Smith v. State
337 S.W.3d 354
Tex. App.2011Background
- Seven-year-old Tanner Monk was killed in a canine attack; Smith and Watson were convicted of attack by dog resulting in death and sentenced to 7 years' confinement and a $5,000 fine.
- Smith was charged under Tex. Health & Safety Code Ann. § 822.005(a)(1) for failing to secure a dog that unprovokedly attacked a person off the owner's property, causing death.
- The statute defines 'secure' as taking steps to keep a dog on the owner's property, including confinement capable of preventing escape.
- Evidence showed Tanner was found dead in a ditch about 99.5 feet from Smith’s gate; surrounding blood and injuries indicated the attack occurred off Smith’s property.
- Four dogs were linked to Tanner’s blood; bite marks were too commingled to match a specific dog, though all dogs tested had Tanner’s blood.
- Evidence included prior acts of the male pit bull and Watson’s statements about the dogs' behavior; no provocation by Tanner was proven, and the fatal injuries were consistent with a canine mauling.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is § 822.005(a)(1) unconstitutionally vague? | Smith argues vagueness on face and as applied. | State argues statute provides fair notice and applies to conduct. | Statute not unconstitutionally vague on its face or as applied. |
| Does the verdict violate the unanimous jury guarantee or substantial majority rule? | Smith alleges disagreement about where the attack began; verdict not unanimous. | Charge required unprovoked attack off the owner's property; unanimity as to this element exists. | Verdict was unanimous as to the essential element. |
| Is the evidence legally and factually sufficient to support conviction? | Insufficient provocation and location evidence. | Evidence supports unprovoked attack off property and the dog ownership negligence. | Evidence is sufficient under Jackson v. Virginia standard. |
| Was it reversible error to admit prior bad acts of the male pit bull? | Dog’s prior acts are irrelevant and prejudicial. | Evidence admissible to show unprovoked attack and negligence. | Rule 404(b) not applicable to dog; prior acts admissible; no sua sponte limiting instruction required. |
Key Cases Cited
- Jackson v. Virginia, 443 U.S. 307 (1979) (establishes the standard for legal sufficiency review)
- Brooks v. State, 323 S.W.3d 893 (Tex.Crim.App.2010) (no meaningful distinction between Jackson and Clewis standards; updates sufficiency review)
- Clewis v. State, 922 S.W.2d 126 (Tex.Crim.App.1996) (earlier standard discussed as supplanted by Brooks on sufficiency)
- State v. Taylor, 322 S.W.3d 702 (Tex.App.-Texarkana 2010) (upheld § 822.005(a)(1) against vagueness challenge)
- Bynum v. State, 767 S.W.2d 769 (Tex.Crim.App.1989) (defined interpretive approach for undefined terms; common meaning governs)
- Engelking v. State, 750 S.W.2d 213 (Tex.Crim.App.1988) (interpretation of undefined terms in statute)
- Rodriguez v. State, 93 S.W.3d 60 (Tex.Crim.App.2002) (presumption of validity for challenged statutes)
- State v. Markovich, 77 S.W.3d 274 (Tex.Crim.App.2002) (vagueness considerations in statutory construction)