AFFIRM; and Opinion Filed August 4, 2015. 

# S

In The 

## Court of Appeals Fifth District of Texas at Dallas
No. 05
- 14
- 00216
- CR NATHAN EARL BURGESS , Appellant V. STATE OF TEXAS , Appellee
On Appeal from the County Court at Law No. 1 Collin County, Texas Trial Court Cause No. 001
- 86625
- 2012



### MEMORANDUM OPINION Before Justice Bridges , Justice Fillmore , and Justice Brown Opinion by Justice Brown Appellant Nathan Earl Brown was charged by informati on with the misdemeanor offense of illegal dumping of litter or other solid waste weigh ing more than five pounds but less than five hundred pounds. T he trial court found appellant guilty as charged and sentenced him to twenty days’ confinement in the coun ty jail , probated for nine months. In one issue on appeal, appellant challenges the sufficiency of the evidence to support his conviction. Because all dispositive issues are settled in law, we issue this memorandum opinion. T EX
. R. A PP
. P . 47.2(a), 47.4

. We affirm the trial court’s judgment. I. BACKGROUND David Gensler, a code compliance supervisor for the city of Murphy, Texas, testified that on July 12, 2012, he went to a house located at 720 Paint Creek , Murphy, Texas, in response to a complaint regarding items on the public street, public sidewalk, and front yard

. As a code– 2

– officer, Gensler enforces the city’s municipal codes pertaining to high weeds, litter, and things of that nature. When Gensler arrived at the pro perty, he observed that the front yard and driveway were covered with items, including some items Gensler considered to be hazardous. Gensler described seeing furniture , a glass cabinet, CDs , and cassette tapes; he also saw bags of what he believed to be animal and human excrement throughout the property. After talking to appellant , Gensler issued a notice of violation, notifying appellant that he had twenty

- four hours within which to remove all the items from the property. At the request of the Murphy P olice D epartment , Gensler and code compliance officer Tony Scorio went back to the Paint Creek house the following day . Upon arriving at the property, Gensler immediately observed that nothing had been removed from the proper ty , and in fact, there were even more items on the front yard and driveway. Gensler saw a U

- Haul truck in front of the property and noticed that a few items had been moved adjacent to the truck.
A ppellant was sitting in a lawn chair in the front yard and s everal police officers were talking to him. Gensler could not hear what the officers were saying; however, a s Gensler watched Sergeant Hermes talk ing to a ppellant , appellant became upset and began grabbing and throwing items around the front yard. Appe llant yelled at the police and compliance officers and demanded their names. According to Gensler, a ppellant threw a box of cassette tapes across the front yard and then picked up a glass cabinet and threw it. The cabinet landed on the sidewalk , shatter i ng glass on the sidewalk and into the street. Sergeant James Lee Hermes, a police officer with the Murphy Police Department, testified that on July 13, 2012, he and several other officers

— Officer Michael Palko, Officer Joseph Wetzel, and Officer Chris R iebschlager

— w ere sent to 720 Paint Creek, Murphy, Texas. When he arrived at the property , Hermes saw several individuals in the front yard . A ppellant was sitting in a lawn chair; appellant’s sons and friends were standing nearby

. He rmes also– 3

– observed furniture, boxes, and debris in the front yard, the sidewalk, and the roadway. He rmes informed appellant that his items needed to be removed immediately because they were obstructing a public sidewalk and roadway. Appellant told Hermes to just g ive him a citation, but Hermes explained that the offense was a class B misdemeanor and not an offense for which a citation could issue

. Hermes stated that a ppellant became very upset and started yelling, cursing, and threatening all of the city officials and officers. According to Hermes, appellant was making so much noise that neighbors began coming outside to see what was happening. While voicing his frustration, a ppellant began picking up furniture that was on the sidewalk and throwing it across the yard. Appellant told his sons to start collecting everything so his sons started throwing items into the U

- Haul truck. Appellant then pushed over a large glass and metal cabinet, shatter ing glass across the sidewalk and into the road. At that point, He rmes instructed one of his officers to arrest appellant for disorderly conduct and illegal dumping. Public Works was called to the property to clean the sidewalk and street where the glass had been broken. Appellant testified that all of the items on th e front yard, sidewalk, and street were placed there by the constable and employees from the constable’s office when they evicted his sons from the house at 720 Paint Creek

. On cross

- examination, appellant admitted living at the house with his sons, but claimed the items on the front yard belonged to his sons and not to him. Appellant admitted that on July 12, 2012, he received the notice to clear the yard and sidewalk within twenty

- four hours. According to appellant, he immediately complied with Hermes ’ request to remove his sons’ personal property from the sidewalk and street. Appellant testified he did not knowingly or intentionally dump or dispose of any litter or trash. He stated he did not expect the glass cabinet to break when it fell over , but admitted he did not help clean up the broken glass

.– 4

– A fter a bench trial, the tr ial court found appellant guilty of the misdemeanor offense of illegal dumping of more than five pounds but less than five hundred pounds of litter or other solid waste at a p lace that is not an approved solid waste site. This appeal followed. 1
II. APPLICABLE LAW
In his sole issue on appeal, appellant argues the evidence was legally insufficient to support his conviction for illegal dumping of litter or other solid waste weig hing more than five pounds but less than five hundred pounds. A. Standard of Review We review the sufficiency of the evidence under the standard set out in Jackson v. Virginia , 443 U.S. 307 (1979). Acosta v. State , 429 S.W.3d 621, 624 (Tex. Crim. App. 20 14). We examine all the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson , 443 U.S. at 319; Acosta , 429 S.W.3d at 624

– 25. We must defer to the jury’s credibility and weight determinations because the jury is the exclusive judge of the witnesses’ credibility and the weight to be given to their testimony. See Winfrey v. State , 393 S.W.3d 763 , 768 (Tex. Crim. App. 20 1 3 ). B. Illegal Dumping A person commits the offense of illegal dumping if he “ disposes or allows or permits the disposal of litter or other solid waste at a place that is not an approved solid waste site, including a place on or within 300 feet of a public highway, on a right

- of

- way, on other public or private property, or into inland or coastal water of the state. ” T EX
. H EALTH & S AFETY C ODE A NN
.

1 Appellant’s first appeal was dismissed for want of jurisdiction because his notice of appeal was untimely

. See Burgess v. State , No. 05

- 13

- 01244

- CR, 2013 WL 582800 2, at *2 (Tex. App.

— Dallas Oct. 29, 2013, no pet.) (mem. op., not designated for publication)

. Appellant filed an application for writ of habeas corpus challenging the conviction for which community supervision was imposed , claiming he was deprived of his right to file a motion for new trial and appeal through no fault of his own. See T EX
. C ODE C RIM
. P. A NN . art. 11.072, § 2(b)(1) (West Supp. 20 14)

. On January 21, 2014, the trial court signed an order grant ing appellant’s application for writ of habeas c orpus and granting appellant thirty days within which to file a motion for new trial or a notice of appeal. On Feb ruary 20, 2014, appellant filed a motion for new trial and a notice of appeal.– 5

– § 365.012(a) ( West Supp. 2014). The offense is a Class B misdemeanor if the litter or other solid waste weighs more than five pounds but less than five hundred pounds

. Id . § 365.012( e ). The terms “ d ispose” and “dump” mean to discharge, deposit, inject, spill, leak, or place litter on or into land or water. T EX
. H EALTH & S AFETY C ODE A NN
. § 365.011(5) (West 2010). The
statut e defines “litter” to mean decayable waste and nondecayable solid waste that includes, among other things, glass and metal furniture

. See id . § 365.011(6). III. DISCUSSION Appellant contends the evidence does not support his convict ion for illegal dumping because State did not prove : (1) the items on the front yard, sidewalk, and road were litter or solid waste; (2) appellant placed the litter on the front yard, sidewalk, and road; and ( 3 ) appellant had a possessory interest in the land in order to charge him with allowing litter to accumulate on his land

. The State refutes appellant’s contentions and asserts that regardless of who initially placed the items on the front yard, the evidence clearly s hows that appellant threw items around the property, covering the sidewalk and street with broken glass. Appellant argues he should not have been convicted for illegal dumping because the items on the front yard, sidewalk, and street were not litter or so lid waste. Appellant refers to the statutory definition of “litter” in section 365.011(6) and acknowledges that the defi nition of “litter” includes non decayable solid waste such as furniture. See id

. With respect to the definition of “solid waste,” a ppe llant notes that “solid waste” has the meaning assigned by section 361.003. See id . § 365.011(9). A ppellant asserts that “none of that definition includes the items on front lawn where Appellant was arrested by the police.” However, a ppellant does not p rovide citation to authorities or discussion in support of his assertion. According to s ection 361.003(34) , “solid waste” means, among other things, rubbish which consists of:– 6

– (A) combustible waste materials, including paper, rags, cartons, wood, excelsior, furniture, rubber, plastics, yard trimmings, leaves, and similar materials; and (B) noncombustible waste materials, including glass, crockery, tin cans, aluminum cans, metal furniture, and similar materials that do not burn at ordinary incinera tor temperatures (1,600 to 1,800 Fahrenheit).
T EX
. H EALTH & S AFETY C ODE A NN
. § 361.003(31), (34) (West 2010). Gensler testified that the items on the front yard, sidewalk, and street included furniture, cartons , plastics, and a glass and metal cabinet. Gensler identified photographs taken by police officers that clearly show such items covering the front yard, sidewalk, driveway, and street. The photographs, which were admitted into evidence during trial, show large piles of furniture, pillows, bedding, boxes, and many other items. Hermes also observed furniture, boxes, and debris in the front yard, the sidewalk, and the roadway. Based on the record, w e conclude the evidence was sufficient to establish that there were items covering the front yard, sid ewalk, and street that fell within the statutory definitions of “litter” and “solid waste.” Id

. Appellant argues he should not have been convicted for illegal dumping because he did not place the items on the front yard, sidewalk, and street. He conte nds the items were placed on the front yard, sidewalk, and street by the constable and employees from the constable’s office when they evicted his sons from the house at 720 Paint Creek. However, Gensler testified that between the time he issued the notic e of violation and the time he returned to the property the following day, even more items had been placed on the front yard and driveway. Further, appellant was observed by code compliance officers and police officers as he picked up items and threw them around the property. Both Gensler and Hermes testified that appellant threw or shoved a glass and metal cabinet, causing it to fall over and shatter glass over the sidewalk and
street. They also testified that appellant did nothing to remove items from the property and did nothing to clean up the broken glass. And both Gensler and Hermes estimated the weight of the glass cabinet to be more than five pounds and less than five hundred pounds. Based on the– 7

– record, we conclude the evidence was sufficient t o establish that appellant disposed of more than five pounds but less than five hundred pounds of litter or solid waste on the public sidewalk and the public street. See T EX
. H EALTH & S AFETY C ODE A NN . § 365.01 2(a), (e ). Finally, appellant argues that e ven if the items were litter or solid waste, he should not have been convicted for illegal dumping because there was no evidence that he had a possessory interest in the land in order to charge him with allowing litter to accumulate on his land. Citing

se ction 365.012(l), appellant argues that because the State did not prove he owned the property, he could not be charged with allowing or permitting the disposal of litter or other solid waste on the front yard of the property. See T EX
. H EALTH & S AFETY C ODE A NN
. § 365.012(l). However, appellant was not charged with allowing litter to accumulate on his own land , and t he statute does not require that the person own the land where litter and solid waste is illegally dumped.
See Simmons v. State, 288 S.W.3d 72, 76 (Tex. App.

— Houston [1st Dist.] 2009, pet. ref’d) (appellant detained for illegal dumping was littering pieces of paper on the street); Mellen v.
State , No. 11

- 11

- 00257

- CR, 2013 WL 5520369, at *1 (Tex. App.

— Eastland Sept. 26, 2013, pet.

re f’d) (mem. op., not designated for publication) (appellant convicted of illegal dumping on private property across the alley from his home); Shagroun v. State , No. 01

- 00

- 00130

- CR, 2002 WL 1164147, at *1 (Tex. App.

— Houston [1st Dist.] May 30, 2002, pet. ref ’d) (not designated for publication) (appellant convicted of illegal dumping on property of a commercial business). If appellant had owned the property at 720 Paint Creek, section 365.012(l) might have provided a ppellant with a potential defense for the it ems disposed on the property. Section 365.012(l) states: This section does not apply to an individual’s disposal of litter or other solid waste if: (1) the litter or waste is generated on land the individual owns; (2) the litter or waste is not generate d as a res ult of an activity related to a commercial purpose;– 8

– (3) the disposal occurs on land the individual owns; and (4) the disposal is not for a commercial purpose.
T EX
. H EALTH & S AFETY C ODE A NN
. § 365.012(l). However, appellant argues that he does not own or have any possessory interest in the property. Accordingly, we conclude the section 365.012(l) exclusion does not apply, and the illegal dumping statute applies to appellant. Based on the record, we conc lude the evidence was sufficient to establish that appellant disposed of litter and solid waste on private property he did not own, and on the public sidewalk and the public street. In conclusion, the evidence was legally insufficient to support appellant ’s conviction for illegal dumping of litter or other solid waste weighing more than five pounds but less than five hundred pounds. W e overrule appellant’s sole issue.
IV. CONCLUSION Having overruled appellant’s sole issue, we affirm the trial court’s ju dgment.

Do Not Publish T EX
. R. A PP
. P . 47 140216F.U05 /Ada Brown/ ADA BROWN JUSTICE– 9

– 

# S

Court of Appeals Fifth District of Texas at Dallas JUDGMENT
NATHAN EARL BURGESS, Appellant
No. 05

- 14

- 00216

- CR V. STATE OF TEXAS, Appellee On Appeal from the County Court at Law No. 1, Collin County, Texas Trial Court Cause No. 001

- 86625

- 2012. Opinion delivered by Justice Brown. Justices Bridges and Fillmore participating. Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED

. Judgment entered this 4th day of August, 2015.