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Miscellaneous
November-December 2009

New dog-mauling statute tested

Prosecutors in Stephens County tried a heartbreaking case where a 7-year-old boy was mauled to death by four dogs.

Stephen Bristow

Former District Attorney in Young and Stephens Counties

In 2007, the Texas Legislature passed “Lillian’s Law,” which holds owners accountable for serious injuries or death caused by their dogs. It is named after Lillian Stiles, who was attacked and killed by dogs in her front yard as she tended her garden.

To charge a dog owner with Attack by Dog Resulting in Death, §822.005 of the Health and Safety Code requires that the dog attack was unprovoked, occurred off the owner’s property, and resulted in serious bodily injury or death. Prosecutors must also prove that the owners were criminally negligent in failing to secure their dogs. These elements seem simple at first reading, but they proved challenging in this case.

The gruesome crime

Tanner Monk was a typical 7-year-old boy who loved sports. His mother described him as very outgoing and a good friend to all. Tanner and his family had recently moved to their rural house, which is around the corner from Crystal Watson and Jack Smith’s house. Tanner frequented the Watson-Smith residence where he played with one of their daughters and her cousin.

One fateful Sunday in May 2008, Tanner had been to his friends’ house in the morning, and after lunch the kids played at Tanner’s house. Late in the afternoon, the girls were called home, and Tanner followed. It was the last time Tanner’s mother saw him alive.

About an hour after Tanner left his house, a neighbor, Sharon Rogers, was on her way home and saw what she believed to be a little boy in the bar ditch, approximately 100 feet from the gate of the Watson-Smith residence. When she attempted to get out and see if something was wrong, she was attacked by four pit bulls that forced her back into her car. She contacted law enforcement and stayed by the child in her car. When peace officers arrived and got out of their cruiser, they too were attacked by the dogs, and two deputies drew their weapons and killed two of the pit bulls. The other two dogs took off running toward Watson and Smith’s house.

An ambulance arrived and checked Tanner, but it was clear he was already dead. The defendant, Jack Smith, who heard the deputies’ gunshots, walked to his open gate and asked why the deputies shot his dogs. When told that they had just killed a little boy, Smith’s only response was “Oh.” When Smith was confronted a little later about recovering the other two dogs, he lied to the deputies and said that he did not have a fourth dog; he then changed his story and said that the fourth dog was his “inside” dog. (We think he knew how vicious this dog was and was attempting to hide it from the deputies.) These two surviving dogs (and the bodies of the other two shot by deputies) were taken by authorities, and DNA testing found Tanner’s blood on all four dogs. The investigation also revealed that the dogs were never secured; the 12-foot gate at the property’s entrance had not been closed for at least six months. These dogs ran free through the neighborhood.

There were no witnesses to the attack on Tanner. Through circumstantial evidence, we determined that the fatal mauling occurred where the body was found. There was no blood anywhere else, nor any drag marks. One of Tanner’s shoes was found in the defendants’ front yard (see the photo of the scene, below). A small amount of Tanner’s blood was on the side of the sole. (The other shoe was never found.) We figured that one of the dogs carried the shoe to the yard from the ditch where Tanner was killed.

Police contacted me that day, and I arrived about an hour after the first call to police. I always like to be called to major crime scenes because it helps me when I prepare for trial, and I can answer questions that might arise in the investigation. I have worked fatal wrecks and assisted in murder scene investigations in the past, but nothing can prepare you for the death of a child. This manner of death was obvious and I sensed shock to all involved. The shock carried over to trial too.

The statute

When we determined which statute fit the crime, we started thinking about the elements. One element that stands out is the term “unprovoked.” The statute has no definition of the word so I turned to Black’s Law Dictionary. “Provoke” means to excite, stimulate, arouse; to irritate or enrage. Using that definition, I provoke dogs every morning that I walk by my neighbor’s house!  I learned talking to Rob Kepple at TDCAA that when the law was drafted at the legislature, preliminary discussions focused on how to handle the issue of provocation. Because this element of the crime was included in the old dangerous dog statute in §822.041 of the Health and Safety Code, it was left in this new crime. In addition, the law’s sponsors elected to leave the term undefined and rely on the common definition of “provoke” articulated above rather than argue with various animal behavior experts who testified on the bill about what constitutes provocation to a dog. With no witnesses to the crime, we had to depend on circumstantial evidence that these dogs were not provoked. Mrs. Rogers, the woman who found Tanner’s body, and the first deputies to respond to the scene did nothing to provoke the dogs, yet they were attacked. There were no sticks or other items around Tanner that would indicate he was teasing the dogs. Plus, Tanner weighed 45 pounds—two of the dogs outweighed him. It did not seem logical that he provoked the animals. Evidence showed that one of the dogs had been at the house only a few weeks, and it had a history of aggressive behavior. (More on that later in the article.)

Another issue was the term “attack.” If Tanner were attacked on the defendants’ premises and later attacked off their premises, is the term “attack” a continuing event or a series of individual attacks? The single shoe found on the defendants’ property might have supported a defensive theory that Tanner was bitten on their premises, though evidence also showed that he was certainly attacked in the bar ditch about 100 feet away from the property line. Tanner could not have been so savagely attacked in the defendants’ yard and able to run 100 feet to where his body was found.

We chose not to obtain probable cause arrest warrants and simply convened the grand jury for consideration of the evidence. There was so much pretrial publicity while the evidence was being gathered for processing that I did not want to put the probable cause affidavit on file. After indictment, the court, on the judge’s own motion, placed a gag order on the parties and immediately set a trial date for October.

Prior to trial, we obtained samples of blood from the coat of each dog for DNA testing; it turned out that Tanner’s blood was on all four dogs. The two surviving dogs were ordered euthanized after a hearing in JP court. We also obtained the other two dogs’ skulls through Texas A&M for bite comparisons, but the bites on Tanner were so close together that we could not isolate individual bite marks to compare them to the dogs’ teeth.

We unearthed information that one of the dogs had a history of aggressive behavior. We interviewed people in Eastland County, where this dog came from, and found out that it had killed two other dogs and chased people into the safety of their cars. This dog had also knocked down an elderly man by growling and attempting to bite him. I subpoenaed the dog’s previous owner, who testified at trial that the dog was somewhat aggressive and not kept in a secured area; the former owner had told defendant Crystal Watson about the dog’s history before she adopted it. This prior knowledge, while no longer required by the statute, was compelling evidence against Ms. Watson because she was not home during the attack.

Most of the witnesses—the deputy, EMT, and even the forensic dentist—broke down on the stand because of the victim’s tender age and how he died (the medical examiner said he had bled to death). I had a picture of Tanner blown up to 11 by 16 inches and placed on an easel. He was in his baseball uniform; the photo was taken about one month before he died. The forensic dentist later told my office that he saw the baseball picture and lost his composure. I received a sustained objection when I commented that he was not the first one.

The defense tried to show that an attack may have taken place on the defendants’ property and that the term “attack” constitutes a continuing process (meaning that Tanner may have been attacked first on the defendants’ property, then the boy ran or was dragged (during the same attack) to the ditch. The defense also argued that the State never proved that the attack was “unprovoked.” These defensive theories failed. When I spoke to the jurors after the trial, they said there was no doubt as to guilt. It did not make any sense that this little boy, who had played with these dogs before, could provoke them to the point of such a vicious attack. They deliberated about 55 minutes before returning their verdict.

Neither defendant was eligible for probation because both had previous felony convictions, and only one juror lamented the lack of probation as an option during the punishment phase. The seven-year sentence on both defendants was a compromise after about two hours of deliberation. Many jurors later said they wanted 10 years, but they also felt that without intent, it was not a 20-year case. I chose not to call any witnesses during punishment because the jury had seen enough. Between the emotions of the witnesses, the pictures from the crime scene and autopsy, and testimony from Tanner’s mother, enough was enough. I could just tell from the jurors’ emotions that anything additional would have been too much.

Lessons for future cases

One of the things learned from this trial was prior knowledge of aggressiveness helps in finding guilt. This fact is somewhat bothersome because the statute is designed so that criminal negligence applies only to failing to secure one’s dogs. My understanding of the Lillian Stiles case was that the defendant’s lack of prior knowledge of his dogs’ aggressiveness contributed to the not-guilty verdict on the charge of criminally negligent homicide. (Read about that case in the July-August 2007 issue of The Texas Prosecutor journal, which is online at www .tdcaa.com/newsletter.) Anyone looking at this statute must be prepared to answer the defense’s claims of a provocation and to define the term “attack.” Some people walk with sticks or mace, for example, and if these items are found at the scene of a dog mauling, even if they weren’t used to provoke the dogs, there is room for a defensive argument that these items could be used for provocation. There may also be no eyewitnesses to this kind of attack, so we prosecutors cannot count on people testifying that an attack was unprovoked. My recommendation is that we revisit the statute and discuss whether the provocation element is even necessary, and if so, whether it should be turned into an affirmative defense which the defense must raise and prove by a preponderance of the evidence. In our case, quickly securing these dogs and DNA testing for Tanner’s blood proved their involvement. There were other dogs in the area, and we were fortunate that the deputies had the forethought to check them for blood to rule them out as attackers.

Conclusion

The image of a little boy who was bitten no fewer than 75 times by four dogs on a killing frenzy will be forever in all our memories. The sad thing is this attack could have been prevented by simple restraint—a locked gate and sturdy fence. That said, the premise of the new law is good. We need to hold accountable those who do not secure their dogs. If we include in the law that only those owners whose dogs are known to be aggressive are accountable, then we have defeated the purpose of the statute. ✤