RISTOFF v. STATE (1999)

OPINION

A jury found appellant, John Ristoff, guilty of three misdemeanor offenses of outdoor burning under the Texas Clean Air Act and assessed punishment as follows:  a $1,500 fine for a burning on February 10, 1996 (trial no. 9614048, appeal no. 01–96–00780);  and 30 days confinement in Harris County Jail, probated for two years, plus a $3,000 fine for a burning on March 10, 1996 (trial no. 9614050, appeal no. 01–96–00782).¹  We affirm.

Juror Disqualification

In point of error five, appellant asserts he is entitled to a new trial because one of the jurors was under felony indictment for welfare fraud at the time of trial.   Statutory law provides that a person under indictment for any felony is disqualified from jury service.  tex. Code Crim. P. Ann. arts. 35.16(a)(3), 35.19 (Vernon 1989).

It is undisputed that the juror was unaware of her indictment when she sat on the jury.   The jury was impaneled from June 11 to June 13, 1996.   On June 6, 1996, a Harris County grand jury had indicted the juror, but she was unaware of the indictment until after appellant's trial ended, apparently due to both a change of address and administrative processing time.

The Code of Criminal Procedure provides:

A conviction in a criminal case may be reversed on appeal on the ground that a juror in the case was absolutely disqualified from service under Article 35.19 of this code only if:

(1) the defendant raises the disqualification before the verdict is entered;  or

(2) the disqualification was not discovered or brought to the attention of the trial court until after the verdict was entered and the defendant makes a showing of significant harm by the service of the disqualified juror.

tex.Code Crim. P. Ann. art. 44.46 (Vernon Supp.1999).   Therefore, because the disqualification was not discovered, and thus not brought to the attention of the trial court, until after the verdict was entered, appellant may be granted a new trial only if the juror's service caused “significant harm.”   Art. 44.46(2).

Appellant filed a motion for new trial in each case, asserting the juror was absolutely disqualified from jury service by virtue of her indictment.   However, at the hearing on appellant's motions, appellant made no attempt to show significant harm, nor is any apparent.   Appellant failed to meet his burden.   See State v. Read, 965 S.W.2d 74, 77 (Tex.App.—Austin 1998, no pet.);  Hernandez v. State, 952 S.W.2d 59, 71 (Tex.App.—Austin 1997), vacated on other grounds, 957 S.W.2d 851 (Tex.Crim.App.1998).

We overrule point of error five.

The discussion of the remaining points of error does not meet the criteria for publication, tex.R.App. P. 47.4, and is thus ordered not published.

We affirm the judgments.

Sufficiency of the Evidence

In points of error one and two, appellant challenges the legal and factual sufficiency of the evidence.   Specifically, appellant asserts the evidence is insufficient to prove that he caused, allowed, or permitted outdoor burning on the specific dates alleged in the informations.

We review the evidence in accordance with the standards for legal sufficiency review, McDuff v. State, 939 S.W.2d 607, 614 (Tex.Crim.App.1997), and factual sufficiency review, Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App.1996).

A. The Record Shows:

October 1995 Burning

Thomas Maul lived in the Champions Point Subdivision, and was familiar with Champions Point Auto Repair, an automotive repair shop at 12125 Bammel–North Houston, because it is adjacent to his home.   Maul testified that he watched the shop being built, and stated the lot next to the shop was heavily wooded.   Maul observed the lot being cleared in September of 1995, and the material was burned on the property.   On an unspecified date in October of 1995, Maul observed a large brush fire on the property and called the fire department.   Maul saw the owner of the repair shop sitting on a garden tractor adjacent to the fire, and Maul identified the owner as appellant.   Maul testified that appellant was watching the fire and that appellant told Maul he was responsible for the fire.   Maul stated that appellant was upset with Maul's interference.   The fire department then arrived and put out the fire.

Dorothy Camille Jesse lived in a house in Champions Point Village III off Bammel–North Houston.   Jesse was familiar with the automotive repair shop because it is very close to her home.   Jesse observed the lot being cleared.   She also saw the fire in October of 1995, on an unspecified Saturday.   Jesse saw appellant at the fire and knew he was the owner of the property.

Ed Morgan, a volunteer fireman with the Northwest Volunteer Fire Department, was dispatched to the fire.   Morgan saw a pile of tree logs toward the center of an open field that was burning, as well as the surrounding grass.   Morgan saw appellant on a riding lawnmower, and appellant told Morgan that he was clearing the land to build on it.   Morgan also saw two other men in the field.   Morgan testified that he told appellant it was illegal to burn on commercial property.   Appellant told Morgan that he had started the fire, that he was trying to burn the grass by deliberately setting it on fire, but that it would not stay lit.   The fire department extinguished the fire.

Roy Fletcher, a Lieutenant with the Harris County Constable's Office and an environmental enforcement officer, also responded to the fire.   The business was open, and Fletcher spoke to appellant inside the shop.   Fletcher testified that appellant was uncooperative.   Fletcher told appellant that he could not burn materials on the property.   Appellant refused to give any information to Fletcher.

Fletcher again contacted appellant at the shop on November 8, 1995, and advised appellant that it was illegal for him to continue burning materials, and that he would initiate criminal charges against appellant if he had any further violations.   Appellant told Fletcher that he did not agree that he was violating the law, even after Fletcher explained the law to appellant.   Fletcher told appellant it was against the law for him to continue burning materials, and discussed alternative ways to properly dispose of the logs.   Appellant told Fletcher that taking the logs to a landfill was too expensive, and that he would cut the logs to use in his fireplace at home.

The State did not charge appellant with the alleged burning in October of 1995.

January 26, 1996 Burning

Jesse testified that on January 26, 1996, at approximately 5:30 p.m., she saw a bonfire-type fire about five feet tall and five feet across.   Jesse also observed that the repair shop was open, and she saw three men sitting behind the shop.   No one was tending to the fire.   Later that night, Jesse saw orange flames and realized the fire was getting bigger.   At approximately 10:30 or 11:00 p.m., Jesse called the fire department.   Jesse saw the fire department arrive and put out the fire.

Firefighter Morgan saw wood piled up at the site four or five days before January 26, and he noticed it was placed at the same spot where the fire occurred in October of 1995.   Morgan believed another fire would occur, and then one occurred on January 26, 1996.   The fire consisted of land-clearing debris, and no one was attending the fire.   He assisted with extinguishing the fire.   Morgan noticed that over the next few days logs again were being piled back in the same area, and in the same type of pile.

Wes Cole, Chief of the Northwest Volunteer Fire Department, in the course of non-official duties, noticed the fire burning at 5:30 p.m., but took no action.   Cole observed a pile of stacked logs that were on fire and that no one was attending the fire.   He also observed the business was open and people were present in the shop.   He responded to a complaint later that night and saw land-clearing debris on fire.

Lt. Fletcher testified that he spoke to appellant by telephone on January 28, 1996, and appellant told Fletcher that he had stacked the wood to use in his fireplace, but unknown persons had started the fire.   When Fletcher told appellant to remove the remaining wood, appellant said that he would not do so, but then stated that he needed to get rid of it anyway.

The jury acquitted appellant of the alleged January 26, 1996, burning offense.

February 10, 1996 Burning

On February 10, 1996, at approximately noon, Jesse saw another fire at the site.   Again, the auto shop was open and people were sitting in back of the building.   Jesse saw burning logs, fashioned in the same bonfire-type pyramid structure.   The logs were stacked approximately five feet high, and smoke was blowing into the subdivision.   Jesse then called the fire department.

Morgan was again dispatched to the site, and he saw an unattended log fire.   The business was open, and he could see people in the office area.   The fire department extinguished the fire.

Chief Cole was the officer in charge of this fire.   The material he observed burning on this day appeared to be the same type material that the fire department had extinguished on January 26, 1996.   It was also in the same spot.   He saw no one attending the fire.

Fletcher spoke with appellant at the shop on February 10, 1996.   Appellant told Fletcher that he did not feel like he had to move the wood, and that he was not responsible for the fire.

Fletcher also drove by the auto shop on February 15, 1996, and he saw another stack of wood in the center of the vacant field.

The jury found appellant guilty of the February 10, 1996 burning.

February 29, 1996 Burning

Morgan testified that he was again dispatched to a fire at the same site on February 29, 1996.   This was an early afternoon fire, the business was open, and Morgan could see people inside the business.   The fire was unattended.   The fire department extinguished the fire.

Fletcher spoke to appellant inside the auto repair office about the fire.   Appellant denied knowing how the fire started.   While in the shop office, Fletcher looked out the office window and clearly saw the burn pile with an unobstructed view.   Appellant told Fletcher to show him the law prohibiting appellant from burning on the property.   In response, Fletcher read the applicable statutes and then explained them in detail.   Appellant then told Fletcher that he had the right to burn on his own property;  that he could beat the charges;  and that if everyone would leave him alone, he would finishing the burning and that would be the end of it.

Appellant was found guilty for the February 29, 1996 burning.

March 10, 1996 Burning

On March 10, 1996, Morgan responded to another fire at the location.   The fire occurred on a Sunday afternoon, and the business was closed.   Morgan observed the same type of material burning as in the previous fires, and the fire was burning in approximately the same spot.   The fire was smaller than past fires, and it appeared the fire had been burning for awhile.   Morgan did not recall the stacking pattern.   The fire department extinguished the fire.

The jury found appellant guilty of the March 10, 1996 burning.

Other Evidence

On April 3, 1996, while executing an arrest warrant on these charges, Fletcher saw another pile of wood stacked at the same location.

The undisputed that the evidence showed that appellant had an ownership interest in Champions Point Automotive,2 and that the property at 12125 Bammel–North Houston Road is owned by appellant.   It is also undisputed that appellant did not have a permit to burn the materials.

Appellant introduced one witness during his case-in-chief, James Lilly.   Lilly testified that he has been friends with appellant since childhood, and that he currently worked at the repair shop.   Lilly stated that appellant had an unwritten partnership arrangement with five people, including Lilly.   Lilly further stated that during 1995 and 1996, they stacked wood in the lot, but did not burn it.   He had no idea who burned it, even though he was on the premises at times when it was burning.

B. Sufficiency Review

The law provides, and the jury was charged, that a person commits the offense of illegal outdoor burning if (1) the person;  (2) acting intentionally or knowingly, with respect to the person's conduct;  (3) causes, allows, or permits outdoor burning within the State of Texas;  (4) and the outdoor burning was not authorized by the executive director of the Texas Natural Resource Conservation Commission or authorized by any exception in the rules.  Tex. Health & Safety Code Ann. § 382.091(a)(1)(E) (Vernon 1992);  30 Tex. Admin.  CodeE § 111.101 (1996) (now § 111.201).   Appellant asserts the evidence is insufficient to establish the third element, causing, allowing, or permitting outdoor burning.

In reviewing the legal sufficiency of the evidence, we must review the evidence in the light most favorable to the verdict to determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.  Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979);  McDuff, 939 S.W.2d at 614.   We apply the same standard of review for both direct and circumstantial evidence.   Geesa v. State, 820 S.W.2d 154, 158 (Tex.Crim.App.1991).

We review factual sufficiency by viewing all of the evidence, not merely the evidence favorable to the verdict, to determine if the verdict was so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.   Clewis, 922 S.W.2d at 129.

Appellant argues that the evidence is insufficient to show he caused, allowed, or permitted the outdoor burning on each of the disputed dates.   Although there is little direct evidence of who actually started the fire, there is substantial circumstantial evidence linking appellant to the fires.   From the totality of the circumstantial evidence, the jury could have concluded, as the State argued, that the separate burnings were part of a single course of action to clear the lot and burn the resulting waste material.   The uncontroverted evidence shows that appellant told both Maul and Morgan that he started the October 1995 burning, and that he intended to burn waste material.   The evidence also shows that appellant was the person in charge of the property and the business.   The evidence shows that the repeated stacking and burning occurred up to the date of appellant's arrest.   The same fire location and log pattern was repeated for the fires (except for the March 10 fire, for which Morgan could not recall the log pattern).   The evidence also shows repeated admonishments by the fire department and appellant's hostile responses.

Although appellant introduced one witness, this court must defer to the jury's determination of witness credibility when reviewing factual sufficiency.   Cain v. State, 958 S.W.2d 404, 408 (Tex.Crim.App.1997).   Appellant, without citing any authority, also appears to complain that the jury could not consider the totality of the evidence with regard to each incident.   However, this is not the test.   See McDuff, 939 S.W.2d at 614;  Clewis, 922 S.W.2d at 129.   Also, we note that appellant agreed to try all offenses together.

Considering the totality of the circumstances, we conclude the evidence is legally and factually sufficient for the jury to determine that appellant either started each fire, or allowed or permitted someone else to start the fires.   Accordingly, we overrule points of error one and two.

Jury Argument

Appellant asserts the trial court permitted an improper jury argument, which allegedly (1) was outside the record and (2) injected an improper legal duty on appellant.

During closing argument at the guilt/innocence phase, the State argued:

State:  So, that in and of itself shows you who's in command of this property, who's in care, custody and control of this property, whose charged with the responsibility for knowing what goes on on his own property.

Appellant:  Objection.   There is no charge to responsibility because you own property.   That's an improper statement of the law, and it's not in the charge.

Trial Court:  Let me hear the statement again.

State:  Who is charged with knowing what is going on with their own property.

Appellant:  There is nothing inside the record or in the charge of [sic] that effect.

Trial Court:  Overruled.

Counsel for State:  The property owner, that's who.   That's who is responsible.

Counsel for Defendant:  Again, it's outside the record.

Trial Court:  Overruled.

To be permissible, jury argument must fall into one of four general categories:  (1) summation of the evidence;  (2) reasonable deductions from the evidence;  (3) answer to the argument of opposing counsel;  and (4) plea for law enforcement.  Richardson v. State, 879 S.W.2d 874, 881 (Tex.Crim.App.1993);  Simpson v. State, 886 S.W.2d 449, 453 (Tex.App.—Houston [1st Dist.] 1994, pet. ref'd).   Counsel may draw all inferences from the facts in evidence that are “reasonable, fair, and legitimate,” but he may not use jury argument, either directly or indirectly, to get evidence before the jury that is outside the record.  Sawyer v. State, 877 S.W.2d 883, 887 (Tex.App.—Houston [1st Dist.] 1994, pet. ref'd).

The disputed argument arose immediately after the State argued the documentary evidence before the jury showed that appellant was the sole property owner, that the business is a sole proprietorship, and that appellant is the person responsible for paying sales taxes.   We conclude the argument is both a permissible summation of the evidence and a reasonable deduction from the evidence.   The disputed argument follows naturally from the evidence showing that appellant was in charge of the property, and therefore could reasonably know what happens on the property.

Accordingly, we overrule point of error three.

The Information

Appellant complains the trial court erred when it denied his motions to have each information quashed for unconstitutional vagueness.

Each information provided in relevant part:

Defendant, on or about [date], did then and there unlawfully intentionally and knowingly cause, allow and permit outdoor burning within the State of Texas in violation of Title 30, Texas Administrative Code Rule § 111.101, and the outdoor burning was not authorized by․

(emphasis added).   Appellant asserts the words, “cause, allow and permit” are unconstitutionally vague because they fail to convey to appellant what specific “act, acts, action, or inaction is illegal and subject to criminal prosecution.”

Appellant was charged in each information with a violation of Title 30 of the Texas Administrative Code, which provided in relevant part:

No person may cause, suffer, allow, or permit any outdoor burning within the State of Texas, except as provided by § 111.103 of this title (relating to Exceptions to Prohibition of Outdoor Burning).   Outdoor disposal or deposition of any material capable of igniting spontaneously shall not be allowed without written permission of the executive director of the Texas Air Control Board.

30 Tex. Admin Code § 111.101 (1996) (now § 111.201).

A statute that forbids or requires an act in terms so vague that people of common intelligence must necessarily guess at its meaning and differ about its application violates due process.  Cotton v. State, 686 S.W.2d 140, 141 (Tex.Crim.App.1985).   In examining a criminal statute for vagueness, the first inquiry is whether the ordinary, law-abiding individual received sufficient information from the statute that his conduct risked violating a criminal law.  Bynum v. State, 767 S.W.2d 769, 773 (Tex.Crim.App.1989).   A second inquiry is whether the statute provided sufficient notice to law enforcement personnel to prevent arbitrary or discriminating enforcement.  Bynum, 767 S.W.2d at 775.   A statute is unconstitutionally void for vagueness only when no standard of conduct is obtained at all, or when no core of prohibited activity is defined.  Id.

Appellant complains that the statute is unconstitutionally vague as applied to him.   However, there is no evidence that appellant was confused about the meaning of any statute or unable to comply with it.   We find McGee v. State, 923 S.W.2d 627, 631 (Tex.App.—Houston [1st Dist.] 1995, pet ref'd), dispositive.   In McGee, this Court held that a statute is not unconstitutionally vague as applied to an appellant when he failed to present any evidence that he was confused about the meaning of the statute or unable to comply with it.  Id. at 631.   Accordingly, we hold the statute is not unconstitutionally vague as applied to appellant.

The record shows that Lt. Fletcher and various firefighters gave appellant advance notice that the outdoor burning was prohibited.   Also, a fair reading of the rule (titled “outdoor burning”) shows there is a general prohibition against outdoor burning in Texas, with certain exceptions not applicable here.

We overrule point of error four.

We affirm the judgments of the trial court.

FOOTNOTES

1.   The jury also acquitted appellant of a fourth offense of outdoor burning in cause 9614051.

2.   There was some conflict in the evidence as to whether the business was a sole proprietorship or a partnership.

MARGARET GARNER MIRABAL, Justice.