April 20, 2008

by Jan Loveless
Courtesy Texas Horse Talk

Gamblin Darlin's filly foal, who was killed at the age of 6 days. She didn't live long enough to be named.

A 15-year-old boy sits in lock-up in Brazoria on the Texas coast today, arrested on Friday morning for the Sunday, April 13, shooting of a 6-day-old bay tobiano filly foal and her dam, a sorrel overo Paint horse mare.

The foal, owned by Johnny and Edith Ray of Brazoria, died of a single pellet gunshot to the heart. The mare, shot in the abdomen, survived. The Rays had tried for five years to breed a paint filly. Finally, this spring, they got what they wanted.

"Johnny was waiting for the grandkids to name this filly," said Edith Ray. "Our son joked that his dad was more excited about this baby than he had been about the births of our own kids. Everybody said she had a baby-doll head. One of the city workers told us she was the prettiest foal he'd ever seen."

The Rays live within the city limits and keep their other horses on 10 acres of land outside Brazoria. They had leased the five-acre pasture in town so that they could observe the mare closely through her pregnancy and keep the mare and foal safe after the birth. With the mare in the center of town, the whole community had watched her and waited for the birth. No residents were more eager than the Brazoria Head Start class. When the foal was two days old, the class made a field trip to the pasture. "One little boy just boo-hooed when they had to leave," said Mrs Ray. "They were really looking forward to watching the baby grow."

On Sunday morning, Johnny Ray had fed Gamblin Darlin and a companion gelding, checked the foal, then joined his family at the beach to celebrate a grandson's birthday. When he returned to do the evening feeding, a little after 5pm, he called his wife in distress. "He said to come over because the baby was dead," she said.

At first, the Rays thought the filly had died of some sudden health problem. But the scene had looked odd. Ray had turned the horses out after the morning feeding and left them loose in the pasture. But the mare and foal were "chained inside a corral," said Mrs Ray, "with the baby backed up against the fence, with one little spot behind her front leg."

When Ray examined that spot, he called both the police and the veterinarian. A necropsy revealed that the filly had died from a single pellet gunshot to the heart. A check of the mare exposed the wound in her abdomen. Mrs. Ray was so upset that she had had to leave before the necropsy ended. "It was just heartbreaking to think that [the filly] had died, terrorized, against that fence."

By Sunday night, other horse lovers grieved the filly's passing. Kim McCleary of Sweeny, owner of the filly's sire, Easy Mountain Jet, had taken photos of the mare and foal when the filly was three days old. She wanted to show off the first of her stallion's offspring born this spring, and the first ever to an outside mare. On Saturday night, McCleary had sent the photos to 50 members of the Gulf Coast Gallopin' Gals, a women's riding and camping group to which she belongs.

"On Sunday night, she sent us a notice that the baby had been killed," said Gallopin' Gals co-founder Tonja Davis, a computer teacher for Columbia-Brazoria Independent School District. Infuriated by this turn of events, Davis talked to other teachers on Monday morning and asked them to "keep an ear to the ground," she said. If students had been involved in the shootings, she thought that teachers would hear kids talking about the incident.

Sure enough, two students told the story to their teacher, who relayed it to the principal. "Police came on Tuesday or Wednesday to interview the kids," said Davis. "I'm sure the kids were frightened, but they told the truth. I think they might have witnessed the shooting." Information provided by junior high students, along with information from others, led to the arrest of the suspect, a high-school freshman.

Police Detective Vicki Ellison of Brazoria told Texas Horse Talk that the arrested youth has confessed to the shootings, and that neither drugs nor alcohol appeared to play a role in the crime. She has in evidence both the suspect's gun and the pellet removed from the foal in necropsy.

Ellison told Texas Horse Talk that the suspect will be charged with criminal mischief in the shooting of the mare and cruelty to a livestock animal in the death of the foal. Investigation of the crime continues, with outraged members of the community continuing to provide information to police.

Horse lovers may feel that a crime as egregious as the point-blank shooting of a newborn foal and her gentle dam, herded from the pasture into a corral to make the shooting easier, will surely be severely punished.

"We just hope justice is done," said McCleary, who will offer the Rays a free return breeding to her stallion.

But "justice" might prove elusive.

The suspect is a minor, and, if convicted, will get probation and/or time in the Texas Youth Authority. Prosecution of the animal cruelty charge could also be challenging for Brazoria County District Attorney Jeri Yenne, disappointing for the Rays and disturbing for horse owners, especially for McCleary and other members of the Gallopin' Gals. That entire group is writing letters to the district attorney, demanding prosecution.

Aggressive prosecution just may not add up to much. The trouble lies with Texas animal cruelty law. Under the Texas Penal Code, horses, along with cattle, sheep, goats and swine, are grouped as "livestock," without the same protection from cruelty as companion animals. It is a state jail felony to torture a livestock animal, not to kill one. Torture is defined as "any act that causes unjustifiable pain or suffering."

But if the Rays' foal died instantly from the gunshot to the heart and the prosecutor can't prove torture, there may be no conviction under animal cruelty law. The criminal mischief charge may also prove frustrating for those who demand harsh punishment. Criminal mischief means destruction of another person's property. If a horse is worth between $1500 and $20,000, the crime is a Texas jail felony. If a horse is worth less than $1500, the crime is only a misdemeanor, with the class of misdemeanor dependent on the horse's exact value.

According to former president of the Texas Humane Legislation Network, Tarrant County attorney Randy Turner, "The Texas animal cruelty statute is incredibly bizarre. It is not a violation of the animal cruelty statute to kill another person's horse, except by poisoning the horse," unless the crime constitutes torture. Turner said that the Network "fought long and hard in the last legislative session to get horses the same protection as dogs and cats."

But they failed to win that battle.

"The ranching and livestock lobbies were just too powerful," he said.

In the death of the Rays' horse, satisfaction for the owners and their friends may come from issues outside the case. Detective Ellison told Texas Horse Talk that a number of unrelated charges are pending against the suspect, so he may serve time in the Texas Youth Authority regardless of how this case turns out. She agreed, however, that the community should be nervous when a young person commits a crime of this nature. "Overall, I'm just very concerned when a person, especially a juvenile, kills an animal," because that could be a prelude to vicious crimes against people. It's especially worrisome, added Ellison, if animal killing starts when the perpetrator is just 15.

Edith Ray joins Ellison in these concerns. "I wish I could be more forgiving," she said, "but I am still angry. Hopefully, with all the pressure, the courts will give them the maximum. I know that being in prison would not rehabilitate them, but with something like this, unless a severe sentence is handed down, I feel they will go on to commit something even more horrible."

This is the seventh horse attack covered by Texas Horse Talk since October 2006. Most have resulted in fatalities. But only one of those, the October 13, 2006 killing of Bryan resident Darla McCrady's palomino filly, Cowgirl Chic, has resulted in a conviction to date. Former Texas A&M University and Blinn College student Kenneth Ryan Peterson is currently serving time for that crime and was convicted by a Bryan jury in less than 15 minutes following his fall 2007 trial. Alleged co-perpetrator Walter Williams, a Texas A&M student, has not yet been tried.