No. 05-05-00055-CR
Opinion Filed August 22, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 283rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F04-01663-T. Affirmed as Modified.
Before Justices WHITTINGTON, BRIDGES, and LANG-MIERS.
Opinion By Justice LANG-MIERS.
A jury convicted Jimmy Wayne Lashley of unauthorized discharge of sewage into a creek bed in Dallas and found that he used or exhibited a deadly weapon, sewage, in the commission of the offense. See Tex. Water Code Ann. § 7.145 (Vernon Supp. 2006); Tex. Pen. Code Ann. § 1.07(a)(17)(B) (Vernon Supp. 2006). The jury assessed appellant's punishment at five years' confinement and a $10,000 fine. At the jury's recommendation, the trial court suspended the imposition of confinement and placed appellant on community supervision for ten years. On appeal, appellant argues the trial court erred by submitting the deadly weapon issue to the jury, and the evidence is legally and factually insufficient to support the deadly weapon finding. We conclude the evidence is legally insufficient to support the deadly weapon finding. As a result, we modify the judgment to delete the affirmative finding of a deadly weapon and, as modified, affirm.
Background
Joseph Ellis, a news producer with KDFW Fox 4 News, began surveillance of a creek bed area in south Dallas near the Trinity River in response to an anonymous report of illegal dumping in that area. Over a period of several weeks, Ellis observed appellant, an employee of a sanitation company, on three occasions collect sewage from portable toilets in various locations and pump the waste material into a creek bed behind the sanitation company's property. Ellis took four samples from the creek for laboratory analysis: two on January 20, 2004, and two on January 27, 2004. The results showed elevated levels of fecal coliforms consistent with human waste. Sufficiency of the Evidence to Support Deadly Weapon Finding
In his second issue, appellant complains the evidence is legally insufficient to sustain the jury's finding that he used a deadly weapon in the commission of the offense. Standard of Review
In a legal sufficiency review, we review the record to determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found beyond a reasonable doubt that the sewage was used or exhibited as a deadly weapon. See Cates v. State, 102 S.W.3d 735, 738 (Tex.Crim.App. 2003) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). Applicable Law
The code of criminal procedure authorizes the entry of a deadly weapon finding when: a deadly weapon as defined in Section 1.07, Penal Code, was used or exhibited during the commission of a felony offense or during immediate flight therefrom, and that the defendant used or exhibited the deadly weapon or was a party to the offense and knew that a deadly weapon would be used or exhibited. Tex. Code Crim. Proc. Ann. art. 42.12 § 3g(a)(2) (Vernon Supp. 2006). A deadly weapon includes" anything that in the manner of its use or intended use is capable of causing death or serious bodily injury." Tex. Pen. Code Ann. § 1.07(a)(17)(B). "Serious bodily injury" means bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.
Tex. Pen. Code Ann. § 1.07(a)(46) (Vernon Supp. 2006). To sustain a deadly weapon finding, the evidence must show that (1) the object meets the statutory definition of a deadly weapon; (2) the deadly weapon was used or exhibited "during the transaction from which" the felony conviction is obtained; and (3) other people were put in actual danger. Drichas v. State, 175 S.W.3d 795, 798 (Tex.Crim.App. 2005) (quoting Ex parte Jones, 957 S.W.2d 849, 851 (Tex.Crim.App. 1997)); Cates v. State, 102 S.W.3d at 738. There must be evidence that others were actually endangered, not "merely a hypothetical potential for danger if others had been present." Cates, 102 S.W.3d at 738 (quoting Mann v. State, 13 S.W.3d 89, 92 (Tex.App.-Austin 2000), opin. adopted " as our own," 58 S.W.3d 132 (Tex.Crim.App. 2001)). All felonies are theoretically susceptible to a deadly weapon finding. Whatley v. State, 946 S.W.2d 73, 76 (Tex.Crim.App. 1997). The phrase "used or exhibited a deadly weapon" is open to the "broadest possible understanding in context of which it was reasonably susceptible in ordinary English." Tyra v. State, 897 S.W.2d 796, 797 (Tex.Crim.App. 1995). This means that "[a]ny employment of a deadly weapon qualifies if it `facilitates the associated felony' . . . or its use, in itself, fulfills an element of the offense on trial. . . ." Whatley, 946 S.W.2d at 76 (citing Tyra, 897 S.W.2d at 798 and Patterson v. State, 769 S.W.2d 938, 941 (Tex.Crim.App. 1989)). To "use" a deadly weapon means "the deadly weapon must be utilized, employed, or applied in order to achieve its intended result: `the commission of a felony offense or during immediate flight therefrom.'" Tyra, 897 S.W.2d at 800 (quoting Patterson, 769 S.W.2d at 941). Actual death or serious bodily injury is not required for the jury to find that an object is a deadly weapon; it is sufficient if the object, in the manner of its use, was capable of causing death or serious bodily injury. See Tex. Pen. Code Ann. § 1.07(a)(17)(B); see Drichas, 175 S.W.3d at 799-800 . Capability is evaluated based on the circumstances that existed at the time of the offense. Drichas, 175 S.W.3d at 799 (citing Williams v. State, 946 S.W.2d 432, 435 (Tex.App.-Fort Worth 1997), rev'd in part on other grounds, 970 S.W.2d 566 (Tex.Crim.App. 1998)). Additionally, intent to use the sewage as a deadly weapon is not required. See Drichas, 175 S.W.3d at 798; McCain v. State, 22 S.W.3d 497, 503 (Tex.Crim.App. 2000); Walker v. State, 897 S.W.2d 812, 814 (Tex.Crim.App. 1995). Instead, the State must prove only that the sewage became a deadly weapon in the manner of its use because it was capable of causing serious bodily injury or death. See Drichas, 175 S.W.3d at 798. Analysis
The testimony relevant to whether the sewage constituted a deadly weapon under the facts of this case came from three expert witnesses for the State: John Mummert, a natural resource specialist for the Texas Commission on Environmental Quality (TCEQ); Roger Garcia, a special investigator for the TCEQ; and Dr. David Buhner, a physician and Medical Director for the Dallas County Department of Health and Human Services. 1. Does sewage meet the definition of a deadly weapon?
Mummert testified about the lab results of the four samples taken by Ellis from the creek. He stated the quality of water is measured in colony forming units (CFUs) of fecal coliforms per one hundred milliliters. These CFUs are markers for the presence of bacteria associated with human waste. The standard for swimming water is 400 CFUs or less and the standard for drinking water is zero CFUs. Test results from a typical manhole overflow during a heavy rainfall show up to 100,000 CFUs per one hundred milliliters. The lab results of the two samples taken from the creek on January 20, 2004, showed 61,000 CFUs and 17,000 CFUs per one hundred milliliters. The lab results for the sample taken on January 27 at the direct entry point where appellant discharged the sewage was 5.3 million CFUs per one hundred milliliters. The lab results for the sample taken on the same day but about forty yards down showed 450 CFUs per one hundred milliliters. Although the tests performed on the four samples did not identify which pathogens were present in the water, Mummert testified that the "indicators are so high and so well linked to gastrointestinal illness that they're an indicator of the pathogens that cause that kind of illness." Dr. Buhner testified that the diseases spread by human feces include hepatitis A and shigella and salmonella infections. The transmission of these diseases is typically by contact with contaminated water through cuts in the skin or by drinking it. Symptoms of these illnesses include diarrhea, gastroenteritis, nausea, and vomiting. Dr. Buhner testified that hepatitis A can also cause liver infection and in rare cases death. Dr. Buhner testified that untreated sewage with a CFU count of 5.3 million discharged into a creek bed had the capability of causing death or serious bodily injury. We conclude the evidence is sufficient to establish that the sewage was capable of causing death or serious bodily injury, the first element to sustain a deadly weapon finding. 2. Did appellant use or exhibit the sewage during the unlawful discharge of the sewage?
Appellant argues the State cannot charge him with discharging sewage into the creek bed while also charging him with using that same sewage as a deadly weapon. Initially we note this issue is inadequately briefed because appellant cites no legal authority to support his argument. See Tex.R.App.P. 38.1(h). However, to the extent we understand his argument, we disagree. The court of criminal appeals addressed a similar issue and rejected it. In Tyra, 897 S.W.2d 796, the court analyzed whether operating an automobile, an element of the offense of involuntary manslaughter, could also constitute use of a deadly weapon. See id. In concluding it could, the court said that operating the vehicle in a manner capable of causing serious bodily injury or death constituted its use as a deadly weapon. Id. at 798. In Mann, 58 S.W.3d 132, the court reached the same conclusion. And in Drichas, 175 S.W.3d 795, the court reversed the court of appeals's conclusion that a vehicle was not used as a deadly weapon in a case of evading detention with a motor vehicle. The court of appeals concluded that because only "some" traffic was on the roadway and the State presented no evidence that the traffic was actually endangered, the evidence was legally insufficient to show the vehicle was used as a deadly weapon. Id. at 797-800. But the court of criminal appeals said that the "volume of traffic on the road is relevant only if no traffic exists." Id. at 799. An affirmative finding of a deadly weapon has also been applied to a septic tank containing liquid where the parent, responsible for watching a child, failed to cover the tank and the child drowned in it, Rankin v. State, 46 S.W.3d 899, 900 (Tex.Crim.App. 2001); to a man's sexual organ and bodily fluids when he is H.I.V. positive and raped a child, Najera v. State, 955 S.W.2d 698, 700-01 (Tex.App.-Austin 1997, no pet.); and to a dentist's sedatives when used to anesthetize a patient who died during dental treatment, Davis v. State, 955 S.W.2d 340, 352 (Tex.App.-Fort Worth 1997, pet. ref'd). Coleman v. State, 145 S.W.3d 649, 656 (Tex.Crim.App. 2004) (Cochran, J., concurring). And in an arson case, where starting a fire was an element of the offense, the court held that the lighter used to start the fire was a deadly weapon. Lozano v. State, 860 S.W.2d 152, 156 (Tex.App.-Austin 1993, pet. ref'd); see Tex. Pen. Code Ann. § 28.02(a) (Vernon Supp. 2006). The court noted that the fire itself was also a deadly weapon because appellant used the fire in a manner capable of causing death or injury. Id. at 156 n. 9 (citing Taylor v. State, 735 S.W.2d 930, 948 (Tex.App.-Dallas 1987), rev'd on other grounds, No. 1184-87 (Tex.Crim.App. Oct. 19, 1988) (not designated for publication)). The Tyra court distinguished the cases where the mere possession of a deadly weapon did not constitute use of that weapon. For example, in Narron v. State, 835 S.W.2d 642 (Tex.Crim.App. 1992) and Ex Parte Petty, 833 S.W.2d 145 (Tex.Crim.App. 1992), the defendants were charged with unlawful possession of a firearm and possession of a firearm by a felon, respectively. Explaining why mere possession of a deadly weapon did not also constitute use of that weapon in those cases, the court said "mere possession of the weapon without putting it to any use or purpose whatsoever does not [constitute use of the weapon]." Tyra, 897 S.W.2d at 798. The weapon must be used in the commission of a felony separate and distinct from mere possession. Id. at 801 (Baird, J., concurring). In Narron and Petty, the gravamen of the offenses were possession of the firearm, and the offenses were complete upon possession. Id. at 801 (Baird, J., concurring). As a result, the possession of the deadly weapons did not facilitate the commission of the possession of a firearm offenses. Id. Here, appellant did more than merely possess the sewage: he physically pumped the sewage from the tank on his truck into the creek bed. Based on the current law, this constitutes "use" of the sewage. We conclude the evidence is sufficient to show appellant used or exhibited the sewage during commission of the offense of unlawfully discharging the sewage into the creek bed. 3. Were others actually endangered at the time appellant discharged the sewage?
Appellant argues the State's evidence of this third element amounts to no more than speculation about the danger that might result from appellant's discharge of the sewage into the creek bed. Conversely, the State argues the danger was real, "particularly since the property situated by the stream and the Trinity River are accessible to the public." The State offered no evidence that at the time appellant discharged the sewage into the creek bed, the creek had sufficient water to carry the sewage into the Trinity River. Garcia testified that the creek bed into which appellant discharged the sewage is classified as an "intermittent stream," meaning it does not have continuous running water and normally would not have water in it except when it rains. Mummert testified that when the creek has enough water in it, it flows directly into the Trinity River. But the evidence showed that the water in the creek bed was dammed by fallen trees on the day that appellant discharged the sewage into the creek bed. Mummert also testified that the area where the creek and the Trinity River join is classified as "impaired," which means it does not meet TCEQ's water quality standard, and that he would expect to see up to 200,000 CFUs per one hundred milliliters in this area. The evidence showed that the sample taken from the creek bed directly at the point of the sewage discharge contained 5,300,000 CFUs. But the sample taken on the same day approximately forty yards away where the water had pooled because of the fallen trees contained only 450 CFUs. And the State did not offer any evidence to show that the water in the creek bed or in that portion of the Trinity River was used for drinking or for swimming. Although the State argues that "municipalities near and to the south of Dallas [use] water from the Trinity River for drinking," Mummert actually testified that he did not know how many withdrawal points there are in the river from Dallas southward and that the water would first go through a treatment plant before it would be supplied for human use. The State offered no evidence that the creek bed or the Trinity River was accessible to the public. Instead, the evidence showed that the area where appellant discharged the sewage was private property and no one else had been seen in that area during the surveillance. Although Ellis testified that the gate to the property was open on January 27 and they drove in, the evidence also showed that the photographer wore a camouflage suit on prior occasions so as not to be detected. Although the State does not have to prove actual injury or death, it must show that others were actually endangered by the use of the deadly weapon at the time the offense was committed. We conclude the evidence is legally insufficient to sustain the deadly weapon finding. Because of our disposition of this issue, we do not need to reach appellant's first and third issues. We modify the judgment to delete the affirmative finding of a deadly weapon. As modified, we affirm the judgment of the trial court.