JAMES F. GLENDENING, Appellant v. THE STATE OF TEXAS, Appellee

REVERSED AND REMANDED; Opinion Filed January 9, 2006
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-06-00001-CR
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JAMES F. GLENDENING, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 15th Judicial District Court
Grayson County, Texas
Trial Court Cause No. 049061
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OPINION
Before Justices Bridges, FitzGerald, and Lang
Opinion By Justice FitzGerald
        On his plea of not guilty, a jury convicted James F. Glendening of the state jail felony offense of illegal dumping of scrap tires pursuant to section 365.012(g)(2) of the health and safety code. See Tex. Health & Safety Code Ann. § 365.012(g)(2) (Vernon Supp. 2006). He was sentenced to two years' confinement, probated for four years, and assessed a $10,000 fine. In three issues, appellant contends the trial court improperly overruled his objection to the State's closing argument; he received ineffective assistance of counsel at trial because counsel failed to assert a bar to prosecution provided by section 365.012(k) of the health and safety code regarding “temporary storage for future disposal” of the scrap tires; and the term “temporary storage” in section 365.012(k) is unconstitutionally vague. Because we agree appellant received ineffective assistance of counsel, we resolve his second issue in his favor. Therefore, we reverse the trial court's judgment and remand this case to the trial court for new trial.
BACKGROUND
        In 1999, appellant acquired a tire baler and moved it onto property he bought in rural Grayson County. Appellant applied to the Texas Natural Resource Conservation Commission (the Commission)   See Footnote 1  for registration as a scrap tire facility processor, representing that he would use a “mobile bailer” and that the maximum number of tires to be received monthly would be 65,000, and the maximum number and weight of scrap tires to be stored on the site was 5,000, weighing 50 tons. In his application, appellant “agree[d] to develop and operate the site in accordance with the application, regulations, and any special conditions that may be imposed . . . .” Appellant stated that 2,500 to 3,000 scrap tires would be accepted daily at the site; all tires were expected to be processed and baled that same day and no later than 48 hours; all bales would be used for “road base foundation”; and the completed job would require “almost 200,000 scrap tires and we anticipate a 4 to 5 month completion time.”
        Appellant also applied to the Commission for registration as a scrap tire transporter. Both applications were approved. By a letter dated September 9, 1999, the Commission approved appellant's application and issued a registration, effective for 60 months; also, the Commission authorized the baling and “the temporary and short-term storage of not more that 65,000 whole passenger size scrap tires (or weight equivalent) at the site . . . .” Further, the letter stated, “The conditions for the issuance of this registration are that all operations be conducted in accordance with the application and in compliance with all applicable Commission rules.”   See Footnote 2 
        An employee transported tires to the property beginning in December 1999. There was evidence that 110 tires produced 1 bale. About 7,000 tires were baled over a period of seven to eight months, and then the baler stopped working. The baler was never repaired.
        The Commission's inspectors visited the property in April 2000, and noted some violations of regulations, such as a lack of mosquito control. The inspectors also noted that no tires were being baled. Their report noted that there were 60 tire bales and 40,000 to 50,000 scrap tires on the ground. In September 2000, the Commission conducted another inspection and noted there were an estimated 70,000 tires on the property and there had been no baling or transporting offsite for over 6 months.
        A third inspection was conducted in January 2001. Regulatory violations were noted, and between 110,000 and 120,000 tires were observed on the ground, but no baling operation was observed. The Commission considered appellant's facility to be an “unauthorized tire site.”
        The Commission conducted a final inspection on September 26, 2001, “to evaluate and review [appellant's] thirty day supply authorization.” The Commission's environmental investigator/structural management registration coordinator called appellant before the inspection and told him it was “to evaluate his registration.” Appellant told the investigator he did not have the money to continue the baling; he “didn't care” if his registration was revoked; and he “would continue to take tires on his property because he needed the money.” The investigation team noted regulatory violations and about 164,000 tires on the property, and there had been no baling. The Commission rescinded the thirty-day supply, which meant that the site “became unauthorized,” and began the process to revoke appellant's approvals. According to the Commission, appellant was “no longer operating according to his registration.” There was evidence appellant received the inspection report. There was also evidence appellant paid a penalty assessed by the Commission and stopped receiving tires after the Commission revoked his approvals.
         Appellant testified the Commission told him to stop collecting tires, but he ignored the request because he had monthly expenses to cover. He testified his monthly income from the business was $7,920; his expenses were $10,005; and his monthly loss was $2,085. There was testimony that appellant took some cash from the business account for personal expenses. He testified that the cost of repairing the baler was $1,000. He also testified that he had an arrangement with the Texas Department of Transportation to use the bales for erosion. However, he estimated he needed to get $25 to $35 per bale for the project. The Department discovered it could get free bales from an out-of-state supplier. Appellant gave the bales to the Department, but decided not to “pay for employees or straps or fuel or anything else to bale more tires without any compensation.”
        Appellant also testified that he talked to people in Florida about equipment that would liquify rubber, tires, and garbage into pellets. He also testified that he brought a scrap tire recycling consultant from Kansas City to the site to help determine a way “to get this recycling thing going.” However, she determined the property was not suitable. Appellant testified that he “tried . . . to come up with a solution.” He also testified that he tried to find an investor to “take this business forward and turn it into a viable operation.”
        The indictment alleged appellant, on or about September 6, 2001, in Grayson County, for a commercial purpose, intentionally or knowingly transported, disposed, allowed, permitted, or received litter or other solid waste, namely, discarded scrap tires, having an aggregate weight of 200 pounds or more, or a volume of 200 cubic feet or more, at a place that was not an approved solid waste site. The jury charge tracked the indictment.
        After the jury convicted him of illegal dumping and punishment was assessed, appellant filed a motion for new trial or motion for arrest of judgment, contending the evidence at trial showed he temporarily stored the tires on his property for future disposal at the time the offense was alleged to have occurred, pursuant to section 365.012(k), but this issue was not raised as a bar to prosecution because his attorney failed to notice this section and did not raise it. Thus, he alleged he received ineffective assistance of counsel. Appellant also asserted that section 365.012(k) was unconstitutionally vague as it applied to him because it did not define “temporary storage.” The trial court heard the motion and orally denied it. This appeal followed.
INEFFECTIVE ASSISTANCE OF COUNSEL
        In his second issue, appellant contends section 365.012(k) is a bar to prosecution that applied in these circumstances and, therefore, his counsel should have raised it at trial and brought it as part of the jury charge.
Standard of Review
        To establish ineffective assistance of counsel, appellant must show by a preponderance of the evidence that his counsel's representation fell below the standard of prevailing professional norms and that there is a reasonable probability that, but for counsel's deficiency, the result of the trial would have been different. Strickland v. Washington, 466 U.S. 668, 687 (1984); see Ex parte Gonzales, 204 S.W.3d 391, 393 (Tex. Crim. App. 2006); Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005). We presume counsel's actions and decisions were reasonably professional and motivated by sound trial strategy. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). When reviewing a claim of ineffective assistance, we “must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'” Strickland, 466 U.S. at 689 (citation omitted). The second prong means that the appellant must show a reasonable probability that, but for his counsel's unprofessional errors, the result of the proceeding would have been different. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). A “reasonable probability” is one sufficient to undermine confidence in the outcome. Id. We judge counsel's performance by “the totality of the representation”; our scrutiny of counsel's performance must be highly deferential with every effort made to eliminate the distorting effects of hindsight. See Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006).
 
Jury Instruction
        It is well settled that an accused has the right to an instruction on any defensive issue raised by the evidence, whether that evidence is weak or strong, unimpeached or contradicted, and regardless of what the trial court may or may not think about the credibility of the evidence. Granger v. State, 3 S.W.3d 36, 38 (Tex. Crim. App. 1999); Dyson v. State, 672 S.W.2d 460, 463 (Tex. Crim. App. 1984). This rule is designed to insure that the jury, not the judge, will decide the relative credibility of the evidence. Granger, 3 S.W.3d at 38. The defendant's testimony alone may be sufficient to raise a defensive theory requiring a charge. Dyson, 672 S.W.2d at 463.
Criminal Penalties for Illegal Dumping
        Section 365.012 of the health and safety code provides for criminal penalties for illegal dumping; subsections (a) through (c) provide:
 
(a) A person commits an offense if the person disposes or allows or permits the disposal of litter or other solid waste at a place that is not an approved solid waste site, including a place on or within 300 feet of a public highway, on a right-of-way, on other public or private property, or into inland or coastal water of the state.
 
 
 
(b) A person commits an offense if the person receives litter or other solid waste for disposal at a place that is not an approved solid waste site, regardless of whether the litter or other solid waste or the land on which the litter or other solid waste is disposed is owned or controlled by the person.
 
(c) A person commits an offense if the person transports litter or other solid waste to a place that is not an approved solid waste site for disposal at the site.
 
Tex. Health & Safety Code Ann. § 365.012(a)-(c) (Vernon Supp. 2006). Subsection (g)(2) classifies the offense as a state jail felony if the litter or solid waste is disposed of for a commercial purpose and weighs 200 pounds or more or has a volume of 200 cubic feet or more. Id. § 365.012(g)(2).   See Footnote 3  Subsection (k) provides:
 
(k) This section does not apply to the temporary storage for future disposal of litter or other solid waste by a person on land owned by that person, or by that person's agent. The commission by rule shall regulate temporary storage for future disposal of litter or other solid waste by a person on land owned by the person or the person's agent.
 
Id. § 365.012(k). “Litter” includes tires. Id. § 365.011(6)(B)(iii) (Vernon 2001).
 
Discussion
        At the hearing on the motion for new trial, appellant's trial counsel testified that he had been a criminal lawyer for about twenty-five years, but this was his first “trash case.” He testified that he “probably” read section 365.012(k), but, “I can't say that I really got familiar with it at that point.” He testified the evidence showed that there were about 200,000 tires on the property owned by appellant; the tires had been on the property for “about a few years”; and appellant “intended on recycling these tires at some point.” Based on that evidence, counsel testified that section 365.012(k) “could have been an exclusion,” but “for whatever reason” he, as counsel, “didn't consider it at this point.” Counsel testified that he should have requested as part of the jury charge “for the jury to consider whether it was temporary storage going on or not.”
        Counsel testified that this section “should have been brought out at trial.” He was asked, “[C]ould the results have been different?” He replied, “Yes, I suppose so, depending upon the jury's view of it, yes.” The State asked counsel whether the evidence showing appellant “had to move so many tires within thirty days” would be “more like temporary” than the “two plus years at the time of the indictment.” Counsel replied, “Probably so, yes.” Counsel also testified that appellant “all along [had] the intent of recycling tires” and “temporary” is a “fact issue depending on the circumstances.”
        It is undisputed that appellant baled some tires and continued to receive tires in excess of the number approved by the Commission for a 30-day supply and for on-site storage. It is also undisputed that appellant intended the baling business to be a commercial operation and explored possibilities other than baling to dispose of the tires. Appellant's issue depends on whether his testimony, if believed, was some evidence that he was engaged in the “temporary storage for future disposal” of the scrap tires, thus entitling him to an instruction on this issue. See id. § 365.012(k); see also Tex. Pen. Code Ann. § 2.03(e) (Vernon 2003) (“A ground of defense in a penal law that is not plainly labeled in accordance with this chapter has the procedural and evidentiary consequences of a defense.”). We conclude that it was. Counsel's testimony at the hearing on the motion for new trial shows that failure to request such an instruction was not the result of trial strategy, but a failure to read subsection (k) and, in light of appellant's testimony at trial, request a defensive jury instruction. See Granger, 3 S.W.3d at 38; Dyson, 672 S.W.2d at 463. Thus, appellant's counsel's representation fell below the standard of prevailing professional norms by failing to request such an instruction.         Moreover, trial counsel testified that, if the jury believed appellant's testimony, counsel thought the result would have been different. As trial counsel noted, appellant “all along [had] the intent of recycling tires” and “temporary” is a “fact issue depending on the circumstances.” Credibility issues are for the jury. See Granger, 3 S.W.3d at 38; Dyson, 672 S.W.2d at 463. The State argues that appellant failed to put on any evidence that the result of the trial would have been different if counsel had raised subsection (k). The State argues that no jurors testified that such a defense would have changed their opinions. However, “[p]rejudice to [appellant] from counsel's deficient performance is judged by 'whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.'” Ex parte Amezquita, No. AP-75383, 2006 WL 3391037, at *2 (Tex. Crim. App. Nov. 22, 2006) (quoting Ex parte Chandler, 182 S.W.3d 350, 353 (Tex. Crim. App. 2005)); see Strickland, 466 U.S. at 686. “[T]he purpose of the constitutional requirement of effective counsel is to ensure a fair trial.” Ex parte Amezquita, 2006 WL 3391037, at *2 (quoting Ex parte Chandler, 182 S.W.3d at 353); see Strickland, 466 U.S. at 686. The submission of an instruction under section 365.012(k) would have properly presented appellant's defense raised by the evidence. Omission of this instruction deprived appellant of any legal defense. We conclude trial counsel's testimony is some evidence there was a reasonable probability that, but for the failure to request an instruction, the jury would have had the opportunity to consider whether appellant came within subsection (k) and the result of the proceeding would have been different. See Ex parte Gonzales, 204 S.W.3d at 393, 399-400. Consequently, we cannot rely on the trial as having produced a just result. See Ex parte Amezquita, 2006 WL 3391037, at *2.
        The State also argues that subsection (k) “appears to protect individual land owners who are engaged in private, non-commercial activities that result in the temporary storage of tires on their own land.” Thus, the State argues that because appellant was running a commercial operation involving large amounts of tires on land “he bought for the purpose of dumping tires on it,” he was not the type of individual meant to be protected by subsection (k). As explained in Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991), courts must interpret an unambiguous statute literally, unless doing so would lead to an absurd result that the legislature could not have intended. By beginning with the plain language of a statute to interpret its meaning, courts “seek to effectuate the 'collective' intent or purpose of the legislators who enacted the legislation.” Id. (citation omitted). Moreover, every word of a statute is presumed to have been used for a purpose, and every word excluded must also be presumed to have been excluded for a purpose. Timmons v. State, 952 S.W.2d 891, 892 (Tex. App.-Dallas 1997, no pet.).
        By its plain language, subsection (k) is not directed solely to either ordinary citizens or businesses. See Ex parte Weise, 23 S.W.3d 449, 455 (Tex. App.-Houston [1st Dist.] 2000, orig. proceeding), rev'd on other grounds, 55 S.W.3d 617 (Tex. Crim. App. 2001). We note that both subsections (f)(2) and (g)(2) apply penalties to disposal of litter or other solid waste “for a commercial purpose,” but this language is not included in subsection (k). See Tex. Health & Safety Code Ann. §§ 365.012(f)(2), (g)(2). In addition, section 365.014 provides for a defense for farmers and an affirmative defense for persons who receive litter or other solid waste from another person, but did not know, or reasonably could not have known, that litter or other solid waste was involved, and did not receive compensation for the receipt, storage, processing, or treatment. See id. §§ 365.014(a), (c) (Vernon 2001). We presume the legislature did not include any narrowing language, such as relating to “commercial purpose” or “compensation,” in subsection (k) for a purpose. See Timmons, 952 S.W.2d at 892. Accordingly, we reject the State's argument that subsection (k) applies only to non-commercial operations.
        We conclude appellant carried his burden to produce evidence that trial counsel's performance was deficient and that, but for counsel's unprofessional errors, the result of the trial would have been different. See Bone, 77 S.W.3d at 833. Accordingly, we resolve appellant's second issue in his favor.
CONCLUSION
        Having resolved appellant's second issue in his favor, we reverse the trial court's judgment and remand this case to the trial court for new trial. Because of our disposition of appellant's second issue, we need not address his first issue as to closing argument or his third issue raising a constitutional challenge. See Tex. R. App. P. 47.1; Ward v. State, 188 S.W.3d 874, 876 n.1 (Tex. App.-Amarillo 2006, pet. ref'd) (courts do not consider constitutional challenges when they can dispose of cases on nonconstitutional grounds).
 
                                                          
                                                          KERRY P. FITZGERALD
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
060001F.U05
 
Footnote 1 In 2002, the Texas Natural Resource Conservation Commission was renamed the Texas Commission on Environmental Quality. See City of Marshall v. City of Uncertain, 206 S.W.3d 97, 99 n.1 (Tex. 2006). Our references to “the Commission” include both the TNRCC and the TCEQ.
Footnote 2 See 30 Tex. Admin. Code § 328.63(b) (1999) (Tex. Comm'n on Envtl. Quality, Scrap Tire Facility Requirements) (providing for “scrap tire storage site registration”).
Footnote 3 The Commission considers a passenger tire as occupying 4 cubic feet and weighing 20 pounds. 30 Tex. Admin. Code § 328.71(d)(1) (Tex. Comm'n on Envtl. Quality 1999, amended 2001).