Dixon v. State

455 S.W.3d 669

Wydell Dixon, Appellant

v.The State of Texas, Appellee.

NOS. 01–13–00408–CR

01–13–00409–CR

01–13–00410–CR

01–13–00411–CR

Court of Appeals of Texas, Houston (1st Dist.).

Opinion issued December 16, 2014

Discretionary Review Refused April 29, 2015

Rehearing Denied June 17, 2015

R. Scott Shearer, Houston, TX, for appellant.

Jack Roady, Criminal District Attorney, Galveston, TX, Brent Haynes, Asst. Criminal District Attorney, Galveston, TX, for state.

Panel consists of Chief Justice Radack and Justices Jennings and Keyes.

OPINION

Sherry Radack, Chief Justice

A jury convicted appellant, Wydell Dixon, of four charges of cruelty to nonlivestock animals, a state jail felony. See Tex. Penal Code Ann. § 42.092(b)(1), (c) (Vernon 2011). The trial court then assessed punishment at two years' confinement, but suspended, and placed appellant under community supervision for five years' on each charge, to be served concurrently. On appeal, appellant contends (1) the evidence, when measured under a hypothetically correct jury charge, was legally insufficient; the trial court erred by (2) overruling appellant's motion to dismiss because the indictments charged a misdemeanor, not a felony; (3) permitting the State to charge strict liability offenses; (4) denying appellant's motion to quash based on the doctrine of in pari materia; (5) failing to submit appellant's requested defensive charges; (6) permitting behavior by the State that deprived appellant of due process and due course of law; and (7) failing to grant a mistrial and denying appellant's motion for new trial after jurors were not provided overnight facilities and were allowed to separate. We affirm.

BACKGROUND

Appellant, Wydell Dixon, was the owner of a non-profit cat sanctuary located at 1112 6th Street in Texas City, Texas. The sanctuary, known as “Whiskerville,” had been in operation since approximately 2003. At a cat sanctuary, as opposed to a shelter, the cats are not euthanized or killed. The cats are free to live there until they pass from old age. The cats at Whiskerville were “free range” and were not kept in cages. The majority of the Whiskerville cats were older cats and, therefore, not adoptable.

At the time of the offense, Whiskerville had only one employee, Kimberly Paskert. Paskert started working at Whiskerville in 2005, but left for a year in October or November of 2009, when she and appellant had a dispute over Paskert's work. Paskert was paid $30 per day when she started, and she was sometimes allowed to use a gas card for extra work.

Paskert returned to Whiskerville in October 2010 and worked there until December 2011. She worked five days per week until a part-time employee left in early February 2011. From the end of January or beginning of February 2011, until December 26, 2011, Paskert worked seven days per week. Paskert took off only three days in 11 months—one day each in October, November, and December 2011.

As the sole employee caring for nearly 200 cats, Paskert's work at Whiskerville was, as described by another former employee, “back breaking.” Paskert's daily tasks included: cleaning the messes the cats made on the floors and counters; emptying four big litter pans, then scraping and cleaning the litter pans with sponges and sanitizer; refilling the litter pans; sweeping and cleaning the locations for the litter pans and putting the pans back; carrying 40 pound bags of litter from the garage into the main building, two to three times per day; cleaning inside the two feeders, if necessary, and refilling them; carrying 25 pound bags of food from the garage into the main building, at least twice per day; refilling the cat food bins inside the main building, usually twice per day; cleaning the outside, the bottom, and, if necessary, the inside, of the 2.7 and 5 gallon water containers and then refilling them; and cleaning the bed, rug, litter pan, food container, and water container in as many as five cages.

Paskert had to do all this for the main area, the hallway, each of the six rooms in the main building, and the back building.

Paskert had to clean furniture and take the trash out of every room. It took seven trips per day just to carry the used cat litter to the dumpster. Paskert's weekly tasks included: taking apart and cleaning the feeders; brushing the laundry, rugs, and towels, before taking them to Dixon to be washed at least three times per week; mopping once or twice per week; and cleaning all the windows. Paskert also had additional tasks to perform as needed: administering medicines and special foods to sick cats, sometimes feeding them with a syringe; cleaning the cat trees, which were as high as seven feet; soaking and rinsing the cat toys; clipping the cats' claws, so they would not grow into their paws; and checking the cats' ears for mites.

It took Paskert 10 to 15 hours per day, depending on messes, to do all of the daily chores, when she was able to finish them. Paskert always tried her hardest, but she “couldn't keep up with it all.” She tried to do all she possibly could two to three days per week. Some days she worked six to eight hours; the minimum was three to five hours.

On January 3, 2012, animal control officers and peace officers responded to a complaint about Whiskerville. Kim Schoolcraft, the Animal Services Manager for the Galveston County Health District, looked through the windows. She saw dead animals, feces and urine on the floor and walls, and large feeders and water containers that were empty and dumped over. A lot of live cats were roaming freely. The cats had their mouths open, a sign of distress. There was a very strong odor, “[e]ven outside the building.” Schoolcraft and the others waited until Texas City Police Department officers arrived to assess the situation and then obtain a civil animal seizure warrant.

Corporal Grandstaff, the Animal Control Supervisor of the Texas City Police Department, arrived. When Grandstaff looked through the windows, he saw dead cats. He also saw live cats clawing at the window and “screaming,” “like they wanted to get out.” Grandstaff testified there was “filth everywhere,” feces all over, and water bowls overturned. He saw cats in cages without water bowls or food, and he smelled a stench.

Eventually, officers obtained a civil animal seizure warrant to rescue the cats in distress. When officers forced open a door, the stench was overwhelming. One animal control officer entered but had to exit, and vomited. Schoolcraft and Grandstaff entered, but had to back out because the odor was overwhelming. The air inside Whiskerville was so bad officers had to obtain respirators for people to go inside and rescue the cats.

Once equipped with a respirator, Schoolcraft entered and saw several dead cats. Feces and urine covered the floor, the walls, and even the windows—“just about every surface.” Live cats were running everywhere, terrified. There was no water available to the cats when officers entered the building. When officers poured water into bowls the cats fought and climbed over each other, “yowling, desperate for the water.”

Schoolcraft testified that every cat was matted with urine and feces. This is unusual because cats are clean animals and it means the cats had given up trying to clean themselves. Many of the cats were emaciated, but some were very obese. There was evidence that some cats had cannibalized dead cats. Schoolcraft concluded that some of the cats had taken over the sources of food and water and not allowed the other cats near them.

Schoolcraft testified almost all of the cats had “upper respiratory infection, mouth ulcers, parasites, ear mites, ringworms, all types of problems.” Many had green discharge from their nose and eyes. Some of the cats had open wounds. None of the cats were healthy.

Schoolcraft said there were five cages with cats inside that had no food or water. The rest of the cats were roaming freely, though some were in rooms with the doors shut. There was at least one dead cat in each room. Twenty-seven dead cats and 168 live cats—a total of 195 cats—were removed from Whiskerville.

Both appellant and Paskert arrived at Whiskerville during the process of the cat seizures. Upon arrival, appellant asked about what was going on. When informed about the conditions inside Whiskerville, appellant became very upset and said, “I don't know why I pay her.” Paskert was interviewed on television and indicated that she wanted to kill herself for her failure to take care of the cats.

During a subsequent interview with police, Paskert claimed that she had arranged to have a volunteer named Karen Tibbets take care of the cats so that she, Paskert, could take a week off after Christmas. Paskert said that she thought Tibbets was taking care of the cats. Paskert also said that she did not tell appellant about subcontracting her work to Tibbets, and that twice she told appellant that the “kitties were fine.” Police were unable to locate anyone in the area named Karen Tibbets and concluded that no such person existed.

Appellant and Paskert were both arrested and charged with cruelty to nonlivestock animals. Paskert testified at appellant's trial under an offer of use immunity. She was not offered a plea deal in her own case.

After the case was submitted to the jury, appellant moved to sequester the jurors, and the trial court granted her motion. The jurors were taken to a local hotel at approximately 11 p.m. after the first day of deliberations. Approximately four hours later, a bomb threat was phoned in to their hotel. The bailiffs evacuated the jurors, who were kept together, but who overheard third parties talking about the bomb threat. After the bailiffs were unable to find other accommodations for the jurors, they returned the jurors to the deliberation room at the courthouse, where the jurors slept on the floor the rest of the night. After continuing their deliberations the next morning, the jury returned guilty verdicts on four counts of animal cruelty.

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