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Click here for the full text of this decision FACTS:The court examines whether an offense under Chapter 7 of the Texas Water Code occurred within the limitations period and whether the state presented sufficient evidence to support appellants’ convictions pursuant to that chapter. The court also examines whether the jury was correctly charged regarding the state’s burden of proof. The appellants, Mark Anthony Slott, Thurmond W. Gentry and Capitol Electroplating Inc., entered pleas of not guilty to two offenses: 1. intentionally disposing of hazardous waste, alleged to have occurred on Aug. 10, 1998; and 2. intentionally disposing and/or storing hazardous wastes, alleged to have occurred on Nov. 19, 1998. A jury convicted Capitol of disposing of hazardous waste on Aug. 10, 1998, and convicted Slott, Gentry and Capitol, of disposing and/or storing hazardous wastes on Nov. 19, 1998. Because the jury could not reach a verdict on the August indictments against Slott and Gentry, the trial court granted a mistrial on those indictments. HOLDING:Affirmed in part; reversed and acquitted in part. The evidence is undisputed that the contaminated sand was delivered to the Tidwell Dirt Yard in June 1998. Thus, the disposal of the hazardous waste occurred at a time outside the limitations period. The state contends that hazardous chromium from the sand continued to leak into the soil and, until the waste was remediated, Capitol continued to dispose of the waste by permitting it to passively migrate into the soil. This argument was expressly rejected by L.B. Foster Co. v. State, 106 S.W.3d 194 (Tex. App. Houston [1st Dist.] 2003, pet. ref’d). In that case, the First Court of Appeals held: “We conclude that, for purposes of criminal prosecutions under Water Code Subsection 7.162(a)(2), the term “disposal” does not include the passive disposal of hazardous wastes. In other words, a “disposal” of hazardous waste under 7.162 requires more than the passive migration of waste through the soil unaided by affirmative human conduct. Some form of affirmative human conduct must accompany a disposal for it to rise to the level of criminal culpability.” The court concludes that for purposes of criminal prosecutions under Water Code 7.162(a)(2), the term “disposal” does not include the passive disposal of hazardous wastes. Instead, some form of affirmative human conduct must accompany a disposal for it to rise to the level of criminal culpability. Here, because the act of disposal occurred in June 1998, the indictment on July 20, 2001, was not within the limitations period. The court finds legally sufficient evidence to support the convictions for illegally storing and/or disposing of hazardous waste. Further, reviewing all the evidence neutrally, the court finds the evidence is not too weak to support the jury’s finding of guilt beyond a reasonable doubt or that contrary proof was so strong that the beyond-a-reasonable-doubt standard was not met. The trial court’s instruction properly informed the jury that the state was required to prove appellants knew they were disposing of waste and knew the material had the potential to be harmful to others or the environment. The trial court’s instruction did not negate a culpable mental state because there is no requirement that appellants know the waste was categorized by the State as a hazardous waste. The trial court did not abuse its discretion by submitting the instruction. OPINION:Guzman, J.; Hedges, Fowler and Guzman, JJ.

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