Opinion
Nos. 05-03-00875-CR, 05-03-00876-CR, 05-03-00877-CR.
Opinion Filed March 17, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court No. 4, Dallas County, Texas, Trial Court Cause Nos. F02-01862-MK, F02-01863-MK, F02-73635-MK. Reverse and Remand.
Before Justices MORRIS, WRIGHT, and RICHTER.
OPINION
The State of Texas appeals the trial court's order granting Randall Felton Williams's motion to quash the indictments in these cases. Generally, the State contends the trial court erred by finding section 365.012(j) of the Texas Health and Safety Code unconstitutional on its face or as applied to Williams. After reviewing the record in this case, we agree with the State. Williams was indicted for three counts of illegal commercial dumping of more than 200 pounds of solid waste. See Tex. Health Safety Code Ann. § 365.012 (Vernon Supp. 2004). Appellee filed a motion to quash the indictments, alleging in part, that section 365.012(j) is unconstitutionally vague as applied to him because although the statute expressly provides that section 365.012 does not apply to "the temporary storage for future disposal of litter or other solid waste" and that "[t]he commission by rule shall regulate temporary storage," no such rules have been promulgated. See Tex. Health Safety Code Ann. § 365.012(j) (Vernon Supp. 2004). The trial court held two hearings on the motion. Nevertheless, Williams waived the production of any evidence in support of the motion and requested the trial court to rule on "the basis of the motion itself." The trial court later granted the motion to quash the indictments, and made the following conclusions of law:
1) Although the statute in question, Tex. Health Safety Code § 365.012(j) explicitly denies its application to "temporary storage" of solid waste in certain conditions, Tex. Health Safety code § 365 does not define "temporary storage."
2) Regardless of how long Williams stored his waste, this court concludes that Tex. Health Safety Code § 365.012 is unconstitutional as applied to Williams due to the lack of a definition of "temporary storage."
3) Further, Tex. Health Safety Code § 365.012 is unconstitutional on its face as, due to the lack of a definition of "temporary storage," it is unconstitutional in every conceivable application.This appeal followed. When reviewing the constitutionality of a statute, we presume its validity and that the legislature has not acted unreasonably or arbitrarily in its enactment. See Ex parte Granviel, 561 S.W.2d 503, 511 (Tex.Crim.App. 1978); Davis v. State, 68 S.W.3d 273, 283 (Tex. App.-Dallas 2002, pet. ref'd). The party challenging the statute has the burden of proving its unconstitutionality. Davis, 68 S.W.3d at 283. A statute is void for vagueness when it fails to give a person of ordinary intelligence fair notice of what the statute requires or is so indefinite that it encourages arbitrary arrests and convictions. Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498 (1982); Margraves v. State, 34 S.W.3d 912, 920 (Tex.Crim.App. 2000). When the statute does not involve constitutionally protected conduct, we engage in a two-part analysis, first applying the statute to the appellant's conduct and next determining whether the statute is vague in all its applications. See Village of Hoffman Estates, 455 U.S. at 498; Margraves, 34 S.W.3d at 921; Bynum v. State, 767 S.W.2d 769, 774 (Tex.Crim.App. 1989). Here, Williams does not contend, nor would we agree, that his business of "recycling wood and composition shingles into mulch and paving materials" is constitutionally protected conduct. Thus, it was incumbent upon Williams to show that section 365.012(j) is unconstitutional as applied to his conduct. Bynum, 767 S.W.2d at 774. At the hearing on the motion to quash, Williams declined to put on any evidence in support of his motion. Thus, our record fails to show any evidence of Williams's conduct in this case. In other words, there is no evidence to support his claim on appeal that he was temporarily storing the wood and composition shingles for recycling purposes. Nor does the record contain any evidence that Williams was confused about the meaning of the statute or was unable to comply with it. See Ristoff v. State, 985 S.W.2d 623, 624 (Tex. App.-Houston [1st Dist.] 1999, no pet.) (statute not unconstitutionally vague as applied where appellant failed to put on any evidence that he was confused about the meaning of the statute or unable to comply with it); McGee v. State, 923 S.W.2d 627, 631 (Tex. App.-Houston [1st Dist.] 1995, pet. ref'd) (same). Thus, even if the rules regulating temporary storage had not been promulgated, we cannot speculate about whether the lack of a definition regarding "temporary storage" caused Williams to be confused about the meaning of the statute or somehow caused him to be unable to comply with it. Because the record is devoid of any evidence showing that section 365.012(j) is unconstitutional as applied to Williams's conduct, the trial court erred by reaching that conclusion. Further, because Williams failed to show section 365.012(j) is unconstitutional as applied to him, the trial court erred by concluding section 365.012(j) is vague in all its applications. See Village of Hoffman Estates, 455 U.S. at 498; Margraves, 34 S.W.3d at 921. We sustain the State's point of error. Accordingly, we reverse the trial court's order quashing the indictments in these cases and remand to the trial court for further proceedings.
Contrary to William's contention in his brief, an indictment is not evidence. See Ex parte Salas, 724 S.W.2d 67, 68 (Tex.Crim.App. 1987) (indictment is not evidence as to when a prior offense was committed other than where there is a final conviction the offense should be presumed to have been committed some time within the period of limitation). Thus, we cannot conclude the indictment shows how long Williams had stored the roofing materials.