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.
–2– –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
–5– 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.
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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.
–2– –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
–5– 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.
–10–