*1 WESTFALL, Appellant, David Texas, Appellee.
The STATE of
No. 10-97-180-CR. Texas,
Court of
Waco.
Dec. *3 Robertson, Mason, Edgar
Patrick A. A. Dallas, appellant. Grubbs, From County Atty.,
Joe F. & Dist. C. feed the herd. December 1995 March Avery, County Atty., through purchased Denean Asst. & Dist. Waxahachie, hay protein-rich alfalfa and other food for appellee.
sources to the cattle’s diet. supplement Before Chief Justice DAVIS Justice County Deputy In March Ellis VANCE Justice GRAY. Tommy began Parks an investiga- Sheriff tion of the condition of the cattle. Parks
OPINION property on the without went permission knowledge or and saw evidence DAVIS, REX D. Justice. Chief that the cattle "were malnourished. Parks juryA cruel- convicted David Westfall of Society summoned the for thfe Prevention ty to animals. See Tex. Pen.Code Ann. (the “SPCA”) Cruelty to Animals *4 (Vernon 42.09(a)(2) § Supp.2000). The Society Humane to him in the assist as- $4,000 punishment assessed a fine as sessing the situation. Parks and others for the offense. claims in five Westfall repeatedly during on the premises went (1) points by: of error the court erred investigation March and as the con- April holding standing challenge that he lacks to tinued. the his “any of searches seizures of (2) improper an property”; permitting an April presented applica- On Parks (3) information; amendment of the over- justice County peace tion to an Ellis ruling request production depu- his for of a for a warrant to seize the cattle and don- Safety ty’s prior written to his cross-exam- report keys. Health Ann. Tex. & Code (4) 821.022(a) (Vernon 1992). deputy; refusing to admit justice ination § The documents he offered under the business granted application the same date and rule; hearsay exception records to the May matter for 9. Id. hearing set a on the (5) 821.022(b) (Vernon 1992). failing accomplice-witness § submit After charge. instruction in the hearing, justice determined that cruelly
animals been treated seized had given that the animals be and ordered BACKGROUND 821.023(e) (Vernon Supp. § SPCA. ranch Tony Westfall hired Gist as his 2000). in 1988. formed the G. manager Westfall Family
David
Limited Partner-
Westfall
ship
Family
dba Westfall
Farms
SEARCHES
WARRANTLESS
general
part-
Westfall is both a
and limited
point
in his first
Westfall contends
perti-
partnership. During
ner of the
that he lacks
ruling
court
erred
period, the
owned or
partnership
nent time
the warrantless en-
standing
challenge
tracts of land in Ellis and
leased several
and others on the
Deputy
tries
Parks
kept approx-
on which it
Navarro Counties
taking
pho-
partnership’s property,
imately
head of cattle and two don-
while on the
and others
tographs
Parks
keys.
manager,
ranch
Gist had the
As
flowing
fruits
property,
any
other
responsibility to feed and care for
primary
challenges
Westfall
from these entries.
the animals.
and federal
both state
these entries under
against unrea-
prohibitions
through May
late 1995
constitutional
From
seizure. See U.S.
County
in Ellis
search and
drought persisted
severe
sonable
Const,
I,
Const,
IV; Tex.
art.
Tex-
amend.
throughout
part
the northern
§
section 9 of
9. Because article
drought,
grass
as. Because of the
greater
not offer
Texas Constitution “does
property
sparse
was too
partnership’s
than the
the individual
protection
nutrition for the cat-
provide adequate
Amendment,”
address
.we will
asked
Fourth
tle.
testified that he
Gist
claims, togeth-
federal
hay to
state and
early
September
as
as
1995to order
expectation
er.
demonstrating
Hulit
a reasonable
privacy in the area
Villarreal v.
(Tex.Crim.App.1998).
searched.
(Tex.Crim.App.
suppression hearing,
At
determining
whether a
test for
parties
stipulated that
the partnership
person
has demonstrated
reasonable ex
owned the cattle and owned or leased the
pectation
privacy
components:
has two
four
property
part
tracts of
which the
(1)
of the person
whether the conduct
If
nership kept
its
cattle.1
(subjective) ex-
exhibits “an actual
dispute,
evidence is not in
an appellate
so,
and if
pectation
privacy[;]”
“may
court
novo
ques
review de
‘mixed
(2)
is
whether the
“one that
expectation
”
tions of
when
law and fact’
the resolution
society
recognize
as
prepared
turn
those issues does not
on an evalua
”
‘reasonable[.]’
credibility
tion of
and demeanor. Guzman
735, 740,
Maryland,
Smith v.
442 U.S.
89 (Tex.Crim.App.
2577, 2580,
(1979)
S.Ct.
which the its cattle making filing and before Oliver, 466 ly open constitute fields. See information, County in the of Ellis this at U.S. 104 S.Ct. Texas, one GWENN State of partnership expectation has no reasonable there DAVID WESTFALL' did then and privacy these areas. intentionally knowingly torture at 1741-42. S.Ct. TO by FAILING PRO-
LIVESTOCK Rosalez, buildings Like the FEED OR CARE FOR VIDE SUPPLY adjacent located THEM partnership’s barn is not HIS LIVESTOCK CAUSING DIE. and cannot be said “to have AND a residence TO STARVE used for associated with ‘intimate been or filing the infor- nine months after Almost Rosalez, home.’” activities of the *6 mation, requesting filed a motion the State Dunn, 480 U.S. at (quoting S.W.2d at 713 court amend the information that the 302, To the extent 107 S.Ct. following “intentional- deleting portion the were conducted commercial activities substituting the ly knowingly” barn, offered no evidence the Westfall unreasonably provide following: “failed any subjective expectation privacy donkey and necessary and care for a food Klima, 934 See State v. S.W.2d therein. custody, livestock the defendant’s bovine (“defendant 109, (Tex.Crim.App.1996) 110 food provide sufficient failing and/or had a proving the that he bears burden for said animals.” Over medical care privacy legitimate expectation objection, the court entered an searched”).2 Thus, we premises conclude. motion. The granting order the State’s expecta has no reasonable partnership interlinéate the substituted court did not Rosalez, in the barn. 875 privacy tion of the information. language on the face of S.W.2d Rather, complaint filed new State original cause under the and information partnership has no reason- Because the lan- reflecting the substituted number privacy in fields expectation of able guage. (and barn, general partner) its lacks it of Criminal of the Code Article 28.10 standing complain of the warrantless Villarreal, for procedures 935 Procedure delineates search of these areas. fairly open structure suppres- that the barn is a at the reflect 2. Westfall testified in essence from can be viewed gave permis- the interior of which hearing only that he one sion no. State, See, S.W.2d e.g., 949 Jones v. property. He did not outside. 509, to come on the sion 1997, no (Tex.App.—Fort Worth 516 present other evidence describe the barn or (seizure mobile home pet.) inside any greater expectation pri- of evidence demonstrating plainly not unreason- visible from outside vacy in the barn than in the fields surround- able). addition, ing photographs in the record it. In
91
trier of fact could have found
amending an indictment or information.
rational
beyond a
Proc. Ann. art. 28.10 the
elements
reasonable
See Tex.Code Crim.
essential
(Vernon 1989).
State,
249,
Mosley
The Court of Criminal
v.
983 S.W.2d
doubt.
(Tex.Crim.App.1998) (op.
reh’g),
has determined that an indictment
254
denied,-U.S.-,
1466,
purposes
is “amended” for
of article 28.10
119 S.Ct.
cert.
(1999) (citing
when there is an “actual alteration of the
Jackson v.
Accordingly, by charging the court erred “only reverse if Crim.App.1996). [the We purportedly on the basis of the contrary overwhelming is so to the verdict] “amended” information. clearly as to be weight evidence unjust.” Id. wrong and an error non-con
Such
constitutes
subject
stitutional error and is
to the harm
all the evidence
the rec
We consider
44.2(b).
analysis of
rule
appellate
issue, “not
ord related to the contested
just
supports
the evidence which
the ver
Westfall
Tex.R.App.
ref'd);3
App.
dict.” Santellan v.
- Waco
44.2(b).
I,
P.
In
we determined
(Tex.Crim.App.1997).
We review the
Westfall
improperly permit
trial court had
issue,
tending
prove
“and
ted an amendment of the information after
tends
comparef ] it to the evidence which
jeopardy had attached.
disprove
give
Id. We
[issue].”
S.W.2d at 593. We
concluded
jury’s deci
appropriate deference to the
error was harmless however because the
judgment
not substitute our
sion and do
legally
factually
evidence was
suffi
for theirs.
Cain
support
cient to
Westfall’s conviction un
do not set
We
der the
information.
at 595-
merely because
feel
*7
[we]
aside the “verdict
96;
Ward,
see also
(cid:127) thirty Westfall testified that he has ciation; years’ experience the cattle busi- (cid:127) testified that emaciated cows ness; Sancho strong enough are not to extract them- (cid:127) management responsibili- he exercised situation; selves from the mud this herd; ties over the (cid:127) records demonstrate that he (cid:127) consciously manage- he on a decided purchased supplement no food for the strategy ment for the herd the Fall through their herd from March 26 sei- Gist, of 1995 in consultation with bear- 3;May zure on ing coming in mind forecasts of a (cid:127) Sancho testified that the weaker cows drought, and he continued to evaluate segregated from the should have been management through- herd decisions stronger grazing for the older out period; time weaned; calves should have been (cid:127) property he visited the at least ten (cid:127) consciously that he explained through times from December 1995 graze decided to the whole herd to- 1996; April separating rather than out the gether (cid:127) Gist, Sancho, veterinarian Victor inves- weaker cows he wanted all the because Hu-
tigators with the SPCA and the across the grass cows to have access Society, Deputy mane Parks all creek.
characterized the cattle as “emaciated” evidence, a ra- From this we conclude *8 “poor”; or tional trier of fact could have found the (cid:127) hypo- explained Dr. that the emacia- essential elements as set forth in a Sancho thetically charge beyond a reason-
tion he observed
the cattle had de-
correct
Malik,
veloped
months and was
doubt. See
over several
able
onset;
Thus,
legally
the evidence is
sufficient
not of recent
specificity than re-
4. When an information sets forth alternative
of the offense with more
(such
allegations
specific
as mens rea or manner
quired,
prove
the State must
alle-
means)
conjunctive,
may
in the
the trial court
gation.
Chavez
jury
disjunc-
in the
submit these issues to
employ
(Tex.Crim.App.1992). We
both of
Warren v.
tive.
principles
constructing
hypotheti-
these
However,
curiam).
(Tex.Crim.App.1991) (per
charge
case.
cally correct
for Westfall’s
alleges
an
element
if
information
essential
support
Finally,
Westfall’s conviction under
the calves.
Sancho described the
average body
“opti-
herd’s
condition as
information.
mal,”
investigator graded
but the SPCA
We have set out above the evidence
the herd much lower.
tending
support
the verdict. The fol-
Many
disputed
these
issues rest
lowing evidence
to contradict
tends
jury’s
credibility. Giving
resolution of
verdict:
appropriate deference to the
on these
(cid:127) Westfall and his wife both testified
issues,
say
we cannot
that the verdict is
never requested
Gist
more sup-
“so contrary
overwhelming weight
to the
plemental
they
food than
provided;
clearly wrong
the evidence as to be
(cid:127) Westfall and
made
judgment
Gist
Clems,
Thus,
unjust.”
the Fall of begin 1995 to weaning the that the court erred failing require calves; and prosecutor produce Deputy Parks’s (cid:127) report Dr. offense the conclusion of his di Sancho that in opinion testified his rect examination. See Tex.R.CRIm. Evtd. average body condition of the cat- 614(a).5 responds The State the re “optimal.”
tle was port subject is not a “statement” to disclo 614(a). provides sure under Rule The rule SUMMARY in pertinent part: The first four items tend to show that After a witness other than the defen- reasonably Westfall acted in his herdman- examination, dant has testified on direct agement However, decisions. de- Sancho court, party on motion of a who did scribed “grossly mismanaged.” the herd as witness, not call the shall order the at-' they The Westfalls pro- both stated that torney for the state or the defendant vided Gist all the additional food he re- attorney, be, may and his as the case However, quested. that he Gist countered produce, for the examination and use of repeated requests made for additional food moving party, any statement of the which Westfall did not and he provide, possession witness that is in their phone offered records to prove he had subject that relates matter con- called Westfall. Westfall testified that he cerning which the witness has testified. calves, asked Gist to wean the which San- *9 says cho should have been done. Gist 614(a)
explained however that he not have did expands “Rule codifies and the State, adequate space properly food or wean Gaskin rule.” Enos v. 889 S.W.2d 5. We cite the rules of evidence in effect at the time of trial.
94
303,
case,
(Tex.Crim.App.1994).
305
In
prosecutor
Under
the
Gaskin,
required
produce
the State was
told the trial court that
Deputy
she had
written
witness’s
statement
the de
report
possession
Parks’s
in her
with the
fense at the conclusion of the witness’s
exception of some items she had previously
State,
direct testimony. See Gaskin v.
172 copied and turned over to Westfall’s coun
7, 9-10,
467,
Tex.Crim.
353 S.W.2d
469-70
report
sel. Because she had the
her
(1962) (op.
reh’g).
The
of Crimi
Court
possession, we conclude that
the court
Appeals
nal
construed
require
Gaskin to
erred
it
require
when
failed to
her to
produce
report
the State to
of
offense
produce it.
See,
any testifying
e.g., Campos
officer.
v.
This
not
error does
rise to the level of a
State,
81,
(Tex.Crim.App.
468 S.W.2d
83
constitutional violation however. Accord
ingly,
analysis
apply
appel
we
harm
State,
In Jenkins v.
Court Crimi-
Tex.R.App.
44.2(b).
44.2(b);
late rule
See
P.
nal
considered whether Rule
State,
853,
Fowler v.
958 S.W.2d
866
614(a) requires production of offense re-
1997),
App.
aff'd,
Jenkins v. 912 803-04 S.W.2d rules, appellate Under former such conclud- Court an error if it did not deny was harmless ed that trial by failing court erred the defendant an effective cross-examina require produce reports the State to or possible impeachment tion the officer issue reversed the conviction. Id. at however, evidence. See Keith v. 804-05. rehearing On the Court 1996, (Tex.App no production determined that of the reports . —Amarillo Jenkins, required they pet.); was not accord because were not (on submission). prosecutor’s posses- shown to “in the have re be We report (Tex.Crim.App.1995) (op. Deputy sion.” Id. at 819 viewed Parks’s and con reh’g). not revisit the clude that it is consistent with his testimo The Court did question reports ny of whether are contain information offense does not purposes “statements” for of the rule. impeach which could have been used to Keith, him. See S.W.2d in Our research reveals at least three we conclude that the court’s error fail termediate courts which have included ing require prosecutor produce such reports category “state did not report affect Westfall’s “sub produced ments” which must be under TexRApp. 44.2(b). P. rights.” stantial See 614(a). Rule See Williams point. overrule third Accordingly, we his (Tex.App S.W.2d Worth . —Fort ref'd); pet Amunson v. (Tex.App Antonio . —San BUSINESS RECORDS ref'd); Cross point in his fourth Westfall claims 25, 27 (Tex.App [1st . —Houston per- the court abused its discretion not ref'd). 1994,pet. Dist.] mitting him to introduce “memoranda” authorities, In view these rec- which his wife testified to be business report an offense conclude likewise that documenting phone ords calls received prepared by testifying officer which is time partnership during possession must be prosecutor 803(6). See Tex.R.CRIm. period. Evid. produced to the defendant at the conclu review a court’s evidentia- testimony,
sion of the officer’s direct if We under an abuse-of-discretion requests. ry rulings counsel so Evid. Tex.R.Crim. 614(a). standard. Jones
95 State, 394 (Tex.Crim.App. We will reverse 971 455 S.W.2d only ruling when the court’s conflicting, outside If the evidence falls the “zone of disagreement.” jury reasonable court should instruct to resolve Id.; Montgomery Id.; v. issue. Moore v. 984 (Tex.Crim.App.1991) (op. reh’g). (Tex.App. S.W.2d no — Waco situation, pet.). In this court must also presence jury, Outside the of the jury instruct the that if it finds the witness trial court characterized the rec- an accomplice be cannot convict ords as follows: corroborating the defendant unless it finds telephone I see some of the records are evidence which tends to him to the connect on five inch by sticky three inch notes. Moore, commission of the offense. One wonders what those have been S.W.2d at 787. months, stuck for all these but I also by see some two inch sticky inch two management Gist exercised over the I typed notes. see some out eight-and- Thus, argued herd. it could that he is be sheets, by a-half typewritten eleven criminally responsible for this offense as sheets, I eight-and-a- and also see some agent an of the partnership. See Tex. half eleven paper sheets of with (Vernon 1994). § 7.23 Be- Ann. Pen.Code handwritten notes on it. we’ve got So managerial responsibilities, cause of his this collection of notes here. conceivably Gist could “high be deemed a compared managerial agent” The court of the partnership. these records to Id. Gist’s 7.21(2)(Vernon 1994). § phone bills and found numerous instances where the Westfalls had of a no record hand, On the other the jury could have phone call shown Gist’s bills. The court testimony taken Gist’s repeatedly he objection sustained the State’s to these asked for additional food as evidence that records it questioned because their trust- he exercised due diligence prevent worthiness. See Tex.R.CRIm. Evid. 803(6). § commission of the offense. 7.24 Given the disorganized manner in (Vernon 1994).6 this, jury might From which the Westfalls apparently maintained reasonably conclude that he acted in dis- these records and the discrepancies noted charging management responsibilities. his court, by the trial say we cannot 42.09(a)(2) § See id. (person commits of- ruling court’s lies outside the “zone of if unreasonably provide fense he fails Jones, disagreement.” reasonable food, etc.). necessary 394; at S.W.2d Montgomery v. Accordingly, we conclude that a fact is- S.W.2d we overrule West- sue was raised on the issue of Gist’s status fall’s fourth point. Therefore, accomplice. as an court by failing erred to submit this issue to the ACCOMPLICE INSTRUCTION Blake, 455; jury. See 971 S.W.2d at fifth point contends his Moore, 984 that the court by failing erred an submit accomplice witness instruction requested Because Westfall such charge. argues He that Gist is also crimi charge, if we must reverse his conviction nally responsible for the condition of the he suffered “some harm” as a result of the cattle. error. Medina n 1999) evidence in (Tex.Crim.App. (citing When the record Almanza clearly shows a be (Tex.Crim.App. witness to accom law, 1985) plice as a matter the court must (op. reh’g)). We review the rec instruct jury accordingly. “actual, theoretical, just Blake ord for not harm diligence 6. Due employee partnership. would be an affirmative de- not an See Tex. prosecution (Vernon 1994). partnership, fense § 7.24 Pen.Code Ann. *11 GRAY, Justice, concurring. (quoting to the accused.” Id. at Al TOM manza, 686 S.W.2d at majority holds trial The that the court erred the by physically writing not face A defendant is not harmed of of the indictment the words the an error record such if the contains cor approved Basically amendment. the ma- roborating strong evidence is “so which jority holds that an indictment cannot be any that reasonable it to [find] would replacing of piece paper amended one Bacey be true.” v. omission, error, that an or vague contains (Tex.App. pet. no — Texarkana with .piece paper another of the words with h.); Tran Logic correct words on it. and common (Tex.App. Dist.] [1st — Houston that the spe- sense dictate unless statutes 'd) (op. on reh’g). ref that must cifically require the amendment paper, be piece made on the same of there following The record the cor- contains is no that an amended indictment reason roborating tending to connect evidence by reprinting the indict- cannot be made Westfall to the commission the offense: language ment amended. with the as (cid:127) cattle; partnership owns the 1917,1 in Flores was decided vir- When (cid:127) played he an active role man- tually done in all court documents were herd; agement Occasionally hand. a form preprinted (cid:127) frequently he visited the dur- property used, with to be filled in would be blanks ing period, giving time fit This was obvi- particular situation. him knowledge of condition computers, ously processors, word before cattle and and property; printers copy and machines. desktop it is changed has now Technology (cid:127) segregate he decided Gist not to with process to amend relatively simple not the weaker cows and did alter this etc.) by re- (change, a document improve, plan despite arguably having seen one has been modified placing it with firsthand evidence his cattle’s ema- from the trial according to leave obtained ciated state. way many documents court. This is the deny Deputy does not what judicial have been amended proceedings He not Parks others found. does years, pleading for in the particularly Dr. assessment what dispute Sancho’s civil cases. differently could have been done to avoid heavily language relies majority The Rather, he admitted the happened. what Ward he made management sought decisions approval Ward held that Crim.App.1992). justify them as reasonable. of an from actu amendment distinct Ward, In an amendment al amendment. testimony provides Westfall’s own had but the Court Crimi approved been corroborating strong which is “so being nal held no alteration “there jury would it to [find] reasonable indictment, hold the we the face of 330; Bacey, true.” 990 S.W.2d at be fact amended.” was never in indictment Tran, 658; Medina, also 870 S.W.2d at see rea of the fundamental at 792. One he conclude was not we change to sons that without an actual was by the failure to harmed court’s submit indictment, the defendant face of Ac accomplice charge. instruction for notice multiple must documents look to point. his fifth cordingly, overrule analyzed charges. This was judgment. affirm the We to be unconstitutional. determined case does not indictment this
amended making By suffer the same defect. concurring. GRAY Justice (1917). 82 Tex.Crim. 198 S.W. Flores changes newly on the face of a printed complies spirit pur- with both the and the document, requirement 28.11, pose proge- of Article Flores and its *12 amendment be made on the face of the ny, including Ward and Rent v. indictment is satisfied and the entire in (Tex.Crim.App.1992) (op. S.W.2d 548 single dictment is contained in a document reh’g). I would hold that the trial court required by as the constitution. by allowing did err not the amendment to by preparing the indictment to be made Ward also discussed the legislative his- instrument which contained the altered tory of Art. 28.10 and 28.11.2 court language approved for the indictment as history summarizes this as follows: by the trial court. What type substantive errors could be corrected an indictment without majority While the holds the trial court thwarting grand the will of the jury or allowing erred in an amendment to be violating an accused’s constitutional by made a new instrument with the correct right grand jury indictment in a felo- it, language they hold that the evidence ny Although cause? there were refer- was support sufficient to a conviction un- prosecutor ences to a court or amending der the prior indictment as it existed instrument, charging there was no attempted amendment. I find the evi- testimony regarding the actual physical support dence was sufficient to the convic- making mechanics an amendment indictment, tion under the amended ac- charging instrument. This lack of cordingly, express my I concurrence testimony legislature indicates to us the result, if not reasoning. did not attach technical or particular meaning “amend,” to the term and thus
we will not frustrate legislative intent
applying a hypertechnical interpretation
to the term.
atWard
made changing the wording CHEVROLET-OLDS, DOW language indictment to the which INC., Appellee. has approved by been pur- trial court suant to a required by motion as No. 06-98-00129-CV. Article 28.10, Ward, Article 28.11 and it meets the Texas, Court of “change on the face of the indictment” Texarkana. requirement of Ward. The defendant need beyond not look the single amended docu- Submitted Oct. 1999. are, ment to determine what the charges Decided Dec. required as the constitution and as discussed at length Ward.
I see no that an reason amendment to
an indictment cannot have the same mean-
ing here it practice. as does civil
Tex.R. Civ. P. 62-65. Such an amendment (Vernon 1989).
2. Tex.Code.Crim. Proc. Ann. art. 28.10 28.11