AFFIRM; and Opinion Filed March 27, 2019.




                                             In The
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      No. 05-18-00133-CR

                               ESTEBAN GARCIA, Appellant
                                          V.
                              THE STATE OF TEXAS, Appellee

                      On Appeal from the 366th Judicial District Court
                                   Collin County, Texas
                          Trial Court Cause No. 366-83445-2016

                             MEMORANDUM OPINION
                        Before Justices Whitehill, Molberg, and Reichek
                                  Opinion by Justice Molberg
       A jury convicted Esteban Garcia of illegal dumping in violation of the Texas Litter

Abatement Act, TEX. HEALTH & SAFETY CODE ANN. §§ 365.001–.035 (the TLAA).                The trial

court assessed punishment of two years’ confinement in a state jail facility, suspended imposition

of the sentence, and placed Garcia on community supervision for two years. In one point of error,

Garcia argues the evidence is insufficient to support the conviction. We affirm the trial court’s

judgment.

                                          Background

       On April 26, 2016, Charles Sibley, an environmental crimes investigator for the Collin

County Sheriff’s Office, was on patrol near Garcia’s property at 248 FM 547. Sibley testified

there is a “brick home with a yard” on Garcia’s property and there are houses on each side of the
property. Sibley saw a “large amount of waste fence panels,” seven “lead acid batteries,” and two

car engines “thrown everywhere” in the yard of Garcia’s property. In Sibley’s opinion, these items

were “litter” or “solid waste.” Garcia’s property is not an approved waste disposal site.

            According to Sibley, fence panels such as the ones on Garcia’s property are removed in

sections when a new fence is installed and the removed panels are “considered a waste product of

the fencing industry.” Sibley testified there were over 100 fence panels on the property. Sibley

took a number of photographs of Garcia’s property.1 As relevant to this appeal, the photographs

depicted piles of fence panels and scrap wood.2




     1
         Several of these photographs are set out below.
      2
        Because Garcia’s conviction may be affirmed based on the disposal of the fence panels and scrap wood on his property, we need not address
the lead acid batteries or the car engines observed by Sibley. See TEX. R. APP. P. 47.1.

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–3–
       Sibley did not weigh the fence panels on Garcia’s property, but had previously weighed

similar fence panels. Based on his experience, Sibley believed the approximate weight of each

panel was sixty pounds. In Sibley’s opinion, the fence panels on Garcia’s property weighed over

200 pounds.

       Sibley spoke with Garcia, who indicated the fence panels were from his fencing business.

Garcia told Sibley that he brought the fence panels and other wood to the property in order to sell

the usable wood. Sibley testified salvaging the usable wood for resale would be a “commercial

purpose.”

       Garcia also told Sibley the material had accumulated to the point that it was too much waste

for him to haul off, and his wife was upset with him for “making such a mess.” Garcia agreed to

clean up the yard within thirty days. Sibley drove by Garcia’s property on May 7, 2016, and noted

the property had not been cleaned up and it looked as if more material had been brought to the

property.

       On June 12, 2016, Sibley saw Garcia pull a trailer loaded with waste fence panels onto his

property. Sibley asked Garcia why he was bringing the fence panels to the property, and Garcia

said that he was in the fencing business. Sibley again told Garcia that he needed to clean up the
                                               –4–
property, and Garcia said he would take the fence panels to the landfill the following Monday.

Sibley drove past Garcia’s property on June 29, 2016, and observed the trailer full of fence panels

was still on the property. Further, it appeared none of the original items had been removed and

more items had been brought to the property.

       Sibley agreed it was not illegal to own new or usable fence panels with the intent to build

a fence on your property and that Garcia indicated “on one occasion” that he intended to use the

fence panels to build a fence around the property. However, according to Sibley, a “lot” of the

panels on Garcia’s property were “damaged or rotten” and were scrap wood. Sibley drove by

Garcia’s property on January 7, 2018, which was the day prior to trial, and noted there were still

fence panels and debris “everywhere” on the property. Sibley did not observe that a fence was

being constructed on the property.

       Stephanie Strickland, an investigator with the Collin County District Attorney’s Office,

testified she drove by Garcia’s property on January 2, 2018. Strickland saw fence panels and other

debris on the property, but did not observe a fence being constructed on the property.

       Garcia testified he was semi-retired from construction work, and received the fence panels

from friends who owned fence companies. Garcia denied telling Sibley that he was planning to

resell the wood or that he would clean up the property within thirty days. Garcia did not consider

the fence panels to be “litter” or “junk,” and intended to use wood from the fence panels to build

a fence around his property. This required him to tear apart the fence panels and remove the rotten

parts. His progress on the fence was slow because he was doing the work himself. At the time of

trial, he had built approximately ten or fifteen feet of fence using wood from the panels. The jury

viewed a photograph of the fence Garcia built on the property.

       Garcia knew an individual who had been convicted of illegal dumping. He testified he had

been unaware of that individual’s conduct and denied being in “cahoots with those guys.” Sibley

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testified Garcia was seen at the illegal dump site standing beside a truck loaded with fence panels.

After the illegal dump site was shut down, fence panels started accumulating on Garcia’s property.

According to Sibley, by seeking to avoid the payment of landfill fees, Garcia was disposing of the

fence panels for a “commercial purpose.”

        The jury found Garcia guilty of illegal dumping. Both Garcia and the State agreed the trial

court could view Garcia’s property prior to imposing sentence. After viewing the property, the

trial court sentenced Garcia to two years’ confinement, suspended imposition of the sentence, and

placed Garcia on community supervision for two years.

                                        Standard of Review

        We review the sufficiency of the evidence under the standard set out in Jackson v. Virginia,

443 U.S. 307 (1979). Fernandez v. State, 479 S.W.3d 835, 837 (Tex. Crim. App. 2016). We

consider whether, after viewing all the evidence in the light most favorable to the verdict, any

rational trier of fact could have found the essential elements of the offense beyond a reasonable

doubt. Jackson, 443 U.S. at 319; Zuniga v. State, 551 S.W.3d 729, 732 (Tex. Crim. App. 2018).

We must “defer ‘to the responsibility of the trier of fact fairly to resolve conflicts in the testimony,

to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.’”

Zuniga, 551 S.W.3d at 732 (quoting Jackson, 443 U.S. at 319). When there is conflicting evidence,

we presume the factfinder resolved the conflict in favor of the verdict and defer to that resolution.

Id. at 733. We may not substitute our judgment for the factfinder’s determinations of credibility.

Jackson, 443 U.S. at 319; Nisbett v. State, 552 S.W.3d 244, 262 (Tex. Crim. App. 2018) (“An

appellate court cannot act as a thirteenth juror and make its own assessment of the evidence.”).

        “Direct evidence and circumstantial evidence are equally probative,” Zuniga, 551 SW.3d

at 733, and circumstantial evidence alone may be sufficient to establish guilt, Nisbett, 552 S.W.3d

at 262; see also Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). “Each fact need not

                                                  –6–
point directly and independently to guilt if the cumulative force of all incriminating circumstances

is sufficient to support the conviction.” Nisbett, 552 S.W.3d at 262.

                                              Analysis

       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. TEX.

HEALTH & SAFETY CODE ANN. § 365.012(a). The offense is a state jail felony if the litter or solid

waste is disposed of for a commercial purpose and weighs 200 pounds or more.                        Id.

§ 365.012(g)(2). Garcia argues the evidence was insufficient to support his conviction because

there was no evidence (1) the items on his property were litter or solid waste, (2) of the weight of

the items identified as litter or solid waste, or (3) that he disposed of litter or solid waste for the

purpose of economic gain.

       Garcia first asserts the TLAA applies only to materials that are “waste,” “worn out,”

“discarded,” or “refuse,” and there was no evidence the items on his property fell within these

categories.   The TLAA prohibits the improper disposal of “litter” or “solid waste.”                Id.

§ 365.012(a). “Litter” includes both decayable waste and nondecayable waste. Id. § 365.011(6).

Combustible waste materials, including wood, and discarded building or construction materials

are “nondecayable waste.” Id. § 365.011(6)(B)(i), (iii). “Solid waste” includes rubbish and

discarded material from commercial operations. Id. §§ 361.003(34), (35); 365.011(9) (“solid

waste” under TLAA has the meaning assigned by section 361.003 of the Solid Waste Disposal

Act). “Rubbish” is “nonputrescible solid waste,” including combustible waste materials such as

wood. Id. § 361.003(31)(A).

       Sibley testified the items on Garcia’s property included fence panels and scrap wood.

According to Sibley, the fence panels were damaged and rotten, were from fences that had been

torn down, and constituted a “waste product of the fencing industry.” In Sibley’s opinion, the

                                                 –7–
fence panels were “litter” or “solid waste.” The jury also viewed photographs of the type, amount,

and condition of the fence panels and scrap wood scattered and piled on Garcia’s property. We

conclude there was sufficient evidence for a rational juror to find beyond a reasonable doubt that

the fence panels and scrap wood on Garcia’s property constituted “litter” or “solid waste” as

defined by the TLAA.

          Garcia next argues there was insufficient evidence of the weight of the litter or solid waste

on his property to establish he committed a state jail felony. Under the indictment, the State was

required to prove the litter or solid waste on Garcia’s property weighed 200 pounds or more.

Assuming the jury could not reasonably infer from the photographs alone that there was more than

200 pounds of fence panels on the property, Sibley testified that, in his opinion, the fence panels

on Garcia’s property weighed over 200 pounds.3 Sibley also testified there were over 100 fence

panels on Garcia’s property, and the photographs viewed by the jury corroborated Sibley’s

testimony as to the number of fence panels on the property. Sibley did not weigh the fence panels

on Garcia’s property. However, he has weighed similar panels in the past, and the average weight

of a panel is sixty pounds. A simple multiplication establishes the fence panels on Garcia’s

property weighed over 600 pounds. We conclude there was a sufficient evidence for a rational

juror to find beyond a reasonable doubt that there was more than 200 pounds of litter or solid waste

on Garcia’s property.

          Finally, Garcia contends there was insufficient evidence he disposed of the litter or solid

waste for economic gain. As charged in the indictment, the State was required to prove Garcia

disposed of the litter or solid waste for a commercial purpose. See id. § 365.012(g)(2). A

“commercial purpose” means the “purpose of economic gain.” Id. § 365.011(3).



      3
        See Wilson v. State, No. 05-17-00776-CR, 2018 WL 6187435, at *5 (Tex. App.—Dallas Nov. 27, 2018, no pet.) (mem. op., not designated
for publication) (“[A]n officer’s estimate of weight is evidence that the trial court could have considered.”).

                                                                  –8–
       Garcia testified he intended to use wood from the fence panels to construct a fence around

his property. However, both Sibley and Strickland drove by Garcia’s property shortly before trial

and did not see any fence construction. Further, according to Sibley, Garcia said he intended to

sell any usable wood from the fence panels. Finally, Sibley told the jury that Garcia had been seen

at another illegal dump site standing by a truck containing fence panels. After that illegal dump

site was shut down, fence panels began accumulating on Garcia’s property. Sibley testified that

either salvaging the fence panels to sell the usable wood or attempting to avoid disposal fees at a

licensed waste facility constituted a commercial purpose.

       The jury, as the sole judge of the evidence and the credibility of the witnesses, could choose

to believe Sibley and Strickland and disbelieve Garcia. See Zuniga, 551 S.W.3d at 732. We may

not substitute our judgment for that of the jury. See Nisbett, 552 S.W.3d at 262. We conclude

there was sufficient evidence for a rational juror to find beyond a reasonable doubt that Garcia

disposed of litter or solid waste for purpose of economic gain.

       We resolve Garcia’s point of error against him and affirm the trial court’s judgment.




                                                   /Ken Molberg/
                                                   KEN MOLBERG
                                                   JUSTICE

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

180133F.U05




                                                –9–
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

 ESTEBAN GARCIA, Appellant                         On Appeal from the 366th Judicial District
                                                   Court, Collin County, Texas,
 No. 05-18-00133-CR        V.                      Trial Court Cause No. 366-83445-2016.
                                                   Opinion delivered by Justice Molberg,
 THE STATE OF TEXAS, Appellee                      Justices Whitehill and Reichek
                                                   participating.

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


Judgment entered this 27th day of March 2019.




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