Roger Eppler v. The State of Texas--Appeal from County Court at Law No 2 of Grayson County

IN THE

TENTH COURT OF APPEALS

No. 10-97-088-CR

ROGER EPPLER,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the County Court at Law No. 2

Grayson County, Texas

Trial Court # 96-2-1308

O P I N I O N

Appellant Eppler appeals from his conviction for cruelty to animals for which he was sentenced to pay a fine of $500 and ordered to make restitution of $1,148.

On February 18, 1995, Appellant shot a dog named Bandit possessed by Carl and Vicki Feltner. In the Information the State alleged that Vicki Feltner was the owner of the dog.

On direct examination Vicki Feltner responded affirmatively when asked if she owned the dog and also testified that she had control over restraining the dog. Carl Feltner testified that he and his wife were owners of the dog. Both Carl and Vicki Feltner explained the dog had been a Christmas gift from Vicki to Carl but both fed the dog and that either had ultimate control over restraining the dog.

When the State rested Appellant made a motion for directed verdict on the ground that the Information alleged Vicki Feltner was the owner of the dog, but the evidence established that Carl Feltner was the owner of the dog. The trial court overruled the motion for instructed verdict.

The jury found Appellant guilty and Appellant elected to have the judge assess punishment. The judge assessed Appellant's punishment at a fine of $500 and required Appellant to make restitution of $1,148 for veterinary fees incurred in an attempt to save the dog's life after he was shot.

Appellant appeals on one point of error: "The trial court erred in denying Appellant's motion for directed verdict and in holding the evidence sufficient to sustain the conviction when there was a material and fatal variance between ownership alleged and ownership proved."

Article 21.08 of the Texas Code of Criminal Procedure provides "where one person owns the property, and another person has the possession of the same, ownership thereof may be alleged to be in either." Section 1.07(a)(55) of the Texas Penal Code defines an owner as "one who has title to the property, possession of the property, whether lawful or not, or a greater right to the possession of the property than the actor."

Vicki Feltner testified she considered herself owner of the dog. She also testified she had control over the dog. She was in possession of the dog along with her husband Carl.

Ritchie v. State, 344 S.W.2d 878 (Tex. Crim. App. 1961) is on point and upholds a conviction on similar evidence. The State alleged ownership of cattle in a person who did not have legal ownership but merely possession. The court held that where one person owns the property and another has possession, the ownership may be alleged to be in either.

State v. Bartee, 894 S.W.2d 34, 45 (Tex. App. San Antonio 1994), holds that allegations of ownership under Article 21.08 apply to special owners as well as general owners, and that even in the face of a motion to quash the indictment, there is no need to specify the particular type of ownership on which the prosecution will rely. Statutory terms like "owner" are essentially evidentiary and need not be alleged in the indictment; whether the owner has title, possession or greater right to possession, will not benefit the defendant and is not a necessary component of the required notice. Thus the type of ownership need not be set out in the indictment. State v. Bartee, supra.

The trial court did not err in overruling Appellant's motion for instructed verdict.

Appellant further contends the evidence is insufficient to support a finding of ownership alleged in the Information. A complaint about the sufficiency of the evidence will be construed as a legal sufficiency challenge. See Clewis v. State, 922 S.W.2d 126, 132-33 (Tex. Crim. App. 1996).

The standard of review that is to be applied to questions involving legal insufficiency of the evidence is set forth in Jackson v. Virginia, 443 U.S. 307 (1979) and in Moreno v. State, 775 S.W.2d 866 (Tex. Crim. App. 1988). Those cases hold that the evidence must be viewed in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt.

In this case Vicki Feltner testified she was the owner of the dog. The record reflects that both Vicki and Carl Feltner had possession and control over restraining the dog. The dog lived on the Feltners property. The evidence further reflected that Vicki had given the dog to her husband Carl.

As noted, Section 1.07(a)(35) of the Texas Penal Code defines owner as "a person who has title to property, possession of the property, whether lawful or not, or a greater right to possession of the property than the actor."

Any rational trier of fact could have found beyond a reasonable doubt that Vicki Feltner was the owner of the dog.

Appellant's point is overruled. The judgment is affirmed.

FRANK G. McDONALD

Chief Justice (Retired)

Before Chief Justice Davis,

Justice Vance and

Chief Justice McDonald (Retired)

Affirmed

Opinion delivered and filed August 13, 1997

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