Thomas Edward Blankenship v. the State of Texas ( 2022 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-20-00157-CR
___________________________
THOMAS EDWARD BLANKENSHIP, Appellant
V.
THE STATE OF TEXAS
On Appeal from County Court at Law
Hood County, Texas
Trial Court No. 52381
Before Sudderth, C.J.; Womack and Walker, JJ
Dissenting Opinion by Justice Walker
DISSENTING OPINION
While I agree with the majority that there was no evidence that the treated
wood, soda cans, and bottles qualified as “heavy oils, asphaltic materials, potentially
explosive materials, or chemical wastes,” I disagree that there was sufficient evidence
to conclude that Blankenship unlawfully burned “treated lumber.” Accordingly, I
respectfully dissent and would reverse the trial court’s judgment.
I. THE TECHNICAL-MEANING EXCEPTION APPLIES HERE
The majority sets forth its definition of “treated lumber” as timber or logs that
have been cut into planks and have been subjected “(as a natural or manufactured
article) to some process to improve the appearance, taste, usefulness, or some other
quality.” To arrive here, the majority employs the “plain meaning rule” of statutory
construction by separating the phrase “treated lumber” into its two terms, assigning
each term its isolated dictionary definition, and melding the separately-defined terms
back together. See State v. Rhine, 297 S.W.3d 301, 310–312 (Tex. Crim. App. 2009). It
then concludes that the plywood burned by Blankenship was “treated lumber”
because the evidence showed that plywood generally1 is lumber subjected to
processing to improve its performance, condition, or appearance—namely by gluing
thin sheets of lumber together.
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Though there was witness testimony that plywood is broadly understood to
contain adhesives or glues, there was, in fact, no other evidence that Blankenship’s
plywood definitely contained glue, and there was no evidence that, if his plywood did
contain glue, such glue was toxic or otherwise illegal to burn.
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However, by deconstructing the whole into its parts, the majority causes the
phrase “treated lumber” to lose its recognized technical meaning. Courts ordinarily
construe undefined statutory words and phrases by looking to their plain meaning—
as the majority did here2—“[b]ut when a term unknown to the law has a particular or
technical meaning as applied to some art, science[,] or trade, the court will look to the
particular craft in order to ascertain its proper significance.” State v. Kaiser, 822 S.W.2d
697, 700 (Tex. App.—Fort Worth 1991, pet. ref’d); see Tex. Gov’t Code Ann. §
311.011(b); Clinton v State, 354 S.W.3d 795, 800 (Tex. Crim. App. 2011) (“But if those
statutory terms have a technical meaning, they will be construed consistent with that
2
Quoting from Medford v. State, the majority concludes that the technical-
meaning exception to the plain-meaning rule is inapplicable here because technical
terms are only those “which have a known and established legal meaning, or which
have acquired a peculiar and appropriate meaning in the law, as where words used
have a well-known common law meaning.” 13 S.W.3d 769, 772 (Tex. Crim. App.
2000). But Medford is not such a narrow holding, which is evidenced by reading in its
fuller context the language quoted by the majority:
The canons of construction dictate that words and phrases possessing a
technical meaning are generally to be considered as having been used in
their technical sense. This applies to those terms which have a known
and established legal meaning, or which have acquired a peculiar and
appropriate meaning in the law, as where the words used have a well-
known common law meaning.
Id. (internal citations omitted). Thus, Medford establishes (1) that courts are to
construe technical words and phrases using their technical sense and (2) that one
possible application of the technical-meaning exception occurs when words or
phrases have acquired a particular legal meaning. Id. It does not foreclose other
possible applications of the exception, and, as I highlight below, courts have freely
applied the exception to other contexts. See Tex. Gov't Code Ann. § 311.011(b)
(“Words and phrases that have acquired a technical or particular meaning, whether by
legislative definition or otherwise, shall be construed accordingly.”) (emphasis added).
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technical meaning.”); Garner v. State, 523 S.W.3d 266, 276 (Tex. App.—Dallas 2017,
no pet.) (same).
In construing technical words and phrases, we can consult appropriate trade
sources, to include reference materials or expert testimony. Kaiser, 822 S.W.2d at 700;
see Tex. Orthopaedic Ass’n v. Tex. State Bd. of Podiatric Med. Examr’s, 254 S.W.3d 714, 721
(Tex. App.—Austin 2008, pet. denied) (consulting anatomy atlas to determine the
meaning of “foot” in medical licensing context); State v. Bingham, 921 S.W.2d 494, 496
(Tex. App.—Waco 1996, pet. ref’d) (looking to medical dictionary and testimony of
phlebotomist to define phrase “qualified technician”); Lloyd A. Fry Roofing Co. v. State,
541 S.W.2d 639, 642–43 (Tex. Civ. App.—Dallas 1976, writ ref’d n.r.e.) (“If such a
technical term is not defined in the statute, courts have interpreted the statutes in the
light of the testimony of expert witnesses familiar with the particular art, science, or
trade.”); see also Reliant Energy, Inc. v. Pub. Util. Comm’n of Tex., 62 S.W.3d 833, 836 n.2
(Tex. App.—Austin 2001, no pet.) (concluding in the public utilities context that “fuel
factor” was a term of art undefined by statute and looking to substantive
administrative rules to determine its technical meaning).
II. “TREATED LUMBER” HAS A TECHNICAL MEANING
The phrase “treated lumber” is a technical term which is understood by
construction trade professionals to mean lumber that has been treated with chemicals
to inhibit combustibility, rot, or decay. See treated lumber, McGraw-Hill Dictionary of
Architecture and Construction, https://encyclopedia2.thefreedictionary.com
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/treated+lumber (last visited July 5, 2022) (defining “treated lumber” as “lumber that
has been treated with a preservative”); see also International Building Code §§ 2302.1,
2303.1.9, 2303.2 (Int’l Code Council 2014) (codified into law at Tex. Loc. Gov't Code
Ann. § 214.216 and 16 Tex. Admin. Code 70.100) (defining “treated wood” as either
“fire-retardant-treated wood” or “preservative-treated wood”); EPA, Overview of Wood
Preservative Chemicals, https://www.epa.gov/ingredients-used-pesticide-
products/overview-wood preservative-chemicals (last visited July 5, 2022) (explaining
that the wood “treatment process” involves applying “preservative products” to
control wood degradation brought on by environmental factors); see also Craig
Bettenhausen, What is pressure treated lumber, and how does it forestall decay?, CHEMICAL AND
ENGINEERING NEWS, https://cen.acs.org/business/consumer-products/What-is-
pressure-treated-lumber-how-does-it-forestall-decay/100/i9 (last visited July 5, 2022)
(“The basics of pressure-treated lumber are close to common knowledge: it’s what
you use outdoors, it often has a greenish tint at the store, and you’re not supposed to
burn it, because that vaporizes the chemicals that preserve it against decay.”).
The testimony presented at Blankenship’s trial supports that “treated lumber”
has acquired such an industry-recognized definition. Cosgrove testified—as an expert
in both fire investigations and the construction industry—that “[t]reated wood[,] as
far as the industry standard goes[,]” is wood that “is normally treated with a copper
solution that prevents any kind of rotting or deterioration of the wood.” He stated
that plywood is created by gluing together small sheets of wood using “some type of
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glue product,” but that most plywood “is not what would be considered treated
wood.” Officers Montemayor and Lane generally concurred with Cosgrove’s
definition of plywood, and Montemayor explicitly conceded that there was such a
thing as “untreated plywood.”
Further, the TCEQ regulations cited by the majority in support of its definition
actually show that the regulatory scheme does not contemplate that plywood
constitutes “treated lumber” simply because it has undergone a gluing process. In
regulating solid waste emissions, the TCEQ defines “wood waste” and provides that
wood waste does not include:
Treated wood and treated wood products, including wood products that
have been painted, pigment-stained, or pressure treated by compounds
such as chromate copper arsenate, pentachlorophenol, and creosote, or
manufactured wood products that contain adhesives or resins (e.g.,
plywood, particle board, flake board, and oriented strand board).
30 Tex. Admin. Code § 113.2300(41)(D).
The majority argues that this definition places adhesive-containing products
such as plywood firmly within the definition of “treated wood.” However, this
definition clearly addresses two distinct items: (1) treated wood/treated wood
products and (2) manufactured wood products. Id. The former is defined to include
“wood products that have been painted, pigment-stained, or pressure treated by
compounds such as chromate copper arsenate, pentachlorophenol, and creosote.” Id.Then, “creosote” is followed by an “or,” and “manufactured wood products” are
defined as those containing adhesives and resins, such as plywood. Id. In other
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words, under this definition of wood waste, plywood is used not as an example of a
treated wood product but, rather, a manufactured wood product.
Similarly, the TCEQ definition of “clean lumber” provides that clean lumber
“does not include wood products that have been painted, pigment-stained, or
pressure-treated by compounds such as chromate copper arsenate,
pentachlorophenol, and creosote, or manufactured wood products that contain
adhesives or resins (e.g., plywood, particle board, flake board, and oriented strand
board).” 30 Tex. Admin. Code § 113.2300(10). Again, plywood falls under the
“manufactured wood products” label; not the treated lumber label. Id.And, tellingly, the TCEQ—in regulating municipal waste combustion unit
emissions—defines “untreated lumber” as explicitly excluding products treated with
preservative chemicals but not excluding products containing adhesives, such as
plywood:
Untreated lumber--Wood or wood products that have been cut or
shaped and include wet, air-dried, and kiln-dried wood products.
Untreated lumber does not include wood products that have been
painted, pigment-stained, or pressure-treated by compounds such as
chromate copper arsenate, pentachlorophenol, and creosote.
30 Tex. Admin. Code § 113.2100(54).
Thus, the regulatory context supports that “treated lumber” is lumber upon
which certain preservative chemicals have been applied.
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III. THE MAJORITY DEFINITION INVITES ABSURD RESULTS
Finally, I fear that the majority’s broad definition would lead to absurd results.
See Wagner v. State, 539 S.W.3d 298, 308–09 (Tex. Crim. App. 2018) (“[W]e will apply
the plain meanings of [statutory] terms unless doing so would lead to absurd results
that the Legislature could not possibly have intended.”). If we adhere, as the majority
holds, to the plain-language definition of “treated lumber” as wooden planks that
have been subjected “to some process to improve [their] appearance, taste, usefulness,
or some other quality,” then citizens would be subject to criminal penalties for
burning a wide-ranging and unintended number of wood products. Any of the
following otherwise untreated products would meet the majority’s definition:
• lumber painted with non-toxic paint;
• two boards nailed together;
• boards cut into intricate shapes or designs;
• planks ground into sawdust for use in animal pens; or
• popsicle sticks glued together for a school project.
The legislature cannot have intended that people be criminally prosecuted for
burning any of these materials. See id.IV. CONCLUSION
Thus, because “treated lumber” has acquired a technical meaning as lumber
treated with chemicals for preservative or fire-retardant purposes and there is no
evidence in the record that Blankenship’s plywood was treated in this manner, and
because the majority’s holding would lead to absurd results, I respectfully dissent.
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/s/ Brian Walker
Brian Walker
Justice
Publish
Delivered: July 14, 2022
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