IN THE

TENTH COURT OF APPEALS

No. 10-14-00311-CR

FRANKLIN JOSEPH BOWERS,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 220th District Court

Bosque County, Texas

Trial Court No. CR14873

MEMORANDUM OPINION

The jury convicted Franklin Joseph Bowers of the offense of illegal dumping of 

1000 pounds or more. The trial court assessed punishment at 24 months in a state jail 

facility. The trial court suspended imposition of the sentence and placed Bowers on 

community supervision for 5 years. We affirm.
Bowers v. State Page 2

Sufficiency of the Evidence

In the first issue, Bowers argues that the evidence is insufficient to support his 

conviction. The Court of Criminal Appeals has expressed our standard of review of a 

sufficiency issue as follows:

In determining whether the evidence is legally sufficient to support 

a conviction, a reviewing court must consider all of the evidence in the light 

most favorable to the verdict and determine whether, based on that 

evidence and reasonable inferences therefrom, a rational fact finder could 

have found the essential elements of the crime beyond a reasonable doubt. 

Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Hooper v. State, 214 S.W.3d 9, 

13 (Tex. Crim. App. 2007). This "familiar standard gives full play to the 

responsibility of the trier of fact fairly to resolve conflicts in the testimony,

to weigh the evidence, and to draw reasonable inferences from basic facts 

to ultimate facts." Jackson, 443 U.S. at 319. "Each fact need not point directly 

and independently to the guilt of the appellant, as long as the cumulative 

force of all the incriminating circumstances is sufficient to support the 

conviction." Hooper, 214 S.W.3d at 13.

Lucio v. State, 351 S.W.3d 878, 894 (Tex. Crim. App. 2011), cert den’d , 132 S.Ct. 2712, 183 

L.Ed.2d 71 (2012). 

The Court of Criminal Appeals has also explained that our review of "all of the 

evidence" includes evidence that was properly and improperly admitted. Conner v. State, 

67 S.W.3d 192, 197 (Tex. Crim. App. 2001). And if the record supports conflicting 

inferences, we must presume that the factfinder resolved the conflicts in favor of the 

prosecution and therefore defer to that determination. Jackson v. Virginia, 443 U.S. 307, 

326, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). Further, direct and circumstantial evidence 

are treated equally: "Circumstantial evidence is as probative as direct evidence in 

establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to 

establish guilt." Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). Finally, it is well 
Bowers v. State Page 3

established that the factfinder is entitled to judge the credibility of witnesses and can 

choose to believe all, some, or none of the testimony presented by the parties. Chambers 

v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991).

Background Facts:

In 2009, Captain Larry Betik, with the Bosque County Sheriff’s Department, 

received complaints about overgrown brush and grass on property in Bosque County. 

Captain Betik went to the property and spoke with Linda McKinley, Bower’s aunt, who

owned the property. Captain Betik testified at trial that he did not remember there being 

any litter or solid waste on the property at that time. Captain Betik did not take action in 

2009. McKinley died in June of 2009, and sometime later, Bowers moved onto the 

property. 

Captain Betik went again to the property in August 2010 after receiving complaints 

from neighbors about garbage. Captain Betik visited the property and took photographs 

of the waste on the property. Captain Betik issued a “30 day notice” to Bowers, and he 

also issued a notice to Bowers’s mother, Janice Bowers, who owned the property at that 

time. The “30 day notice” was an effort to allow Bowers to clean up the property so that 

it would comply with state standards. 

Captain Betik continued to receive complaints about the property, and in July or 

August of 2011, he again went to the property and took photographs of the waste on the 

property. On August 12, 2011, Captain Betik issued another “30 day notice” and a citation 

to Janice Bowers. On August 31, 2011, Janice Bowers transferred the title of the property 

to Bowers. Captain Betik continued to make contact with Bowers from August 2011 to 
Bowers v. State Page 4

September 2013 encouraging him to clean up the property, but he did not issue any 

citations during that time period.

In September 2013, Captain Betik received a call from deputies to come to the 

property. The deputies were there in response to complaints from neighbors about the 

waste on the property. Captain Betik arrived at the property and observed the waste in 

the front and back of the property. Captain Betik again took pictures to document the 

condition of the property. Captain Betik placed Bowers under arrest for illegal dumping. 

After Bowers’s arrest, Captain Betik contacted Jonathon Newcom, with the Texas 

Commission on Environmental Equality, to investigate the conditions of the property. 

Newcom inspected the property on February 24, 2014 and took pictures of the waste on 

the property. Newcom testified at trial and described the waste found on the property. 

Newcom described the waste as construction demolition debris, household waste, broken 

tools, trash bags, plastic coke bottles, toys, linens, 55 gallon metal drums, and lots of 

municipal waste. Newcom testified that he measured the area covered by waste and the 

height of the waste to calculate the amount of waste on the property. Newcom stated 

that there was 254 cubic yards (6858 cubic feet) of waste and that the approximate weight 

of the waste was 57,000 pounds. 

Destiny Bellah, Bowers’s cousin, testified that she has been assisting Bowers in 

cleaning up the property. Bowers does not own a vehicle, and Bellah helps by taking 

trash to her home or to a recycling center. She stated that Bowers has not had trash service 

at the property since 2011. 
Bowers v. State Page 5

Bowers testified at trial that he had been trying to clean up the property and that 

he would remove items from the buildings, bag them up, and stack the bags outside until 

he had help removing the bags from the property. He admitted that he is not able to 

borrow a trailer very often to haul off the trash and debris from the property. Bowers 

stated that he built a fence to conceal the waste on the property. 

Applicable Law:

A person commits the offense of illegal dumping if “the person disposes or allows 

or permits the disposal of litter or other solid waste at a place that is not an approved 

solid waste site ...” TEX. HEALTH AND SAFETY CODE ANN. § 365.012 (a) (West Supp. 2014). 

The offense is a state jail felony if the litter or solid waste weighs 1,000 pounds or more, 

or has a volume of 200 cubic feet or more. TEX. HEALTH AND SAFETY CODE ANN. § 365.012 

(g) (1) (West Supp. 2014).

Analysis:

Bowers argues that the evidence is insufficient to show that on any single occasion 

he disposed of over 1,000 pounds of litter or other solid waste. “Dispose” and “dump” 

mean to discharge, deposit, inject, spill, leak, or place litter on or onto land or water. TEX.

HEALTH AND SAFETY CODE ANN. § 365.011 (5) (West 2010). Bowers testified that he put 

waste in bags and placed it on the property. Captain Betik took photographs of the 

property that showed the waste accumulating on the property after Bowers was in 

possession of the property. Captain Betik testified at trial and described the accumulation 

of the waste on the property as depicted in the photographs. The evidence is sufficient 

to show that Bowers disposed of litter or solid waste on the property.
Bowers v. State Page 6

Section 365.012 (a) does not state that the person must dispose of the litter or solid 

waste or allow the disposal of litter or other solid waste in a single act. In Section 365.012, 

the degree of the offense is determined by the weight of the litter or solid waste; however, 

it does not specify that the weight is determined by the amount disposed of in a single 

act. 

In Romero v. State, 129 S.W.3d 263 (Tex.App.-El Paso 2004, no pet.), the appellant 

was charged with illegal dumping under Section 365.012. In Romero, the State alleged 

that appellant disposed or allowed the disposal of litter or other solid waste, weighing 

more than 500 pounds. Id. at 265. Although not an issue in Romero, the facts suggest that 

the disposal of the litter or waste did not occur in a single occasion. We do not find any 

cases to support Bowers’s position, and he does not cite to any. 

The record shows that there was approximately 57,000 pounds of waste on the 

property. The State presented evidence that the waste accumulated on the property while 

Bowers lived on the property. Bowers did not have trash service for more than a year, 

and there was considerable household trash on the property. Bowers admitted to 

bagging waste and placing it on the property. We find that the evidence is sufficient to 

show that Bowers disposed of waste weighing over 1000 pounds. See Burgess v. State, 

2015 Lexis Tex.App. 8159 (Tex.App. – Dallas, August 4, 2015, no pet.). We overrule the 

first issue.

Justification

In the second issue, Bowers contends that Section 365.012 (l) is applicable. Section 

365.012 (l) provides:
Bowers v. State Page 7

This section does not apply to an individual's disposal of litter or other solid 

waste if:

(1) the litter or waste is generated on land the individual owns;

(2) the litter or waste is not generated as a result of an activity related 

to a commercial purpose;

(3) the disposal occurs on land the individual owns; and

(4) the disposal is not for a commercial purpose.

TEX. HEALTH AND SAFETY CODE ANN. § 365.012 (g) (1) (West Supp. 2014). The trial court 

instructed the jury that if they found the State proved each element of the offense beyond 

a reasonable doubt, they must then consider whether Bowers’s actions were justified. The 

trial court then detailed the provisions set out in Section 365.012 (l). 

A defendant bears the burden of production with respect to defenses, which 

requires the production of some evidence that supports the defense. Zuliani v. State, 97 

S.W.3d 589, 594 (Tex. Crim. App. 2003); Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. 

App. 1991). Once the defendant has met this burden, the State then shoulders the burden 

of persuasion to disprove the defense. Zuliani, 97 S.W.3d at 594. The burden of 

persuasion is not one that requires the production of evidence, rather it requires only that 

the State prove its case beyond a reasonable doubt. Id. When a jury finds the defendant 

guilty, there is an implicit finding against the defensive theory. Zuliani v. State, 97 S.W.3d 

at 594; Saxton v. State, 804 S.W.2d at 914. 

The record shows that the waste on the property consisted of household trash, 

mattresses, construction debris, tools, carpet, and furniture. The jury viewed pictures 

that showed the amount of waste on the property and also showed the various types of 

waste on the property. The jury heard evidence that there was approximately 57,000 
Bowers v. State Page 8

pounds of waste on the property. The State was required to prove that Bowers disposed 

of 1,000 pounds of waste on the property. The jury could have rationally concluded that 

even if some of the waste was generated on the property, there was 1,000 pounds or more 

of litter or waste not generated on the property as set out in Section 365.012 (l). We find 

that the evidence is sufficient to support the jury’s rejection of the justification defense in 

Section 365.012 (l). We overrule the second issue.

Admission of Evidence

In the third issue Bowers argues that the trial court erred in admitting the 

testimony of Jonathon Newcom concerning the conditions of the property. In the fourth 

issue, Bowers argues that the trial court erred in admitting photographs of the property 

taken by Newcom. We review a trial court's decision regarding the admissibility of 

evidence under an abuse of discretion standard. Cameron v. State, 241 S.W.3d 15, 19 (Tex.

Crim. App. 2007). Because trial courts are in the best position to decide questions of 

admissibility, appellate courts uphold a trial court's admissibility decision when that 

decision is within the zone of reasonable disagreement. Id. An appellate court may not 

reverse a trial court's decision regarding the admissibility of evidence solely because the 

appellate court disagrees with the decision. Id. 

Newcom testified that Captain Betik contacted him in September 2013 to 

investigate Bowers’s property. Newcom went to the property February 24, 2014 to 

conduct his investigation. Bowers objected that Newcom’s testimony was more 

prejudicial than probative and had nothing to do with the events in September 2013. The 

trial court overruled the objection. Newcom testified that he took pictures of the property 
Bowers v. State Page 9

during his investigation. Bowers objected to the admission of the pictures again stating 

that they were more prejudicial than probative. 

Rule 401 defines "relevant evidence" as evidence having any tendency to make the 

existence of a fact of consequence more or less probable than it would be without the 

evidence. TEX. R. EVID. 401. Evidence may be excluded under Rule 403 if the danger of 

unfair prejudice substantially outweighs the probative value of the evidence. TEX.R.EVID. 

403. Rule 403 favors admission of relevant evidence and carries a presumption that 

relevant evidence will be more probative than prejudicial. Allen v. State, 108 S.W.3d 281, 

284 (Tex. Crim. App. 2003). 

In the pictures taken by Newcom, there is a “scale stick” visible in the waste. 

Newcom testified that he puts the “scale stick” in the photographs “to provide scale for 

things that don’t translate well to photographs from real world views.” Newcom further 

testified that he refers to the photographs to “see how deep the pole is in the waste to 

determine how deep the waste is at any given spot.” He uses this information in 

determining the total amount of waste on the property. 

Newcom further described how he measures the dimensions of the property to 

calculate the amount of waste on the property. Newcom testified that there was 

approximately 57,000 pounds and 254 cubic yards of waste on the property. Newcom’s 

testimony and pictures help establish the amount of waste on the property as required 

for the State to establish a state jail felony. The trial court did not err in admitting 

Newcom’s testimony and photographs.
Bowers v. State Page 10

Moreover, any error in admitting the testimony and pictures did not affect 

Bowers’s substantial rights. TEX. R. APP. P. 44.2 (b). Captain Betik testified that from 

September 2013 to February 2014, Bowers had cleaned up some of the waste and that 

there would have been more than 57,000 pounds at the time of Bowers’s arrest. The State 

introduced pictures showing the amount of waste on the property at the time of Bowers’s 

arrest. The jury would be able to compare the amount of waste present at the time of the 

arrest to the amount present at the time of Newcom’s inspection. We overrule the third 

and fourth issues.

Conclusion

We affirm the trial court’s judgment. 

AL SCOGGINS

Justice

Before Chief Justice Gray,

Justice Davis, and

Justice Scoggins

Affirmed

Opinion delivered and filed November 19, 2015

Do not publish

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