New legislation increases the punishment for dog attacks.
In March 2007, Jose Hernandez was found not guilty in a highly publicized dog-mauling case. Hernandez was alleged to have caused the death of Lillian Stiles by allowing his six dogs to run loose; the dogs then attacked Stiles in her own front yard while she was gardening, and she bled to death from her wounds.
Despite losing the case, our prosecution efforts and the resulting media coverage may well have been an important catalyst in passing Lillian’s Law, HB 1355 by Rep. Dan Gattis (R-Georgetown), during the 80th Legislative Session.
It was November 26, 2005, the Saturday after Thanksgiving. Lillian Stiles was riding her lawnmower around her beautifully landscaped yard. Her husband of 55 years, Jack, was inside watching a football game. They lived just outside Thorndale in the community of San Gabriel. Mrs. Stiles was a mother and grandmother who was enjoying her retirement years. She was 76 years old.
It appears from the evidence that Mrs. Stiles’ lawnmower ran out of gas. She must have gotten off the mower to go inside when she was attacked by six dogs belonging to her neighbor, Jose Hernandez. This pack of dogs broke her neck and severed her jugular vein. The attack was so brutal that the only way her husband was able to identify her later was by her clothing. Weldon Smith and his wife, Maurita, were driving past the Stileses’ home when they saw something lying in the yard. They turned around to go back and see if someone needed help, and when Mr. Smith got out of the car, he was also attacked by at least four of these dogs as he tried to reach Lillian’s body. The Smiths were the first to notify Jack Stiles that his wife lay dead in their yard.
I was at home when I received the news about Lillian Stiles. I will never forget when the sheriff’s investigator, Greg Kouba, told me he was working a homicide. I was obviously concerned in that we don’t have a lot of murders in our county, and we kind of like to keep it that way. It was not long into our conversation that I learned the “murderer” was not one but six dogs belonging to the victim’s neighbor.
Charging the defendant
The investigator was not sure if Hernandez could be charged with a crime. At that time, I was not aware of the “dangerous dog” statute in the Health and Safety Code; it was not until Monday morning at the office that I learned the law’s limits on our ability to prosecute the owner of these dogs. The law set out in §822.044 of the Health and Safety Code states that an owner of a dangerous dog commits an offense if the dangerous dog makes an unprovoked attack outside his enclosure. If the dog causes bodily injury, it is a Class C misdemeanor, and if the dog causes serious bodily injury, then it is a Class A. A magistrate may deem a dog dangerous after it has made an unprovoked attack on a person outside its enclosure. It basically means “one free bite.” The dogs had to have bitten someone in the past before they were considered “dangerous.” This was not the case for us. Therefore, my initial thought was charging Hernandez with criminally negligent homicide if the facts and evidence supported it; manslaughter was also a possibility if the dogs had bitten people before, killed livestock, or if the owner knew they had been aggressive with people in the past.
As the investigation progressed, we found that Jose Hernandez was a legal resident of Texas who did not speak much English. He and his family lived 700 to 800 feet away from the Stileses. The largest dog was a rottweiler mixed with a shepherd or pit bull called Peoja. She alone weighed over 100 pounds. Three of the other dogs, which appeared to be part pit bull as well, were her puppies and ranged in age from nine months to a year old; they weighed 40 to 60 pounds. The other two dogs were a male and female pit bull; the female was smaller and weighed around 35 pounds. She was called Chamaca and had been given to Hernandez by a relative who obtained her from the animal shelter. The male weighed closer to 50 or 60 pounds. He was Catalampia. Evidence at trial revealed that although Hernandez did not want all of these dogs, he purchased this dog for $100.
The Hernandezes were not home when the dogs left their property and killed Mrs. Stiles. Three of the dogs (one of the puppies, one pit bull, and the Rottweiler mix) were allowed to run loose, while the three other dogs were kept in a fenced backyard. The chain-link fencing was about 5 feet high, in poor condition, and was held up (sort of) by a T-post every 50 to 60 feet. There were several spots on the fencing where the dogs had clearly walked over it and tramped it down.
During the investigation, the investigator could find no one who had any “previous” problems with these dogs. Many people had seen them digging through garbage at the nearby church and wandering around, but no one knew of any incidents of aggression or biting. However, we did have one witness, Hernandez’s friend, who gave a written statement that Hernandez had invited him to a dog fight and told him that he owned a rottweiler that he fought, but it was not one of the dogs involved in our case.
Charging this case was not an easy decision. I could find no record of a similar prosecution in Texas, though dogs had mauled and killed numerous adults and children in the state. I did find approximately 13 cases from other states involving laws similar to our criminally negligent homicide statute or manslaughter statute. The first case of record was prosecuted in Florida in 1947.
Although we had no precedent for what we were doing in Texas, what we did have was a dog owner who was aware of what dogs could do based on his knowledge and interest in dog fighting. We set out to prove the general knowledge that people have about dogs: All dogs bite. Large dogs can do greater damage than small dogs. A pack of dogs is more likely to cause trouble and cause more damage than a single dog. Dogs left to their own devices and not properly cared for are likely to be dangerous. We set out to prove that Hernandez ought to have been aware of a substantial and unjustifiable risk his dogs presented, that the risk was of such a nature and degree that his failure to perceive it constituted a gross deviation from the standard of care an ordinary person would exercise under all the circumstances as viewed from the actor’s standpoint, and that risk resulted in Mrs. Stiles’ death.
Now, I have to admit that I have always struggled with the concept of criminal negligence. It has never been an easy concept for me to grasp. To me, it has always been one of those concepts that you just know it when you see it. But I knew I had to thoroughly understand it and be able to explain it before I could expect my jurors to do the same.
I knew there would be other difficulties at trial, and we tried to prepare for them. The most difficult obstacle other than criminal negligence was the fact that our county has no leash law. Dogs in the county are allowed to roam free. Another issue was that these dogs were considered family pets that had never harmed anyone.
We questioned our jury panel at length on issues involving criminal negligence, leash laws, general knowledge about dogs, and responsible dog ownership. Of course, we believed our ace in the hole was the evidence involving Hernandez’s dog fighting interest and participation. However, as we all know, witnesses don’t always say in court what they told the police at the time of the offense. Our witness softened his testimony and back-pedaled quite a bit from his original statement. Even though we were able to get him to admit he had said something different earlier, it was not enough.
The defense brought witness after witness to say what lovable, sweet dogs these animals were. They portrayed Hernandez as ignorant when it came to breeds of dog and what damage they are capable of. Hernandez himself testified that he did not know what type of dogs he owned. He did not know that dogs could kill livestock although he worked on a farm with cattle where the workers carried guns to kill dogs and coyotes that may prey upon the cattle. He also stated that he did not know dogs bit people. He portrayed himself as extremely ignorant when it came to the animals he owned. We were successful to some degree in showing how irresponsible he was as a dog owner. One of the dogs had been hit by a car, and he failed to take it to the veterinarian. The dog lost weight, he said, because it could not walk to the food he placed out for it. He also did not have any of the dogs vaccinated for rabies. In fact, none of the dogs had ever seen a vet.
In the end, the jury deliberated for five hours and returned a verdict of not guilty. In speaking to some of the jurors afterwards, at least two women were holding out for guilty. It was apparent from the jurors’ comments that the lack of a leash law concerned them, as did Hernandez’ attempts to pen three of dogs when the law did not require him to. Also, the jurors wanted proof that the dogs had been aggressive in the past. However, one juror told me that many of them believed that Hernandez was breeding the dogs for dog fighting; they just needed the proof. They wanted proof that Hernandez knew the dogs were dangerous. While I respect their verdict, it is obvious to me at least that they wanted Hernandez to have been reckless, not criminally negligent.
Changing the law
The fact remains that the verdict proved the need for House Bill 1355. I supported this bill and believe if it had been in effect at the time of Lillian Stiles’ death, Hernandez would have been convicted. The bill does two things that the current state of the law does not: One, it provides a more appropriate punishment if the dog causes serious bodily injury (it is now a 3rd-degree felony, and if the dog causes death, the crime is elevated to a 2nd-degree). Second, it provides a way around the “one free bite” rule, which remains on the books for cases involving dangerous dogs that do have a history of biting people. The new law does not require that the owner know his dog is aggressive or dangerous. It provides that if you fail to secure your dog and your dog seriously injures or kills someone, you can be held criminally liable. It does not require people in the country to secure their dogs, but it puts citizens on notice that while an owner may trust his own dogs, society does not. The truth is, responsible dog owners have nothing to fear from HB 1355.
Rep. Dan Gattis and Sen. Eliot Shapleigh (D–El Paso), the Senate sponsor, worked hard to pass this bill, and a great deal of the credit should also go to Marilyn Shoemaker, Lillian Stiles’ daughter, and Lillian’s husband, Jack. They have worked tirelessly since November of 2005 to make people aware of the problem with the law. They are extraordinary people who have been able to focus their grief and pain into a law that may protect someone else from the tragedy they have suffered.
When I was asked to write this article, I tried to remember a time I read an article about a prosecutor losing a case. It is always articles about winning those cases that we seem to focus on. But sometimes, our defeats are the catalyst to greater victories. No one likes to be remembered as the prosecutor who lost a case, but I have found that as a prosecutor, just as in life, we are often challenged to step outside our comfort zone and do what we believe is right and just. We did just that. We may not have won the battle, but it looks like we will win the war.