In the

Court of Appeals

Second Appellate District of Texas

at Fort Worth ___________________________

No. 02-20-00157-CR 

___________________________

On Appeal from the County Court at Law

Hood County, Texas

Trial Court No. 52381

Before Sudderth, C.J.; Womack and Walker, JJ.

Opinion by Chief Justice Sudderth

Dissenting Opinion by Justice Walker

THOMAS EDWARD BLANKENSHIP, Appellant

V. 

THE STATE OF TEXAS
2 

OPINION

Appellant Thomas Edward Blankenship challenges his conviction for Class A 

misdemeanor unlawful burning on various sufficiency grounds. In his first two issues, 

Blankenship argues that there is no evidence that the “treated wood, soda cans, and 

bottles” he was charged with burning qualify as “heavy oils, asphaltic materials, 

potentially explosive materials, or chemical wastes,” as is required for the 

enhancement of his otherwise-Class C offense to a Class A misdemeanor. Because 

we agree with Blankenship on this point, and because none of Blankenship’s other 

sufficiency arguments are meritorious, we will reduce his conviction to a Class C 

misdemeanor and remand the case for a new punishment hearing. 

I. Background

As Sergeant Joshua Lane and Deputy Ciji Montemayor drove to Blankenship’s 

property to conduct an unrelated warrant investigation, they saw him tending a fire

that was emitting black smoke.

1

 Blankenship told the officers that he was burning 

plywood, which Sergeant Lane and Deputy Montemayor later testified they 

considered illegal to burn.

2

 As Sergeant Lane walked closer to the fire, he noticed

1

Sergeant Lane—who had previously worked as a volunteer firefighter—later 

testified that he considered black smoke to be an indication that a fire is burning toxic 

or illegal materials, and Deputy Montemayor—a former fire marshal—confirmed that 

lawful fires containing natural vegetation do not produce black smoke. 

2

On cross-examination, Deputy Montemayor confirmed that “there’s such a 

thing as untreated plywood.” 
3

“treated wood, bottles[,] . . . some glass[,] . . . some soda cans,” and “at least . . . one 

paint can in the fire.” Deputy Montemayor similarly saw a “spray paint can,” “paint 

cans[,] . . . plywood[,] and metal items” in the fire. 

The officers arrested Blankenship and extinguished the fire. Neither officer

seized or tested any physical evidence from the scene. However, they took photos of 

the fire, and they recorded the interaction with Blankenship on their body cameras.

Blankenship was charged by information with “intentionally or knowingly 

burn[ing] treated wood, soda cans, and bottles, in violation of Section 382.018 of the 

Texas Health and Safety Code, Section 111.219(7) of the Texas Administrative Code, 

and Sections 7.177 and 7.187(b)(3) of the Texas Water Code.” The information did 

not allege any prior convictions for outdoor burning.

Blankenship’s case was tried to the court. The officers testified regarding their 

interaction with Blankenship and the items they saw in the fire. They explained that 

they understood “[a]nything that’s not natural to the earth” to be illegal to burn, and 

that because plywood contained substances not natural to the earth—the “adhesive 

used to hold it together” and “materials to keep it from rotting”—they considered 

burning plywood to be illegal.

In addition to the officers’ testimony, the State offered video footage from 

both officers’ body cameras, a photograph of the fire, and a photograph of 

Blankenship’s nearby shed. The body-camera footage captured Blankenship’s
4 

admission that he was burning plywood and provided periodic views of the fire from

various vantage points. 

The defense called Jeremy Cosgrove, a fire investigator, to testify as an expert. 

Cosgrove testified that “[t]reated wood[,] as far as the industry standard goes[,]” 

contemplates wood that “is normally treated with a copper solution that prevents any 

kind of rotting or deterioration of the wood.” Cosgrove also stated that not all 

plywood is treated, that treated wood can be “extremely hard” to distinguish from

untreated wood on sight, that the two types of wood cannot be distinguished by the 

color of the smoke they emit while burning, and that there is ultimately “no way to 

see if a [piece of] wood’s been treated or not without a forensic analysis of that 

material to determine what chemical compositions are within that material.”3

The trial court found Blankenship guilty of Class A misdemeanor “outdoor 

burning of waste toxic material,” and sentenced him to 45 days’ confinement with a 

$1,500 fine. See Tex. Penal Code Ann. § 12.21. 

3

Cosgrove stated that the same was true of other burned materials. Although 

an individual can examine the remains of a fire and form a hypothesis as to what 

items had been burned, Cosgrove testified that laboratory testing is necessary to 

determine if the items “actually sustained combustion.” 
5 

II. Discussion

Blankenship raises three issues on appeal, all of which challenge the sufficiency 

of the evidence in some way.

4

 Blankenship argues that his Class A misdemeanor 

conviction must be reversed because (1) there is insufficient evidence regarding the 

nature of the items burned, i.e., that they qualified as “heavy oils, asphaltic materials, 

potentially explosive materials, or chemical wastes”; (2) there is insufficient evidence 

that the prohibited items were actually located in the fire because the body-camera 

footage “indisputabl[y]” contradicts the officers’ testimony; and (3) there is

insufficient evidence that Blankenship’s fire was not authorized under a statutory 

exception. 

A. Standard of Review

In our evidentiary-sufficiency review, we consider all the evidence in the light 

most favorable to the verdict to determine whether any rational factfinder could have 

found the crime’s essential elements beyond a reasonable doubt. Jackson v. Virginia, 

443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Queeman v. State, 520 S.W.3d 616, 622 

(Tex. Crim. App. 2017). The crime’s elements are defined by the hypothetically 

correct jury charge, which accurately sets out the law, is authorized by the 

4

The three issues listed in Blankenship’s brief are reordered and restructured

for organizational purposes. We construe the first two issues listed in his brief as the 

three issues listed above, and we do not address the final issue listed in Blankenship’s 

brief—which challenges Sergeant Lane’s testimony regarding the significance of 

“black smoke”—as the issue is resolved by our other holdings. See infra note 17. 
6 

information,

5 does not unnecessarily increase the State’s burden of proof or restrict 

the State’s theories of liability, and adequately describes the offense for which the 

defendant was tried. Jenkins v. State, 493 S.W.3d 583, 599 (Tex. Crim. App. 2016); see 

also Febus v. State, 542 S.W.3d 568, 572 (Tex. Crim. App. 2018) (“The essential

elements of an offense are determined by state law.”). 

Here, Blankenship was tried for committing the offense of unlawful burning. 

See Tex. Health & Safety Code Ann. § 382.018; Tex. Water Code Ann. § 7.177(a)(5); 

30 Tex. Admin. Code § 111.219 (2022) (Tex. Comm’n on Env’t Quality, General 

Requirements for Allowable Outdoor Burning). 

B. Applicable Law 

The statutory scheme for the offense of unlawful burning “is not 

straightforward; the statutes are found in at least two codes, and the restrictions on 

burning are scattered through the Administrative Code.” State v. Rhine, 297 S.W.3d 

301, 307 (Tex. Crim. App. 2009); see Tex. Health & Safety Code Ann. § 382.018; Tex. 

Water Code Ann. § 7.177(a)(5). 

The groundwork for the offense is laid in the Texas Clean Air Act, which

authorizes the Texas Commission on Environmental Quality (TCEQ) to establish 

rules to “control and prohibit the outdoor burning of waste and combustible 

5

The phrase “authorized by the information” refers to the statutory elements of 

the charged offense as modified by the factual details and legal theories contained in 

the charging instrument. See Jenkins v. State, 493 S.W.3d 583, 599 (Tex. Crim. App.

2016). 
7 

material.” Tex. Health & Safety Code Ann. § 382.018(a). TCEQ implemented this 

legislation by adopting a broad rule prohibiting “any outdoor burning . . . except as 

provided,”6 30 Tex. Admin. Code § 111.201 (2022) (Tex. Comm’n on Env’t Quality, 

General Prohibition), then it carved out exceptions to authorize, for example, 

“recreational” fires, id. § 111.207 (2022) (Tex. Comm’n on Env’t Quality, Exception 

for Fires Used for Recreation, Ceremony, Cooking, and Warmth), and “domestic

waste” fires disposing of items such as “kitchen garbage[ and] untreated lumber,” id.

§ 111.209 (2022) (Tex. Comm’n on Env’t Quality, Exception for Disposal Fires). 

Even when an outdoor burning is otherwise authorized, though, it is subject to

restrictions on the location, timing, and meteorological conditions. And burning 

“[e]lectrical insulation, treated lumber, plastics, non-wood construction/demolition 

materials, heavy oils, asphaltic materials, potentially explosive materials, chemical 

wastes, and items containing natural or synthetic rubber” is strictly prohibited. Id.

§ 111.219(7) (2022) (Tex. Comm’n on Env’t Quality, General Requirements for 

Allowable Outdoor Burning). 

The legislature criminalized the violation of a TCEQ rule adopted under the 

Clean Air Act, and it established the punishment for unlawful burning in particular. 

Tex. Water Code Ann. §§ 7.177(a)(5), 7.187(b); see Rhine, 297 S.W.3d at 312

(concluding that “the legislature defined the elements of the offense and left to TCEQ 

6

Blankenship’s information did not allege that he violated the broad prohibition 

on outdoor burning in Rule 111.201. 
8 

only 1) the determination of what materials that, when burned, created the air 

contaminants that were the concern of the legislature, and 2) control over the places 

and conditions under which those materials may be burned”). Generally, unlawful 

burning is a Class C misdemeanor, but the offender’s criminal history and the nature 

of the item burned may enhance the crime’s classification. Tex. Water Code Ann. 

§ 7.187(b). The legislature grouped prohibited items into three punishment tiers: 

(1) “heavy oils, asphaltic materials, potentially explosive materials, [and] chemical 

wastes,” the burning of which is punished with the most severity; (2) “insulation on 

electrical wire or cable, treated lumber, plastics, non-wood construction [and]

demolition materials, furniture, carpet, [and] items containing natural or synthetic 

rubber,” the burning of which is punished with moderate severity; and (3) all other 

items, the burning of which is punished with the lowest degree of severity. Id. 

Unlawful burning is 

(1) a Class C misdemeanor if the violation is a first violation and 

does not involve the burning of [high-severity items]; 

(2) a Class B misdemeanor if the violation is a second or 

subsequent violation and:

(A) the violation does not involve the burning of:

(i) [high-severity items]; or

(ii) [moderate-severity items]; or

(B) the violation involves the burning of [moderateseverity items] and none of the prior violations involved 

the burning of [high-severity items] or [moderate-severity 

items]; or

(3) a Class A misdemeanor if the violation:
9 

(A) involves the burning of [high-severity items]; or

(B) is a second or subsequent violation and involves the 

burning of [moderate-severity items] and one or more of 

the prior violations involved the burning of [high-severity 

items] or [moderate-severity items]. 

Id. (indentation altered). In other words, for a first-time unlawful burning offense, as 

Blankenship was charged with committing here, an individual commits a Class A 

misdemeanor if he unlawfully burns a prohibited item that is proven to be a highseverity item, and he commits a Class C misdemeanor if he unlawfully burns any other 

prohibited item. See id.

C. Nature of Burned Items

Blankenship’s first sufficiency challenge relates to the nature of the items 

burned and whether the evidence supports the enhancement of his offense to a Class 

A misdemeanor. 

Blankenship was charged by information with “intentionally or knowingly 

burn[ing] [1] treated wood, [2] soda cans, and [3] bottles.”7 Such conduct constitutes 

a Class A misdemeanor only if the nature of at least one of these items was proven at

trial to be not only prohibited but also a high-severity item, i.e., “heavy oils, asphaltic

materials, potentially explosive materials, or chemical wastes.” Tex. Water Code Ann. 

§ 7.187(b)(1), (3). 

7

Both parties implicitly assume that the hypothetically correct jury charge 

requires the State to prove at least one of the three items listed in Blankenship’s 

indictment. 
10

The State does not claim that it offered any evidence to prove that one of the 

three listed items qualifies as “heavy oils [or] asphaltic materials.” And although in its 

brief the State contends that there is evidence of “potentially explosive materials” in 

the fire—specifically, a spray paint can—it abandoned this position at oral argument, 

admitting that “the spray paint can is not even listed in [the] information.”8

 See Nelson 

v. State, 607 S.W.2d 554, 555 (Tex. Crim. App. 1980) (declining to address ground of 

error abandoned at oral argument). This leaves only “chemical wastes” as the relevant 

high-severity category. 

The State argues that the “soda cans[] and bottles” listed in the information 

were proven at trial to be “chemical wastes,” and that the “treated wood” was proven 

to be both “treated lumber” and “chemical wastes.”9

 Blankenship counters that none

of the items in his fire were proven to be “chemical wastes,” and that the plywood

was not even shown to have been “treated.” 

8

At oral argument, the State was asked directly: “What is your position here 

today? What substances were being burned that were illegal?” The State listed only

the items in the information—“treated wood or plywood, soda cans, bottles”—and it 

contended that these items qualified as “chemical wastes.” 

9

“It is well established that the State may plead in the conjunctive and charge

[and prove] in the disjunctive.” Cada v. State, 334 S.W.3d 766, 771 (Tex. Crim. App. 

2011); Kitchens v. State, 823 S.W.2d 256, 258 (Tex. Crim. App. 1991) (similar); see also 

Caddel v. State, No. 05-97-02079-CR, 1999 WL 993862, at *1 (Tex. App.—Dallas Nov. 

1, 1999, pet. ref’d) (per curiam) (not designated for publication) (applying rule in 

bench-trial context); Griff v. State, No. B14-92-00752-CR, 1993 WL 487500, at *3 

(Tex. App.—Houston [14th Dist.] Nov. 24, 1993, pet. ref’d) (similar). Consequently, 

the State was only required to prove that one of the three items listed in the 

information qualified as “chemical waste[].” 
11

1. Soda Cans and Bottles

In its brief, the State fails to explain why the “soda cans”10 or “bottles” in 

Blankenship’s fire should qualify as “chemical wastes.”11 Nor did its response at oral 

argument provide such an explanation. When asked why the soda cans and bottles 

were toxic, the State explained that “you’ve got aluminum, [and] you’ve got different 

chemical components that go into having to process those in a factory to make a 

bottle or a can.” Even assuming the plain meaning of “chemical wastes” is as broad 

as the State’s explanation implies—and even assuming that the State preserved this

argument despite failing to brief it—the record contains no evidence of the soda cans’ 

or bottles’ allegedly toxic factory process. Sergeant Lane testified that he saw “soda 

cans” and a “glass bottle” in the fire, but he did not elaborate on the cans or bottles, 

nor did he state that the cans or bottles were manufactured or contaminated with any 

lingering chemicals. Deputy Montemayor did not discuss the soda cans or glass 

10The State’s brief broadly refers to all cans, and it focuses its argument on the 

contention that there was evidence of spray paint cans burning in the fire. But, as

already noted, the State abandoned its reliance on the spray paint cans at oral

argument. 

11The State’s brief also describes the bottles as “plastic.” But the only mention 

of a plastic bottle was when Deputy Montemayor was asked what she could see from 

an unidentified still shot of her body-camera video, and even then, she did not state 

that the plastic bottle was in the fire but that it was “near the broom.” The only 

testimony that there was a bottle actually in the fire came from Sergeant Lane, who 

described the relevant bottle as “glass.” Moreover, “[t]here is a conflict between [30 

Tex. Admin. Code § 111.219(7)’s] overarching prohibition on plastics and 

§ 111.209(1)’s allowance of packaging plastics in domestic waste.” Rhine, 297 S.W.3d 

at 309 n.5 (discussing TCEQ rules). 
12

bottles allegedly in the fire, and nothing in the documentary or video evidence

demonstrated that the cans or bottles were contaminated with chemicals of some sort. 

In short, the evidence was insufficient to support a finding that the “soda cans” 

or “bottles” referenced in Blankenship’s information were “chemical wastes.” 

2. Treated Wood 

The Class A enhancement can thus be narrowed to one prohibited item listed 

in Blankenship’s information: “treated wood.” It is undisputed that Blankenship was

burning plywood, that this is the “wood” referenced in his information, and that if

there is sufficient evidence that the plywood was in fact “treated” then it qualifies as

“treated lumber” within the meaning of the Water Code and relevant TCEQ rules.12 

See Tex. Water Code Ann. § 7.187(b)(2)(A)(ii); 30 Tex. Admin. Code § 111.219(7)

(2022) (Tex. Comm’n on Env’t Quality, General Requirements for Allowable 

Outdoor Burning). But the parties dispute whether the adhesives used to 

manufacture the plywood qualify as “treat[ments]” and whether such alleged 

“treat[ments]” convert the plywood into not only “treated lumber” but also “chemical 

waste[].” 

12The parties do not dispute that plywood is a type of lumber. Indeed, lumber 

is produced by cutting timber or logs into planks. See Lumber, Webster’s Third New 

International Dictionary 1345 (2002) (defining “lumber” as, among other things, 

“timber or logs esp. after being prepared for the market”). And, as discussed below,

plywood is created by cutting lumber into thin strips and then gluing those strips 

together to strengthen and stabilize the wood product. Thus, all plywood is lumber, 

but not all lumber is plywood. A lay person walking through a hardware store could 

easily distinguish a sheet of plywood from an ordinary piece of lumber. 
13

a. Sufficient Evidence of “Treatment”

The State characterizes the adhesives used to manufacture Blankenship’s

plywood as “treat[ments],” but Blankenship claims that these are not “treat[ments],”

and he argues that the State was required to test the plywood to demonstrate that it

was “treat[ed]” based on its chemical composition.

i. Plain Meaning

“[T]reated lumber” is a statutory term, and statutory construction is a question 

of law which we review de novo. Lang v. State, 561 S.W.3d 174, 180 (Tex. Crim. App. 

2018); Mason v. State, 598 S.W.3d 755, 767 (Tex. App.—Fort Worth 2020, pet.

granted). The term “treated lumber” is not defined in the Clean Air Act or in any of 

the applicable TCEQ rules, and the parties rely on different definitions of it—the 

State on a definition extrapolated from a parenthetical in a 2015 TCEQ manual, and 

Blankenship on the “industry standard” testified to by his expert. We do not adopt 

either definition. 

Instead, we apply the “plain meaning rule”—an “ancient” method of

interpretation that is “constitutionally and logically compelled.” Boykin v. State, 818 

S.W.2d 782, 785–86 (Tex. Crim. App. 1991); see Rhine, 297 S.W.3d at 310–12. This is 

the method the Texas Court of Criminal Appeals employed when it faced similarly 

undefined-but-unambiguous terms in the Clean Air Act. Rhine, 297 S.W.3d at 310–12

(applying plain meaning rule to interpret “waste” and “combustible material” in Tex. 
14

Health & Safety Code Ann. § 382.018 and in TCEQ rule establishing “domestic 

waste” exception). 

Following that court’s example, we read “words and phrases . . . in context 

and . . . according to the rules of grammar and common usage.”13 Rhine, 297 S.W.3d 

at 310 (quoting Tex. Gov’t Code Ann. § 311.011). We “may consult standard 

dictionaries in determining the fair, objective meaning of undefined statutory terms.” 

Lang, 561 S.W.3d at 180; see Watkins v. State, 619 S.W.3d 265, 272–73 (Tex. Crim. App. 

2021) (similar). Only if the plain language is ambiguous or would lead to an absurd

result may we, “out of absolute necessity,” consider such extratextual factors as 

administrative interpretations of the statute. Rhine, 297 S.W.3d at 310 (quoting Boykin, 

818 S.W.2d at 785). 

13There is an exception to the plain-meaning rule for technical meanings: 

“[w]ords and phrases that have acquired a technical or particular meaning, whether by 

legislative definition or otherwise, shall be construed accordingly.” Rhine, 297 S.W.3d 

at 310 (quoting Tex. Gov’t Code Ann. § 311.011); see Medford v. State, 13 S.W.3d 769, 

772 (Tex. Crim. App. 2000). But this exception is not applicable here. 

Technical terms are those “which have a known and established legal meaning, 

or which have acquired a peculiar and appropriate meaning in the law, as where the 

words used have a well-known common law meaning,” such as the term “arrest.” 

Medford, 13 S.W.3d at 772. Here, the term “treated lumber” has not been statutorily 

defined, nor has it acquired a common legal meaning. Cf. Green v. State., 476 S.W.3d 

440, 445 (Tex. Crim. App. 2015) (agreeing with the lower court “that the terms 

‘penetration’ and ‘female sexual organ’ are common terms that have not acquired a 

technical meaning”); Kirsch v. State, 357 S.W.3d 645, 650 (Tex. Crim. App. 2012)

(reiterating in DWI case “that ‘operate’ is a common term that has not acquired a 

technical meaning and may be interpreted according to its common usage”). 
15

The plain meaning of “treated” is neither ambiguous nor absurd. In the 

context of the phrase “treated lumber,” the verb “to treat” means “to subject (as a 

natural or manufactured article) to some process to improve the appearance, taste, 

usefulness, or some other quality.” Treat, Webster’s Third New International 

Dictionary 2434–35 (2002). Similarly, a “treatment” is a “subjection of something to 

the action of an agent or process,” as in “sewage treatment”; “something (as a 

fertilizer or preserver) used in treating,” as in “a seed disinfectant treatment.”

Treatment, Webster’s Third New International Dictionary 2435 (2002); see Treatment,

Merriam-Webster’s Dictionary, https://www.merriamwebster.com/dictionary/treatment (last visited July 7, 2022) (defining term as, among 

other things, “something (such as a product or technique) used in treating, enhancing, 

or improving the performance, condition, or appearance of someone or something”). 

Here, both parties’ witnesses testified that plywood was manufactured with 

adhesives. Sergeant Lane stated that, based on his study and training, he knew

plywood to be manufactured with certain additives, such as “[g]lues, as well as other 

kind[s] of materials to keep it from rotting.” Deputy Montemayor similarly testified 

that plywood contains “treated chemicals for the lumber and . . . adhesive used to 

hold it together.” And Blankenship’s own expert testified that plywood is created 

from “small sheets of wood” that are manufactured with “some type of adhesive and 

pressure to push those pieces of wood together in turn creating the different plies of 

the plywood.” There was thus evidence that plywood—which Blankenship admitted 
16

burning—consists of basic sheets of wood “subject[ed] . . . [to a] process” using glues 

and similar additives to “enhanc[e] or improv[e] . . . [its] performance, condition, or 

appearance” by binding the sheets of wood together.

14 Cf. Treat, Webster’s Third

New International Dictionary 2434–35 (2002); Treatment, Webster’s Third New 

International Dictionary 2435 (2002); Treatment, Merriam-Webster’s Dictionary, 

https://www.merriam-webster.com/dictionary/treatment (last visited July 7, 2022). 

This fits within the plain meaning of the term “treated lumber.”15 

14This conclusion is limited to the evidence presented at Blankenship’s trial. 

We do not hold that plywood is de facto “treated lumber” but that the evidence 

presented here supported a reasonable conclusion that the plywood qualified as

“treated lumber.” 

15Although we generally consider agency constructions only if the plain 

language is ambiguous or leads to an absurd result, because the criminalized

restrictions on burning are partially defined by TCEQ and “scattered through[out] the 

Administrative Code,” Rhine, 297 S.W.3d at 307, 310, we note that our plain-language 

interpretation of “treated lumber” is consistent with TCEQ’s parallel environmental 

regulations. 

In its regulation of certain solid waste incineration units’ emissions, TCEQ

distinguishes between “untreated wood” and “treated wood”—it defines “[w]ood 

waste” as “[u]ntreated wood and untreated wood products” and it specifically 

provides that “[w]ood waste does not include: . . . [t]reated wood and treated wood

products, including . . . manufactured wood products that contain adhesives or resins

(e.g., plywood, particle board, flake board, and oriented strand board).” 30 Tex. 

Admin. Code § 113.2300(41) (2022) (Tex. Comm’n on Env’t Quality, Definitions); cf. 

L.B. Foster Co. v. State, 106 S.W.3d 194, 203–04 (Tex. App.—Houston [1st Dist.] 2003,

pet. ref’d) (reviewing criminal Water Code violation and applying technical meaning of

“disposal” given to the term in other state and federal environmental statutes). This 

definition lends further support to our plain-meaning interpretation and to our 

conclusion that a reasonable factfinder could have concluded that Blankenship’s

plywood qualified as “treated.” But see Boykin, 818 S.W.2d at 786 n.4 (commenting

that the Code Construction Act “invites, but does not require, courts to consider 
17

ii. No Testing Required 

Blankenship contends, though, that the State could not prove that the plywood 

was “treated lumber” without confiscating and scientifically testing it to verify its 

chemical composition.

16 Blankenship has not cited any case law to support his 

proposed testing requirement but instead analogizes the plywood to marihuana. He 

reasons that because the legislature distinguishes between marihuana and hemp, 

because the substances are governed by different regulations and prohibitions, and

because they can be difficult for non-experts to distinguish by sight or smell, testing is 

“‘absolutely’ a must” to prove a marihuana-based offense beyond a reasonable doubt. 

According to Blankenship, the same is true of treated and untreated lumber; because 

the legislature distinguishes between the two, and because they can be difficult for 

non-experts to distinguish by sight or smell, it was “impossible” for the State to prove 

that Blankenship’s plywood was “treated” without testing it. 

We need not wade into the deep waters of the marihuana–hemp distinction

here because marihuana and treated lumber are not analogous. Marihuana and hemp

have statutory definitions that distinguish them from one another based on their

extratextual factors when the statutes in question are not ambiguous, [but] such an 

invitation should be declined”). 

16Blankenship lodges a similar argument regarding the need for testing to 

determine if a given item is “chemical waste.” We need not address this argument

because we dispose of the “chemical wastes” issue on sufficiency grounds. See Tex. R. 

App. P. 47.1. 
18

chemical compositions and that provide standards against which the substances may 

be scientifically tested. See Tex. Agric. Code Ann. § 121.001; Tex. Health & Safety 

Code Ann. § 481.002(26). As we have already noted, “treated lumber” has no

statutory definition, nor does “untreated lumber.” Furthermore, Blankenship does 

not dispute that there were adhesive substances in his plywood—he disputes whether 

such substances qualify as “treat[ments].” It is unclear how or why a scientific test of 

the plywood would have changed this. 

Based on the evidence presented at trial, and even without a scientific test, a 

reasonable factfinder could have concluded that Blankenship’s plywood had been 

“treated” within the plain meaning of that phrase.17 See Tex. Water Code Ann. 

§ 7.187(b)(2)(A)(ii); 30 Tex. Admin. Code § 111.219(7) (2022) (Tex. Comm’n on Env’t

Quality, General Requirements for Allowable Outdoor Burning). An outdoor burn, 

even if otherwise authorized, may not include “treated lumber.” 30 Tex. Admin. 

Code § 111.219(7) (2022) (Tex. Comm’n on Env’t Quality, General Requirements for 

17Blankenship also argues that, because the State could not prove that the

plywood was “treated lumber” or that there were any other prohibited items in the 

fire, it could only prove that the fire contained prohibited substances by relying on 

Sergeant Lane’s testimony regarding black smoke—i.e., his testimony that black 

smoke indicates that a fire contains toxic or illegal materials. Blankenship labels this 

testimony “junk science” and argues that the State’s reliance upon it necessitates 

reversal “as a matter of public policy.” Even without Sergeant Lane’s testimony 

regarding black smoke, we hold that the State offered sufficient evidence that the 

plywood was “treated.” Thus, we need not address this issue. Tex. R. App. P. 47.1. 
19

Allowable Outdoor Burning). There was thus sufficient evidence that the plywood 

Blankenship admitted burning was a prohibited item. 

b. Insufficient Evidence of “Chemical Wastes” 

The unlawful burning of “treated lumber” is a Class C offense for first-time 

offenders, though, and Blankenship’s unlawful burning offense was enhanced to a 

Class A. The State supports the enhancement by arguing that the same adhesive 

“treat[ments]” that make the plywood “treated lumber” also support a finding that it 

is “chemical waste[].” 

But the Water Code distinguishes between “treated lumber” and “chemical 

wastes,” and we must do so as well. See Tex. Water Code Ann. § 7.187(b). 

“[C]hemical waste[]” is a high-severity item, “treated lumber” is a moderate-severity 

item, and under TCEQ rules, “untreated lumber” is either domestic waste or a lowseverity item, depending on the circumstances. See id.; 30 Tex. Admin. Code

§ 111.209(1) (2022) (Tex. Comm’n on Env’t Quality, Exception for Disposal Fires). 

If, as the State argues, the same wood additives that convert plywood from “untreated 

lumber” into “treated lumber” also make that lumber “chemical waste[],” then it is 

difficult to imagine what items of “treated lumber” would not qualify as “chemical 

waste[].” Such an interpretation would render the entire “treated lumber” category

superfluous and conflict with our “presum[ption] that . . . the entire statute is intended 

to be effective.” Tex. Gov’t Code Ann. § 311.021(2); see Watkins, 619 S.W.3d at 272

(reiterating that “we must presume that every word in a statute has been used for a 
20

purpose and that each word, phrase, clause, and sentence should be given effect if 

reasonably possible”). If the legislature intended to classify all “treated lumber” as

“chemical waste[],” it would not have distinguished between the two and prescribed

different punishments for their burning.

18 

Put differently, even if the additives that convert a piece of raw wood into

“treated lumber” could be classified as “chemical wastes,” the legislature’s separate 

categorization of “treated lumber” carves out a “treated lumber” exception to the 

broader “chemical wastes” rule. Tex. Water Code Ann. § 7.187(b); see Tex. Gov’t 

Code Ann. § 311.026(a). The punishment provisions for the two items “deal with the 

same general subject” and offense—unlawful burning—so to the extent that the 

“general [‘chemical wastes’] provision conflicts with [the] special . . . [‘treated lumber’] 

provision, the provisions shall be construed . . . so that effect is given to both,” and

“the special or local provision prevails as an exception to the general provision.” Tex. 

Gov’t Code Ann. § 311.026; Cheney v. State, 755 S.W.2d 123, 126 (Tex. Crim. App. 

1988) (quoting 53 Tex. Jur. 2d Statutes § 186, regarding the rule of in pari materia and its 

application to conflicting statutes that “deal with the same general subject” or “have 

the same general purpose”). 

18The State also argues that “[b]ased on guidance from the TCEQ, plywood 

could be considered both treated wood and chemical waste.” But an agency 

construction cannot be used to create an ambiguity in an otherwise unambiguous 

statute. Cf. Boykin, 818 S.W.2d at 785–86 (noting that administrative interpretations of 

a statute should be referenced only if the plain language is ambiguous or would lead to 

an absurd result). 
21

This is not to say that “treated lumber” could never qualify as “chemical 

waste[].” It might be possible to modify raw wood using both a wood treatment and

a superfluous non-treatment chemical such that it produces a potential air 

contaminant as an unwanted byproduct. See Waste, Webster’s Third New 

International Dictionary 2580 (2002) (defining “waste” as, among other things, 

“damaged, defective, or superfluous material produced during or left over from a 

manufacturing process or industrial operation”); Waste, Merriam-Webster’s 

Dictionary, https://www.merriam-webster.com/dictionary/waste (last visited July 7, 

2022) (defining “waste” as, among other things, “unwanted by-product of a 

manufacturing process, chemical laboratory, or nuclear reactor,” as in “toxic waste” or 

“hazardous waste”); cf. Rhine, 297 S.W.3d at 312 (holding that “materials, other than 

plant growth, that produce air contaminants when burned are what is meant by 

‘waste’” in the enabling provision of Section 382.018(a) of the Clean Air Act). But

there is no evidence of that here, and the State does not claim that there is. Apart 

from the evidence of the plywood’s “treat[ment]”—the adhesives holding it

together—the State did not offer and has not pointed to any evidence demonstrating 

that Blankenship’s plywood contained superfluous chemicals or unwanted chemical

byproducts. A reasonable factfinder could not have found beyond a reasonable doubt

that the “treated wood” Blankenship was charged with burning qualified as highseverity “chemical waste[].” 
22

Having determined that there is insufficient evidence that any of the three

items listed in Blankenship’s information—soda cans, bottles, or treated wood—are

“chemical wastes,” and because the “chemical wastes” category was the State’s sole

argument in support of Blankenship’s high-severity classification, there is insufficient 

evidence to support Blankenship’s Class A enhancement. We sustain Blankenship’s 

first issue.

D. Location of Burned Items

Next, Blankenship disputes whether the allegedly burned items were actually 

located in the fire. He argues that the State relied on the officers’ testimony to prove 

the burned items’ locations but that the video and photographic evidence directly 

contradicts the officers’ testimony by showing that many of the allegedly burned 

items—everything other than the plywood—were adjacent to the fire. According to 

Blankenship, the video presents “indisputable visual evidence contradicting the 

essential portions of [the officers’] testimony” as in Carmouche v. State. 10 S.W.3d 323, 

332 (Tex. Crim. App. 2000).

In Carmouche, the defendant disputed whether he had consented to a search, 

and the body-camera footage revealed a materially different series of events than 

those that the officer testified had transpired. Id. at 331–32. The officer testified that 

he “asked [the defendant] if [he] could search him,” and the defendant “threw his

hands up, said, ‘[a]ll right[,]’ [t]urned around, [and] put his hands on the car” before 

the officer began the search. Id. at 331. The body-camera footage revealed that, in 
23

actuality, the defendant “turned around and assumed a position to facilitate the search 

[only] after he was ordered to do so by one of the [other on-scene] officers,” and that 

the request to conduct a search was “made as [the officer] [wa]s reaching for the 

crotch area of [the defendant’s] pants.” Id. at 332. In “the unique circumstances of 

[that] case,” the Court of Criminal Appeals “decline[d] to give ‘almost total deference’ 

to the trial court’s implicit [fact]findings” as it normally would have. Id. In doing so, 

the Court noted that “the nature of the evidence presented in the videotape d[id] not 

pivot on an evaluation of credibility and demeanor” but instead “present[ed] 

indisputable visual evidence contradicting essential portions of [the officer’s] 

testimony.”19 Id. (internal quotation marks omitted).

In contrast to Carmouche, the nature of the evidence presented in Blankenship’s

case does “pivot on an evaluation of credibility and demeanor.” Id. (internal quotation 

marks omitted). Sergeant Lane expressly stated that “[t]he video d[id] not depict 

exactly what [he was] looking at,” and the body-cameras videos are not so crystal clear 

as to “indisputabl[y] . . . contradict” this statement. Id. Although Blankenship’s fire 

can be seen in the videos, the items in the fire are difficult to detect due to the quality

of the videos, the size of the video frames, the lighting and background, and the 

officers’ distance from the fire. Even when the officers approach the fire, the items in 

19In explaining its departure from the general rule requiring “almost total 

deference,” the Court of Criminal Appeals also noted that the trial court seemed to

predicate its erroneous decision on a finding of probable cause rather than on a 

finding of consent. Carmouche, 10 S.W.3d at 332. 
24

it are often obscured by the officers’ movements, and the number of close-up

forward-facing shots of the fire are limited. Indeed, Blankenship’s trial counsel 

himself acknowledged the less-than-perfect nature of the video; while cross-examining

the officers, counsel acknowledged that “the video[ is] a little blurry”; he referred to 

items shown in the video as “[w]hatever that is”; and he stated that “the only thing 

that you can see in the fire is some wood and I’ll be honest[,] I can’t tell where the 

wood is” based on the video. Even Blankenship’s expert testified that he could not 

tell from the videos whether the area around the fire included soda cans or bottles. 

The lens of a human eye is different from the lens of a camera. Depending 

upon the sophistication of the camera lens, the human lens may see more or less 

detail than the lens of a camera would provide. Thus, while the videos do not

“directly corroborate [the officers’] testimony, the video[s] do[] not directly disprove 

or contradict [their] testimony either.” Villalta v. State, No. 13-18-00180-CR, 2019 

WL 1716824, at *3 (Tex. App.—Corpus Christi–Edinburg Apr. 18, 2019, no pet.)

(mem. op., not designated for publication) (rejecting argument similar to 

Blankenship’s and distinguishing Carmouche where appellant alleged that dashcam 

video showed he was not committing any traffic violations). The factfinder was faced 

with a credibility determination: whether to believe the officers’ testimony that they 

could see items in the fire that were not clearly captured in the body-camera videos. 

Cf. id. (holding that “[t]he trial court could have reasonably credited [the officer’s]

testimony over the video recording”); Winward v. State, No. 09-17-00149-CR, 2019 WL 
25

575954, at *3 (Tex. App.—Beaumont Feb. 13, 2019, pet. ref’d) (mem. op., not 

designated for publication) (rejecting argument that dashcam recording contradicted 

officer’s testimony regarding reckless driving and holding that, “[b]ecause the [officer]

was in a position in the patrol car that differed from the camera’s, the trial court could 

have reasonably resolved any discrepancies between the recording and the [officer’s] 

testimony by concluding that [the officer] could see oncoming traffic better from his 

position in the car”). “[A]s a general rule, the appellate courts, including this [c]ourt, 

should give almost total deference to a trial court’s determination of the historical 

facts that the record supports especially when the trial court’s findings are based on an 

evaluation of credibility and demeanor.” Carmouche, 10 S.W.3d at 332 (quoting 

Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997)). The record supports the 

trial court’s decision to believe the officers’ testimony, and we defer to that decision. 

We overrule Blankenship’s second issue.

E. Disproving Statutory Exceptions

Finally, Blankenship argues that there was insufficient evidence that his fire was 

not authorized under any of the potentially relevant statutory exceptions.

To prove a criminal offense, “[t]he State must negate the existence of any

exception to an offense . . . and the negation of an exception to the offense is an

element of the offense.” State v. Laird, 208 S.W.3d 667, 671 (Tex. App.—Fort Worth 

2006, no pet.); see Tex. Penal Code Ann. §§ 1.07(a)(22)(D), 2.02(b). There are a 

number of exceptions to the general prohibition on outdoor burning, and
26

Blankenship raises one in particular: the exception authorizing recreational fires. See

30 Tex. Admin. Code § 111.207 (2022) (Tex. Comm’n on Env’t Quality, Exception 

for Fires Used for Recreation, Ceremony, Cooking, and Warmth); see also, e.g., id.

§ 111.205 (2022) (Tex. Comm’n on Env’t Quality, Exception for Fire Training); id.

§ 111.209 (2022) (Tex. Comm’n on Env’t Quality, Exception for Disposal Fires); id.

§ 111.213 (2022) (Tex. Comm’n on Env’t Quality, Exception for Hydrocarbon 

Burning); Rhine, 297 S.W.3d at 308 (noting and listing exceptions). 

But “[e]ven if [Blankenship’s] outdoor burning [was] in fact approved or fell 

within an exception, there are still other restrictions,” including a TCEQ rule which 

“provides that certain materials may not be burned, despite being otherwise 

allowable.” Rhine, 297 S.W.3d at 308–09. Blankenship’s information alleged that he 

violated this TCEQ rule. And “[t]reated lumber” is one of the materials that the rule

prohibits burning even if a fire is otherwise allowable as a recreational fire. 30 Tex. 

Admin. Code § 111.219(7) (2022) (Tex. Comm’n on Env’t Quality, General 

Requirements for Allowable Outdoor Burning); see id. § 111.207 (2022) (Tex. Comm’n

on Env’t Quality, Exception for Fires Used for Recreation, Ceremony, Cooking, and

Warmth) (recognizing that recreational fires “shall be subject to the requirements of 

§ 111.219(7)”). By offering sufficient evidence that Blankenship was burning “treated 

lumber,” then, the State provided sufficient evidence that his fire was not authorized

under the potentially applicable exception. We overrule Blankenship’s third issue.
27

III. Conclusion, Reformation, and Remand

As we have held, there is sufficient evidence to allow a reasonable factfinder to 

conclude that Blankenship committed a Class C offense by unlawfully burning a 

prohibited item—“treated lumber”—in violation of a TCEQ rule. See Tex. Water 

Code Ann. § 7.187(b)(1), (2); 30 Tex. Admin. Code § 111.219(7) (2022) (Tex. Comm’n 

on Env’t Quality, General Requirements for Allowable Outdoor Burning). As we 

have also held, though, there is insufficient evidence to support the further conclusion

that at least one of the prohibited items burned qualified as “heavy oils, asphaltic 

materials, potentially explosive materials, or chemical wastes.” See Tex. Water Code 

Ann. § 7.187(b)(1), (3)(A). Because in convicting Blankenship of the enhanced Class 

A offense of unlawful burning, the factfinder necessarily found every element 

required to convict him of the lesser-included Class C offense of unlawful burning, 

and because there is sufficient evidence to support a conviction for the Class C 

offense, we are “authorized—indeed required— . . . [to] reform[] the judgment to 

reflect a conviction for the lesser-included [Class C] offense.” Thornton v. State, 425 

S.W.3d 289, 300 (Tex. Crim. App. 2014). 

We therefore remand the case to the trial court to reform the judgment to

reflect a conviction for Class C unlawful burning and to conduct a new punishment

hearing.

20 Tex. Code Crim. Proc. art. 44.29; see Griffin v. State, 491 S.W.3d 771, 777 

20When a trial court has jurisdiction over the original offense charged—as the 

Hood County Court at Law unquestionably did over Blankenship’s original Class A 
28

(Tex. Crim. App. 2016) (remanding for reformation of judgment from capital murder

to murder and for new punishment hearing); Thornton, 425 S.W.3d at 307 (remanding 

for reformation of judgment and for new punishment hearing); Gaddy v. State, 433 

S.W.3d 128, 131 (Tex. App.—Fort Worth 2014, pet. ref’d) (en banc on remand) 

(similar); cf. Winkley v. State, 123 S.W.3d 707, 714 (Tex. App.—Austin 2003, no pet.)

(reforming county court at law judgment from Class B theft to Class C theft and 

remanding for new punishment hearing); Colquitt v. State, 650 S.W.2d 128, 129 (Tex. 

App.—Houston [14th Dist.] 1983, no pet.) (reforming district court judgment from 

felony to Class C misdemeanor and remanding for new punishment hearing). 

/s/ Bonnie Sudderth

Bonnie Sudderth

Chief Justice

Publish

Tex. R. App. P. 47.2(b), 47.4(a)

Delivered: July 14, 2022

unlawful burning charge—the trial court retains its jurisdiction even if the evidence at 

trial shows the offense to be of a jurisdictionally significant lesser grade. Cf. Ex parte 

Sparks, 206 S.W.3d 680, 682 (Tex. Crim. App. 2006) (orig. proceeding) (explaining 

that “[t]he very reason for the district court to have jurisdiction of misdemeanor

offenses that are included in the felony offense is that the evidence might prove the 

misdemeanor without proving the felony”). “The presentment of an indictment or 

information to a court invests the court with jurisdiction of the cause,” Tex. Const. 

art. V, § 12(b), and having acquired jurisdiction over the case, the trial court “retains 

jurisdiction of the case to its final determination.” Bruce v. State, 419 S.W.2d 646, 646–

47 (Tex. Crim. App. 1967) (applying rule where defendant was charged with felony 

but pleaded to misdemeanor); see Trejo v. State, 280 S.W.3d 258, 261 (Tex. Crim. App. 

2009) (quoting Bruce).