different colored eyes. Officer Owens observed a
considerable amount of blood on the pavement and in the grass of the house
next door to Ponce’s house. Officer Owens explained that he called Animal
Control when he arrived, but he cancelled his call to it when the Humane Society,
whom someone else had called, arrived first. He crossed the street and knocked
on the door of Appellant’s house, but no one answered, and Appellant’s Jeep
was not at the house. Witnesses told him Appellant had gotten in his Jeep and
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left the area. Officer Owens estimated the Humane Society arrived within ten
minutes after he did and provided medical assistance to the dog. Officer Owens
did not recall any neighbors complaining about the dog being aggressive. He
said people cannot act with cruelty towards animals just because they are strays.
Eric Hopkins had previously worked in animal hospitals off and on for
twenty years and had worked for the Humane Society of North Texas for about
two and one-half years, taking care of animals during the day and acting as on-
call emergency responder at night for Tarrant and Parker Counties. He recalled
that the dog in this case appeared to be in a great deal of pain and was “very
bloody, [with] holes in his neck around the chest area. It was very complacent. It
wasn’t acting mean. [I] [p]icked it up, [and it] licked on me as I was putting it
inside the transit van to take it away.” Hopkins transported the dog to the
Humane Society’s East Lancaster location, where the veterinarian prescribed
antibiotics and pain medications until she could see it the next morning. Hopkins
visited the dog almost daily and described it as a “[s]weet, loving dog. One of the
best dogs I’ve seen up there.”
Detective Ryan Stepp, with the Fort Worth Police Department’s central
criminal investigations unit, was assigned to the case the next day. Detective
Stepp testified he reviewed the report and went to the scene to get his own
perspective on it. He talked to witnesses, including Ponce and other neighbors,
and viewed the bloodstains and a trail of blood from which he determined that the
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dog was shot in the driveway between Ponce’s and Ponce’s neighbor’s houses
and then went through the hole in the fence into Ponce’s back yard.
Detective Stepp learned that the week before the dog was shot, Appellant
had called in complaints on April 5 and April 6 to Animal Control about a large
stray dog digging in flower beds and fighting with other dogs in the neighborhood.
Appellant’s complaints to Animal Control said nothing about the dog being
aggressive towards Appellant or his wife. Detective Stepp went to Appellant’s
house and said “there [might] have been a few flower beds, but they looked like
they had been kept up.” He said he knocked on the door but no one answered.
Detective Stepp spoke with Appellant’s next door neighbor, N.P., who
owned a compound bow and arrows, which Detective Stepp photographed, but
no crossbow. Detective Stepp described a crossbow as more like a rifle with a
bow set on top of it, whereas a compound bow was an actual bow with gears at
the end that helped a person with the draw. A “fixed blade broadhead” bolt from
a crossbow was found at the scene where the dog was shot and was introduced
into evidence as State’s Exhibit 35. Detective Stepp said his understanding was
that a bolt was different from an arrow used with a compound bow in that a bolt
was shorter than an arrow and a bolt did not necessarily have a nock at the end.
He said a bolt from a crossbow was capable of killing someone or an animal,
torturing an animal, or causing serious bodily injury.
Detective Stepp processed the bolt for DNA but not for fingerprints
because it was covered in blood. The DNA results did not relate to Appellant.
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Based upon his investigation, Detective Stepp concluded that Appellant
shot the dog and that there was no evidence of justification as the dog was not
aggressive or attacking anyone. He also spoke to Dr. Cynthia Jones of the
Humane Society; she explained the severity of the wounds to him, and he
concluded the wounds constituted serious bodily injury. He explained that in
Texas it is a criminal offense to cause even a stray animal serious bodily injury
unjustifiably. He wrote out an arrest warrant for Appellant for cruelty to animals.
Appellant’s wife, Delia Swilley, testified that she and Appellant had lived at
the residence across from Ponce’s since 2007. Their home had been broken
into six or seven years earlier, and they had reported stolen electronics to the
police. Later, they learned that other things had been stolen as well, such as
tools, speakers, and things Appellant was using in a church program. She
testified that Appellant did not own a crossbow and that if he had one, she had
never seen it. She denied that Appellant ever went hunting and denied that he
had either blade or camouflage arrows for hunting.
Appellant’s wife testified she got home from work on the evening of the
dog’s injury at about 6:45 p.m. They both took showers, ate dinner, and watched
television. She testified she did not hear an animal scream, did not hear a
commotion of adults and children outside or across the street, did not hear the
police arriving, and did not hear anyone knock on the front door or ring the
doorbell. She had seen the dog around for some time in the neighborhood. The
dog would lie down in front of her door and not move. She stated the dog never
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growled, bit, or jumped on her. It would just jump down, and that was what
scared her. If she came out of the front door, it would move, but it would then go
and “undo” the tulips. She denied knowing that the dog had been living across
the street for four or five months or that it played with the children there, but she
added that she was almost never at home. About two weeks before the dog was
shot with the arrow, she had seen it playing in her yard and had asked Appellant
if he knew that dog. She denied telling her husband to shoot the dog or to get rid
of it because it was digging up her garden. She denied that Appellant left in his
Jeep to go anywhere that night and said that the policeman lied if he said
Appellant’s Jeep was not there.
Appellant denied shooting the dog with a crossbow. He testified he had
always had pets and had a mix that looked like “Benji” now. He denied wanting
to hurt an animal. Regarding the photos of the dog, Appellant said, “[T]he
pictures were horrific. I thought that was terrible.” He denied leaving the house
in his Jeep at any time that evening. He insisted he was there all evening and
heard nothing—not the dog’s yelp, not the neighbors coming out to help the dog,
not the commotion across the street, and not the police arriving, interviewing
people in the street, and knocking at his door. Appellant explained that his house
was further away and that he was probably taking a shower. Appellant denied
not being there.
Appellant admitted he had at one time owned both a compound bow and a
crossbow but said his crossbow had been stolen. He thought his house was
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burglarized around 2009. He reported to the police everything that was stolen.
Detective Stepp confirmed that a burglary was reported in 2006 but said that the
report made no mention of a crossbow. Appellant said it was only later, when
going on a camping trip, that he discovered his crossbow had also been stolen.
He said he called the police to report it but hung up when he determined it was
pointless. Appellant admitted to Detective Stepp that he had owned a Horton
crossbow and that the bolt in question that the dog was shot with was a Horton
bolt. Appellant maintained, however, that his bolts had also been stolen, that
they had only been target bolts, and that he had never owned bolts like the one
used on the dog, which was an expensive fiberglass bolt. Appellant said State’s
Exhibit 35 was short enough to be a crossbow bolt and had a hunting tip.
Appellant maintained he used only target bolts because targets were the only
things for which he used the crossbow. Appellant said his bolts had bullet tips
with mild points. Appellant denied ever owning a high-dollar fiberglass bolt with a
hunting razor edge like the one on State’s Exhibit 35. Appellant admitted hunting
once in his life but denied ever hunting with a bow.
Appellant admitted calling Animal Control to complain about the Husky two
days in a row the week before the dog was shot. Appellant also said that before
the offense, he had called the police several times on Saturday nights because of
loud parties at Ponce’s home; Appellant explained that he had to get up early
Sunday morning to go to church. Appellant suggested that Ponce shot the dog
and, knowing Ponce’s children would be upset with him if they found out, Ponce
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made up the story blaming Appellant. Appellant theorized that his complaints to
the police about loud parties at Ponce’s house gave Ponce a reason for revenge.
Appellant even suspected that Ponce might have stolen his crossbow in the
burglary six years earlier and shot the dog with it. Appellant had not mentioned
his theory that Ponce stole the crossbow and shot the dog in his statement to
Detective Stepp, and he admitted it “was just a thought that I had.” Appellant
acknowledged Ponce and his family told the police that they saw him drive away
after putting the crossbow in his Jeep.
Appellant admitted the dog never acted aggressively toward him but
claimed the dog frightened his wife; he then admitted all the dog ever did was
sleep on his porch and, when it encountered his wife, jump up and run off. He
agreed it never harmed him or his wife and that it did “no growling, no biting, no
nothing.” Appellant asserted his admission that the dog was not aggressive at all
showed that he had no reason to have shot the dog. Appellant contended it was
not his job to find out who shot the dog but the State’s. “Take prints and go get
that guy. It’s real simple. . . . I mean, anyone that just watches TV can do that.”
Dr. Cynthia Jones, the attending veterinarian who worked full-time for the
Humane Society, said she was called the night the dog came into care, was
given the dog’s weight and condition, and instructed the person who called her to
give the dog pain management. Dr. Jones performed her full examination the
next morning. Regarding her first encounter with the dog, she said,
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The dog—when I first saw the dog, there was a lot of mud and a lot
of blood on his chest and front legs. He was in good spirits.
Difficulty walking a little bit on his front legs. He was not aggressive.
He was hungry. He was fairly docile. I did not, when I first
examined him, have to sedate him in any way. I had no difficulty
trying to determine his injuries. During the shaving and cleaning
process, I was given no trouble by him whatsoever.
She described four wounds that the dog received from the bolt and stated
that, in her opinion, the only way for it to have received those four wounds in the
way that it did was for it to have been lying down when it was shot. She added
that the person who shot the dog had to have come from the side and was not
facing the dog head on.
She demonstrated the wounds with photographs that were admitted into
evidence. She said the bolt came in the left side between the shoulder and the
elbow and penetrated through the muscle, damaging the radial nerve. Regarding
the radial nerve, she said, “[I]f you’ve ever hit your funny bone, it sends tingling
sensations up and down your arm[,] and then it’s hard to use your hand for a few
minutes. That’s the radial nerve.” She said the bolt damaged the radial nerve to
the point that for several days afterwards the dog had difficulty placing its feet
very well because “he just didn’t like the constant tingling in that leg all the time.”
Dr. Jones then showed how the bolt “came through the leg and came out
through the front of the chest” under the neck. The bolt then “glanced” across
the chest deeply enough to cut through some of the muscle. State’s exhibit 34
showed a gash about three-and-a-half-inches long and about a half-inch wide
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where the skin appears to have split apart. The bolt finished by entering the front
part of the right leg and chipping the bone. Dr. Jones said she had to pull out
three little pieces of bone.
Dr. Jones asserted the manner in which the dog was shot caused it
unjustifiable pain and suffering and constituted illegal torture. She said that it
suffered serious bodily injury and could have died without treatment.
Although the dog’s injuries were no longer life-threatening when it was
adopted a couple weeks later, Dr. Jones said the dog still had some muscle and
limb pain in his front legs and still limped slightly. She said the dog had a
protracted loss or impairment of his front legs. In her nearly twenty-eight years of
veterinary medical practice, this was the first time she had seen an animal who
had survived being shot by an arrow.
Because of the publicity about the dog’s injuries, survival, and recovery
from being shot with a crossbow, there were numerous applications for adoption.
A couple fell in love with and adopted the dog while it was still recovering from its
injuries. The dog’s family now consisted of the couple, their three-month old
daughter, and Jack, a Maltese. The dog’s owner testified it did not show any
aggression whatsoever. The owner said he had no problem with the dog at the
dog park near their neighborhood. He said the dog was no longer in pain but still
favored one side when it ran.
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Extraneous Offense
In his first issue, Appellant contends the trial court abused its discretion by
denying his motion for mistrial when a reference was made to an extraneous
offense for which Appellant had been found not guilty.
A video recording of Detective Stepp’s interview with Appellant was
admitted without objection and played to the jury. About twenty minutes into the
interview, Detective Stepp said, “You haven’t been in trouble for a long time. I
know your criminal history out of Georgia. I know your criminal history here.”
Appellant did not object. About thirty minutes into the interview, Detective Stepp
said, “I know you have been down this road before, okay, and I know you got
away with it once already. I know that.” At this point, Appellant moved for a
mistrial because the State had violated his motion in limine.
Outside the presence of the jury, the trial court suggested that it thought
any error was not preserved because the evidence came in once before without
objection. The State responded that it did not recall that comment being in the
interview and suggested an instruction to disregard. The trial court adjourned the
jury for the day. When trial resumed the next day, the trial court again suggested
it thought any error was waived because, in addition to Appellant’s failure to
object to the first comment, the video had been admitted without objection. The
trial court nevertheless wanted Appellant and the State to work out an instruction.
When trial resumed, the trial judge instructed the jury: “You are instructed to
disregard any mention of prior history, if any, of the Defendant with regard—
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during the interview with Detective Stepp. Such questions were improper and
inadmissible and not to be used by you in any way in deciding the verdict in this
case.”
The State argues that any error is not preserved because the video was
admitted without objection. We agree. Although Appellant complained that the
State had violated his motion in limine, generally the granting or denial of a
motion in limine is a preliminary ruling only and preserves nothing for appellate
review. Geuder v. State, 115 S.W.3d 11, 14–15 (Tex. Crim. App. 2003). A
defendant must make a timely objection to preserve an error in the admission of
evidence. Dinkins v. State, 894 S.W.2d 330, 355 (Tex. Crim. App.), cert. denied,
516 U.S. 832 (1995). A party should make an objection as soon as the ground of
objection becomes apparent. Id. Generally this occurs when the evidence is
admitted. Id. Consequently, if a question clearly calls for an objectionable
response, the party should make the objection before the evidence is admitted.
See id. If the party fails to object until after an objectionable question has been
asked and answered, and he can show no legitimate reason to justify the delay,
his objection is untimely, and the party waives any error. Id. At trial, Appellant
acknowledged having access to the video for some time and having reviewed it.
The trial court noted Appellant had not presented it with any motion to redact the
video. A mistrial is not required on the basis of an unpreserved evidentiary
complaint. See Glassey v. State, 117 S.W.3d 424, 432 (Tex. App.—Fort Worth
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2003, no pet.) (holding that the appellant failed to preserve error because the
evidence came in without objection during another witness’s testimony).
Notwithstanding the fact Appellant had not preserved error, the trial court,
as noted above, nevertheless gave the jury an instruction to disregard. On
appeal, Appellant attacks this instruction to disregard because it was not given
immediately and served only to compound the error. See Rojas v. State, 986
S.W.2d 241, 250 (Tex Crim. App. 1998) (stating instruction to disregard must be
given promptly); Hagood v. State, 284 S.W. 547, 547 (Tex. Crim. App. 1925)
(stating defendant, by objecting to instruction because it would only compound
error, preserved error notwithstanding absence of corrective instruction). At trial,
Appellant did not object to the instruction. Just the contrary, absent a mistrial,
Appellant favored an instruction to disregard. We hold any error regarding the
instruction to disregard was not preserved. Tex. R. App. P. 33.1(a). We hold the
trial court did not err by denying Appellant’s motion for mistrial or by giving the
instruction to disregard and overrule Appellant’s first issue.
Sufficiency of the Evidence
In his second issue, Appellant contends the evidence is insufficient to
support his conviction. He stresses the lack of fingerprint or other physical
evidence tying him to the shooting. Appellant argues that Ponce was a biased
witness and that even Ponce said he only saw Appellant walking with a
crossbow.
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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); Dobbs v. State, 434 S.W.3d 166, 170
(Tex. Crim. App. 2014). This standard gives full play to the responsibility of the
trier of fact to resolve conflicts in the testimony, to weigh the evidence, and to
draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S.
at 319, 99 S. Ct. at 2789; Dobbs, 434 S.W.3d at 170. The trier of fact is the sole
judge of the weight and credibility of the evidence. See Tex. Code Crim. Proc.
Ann. art. 38.04 (West 1979); Dobbs, 434 S.W.3d at 170. Thus, when performing
an evidentiary sufficiency review, we may not re-evaluate the weight and
credibility of the evidence and substitute our judgment for that of the factfinder.
Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010). Instead, we
determine whether the necessary inferences are reasonable based upon the
cumulative force of the evidence when viewed in the light most favorable to the
verdict. Sorrells v. State, 343 S.W.3d 152, 155 (Tex. Crim. App. 2011); see
Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013). We must
presume that the factfinder resolved any conflicting inferences in favor of the
verdict and defer to that resolution. Jackson, 443 U.S. at 326, 99 S. Ct. at 2793;
Dobbs, 434 S.W.3d at 170.
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The evidence showed Appellant had complained twice about the dog a
week before the offense. Appellant acknowledged having owned a crossbow.
Ponce saw Appellant with a crossbow only moments after the dog was shot with
a bolt from a crossbow. The jury could have reasonably concluded Appellant
was the person who shot the dog with a crossbow and could have reasonably
disbelieved Appellant’s testimony about the crossbow having been stolen and
about his use of bolts other than the one that injured the dog. The jury further
disbelieved Appellant’s purely speculative theory that Ponce lied and accused
Appellant in retaliation for Appellant having reported Ponce to the police earlier.
It was the jury’s prerogative to decide whom to believe. See Dobbs, 434 S.W.3d
at 170. We may not substitute our judgment for that of the jury. See Isassi, 330
S.W.3d at 638. We hold the evidence was sufficient for a rational trier of fact to
have found, beyond a reasonable doubt, that Appellant intentionally, knowingly,
or recklessly tortured or in a cruel manner killed or caused serious bodily injury to
an animal by shooting it with a crossbow. See Jackson, 443 U.S. at 319; Dobbs,
434 S.W.3d at 170. We overrule Appellant’s second issue.
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Conclusion
Having overruled both of Appellant’s issues, we affirm the trial court’s
judgment.
/s/ Anne Gardner
ANNE GARDNER
JUSTICE
PANEL: LIVINGSTON, C.J.; GARDNER and GABRIEL, JJ.
PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: June 11, 2015
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