Ristoff v. State

• Decision Date: 14 January 1999
• Docket Number: Nos. 01-96-00780-CR,s. 01-96-00780-CR
• Citation: 985 S.W.2d 623
• Parties: John RISTOFF, Appellant, v. The STATE of Texas, Appellee. to 01-96-00782-CR. (1st Dist.)
• Court: Texas Court of Appeals

Page 623

985 S.W.2d 623

John RISTOFF, Appellant, v. The STATE of Texas, Appellee.

Nos. 01-96-00780-CR to 01-96-00782-CR.

Court of Appeals of Texas,

Houston (1st Dist.).

Jan. 14, 1999.

Published in Part Pursuant to Tex. R. App. P. 90.

Peter Justin, Houston, for Appellants.

John B. Holmes, Roger Haseman, Houston, for Appellees.

Before Justices MIRABAL, O'CONNOR, and NUCHIA.

OPINION

MARGARET GARNER MIRABAL, Justice.

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...