Simmons was convicted of cruelty to horses and appealed, claiming that his
lawyer did not properly do his job in representing him.
In this opinion, the Court of Appeals examines the evidence at the civil
hearing to determining the fate of the seized horses and at the criminal cruelty
to animals trial and concludes that defendant did not prove that his lawyer did
not do his job properly.
Charles Jansen, an investigator for the
Society for the Prevention of Cruelty to Animals (SPCA), testified that, on
April 1, 2001, he responded to a report of a "downed" horse at 12866
Reevston, in Harris County, Texas. The
property at this address is a five‑acre pasture leased by appellant.
Jansen arrived at the property, he found an emaciated mare lying in a field, not
moving. Jansen also saw six other
horses which, in his opinion, had "inadequate body weight."
Jansen did not see any water pumps, water hoses, or food for the horses
and noticed that the grass in the pasture was "very short."
In a corner of the property, Jansen saw a tub containing some rainwater
and another tub with "two to three inches" of water in it.
"downed" mare had made a circle in the dirt around it from its
unsuccessful attempts to stand by "thrashing" its legs.
The horse was unable to stand up, and Jansen, after obtaining a civil
warrant to seize the horse, used a sled to lift the horse into a trailer and
then transported it to the Houston SPCA shelter.
SPCA Investigator Jim Boller testified that he was called to assist Jansen with
the removal of the "downed" mare and the investigation of this case.
Boller evaluated the body condition of the mare using the Hanneke scoring
method, which rates the condition of horses on a range from 1 (extremely
emaciated) to 9 (extremely fat). Boller
explained that the "norm" score on the Hanneke scale is 5. Boller
testified that he gave the mare a Hanneke score of 1.75.
In his opinion, the mare was approximately 400 pounds underweight.
Boller also evaluated the other six horses on the property, and their
scores ranged from 2 to 3.75. In
his opinion, it would take longer than six weeks for a horse that was not being
properly fed and watered to drop from a Hanneke score of 5 to a score of 2.
described the grass in the pasture as "minimal" and testified that the
size of the pasture was inadequate to sustain the horses without supplemental
feed. From his examination of the
water trough, it was Boller's opinion that the horses had not been provided with
water on a regular basis and that the water level of the trough had been low for
an extended period of time. Boller
testified that horses require proper feeding every day, and he estimated the
cost of feeding seven horses at approximately $700 per month.
From his examination of the horses, Boller concluded that they had not
received routine dental or hoof care. Fecal
testing indicated that the horses suffered from "heavy infestations"
of stomach parasites. In Boller's
opinion, appellant's horses had not been adequately cared for.
subsequently obtained another civil warrant for the seizure of the remaining
horses. Two days after Jansen's
initial visit to the property, the remaining horses were seized and taken to the
SPCA shelter. [FN2] Precinct One
Constable Officer C. Kendrick testified that she posted the notices of the
seizure of the horses on the gate of the pasture.
surviving horses were subsequently adopted by persons approved by the SPCA.
after the horses were seized, appellant telephoned Jansen at the number listed
on the posted notices and identified himself as the owner of the horses and as a
Harris County Sheriff's Deputy. During
their telephone conversation, appellant told Jansen that the horses were being
fed regularly and that appellant had been to the property on the previous day.
Appellant explained that he had given some money to a man he identified
as "Mr. Chavez" to care for the horses during the previous month, but
appellant could not provide Jansen with Chavez's telephone number or address.
Timothy Harkness, the chief veterinarian for the Houston SPCA, testified that
the mare seized by Jansen and Boller was very emaciated, was in an acute state
of dehydration, and was suffering acute anemia caused by internal parasites and
lack of proper nutrition. Dr.
Harkness testified that the mare was given intravenous fluids, antibiotics, and
pain medications, but it died the following morning. Based on his examination and subsequent autopsy of the mare,
Dr. Harkness concluded that the horse had not been fed properly for "a
period greater than six months." In
Dr. Harkness's opinion, the horse died as a result of a "heavy"
infestation of stomach parasites and malnutrition. Dr. Harkness explained that stomach parasites can be treated
with "routine veterinary care and maintenance," including
"worming" medications that an owner can purchase at a feed store and
administer to his horses.
testified that, at a civil hearing to determine whether the surviving horses
would be permanently taken from appellant, appellant appeared and claimed
"custody" of the seized horses. Jansen
also testified that he first saw appellant at the civil hearing.
Officer Kendrick attended the civil hearing, and she testified that, at
that hearing, appellant stated that he had been paying someone to care for the
Simmons, appellant's wife, testified that, during the first week of January
2001, she and her husband met with Jesus Amanderez, Sr., who lived next to the
pasture where appellant kept his horses. Simmons
testified that she translated for her husband so that he could converse with
Amanderez, who speaks mostly Spanish. Simmons testified that appellant and Amanderez discussed the
amount of a water bill, and that appellant agreed to pay Amanderez "to take
care of everything that needed to be taken care of" for the horses.
Simmons could not remember the amount her husband agreed to pay Amanderez,
and she was not present for any other conversations between the two men.
Appellant testified that, in January 2001, his wife translated
his conversation with Amanderez, concerning appellant's agreement to pay
Amanderez to provide water for appellant's horses.
Appellant testified that, on February 25, 2001, he spoke to Amanderez
again, with Amanderez's son translating, and that during that conversation,
appellant and Amanderez agreed that appellant would pay Amanderez to feed and
water appellant's horses. Appellant
testified that he provided Amanderez with 300 to 500 pounds of feed for the
horses. Appellant also testified that he "wormed" the horses in
January and February 2001. Appellant
did not return to the pasture until March 31, 2001, the day before the downed
mare was seized, and he testified that he did not see any horses down at the
time. Appellant acknowledged that
he was ultimately responsible for the horses.
Amanderez, Sr. testified that, in November 2000, he agreed to provide water for
appellant's horses, and that appellant paid him $40 for the water in January
2001. Amanderez testified that he
never met with appellant in February 2001 and did not agree to provide water or
feed for the horses after January 2001. Amanderez
also testified that appellant never gave him any feed for the horses, and that,
after January 2001, Amanderez sometimes provided water to the horses only
because he never saw appellant and "felt sorry" for the horses.
Amanderez's son, Jesus Amanderez, Jr., testified that he and his father met with
appellant once in January 2001 to arrange for Amanderez, Sr. to water
appellant's horses. Amanderez, Jr.
testified that he never met with appellant again and did not know how often his
father watered the horses.
Assistance of Counsel
his sole point of error, appellant contends that his trial counsel rendered
ineffective assistance. Specifically,
appellant argues that his trial counsel was ineffective for (1) failing to
object to testimony from three witnesses concerning appellant's appearance and
statements at the civil hearing to determine the fate of the surviving seized
horses and (2) introducing testimony from appellant, appellant's wife, and two
other witnesses establishing that the horses were in appellant's
show ineffective assistance of counsel, an appellant must demonstrate that
counsel's representation fell below an objective standard of reasonableness
based on prevailing professional norms, and that, but for counsel's errors,
there is a reasonable probability the result of the proceeding would have been
Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S.Ct. 2052,
2064‑65, 2068 (1984);
Hernandez v. State, 726 S.W.2d 53, 57 (Tex.Crim.App.1986).
A "reasonable probability" is defined as a probability
sufficient to undermine confidence in the outcome. Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App.1999);
Jackson v. State, 973 S.W.2d 954, 956 (Tex.Crim.App.1998).
It is an appellant's burden to prove a claim of ineffective assistance of
counsel by a preponderance of the evidence.
Thompson, 9 S.W.3d at 813;
Jackson, 973 S.W.2d at 956;
McFarland v. State, 845 S.W.2d 824, 843 (Tex.Crim.App.1992).
An appellant must satisfy both prongs of the
Strickland test, or the claim of ineffective assistance will fail.
466 U.S. at 697, 104 S.Ct. 2052;
Garcia v. State, 57 S.W.3d 436, 440 (Tex.Crim.App.2001).
assessment of whether a defendant received effective assistance of counsel must
be made according to the facts of each case.
Thompson, 9 S.W.3d at 813. We
must look to the "totality of the representation and the particular
circumstances of each case" in evaluating the effectiveness of counsel.
Id. In so doing, we must also recognize the strong presumption that
counsel's performance fell within the wide range of reasonable professional
assistance. Strickland, 466 U.S. at
688, 104 S.Ct. at 2065; Thompson, 9 S.W.3d at
813. In the absence of evidence of
trial counsel's reasons for the challenged conduct, an appellate court commonly
will assume a strategic motivation if any can possibly be imagined, and will not
conclude the challenged conduct constituted deficient performance unless the
conduct was so outrageous that no competent attorney would have engaged in it.
Garcia, 57 S.W.3d at 440.
Appellant argues that his trial counsel should have objected
to what appellant asserts was hearsay testimony from Jansen, Boller, and
Kendrick as to appellant's appearance and statements at the civil hearing to
determine whether the surviving horses would be removed from appellant's
custody. Statements of an animal's
owner made at such a hearing are not admissible in the owner's criminal trial
for cruelty to the animal. Tex.
Health & Safety Code Ann. § 821.023(b) (Vernon Supp.2003).
Jansen testified that he saw appellant for the first time at the civil hearing.
Jansen did not relate any statements made by appellant at that hearing.
Therefore, appellant's counsel was not ineffective for failing to object
to this testimony.
testified that appellant appeared at the civil hearing and "claimed
ownership" of the horses. However,
this testimony was merely cumulative of Jansen's earlier testimony that he spoke
with appellant on the telephone, and that appellant admitted he was the owner of
the horses in question. Moreover,
isolated failures to object to improper evidence or certain procedural mistakes
do not constitute ineffective assistance of counsel.
Ingham v. State, 679 S.W.2d 503, 509 (Tex.Crim.App.1984).
We cannot conclude that appellant's counsel was ineffective for not
objecting to this testimony.
Kendrick testified that appellant appeared at the civil hearing.
When Kendrick was asked, on direct examination, whether appellant had
said anything at the hearing, appellant's trial counsel timely objected to the
question as calling for hearsay, and a bench conference followed.
No record was made of the discussion at the bench.
At the conclusion of the bench conference, the trial court overruled the
objection, and Kendrick testified that, at the civil hearing, appellant
explained that "he had been paying someone to take care of the
animals." Contrary to
appellant's assertion, his trial counsel
did object to the question posed to Kendrick, but the record is silent as to
any detailed basis counsel may have given for the objection, or any explanation
the trial court may have given for overruling the objection.
Based on the record presented, we cannot conclude that appellant's trial
counsel was ineffective in his efforts to keep out this testimony.
Appellant also argues that his trial counsel was ineffective
for eliciting testimony from appellant, appellant's wife, Jesus Amanderez Sr.,
and Jesus Amanderez, Jr. concerning appellant's efforts to care for the horses
and to arrange for the provision of food and water for them.
Appellant argues that, had his trial counsel not offered the testimony of
appellant and appellant's wife, and not called the Amanderezes to testify, there
would have been no evidence presented to the jury to establish that the horses
were in appellant's "custody."
person commits the offense of cruelty to animals if he intentionally or
knowingly "fails unreasonably to provide necessary food, care, or shelter
for an animal" in his custody. Tex.
Pen.Code. Ann. § 42.09(a)(2) (Vernon 2003).
Here, the jury charge accurately tracked the language of this statute.
"Custody" is defined by the statute as including
"responsibility for the health, safety, and welfare of an animal subject to
the person's care and control, regardless of ownership of the animal."
Id. § 42.09(c)(4) (Vernon 2003).
the close of the State's case, the jury had heard evidence that (1) appellant
owned the horses at issue, (2) the horses were malnourished, dehydrated, and
poorly cared for, and (3) one of the horses had died as a result of malnutrition
and an infestation of stomach parasites. Appellant's
trial counsel then presented evidence, through the testimony of appellant and
appellant's wife, that appellant had cared for the horses and had arranged for
the Amanderezes to water and feed them. The
Amanderezes' testimony supported appellant's testimony concerning the
arrangement to provide water for the horses, although the Amanderezes denied the
existence of any agreement to provide food for the horses.
Appellant argues that because the Amanderezes denied the
existence of an agreement to care for the horses, trial counsel must have been
ineffective for presenting witnesses "without ascertaining if they will
testify favorably or unfavorably."
See Ex parte Duffy, 607 S.W.2d 507, 517 (Tex.Crim.App.1980). However,
the record is silent as to trial counsel's motives in calling these witnesses
and in regard to appellant's decision to testify.
Finding counsel ineffective without a record or evidence of counsel's
reasons for the alleged acts of ineffectiveness would amount to improper
speculation. Jackson v. State, 877
S.W.2d 768, 771 (Tex.Crim.App.1994).
the testimony of appellant, appellant's wife, and the Amanderezes, the jury
would have heard no evidence of appellant's attempts to care for and arrange
proper feeding and watering for the horses, which testimony served to contradict
and mitigate the evidence presented by the State.
From the record presented, we cannot conclude that counsel was
ineffective in eliciting the complained of testimony.
overrule appellant's sole point of error.
Appellant has not met his burden to prove his claim of
ineffective assistance of counsel. Based
on the record, we cannot conclude that appellant's counsel's conduct was so
outrageous that no competent attorney would have engaged in it. See Garcia, 57 S.W.3d at 440.
affirm the judgment of the trial court.
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