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COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
 




 
GLORIA
  ROMERO,
 
                            Appellant,
 
v.
 
THE STATE OF TEXAS,
 
                            Appellee.


 
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No. 08-03-00124-CR
 
Appeal from the
 
County Criminal Court at Law No. 1
 
of El Paso County, Texas
 
(TC# 20010C01363)




 
MEMORANDUM
OPINION
Gloria Romero appeals her conviction
for illegal dumping in violation of the Texas Health and Safety Code.  In three points of error she challenges the
legal and factual sufficiency of the evidence against her, and alleges her
Constitutional right against Double Jeopardy was violated.  We affirm.
Factual Summary




On January 14, 2000, in response to a
complaint, the City of El Paso issued a written notice of violation to Romero
for illegally storing construction debris on her property at 4806 Titanic in
Northeast El Paso.  In February, the
condition of debris was unchanged, and Romero was charged with local zoning and
debris violations in municipal court. 
The dates alleged in the two counts charged were for violations on
February 19, 2000.  Meanwhile,
investigators with the Texas Commission on Environmental Quality[1]
began their own investigation of the debris. 
They witnessed an eighteen-wheeler dump truck
illegally unloading demolition debris inside the lot, which was enclosed by a
locked fence.  They also saw six closed
trailers on the property.  On January 10,
2000, Romero gave inspectors written consent to inspect the contents of the
trailers, and they discovered commercial building and demolition
materials.  Although Romero told
investigators she planned to build a nursing home on the property, they
determined the debris could not have been used for construction.
A
municipal court trial on October 27, 2000 resulted in a guilty verdict on both
charges, and the court ordered Romero to pay $750 in fines for each
offense.  In November 2002, the State
charged Romero, in an amended information, with
violations of the Texas Health and Safety Code section 365.012, specifically,
that:
 
(O)n or
about November 27, 2000, and before the filing of this information, in said
county of El Paso, State of Texas, Gloria Romero did then and there
intentionally, knowingly and recklessly dispose or allow or permit the disposal
of litter or other solid waste, to wit: 
construction debris, asphalt and wrought iron, and said litter or other
solid waste did have a volume of more than 100 cubic feet and had a weight of
more than 500 pounds, at a place that is not an approved solid waste site, to
wit:  4806 Titanic in El Paso County, Texas
in violation of Texas State law Section 365.012 V.T.C.A. Health and Safety
Code.
 




At trial, the court denied Romero=s request for an instructed verdict
of acquittal based on legal and factual insufficiency, and she was found
guilty.
The Evidence is Factually
and Legally Sufficient




In her first two points of error,
Romero alleges the evidence is not legally or factually sufficient to support
the verdict.  In reviewing legal
sufficiency, this Court must review all of the evidence in the light most
favorable to the verdict to decide whether a rational trier
of fact could have found the elements of the alleged offense beyond a
reasonable doubt.  Jackson
v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781,
2789, 61 L.Ed.2d 560 (1979); Davila v. State, 930 S.W.2d 641, 644 (Tex.
App.--El Paso 1996, pet. ref=d).  A determination that the evidence is legally
insufficient means that the case should never have been submitted to the jury.  Clewis v. State, 922 S.W.2d 126, 132-33
(Tex. Crim. App. 1996).  In reviewing the factual sufficiency of the
evidence, the court of appeals must view Aall the evidence without the prism of
>in the light most favorable to the
prosecution.= . . . [and]
set aside the verdict only if it is so contrary to the overwhelming weight of
the evidence as to be clearly wrong and unjust.@ Clewis,
922 S.W.2d at 129.  
However, an appellate court must defer to a jury=s findings and cannot reverse
just because it disagrees with it.  Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim.
App. 1997).   A finding of factual
insufficiency may be made only where it is necessary to prevent a manifest
injustice, and even then a detailed explanation of the finding must be
provided.  Id.;
Johnson v. State, 23 S.W.3d 1, 9 (Tex. Crim. App.
2000).  After a neutral review of
all of the evidence, both for and against the finding, the appellate court must
determine if Athe proof of guilt is so obviously
weak as to undermine confidence in the jury=s determination, or the proof of
guilt, although adequate if taken alone, is greatly outweighed by contrary
proof.@ 
Johnson, 23 S.W.3d at 11.
The State in its brief alleges it was
not required to prove a culpable mental state under Texas Health and Safety
Code section 365.012(n).  It is true that
the current version of Subsection (n) negates the need for proof of a culpable
mental state, thus making illegal dumping a strict liability crime, as of
September 1, 2001.  Tex. Health & Safety
Code Ann. '
365.012(n) (Vernon Supp. 2004).  However, the complaint against Romero was
filed in February 2001.  The information
against her, filed at the same time, alleges the dumping occurred on or about
November 27, 2000.  Therefore, subsection
(n) does not apply in this case.  Even
so, the code provisions that were in effect at the time of the alleged crime
impose merely a reckless mental state, and we find the State proved that
element.  There was evidence that Romero
knew of the illegal dumping, and allowed it to continue, for almost a year
before the date alleged in the information. 
She never cleaned it up before the state charges were brought.  We find her behavior in allowing the waste to
remain on her property and even allowing further dumping after receiving notice
that it was a violation constitutes evidence of a reckless mental state.




Romero argues there was no testimony
from anyone who actually saw her dumping the waste.  The State counters the crime charged does not
require that Romero actually placed the litter on her property, only that she
was reckless in allowing the litter to be placed there.  We agree. 
Romero admitted she had a business relationship with the person who
actually dumped the waste, John Rayas.  She claimed she had no knowledge of the
dumping, but the record shows she was on notice that she was in violation of
the law by allowing her property to be used as an illegal waste site at least
by January of 2000.  She revisited the
property in March of 2000 and knew the illegal dumping was continuing, and
there was more waste on the property than there had been in January.  Although she testified she told Rayas to clean it up, she said she could do nothing more to
effectuate the clean up.  She also
testified that at the time of trial, she had paid to have the lot cleared of
the majority of the debris.  Nothing in
the record explains why she was unable to clean up her property before she was
charged, yet was able to clean it by the time of her second trial.  A review of the record reveals the proof of
guilt is not so obviously weak as to undermine confidence in the jury=s determination, nor was it
manifestly unjust.  The evidence is both
legally and factually sufficient to support the jury=s verdict.  Romero=s first and second points of error
are overruled.
There Were No Double Jeopardy
Implications




In her third point of error, Romero
alleges her conviction on the state offense following her conviction in
municipal court on a city code violation constitutes double jeopardy.  The Fifth Amendment of the U.S. Constitution
guarantees protection from prosecution twice for the same offense.  U.S.
Const. amend.
V.  The United States Constitution
applies to the states through the Fourteenth Amendment.  See U.S.
Const. amend. XIV, '
1.  In Blockburger
v. United States, the Supreme Court held that where the same conduct
violates two distinct penal provisions, the test of whether the two offenses
are the same is whether each provision requires proof of a fact that the other
does not. Blockburger v. United States,
284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306
(1932).  Under the Blockburger test, the two offenses for which Romero
was convicted each require a proof of fact the other does not.  The municipal court conviction was for zoning
and brush/rubbish violations, under chapter 9.04.340(C) of the El Paso
Municipal Code:
It is
unlawful for the owner, or any person having the right of possession of any
property within the city, or outside of but within five thousand feet of the
city limits, to accumulate or to permit the accumulation of garbage, rubbish,
junk, ashes, filth, waste paper, discarded handbills or advertising material,
weeds, brush, grass cuttings or other objectionable, unsightly or unsanitary
matter of any nature, nor shall such person accumulate or permit the
accumulation of such matter on the sidewalks, parkways, street gutters or
alleys abutting such property.  Any such
accumulation is declared to be a public nuisance, the prompt abatement of which
is deemed to be a public necessity.  El Paso Municipal Code Ch. 9.04.340(C)
(Ordinance 14719 extended the effective date of Ch. 9.04 to September 30,
2003).[2]
 
Romero=s October 27, 2000 conviction was for
acts on or about February of 2000.   The
City had to prove that on that date she owned the property,
that she accumulated or allowed the accumulation of waste, in an
objectionable, unsightly manner in a way that creates a public nuisance.  Id.




In contrast, Romero=s conviction here was for acts that
occurred on or about November of 2000. 
In that case, she was charged with violations of the state health and
safety code.  Chapter 365 of the Health
and Safety Code specifically addresses illegal dumping:
A person
commits an offense if the person 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. ' 365.012(a) (Vernon 2001).
 
The state charge also carries with it
a weight element, requiring the state to prove the amount of waste allegedly
dumped weighed more than 500 pounds and had a volume of more than 100 cubic
feet.  Tex.
Health & Safety Code Ann. ' 365.012(f)(1)
(Vernon 2001).  At trial, Romero
acknowledged differences between the state and city charges.  She admitted that the dates of the two
previously charged offenses were different from the charges being tried, and
even argued for the court to exclude the earlier convictions as irrelevant.
In reviewing this case in light of
the factors above, we find that the public nuisance and the illegal dumping
offenses stem from acts occurring on different dates and from regulatory
statutes which carry distinct elements that are not common to the charged
offenses.  The State was required to
prove facts in the second trial that were not a part of the first conviction.  Therefore, the offenses do not have a common
focus that would raise double jeopardy concerns.  Romero=s third point of error is overruled.




Conclusion
Having overruled all points of error,
we affirm the conviction.
 
                                                                         
SUSAN
LARSEN, Justice
February 26, 2004
 
Before Panel No. 4
Barajas, C.J., Larsen, and
McClure, JJ.
Barajas, C.J., not
participating
 
(Do Not Publish)
(Publish)




[1]Formerly known as the Texas Natural
Resources Conservation Commission.


[2]This
Court is unable to compare the two charging instruments, as the municipal court
charging instrument was never introduced as evidence, and as such is not a part
of the case record.  However, it is
sufficient for our purposes of double jeopardy review to compare the elements
of the two statutes.


