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 information with the misdemeanor offense

of illegal dumping of litter or other solid waste weighing more than five pounds but less than five

hundred pounds. The trial court found appellant guilty as charged and sentenced him to twenty

days’ confinement in the county 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. TEX. R. APP. 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
officer, Gensler enforces the city’s municipal codes pertaining to high weeds, litter, and things of

that nature. When Gensler arrived at the property, 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 Police Department, 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 property, 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.

Appellant was sitting in a lawn chair in the front yard and several police officers were talking to

him. Gensler could not hear what the officers were saying; however, as Gensler watched

Sergeant Hermes talking to appellant, appellant became upset and began grabbing and throwing

items around the front yard.      Appellant yelled at the police and compliance officers and

demanded their names. According to Gensler, appellant 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,

shattering 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 Riebschlager—were sent to 720 Paint Creek, Murphy, Texas.

When he arrived at the property, Hermes saw several individuals in the front yard. Appellant

was sitting in a lawn chair; appellant’s sons and friends were standing nearby. Hermes also

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observed furniture, boxes, and debris in the front yard, the sidewalk, and the roadway. Hermes

informed appellant that his items needed to be removed immediately because they were

obstructing a public sidewalk and roadway. Appellant told Hermes to just give 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 appellant 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, appellant 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, shattering glass across the sidewalk and into

the road. At that point, Hermes 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 the 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.

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           After a bench trial, the trial 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 place 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 weighing 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. 2014).

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. 2013).

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.” TEX. HEALTH & SAFETY CODE ANN.

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 5828002, 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 TEX. CODE CRIM. P. ANN. art. 11.072, § 2(b)(1) (West Supp.
2014). On January 21, 2014, the trial court signed an order granting appellant’s application for writ of habeas corpus and granting appellant thirty
days within which to file a motion for new trial or a notice of appeal. On February 20, 2014, appellant filed a motion for new trial and a notice of
appeal.



                                                                       –4–
§ 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 “dispose” and “dump” mean to discharge, deposit, inject, spill, leak, or place litter on

or into land or water. TEX. HEALTH & SAFETY CODE ANN. § 365.011(5) (West 2010). The

statute 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 conviction 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 shows 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 solid waste. Appellant refers to the

statutory definition of “litter” in section 365.011(6) and acknowledges that the definition of

“litter” includes nondecayable solid waste such as furniture.         See id.    With respect to the

definition of “solid waste,” appellant notes that “solid waste” has the meaning assigned by

section 361.003. See id. § 365.011(9). Appellant asserts that “none of that definition includes

the items on front lawn where Appellant was arrested by the police.” However, appellant does

not provide citation to authorities or discussion in support of his assertion.

       According to section 361.003(34), “solid waste” means, among other things, rubbish

which consists of:

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       (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
       incinerator temperatures (1,600 to 1,800 Fahrenheit).

TEX. HEALTH & SAFETY CODE ANN. § 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, we conclude the evidence was sufficient to

establish that there were items covering the front yard, sidewalk, 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 contends 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 notice 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
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record, we conclude the evidence was sufficient to 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 TEX. HEALTH & SAFETY CODE ANN. § 365.012(a), (e).

       Finally, appellant argues that even 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

section 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 TEX. HEALTH & SAFETY CODE ANN. § 365.012(l). However,

appellant was not charged with allowing litter to accumulate on his own land, and the 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.

ref’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 appellant with a potential defense for the items 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 generated as a result of an activity related to a
       commercial purpose;
                                               –7–
        (3) the disposal occurs on land the individual owns; and
        (4) the disposal is not for a commercial purpose.

TEX. HEALTH & SAFETY CODE ANN. § 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 conclude 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. We overrule appellant’s sole issue.

                                      IV. CONCLUSION

        Having overruled appellant’s sole issue, we affirm the trial court’s judgment.




                                                     /Ada Brown/
                                                     ADA BROWN
                                                     JUSTICE

Do Not Publish
TEX. R. APP. P. 47

140216F.U05




                                               –8–
                                       S
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

NATHAN EARL BURGESS, Appellant                     On Appeal from the County Court at Law
                                                   No. 1, Collin County, Texas
No. 05-14-00216-CR        V.                       Trial Court Cause No. 001-86625-2012.
                                                   Opinion delivered by Justice Brown. Justices
STATE OF TEXAS, Appellee                           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.




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