Ex Parte Tarlton

• Decision Date: 01 May 2003
• Docket Number: No. 14-01-01019-CR.,No. 14-01-01020-CR.,14-01-01019-CR.,14-01-01020-CR.
• Citation: 105 S.W.3d 295
• Parties: Ex parte Theophilus Deboer TARLTON.
• Court: Texas Court of Appeals

Page 295

105 S.W.3d 295

Ex parte Theophilus Deboer TARLTON.

No. 14-01-01019-CR.

No. 14-01-01020-CR.

Court of Appeals of Texas, Houston (14th Dist.).

May 1, 2003.

James L. Steele, Houston, for appellants.

Alan Curry, Houston, for appellees.

Panel consists of Justices YATES, SEYMORE, and GUZMAN.

CORRECTED OPINION

CHARLES W. SEYMORE, Justice.

Appellant's motion for rehearing is overruled. The State's motion for rehearing is granted. Our opinion of February 20, 2003 is withdrawn and the following corrected opinion is issued.

Appellant, Theophilus Deboer Tarlton, appeals the denial of his application for pretrial writ of habeas corpus on the grounds that the prosecution is barred by double jeopardy and collateral estoppel. We affirm.

Background

In November 1998, a community service inspector with the City of Houston told appellant that he needed to remove leaking oil barrels and inoperable motor vehicles from his property at 8217 Braniff. On February 6, 1999, Officer R.F. Nino, of the Houston Police Department, discovered a dark substance leaking out of two large oil drums in a moving lane of traffic near appellant's home. He observed oil spilling onto the road, on the land, and into the drainage ditch. He traced the trail of oil to the house at 8217 Braniff.

On February 8, 1999, Steven Brown discovered three to five barrels of oil leaking onto the property of Valve Sales Company at 8820 Meldrum, which was located a few blocks from 8217 Braniff. Brown called the Houston Fire Department hazardous waste team, who investigated the spill on Braniff and on Meldrum. Russell Harris, a member of the hazardous waste team, investigated the scene at 8820 Meldrum and testified that someone in a vehicle had driven to the location and dumped oil barrels. Harris then called Officer S.R. Dicker, of the Houston Police Department Major Offenders Environmental Investigation Unit. Officer Dicker traced the trail of oil from 8820 Meldrum to appellant's property.

Appellant was charged by indictment with two counts of the felony offense of disposal of used oil and one count of the felony offense of disposal of hazardous waste. TEX. WATER CODE ANN. § 7.176(a)(2) & § 7.162(a)(2) (Vernon 2000). Appellant waived his right to a jury and entered a plea of not guilty. At the conclusion of the State's case in chief, the trial court directed a verdict of not guilty in favor of appellant on each indictment.¹ The State has now charged appellant by information with two counts of the misdemeanor offense of water pollution. TEX. WATER CODE ANN. § 7.147(a) (Vernon 2000). Appellant filed an application for writ of habeas corpus and a special plea in double jeopardy in the trial court alleging the second prosecution is barred by double jeopardy and collateral estoppel. The trial court denied appellant's application.

Standard of Review

In reviewing a decision to grant or deny relief on a writ of habeas corpus, we afford almost total deference to the trial judge's determination of historical facts supported by the record, especially when the fact findings are based on an evaluation of credibility and demeanor. See Ex parte Martin, 6 S.W.3d 524, 526 (Tex.Crim.App.1999). We afford the same amount of deference to the trial judge's rulings on applications of law to fact questions if the resolution of those ultimate questions turns on an evaluation of credibility and demeanor. Id. at 526. If the resolution of those ultimate questions turns on an application of legal standards, however, we review the determination de novo. Id.

Double Jeopardy

In his first point of error, appellant contends the trial court erred by refusing to dismiss the two misdemeanor informations. Appellant contends he is the subject of a second prosecution for the same offense in violation of the double jeopardy clause of the Fifth Amendment to the United States Constitution.

Appellant argues that the instant water pollution charges arise from the same facts and same transactions as the disposal of used oil and hazardous waste cases, which were considered by the trial court and resolved by acquittals. Accordingly, appellant concludes he will effectively be retried on the disposal offenses if we refuse to grant habeas relief from prosecution of the water pollution charges.

The double jeopardy clause of the United States Constitution provides no person shall be "subject for the same offence to be twice put in jeopardy of life or limb." U.S. CONST. amend. V. This protection applies to (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense. Brown v. Ohio, 432 U.S. 161, 164-65, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977). In determining whether the double jeopardy clause has been violated, we ordinarily apply the Blockburger test. Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932). The Blockburger test states, "that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not." Id. If the same act violates alternative provisions of both statutes, jeopardy bars successive prosecution. United States v. Dixon, 509 U.S. 688, 696, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993). The same elements test under Dixon requires more than a comparison of statutory elements; rather, the essential elements relevant to a jeopardy inquiry are those of the charging instrument, not of the penal statute. See Parrish v. State, 869 S.W.2d 352, 354-55 (Tex.Crim.App. 1994).

The informations for the current water pollution charges contain the following allegations:

1. Cause number 1042142: "[Appellant,] on or about FEBRUARY 6, 1999, did then and there unlawfully[ ] discharge or allow the discharge of a waste or pollutant, namely other waste, namely oil, and/or used oil and/or a petroleum hydrocarbon substance, into water in the State, namely a drainage ditch located near 8300 Braniff, that caused or threatened to cause water pollution, said discharge not being in strict compliance with a required permit or with a valid and currently effective order issued or rule adopted by the appropriate agency, namely, the Texas Natural Resource Conservation Commission."

2. Cause number 1042143: "[Appellant,] on or about FEBRUARY 8, 1999, did then and there unlawfully[] discharge or allow the discharge of a waste or pollutant, namely other waste, namely oil, and/or used oil and/or a petroleum hydrocarbon substance, into water in the State, namely a drainage ditch located near 8820 Meldrum, that caused or threatened to cause water pollution, said discharge not being in strict compliance with a required permit or with a valid and currently effective order issued or rule adopted by the appropriate regulatory agency, namely, the Texas Natural Resource Conservation Commission."

The indictments for disposal of used oil and hazardous waste charges were stated as follows: 1. Cause number 840183: "[Appellant,] on or about FEBRUARY 8, 1999 did then and there unlawfully, knowingly dispose of used oil on land located near 8820 Meldrum."

2. Cause number 840185: "[Appellant,] on or about FEBRUARY 6, 1999, did then and there unlawfully, knowingly dispose of used oil on land located near 8300 Braniff."

3. Cause number 840186: "[Appellant,] on or about FEBRUARY 8, 1999, did then and there unlawfully, intentionally and knowingly DISPOSE OF and cause to be DISPOSED OF, a hazardous waste, namely, A SOLID WASTE EXHIBITING THE TOXICITY CHARACTERISTIC FOR LEAD, without all permits required by the appropriate regulatory agency, namely, the Texas Natural Resource Conservation Commission."

The felony disposal of used oil indictments include an allegation that the disposal of used oil was on land, and the felony disposal of hazardous waste indictment includes an allegation that the disposal of hazardous waste occurred on land. This element — disposal on land — is missing from the misdemeanor water pollution informations. Similarly, the misdemeanor water pollution informations allege a discharge of used oil in water, which caused or threatened to cause water pollution. The discharge in water and the water pollution, or threat of water pollution, is missing from the felony disposal of used oil and hazardous waste indictments. Moreover, the felony disposal of used oil and disposal of hazardous waste indictments include an allegation that appellant knowingly engaged in the prohibited acts. This culpability requirement is missing from the misdemeanor water pollution informations, which merely include an allegation that the discharge of used oil was done unlawfully.

Appellant contends that water pollution is a lesser included offense of disposal of oil or hazardous waste on land because the only distinction between the two offenses is that water pollution does not require the State to prove a culpable mental state. An offense is a lesser offense if "it is established by proof of the same or less than all of the facts required to establish the commission of the offense charged." TEX.CODE CRIM. PROC. ANN. art. 37.09(1) (Vernon 1981). While the double jeopardy clause bars prosecution of any offense which, according to Texas law, includes or is included within an offense for which the defendant has been acquitted, the offense of water pollution is not a lesser included offense of disposal of oil or hazardous waste. See Parrish, 869 S.W.2d at 355. Not only do the offenses differ in the requirement of culpability, but water pollution requires proof that the substance was introduced into the water and caused water pollution. Disposal of oil requires proof that the substance was discharged onto land. Because the two offenses contain different elements, appellant has failed to show he is now being prosecuted...