Opinion filed September 26, 2013




                                             In The


           Eleventh Court of Appeals
                                         __________
                                   No. 11-11-00257-CR
                                       __________

                   MICHAEL LAMAR MELLEN, Appellant

                                                V.

                        THE STATE OF TEXAS, Appellee

                        On Appeal from the 104th District Court
                                Taylor County, Texas
                            Trial Court Cause No. 17952B


                         MEMORANDUM OPINION
       The jury found Michael Lamar Mellen guilty of two counts of illegal
dumping: count one, a state jail felony for disposing of litter or waste, and count
two, a Class A misdemeanor, for transporting the waste.1 The trial court assessed
Appellant’s punishment at confinement for one year in a state jail facility and a


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        Appellant stipulated at trial that, if he was found guilty of a misdemeanor in count two, the
evidence would show it was a Class A misdemeanor.
$1,000 fine in count one and confinement for six months in the county jail and a
$500 fine in count two.         The trial court placed Appellant on community
supervision for two years and one year, respectively, with both sentences to run
concurrently. Appellant challenges the sufficiency of the evidence to support the
felony conviction; he also contends that the trial court erred when it admitted a
three-year-old photograph of his backyard at 1410 Ash in Abilene. We affirm.
                               I. The Charged Offenses
      The grand jury returned an indictment against Appellant for two felony
counts of illegal dumping because Appellant had placed a large pile of waste at
1431 Plum on or about June 15, 2009. See TEX. HEALTH & SAFETY CODE ANN.
§ 365.012 (West Supp. 2012). 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” or if he “transports litter or other solid
waste to a place that is not an approved solid waste site for disposal at the site.” Id.
§ 365.012(a), (c). The person commits a state jail felony offense if the litter or
solid waste weighs 1,000 pounds or more or has a volume of 200 cubic feet or
more. Id. § 365.012(g). A person commits a Class A misdemeanor if the litter or
solid waste weighs more than 500 pounds but less than 1,000 pounds or has a
volume of more than 100 cubic feet but less than 200 cubic feet. Id. § 365.012(f).
                              II. The Evidence at Trial
      Appellant, a 67-year-old disabled veteran and former Abilene City Council
candidate, testified at trial. He testified that he lives at 1410 Ash Street in Abilene
with his son. Appellant has lived in his home for thirty years; it is located directly
across the alley from 1431 Plum Street.          Appellant spoke with Officer Bill
Whitley, an environmental enforcement officer for the City of Abilene, on June 15,
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2009, about the appliance, trash, debris, litter, and other waste located behind 1431
Plum. When questioned by Officer Whitley about the waste pile, Appellant
admitted that he had placed a dishwasher near the waste pile but said that the other
waste was not his trash. Appellant later admitted that he had put some unbagged
waste in a nearby trash bin and that he had placed items on the waste pile.
      Appellant admitted that, when he spoke to Officer Whitley about properly
disposing of the waste pile or face charges for illegal dumping, he was upset and
told Officer Whitley that he had paid his solid waste bill and the City of Abilene
could come pick it up. Appellant also told Officer Whitley that the City of Abilene
was harassing him and had sent him letters about the waste and had told him to
clean up his yard. When Officer Whitley explained to Appellant that he either had
to remove the waste or arrange for the City of Abilene to pick it up, Appellant
demanded to speak with Officer Whitley’s sergeant or lieutenant about this
“police” harassment.
      Officer Whitley testified as to his version of the events. He testified that,
while he was performing his duties on June 15, 2009, he drove past the alley
between the 1400 blocks of Ash and Plum Streets and saw a gray pickup parked
next to a large pile of waste. He pulled into the alley and stopped behind the
pickup. Officer Whitley noticed that the back gate to 1410 Ash was open and that
a boy was in the yard. Officer Whitley asked the boy if his father was home, and
the boy went inside; Appellant came out of the house, visibly upset, and spoke
with Officer Whitley. Officer Whitley testified that Appellant admitted that the
trash, litter, and waste behind 1431 Plum was his trash, as was the dishwasher, and
that Appellant said he would call the city to pick it up when he was “ready to.”
      Officer Whitley called Solid Waste Services of the City of Abilene to see if
the waste pile could be reviewed for weight or pickup that day, but it was not


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possible. Before Officer Whitley left, he reminded Appellant to clean up the waste
pile.
        When he returned to his office, Officer Whitley wrote and mailed a certified
letter to Appellant in which he instructed Appellant to remove and dispose of all
solid waste behind 1431 Plum within ten days. Appellant received the letter.
        Later, Officer Whitley spoke to Randy Bailey, Residential Manager of Solid
Waste Services for the City of Abilene, about the waste pile; Bailey completed a
load review between June 15, 2009, and June 29, 2009. On June 29, 2009, Officer
Whitley checked to see if Appellant had removed the waste pile, but he had not; it
was still there.
        On July 1, 2009, the City of Abilene picked up the waste pile, but not at
Appellant’s request; Officer Whitley had contacted Solid Waste Services to meet
him there. Mark Walker, a City of Abilene employee, testified that his crew chief
or his supervisor had him pick up the waste pile. Walker picked it up and took it to
the Abilene Regional Landfill. Officer Whitley testified that he took “before-and-
after” photographs of the area. Officer Whitley testified that, by then, additional
waste had been added to the waste pile.
        Raymond Grothaus, an employee of Abilene Regional Landfill, testified that
waste is brought into the landfill by truck through one entrance, that it is weighed
and accounted for, and that a scale ticket is then issued for the load. He also
testified that the scales are registered and licensed annually with the Texas
Department of Agriculture and that a local company calibrates them twice a year.
Elizabeth Morales worked for the landfill as a “scales” clerk and screener, and she
testified that the scale ticket indicated the load was construction and debris. The
scale ticket indicated the net weight of the load was 3,080 pounds.         Walker
testified that the net weight of the waste load was 3,081.54 pounds.


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      Shawn Earl, a City of Abilene employee, testified that in 2006 she went to
1410 Ash and took a picture of the backyard. The picture showed some camper
trailers; a vehicle; some scattered lumber; and a small, plastic yellow child’s chair
in the backyard. Officer Whitley testified that, although there was some lumber
and a yellow child’s chair at the dump site when he returned on July 1, 2009, those
items had not been there on June 15, 2009. Officer Whitley testified that he was
not sure if the yellow chair in the two photographs was the same one.
                                III. Issues Presented
      Appellant has asserted two issues. The court frames the two issues:
            1.   Was there legally sufficient evidence for a rational jury to
      find beyond a reasonable doubt that Appellant disposed of 1,000
      pounds or more of solid waste at an unapproved site?

            2.     Did the trial court abuse its discretion when it admitted a
      three-year-old photograph of Appellant’s backyard as relevant to
      Appellant’s knowledge or intent?

                              IV. Standard of Review
      We apply the sufficiency standard outlined in Jackson and its progeny for
Appellant’s first issue. Jackson v. Virginia, 443 U.S. 307, 318 (1979); Brooks v.
State, 323 S.W.3d 893, 894 (Tex. Crim. App. 2010); Hooper v. State, 214 S.W.3d
9, 13 (Tex. Crim. App. 2007). We review all of the evidence admitted by both the
State and Appellant in the light most favorable to the jury’s verdict and decide
whether any rational jury could have found each element of the offense beyond a
reasonable doubt. Jackson, 443 U.S. at 319.
      We review a trial court’s decision to admit evidence under an abuse of
discretion standard and will not reverse that decision absent a clear abuse of
discretion. Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010);
Apolinar v. State, 155 S.W.3d 184, 186 (Tex. Crim. App. 2005); Montgomery v.


                                         5
State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991). A trial court abuses its
discretion only when its admissibility decision lies outside the zone of reasonable
disagreement. Apolinar, 155 S.W.3d at 186.
                            V. Discussion and Analysis
      A. Sufficiency of the Evidence
      At trial, Appellant challenged the State’s evidence as to the weight of the
waste. Appellant based his challenge on the load description, the “tare” weight,
and the failure to deduct the weight of fuel in the tank of the truck or the items in
the cab of the truck. Appellant also claimed that the trash was not his. Appellant
claimed that Officer Whitley misunderstood what he said because only the
dishwasher and some unbagged trash belonged to him. Appellant claimed at trial
that the waste pile was from a home demolition on 1441 Plum Street. However,
testimony from Greg Brown, the Geographic Information Systems (GIS) manager
for the City of Abilene, referenced aerial photographic maps of Ash and Plum
Streets taken in February 2009. The aerial photos depict that there was no house at
1441 Plum and no waste pile at 1431 Plum.
      The jury, as the trier of fact, is the sole judge of the credibility of the
witnesses and of the weight to be given to their testimony. TEX. CODE CRIM. PROC.
ANN. art. 36.13 (West 2007), art. 38.04 (West 1979). A jury may believe or
disbelieve all or any part of any witness’s testimony. Sharp v. State, 707 S.W.2d
611, 614 (Tex. Crim. App. 1986). We review the factfinder’s weighing of the
evidence and cannot substitute our judgment for that of the factfinder. Cain v.
State, 958 S.W.2d 404 (Tex. Crim. App. 1997). Due deference must be given to
the factfinder’s determination, particularly concerning the weight and credibility of
the evidence. Jones v. State, 944 S.W.2d 642 (Tex. Crim. App. 1996).
      Appellant conceded that he put the dishwasher in the pile. The jury heard
and saw evidence of the appearance of the yellow chair and lumber in the pile—
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things that, earlier, had been in the backyard of 1410 Ash. The jury also heard
evidence that the City picked up the waste pile and took it to Abilene Regional
Landfill and that the net weight of the waste was 3,080 pounds. We hold that,
under the evidence that we have outlined, a rational jury could have found beyond
a reasonable doubt that Appellant illegally dumped waste at an unapproved site in
an amount greater than 1,000 pounds.        The evidence supports a finding that
Appellant also committed the lesser included offense of transporting less than
1,000 pounds of waste to that same unapproved site. We hold that the State
presented sufficient evidence from which a rational jury could find beyond a
reasonable doubt that Appellant had illegally dumped waste in Taylor County,
Texas, on or about June 15, 2009, and that he was guilty of both the felony and
misdemeanor offenses. We overrule Appellant’s first issue.
      B. Admission of Photograph
      The State moved to introduce State’s Exhibit No. 31: a photograph from
2006 that Earl, a City of Abilene employee, had taken concerning an investigation
of code violations at 1410 Ash. Appellant objected under “relevance” and “unfair
prejudice” grounds; the trial court overruled those objections. The photograph of
Appellant’s backyard at 1410 Ash depicted a metal chain-link fence, a vehicle, two
camper trailers, some trash, scattered lumber, and a small yellow chair. On July 1,
2009, Officer Whitley had taken a picture of the waste pile at 1431 Plum that
showed some lumber and a yellow chair that had been added to the waste pile.
      The admissibility of a photograph is within the sound discretion of the trial
court. Ramirez v. State, 815 S.W.2d 636, 646–47 (Tex. Crim. App. 1991). If
verbal testimony of matters depicted in the photographs is admissible, the
photographs themselves are admissible. Id. Evidence is “relevant” that has “any
tendency to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would be
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without the evidence.” TEX. R. EVID. 401. But Rule 404 generally prohibits “the
circumstantial use of character evidence.” 1 Steven Goode et al., Texas Practice
Series: Guide to the Texas Rules of Evidence § 404.2 (3d ed. 2002). Although
relevant, evidence of other crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show that he acted in conformity therewith.
TEX. R. EVID. 404(b); Montgomery, 810 S.W.2d at 386. Evidence of other crimes,
wrongs, or acts may, however, be admissible if it has relevance apart from its
tendency to prove character conformity. Montgomery, 810 S.W.2d at 387; see
TEX. R. EVID. 404(b).
      Texas Rule of Evidence 403 favors admission of relevant evidence and
carries a presumption that relevant evidence will be more probative than
prejudicial.   Long v. State, 823 S.W.2d 259, 271 (Tex. Crim. App. 1991);
Montgomery, 810 S.W.2d at 389; Wise v. State, No. 11-11-00196-CR, 2013 WL
3583954, *6 (Tex. App.—Eastland July 11, 2013, no pet. h.) (citing Hayes v. State,
85 S.W.3d 809, 815 (Tex. Crim. App. 2002), and Render v. State, 347 S.W.3d 905,
921 (Tex. App.—Eastland 2011, pet. ref ‘d)). Under Rule 403, relevant evidence
may be excluded if its probative value is substantially outweighed by the danger of
unfair prejudice. A proper Rule 403 analysis includes, but is not limited to, the
following factors: (1) the probative value of the evidence; (2) the potential to
impress the jury in some irrational, yet indelible way; (3) the time needed to
develop the evidence; and (4) the proponent’s need for the evidence. Dunklin v.
State, 194 S.W.3d 14, 25 (Tex. App.—Tyler 2006, no pet.) (citing Erazo v. State,
144 S.W.3d 487, 489 (Tex. Crim. App. 2004)).         In reviewing a trial court’s
determination under Rule 403, a reviewing court reverses the trial court’s judgment
“rarely and only after a clear abuse of discretion.” Mozon v. State, 991 S.W.2d
841, 847 (Tex. Crim. App. 1999).


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        Under the provisions of Rule 403, to be admissible, a photograph must
possess “some probative value” and “its probative value [must] not be substantially
outweighed by its inflammatory nature.” Long, 823 S.W.2d at 272. The State
offered Exhibit No. 31 to show Appellant’s knowledge or intent. The yellow chair
had been in Appellant’s backyard and was not in the photographs taken of the
waste pile on June 15, 2009. However, the State argued that, because the chair
later appeared in the photograph taken of the waste pile on July 1, the photograph
demonstrated Appellant’s knowledge of the illegal dumping and his participation
in it after June 15, 2009.
        Appellant argued that the photograph was impermissible “prior bad act”
evidence about code violations in 2006 and that the information was not relevant.
He further maintained that its probative value was substantially outweighed by its
unfair prejudice.
        State’s Exhibit No. 31 depicted no illegal dumping and was offered to show
some lumber and a yellow chair in Appellant’s backyard three years before similar
items were added to the waste pile after Appellant’s encounter with
Officer Whitley. The trial court allowed the photograph into evidence to show
Appellant’s knowledge and intent because the yellow chair was not depicted in the
waste pile on June 15, 2009, but was present on July 1, 2009. Appellant had
contended during trial that he did not dump the waste there. To the contrary, the
State argued that the yellow chair was probative evidence that Appellant continued
to place items on the waste pile even after Officer Whitley told him to remove the
pile.
        The trial court gave the jury a limiting instruction that the photograph could
only be considered to determine Appellant’s intent or knowledge. Under the facts
that we have outlined, we do not find that the trial court’s admission of the
photograph was outside the zone of reasonable disagreement. Therefore, we cannot
                                           9
say that the trial court abused its discretion when it admitted the photograph of
Appellant’s backyard at 1410 Ash. We overrule Appellant’s second issue on
appeal.
                                   VI. Conclusion
      After reviewing the entire record, we hold that there was legally sufficient
evidence for a rational jury to find beyond a reasonable doubt that Appellant
committed the offense of illegally dumping 1,000 pounds or more of solid waste at
an unapproved site. We also hold that the trial court did not abuse its discretion in
admitting the photograph of Appellant’s backyard.
                              VII. This Court’s Ruling
      We affirm the judgments of the trial court.




                                                    MIKE WILLSON
                                                    JUSTICE


September 26, 2013
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Willson, J.




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