Watts v. State

• Decision Date: 01 July 2004
• Docket Number: No. 14-99-00811-CR.,14-99-00811-CR.
• Citation: 140 S.W.3d 860
• Parties: John WATTS, Appellant v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

140 S.W.3d 860

John WATTS, Appellant v. The STATE of Texas, Appellee.

No. 14-99-00811-CR.

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

July 1, 2004.

Appeal from the County Criminal Court at Law No. 15, Harris County, Jean Spradling Hughes, J William Paul Mewis, Katy, TX, for appellants.

Roger A. Haseman, Houston, TX, for appellees.

Panel consists of Justices YATES, HUDSON, and FROST.

CORRECTED MAJORITY OPINION ON REHEARING AFTER REMAND

J. HARVEY HUDSON, Justice.

Appellant, John Watts, was charged by information with two counts of water pollution. A jury subsequently returned a general verdict of guilty. On original submission, we affirmed the convictions. Watts v. State, 56 S.W.3d 694 (Tex.App.-Houston [14th Dist.] 2001), rev'd, 99 S.W.3d 604 (Tex.Crim.App.2003). A central issue in the trial of that case was whether a drainage ditch constituted "water in the state," and, thus, was protected from pollution by the Texas Water Code. See TEX. WATER CODE ANN. § 7.145 (Vernon 2000). Relying upon the authority of American Plant Food Corp. v. State, 587 S.W.2d 679 (Tex.Crim.App.1979), the trial court instructed the jury that a "drainage ditch was one of the types of surface water the legislature sought to protect under the Water Code Act." We approved the trial court's instruction.

The Texas Court of Criminal Appeals, however, held the instruction was improper. The court reasoned the trial judge erred by (1) taking judicial notice of the law in the jury's presence and (2) commenting on the weight of the evidence. Watts v. State, 99 S.W.3d 604, 611-13 (Tex.Crim.App.2003). The court then remanded the cause to this court to conduct a harm analysis.

STANDARD OF REVIEW

The essence of the error here is that by improperly taking judicial notice that a drainage ditch is "water in the state," the trial court thereby commented on the weight of the evidence. A trial court improperly comments on the weight of the evidence if it makes a statement that implies approval of the State's argument, that indicates any disbelief in the defense's position, or that diminishes the credibility of the defense's approach to its case. Hoang v. State, 997 S.W.2d 678, 681 (Tex.App.-Texarkana 1999, no pet.). Here, one of the contested issues before the jury was whether a drainage ditch, in which water flowed only intermittently, was "water in the state."

Although the trial court did not require the jury to find the drainage ditch was protected by the Texas Water Code, it did authorize the jury to accept this matter as a conclusive fact. Because appellant may have been deprived of his right to have a jury determine this issue, we will review the error under the standard for "constitutional error." See TEX.R.APP. P. 44.2(a).¹ Where the appellate record in a criminal case reveals constitutional error, we must reverse the judgment of conviction unless we determine beyond a reasonable doubt that the error did not contribute to the conviction. Id.

HARM ANALYSIS

To the jury, the language and conduct of the trial court have a special and peculiar weight. Devis v. State, 18 S.W.3d 777, 782 (Tex.App.-San Antonio 2000, no pet.). In fact, jurors are prone to seize with alacrity upon any conduct or language of the trial judge which they may interpret as shedding light upon his or her view of the weight of the evidence, or the merits of the issues involved. Bachus v. State, 803 S.W.2d 402, 405 (Tex.App.-Dallas 1991, pet. ref'd). Thus, in reviewing the possible prejudice to appellant, we will presume the jury accepted the trial court's invitation to find as a conclusive fact that a drainage ditch is "water in the state."

Appellant was charged by information. The information appears to contain two paragraphs. Although they are not styled as such, these "paragraphs" are, in fact, separate counts because each alleges a different offense.

The first count purports to allege an offense under Section 7.145(a) of the Texas Water Code. TEX. WATER CODE ANN. § 7.145(a) (Vernon 2000). The second count alleges an offense under Section 7.146(a) of the Texas Water Code. TEX. WATER CODE ANN. § 7.146(a) (Vernon 2000). Each offense "requires proof of a fact which the other does not." See Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932) (setting forth the test for distinguishing between the same or different offenses). In reviewing the statutory elements applicable to the facts of this case, a person is strictly liable under Section 7.145 and commits an offense if he: (1) intentionally or knowingly, (2) discharges or allows the discharge, (2) of a waste or pollutant, (3) into or adjacent to "water in the state," (4) that causes or threatens to cause water pollution, and (5) such discharge is not in strict compliance with all required permits or with a valid and currently effective order issued or rule adopted by the appropriate regulatory agency. A person commits an offense under Section 7.146 if he: (a) intentionally or knowingly, (2) discharges or allows the discharge, (3) of a waste or pollutant, (4) from a point source, (5) in violation of Chapter 26 of the Texas Water Code, i.e., discharges sewage into or adjacent to any "water in the state."

When multiple offenses are committed during a single criminal episode, they may be joined in a single charging instrument with each offense alleged in a separate count. TEX.CODE CRIM. PROC. ANN. art. 21.24(a) (Vernon 1989). Because a statute sometimes provides for various manner and means of committing an offense, each count may contain as many separate paragraphs charging alternate manner and means of committing the offense as necessary. TEX.CODE CRIM. PROC. ANN. art. 21.24(b) (Vernon 1989). Thus, as a general rule, a "count" is used to charge the offense itself and a "paragraph" is that portion of a count which alleges the method of committing the offense. Owens v. State, 96 S.W.3d 668, 673 (Tex.App.-Austin 2003, no pet.).

It is permissible to join two or more offenses in the same charging instrument, and the State is not required to elect between counts. Thacker v. State, 999 S.W.2d 56, 63 (Tex.App.-Houston [14th Dist.] 1999, pet. ref'd). The jury, however, must be instructed to return a finding of guilty or not guilty in a separate verdict as to each count submitted to them. TEX.CODE CRIM. PROC. ANN. art. 37.07, § 1(c) (Vernon 1981). Here, the counts were not separately submitted to the jury; rather, the jury returned a single verdict which declared: "We, the Jury, find the Defendant `Guilty.'" Appellant did not object to the charge and has not raised the error on appeal. Under these circumstances, the general verdict operates as a conviction of all counts. Lovejoy v. State, 40 Tex.Crim. 89, 48 S.W. 520, 522 (1898). Moreover, if necessary, we are free to assign the verdict to any count supported by the evidence. Smothermon v. State, 383 S.W.2d 929, 931 (Tex.Crim.App.1964). Thus, while the trial court's instruction regarding the drainage ditch had direct applicability only to the first count of the information (which was the only count alleging a drainage ditch to be "water in the state"), we must examine the effect of the charge upon the general verdict.

The first count alleges appellant discharged sewage into or "adjacent" to a drainage ditch. Although the State offered some evidence that appellant's sewage could potentially contaminate the drainage ditch if there was sufficient rainfall to carry it into the ditch, the State's primary theory of prosecution appears to have been that appellant unlawfully discharged sewage "adjacent" to the drainage ditch. The record, for example, shows the discharge of sewage was 140 to 150 feet from the county drainage ditch. A small trench had been constructed on appellant's property to facilitate drainage directly into the county drainage ditch. However, due to the distance between the discharge and the ditch, no sewage was observed draining into the ditch. In fact, it was conceded by the State's witnesses that during hot, dry weather, the sewage did not contaminate the ditch.² However, the State also presented testimony that even a "little" rain could potentially wash sewage from appellant's property into the ditch. From there, the polluted water could enter Coal Creek, which, in turn, emptied into White Oak Bayou, which, in turn, eventually emptied into Buffalo Bayou and Galveston Bay. Finally, appellant, himself, testified that surface water runoff from his property flowed into the ditch.

However, even if the jurors were permitted to convict appellant under the first count for discharging sewage adjacent to the drainage ditch, no conviction was possible unless they also found the ditch to be "water in the state." Historically, the term "water" has been used in many different contexts in Texas jurisprudence. Distinctions have been drawn between navigable and non-navigable waters,³ surface and underground waters,⁴ waters in a natural watercourse and those that are diffused on the surface.⁵ Many of these distinctions were recognized by courts while either attempting to adjudicate ownership of water or determining riparian rights regarding its use. It was well established early in the twentieth century that waters which "ooze through the soil" (percolating ground water) and waters which "diffuse or squander themselves over the surface, following no definite course" (diffused surface water) belong to the owner of the land. Hoefs v. Short, 190 S.W. 802, 806 (Tex.1916). Water in a watercourse, however, is the property of the State, held in trust for the public. Domel v. City of Georgetown, 6 S.W.3d 349, 362 (Tex.App.-Austin 1999, pet. denied). Diffused surface water (belonging to the land owner) becomes a natural watercourse (belonging to the State) at the point where it begins to form a reasonably well-defined channel, with bed and banks, or sides and current, although the stream itself may be very small and the water may not flow...