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Court of Appeals of Texas, Houston (14th Dist.)

Vavrecka v. State
Texas
2009 WL 179203, 4 (Tex.App.-Hous. (Tex.App.-Houston [14 Dist.],2009).

Case Details
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Summary:   Defendant appealed a conviction for cruelty to animals after several dogs that appeared malnourished and emaciated with no visible food or water nearby were found on Defendant’s property by a police officer and an Animal Control officer. The Court of Appeals of Texas, Houston, 14th District confirmed the conviction, finding that Defendant waived any error with respect to her motion to suppress evidence by affirmatively stating at trial that Defendant had “no objection” to the admission of evidence, and that even if Defendant had preserved the complaint for appellate review, Defendant could not have prevailed since the same facts were established by other admissible evidence introduced without objection; thus Defendant could not demonstrate harm. The Court further found that Defendant failed to adequately brief or present sufficient legal authority, and thus waived Defendant’s complaints with respect to the Court’s denial of Defendant’s request to question a witness regarding alleged bias. Finally, the Court’s denial of Defendant’s request to show evidence of Defendant’s past practice and routine of caring for stray animals and nursing them to health did not deprive Defendant of a complete defense.

Judge KEM THOMPSON FROST, Justice delivered the opinion of the court.


Opinion of the Court:

 *1 Appellant Jill Young Vavrecka appeals her conviction for cruelty to animals, claiming the trial court abused its discretion in (1) denying her pretrial motion to suppress, (2) denying appellant an opportunity to question a witness as to potential bias, and (3) denying appellant an opportunity to present evidence of her past practice and routine in caring for animals. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

   A police officer responded to a complaint that several dogs on appellant's property appeared to be abandoned and in distress. From the road, the officer saw what appeared to be abandoned property with tall grass, inoperable vehicles, scattered refuse, and no electricity. The officer spotted two dogs that looked malnourished and emaciated, with no visible food or water nearby. He claimed he could see one dog's hip bones from his vantage on the road. This dog was attached to a chain. The officer entered the property without a warrant and knocked on the door to a trailer located on the property, but no one answered. The officer noticed that the dogs' food was infested with bugs and strewn with trash, and the animals could not reach any water contained in a barrel some distance away. The dogs were covered with fleas. He found three dogs in similar condition in a back-yard pen; these dogs had little or no hair. The officer noticed the strong smell of urine and fecal matter, which covered the areas where the dogs were confined. The officer called Fort Bend County Animal Control (“Animal Control”) to check on the animals on the following day because he understood that Animal Control policies discouraged weekend calls unless an emergency situation arose involving a human or a loose, aggressive dog. The officer returned at midnight, after his shift had ended, to offer the dogs fresh water and food, which they ingested as soon as he offered it.

   A field officer from Animal Control went to the property on the next day. The field officer confirmed the property's appearance and the animals' condition as the dogs had no clean place to sit, no accessible water or food, and appeared to be suffering from mange and malnourishment. The field officer was accompanied by a police officer, who knocked on the door of the trailer. No one answered. The field officer left a note for the owner of the property and then removed the dogs from the property.

   Appellant learned that Animal Control had removed the dogs, and she attempted to get the dogs back. Animal Control petitioned a justice of the peace to release the animals to the care of Animal Control to prevent the animals from being returned to appellant. The justice of the peace held a hearing on the matter, which appellant attended, and ordered the dogs to be released to Animal Control. Three of the five dogs were euthanized immediately because they suffered from disease. One dog was adopted, and another dog was kept in the care of Animal Control before being euthanized one month later.

   *2 Appellant was charged with a misdemeanor offense of cruelty to animals, to which she pleaded “not guilty.” After a trial on the merits, the jury found appellant guilty. The trial court sentenced appellant to probation.

II. ISSUES AND ANALYSIS


A. Did the trial court abuse its discretion in denying appellant's motion to suppress?


   In her first issue, appellant contends the trial court abused its discretion in denying her motion to suppress the evidence from the police officer's search of her property, because exigent circumstances did not justify the officer's warrantless entry onto the property. In her motion, appellant sought the suppression of “all evidence obtained by the Needville Police Department.”

   We review a trial court's ruling on a motion to suppress under an abuse-of-discretion standard. State v. Dixon, 206 S.W.3d 587, 590 (Tex.Crim.App.2006). If supported by the record, a trial court's ruling on a motion to suppress will not be overturned. See id. At a suppression hearing, the trial court is the sole finder of fact and is free to believe or disbelieve any or all of the evidence presented. Brooks v. State, 76 S.W.3d 426, 430 (Tex.App.-Houston [14th Dist.] 2002, no pet.). We afford almost total deference to the trial court's determination of the historical facts that the record supports, especially when the trial court's findings turn on evaluating a witness's credibility and demeanor. State v. Ross, 32 S.W.3d 853, 856 (Tex.Crim.App.2000), modified on other grounds, State v. Cullen, 195 S.W.3d 696 (Tex.Crim.App.2006). We review de novo the trial court's application of the law to the facts if resolution of those ultimate questions does not turn on the evaluation of credibility and demeanor. Id.

   Though appellant asserts the trial court abused its discretion in denying the motion, appellant has failed to preserve error for appellate review. A motion to suppress is nothing more than a specialized objection to the admissibility of evidence. Galitz v. State, 617 S.W.2d 949, 952 n. 10 (Tex.Crim.App.1981). When a pretrial motion to suppress evidence is overruled, the defendant need not subsequently object at trial to the same evidence to preserve error on appeal. Moraguez v. State, 701 S.W.2d 902, 904 (Tex.Crim.App.1986). However, when a defendant affirmatively states during trial that she has “no objection” to the admission of evidence, she waives any error, despite the pretrial ruling. Moody v. State, 827 S.W.2d 875, 889 (Tex.Crim.App.1992).

   We first presume without deciding that the reference in appellant's motion to suppress to “all evidence obtained by the Needville Police Department” applies to the exhibits offered by the State, sixteen photographs taken by the officer of appellant's property and dogs. Appellant waived error at trial when she stated “no objection” to all sixteen of the State's exhibits each time the State offered the photos and the trial court admitted the photos into evidence. See id. Though appellant initially preserved error through the trial court's ruling on the pretrial motion to suppress, because appellant's counsel specifically stated that she had no objection to the State's offer of evidence seized during the search, she waived the complaint. See id.

   *3 Moreover, even if appellant had preserved his complaint for appellate review, she still could not prevail because appellant could not demonstrate harm. The same facts were established by other admissible evidence introduced without objection. See Willis v. State, 785 S.W.2d 378, 383 (Tex.Crim.App.1989). The record reflects that both the police officer and the field officer from Animal Control testified without objection to the same facts regarding the dogs' condition and the property's appearance. Such testimony from both witnesses offered far more information than what the photos demonstrated. Because the testimony from these witnesses established the same or greater information than the photos depicted, the photos were cumulative. Any error in admitting the photos was, thus, harmless. See id.

   For these reasons, we overrule appellant's first issue.


B. Did the trial court commit reversible error in denying appellant's request to question a witness as to any bias?


   In appellant's second issue, she claims that the trial court committed reversible error by denying her request to question a witness, Clyde Rogers, who is appellant's daughter's former boyfriend, regarding his alleged bias against appellant based on his prior soured relationship with appellant's daughter, a paternity suit over appellant's grandchild, and an investigation against Rogers for an alleged sexual assault on appellant's daughter. According to appellant, Rogers, acting on his bias against appellant, reported the dogs' condition to the police officer.

   Before trial, the State filed a motion in limine, seeking to prevent references to the paternity suit, the sexual-assault investigation, or Rogers' relationship with appellant and her family. The record reflects that the trial court granted this motion by prohibiting references to Rogers's involvement in a paternity suit, a sexual-assault investigation, and his relationship with appellant's family members. However, the trial court permitted references to any “bad blood” between Rogers and appellant. Appellant made a bill of exception on this issue.

   On appeal, appellant has failed to adequately brief this issue, and therefore has waived her complaint for appellate review. To present an issue for appellate review “the brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record.” TEX.R.APP. P. 38.1(h). Appellant has not presented any legal authority or citation in support of her second issue that the trial court committed any error in denying her an opportunity to question Rogers as to any bias against appellant. See id. Appellant has not addressed any of the governing legal principles or applied them to the facts of this case. See King v. State, 17 S.W.3d 7, 23 (Tex.App.-Houston [14th Dist.] 2000, pet. ref'd). Appellant's brief contains a sentence that the information was important to the jury and the trial court's error harmed appellant's right to a fair trial. However, conclusory statements which contain no citations to authority present nothing for appellate review. Id.; see also Vuong v. State, 830 S.W.2d 929, 940 (Tex.Crim.App.1992). Accordingly, we hold that appellant has waived error and overrule her second issue.


C. Did the trial court commit reversible error in denying appellant an opportunity to present evidence of appellant's habit and routine of caring for sick animals?


   *4 In her third issue, appellant complains that the trial court committed reversible error in denying her request to present evidence of her defense under Texas Rule of Evidence 406 of her past practice and routine of caring for stray animals and nursing them to health. In its motion in limine, the State sought to prevent testimony that appellant owned or cared for other animals, which were not at issue in the case at hand. The State also sought to prevent testimony that appellant took other animals for veterinary care when those animals were not at issue in the present case. At a hearing on the motion, appellant argued that her care of other animals was relevant and that the State's request was unconscionable. The trial court granted both aspects of the State's motion. As to appellant's specific objections during trial under Texas Rule of Evidence 406, the trial court permitted a line of questioning as to appellant's habit and routine of care as to the five dogs at issue, but not for other animals. Appellant made a bill of exception on this issue. Appellant complains on appeal that without evidence of her past practices regarding her care of other animals, she was prevented from presenting a complete defense, which she claims deprived her of due process.

   Appellant has not presented any legal authority or citation in support of this third issue that the trial court committed reversible error in denying her presentation of this evidence or that she was prevented from presenting a complete defense, which deprived her of due process. See TEX.R.APP. P. 38.1(h) (“The [appellant's] brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record.”). She has not addressed any of the governing legal principles supporting her argument that the trial court committed error nor has she applied them to the facts of this case. See King, 17 S.W.3d at 23. Appellant's brief contains a sentence that exclusion of such evidence makes the verdict suspect and warrants reversal and remand for a new trial. However, as stated previously, conclusory statements that contain no authority present nothing for appellate review. Id.; see also Vuong, 830 S.W.2d at 940. Therefore, we hold appellant has waived any error on this issue, and we overrule appellant's third issue.

   Having overruled each of appellant's three issues, we affirm the trial court's judgment.

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