Lehman v. State

MICHELLE LORRAINE LEHMAN, APPELLANT v. THE STATE OF TEXAS, APPELLEE

No. 07-13-00349-CR

No. 07-13-00404-CR

No. 07-13-00405-CR

No. 07-13-00406-CR

No. 07-13-00407-CR

No. 07-13-00408-CR

No. 07-13-00409-CR

No. 07-13-00410-CR

No. 07-13-00411-CR

Court of Appeals Seventh District of Texas at Amarillo

September 8, 2014

On Appeal from County Court at Law No. 2

Ellis County, Texas

Trial Court No. 120762CR; Honorable A. Gene Calvert, Jr., Presiding

MEMORANDUM OPINION

Before CAMPBELL and HANCOCK and PIRTLE, JJ.

Appellant, Michelle Lorraine Lehman, was charged by indictment with nine counts of cruelty to nonlivestock animals, a Class A misdemeanor.¹ She was convicted by a jury and sentenced to the maximum sentence of 365 days confinement and a fine of $4,000, as to each count. Nine separate judgments were entered against her. Each judgment provided the separate sentences would be served concurrently,² and the judgment entered as to Count 1 provided that costs of court would include $600 for court-appointed attorney's fees.

Appellant presents two issues challenging her convictions. First, she maintains the trial court erred in determining that a special plea of double jeopardy did not apply. Secondly, she questions whether trial counsel's performance constituted ineffective assistance. She maintains alleged errors of omission denied her a fair trial and violated her due process rights. We affirm.

BACKGROUND

At trial, Appellant claimed she ran an independent animal rescue facility. She maintained she operated this facility on rented property consisting mostly of a barn and adjacent pastureland. In late July 2011, Appellant's landlord's son made a 911 call to report that he was driving by the property when he observed Appellant strike a dog with what looked like a pole. Officers were dispatched to the property where they discovered numerous cats and dogs in unclean conditions with dirty or no water and sparse food,including pizza scraps. An animal control officer was called to the scene to evaluate the condition, and he determined that a pit bull and a white cat needed immediate care. According to the subsequent trial testimony of the animal control officer, forty-eight dogs and thirty-four cats were impounded.³

On August 9, 2011, a civil proceeding was conducted in the Ellis County Justice Court, Precinct 2, pursuant to sections 821.022 and 821.023 of the Texas Health and Safety Code, pertaining to the disposition of cruelly treated animals. Following that hearing, the justice court entered an order authorizing the forfeiture and humane destruction of thirty-eight unspecified animals. The order also required Appellant to pay the sum of $4,543.70, as costs of court under section 821.023(e). That section provides that when a court finds that an impounded animal's owner has cruelly treated the animal, the owner shall pay, as costs of court, the cost of housing and caring for the impounded animal and the cost of humanely destroying the animal, if destruction is ordered. ⁴ Here, the order did not provide a breakdown of those costs.

Eleven months later, on July 12, 2012, Appellant was criminally charged with nine counts of animal cruelty based on the same events leading up to the civil proceeding in justice court. As to each count, the information specified the type of animal allegedly mistreated.⁵ Appellant filed a verified special plea pursuant to article27.05 of the Texas Code of Criminal Procedure alleging a claim of double jeopardy. She asserted she was being tried for animal cruelty arising from the same incident that resulted in the assessment of court costs in the justice court proceeding. She argued the costs assessed against her in that proceeding were excessive and punitive in effect, giving rise to a claim of double jeopardy. The trial court denied the special plea, and the case proceeded to trial. Appellant was convicted of all nine counts of animal cruelty and this appeal followed.

ISSUE ONE—DOUBLE JEOPARDY

The Double Jeopardy Clause of the Fifth Amendment provides that no person shall "be subject for the same offence to be twice put in jeopardy of life or limb." U.S. Const. amend. V. The Double Jeopardy Clause, applicable to states through the Fourteenth Amendment, protects an accused against (1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction and (3) multiple punishments for the same offense. Ex parte Denton, 399 S.W.3d 540, 545 (Tex. Crim. App. 2013) (citing Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977)).

Under article 27.05 of the Texas Code of Criminal Procedure, a defendant may assert a claim of double jeopardy by asserting a special plea. Under this procedure, a trial court must submit the special plea to the trier of fact, unless it determines the special plea does not present a legally sufficient claim of double jeopardy. See TEX. CODE CRIM. PROC. ANN. art. 27.07 (West 2006). In other words, "if conceding the facts averred in the special plea to be true, the plea in bar would not be good in law, the trialcourt may overrule it and decline to submit it to the jury." Arredondo v. State, 582 S.W.2d 457, 459 (Tex. Crim. App. 1979) (citing Thompson v. State, 99 Tex. Crim. 470, 269 S.W. 1048 (1925)). Unless a special plea does not present a legally sufficient double jeopardy claim, issues of fact presented by a special plea shall be tried by the trier of fact during the trial on the merits. Apolinar v. State, 820 S.W.2d 792, 793 (Tex. Crim. App. 1991). A special plea is a mechanism for avoiding reconviction, not retrial. Id. at 794.

In protecting animals from cruel treatment, the State has two non-exclusive options: (1) seizing the animals under chapter 821 of the Texas Health and Safety Code or (2) criminal prosecution under chapter 49 of the Texas Penal Code. The intent of chapter 821 is civil and remedial in nature. State v. Almendarez, 301 S.W.3d 886, 895 (Tex. App.—Corpus Christi 2009, no pet.) (citing Granger v. Folk, 931 S.W.2d 390, 392 (Tex. App.—Beaumont 1996, orig. proceeding)). Section 821.023(b) contemplates the separate and distinct nature of civil proceedings under the Texas Health and Safety Code and criminal proceedings under the Texas Penal Code. See TEX. HEALTH & SAFETY CODE ANN. § 821.023(b) (West Supp. 2014) (providing, "[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").

Where the Legislature has indicated its intent to establish a civil penalty for certain conduct, courts must still inquire whether the statutory scheme is so punitive, either in purpose or effect, as to transform what was intended as a civil remedy into a criminal penalty for double jeopardy purposes. See Capps v. State, 265 S.W.3d 44, 49 (Tex. App.—Houston [1st Dist.] 2008, pet. ref'd.). In other words, whether a particularpunishment is criminal or civil is a matter of statutory construction. Hudson v. United States, 522 U.S. 93, 99, 118 S.Ct. 488, 139 L.Ed.2d 450 (1997). In determining whether a statutory scheme is punitive, courts should consider these factors whether: (1) the sanction involves an affirmative disability or restraint; (2) it has historically been regarded as a punishment; (3) it comes into play only on a finding of scienter; (4) its operation will promote the traditional aims of punishment—retribution and deterrence; (5) the behavior to which it applies is already a crime; (6) an alternative purpose to which it may rationally be connected is assignable for it; and (7) it appears excessive in relation to the alternative purpose assigned. Id. at 99-100. 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. Id. at 100. Distilled to its essence, the inquiry before us is whether the trial court correctly determined that the special plea did not present a legally sufficient double jeopardy claim for submission to the jury.

ANALYSIS

By her first issue, Appellant contends the trial court erred in finding that a special plea of double jeopardy did not apply to her. Specifically, by her verified special plea, Appellant alleged she was placed in jeopardy for the exact same conduct underlying her criminal charges when the justice court order imposed a penalty that was so punitive it amounted to a conviction and assessment of sentence. She requested dismissal of the criminal charges or alternatively, an order authorizing submission of double jeopardy issue to the trier of fact. We disagree with Appellant's conclusions.

Here, consideration of Appellant's special plea of double jeopardy began during pretrial proceedings and was also addressed just prior to commencement of voir dire, at the trial on the merits, as well as during trial.⁶ Appellant argued below that the court costs assessed against her of $4,543.70 were a "massive fine" which had a punitive effect because they exceeded the maximum fine allowable for a Class A misdemeanor.⁷ The trial court inquired on the breakdown of the total costs in the civil proceeding and was advised that no record had been made of that proceeding. However, the prosecutor, who was also the prosecutor at the civil proceedings, explained that none of the $4,543.70 assessed against Appellant constituted a fine. The amount was the cost incurred in housing and caring for thirty-eight animals during their impoundment and eventual humane destruction.

In Almendarez, 301 S.W.3d at 888, the trial court granted the defendant's motion to quash the information for two counts of animal cruelty on the grounds of double jeopardy when the defendant had been previously ordered to pay $211 in restitution for the seizure and care of two horses at a civil hearing in justice court. The State appealed arguing that double jeopardy...