Rick Drilling v. State ( 2005 )

IN THE

TENTH COURT OF APPEALS

No. 10-01-00343-CR

Rick Drilling,

                                                                      Appellant

 v.

The State of Texas,

                                                                      Appellee

From the 155th District Court

Austin County, Texas

Trial Court # 2001R-0046

Opinion CONCURRING IN PART

AND DISSENTING IN PART

      This appeal concerns a conviction for arson.  See Tex. Penal Code Ann. § 28.02(a) (Vernon 2003).  The trial court put Appellant on community supervision and ordered him to pay restitution as a condition of his community supervision.  See Tex. Code Crim. Proc. Ann. art. 42.037 (Vernon Supp. 2004-2005).  Appellant challenges his conviction and the restitution order.  In an earlier order, we held that the trial court abused its discretion in determining the amount of restitution, set aside the restitution amount, and remanded the cause for a new restitution hearing.  Drilling v. State, 134 S.W.3d 468, 470-71 (Tex. App.—Waco 2004, abatement order), disp. on merits, No. 10-01-00343-CR (Tex. App.—Waco Feb. 23, 2005, no pet. h.) (not designated for publication); see Barton v. State, 21 S.W.3d 287, 290 (Tex. Crim. App. 2000).  The trial court held a new hearing, and made findings of fact and conclusions of law reflecting a new restitution amount.  We offered Appellant an opportunity to file a supplemental brief; he did not do so.  The majority now affirms. 

      In Appellant’s first issue, he contends that the evidence that he started a fire with the intent to destroy or damage his former wife’s house was legally insufficient.  Appellant points to evidence that, he contends, is contrary to the verdict, including evidence that bears on the credibility of the witnesses. However, “[a] ‘legal sufficiency of the evidence review does not involve any weighing of favorable and non-favorable evidence.’”  Margraves v. State, 34 S.W.3d 912, 917 (Tex. Crim. App. 2000) (quoting Cardenas v. State, 30 S.W.3d 384 (Tex. Crim. App. 2000)).  Nor does the reviewing court “assess the credibility of witnesses on each side.”  Ex parte Elizondo, 947 S.W.2d  202, 205 (Tex. Crim. App. 1996).  The State points to Appellant’s confession, which was admitted into evidence, and to Appellant’s testimony, to the effect that he poured gasoline throughout the house, set the gasoline on fire with a lighter, and left. Viewing the evidence in the light most favorable to the verdict of guilt, we hold that a rational jury could have found beyond a reasonable doubt that Appellant started the fire with the intent to destroy or damage the house.  See Tex. Penal Code Ann. § 28.02(a)(2); Jackson v. Virginia, 443 U.S. 307, 319 (1979); Coleman v. State, 145 S.W.3d 649, 652 (Tex. Crim. App. 2004); Ross v. State, 133 S.W.3d 618, 620 (Tex. Crim. App. 2004).  The evidence that he did so was legally sufficient.  We should overrule Appellant’s first issue on that basis.

      In Appellant’s second issue, he contends that the trial court abused its discretion in determining the amount of restitution.  “[B]y failing to object to the terms and conditions of probation at trial, a defendant affirmatively waives any complaints he may have had.”  Rickels v. State, 108 S.W.3d 900, 901 (Tex. Crim. App. 2003); see Tex. R. App. P. 33.1(a); cf. Idowu v. State, 73 S.W.3d 918, 922 (Tex. Crim. App. 2002) (declining to decide whether amount of restitution is a factual sufficiency issue that need not be preserved).[1]  Though Appellant objected generally to the form of the trial court’s findings and conclusions prior to the signing by the trial court, Appellant made no objection to the new restitution amount, and thus waived his complaint.  We should overrule Appellant’s second issue on that basis.

      The judgment should be reformed to reflect the following “findings” of the trial court:

       “The Court finds that Defendant, Rick Drilling, shall pay restitution to the victim, Lori Drilling Pfeffer, in the amount of $35,000.00.

       “The Court finds that Defendant, Rick Drilling, shall pay restitution to the insurance company, Austin County Farmers Mutual Fire Insurance Company, in the amount of $70,000.00.”

      Having overruled Appellant’s issues, I would then affirm the judgment as reformed.

TOM GRAY

Chief Justice

Opinion concurring in part and dissenting in part delivered and filed February 23, 2005

Publish

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[1]       The majority cites Moff v. Texas as dispositive on this issue.  See Drilling, slip op. (Feb. 23, 2005) (citing Moff v. State, 131 S.W.3d 485, 489-90 (Tex. Crim. App. 2004)).  It is not.  Moff involves a question of valuation as an element of theft of property.  Procedural default considerations relevant to the elements of an offense with a burden of proof beyond a reasonable doubt are entirely different from valuation as applied to restitution.