Affirm in part; Reverse and Remand in part; Opinion Filed August 26, 2016.




                                                   In The
                                   Court of Appeals
                            Fifth District of Texas at Dallas
                                           No. 05-15-01205-CR
                                           No. 05-15-01206-CR

                                  TIMOTHY O’REILLY, Appellant
                                              V.
                                  THE STATE OF TEXAS, Appellee

                  On Appeal from the County Criminal Court of Appeals No. 1
                                    Dallas County, Texas
                          Cause Nos. MC15R0005D; MC15R0006D

                                               OPINION
                              Before Justices Bridges, Evans, and Richter1
                                       Opinion by Justice Evans
        Timothy O’Reilly appeals the county criminal court of appeals’s judgments affirming his

convictions following a jury trial in municipal court for violations of two ordinances of the City

of Richardson: (a) violation of Richardson, Texas Code of Ordinances ch. 14, art. 1, § 14-2(10)

(2016) (nuisance ordinance) by allowing trash and debris to accumulate in a manner offensive or

injurious to the public health; and (b) violation of Richardson, Texas Code of Ordinances ch. 13,

art. 11, § 13-162(a) (2016) (open-storage ordinance) by knowingly permitting outdoor storage of

items not normally stored or used outside where they were visible from the public right-of-way

for more than twenty-four hours. Appellant raised three issues in his appeal to the county

    1
      The Hon. Martin Richter, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by
assignment.
criminal court of appeals to which he is limited here on appeal,2 asserting (1) the $2000 fine

exceeded the maximum fine permitted by law, (2) there is insufficient evidence to support the

two convictions, and (3) the two, separate convictions violate the Double Jeopardy Clause of the

Constitution of the United States. After considering all of appellant’s arguments, we affirm the

county criminal court of appeals’s judgment in Cause No. MC15R0006D (Richardson Municipal

Court Cause No. N0800561B, “outdoor-storage case”), we affirm the conviction in Cause No.

MC15R0005D (Richardson Municipal Court Cause No. N0800561A, “nuisance case”), but we

reverse that part of the judgment affirming appellant’s $2000 fine and remand the nuisance case

to the trial court for a new punishment hearing.

                                                   I.
                                               Background

         The City notified appellant on August 19, 2014, that the conditions of his residence in

Richardson failed to comply with City ordinances. Specifically, appellant was notified that the

accumulation of trash, debris, lumber, and other items on his property violated the nuisance

ordinance, and that the outside storage of furniture, boxes, containers, and other materials

violated the open storage ordinance. During Code Enforcement Inspector Richard Daniel’s

personal visit, appellant acknowledged the non-compliance and promised to bring his property

into compliance by Thanksgiving, November 27, 2014. Daniel visited appellant’s property

shortly after Thanksgiving and observed items remaining on appellant’s property that, in his

opinion, were a public health risk, items stored where they were visible from the right-of-way,

and other items that were not suitable for storage or use outside. On December 15, 2014, Daniel

issued a citation for violations of both ordinances. Trial occurred in February 2015.




   2
       See TEX. GOV’T CODE ANN. § 30.00027(b)(1) (West Supp. 2015).


                                                    –2–
       At trial, Daniel testified about the items he observed in August and on December 15,

2014, in appellant’s yard. He saw from the street in front of appellant’s house items located in

the front- and side-yards and driveway and observed from a neighbor’s porch items located in

appellant’s side- and backyards. The items were leather and wood furniture, cardboard boxes, an

indoor type of bird cage, plastic containers, tarp draped over objects, fence sections leaning

against the house, fence sections leaning against but not attached to a chain-link perimeter fence,

a pile of lumber, and a large number of artificial Christmas trees in the front-yard. Daniel’s

photographs from the front and side of appellant’s house were admitted in evidence from which

Daniel testified and identified many items depicted in the photographs.

       Appellant testified he spoke with Daniel in August and had an agreement that appellant

could have until Thanksgiving to clean up his yard. Appellant identified many items depicted in

Daniel’s photographs including fence sections, a bedframe, a chair he later threw away, a leather

ottoman, cardboard boxes, a store fixture rack, and numerous artificial Christmas trees in his

front-yard. Appellant testified he spent two hours almost every day working harder than he ever

had in his life for more than 300 hours to clean up his yard. He finished getting his yard ready to

pass inspection by late December 2014 or early January 2015. He took photographs in January

of his yard as ready for inspection that were admitted in evidence.

       The jury convicted appellant of violating both ordinances and assessed a $2000 fine for

the nuisance-ordinance violation and a $400 fine for the outdoor-storage-ordinance violation.

The county criminal court of appeals affirmed the judgments of the trial court. Appellant

perfected these appeals.

                                               II.
                                  Sufficiency of the Evidence

       In his second issue, appellant challenges the sufficiency of the evidence to convict him of

violating either ordinance. We address legal-sufficiency issues first because, in the event they
                                               –3–
are meritorious, we would render a judgment of acquittal rather than reverse and remand. See

Benavidez v. State, 323 S.W.3d 179, 181 (Tex. Crim. App. 2010) (appellate courts render

judgment of acquittal only when trial court’s ruling amounts to de facto acquittal or appellate

court finds evidence was legally insufficient to support conviction); Owens v. State, 135 S.W.3d

302, 305 (Tex. App.—Houston [14th Dist.] 2004, no pet.) (legal-sufficiency challenge must be

addressed first because if evidence is insufficient, reviewing court must render judgment of

acquittal).

        We review the sufficiency of the evidence of a criminal offense viewing 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. Clayton v. State, 235

S.W.3d 772, 778 (Tex. Crim. App. 2011); see also Jackson v. Virginia, 443 U.S. 307

(1979); Acosta v. State, 429 S.W.3d 621, 624–25 (Tex. Crim. App. 2014). The factfinder has the

duty to resolve conflicts in the testimony, weigh the evidence, and draw reasonable inferences

from basic facts to ultimate facts. Clayton, 235 S.W.3d at 778. As a result, we determine

whether the necessary inferences are reasonable based upon the combined and cumulative force

of all the evidence when viewed in the light most favorable to the verdict. Id. When the record

supports conflicting inferences, we presume the factfinder resolved the conflicts in favor of the

verdict and therefore defer to that determination. Id. Direct and circumstantial evidence are

treated equally: circumstantial evidence is as probative as direct evidence in establishing the guilt

of an actor, and circumstantial evidence alone can be sufficient to establish guilt. Id.

        Appellant contends the City had no proof that any specific item “accumulated or

remained” on the property as alleged in the nuisance complaint or was openly stored “for a

continuous period in excess of twenty-four (24) hours” as alleged in the open storage complaint.

Appellant argues that because the City introduced photographic evidence from only a single date,

                                                –4–
December 15, 2014, and Daniel provided only general descriptions of items observed in August

2014, there is insufficient evidence for the City to have proven specific items had remained or

were stored for longer than twenty-four hours. Appellant’s argument assumes the City had to

prove specific items remained on the property or were stored on the property for more than

twenty-four hours. Appellant does not provide any authority for the requirement he proposes.

         In the nuisance complaint, the City charged appellant with having allowed trash and

debris to accumulate and remain on the property in a manner injurious to the public health.

Daniel testified that many of the items he observed in appellant’s yard in August and on

December 15, 2014, could hold or retain water and that such accumulations of water in debris in

residential areas endangered the health of the public. Some of the items he identified as capable

of accumulating water were one or more tarps, boxes, and plastic containers. Daniel also

testified that the mass of accumulated items could harbor vermin and identified the stack of fence

sections leaning against the house and a pile of wood as two specific locations where that could

occur.

         In the open-storage complaint, the City charged appellant with storing outdoors items not

suitable to be stored or used outdoors that could be seen from the public right-of-way. The

evidence of such items included the bedframe, indoor bird cage, leather ottoman, and other

furniture. Although some of these items were photographed from the neighbor’s yard, Daniel

testified the items in the side-yard could be seen from the street.

         Daniel estimated that on December 15, 2014, the accumulated items still occupied fifty

percent of the lot. Although appellant testified he spent more than 300 hours to get his yard

ready to pass inspection, the evidence showed that numerous items and debris remained on his

property at the time the citations were issued. Pictures of the front-, side-, and backyards full of

items were admitted by both the prosecution and defense, and Daniel and appellant testified to

                                                 –5–
their observations of many of the items depicted in the photographs. There was sufficient

evidence from which a rational jury could decide appellant’s accumulation of items in his yard

violated the ordinances as charged. We overrule appellant’s second issue.

                                              III.
                                        Double Jeopardy

       In his third issue, appellant challenges his convictions as violating the Double Jeopardy

Clause because both convictions were for the same conduct and the charging instrument required

proof of the same elements to constitute the offenses.

       The Fifth Amendment’s Double Jeopardy Clause states that no person shall “be subject

for the same offence to be twice put in jeopardy of life or limb.” U.S. CONST. amend. V. The

Double Jeopardy Clause, made applicable to the states through the Fourteenth Amendment,

protects an accused against a second prosecution for the same offense after acquittal, a second

prosecution for the same offense after conviction, and multiple punishments for the same

offense. Brown v. Ohio, 432 U.S. 161, 165 (1977); Evans v. State, 299 S.W.3d 138, 140–41

(Tex. Crim. App. 2009).

       To determine if an accused received multiple punishments for the same offense, as

appellant alleges here, courts use the “same elements” or “Blockburger test.” See Blockburger v.

United States, 284 U.S. 299 (1932). The Blockburger test provides that, where the same act or

transaction constitutes a violation of two distinct statutory provisions, the test to be applied to

determine whether there are two offenses or only one is whether each provision requires proof of

an element which the other does not. Id. at 304. In Texas, the Blockburger analysis is expanded

even further by holding that double jeopardy occurs even when offenses that have differing

elements under Blockburger are alleged in the indictment to have been committed on the same

facts. Bigon v. State, 252 S.W.3d 360, 370 (Tex. Crim. App. 2008).



                                               –6–
       Appellant argues the two offenses as charged have the same elements and involve the

same conduct. The City’s amended complaint in the nuisance case alleged appellant violated the

nuisance ordinance by:

       unlawfully allow[ing] trash and debris to accumulate and remain on property . . .
       in such a manner as to be offensive or injurious to the public health, to-wit:
       lumber, furniture and other miscellaneous items not customarily stored outside.

In the open storage complaint, the City alleged appellant violated the open storage ordinance by:

       unlawfully and knowingly permit[ing] storage of items which were not
       customarily used or stored outside and/or which were not made of a material
       resistant to damage or deterioration from exposure to the outside environment in
       the front yard, carport, unenclosed front porch, driveway or open and unenclosed
       area visible from the public right of way of a residential district . . . for a
       continuous period in excess of twenty-four (24) hours.

Appellant argues that both charged offenses required proof that he left (“accumulate and remain”

or “permit storage”) outside in his yard items that were “not customarily stored outside” (or “not

customarily used or stored outside”). Appellant further argues that “offensive or injurious to the

public health” (nuisance) has the same meaning as “were not made of a material resistant to

damage or deterioration from exposure to the outside environment” (outdoor storage).

       Appellant’s argument fails for several reasons. First, appellant overlooks the fact that in

the outdoor storage charge, the phrase “not made of a material resistant to damage or

deterioration from exposure to the outside environment” is an alternative to “not customarily

used or stored outside.” So the charging instrument states the meaning of the phrase simply to

specify how one can determine whether an item is an indoor or outdoor item. Second, there was

no evidence that every item that would degrade outdoors would become a public health hazard.

So the two categories of items are not equivalent. Third, the outdoor storage complaint requires

the items in the yard to be visible from a public right-of-way; the amended nuisance complaint

makes no such allegation. As a result, the amended nuisance complaint applied to items in the

backyard not visible from the street in front of appellant’s residence if those items were offensive

                                                –7–
or injurious to the public health. The outdoor storage complaint, on the other hand, did not apply

to items in the backyard that were not visible from the street. Although both ordinances applied

to items in the side- and front-yards and driveways, different items could violate one ordinance

and not the other.

       Daniel testified the pile of wood in the backyard could harbor vermin and there were

numerous items in the back yard that could retain water and would thereby be injurious to the

public health. Similarly, he identified many items in the side- and front-yards and driveway that

he testified were injurious to the public health for the same reasons (stacked fence sections in the

side-yard; various objects throughout that could retain water). Daniel also identified items in the

side- and front-yards and driveway that were visible from the street and not made to be stored or

used outdoors (items of indoor furniture, store fixture rack, bedframe, and artificial Christmas

trees). Neither ordinance alone would have required appellant to clean up all the items in his

yard. The offenses as charged have different elements, so the Double Jeopardy Clause is not

violated. We overrule appellant’s third issue.

                                                IV.
                                         Illegal Sentence

       In his first issue, appellant argues his sentence of a $2000 fine exceeded the amount

permitted by Texas law because the City failed to charge and prove a mental state as part of the

amended nuisance complaint. He argues the maximum fine was limited to $500. We agree.

       An illegal sentence is one that is not authorized by law. See Ex parte Parrott, 396

S.W.3d 531, 534 (Tex. Crim. App. 2013). A sentence that is outside the range of punishment

authorized by law is considered illegal. See id. A fine outside the range authorized by law is an

illegal sentence. See Ex parte Pena, 71 S.W.3d 336, 336 n.2 (Tex. Crim. App. 2002) (“had the

jury assessed Mr. Pena a $20,000 fine, that sentence would be void and illegal because Texas

statutes only permit a maximum of a $10,000 fine”); Ex parte Hernandez, 698 S.W.2d 670, 670–
                                                 –8–
71 (Tex. Crim. App. 1985) (sentence of fine void because act in effect at time of sentencing did

not authorize fine); Harris v. State, 670 S.W.2d 284, 285 (Tex. App.—Houston [1st Dist.] 1983,

no pet.) (although not raised by defendant, court of appeals can take notice of illegal sentence

which exceeds statutory maximum and “has the power to reform and correct judgments and

hereby does so by striking the requirement that appellant pay a fine as part of his punishment in

this case”); Figueroa v. State, No. 01-11-01115-CR, 2013 WL 177409, at *10 (Tex. App.—

Houston [1st Dist.] Jan. 17, 2013, no pet.) (mem. op., not designated for publication) (omission

of any fine when statute required fine in conjunction with sentence of confinement is an illegal

sentence). A defendant may obtain relief from an unauthorized sentence on direct appeal or by a

writ of habeas corpus. See Mizell, 119 S.W.3d at 806. An illegal sentence cannot be waived and

may be challenged at any time. See Ex parte Pena, 71 S.W.3d at 339; see also Baines v. State,

418 S.W.3d 663, 674 (Tex. App.—Texarkana 2010, pet. ref'd). This is because “no court in this

state could assess a punishment that the law does not authorize.” Simmons v. State, 602, 245

S.W.2d 254, 255 (1952).

       A culpable mental state is required for municipal offenses that impose a fine in excess of

$500. See TEX. PENAL CODE ANN. § 6.02(f) (West 2011) (“An offense defined by municipal

ordinance or by order of a county commissioners court may not dispense with the requirement of

a culpable mental state if the offense is punishable by a fine exceeding the amount authorized by

Section 12.23.”); id. § 12.23 (“An individual adjudged guilty of a Class C misdemeanor shall be

punished by a fine not to exceed $500.”); see also BCCA Appeal Grp., Inc. v. City of Houston,

No. 13-0768, 2016 WL 1719182, at *6 (Tex. Apr. 29, 2016) (culpable mental state is required to

secure a conviction for a municipal ordinance punishable by a fine exceeding $500). The

nuisance complaint did not allege any mental state nor did the nuisance charge include any




                                              –9–
mental state.3 The jury’s conviction, therefore, did not include a finding of any culpable mental

state on appellant’s part.

         The City’s entire response focuses on appellant’s failure to raise this issue in the charge

conference, raising it for the first time in his motion for new trial. But appellant’s sentence of a

$2000 fine was not authorized by law and is not subject to waiver. See Ex parte Parrott, 396

S.W.3d at 534 (illegal sentence is one not authorized by law); Ex parte Pena, 71 S.W.3d at 336,

339 n.2 (fine outside range is illegal sentence which can be raised at any time and cannot be

waived); see also Ex parte McCuin, Nos. WR-82,096-01, 2016 WL 3442276, at *2 (Tex. Crim.

App. June 22, 2016) (“Illegal sentences may be challenged at any time.”).

         This Court has no authority to reform an illegal or void sentence by adding a punishment

of any amount, “even in the interest of judicial economy and fairness or even if the addition is de

minimis.” Ibarra v. State, 177 S.W.3d 282, 284 (Tex. App.—Houston [1st Dist.] 2005, no pet.)

(citing Scott v. State, 988 S.W.2d 947, 948 (Tex. App.—Houston [1st Dist.] 1999, no pet.) and

    3
       In our discussion of appellant’s double-jeopardy issue, we quoted the relevant portion of the amended
nuisance complaint. The jury charge in the nuisance case provided the following abstract and application
instructions:
         1. The Code of Ordinance of City of Richardson, states that a nuisance includes, but is not limited
         to, whatever is dangerous to human life or health, whatever renders the ground, the water, the air
         or the food a hazard or injurious to human life or health or that is offensive to the senses or that is
         or tends to become detrimental to the public health. Section 14-2(10) provides that the allowing of
         paper, lumber, rocks, junk or other trash or debris to accumulate or remain on any piece of
         property in such a manner as to create a harborage or breeding place for rats, vermin or insects, or
         in such a manner as to be offensive or injurious to the public health or unpleasant and disagreeable
         in sight or odor to persons residing or occupying any adjacent premises, to persons who may be in
         a public place or public right-of-way, or to persons who file an official complaint with the city, is a
         nuisance. A person guilty of this offense shall be punished by a fine of not less than $1.00, nor
         more than $2000.00.
         2. If you believe beyond a reasonable doubt that the Defendant did, in the City of Richardson,
         DALLAS County, Texas, on or about the 15th day of DECEMBER, 2014, unlawfully allow trash
         and debris to accumulate and remain on property within the territorial limits of the City of
         Richardson, DALLAS County, Texas, to wit: [appellant’s address] LUMBER, FURNITURE
         AND OTHER MISCELLANEOUS ITEMS NOT CUSTOMARILY STORED OUTSIDE, in such
         a manner as to be offensive or injurious to the public health, you will find the Defendant guilty
         and assess a fine of not less than $1.00, nor more than $2000.00. If you do not so believe, or have
         a reasonable doubt thereof, you will acquit the Defendant and say by your verdict “Not Guilty.”
(Strikeout in original).


                                                         –10–
Reed v. State, 795 S.W.2d 19, 19–21 (Tex. App.—Houston [1st Dist.] 1990, no pet.)). The only

remedy is a new punishment hearing. See TEX. CODE CRIM. PROC. ANN. art. 44.29(b) (West

Supp. 2015); Ibarra, 177 S.W.3d at 284; Scott, 988 S.W.2d at 948.

       We sustain appellant’s first issue.

                                                V.
                                             Conclusion

       We affirm the county criminal court of appeals’s judgment in Cause No. MC15R0006D

(Richardson Municipal Court Cause No. N0800561B, outdoor-storage case). We affirm the

conviction in Cause No. MC15R0005D (Richardson Municipal Court Cause No. N0800561A,

nuisance case), but we reverse appellant’s $2000 fine and remand the nuisance case to the trial

court for a new punishment hearing. See Donaldson v. State, 476 S.W.3d 433, 440 (Tex. Crim.

App. 2015) (reversing judgment of appeals court affirming illegal sentence and remanding to

trial court for new punishment hearing).



                                                      /David Evans/
                                                      DAVID EVANS
                                                      JUSTICE
Publish
TEX. R. APP. P. 47
151205F.P05




                                               –11–
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

TIMOTHY O’REILLY, Appellant                        On Appeal from the County Criminal Court
                                                   of Appeals No. 1, Dallas County, Texas
No. 05-15-01205-CR        V.                       Cause No. MC15R0005
                                                   Opinion delivered by Justice Evans, Justices
THE STATE OF TEXAS, Appellee                       Bridges and Richter participating.

       Based on the Court’s opinion of this date, we AFFIRM that part of the county criminal
court of appeals’ judgment affirming appellant’s conviction in Richardson Municipal Court
Cause No. N0800561A, but we REVERSE that part of the county criminal court of appeals’s
judgment affirming appellant’s $2000 fine. We REMAND the cause to the Richardson
Municipal Court of Record in Dallas County, Texas, for a new punishment hearing.


Judgment entered this 26th day of August, 2016.




                                            –12–
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

TIMOTHY O’REILLY, Appellant                          On Appeal from the County Criminal Court
                                                     of Appeals No. 1, Dallas County, Texas
No. 05-15-01206-CR         V.                        Cause No. MC15R0006D
                                                     Opinion delivered by Justice Evans, Justices
THE STATE OF TEXAS, Appellee                         Bridges and Richter participating.

       Based on the Court’s opinion of this date, the judgment of the county criminal court of
appeals is AFFIRMED.


Judgment entered this 26th day of August, 2016.




                                              –13–
