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Attorney asks for stay in Whiskerville owner's cruelty trial - The Galveston County Daily News : Local News

November 27, 2014

Attorney asks for stay in Whiskerville owner's cruelty trial

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Posted: Friday, January 11, 2013 12:00 am | Updated: 1:58 pm, Sat Jan 19, 2013.

TEXAS CITY — The Monday trial of a feline sanctuary owner on animal cruelty charges is on hold pending a ruling from an appeals court.

Authorities charged Wydell Lorraine Dixon, 57, with four felony counts of animal cruelty, stemming from the Jan. 3, 2012, seizure of 200 cats from Whiskerville Animal Sanctuary Inc. in Texas City after finding them in squalid living conditions. A total of 27 dead cats were removed from the building.

In a civil trial, a jury found the cats were treated cruelly and abandoned, which transferred custody of the cats to the county. The jury also awarded $231,884 in restitution to public and private animal benevolence organizations that cared for 170 of the cats, which a prosecutor said were abandoned at least 40 days.

Dixon’s attorney, R. Scott Shearer, appealed the civil verdict in August, but the First Court of Appeals in Houston has yet to rule on the matter.

On Wednesday, Shearer asked the appeals court to stay the criminal trial set for Monday on grounds that Judge Lonnie Cox of Galveston’s 56th District Court lacks jurisdiction in the case.

Shearer claims in documents filed with the appeals court that the indictments fail to allege a felony offense.

The state accused Dixon of causing seriously bodily injury to animals under the felony provision of the Texas Penal Code by failing unreasonably to provide necessary food, water, care or shelter under the misdemeanor provisions of the penal code, Shearer claims.

“This they cannot do,” the document states. “The state may not allege a misdemeanor cruelty charge under the guise of a felony.”

Misdemeanor provisions cannot be “bootstrapped” onto the felony provisions to create a new class of felony in contravention to the statutory scheme, Shearer claims.

“A person can commit the misdemeanor offense of failing unreasonably to provide necessary food, water, care or shelter or a person may commit the felony offense of torturing, killing or causing serious bodily injury to an animal, but a person cannot commit a felony offense by committing predicate acts that are listed as a misdemeanor under the statute,” Shearer claims.

The Legislature changed the animal cruelty statute in 2007 specifically to give prosecutors greater ability to prosecute these types of cases, Galveston County Assistant District Attorney Elizabeth Cuchens said Thursday.

“Dixon’s lawyer presented his arguments to the 56th District Court (Jan. 4) and, after the state responded, the court rejected those arguments,” Cuchens said.