Affirmed and Memorandum Opinion filed April 15, 2014.




                                In The

                 Fourteenth Court of Appeals
                             ____________
                          NO. 14-12-01131-CR
                            ____________
                 PAUL ARRINGTON WOOD, Appellant
                                  V.
                   THE STATE OF TEXAS, Appellee


                 On Appeal from the 337th Distict Court
                        Harris County, Texas
                    Trial Court Cause No. 1334849
                             ____________
                          NO. 14-12-01132-CR
                            ____________
              LONE STAR LUBE & WASH, LP, Appellant
                                  V.
                   THE STATE OF TEXAS, Appellee


                 On Appeal from the 337th Distict Court
                        Harris County, Texas
                    Trial Court Cause No. 1334851
                      MEMORANDUM OPINION

      Appellants, Paul Arrington Wood and Lone Star Lube & Wash LP, contend
the trial court erred by failing to quash their respective indictments. We affirm.

                                        I. BACKGROUND

      Appellants were charged with felony water pollution under section 7.145 of
the Water Code. See Tex. Water Code Ann. § 7.145 (West 2008).1 Specifically,
Wood was indicted as follows, and Lone Star’s indictment is identical except for
the difference in defendant name:

      The duly organized Grand Jury of Harris County, Texas, presents in
      the District Court of Harris County, Texas, that in Harris County,
      Texas, [Wood], hereafter styled the Defendant, heretofore on or about
      JANUARY 30, 2009, did then and there unlawfully, intentionally or
      knowingly discharge or allow the discharge of a waste or pollutant,
      namely INDUSTRIAL WASTE, into or adjacent to water in the
      State, namely A SANITARY SEWER LOCATED NEAR 19727
      STOKES ROAD, that caused or threatened to cause water pollution,
      said discharge not being in strict compliance with all required permits
      or with an order issued or a rule adopted by the appropriate regulatory
      agency, namely the Texas Commission on Environmental Quality
      and/or the city of Waller, Texas.



      1
          In pertinent part, section 7.145 provides,
      (a) A person commits an offense if the person, acting intentionally or knowingly
      with respect to the person’s conduct, discharges or allows the discharge of a waste
      or pollutant:
                (1) into or adjacent to water in the state that causes or threatens to cause
                water pollution unless the waste or pollutant is discharged in strict
                compliance with all required permits or with an order issued or a rule
                adopted by the appropriate regulatory agency; or
                (2) from a point source in violation of Chapter 26 or of a rule, permit, or
                order of the appropriate regulatory agency.

Tex. Water Code Ann. § 7.145.

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       It is further presented that in Harris County, Texas, [Wood], hereafter
       styled the Defendant, heretofore on or about JANUARY 30, 2009,
       did then and there unlawfully, intentionally or knowingly discharge or
       allow the discharge of a waste or pollutant, namely INDUSTRIAL
       WASTE, from a point source, namely A HOLDING TANK
       AND/OR DISCHARGE LINE, in violation of Water Code
       §26.121(d), prohibiting the unauthorized discharge of INDUSTRIAL
       WASTE into any water in the state.2

       Appellants filed motions to quash the indictments, which the trial court
denied. Thereafter, appellants entered guilty pleas pursuant to plea bargains with
the State.    The trial court accepted the pleas and entered judgments against
appellants. The trial court certified that appellants have the right to appeal only
matters raised in their motions to quash.

                                      II. ANALYSIS

       Appellants assert that the indictments allege appellants discharged or
allowed the discharge of a waste or a pollutant into or adjacent to “water in the
state,” namely “A SANITARY SEWER.” Appellants argue they were not charged
with an offense under section 7.145 because “a sanitary sewer” is not included in
the definition of “water in the state” located in section 26.001(5) of the Water
Code. Tex. Water Code Ann. § 26.001(5) (West 2008).

       However, even if appellants’ statutory construction is correct, the second
paragraph of the indictments, which charged an alternative means of committing
the same offense, does not allege appellants polluted a sanitary sewer. Instead, the
paragraph alleges appellants discharged industrial waste from a point source,
namely a holding tank and/or discharge line, in violation of section 26.121(d),
prohibiting the unauthorized discharge of industrial waste “into any water in the
       2
         “Except as authorized by the commission, no person may discharge any pollutant,
sewage, municipal waste, recreational waste, agricultural waste, or industrial waste from any
point source into any water in the state.” Tex. Water Code Ann. § 26.121(d) (West 2008).

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state.” The second paragraph does not define what “water in the state” appellants
allegedly polluted and, thus, does not contain the alleged defect about which
appellants complain.

        In a charging instrument, a count charges the offense itself and a paragraph
is a portion of the count which charges the method of committing the offense.
Freeman v. State, 74 S.W.3d 913, 916 (Tex. App.—Amarillo 2002, pet. ref’d). “A
count may contain as many separate paragraphs charging the same offense as
necessary, but no paragraph may charge more than one offense.” Tex. Code Crim.
Proc. Ann. art. 21.24(b) (West 2009). “A count is sufficient if any one of its
paragraphs is sufficient.” Id. art. 21.24(c); see also State v. Florio, 845 S.W.2d
849, 852 (Tex. Crim. App. 1992).

        Because appellants’ challenge does not apply to the plain language of one of
the two paragraphs alleging a section 7.145 violation, appellants have not
established that, as to that paragraph, the indictment was defective.3 Thus, the trial
court did not err by denying appellants’ motion to quash. Although appellants
argue that the only evidentiary basis for their conviction is discharge of pollutants
into a sanitary sewer, the State’s evidence was not fully developed because the
case was never tried. Accordingly, the scope of the evidence does not inform our
review of the motion to quash the indictment. See Shipp v. State, 331 S.W.3d 433,
434 n.7 (Tex. Crim. App. 2011); State v. Rogers, 138 S.W.3d 524, 526 (Tex.
App.—Houston [14th Dist.] 2004, no pet.); see also State v. Rosseau, 396 S.W.3d
550, 558 n.9 (Tex. Crim. App. 2013). Therefore, we do not reach the question of



        3
          Cf. Watts v. State, 140 S.W.3d 860, 868 (Tex. App.—Houston [14th Dist.] 2004, pet. ref’d)
(“With respect to the second count, the State did not allege a drainage ditch, i.e., it did not identify the
‘water in the state.’ Thus, the jury was authorized to convict appellant under the second count if it found
he discharged sewage from a point source into or adjacent to any ‘water in the state.’”).

                                                     4
whether a sanitary sewer is “water in the state.” We overrule appellants’ sole
issue.

         We affirm the trial court’s judgment.




                                         /s/       John Donovan
                                                   Justice


Panel consists of Justices McCally, Busby, and Donovan.
Do Not Publish — Tex. R. App. P. 47.2(b).




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