Blankenship v. State

• Decision Date: 14 July 2022
• Docket Number: 02-20-00157-CR
• Citation: 650 S.W.3d 902
• Parties: Thomas Edward BLANKENSHIP, Appellant v. The STATE of Texas
• Court: Texas Court of Appeals

650 S.W.3d 902

Thomas Edward BLANKENSHIP, Appellant
v.
The STATE of Texas

No. 02-20-00157-CR

Court of Appeals of Texas, Fort Worth.

Delivered: July 14, 2022

Jeffrey Shearer, for Appellant.

Matthew A. Mills, for State of Texas.

Before Sudderth, C.J.; Womack and Walker, JJ.

Opinion by Chief Justice Sudderth

Appellant Thomas Edward Blankenship challenges his conviction for Class A misdemeanor unlawful burning on various sufficiency grounds. In his first two issues, Blankenship argues that there is no evidence that the "treated wood, soda cans, and bottles" he was charged with burning qualify as "heavy oils, asphaltic materials, potentially explosive materials, or chemical wastes," as is required for the enhancement of his otherwise-Class C offense to a Class A misdemeanor. Because we agree with Blankenship on this point, and because none of Blankenship's other sufficiency arguments are meritorious, we will reduce his conviction to a Class C misdemeanor and remand the case for a new punishment hearing.

I. Background

As Sergeant Joshua Lane and Deputy Ciji Montemayor drove to Blankenship's property to conduct an unrelated warrant investigation, they saw him tending a fire that was emitting black smoke.¹ Blankenship told the officers that he was burning plywood, which Sergeant Lane and Deputy Montemayor later testified they considered illegal to burn.² As Sergeant Lane walked closer to the fire, he noticed "treated wood, bottles[,] ... some glass[,] ... some soda cans," and "at least ... one paint can in the fire." Deputy Montemayor similarly saw a "spray paint can," "paint cans[,] ... plywood[,] and metal items" in the fire.

The officers arrested Blankenship and extinguished the fire. Neither officer seized or tested any physical evidence from the scene. However, they took photos of the fire, and they recorded the interaction with Blankenship on their body cameras.

Blankenship was charged by information with "intentionally or knowingly burn[ing] treated wood, soda cans, and bottles, in violation of Section 382.018 of the Texas Health and Safety Code, Section 111.219(7) of the Texas Administrative Code, and Sections 7.177 and 7.187(b)(3) of the Texas Water Code." The information did not allege any prior convictions for outdoor burning.

650 S.W.3d 907

Blankenship's case was tried to the court. The officers testified regarding their interaction with Blankenship and the items they saw in the fire. They explained that they understood "[a]nything that's not natural to the earth" to be illegal to burn, and that because plywood contained substances not natural to the earth—the "adhesive used to hold it together" and "materials to keep it from rotting"—they considered burning plywood to be illegal.

In addition to the officers’ testimony, the State offered video footage from both officers’ body cameras, a photograph of the fire, and a photograph of Blankenship's nearby shed. The body-camera footage captured Blankenship's admission that he was burning plywood and provided periodic views of the fire from various vantage points.

The defense called Jeremy Cosgrove, a fire investigator, to testify as an expert. Cosgrove testified that "[t]reated wood[,] as far as the industry standard goes[,]" contemplates wood that "is normally treated with a copper solution that prevents any kind of rotting or deterioration of the wood." Cosgrove also stated that not all plywood is treated, that treated wood can be "extremely hard" to distinguish from untreated wood on sight, that the two types of wood cannot be distinguished by the color of the smoke they emit while burning, and that there is ultimately "no way to see if a [piece of] wood's been treated or not without a forensic analysis of that material to determine what chemical compositions are within that material."³

The trial court found Blankenship guilty of Class A misdemeanor "outdoor burning of waste toxic material," and sentenced him to 45 days’ confinement with a $1,500 fine. See Tex. Penal Code Ann. § 12.21.

II. Discussion

Blankenship raises three issues on appeal, all of which challenge the sufficiency of the evidence in some way.⁴ Blankenship argues that his Class A misdemeanor conviction must be reversed because (1) there is insufficient evidence regarding the nature of the items burned, i.e., that they qualified as "heavy oils, asphaltic materials, potentially explosive materials, or chemical wastes"; (2) there is insufficient evidence that the prohibited items were actually located in the fire because the body-camera footage "indisputabl[y]" contradicts the officers’ testimony; and (3) there is insufficient evidence that Blankenship's fire was not authorized under a statutory exception.

A. Standard of Review

In our evidentiary-sufficiency review, we consider all the evidence in the light most favorable to the verdict to determine whether any rational factfinder could have found the crime's essential elements beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) ;

650 S.W.3d 908

Queeman v. State , 520 S.W.3d 616, 622 (Tex. Crim. App. 2017). The crime's elements are defined by the hypothetically correct jury charge, which accurately sets out the law, is authorized by the information,⁵ does not unnecessarily increase the State's burden of proof or restrict the State's theories of liability, and adequately describes the offense for which the defendant was tried. Jenkins v. State , 493 S.W.3d 583, 599 (Tex. Crim. App. 2016) ; see also Febus v. State , 542 S.W.3d 568, 572 (Tex. Crim. App. 2018) ("The essential elements of an offense are determined by state law.").

Here, Blankenship was tried for committing the offense of unlawful burning. See Tex. Health & Safety Code Ann. § 382.018 ; Tex. Water Code Ann. § 7.177(a)(5) ; 30 Tex. Admin. Code § 111.219 (2022) (Tex. Comm'n on Env't Quality, General Requirements for Allowable Outdoor Burning).

B. Applicable Law

The statutory scheme for the offense of unlawful burning "is not straightforward; the statutes are found in at least two codes, and the restrictions on burning are scattered through the Administrative Code." State v. Rhine , 297 S.W.3d 301, 307 (Tex. Crim. App. 2009) ; see Tex. Health & Safety Code Ann. § 382.018 ; Tex. Water Code Ann. § 7.177(a)(5).

The groundwork for the offense is laid in the Texas Clean Air Act, which authorizes the Texas Commission on Environmental Quality (TCEQ) to establish rules to "control and prohibit the outdoor burning of waste and combustible material." Tex. Health & Safety Code Ann. § 382.018(a). TCEQ implemented this legislation by adopting a broad rule prohibiting "any outdoor burning ... except as provided,"⁶ 30 Tex. Admin. Code § 111.201 (2022) (Tex. Comm'n on Env't Quality, General Prohibition), then it carved out exceptions to authorize, for example, "recreational" fires, id. § 111.207 (2022) (Tex. Comm'n on Env't Quality, Exception for Fires Used for Recreation, Ceremony, Cooking, and Warmth), and "domestic waste" fires disposing of items such as "kitchen garbage[ and] untreated lumber," id. § 111.209 (2022) (Tex. Comm'n on Env't Quality, Exception for Disposal Fires). Even when an outdoor burning is otherwise authorized, though, it is subject to restrictions on the location, timing, and meteorological conditions. And burning "[e]lectrical insulation, treated lumber, plastics, non-wood construction/demolition materials, heavy oils, asphaltic materials, potentially explosive materials, chemical wastes, and items containing natural or synthetic rubber" is strictly prohibited. Id. § 111.219(7) (2022) (Tex. Comm'n on Env't Quality, General Requirements for Allowable Outdoor Burning).

The legislature criminalized the violation of a TCEQ rule adopted under the Clean Air Act, and it established the punishment for unlawful burning in particular. Tex. Water Code Ann. §§ 7.177(a)(5), 7.187(b) ; see Rhine , 297 S.W.3d at 312 (concluding that "the legislature defined the elements of the offense and left to TCEQ only 1) the determination of what materials that, when burned, created the air contaminants that were the concern of the legislature, and 2) control over the places and conditions under which those materials may be burned"). Generally, unlawful burning is a

650 S.W.3d 909

Class C misdemeanor, but the offender's criminal history and the nature of the item burned may enhance the crime's classification. Tex. Water Code Ann. § 7.187(b). The legislature grouped prohibited items into three punishment tiers: (1) "heavy oils, asphaltic materials, potentially explosive materials, [and] chemical wastes," the burning of which is punished with the most severity; (2) "insulation on electrical wire or cable, treated lumber, plastics, non-wood construction [and] demolition materials, furniture, carpet, [and] items containing natural or synthetic rubber," the burning of which is punished with moderate severity; and (3) all other items, the burning of which is punished with the lowest degree of severity. Id.

Unlawful burning is

(1) a Class C misdemeanor if the violation is a first violation and does not involve the burning of [high-severity items];

(2) a Class B misdemeanor if the violation is a second or subsequent violation and:

(A) the violation does not involve the burning of:

(i) [high-severity items]; or

(ii) [moderate-severity items]; or

(B) the violation involves the burning of [moderate-severity items] and none of the prior violations involved the burning of [high-severity items] or [moderate-severity items]; or

(3) a Class A misdemeanor if the violation:

(A) involves the burning of [high-severity items]; or

(B) is a second or subsequent violation and involves the burning of [moderate-severity items] and one or more of the prior violations involved the burning of [high-severity items] or [moderate-severity items].

Id. (indentation altered). In other words, for a first-time unlawful burning offense, as Blankenship was charged with committing here, an individual commits a Class A...