Marcus Andre Bradley v. State

Opinion issued June 18, 2009

In The

Court of Appeals

For The

First District of Texas

NO. 01-08-00332-CR

__________

MARCUS ANDRE BRADLEY, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the County Criminal Court at Law No. 9

Harris County, Texas

Trial Court Cause No. 1500451

MEMORANDUM OPINION

Appellant, Marcus Andre Bradley, challenges the order of the county court at

law denying him the relief that he requested in his application for a writ of habeas

corpus. In his sole issue, appellant contends that the State's prosecution of him for

the offense of cruelty to animals, (1) after a justice court had, in a prior proceeding, (2)

terminated his ownership of 45 pit bull dogs and ordered him to pay $9,020 to the

Houston Humane Society for the boarding and care of the dogs, is barred under the

"doctrine[s] of double jeopardy[ (3) ] and collateral estoppel."

We affirm the order of the trial court.

Factual and Procedural Background In his application for a writ of habeas corpus, appellant asserted that the justice

court had previously imposed a "punishment" upon him by requiring that he forfeit

his 45 pit bull dogs and pay $9,020 for the boarding and care of the dogs. See Tex.

Health & Safety Code Ann. § 821.023 (Vernon Supp. 2008). Appellant also

asserted that the proceedings brought by the State against him in the justice court

under Chapter 821 of the Texas Health and Safety Code (4) constituted a "lesser-included offense" or an "identical" offense to that of the criminal offense of cruelty

to animals. See Tex. Penal Code Ann. § 42.092 (Vernon Supp. 2008).

Appellant attached to his application a copy of the "warrant for seizure of

animals" and the "order of disposition" issued in the justice court proceedings. The

warrant directed the Harris County Sheriff to seize the 45 pit bull dogs and impound

them at the Houston Humane Society. It further directed appellant to appear before

the justice court at a hearing on July 6, 2007 to determine whether the dogs had been

cruelly treated or abandoned. See Tex. Health & Safety Code Ann. §§

821.022-023 (Vernon Supp. 2008). In its order of disposition, the justice court found

that appellant, as the owner of the dogs, had "cruelly treated and/or not provided

proper nutrition/food, shelter and/or veterinary care" to the dogs and should be

divested of ownership of the dogs and pay $9,020 to the Houston Humane Society for

the boarding and care of the dogs. See id.

At the hearing on appellant's application in the county court at law, Harris

County Deputy Constable M. Timmons testified that after the Houston Police

Department had received a complaint about a dangerous dog that had attacked some

individuals in a neighborhood, he was contacted to assist in the investigation.

Officers found the dog, pursued it back to a fenced location, and then saw

approximately 40 pit bull dogs chained in a fenced, vacant lot. Timmons noted that

the living conditions of the dogs were not "suitable" and, citing Chapter 821 of the

Texas Health and Safety Code, "there was enough probable cause to proceed on a

civil hearing in the [justice] court to have the animals removed from the property."

Timmons explained that the dogs were restrained by heavy chains and collars, which

caused swollen necks and hair loss. Timmons, at the scene, met with appellant, who

admitted that he owned the dogs. Based upon his observations, Timmons obtained

a civil warrant through the justice court to seize the dogs. Timmons noted that he had

previously appeared at the hearing in the justice court and had generally testified that

the dogs had been cruelly treated. Appellant then introduced into evidence the

warrant and order of disposition.

Charles Walker, an assistant Harris County Attorney, testified that he had

appeared at the justice court hearing on behalf of the State. Walker explained that by

presenting the testimony of Deputy Timmons and a veterinarian at the justice court

hearing, he had proved that appellant had been cruelly treating the animals. In

response to appellant's questioning, Walker explained that the justice court had not

imposed a "fine," but rather had required appellant to pay for the animal care. See id.

§ 821.023(e). Walker further noted that he had "no criminal authority whatsoever"

in bringing the civil proceedings in the justice court and that proceedings brought

under the Texas Health and Safety Code are "strictly civil," so "we can give no

fines." (5) On cross-examination by the State, Walker agreed that the purpose of the

justice court proceeding was to seize the dogs and that the definition of animal cruelty

is different in the Texas Health and Safety Code than it is in the Texas Penal Code.

He also noted that under the Texas Penal Code, the State must prove "intent or

knowledge" to obtain a conviction and, on the "civil side," intent or knowledge need

not be proved to seize cruelly treated animals. Double Jeopardy

In his sole issue, appellant argues that the State's prosecution of him for the

offense of cruelty to animals is barred under the "doctrine[s] of double jeopardy and

collateral estoppel" (6) because the justice court had already entered an "order of

disposition" terminating his ownership of the 45 pit bull dogs and requiring that he

pay $9,020 to the Houston Humane Society for the boarding and care for the dogs.

The doctrine of collateral estoppel has no application under the present

circumstances. The doctrine of collateral estoppel "prevents a party who lost a fact

issue in the trial of one cause of action from relitigating the same fact issue in another

cause of action against the same party." See Ex parte Taylor , 101 S.W.3d 434, 440

(Tex. Crim. App. 2002). Here, the State did not lose on a fact issue in the justice

court proceedings. In fact, the State prevailed in the justice court proceedings, and

this disposition is the basis of appellant's complaint in the county court at law that he

was being subjected to multiple punishments. None of the authorities cited by

appellant apply the collateral estoppel doctrine in the fashion that appellant requests.

Accordingly, we hold that the county court at law did not err in denying appellant the

relief he requested on the ground that the State should be collaterally estopped from

prosecuting him for the offense of cruelty to animals.

In regard to double jeopardy, the United States Constitution provides, "[N]or

shall any person be subject for the same offense to be twice put in jeopardy of life or

limb." U.S. Const. amend. V, cl. 2. The Double Jeopardy Clause of the Texas

Constitution provides, "[N]o person, for the same offense, shall be twice put in

jeopardy of life or liberty, nor shall a person be again put upon trial for the same

offense, after a verdict of not guilty in a court of competent jurisdiction." (7)

Tex.

Const. art. I, § 14.

Generally, there are three types of double jeopardy claims: (1) a second

prosecution for the same offense after an acquittal; (2) a second prosecution for the

same offense after a conviction; and (3) multiple punishments for the same offense.

Langs v. State , 183 S.W.3d 680, 685 (Tex. Crim. App. 2006). All three types of

double jeopardy claims arise only when duplicative prosecutions or punishments

involve the same offense. See id. Here, as noted above, appellant asserts that he is

being subjected to two criminal punishments under "identical facts," i.e., the dogs

were not provided proper nutrition, shelter, and veterinary care by appellant. The

United States Supreme Court has explained that "[w]hether a particular punishment

is criminal or civil is, at least initially, a matter of statutory construction" and that "[a]

court must first ask whether the legislature, in establishing the penalizing mechanism,

indicated either expressly or impliedly a preference for one label or the other."

Hudson v. United States , 522 U.S. 93, 99 , 118 S. Ct. 488, 493 (1997).

The provisions in subchapter B of Chapter 821 of the Texas Health and Safety

Code, and specifically sections 821.022-023, are civil in nature. See Chambers v.

State , 261 S.W.3d 755, 759 (Tex. App.--Dallas 2008, pet. denied) (noting that State

had filed "animal cruelty case pursuant to [C]hapter 821 of the health and safety code

dealing with the health and safety of animals, not as a crime" under Texas Penal Code

sections 42.09 and 42.10); Granger v. Folk , 931 S.W.2d 390, 392 (Tex.

App.--Beaumont 1996, pet. denied) (stating that "[c]learly, two avenues exist for the

State in protecting animals from cruel treatment, i.e., criminal prosecution under . . .

the [Texas] Penal Code and the civil remedy provided under [s]ection 821.023 of the

[Texas] Health and Safety Code"). In fact, section 821.023 expressly contemplates

the possibility of criminal proceedings brought subsequent to civil proceedings. See

Tex. Health & Safety Code Ann. § 821.023 (b) (Vernon Supp. 2008) ("A statement

of an owner made at a hearing provided for under this subchapter is not admissible

in a trial of the owner for an offense under Section 42.09 or 42.092, Penal Code.");

see also Granger , 931 S.W.2d at 392 (stating that section 821.023(a) "presumes a

criminal proceeding prior to the civil proceeding while [section 821.023(b)] presumes

the reverse" and that in criminal proceedings under Texas Penal Code "a defendant

may face loss of freedom or fine or both, whereas, a proceeding under [s]ection

821.023 may subject the defendant to a loss, forfeiture and confiscation of property

rights and interests.").

We recognize that the United States Supreme Court has explained that, "even

in those cases where the legislature has indicated an intention to establish a civil

penalty, a court must inquire further whether the statutory scheme is so punitive either

in purpose or effect as to transform what was clearly intended as a civil remedy into

a criminal penalty." Capps v. State , 265 S.W.3d 44, 49 (Tex. App.--Houston [1st

Dist.] 2008, pet. ref'd) (citing Hudson , 522 U.S. at 99 , 118 S. Ct. at 493 )). In making

this determination, a court should consider (1) whether the sanction involves an

affirmative disability or restraint; (2) whether it has historically been regarded as a

punishment; (3) whether it comes into play only on a finding of scienter; (4) whether

its operation will promote the traditional aims of punishment--retribution and

deterrence; (5) whether the behavior to which it applies is already a crime; (6)

whether an alternative purpose to which it may rationally be connected is assignable

for it; and (7) whether it appears excessive in relation to the alternative purpose

assigned. Hudson , 522 U.S. at 99-100 , 118 S. Ct. at 493 ; see also Capps , 265

S.W.3d at 49 (applying Hudson factors and concluding that disciplinary actions

brought against attorney did not constitute criminal punishment to bar subsequent

criminal proceedings); see also Ex parte Sheridan , 974 S.W.2d 129, 132 (Tex.

App.--San Antonio 1998, pet. denied) (applying Hudson factors and finding that

cancellation of alcoholic beverage license by regulatory commission did not

constitute punishment and, thus, double jeopardy protections did not bar license

holder's subsequent prosecution for his making of false statements on license

application). However, "these factors must be considered in relation to the statute on

its face, and only the clearest proof will suffice to override legislative intent and

transform what has been denominated a civil remedy into a criminal penalty."

Hudson , 522 U.S. at 100 , 118 S. Ct. at 493 (citations omitted) (emphasis added).

Applying the factors, we first note that the seizure of appellant's dogs and the

order requiring that he pay for their care while boarded at the Houston Humane

Society did not "involve an affirmative disability or restraint" upon appellant.

Second, the civil provisions of subchapter B of Chapter 821, which were enacted for

the protection of animals, have not been historically regarded as "punishment" against

the owners of animals. Third, as explained by the county attorney at the hearing on

appellant's application, and as is evidenced by the order of disposition, no finding of

scienter is required under Chapter 821. See Capps , 265 S.W.3d at 51 (noting that

"there is no general requirement of scienter in the disciplinary rules"). Fourth,

although proceedings brought under chapter 821 to seize cruelly treated animals "may

offer some amount of deterrence--a traditional goal of criminal punishment--the

mere presence of this purpose is insufficient to render" these proceedings and the

resulting order divesting ownership and requiring payment for animal care to be

criminal punishment. See id. at 52 . Fifth, although the cruel treatment of animals

may give rise to criminal proceedings, "this fact is insufficient to render" the remedies

afforded under section 821.023 as "criminally punitive." See id. ; see also Ex parte

Sheridan , 974 S.W.2d at 134 ("It is well settled that the legislature may impose both

a criminal and a civil sanction in respect to the same act or omission."). Finally, as

noted above, proceedings brought under subchapter B of Chapter 821 and the

remedies authorized therein are designed to protect animals from cruel treatment, and

neither divesting a party from the ownership of cruelly treated animals nor requiring

the payment of money for their care are excessive to this purpose.

In sum, we conclude that "there is little evidence, much less the clearest proof,"

that the justice court's order of disposition terminating appellant's ownership of the

dogs and requiring that he pay for their care was so punitive either in purpose or

effect as to transform the civil action and remedies imposed into a criminal

punishment. See Capps , 265 S.W.3d at 50-51 . Accordingly, we hold that the State's

subsequent criminal prosecution of appellant for the criminal offense of cruelty to

animals does not violate the double jeopardy prohibitions of the United States and

Texas Constitutions. Accordingly, we further hold that the county court at law did

not err in denying appellant the relief that he requested on the ground that the

prosecution violates the double jeopardy prohibitions.

We overrule appellant's sole issue.

Conclusion

We affirm the order of the trial court.

Terry Jennings

Justice

Panel consists of Justices Jennings, Alcala, and Higley.

Do not publish. See Tex. R. App. P. 47.2(b).

1.

See Tex. Penal Code Ann. § 42.092 (Vernon Supp. 2008).

2.

Trial Cause No. CV620006208 (Justice Ct., Precinct 6, Place 2, Harris County, Tex.).

3.

See U.S. Const. amend. V; Tex. Const. art. I, § 14.

4.

See Tex. Health & Safety Code Ann. §§ 821.001-821.081 (Vernon Supp. 2008).

5.

Appellant's counsel even agreed on the record that the payment ordered by the justice

court did not constitute a "fine." In fact, after appellant's counsel initially referred to

this payment as a "fine," he then corrected himself and referred to it as a "monetary

assessment."

6.

Although appellant refers to a document entitled "Special Plea of Double

Jeopardy/Collateral Estoppel," no such document appears in the record. Rather, the

record contains only a copy of the application for writ of habeas corpus.

7. The Texas Constitution has been construed to give no greater protection than the

United States Constitution in regard to double jeopardy. Johnson v. State , 920 S.W.2d

692, 693 (Tex. App.--Houston [1st Dist.] 1996, pet. ref'd) (citing Stephens v. State ,

806 S.W.2d 812, 815 (Tex. Crim. App. 1990)). Thus, a bifurcated analysis is not

necessary. Capps v. State , 265 S.W.3d 44 , 49 n.9 (Tex. App.--Houston [1st Dist.]

2008, pet. ref'd).