Hoffman v. State

HERMAN EDWARD HOFFMAN, Appellant v. THE STATE OF TEXAS, Appellee

NO. 09-17-00177-CR

NO. 09-17-00178-CR

NO. 09-17-00179-CR

NO. 09-17-00180-CR

NO. 09-17-00181-CR

Court of Appeals Ninth District of Texas at Beaumont

Submitted on September 4, 2018

November 14, 2018

On Appeal from the County Court at Law No. 1 Montgomery County, Texas

Trial Cause Nos. 15-307438, 15-307425, 15-307422, 15-307041, 15-307040

MEMORANDUM OPINION

The State charged Herman Edward Hoffman (Herman) in five separate causes of cruelty to livestock animals, alleging he failed to provide necessary food, water, or care arising out of his treatment of over two hundred horses.¹, ² See Tex. Penal Code Ann. § 42.09(a)(2) (West 2016). A jury convicted Herman in all five causes. See id. The trial judge assessed punishment of one year in the Montgomery County Jail for each case, to be served concurrently, and a $4,000 fine in each case. Herman appeals his convictions.

In four issues, Herman argues: (1) the judgments should be reversed for a new trial with separate trial counsel because appellants' trial counsel was ineffective; (2) the judgments should be reversed based on Brady and Michael Morton Act violations; (3) the judgments should be reversed and an acquittal entered because the evidence is factually insufficient in each case; and (4) the judgments should be reversed and dismissed with prejudice because appellants were prosecuted twice for the same offenses violating the Double Jeopardy Clauses of the United States and Texas Constitutions. We overrule all issues and affirm the trial court's judgment.

I. Factual Background

The State seized 207 horses from Kathleen and Herman Hoffman. Before the criminal prosecution, the Hoffmans were subject to civil forfeiture proceedings in Justice Court, which judgment was appealed to the County Court at Law for a trial de novo pursuant to Texas Health and Safety Code section 821.025. See Tex. Health & Safety Code Ann. §§ 821.023, 821.025 (West Supp. 2018).³ The Justice Court determined they treated all seized animals cruelly, ordered the animals surrendered, and ordered the Hoffmans to pay $150,000.00 for costs associated with the care of the animals. The County Court at Law issued almost identical findings but ordered the Hoffmans to pay $485,331.68 in costs incurred by the SPCA for housing and caring for the animals. The Hoffmans were subsequently prosecuted together and convicted in five causes each of the criminal offense of cruelty to livestock animals under Texas Penal Code section 42.09(a)(2). See Tex. Penal Code § 42.09(a)(2). The criminal convictions are the basis of these appeals.

The Hoffmans resided at property on League Line Road in Montgomery County, Texas. Herman and his wife owned around fifteen acres and leased an additional twenty-five acres adjacent to their property, or around forty acresaltogether. In addition to 207 horses,⁴ the Hoffmans kept dairy cows and goats on the forty acres.⁵

Herman had extensive experience raising and breeding horses.⁶ Herman graduated from Purdue University in 1975, majoring in farm and business management, with a minor in economics and a minor in animal science. Herman indicated he and his wife's quarter horse business began in 1984 and 1985. Herman testified he purchased animals from across the country and put a "foundation herd" together of the closest blood to famous horses.

A deputy constable from the livestock division, Gordon Welch, indicated his department began receiving complaints about the body weight and living conditions of the Hoffmans' horses in 2014.⁷ Between 2014 and June 2015, the deputy constables received and responded to many complaints regarding the Hoffmans' horses. Welch testified they gave the Hoffmans recommendations for improving thehorses' condition by "stepping up" the feeding program and ensuring they wormed the horses. The deputy suggested Herman and Kathleen were both in control of the horses, and the recommendations were directed to them both. The deputy constables assigned to the livestock division worked with the Hoffmans for several months before issuing a warning on October 10, 2014. Deputy Welch circled the definition of cruelty indicating "fails unreasonably to provide necessary food, water, or care for a livestock animal in the person's custody" on the written warning and directed the Hoffmans to seek medical assistance for the horses from a licensed veterinarian. Welch wanted a vet to examine the animals and make recommendations because he felt the Hoffmans' feeding program was inadequate due to the large number of horses in the pens, and the weaker horses were not able to get adequate feed.

According to Welch, veterinarian Dr. David Husfeld visited the Hoffmans' property and evaluated the horses. Dr. Husfeld opined in a letter dated October 27, 2014, the "condition of this group of horses ranges from [] good to very bad." Dr. Husfeld suggested the remedy was "more and better feeding" along with a "good parasite control program[.]" Dr. Husfeld also suggested "the thinner animals ideally need to be separated to [feed.]"

The deputy constables received more complaints about the horses' condition and made additional visits to the Hoffmans' property where they observed a furtherdecline of the animals. On June 23, 2015, Deputy Welch, his partner, and an investigator with the District Attorney's office went to the Hoffmans' property. Based on their visual observations, they obtained a search warrant for the property on June 24, 2015. As a result of those findings, they also secured and executed a seizure warrant.

At trial, several witnesses who participated in the seizure described the deplorable conditions. The participating Society for the Prevention of Cruelty to Animals (SPCA) barn supervisor testified her first impression of the property was it appeared to be a "kill pen." She also observed many skinny, distressed horses. The SPCA barn supervisor also testified there was no grass for the horses and no place for them to graze.

Because of the large number of animals and the logistics of dealing with a seizure of that magnitude, Montgomery County required help from the SPCA. Deputy Welch and other State witnesses suggested the Hoffmans' horses were unaccustomed to handling, so it took around two weeks to round them up, give them medical treatment, worm them, and transport them to another location. The SPCA barn supervisor assisting with the seizure described horses with rain rot⁸, bones showing, and overgrown hooves.

Dr. Amy Crum, an SPCA veterinarian, went to the Hoffman property to assess the overall situation and triage horses in need of emergency veterinary care. Dr. Crum testified her initial impression of the herd was they were in very poor condition with nutritional and hoof care problems, respiratory disease, infected wounds, and many other issues. Dr. Crum testified she was concerned some animals' deaths were imminent, so they removed eighteen of those horses to the Houston SPCA for immediate care. According to Dr. Crum, the horses lacked basic veterinary care and husbandry, nutrition, and foot care—things horse owners should provide. Of the horses requiring emergency veterinary care, several were emaciated and in danger of not being able to support their own weight, while others had debilitating wounds. Dr. Crum explained how they tracked and cared for the seized horses by assigning them a unique six number identification and connected the records by using that number.

State witnesses, including Dr. Crum, discussed how they used the Henneke Body Conditioning Score (BCS) for horses. That scale provides a score ranging from 1 to 9 for evaluating a horse's body condition. A score of 1 means a horse is extremely emaciated, and a score of 9 suggests an obese horse. Dr. Crum and the SPCA barn supervisor testified an ideal BCS is 5.

Several State witnesses discussed appropriate horse care and husbandry standards at trial. These witnesses testified horses required regular hoof care by a farrier, including trimming, and neglecting a horse's hooves could result in laminitis and other permanent lameness. Dr. Crum testified this was particularly important for confined horses that had no opportunity to run or naturally wear down their hooves. Dr. Crum also testified that horses required regular dental care. Failure to periodically "float" or file down a horse's teeth, results in the teeth growing to sharp points and impeding the animal's ability to eat.

Witnesses testified about the need for a proper parasite control program, and evidence revealed a veterinarian made that recommendation to the Hoffmans before the seizure of the animals. Witnesses also discussed the need to seek prompt veterinary attention for horses with wounds or for animals that collapsed. Evidence established when there is no grass readily available for horses, an owner should regularly feed hay and grain to provide adequate nutrition. Finally, to ensure weaker, thinner animals had an opportunity to feed adequately, evidence showed they should be separated from the rest of the herd.

Montgomery County seized 207 horses. Dr. Crum testified that around twenty-five percent of the Hoffmans' horses were of an adequate weight. The SPCA barn supervisor testified thirty seized horses could not be saved and were euthanized,and three horses died unassisted. Some horses had been adopted, and about eight were available for adoption. Other horses were not ready to be adopted, and the SPCA continued to work with those.

Before trial, the State revealed it was going forward with the criminal prosecutions against the Hoffmans for five of the horses and elected to consolidate the trials of Herman and Kathleen. The criminal trial began on May 15, 2017, and the jury convicted the Hoffmans on all counts on May 18, 2017.

II. Analysis

A. Sufficiency of the Evidence

Asserted as Herman's third issue, we address his sufficiency complaint first. Herman argues the evidence is factually...