Opinion
No. 11-02-00030-CR.
April 8, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
Appeal from Harris County.
Panel consists of: ARNOT, C.J., and WRIGHT, J., and McCALL, J.
Opinion
Our former opinion and judgment dated February 26, 2004, are withdrawn, and our opinion and judgment dated April 8, 2004, are substituted therefor. The jury convicted Abudu Kadiri Alli d/b/a United Foreign Auto Salvage of the offense of disposing used oil on land, an offense set out in the Texas Water Code. See TEX. WATER CODE ANN. § 7.176(a)(2) (Vernon 2000). The trial court assessed his punishment at confinement in the Institutional Division of the Texas Department of Criminal Justice for a term of 2 years. The trial court also assessed a fine in the amount of $5,000. The trial court further suspended the imposition of the sentence and placed appellant on community supervision for 4 years. We affirm. Appellant brings four points of error on appeal. Each of the points attack the sufficiency of the evidence supporting his conviction. After the submission of this cause on September 18, 2003, this court discovered that the reporter's record filed in this cause did not contain any of the exhibits admitted at trial. The clerk of this court contacted the court reporter regarding the omission of the trial exhibits from the reporter's record. The court reporter subsequently filed an affidavit with this court which stated that appellant was not indigent and that his retained counsel did not designate the trial exhibits for inclusion in the reporter's record. This court then issued an order on December 18, 2003, which advised the parties that this appeal would be considered without the trial exhibits unless appellant made sufficient financial arrangements with the court reporter to file the trial exhibits in this cause in a supplemental reporter's record. The court's order further directed that a supplemental reporter's record containing the trial exhibits be filed on or before January 15, 2004. A supplemental reporter's record containing the trial exhibits has not been filed. TEX.R.APP.P. 34.6(c)(5) provides that the appellate record must include all of the evidence admitted at trial on the issue of guilt or innocence and punishment if the appellant in a criminal case wishes to present a point complaining that the evidence is insufficient to support a finding of guilt. In Greenwood v. State, 823 S.W.2d 660, 661 (Tex.Cr.App. 1992), the court stated that: "[A] sufficiency challenge cannot be raised with only a partial record." Appellant alleges in his first point of error that the evidence was legally insufficient to support his conviction because it failed to establish that he "directly disposed" of used oil on land In support of this argument, he contends that there was insufficient evidence of used oil being present on his property. He further argues that the evidence failed to establish that he "directly disposed" of used oil on land by his own conduct as opposed to the conduct of some other actor or intervening agent. Appellant makes the same "direct disposal" argument in his third point of error. Appellant's fourth point of error attacks the factual sufficiency of the evidence supporting his conviction. Since these points of error attack the sufficiency of the evidence supporting the jury's determination of appellant's guilt, he has waived the complaints by his failure to present a complete record for appellate review. Appellant's first, third, and fourth points of error are overruled. In his second point of error, appellant asserts that the indictment was jurisdictionally defective and that the evidence offered at trial was legally insufficient to support his conviction. While the second point of error references an alleged defect in the indictment, it is essentially a complaint regarding the sufficiency of the evidence which appellant has waived for the reasons stated above. With respect to the alleged defect in the indictment, appellant asserts that a corporation cannot be criminally liable for violating the Water Code provision for which he was convicted. This argument is misplaced, however, because the indictment did not charge appellant in a corporate capacity. Moreover, appellant has waived any defect in the indictment regarding the capacity in which he was charged. A substantive defect in an indictment must be raised prior to trial in order to avoid waiver. TEX. CODE CRIM. PRO. ANN. art. 1.14(b) (Vernon Supp. 2004); Sanchez v. State, 120 S.W.3d 359, 363 (Tex.Cr.App. 2003). The record does not indicate that appellant raised his complaint regarding corporate capacity in a pretrial objection. Appellant's second point of error is overruled. The judgment of the trial court is affirmed.
The reporter's record indicates that over 100 exhibits were admitted at trial.
A similar evidentiary challenge was asserted in L.B. Foster Company v. State, 106 S.W.3d 194, 208-11 (Tex.App.-Houston [1st Dist.] 2003, pet'n ref'd). The First Court of Appeals rejected the argument that evidence must be offered showing that the defendant directly deposited oil on land L.B. Foster Company v. State, supra at 208-11.
The court rejected the same argument in L.B. Foster Company v. State, supra at 207-08.