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Univ. of South Carolina School of Law

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Thursday, January 29, 2009

Must Love Dogs: Texas Appellate Court Finds Trial Court Properly Excluded Habit Evidence In Animal Cruelty Case

In its recent opinion in Vevrecka v. State, 2009 WL 179203 (Tex.App.-Hous. 2009), the Court of Appeals of Texas found that a trial court did not err in precluding a defendant from presenting evidence of her habit of taking care of other animals in her trial for cruelty to her five dogs.  And I agree with the court's opinion.

In Vavrecka, a police officer responded to a complaint that several dogs on the property of Jill Young Vavrecka appeared to be abandoned and in distress.  That officer spotted two dogs that looked malnourished and emaciated, with no visible food or water nearby.  After entering the property, the officer noticed that the dogs' food was infested with bugs and strewn with trash, with an unreachable water barrel some distance away.

The two dogs were covered with fleas, and the officer subsequently found three other dogs in similar condition in a back-yard pen. He also noticed the strong smell of urine and fecal matter, which covered the areas where the dogs were confined.  The officer thereafter called Animal Control, which eventually removed the dogs from the property.

When Vevrecka learned that Animal Control had removed the dogs, she attempted to get the dogs back. Understandably, Animal Control petitioned a justice of the peace to release the animals to its care to prevent the animals from being returned to Vevrecka. The justice of the peace granted that petition and ordered the dogs to be released to Animal Control.  But heartbreakingly, while one of the dogs was adopted, the other four had to be euthanized because they suffered from disease.

Vevrecka was later charged with a misdemeanor offense of cruelty to animals and convicted after a jury trial.  Vevrecka subsequently appealed, claiming, inter alia, that the trial judge incorrectly prevented her from presenting habit evidence under Texas Rule of Evidence 406, which states that:

     "Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice."

Under this Rule, the trial court actually permitted a line of questioning as to Vavrecka's habit and routine of care as to the five dogs at issue.  But the court precluded her from presenting evidence concerning her past practice and routine of caring for other stray animals and nursing them to health because it was inadmissible character evidence, not permissible habit evidence.

I think that this distinction makes sense when we look at the Advisory Committee's Note to Federal Rule of Evidence 406, the federal counterpart to Texas Rule of Evidence 406.  According to that Note,

     "Character is a generalized description of one's disposition, or of one's disposition in respect to a general trait, such as honesty, temperance, or peacefulness. 'Habit,' in modern usage, both lay and psychological, is more specific. It describes one's regular response to a repeated specific situation. If we speak of character for care, we think of the person's tendency to act prudently in all the varying situations of life, in business, family life, in handling automobiles and in walking across the street. A habit, on the other hand, is the person's regular practice of meeting a particular kind of situation with a specific type of conduct, such as the habit of going down a particular stairway two stairs at a time, or of giving the hand-signal for a left turn, or of alighting from railway cars while they are moving."

Looking at this Note, we can see why the habit evidence regarding Vevrecka's habit and routine of care as to her five dogs was admissible.  Ostensibly, that evidence (which is not explained in any detail in the opinion) revealed that she had the regular response of diligent care to the specific situation of having those five dogs on a day in, day out basis (although the facts of the case would suggest that it was not so regular). 

Conversely, the evidence regarding her care for other stray animals was either simply generalized character evidence regarding her character for care (of animals), or it was indeed habit evidence, but not evidence of a habit relevant to her trial.  It was evidence that she had a regular response of diligent care to the repeated specific situation of having these other stray animals temporarily. 

I think an analogy explains why this was not sufficient habit evidence.  Assume that Vevrecka were accused of child endangerment/abandonment regarding her children and wanted to present "habit" evidence concerning her diligent care of children in her role as a Big Sister or temporary foster parent.  This might be evidence of some type of habit by the accused, but it would not be evidence of a habit relevant to her trial for child endangerment/abandonment regarding her children on an everyday basis.

-CM      

http://lawprofessors.typepad.com/evidenceprof/2009/01/habit-stray-ani.html

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