Friday, July 13, 2012

Attack By Dog Statute Upheld

The Texas Attack By Dog Statute (TEX. HEALTH & SAFETY CODE § 822.005(a)(1)) was itself attacked recently, in the case of Watson and Smith v. State.  The Attack By Dog statute provides, in relevant part:
(a) A person commits an offense if the person is the owner of a dog and the person:
     (1) with criminal negligence, as defined by Section 6.03, Penal Code, fails to secure the dog and the dog makes an unprovoked attack on another person that occurs at a location other than the owner’s real property or in or on the owner’s motor vehicle or boat and that causes serious bodily injury, as defined by Section 1.07, Penal Code, or death to the other person;
After being convicted for failing to secure their pit bulls which resulted in the death of a seven year-old neighbor boy, appellants challenged the statute as being unconstitutionally vague.  They argued that the terms “unprovoked” and “attack” are undefined in the statute, rendering it vague and open to disparate jury interpretation.  In a unanimous opinion drafted by Judge Myers, the CCA upheld the convictions, explaining that the terms “unprovoked” and “attack” are not part of the mens rea of the crime in that they relate to the actions of the dog, not the omissions or failings of the dog owners.  Further, the CCA reasoned that:
Terms not defined in a statute are to be given their plain and ordinary meaning, and words defined in dictionaries and with meanings so well known as to be understood by a person of ordinary intelligence are not to be considered vague and indefinite.
The prohibited conduct in this case (and in every Attack By Dog case) was the dog owners’ failure to secure the dogs.  The CCA noted that in determining whether a dog owner has taken reasonable efforts to secure a dog, the court uses the reasonable person standard.

TAKEAWAY: Lock up your dogs.  If they get out and kill someone, you will go to jail.  Fancy legal arguments are not likely to save you when your pit bulls kill a seven year-old boy.

See our post about a previous (and somewhat similar) attack to this statute HERE.

Tuesday, July 10, 2012

CCA Holds Reckless Agg Assault is LIO of Intentional or Knowing Agg Assault

In Hicks v. State, the Texas Court of Criminal Appeals unanimously reversed the 14th District Court of Appeals (Houston) and held that reckless aggravated assault is a lesser included offense of intentional or knowing aggravated assault.
Appellant was charged with intentional or knowing aggravated assault after he and Angelo Jackson got into a fight over borrowed shoes that ended with Angelo being shot in the leg. The trial judge instructed the jury on intentional or knowing aggravated assault, as charged in the indictment, and he also gave a separate instruction for reckless aggravated assault. The jury convicted appellant of reckless aggravated assault. The court of appeals held that the trial judge erred in giving any instruction on reckless aggravated assault because (1) the original indictment did not charge a reckless state of mind, and (2) reckless aggravated assault is not a lesser-included offense of intentional aggravated assault.

We granted review to resolve a conflict between the courts of appeals on whether "reckless aggravated assault" is a lesser-included offense of intentional or knowing aggravated assault. Applying the plain language of Article 37.09 and adhering to our opinion in Rocha v. State, we conclude that it is. Therefore, the trial judge did not err by instructing the jury on reckless aggravated assault as a lesser-included offense.
See the CCA's full opinion HERE.