## 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

Bef ore Sudderth, C.J.; Womack and Walker, JJ. Opinion by Chief Justice Sudderth Dissenting Opinion by Justice Walker 

### T HOMAS 

### E DWARD 

### B LANKENSHIP 

### , Appellant

V



### . T HE 

### S TATE OF 

### T EXAS2 OPINION Appella nt Thomas Edward Blanken ship challenges h is co nviction for C lass A
misdem eanor unlawful burning on various sufficiency grounds

. In h i s first two issues , Blank enship argues that there is no evidence that the “ treated wood, soda c ans , and
bottles ” he was charged with burning qualif y as “ heav y oil s, as p ha lti c ma ter ia ls , potentially explosive ma t eria ls, or chemical wa stes ,” as is re quired for th e enhancement of his otherw ise -C lass C offense to a Class A mis dem ean or. Because we agree with Blankenship on this point, and because none of Blankenship ’ s other
sufficien cy 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 L ane and Dep u ty Ci ji M ont e mayor d rove to Blankenship ’ s property to c onduct a n unrelated warrant inves ti g ation , they saw him tending a fire that was emitting black smoke

. 1 Blankenship told the officers that he was b urning plywood , which Sergeant Lane and Deputy Montemay or later testi fied they
considered illegal to burn

. 2 As Sergeant Lane wa lked close r to the fire, he noticed

1 Sergean t Lane

— who had previously worked as a volunteer f irefighter —l ate r te stifi e d tha t he considered black smoke to be an indicat ion that a fire i s bur nin g tox ic or illegal materi als , and Dep uty Montemayor —a form er fire marshal

— confirmed that lawful fires containing natural vegetation do not produce black smok e.

2 On cross

- examination, Dep uty Mon temayo r confi rmed that “ there ’ s suc h a thing as untreate d plywoo d.”3 “ treated wood, bottles[, ]

. . . so me glass [,]

. . . some soda can s , ” and “ at least

. . . on e paint can in the fire

. ” De puty Montemayor s imilarly saw a “ spray paint can, ” “ paint

cans [, ]

. . . plywo od [,] and me tal items ” in the fire

. The officers arrested Blankenship an d extingui s hed the f ire

. N either office r seize d or teste d any phy si cal evidence from the sce ne. H o wever, they took photos of
the f ir e , and th ey recor ded t he intera ction with Blankenship on their body camera s . Blankenship was charged by information with “ in tention ally or kn o wingly
bur n [ ing ] treated wood, soda c ans , and bottles, in violation of Section 382.018 of the
Te xas H ealth an d S afety Code, Section 11 1 .219(7) of the T e xas Admin istrative Code,
and Secti on s 7.177 and 7.187(b)(3) of the Texas Water Code

. ” T he inform ation d id

no t alle ge any prior convictions for outdoor burning

. Blankenship’s case was tr ied t o the c ourt. The officers testified regard i ng their
interaction with Blan kenship and the items they saw in the fir e . T hey e xplaine d that they understoo d “ [a]nyt hing t h at ’ s not natural to the e arth ” to be illegal to burn, and
th at b eca use p lywood contained substance s not natural to the ea rth

— the “ adhesive used to hold it together ” and “ material s to ke ep it from rotting ”

— they considered burning plywood to be illeg al

. In addi tion to the of ficers ’ testimon y , t he Sta te of f

ered video footage from
bot h officers ’ body c ameras , a photograph of the fire , and a photograph of
Bla nke nship ’ s nearby sh ed. T he body

- camera footage captured Bla nkenship ’ s4 admission that he wa s bur ning pl ywood and provided periodic view s of the fire from
various vantage point s. The defense called Jeremy Cosgr o ve , a f ire investigator, to testify as an expert. Cosgr ove testified that “[t] reated wood [,] a s far as the industry standard go es [,] ”

conte mplates wood that “ is normally treated with a copper solution that p revents a ny kind of rotting or deterioration of the wood. ” Cosgrove also stated that not all plywood is treated , t hat tr eated wood ca n be “ extremely hard ” to distinguish from
untreated wo od on s ight, that the two types of woo d cannot be dist inguished by t he
colo r of the smoke they emit while burning , and that there is ultimately “ no way to see if a [piece of] wood ’ s be en tr ea ted or no t without a forensic analysis of that
material to determ ine wha t che mical comp ositions are wit hin that material. ” 3 The trial court found Blankenship guil ty of Class A misd emeanor “ outd oor burni ng of waste toxic materia l,” and s entenced him to 45 days ’ confinement with a $1, 500 fine

. Se e Tex. Penal Co de A nn. § 12.21

.

3 Cosgr ove stated that the same was true of other burn ed materials . A lthough an individual can examine the re mains o f a fire and form a hyp othe sis as t o what items had been burned, C o sgrove te stified that laboratory testing is necessary to d eter mi n e if th e items “ actually sustain ed co mbustion. ”5 II. Discussion
Bl ank enship raises three issues on appeal , all of which challe nge the sufficiency
of the evidence in some way . 4 B lanke n ship argues that his Class A misdemeanor
conviction must be revers ed because (1) there is insufficien t evidence regar d ing the
nature of the it ems burned, i.e., that they qualified as “ heav y oil s, as pha ltic mater ials,
p otentially explosive ma teria ls, or chemical wa stes ” ; (2) the re is insufficient evidence
that the prohibited item s w ere actually located in the fir e because th e body

- camera footage “ indisputabl [ y] ” contradict s the officers ’ testimony ; and (3) the re is
insufficient e vi dence that Blankenship ’s fire w as not authorized under a statutory

exce ption

. A
. Stand ar d of Review
In o ur ev identia ry

- sufficienc y review, we consider all the evidence in t he light
most favorable to the verdict to determine whether an y rational factfin der c ould have
fo und the crime’s essential elements beyond a reasonable doub t. Jac ks on v. V irgi nia , 443 U.S. 30 7, 319, 99 S. Ct. 2781, 2789 (197 9) ; Queeman v. State , 520 S.W.3 d 616, 622 (Tex. Crim. Ap p. 2017). The cr ime’s ele ments are d ef ined by the hypo theti cally

correc t jury charge , which accurately sets out the law, is author ized by t he

4 The three issues li sted in Blankenship ’ s b rief are re order ed a nd restruct ured for orga nizational purpo ses. We construe the first two issues l isted in his brief as the three issues l isted above , and w e do not ad d ress the final issue listed in Blankenship ’ s brief

— which challenges Serg e an t Lane ’ s testimony reg arding th e significance o f

“ blac k s moke ”— as the issue i s resolved by o ur other h ol dings. See infr a note 17

.6 info rmat ion , 5 does not un necessa rily increase the State’s burden of proof or restrict
the State’s theories of lia bility, and adequa tely descr ibes th e of fense f or wh ich 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. A pp. 2018) (“The essen tial
elements of an offense are de termined by state law.”). Here, Bla nk enship was tried for c omm itting th e offense of unlawful burning

. See Tex. Health & S afety Co d e Ann. § 382.018; Tex. Water Code An n. § 7 .177 (a)(5) ; 30 Tex. Admin

. Code § 111.219 (2022) (T ex. Comm ’n on Env ’t Quality , General
Re quirements for Allowa bl e Outdoor Bur ning ).
B
. App licable L aw T he statutory scheme for the offens e of unlawful burn ing “ is n ot

stra ight forward; the stat utes are found in at least two codes, a n d 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 Cod e Ann. § 382.018 ; Tex

. Water Cod e An n. § 7.177 (a) (5)

. The g roun dwork for the offense is l aid in the Texas Cle a n Air Act , w hich

a uthoriz es the Texa s Commission on Environmen ta l Quality (TCEQ) t o establish
rules to “ co ntrol and prohibit the outdoor bu rning of waste an d combust ible

5 Th e phrase “ authori zed b y the information ” refers to t he statutory elements of the charged offense as modif i ed by the fa c tua l details and legal t heories c on tained in the c harg in g instrument. See Jenkins v. State , 493 S.W.3d 583, 599 (Tex. Crim. App. 2016)

.7 ma teri al .” T ex. Health & Safety Code A nn. § 382.018 (a). TC E Q i m plemented this legislation by adopting a broad ru le prohibit ing “a ny outdoor burnin g . . . except as
pr ovided ,” 6 30 Tex. Admin. Code § 111.201 (2022) (T ex. Comm ’n on Env ’t Qual i ty , Ge ner al Proh ibition ), the n it car ved out exceptio ns t o authoriz e , for exam p le,
“rec reational ” fires , i d. § 111

. 207 (2022) (T ex. Comm ’n on En v’t Quality , Excep ti on for Fire s Used for Recreation, Ceremon y, Cooking, a nd Warmth ), and “ domestic

waste ” fi res di sposin g of it ems such as “ kitchen garbage [ and] un treated lumber ,” i d. § 11 1 .2 09 (2022) (T ex. Comm ’n on Env ’t Quality , Exce ption for Dis posal Fires ).
Even when a n outdoor burning is otherwis e authorized, though, it is subje ct to
restrictio ns on the loc ation, ti ming , a nd m eteorological con di tions . A nd bu rn in g

“ [e]l ectric al insul a tion, tr eated lumber, plastics , non

- wood construction/demolition materials, hea vy oi ls , asphaltic materials, potentially explosive mat erials, chemical
wastes, a nd items containi ng nat ura l or sy n the ti c ru bber ” is st rictly prohibite d. Id. § 111.219 ( 7) (202 2) (T ex. Comm ’n on Env ’t Quality , General R e quirements for
Allowable Outdoor Bur ning ).
T he legislature criminalized the violation of a T CE Q rule adopted under the
Clean Air Act , an d it e stablishe d th e punishment for unlawful burn ing in particular

. Te x. Wa ter Code Ann. §§ 7.177(a)(5), 7.187(b) ; s ee Rhine , 297 S.W.3d at 312 (concluding that “th e legislature d efined the elements of the offense and left to TCEQ

6 Blankenship ’ s infor mation did not allege that he violated the broad prohibition on outdoor burni ng in Rul e 111.201

.8 only 1) the determinati on of wha t mater ials that, when burne d, created the air

cont aminants t hat w e re the concern of the legislature , and 2) control over the places
and conditions under whi ch those materi als may be burned ”)

. Generally, unlawful burning is a Class C m isdemeanor, but the offende r’s criminal history and the nature of the item burned may e nhan ce t he c rime ’s classification

. Tex. Water Code Ann. § 7.187 (b). The legislature gro uped prohibited items into three punishment tiers : (1) “ heav y oil s, as pha ltic mater ials, p otentiall y explo sive ma t eria ls, [and] chemical

was tes ,” the burning of whic h is p unished with the most severi ty ; (2) “ insulation on electrical wire or cable, treat ed lumber, plastic s, non

- wood construction [and]
demolition material s, furniture, carpet, [an d] items contain ing nat ural or synthe tic
rubber ,” the burning of which is p u nished with moderate severity ; and (3) all o ther
item s , the burning of which is punishe d with the lowest degree of severity

. Id.
U nlawful burning is (1) a Class C mis demeanor if the vio lation is a first viola tion and does not involve the burning of [hi gh

- severity items ]; ( 2) a Class B misdemeanor if th e violation is a second or sub sequ en t violation and: (A) the violation does not involve the burning of: (i) [high

- severity it ems ] ; or (ii) [m oder ate

- sev erity item s] ; or (B) t he violation involve s the burnin g of [mod erate

severity ite ms ] and none of the prior violations involved the burn in g of [high

- severity items ] or [moderate

- severity items ] ; or (3) a Class A misdeme ano r if the vio lation:9 (A) involves th e bur ning of [high

- severity items ] ; or (B) is a second or subsequent violation and involves the b urning of [moderate

- severity i tems ] and one or more of the prior violations inv olv ed the burning of [high

- severit y items ] or [m oderate -s everity ite ms ].
Id. (indent ation altered ). In other words, for a first

- ti me unlawful burning offen se , as Blan kenship was cha rged with committ i ng here, a n individual commi t s a Class A
misdemeanor if he unlawfully burns a prohibited item that is p roven to be a hi gh

s everity item , and he commit s a Class C misdemea nor if h e unlawfully burns any ot her prohi bited i tem
. See id.
C
. Nature of Burn ed Items
Blank en s hip ’ s first sufficiency challenge re la t es to the nature of the items
bu rned and whether the evidence suppor t s t he en hancement of his offense to a Class
A misd emeano r. Blankenship wa s charged by information with “ inte ntionally or knowingly
burn [ ing ] [1] tr e ated wood, [2] so da cans , and [3] bott l es .” 7 S uch con duct constitutes
a Class A mis dem eanor only if the nature of at lea st one of t hese items was pr oven at trial t o be not only prohi bited but al so a hi gh- severity item , i .e., “ heavy o ils, asphaltic materials, potenti al ly explosive m aterials, or chemical waste s.” Tex. Water Code Ann. § 7. 187 (b)(1) , ( 3)

.

7 Both parties implicitly assume th at the hypothetic ally correct jury charge requires the State to prove at le ast one of the th ree items l i sted in Blankenship ’ s indictmen t
.10 Th e State does not claim that it o ffered any evidence to prov e that one of the three listed items qualifies as “ heavy oils [or] asphaltic materia ls.” A nd although in its
brief the S t ate contends that th ere is evidence of “p otent ia ll y explosive materia ls ” in
the fire

— specifically, a spray pa int can

— it abandoned this position at oral argument , admitting that “the sp ray paint can i s not even listed in [the] information .” 8 See Nelson
v. State , 607 S.W .2d 554, 555 (Te x. C rim. App. 1980) ( de clining to address ground o f
error aba ndoned at or al argument)

. Th is leaves only “ chemical wast es” as the relevant high

- sever it y ca t egory . The State argues t hat the “ soda cans [] and bottles ” listed in the informati on
were p roven a t t r ial to be “ chemical waste s,” and t hat the “ treated wood ” was proven

to be both “ treated lumber ” and “ chemic al wastes .” 9 B lankenship counters t hat none
of the items in his fir e were pro ven to be “ chemical waste s,” and that the ply wood
was not even sho wn to have been “ treated .”

8 At oral argument, the Sta te was ask ed directly : “W hat is you r position her e to day ? W hat substan ce s were be ing bur ne d that were illegal ? ” T he State listed only the items in t h e information —“tre ated wood or ply wood , s o da cans, bottles ”— an d it contended that the se ite ms qualified as “chemi cal waste s.”

9 “I t is well establ ished that the State may p lea d in the conjunctive a nd charge [and prove] in the disjunctive. ” Cada v. Stat e , 334 S.W.3d 766, 771 (Tex. Crim. App

. 2 011) ; K itchens v. State , 823 S.W.2d 256, 258 (Tex. Crim. App. 199 1) (similar ); se e also Caddel v. Stat e , No. 05

- 97

- 02079

- CR, 1999 WL 9 938 62, at *1 (Tex. App. —D allas Nov

. 1, 1999, pet. ref’d) (per curiam) (not d esign ated for publication ) (applying rule i n b ench

- trial context) ; Grif f v. Stat e , No. B14

- 92

- 00752

- CR , 1993 WL 4 87500, at * 3 ( Tex. App.

— Houston [14 th Dis t.] Nov. 24, 1993, pet. re f’d ) (similar)

. Conseq ue nt ly, t he State was o nly required to prove that one of t he three items listed in the information qual i fied as “ chemical wa ste [] .”11 1. Soda Cans and Bottles In its brief, the Sta te fails to explain why the “ so d a c ans ” 10 or “ bottles ” in
Bl ankenship ’ s fire should qualif y as “ chemical w aste s.” 11 Nor did its response at ora l

ar gument provide such an explanation

. W hen asked why the soda cans and bottles

were toxic, the State explained that “ you ’ ve got aluminum, [and ] yo u’v e go t different
chemical com ponent s that go into having to process those in a factor y to make a
b ottle o r a can. ” E ven assuming the plain meanin g o f “ chemical waste s” is as broad

as the State ’ s explanat i on implies

— and even assum ing that the S t ate pr eserve d this
argument despite failing t o brief i t— the record contains no e vidence of the s oda cans ’
or bo ttles ’ al leged ly toxic factory process
. S ergean t L ane testified that he saw “ soda

cans ” a nd a “ glass bo t tle ” in the fi re, b ut he di d not el aborate on the cans or bott le s ,

no r did he st ate that the cans or bottle s were manu factured or conta minated with any lingering chemicals. Dep uty Montemayor d id not di scuss the soda ca ns or glass

10 The State ’s b r ief br oadly ref ers to all c a ns , and it focus es its a rgument on the contention that t here was ev idence of sp ray paint c ans burning in the fir e. But , as a lready noted , the S tate aban doned i ts reliance on the spr a y p aint cans at oral arg ument
.

11 Th e Sta te ’ s brief also desc ribes t he bottles as “ pl astic .” But the o nly mention of a plastic bottle was when D eputy M on temay or was a sked what she could see fro m a n uniden tifie d still shot of her body

- camera video, a nd ev e n then, she did not state that the plast ic bott le was in the fire but th a t it was “ near the b room .” The only testi m ony that there wa s a bottle a c tua lly i n the fire cam e from Serge ant Lane , w ho describe d the re levant bo ttle as “ glass .” Mo reover, “ [t] here is a conflict be twee n [3 0 Tex. Admin. Code § 111.219(7) ’s] overarching prohi bition on plasti cs and § 111.209(1 )’ s allowanc e of packaging plastics i n dom es tic waste. ” Rhine , 297 S .W.3d at 309 n.5 (discussing TC EQ rules ).12 bo t tles allegedly in the fire , a nd noth ing in t he do cu mentary or video evidence
de monstrated that the cans or bo ttles were contamin a ted wit h ch emical s of some s ort
. I n short , the evidence was insufficient to support a finding that the “ soda c ans ”
or “ bottl es” referenced in Blankenship ’ s infor mation were “ chemical wa stes. ”
2. Treated Woo d
T he Class A enhancement can thus be n arro wed to one prohibited item l isted in Blankenship ’ s in formation : “ treated wo od. ” It is un dispute d that B lan kenship was burning plywood, that thi s is the “ wood ” re ferenced in his information , and tha t if
the r e is su ffic ient evidence tha t the plywood was in fact “ treated ” then it qualifies as

“ treated lumber ” within the me aning of th e Wa ter Code and relevant TCEQ rules. 12
S ee Tex. Wa ter Cod e Ann. § 7.187(b) (2)(A)(ii) ; 30 Tex. Admin. Cod e § 111.2 19( 7) (2022) (T ex. Comm ’n on En v ’t Quality , General R e quirements for Allowable
Outdoor Bur nin g). But the parti es dispute whether the a dhesives used to
manufacture the plyw ood qua lify as “ treat [ments] ” and whether such alleged

“ treat [ments ]” convert the plyw o od into not only “ treated lu mber ” but a l so “ chemical

waste [] .”

12 The parties do not dispu te that plywood is a type of lumber. Indeed, l umber is produced by cutting timber or logs into planks. See Lumber , W ebster ’ s Thir d N ew International D ict ionar y 1345 (2002 ) (defining “lu mber ” as, am ong other things,

“ tim ber or logs esp. afte r b e ing prep ar ed for t he market ” ). And , a s discusse d below, p lywood is created by cutting lumber into thin strip s and then g lu ing those strips together to strengthen and st a bi li ze the wood product. Thus, all plywood is l umber, but not all lumber is p lywood. A lay per son w alk ing through a hardwa re store could easily disting uish a sheet of plywood from an ordinary piece o f lumber

.13 a . Sufficient E v i d e n ce of “ Treatme nt ”
The St ate characterizes the adhesives used to manu facture B lan kensh ip ’ s pl ywoo d as “ treat[ment s ] , ” but Blankenship claims tha t these are not “ treat[ments ] , ”
and he argues that th e State was required to test the plywood to demo nstrate that it

wa s “ treat[ed] ” based on its chemical compositio n . i. Plain Meaning

“ [

T]reated lumber ” is a statutory term , and statut ory construction is a question
of law w hich we r e v i ew de novo. Lang v. State , 561 S.W.3d 174, 180 (T ex. Crim. App.
201 8 ) ; Mason v. State , 598 S.W.3d 755, 767 (Tex. A pp.

— F ort Worth 2020, pet. granted)

. The t erm “ treated lumber ” is not de fined in the Clean Air Act or in an y of the applicable TCEQ rules , a n d the parties rely on different definitions of it

— the
State on a definition extrapolated from a parenthetical i n a 2015 TCEQ manu al , an d
Blankenshi p on the “ ind ustry standard ” testified to by his expert

. We do not adopt

e ither definition.
In stead , w e a pply the “plain meaning rule ”

— a n “ancient ” method of interpretat ion that is “ const it utio nally and logical ly compelled

. ” Boykin v. State , 818
S.W.2 d 782, 785

– 86 (Tex. Crim. A p p. 1991) ; see Rhine , 297 S.W.3d at 3 1 0

– 1 2

. This is

t he method the Texas Court o f Criminal Appeals employ ed when it faced similarly
undefined

- b ut

- unambig uous term s in th e Cl ean Air Act

. Rhi ne , 297 S.W.3d at 3 1 0

– 1 2 ( applying pl ain meaning rule to interpret “ waste ” and “combustible materi a l ” in Tex.14 Health & Saf ety Co de Ann. § 382 .018 a nd in TCEQ rule establishing “ domestic

waste ” exception ). Following th at court ’ s e x amp le, w e read “w ords and phrases

. . . in context
and

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

at 31 0 (q uoting Tex. G ov ’t Code A nn . § 311.011 ). We “ may co nsul t standard
dictio naries in determining the fair, objective meaning of undefined statutory terms. ” Lang , 5 6 1 S.W.3d at 18 0; see Watkins v. State , 619 S.W.3d 265, 272

– 73 (Tex. Crim. App. 2021) ( similar ). Only if the pl ain langua g e is am big uous or would lead to an absurd
result may we , “out of absolute necessi ty , ” consider such extratex t ual facto rs as ad ministrative interpretations of th e statute. Rhine , 297 S.W.3d at 310 ( quoting Boykin , 818 S.W.2d at 7 85 ).

13 Ther e is an exceptio n to the plain

- meanin g r ule for technical meanings: “[w]ords and phrases that have acquired a technical or particular meaning , w hether by leg isla tive definition or otherwise, shall be construed accordingly .” Rhine , 297 S .W.3d at 310 (quot ing Tex. G ov ’t C ode A nn . § 311.011 ) ; s ee Medford v. Stat e , 13 S.W.3d 769, 772 (Tex. Crim. App. 2000)

. But this exception is not appli ca ble he re. Technical ter ms are those “ which have a known and established legal meaning, or which ha v e acquire d a peculiar and appropri ate meaning in the la w , as where the words used have a well

- known common law meaning , ” such as the term “arrest. ” Med ford , 13 S. W.3d at 772

. Her e, the term “treated lumber ” has not been statutori ly define d, nor has it ac quired a common lega l meaning

. C f. Green v. State

. , 47 6 S .W.3d 440, 445 (Tex. Crim. App. 2015) ( agreeing with the lower court “ that the te rms
‘ penetrat ion ’ and ‘f emale sexual o rga n’ are common terms that have not acquired a technica l meaning ”) ; Kirsch v. St ate , 357 S.W.3d 645, 650 (Tex. Crim. App. 2012) (reit e ra t ing in D WI case “that ‘ operate ’ is a common term that has not acquired a t echnical meaning an d may be in terpreted acco rdi ng to its common usage ”)

.15 Th e plain mea ning o f “ treated ” is neither ambi guous nor absurd

. In the context of the ph rase “ treated lumber, ” the verb “ to tre a t ” means “ to subject (as a
natural or manufactured ar ticle) to some process to i mprove the a ppearance, taste, usefu lness , o r some other qual ity

. ” Treat , W eb ster ’ s Third New International
D ictionary 243 4

– 3 5 (20 02 )

. Similarly, a “treatment ” is a “ subjec ti o n of someth ing to the action o f an agent or process, ” as i n “sewage treatment ” ; “ somet hing (as a fertilizer or preserver ) us ed in treat i ng, ” as in “ a seed di sinfectant trea tment
. ”
Trea tment , W ebster ’ s Third New International D ictionary 2435 (2002 ) ; se e T r

eatment , Merri am

- Webster ’ s Dictionary , https://www.me rria m

webster.com/dict ionary/treatment ( last visited July 7 , 2022) ( d efining t erm a s , am on g

o t he r things, “ somethin g (such as a produ ct or technique) used in treating, enhancing, or improving the perfo rm a nce, condition , or appearance of someone or something ” )

. Here, both parties ’ witnesses test ified that plywood was manu facture d with

a dhes ives

. S ergean t L ane stated tha t , b ased on his s tudy and tr aining , he knew plywood to be manu factured with certai n a dditives , such as “ [g]lues, as well as other
ki nd [s] of materials to keep it fro m rotting

. ” Dep uty Mo nt emayor si m ilarl y te stified that p lyw ood c o nt ain s “treate d chemicals for the lumber and

. . . adhesive u sed to
hold it together. ” And Blankenship ’ s own expert testified that plywood is created
from “ smal l sh eets of wood ” that are manufacture d with “ s o me ty pe o f ad hesive and
p r essure to push those pi e ces of wood tog ether in turn creating the different plies of
the plywood. ” There was thus evidence that plywood

— which Blankenship admitted16 burning

— con sists of ba sic sh eets of wood “ subject [ed]

. . . [to a ] p rocess ” using glu es and similar additi ves to “en hanc [e ] or improv [e ] . . . [its] performance, condition, or
appe ar a nce ” by binding the sheets of wood together

. 14 Cf. Treat , W ebster ’ s Third
New International D i ctionary 243 4–3 5 (20 02 ) ; Tr eatment , W ebste r’ s Third New
In ternational D ictio nary 2435 (2002 ); Treatment , Merriam- Webster ’ s Dictionary , https://www.merriam-w ebste r. com/dictionary/treatment ( last visited July 7 , 2022 ).
This fits w ithin the pla in meaning of the term “treat ed lumber .” 15

14 This conclusio n is limit ed to the evidenc e presen ted at B lankenship ’ s tri al. We do not hold that plyw o od is de f acto “treated lumber ” but that t he evidence p rese nted he re sup ported a reasonable conclusion t ha t the plywood q ual ified as

“ treated lumber. ”

15 Although we gen e rally con sider age ncy construction s only if the plain l anguage is ambiguous or leads to an absu rd result , because the criminal ized restrictions on burni ng are partially defined by TCEQ and “ sc att ered through [o ut] the Administrative Code ,” Rhine , 297 S.W.3 d at 307 , 31 0, we n ote that our pla in

- language inte rpret ation of “ treated lumber ” is con s is tent with TCEQ ’ s parallel environmental regulations

. I n its regulation of certain solid wast e incine rat ion units ’ emi ssi on s, TCEQ distinguish es between “ untreated w ood ” and “ treated woo d”— it defines “[w]ood waste ” as “[u] ntreated wood and untreated wo o d products ” and it specifically provide s that “[w]ood waste does not include:

. . . [t] reated wo od and t reated wood pro ducts , including

. . . manufactured wood pro d ucts that con ta in adhe sives or res ins (e.g., plywood , p article board, flake board, a nd orien te d strand board). ” 30 Tex. Admin. Code § 113.2300 (41) (2022) (T ex. Comm ’n on Env ’t Quality , De finition s); cf

. L.B. Foster Co. v. State , 106 S.W.3d 194, 203

– 04 (T ex. App.

— Hous ton [1st Dist.] 2003, pet. ref’d) ( reviewi ng criminal Wa ter Code violat ion and a pp lying technical meaning of “disposal ” given to the term in ot her state and federal environment al statu te s ). This definiti on lends further support to our pl ain -m eaning interp retation and to our c onclusion that a reas onable factfinder could have con cluded t hat Blankenship ’s plywoo d qualified as “treat ed .” But see Bo ykin , 818 S.W.2d at 78 6 n. 4 ( comm enting t hat the Co de Constru ction Act “ invites, but does not r equire, court s to cons ider17 ii. No Te stin g Re quire d
Blankenshi p contends , though, that th e St ate could not prove that t he plywood

was “treated lumber ” without c on fiscat ing and scientifically testing it to verify its
chemical c omposition

. 16 Blankenship has not ci ted a ny c ase la w to su pport his
prop osed testin g require ment but i nstead analogiz es the plywood to mari h uana . He

re asons that b ecause the le gislature distinguishes be tween mari h uana and hemp , because the substances are governed by differen t regulati ons an d prohibi tions, and because they ca n be difficult for non

- experts to dist inguish by sig ht or smell , testing is

“‘ absolutely ’ a must ” t o p rove a mari h uana

- based of fense beyond a reasonable doubt

. Acc ording to Blankenship, t he same is true of treated and un trea ted lumber ; becau se the legislature distinguishe s betwe en the two, and because they can be dif ficult for

non

- expert s to di stinguish by sight or smell , it was “ imposs ible ” for the State to prov e that Blankens h ip ’ s plywood was “ tr eated ” w itho ut tes ti ng it

. W e need not wa de into the de ep water s of the mar ih uana

– hemp distinction
her e be caus e mari h uana and t reated lumber are not analogou s . M ari h uana and h emp ha ve statutory definitio ns that dist inguish them from one another ba s ed on th eir

extrate xtual factors when the statutes in question are not a mbiguous, [ bu t] such an invitation should be declined ”)

.
16 B lankenship lodges a similar argument regarding t he need for tes ting to deter mine if a given item is “ chemical waste .” We n ee d not addres s this argument because we dis pose of t he “ chemical waste s” issue on su ff iciency grounds

. See Tex. R. Ap p. P. 47.1

.18 ch emi c al composition s a nd that provide standard s against w hich the substances may be scientifically t este d

. See Tex. Ag ri c. Code Ann. § 121.001 ; Tex. H ealth & Safety
Code Ann. § 481.002(26)

. As we have already n oted, “ treated lumb er ” ha s no

statut ory de f inition , nor does “u ntreated lumber .” Furthermore, Blankenship does

not dispute that there were adh e sive substances in his plywood

—he dispute s wh ether
such subs tances qualif y as “ treat [ ments ].” It is un c lear how or why a scientifi c test o f the ply woo d w ould have changed thi s. Ba s ed on the evidence presented a t trial, and even without a scientific test , a

r easonable factfinder could have concluded tha t Blanken ship ’s plywood had been

“ treat ed ” within the p lain meaning of that phrase. 17 See Tex. W ate r C o de Ann

. § 7.187 (b)(2)(A )(i i) ; 30 Tex

. Adm in. Code § 111.219 (7) (2022) (T ex. Comm ’n on Env ’t Quality , Ge n eral Re quirements for Allowable Outdoor Bur ning ). A n out d oor burn , even if otherwise authorized, may n o t include “ tre ated lumber. ” 30 Tex . Admi n. Cod e § 111 .219 (7) ( 2022 ) (T ex. Co mm ’n o n Env ’t Quality , General R e quirements for

17 Blankenship also argues that, because the S tat e c ould no t pr ove that the p ly w ood was “tre a ted lumber ” o r that th er e were any other prohibited ite ms in the fire , it could only pr ove that the fire contained proh ib ited substances by relying on S erge ant Lane ’s testimo ny regar ding bla ck smoke

— i.e., h i s testim ony that bl ack
s moke indicat es th at a fi re contains to xic or il le gal materi al s . Blankenship lab els this testi mony “ju nk science ” and argues that the State ’s re li ance u pon it necessitates reversal “as a matter o f publi c poli cy . ” Even without Sergeant L a ne ’ s test i mon y reg arding black smoke, we hold tha t the State o ffered sufficient evi den ce t h at the plywood was “treated .” Thus , we ne ed not address this issue. T ex . R. App. P. 47.1

.19 Allowable Outdoor Bur ning ). Th er e was thus sufficient evidence that the plywo od Blankenship admitted burning was a prohibited ite m . b. Insufficient Evidence of “C hemica l W ast es”
T he unlawful bur ning of “t reated lumber ” is a Class C offense for first

- time
offenders , though, and B lank enship ’ s unlawful burning offens e was enhanced to a Class A

. The St ate supports the enhancement b y arguing that t he same adhesive

“ tre at[men ts] ” t hat mak e the plywood “ tr eated lumber ” also support a finding that it
is “chemical waste [] .”
But t he Wa te r Code d istinguish es between “ treate d lumber ” and “ chemical

waste s,” and we must do so a s well. See Tex. Water Code Ann. § 7.187 (b ).

“ [C ] hem ical waste []” is a hi gh -s everity ite m , “ treated lumber ” is a moderate

- severity
item , and under TCEQ rules, “ untrea t ed l umber ” is either domestic wa ste or a low

severi ty item, depending on the circumstan c es . See id. ; 3 0 Tex. Adm in. Code § 111.2 09 (1) (2022 ) (T ex. Comm ’n on Env ’t Quality , Exception for Disposal Fires ).
If

, as the State argu es, the same wood additives th at c onvert p lywood from “ untreated
lu mber ” in to “ treated lu mber ” also make that lumber “ ch e mical waste [] ,” then i t is
difficu lt to i ma g in e w ha t items of “ treated lumber ” would not qualify as “ chemi cal

waste [] .” Su ch an inter pretation would render t he ent i re “ treated lumber ” category superflu ous a nd conflict with our “ presum [ pt ion ] that . . . th e entire statut e is i ntended
to be effectiv e. ” T ex . 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 a20 purpose and that each word, phrase, clause, and sentence s hould b e given effect if
reasonabl y possibl e”). I f t he legislature in tended to classify all “ treate d lumber ” as

“ chemical waste [] ,” it would not have distinguished betw een the t wo and pre scribed
differe nt punishment s for their burning

. 18 Put differently , even if the additives t hat conver t a piece of raw wo od into
“t reated lumber ” could be classified as “ chemica l wa ste s,” the legislature ’ s separate categ orization of “t re ated lumber ” carve s out a “ treated lumber ” exception to the
broader “ chemical waste s” rule

. Tex. W a ter Code Ann. § 7.187 (b); s ee Te x. G ov ’t
Code Ann. § 311. 026 (a)

. The punishment provisions for the two items “deal with the same general subject ” and o ffen se

— unlawful burn ing

— so t o the extent that the

“ general [‘ chemical waste s’ ] prov ision co n flicts with [the ] spe cial . . . [‘ tre ated lumber ’ ]
p rovision, the pro visions shall be construed

. . . so tha t effect is given to both, ” and

“ the special or local p r ovis ion prevails as an exception to th e general provision .” Te x. Gov ’ t Code Ann. § 311 .026 ; Cheney v. St ate , 755 S.W.2d 12 3, 126 (Tex. Crim . App. 1988) ( quo ting 53 Tex. Jur. 2d Statutes § 1 86 , regarding the rule of in pari materi a and its application to c onfl ictin g statutes that “ deal wi th the same general subject ” or “ have
the same general pu rpose ”).

18 The State also argues that “ [b]ased on guidance from the TCEQ, plywood
cou ld be c o nsi dere d both treate d w ood and chemi ca l w aste. ” But an a gency construction cannot be used to create an ambiguity in an otherwise unam biguous statute
. Cf . Boykin , 818 S.W.2d at 78 5–86 ( noting that administ rative interpre tations of
a statute s hould be ref eren ced only if th e p lain language is ambiguous or wo uld lead to an absurd resu lt ).21 T h is is not to say t hat “ trea ted lu mber ” could ne ve r q u a lify as “ chemical

waste []

. ” It might be pos sible to modify raw wood using both a wood treatment a n d

a sup erfluous non

- trea tment chemical such that it pro duce s a potential air
contaminant as a n unwanted byproduct

. See W aste , W e b ster ’ s Thi rd New
Int ernatio nal D ictio nary 2580 (2002 ) (defining “ was te ” as, among other thing s,

“ damaged, defe ctive, or super f luou s material produced during o r left ove r from a manufacturing process or industrial operat i on ” ) ; Wast e , Merriam

- Webste r ’ s Dict i onary , htt ps://www.m erriam

- webster.com/dict ionary/ waste ( last visited July 7 , 2022 ) (defining “ waste ” as , among other things, “ unwant ed by

- product of a
manufac turing process , che mical laboratory, or nuclear react or , ” as i n “ t o xic w aste ” or

“ hazardo us waste ” ) ; cf. Rhi ne , 297 S.W. 3d at 3 12 ( holding that “ m aterials, other than plant growt h, that produce air contaminants when burned are wha t is meant by

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

. But
there is no evid ence o f t hat he re , and the Stat e doe s not claim that there is

. A part fro m the evidenc e of the ply woo d ’s “treat [ment] ”

— the adhes ive s ho lding i t together

— t he State d id n ot offer and has not pointed to any evidence demonstrating
th a t B lankens h ip ’ s ply w ood con tained su perflu ous chemicals or unwa nted chemical by products

. A reasonable factfinder could not have found b eyond a reasonable doub t that th e “ treated wood ” Blankenship was char ged with burning qualified as high

severity “ chem i c al waste []

. ”22 H a ving deter mi ned tha t t her e is insuf ficien t evi dence that any of the three
items listed in B lan kenship ’ s informa tion

— soda ca ns, bottles, or tre at ed wood

— are

“ chemical w aste s , ” and because the “ chem ical wastes ” category was the State ’ s sole
arg ument in support of Blan ke nship ’ s hi gh

- seve rity clas sif icati on , ther e is in sufficient evidence to support Blankenshi p ’ s Class A enhancement

. We sustain B l an kenship ’ s first issue.
D
. Location of Burn ed Ite ms
N e xt , Bl a n kenship disputes whether the allegedly burned items were ac tually
lo ca ted in the fire

. He argues that the Stat e rel ied on the office rs ’ tes timony to pr ove th e burned items ’ locations b ut tha t the vid eo and photo graphic evidence directly

contra dict s the officers ’ testimon y by showing that many of the alleged ly bur ned
items

— e verything other than the plywood

— were adja cent to the fir e. According to Blankenship, the video p resents “ indisputable v is ual evi denc e co ntradicting the essential portions of [the officers ’ ] testi mony ” as in Car mouche v. S tate

. 10 S.W.3d 323,
33 2 (Tex. Crim. App. 2000)

. In Carmou che , t he d ef endant disputed whether he had consented to a searc h,
and th e body

- camera foot age r ev ealed a materially different series of events than
those that the o fficer te st ified had transpired. Id. at 33 1

– 32. T he officer testifi ed t hat
he “as k ed [th e defendant] if [h e] could s earch him, ” and the defendant “ threw his hands up, said, ‘ [a] ll right [, ] ’ [t] u rn ed around, [and] put his hands on the car ” before
the o f ficer began the se arch

. Id

. at 331

. T he body

- camera footage revealed that , in23 actuality, t he de fendant “ turned around a nd assumed a position to facilitate the search [on ly] after he was o rdere d to do so by one of the [other on

- scene] officers ,” a nd that
the request to con duct a se ar ch was “made as [the officer] [wa]s reac hi ng for the
crotch are a of [the de fendant ’s] pants. ” Id. at 332. In “ the unique circumstances of [that ] case, ” the Cour t of Cr iminal Appeal s “ decline [ d] to give ‘ almost total deference ’
to the trial cou rt’ s impl ic it [fact ] findings ” a s it normally would ha ve . Id. In doing so , the Court noted that “ the n ature of the evidence presented in the videotape d [id] not pivot on a n evalu ation of cred i bility and demeanor ” but instead “present[ed] indisputable visual evid en ce contradicti ng ess ential portions of [ th e of ficer ’s]
testi mon y. ” 19 I d. (internal quotation ma rks omitted).
In contrast to Carm ouche , the nature of the evidence presented in Blankenship ’s

case does “ pi vot on an evalu ation of credibility and demeanor .” Id. (internal quotation
mark s omitted). Se rgeant L a ne expre s sly state d that “ [t]he video d[id] not depict
exactl y wha t [he was] looki n g at ,” and t he body

- cameras v ideo s are not s o crystal cle ar

as to “indisputabl[y]

. . . contradict ” this s tat ement. I d. A lthough Blankenship ’s fire
can be seen in th e video s, t he i tems in the fire are difficult t o dete ct d ue to the quality
of the video s , the size of the video frame s , the l ightin g and background, and the
officers ’ distance from the fir e . Eve n when the officers approach the fire , the items i n

19 In explaining its de parture from the general rule requiring “a lmos t total def e rence ,” th e Court of Criminal Appeals also noted that the trial court seem ed to pred icate i ts e rroneous decis i on on a finding of probable cause rather than on a finding of consent
. Carmouche , 10 S.W.3d at 33 2.24 it are of ten obscu re d by the officers ’ movements , and the numb er o f c lose

- up forwa rd- facing shots o f the fire are limit ed

. Ind e ed, Blankenship ’ s trial counsel
himself a ckn ow l edged t he less

- than

- perfe ct n ature of the vid eo ; wh ile cross -e xamining
the officers , counsel ackno w ledged that “ the vid eo [ is] a little blur ry”; he referred to
i tems shown in the vi deo as “ [w]hatever that is ”; and he stated that “ the o nly thing
th at you can see in the fire is s ome woo d and I’ ll be honest[, ] I can ’ t tell where the
wood is ” based on the v ideo. Even Blankenship ’ s e xpert testified that he could not
tell from t he vid eo s whether the area around the fire incl ud ed soda cans or bottles

. T he l ens of a human ey e is diff erent f rom 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 wo uld provide. Thus, whi le t he videos do not

“ directly corroborate [the officer s’] testi mony, the video [ s] d o[] not directly disprove
or contradict [their] testimony either .” Villalta v. State , No. 13

- 18

- 00180

- CR, 2019
WL 17168 24, at *3 (Tex. App.

— Corpus Christi

– Edinb urg Apr. 18, 20 19, no pet.) (mem. op., not designated fo r publication) ( re jecting a rgumen t similar to Blankenship ’s and distinguishing Carmouche where appellant alleged that dash cam video showe d he was not commi ttin g any traffic violations ). The factfinde r was fac ed

w

it h a credibility determination: w hethe r to believe the officers ’ testi mony that they

c ould see items in the fire t hat w ere not clearly captured in the bod y- camera vide os . Cf. i d. (holding that “ [ t] he trial court could hav e reasonably c redited [ the officer ’s] testimony over the video reco rdin g” ) ; W inward v. S tate , No. 09

- 17

- 00149

- CR, 2019 WL25 575954, at *3 (Tex . App.

— Beaumont Feb. 13, 2019, pet. ref’d) (mem. op., not designated for publication ) ( rejecti ng argument that dashc am re cording c ontradict ed
officer ’ s testimony regarding reckl ess dr iving and holding tha t , “[b] ec ause th e [offi c er] was in a position in the patrol car that differed from the camera ’ s, the trial court could
have rea sonably resolved an y discrepancies betwee n the recording and the [officer ’s ] testimony by concluding that [t he of ficer] could see oncoming traffi c better from his position in the car ”)

. “[A] s a general rule, the appellate courts, including this [c] ourt, sh ould give almost t ot al deference to a tr ial court ’s de terminati on of the h istorical
facts that the record s uppor ts esp ecially wh en the tr ial cou rt’ s findings are based on an evaluati on of credibility and demeanor.” C armouche , 10 S.W.3d at 332 (quoting Guzman v. State , 955 S.W.2d 85, 89 (Tex. Crim. App. 1997) ). The record suppo rts the
tria l court ’s decision to believe the of ficers ’ t estimo ny , and we de fer to that d ecision

. We overrule Blankenship ’ s second issue.
E
. Di spro ving Statuto ry Exceptions
F inally, B lan k enship argues that there was insufficient evide nce that his fire wa s not authorized under any o f the potentially re lev ant st at utor y excep tions.
To prove a criminal of fense, “[t] he State m ust n egat e the existe nce of any

exce ption to an offense . . . a nd the negation of an exc eption to the offens e is an element of the offen se.” State v. Laird , 208 S. W.3 d 6 67, 671 (Tex. App.

— Fort Wort h 2006, no pet.) ; see Tex. Penal Code An n . §§ 1.07(a) (22)( D) , 2 .02( b). There a re a number of exceptions to the general prohibition on outdoor burning , and26 Blankenshi p raises one in particular: the exception authorizing r ecr eat ion al fires

. See
30 Tex. Adm in. Cod e § 111

. 207 (2022) (T ex. Comm ’n on En v’t Quality , E xception
for Fire s Used for Recreat ion, Ceremon y, Cooking, a nd Warmth ); s ee al so , e.g. , id. § 111.205 (2022) (T ex. Comm ’n on Env ’t Qual ity , Exce ption for Fire Training ); id. § 111.209 (2022) (T ex. Comm ’n on Env ’t Qualit y , Exception fo r Disposal F ire s) ; i d. § 111.213 (2022) (Te x. Comm ’n on Env ’t Quality , Exception for Hydro carbon Burning ); Rhin e , 297 S.W.3d at 308 (noting and listing exc ep tions).
But “ [e] ven if [B la nke nship ’ s] outdoor burnin g [was] in fact approved or f ell
wit hi n an exception, there are st ill o ther restriction s,” including a TCEQ rule w hich

“ pr ovid es th at c ertain materials may not be burne d, despite being otherwise
allow a ble. ” Rhine , 297 S.W.3d at 3 08

– 09

. B lankenship ’ s info rmation alleged that he
viola te d thi s TCEQ rule

. A nd “[ t] r eated lumber ” is o ne of the materials that the rule prohibit s burning even if a fire is otherwise allowable as a recreational fire

. 30 Tex.
A dmin. Code § 111.219 (7 ) ( 2022) (T ex. Comm ’n on Env ’t Qu ality , General
Re quirements f or Allo wable Outdoor Bur ning ); see id. § 1 11

. 207 (2022) (T ex. Comm ’n
on En v ’t Quality , Exception for Fires Used for Recreat ion, Ceremony, Cooking, a nd
Warmth ) ( recognizing that recreational fires “shal l b e subj ect to the requirements of § 111.219(7) ”)

. By off eri ng suff icient evide nce that Bl an kenship wa s burning “treated
lumber , ” then, the State provided suf ficient evidence t hat his fire wa s not authorized
under the potenti all y applicable exce pti on . We overrule Blankenship ’s third is sue.27 I II
. Conclusion , Reform ation, and Remand
As we have held , there is suf ficient evi dence to a llow a reasonable factfinder to
conclude that Blan kenship committed a Class C offen se by unlawful ly bur ning a
pr ohibited item —“t reated lumber ”— in violation of a TCEQ rule. See T ex. W at er Code An n. § 7.187 ( b) (1), (2) ; 30 Tex. A dmin. Co de § 11 1.219 (7) (2022 ) (Te x. Comm ’n
on Env ’t Quality , General R e quirements for Allowable Outdoor Bur ning ). A s we have also held, tho ugh, t here i s insufficient evidenc e t o support the further conclu sion
that at least one of the prohibited item s burned qual ified a s “ heav y oi l s, as pha lti c

mater ials, poten tially explosive ma t eria ls, or chemical wa stes .” See T ex. Water Code Ann. § 7.187 (b) (1), ( 3)( A)

. Because in convicting Bla nkenship o f the enhanced Class
A offe nse of unlawful burning , the factfinder necessarily found e very elemen t required to convict him of the lesser

- included Class C offense of unlawful burning , and becau se there is suffici ent evidence to support a convicti on for the Class C offense, we are “a uthoriz ed

— indeed requir ed — . . . [to ] reform [] the j udgment to reflect a c onviction fo r the lesser

- inclu ded [Class C] offense. ” Thornton v. State , 425 S.W.3d 289, 30 0 (Tex. Cr im. App. 2014)

. We there fo re remand the case to t he tria l court to reform the j udgment to reflect a conviction for C lass C unla wful burning and to con duct a ne w punishment hearing

. 20 Te x . C ode Crim. Proc. art. 44.29; s ee Gri ffin v. State , 491 S .W.3d 771, 777

20 W hen a trial court has jurisdi ct ion over the original offense charged

— as the Hood County Court at Law unquest ion ably did over Blanken s hip ’s original Class A28 ( Tex. Crim . App. 2016) (re ma nding f or reforma tion of judgment from capita l murder

t o murder and for new punishment hearing ); Thornton , 425 S.W .3d at 307 ( rema nding
for reform ation of ju d gment and for new p uni shment hearing) ; Gaddy v. State , 433 S.W.3d 128, 131 (Tex. App.

— Fort Worth 2014, pet. ref’d) (en b anc on remand) (similar); cf. Winkley v. State , 123 S.W.3d 707, 714 (T ex. App. —A ustin 200 3, no pet.) ( reforming county court at law j udg ment from Class B theft to Clas s C theft and remanding for new punishment he aring ); Colquitt v. S tate , 650 S.W.2d 128, 129 (Tex. App.

— Houston [14th Dist.] 1983, no pet.) (reforming distric t court judg ment from felony to Class C misdemeanor and remanding for new punishment hearing ). /s/ Bonnie Sudderth
Bonn ie Sudde rth Chief Ju stice
Pub lish Tex. R. App. P. 47.2 (b) , 47.4 (a)
D elivered : 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 juris di ctionally significant lesser grade. Cf. Ex parte Sparks , 206 S.W.3d 680, 682 (T ex. Crim. App. 2006) (orig . proceeding) (e xplaining that “[t]he very reason for the district court to have jurisdiction of misdemeanor offenses that are included in the felon y offense i s that the evidence might prove the misdemeanor without proving the fel ony”). “ The p resentm e nt o f an indictment or information to a court invests the court with jurisdiction of the cause,” Tex. Const. art. V, § 12 (b) , and having acquired jurisd ic tion over the case, the trial court “retains jurisdiction of the case to its final determina ti on.” Br uce v. State , 419 S. W.2 d 646, 646

– 47 (Tex. Crim. App. 1967) (applying rule where defendant was charged with felony but pleaded to misdemeanor); see Trej o v. State , 280 S.W.3d 258, 261 (Tex. Crim. App. 2009) (quoting Bruce ).