Opinion
No. 2-04-390-CR
Delivered: August 16, 2007. DO NOT PUBLISH. Tex. R. App. P. 47.2(b)
Appeal from Criminal District Court No. 3 of Tarrant County.
PANEL B: DAUPHINOT, WALKER, and McCOY, JJ.
MEMORANDUM OPINION ON REMAND
See TEX. R. APP. P. 47.4.
On original submission of this appeal, we sustained Appellant Micrea Volosen's first issue, which alleged that the evidence at trial was legally insufficient to support his conviction for cruelty to animals. See Volosen v. State, 192 S.W.3d 597 (Tex.App.-Fort Worth 2006), rev'd, 227 S.W.3d 77 (Tex.Crim.App. 2007). The indictment alleged that Volosen had killed a neighbor's dachshund without legal authority, but at trial and on appeal Volosen claimed that the evidence conclusively established that he did possess legal authority to kill the dachshund because immediately before he killed, it he had observed it in his chicken coop attacking his chickens. See id. at 601. Volosen argued, and we held, that Texas Health and Safety Code section 822.033(a) vested him with legal authority to kill the dachshund because it provides that "[a] dog that is attacking, is about to attack, or has recently attacked sheep, goats, calves, or other domestic animals or fowls may be killed by any person witnessing or having knowledge of the attack." See Volosen, 192 S.W.3d at 599. On the State's petition for discretionary review, however, the court of criminal appeals held that "because § 822.033 was contained within a subchapter of limited applicability, a defense based upon that provision necessarily includes as one of its elements the statute's applicability." Volosen, 227 S.W.3d at 82. The court of criminal appeals then held that Volosen had "failed to meet his burden of production to show the applicability of his claimed defense" under section 822.033. Accordingly, the court of criminal appeals reversed our judgment and remanded the case to us "to address appellant's remaining points of error." Id.
Volosen's remaining issues are as follows:
II. The evidence presented at trial was factually insufficient to prove an essential element of the offense, to-wit, whether the defendant acted without legal authority when he hit the dog at issue with a maul.
III. Whether a trial court may negate a statutory legal defense (legal authority under the health and safety code and penal code) by sua sponte adding a non-statutory exception to that defense.Both of these issues-like Volosen's first issue-hinge on the application of the defense Volosen claimed under Texas Health and Safety Code section 822.033, which Volosen contends vested him with legal authority to kill the dachshund immediately after he saw it attacking his chickens in his chicken coop. But the court of criminal appeals has already held that Volosen failed to meet his burden of establishing the applicability of this defense. Id. Consequently, we must overrule his second and third issues. We affirm the trial court's judgment.
See TEX. PENAL CODE ANN. § 42.09(a)(5) (Vernon Supp. 2006).
This statute was in effect when Volosen allegedly committed the offense, but the legislature later amended it, with minor substantive changes, and renumbered it. See Act of May 16, 1989, 71st Leg., R.S., ch. 678, § 1, 1989 Tex. Gen. Laws 2230, 3142, amended by Act of May 22, 2003, 78th Leg., R.S., ch. 1002, § 1, 2003 Tex. Gen. Laws 2941, 2942 (codified as amended at TEX. HEALTH SAFETY CODE ANN. § 822.013 (Vernon Supp. 2006)).