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

          Rick Drilling was convicted of arson, placed on community supervision, and ordered to pay restitution as a condition of his community supervision.  Drilling 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 because it was not supported by an adequate factual basis in the record.  See Drilling v. State, 134 S.W.3d 468 (Tex. App.—Waco 2004, no pet.).  Accordingly, we abated the appeal, set aside the restitution order, and remanded the cause for a new restitution hearing.  Id. Thereafter, the trial court held a new hearing, and made findings of fact and conclusions of law reflecting a new restitution amount.  Drilling filed a supplemental brief arguing that the evidence still does not provide an adequate factual basis to support the amount of restitution ordered.  We affirm.

The Evidence is Legally Sufficient to Support the Jury’s Verdict

          Drilling complains in his first issue that the evidence is insufficient to support the jury’s verdict that he started a fire with the intent to destroy or damage the home of his former wife, Lori Pfeffer.  Drilling does not specify whether he is complaining of legal or factual insufficiency. In such situations, we look to the cases cited to determine which standards to apply.  Brown v. State, 35 S.W.3d 183, 192 (Tex. App.—Waco 2000), rev’d in part on other grounds, 89 S.W.3d 630 (Tex. Crim. App. 2002). Because Drilling cites legal insufficiency cases in his brief, we review using a legal insufficiency standard.

          In a legal insufficiency review, we view all of the evidence in a light most favorable to the verdict and determine whether any rational trier of fact could have found the essential element beyond a reasonable doubt.  Lacour v. State, 8 S.W.3d 670, 671 (Tex. Crim. App. 2000) (citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 3d 560 (1979)).  We resolve any inconsistencies in the evidence in favor of the verdict.  Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000).

          The State was required to prove that Drilling started the fire with the intent to destroy or damage Pfeffer’s house.  Wheeler v. State, 35 S.W.3d 126, 134 (Tex. App.—Texarkana 2000, pet. ref’d) (citing Massey v. State, 154 Tex. Crim. 263, 226 S.W.2d 856, 859 (Tex. Crim. App. 1950) (“An essential element of the crime of arson is the intentional burning of property.”).

          In a confession given to the police, Drilling stated that he poured gasoline throughout the house, set the gasoline on fire with a lighter, and left.  He repeated this in his trial testimony.  Viewing all the evidence in a light most favorable to the verdict, a rational juror could have found beyond a reasonable doubt that Drilling started the fire with the intent to destroy or damage the house.  Lacour, 8 S.W.3d at 671.  Accordingly, we overrule Drilling’s first issue.

The Record Contains a Sufficient Factual Basis to Support the Restitution Order

          Drilling argues in his second issue that the record does not contain a sufficient factual basis to support the new restitution amount.  Drilling objected generally to the trial court’s findings of fact and conclusions of law, but made no objection to the new restitution amount.  Nonetheless, Drilling has preserved his sufficiency question for review.  Moff v. State, 131 S.W.3d 485, 489 (Tex. Crim. App. 2004) (Appellant “will have the right to have the question of the sufficiency of evidence . . . considered on its merits whether or not he objected.”). Ironically, while Moff helps preserve Drilling’s sufficiency issue for review, it eliminates the gravamen of Drilling’s complaint.

          Essentially Drilling argues that the restitution order lacks a factual basis because the evidence supporting it is not based on fair market value or reasonable cost of repair. This argument can be separated into two different, yet overlapping issues: (1) the admissibility of the State’s evidence regarding the amount of restitution; and (2) the lack of a sufficient factual basis for the restitution order.  One is an evidentiary question, the other a sufficiency question.  Id. (“Sometimes a claim of trial court evidentiary error and a claim of insufficient evidence overlap so much that it is hard to separate them”).  The former (1) requires a specific objection at trial at the time the evidence is offered.  Tex. R. Evid. 103(a)(1); Moff, 131 S.W.3d at 489.  The latter (2) is preserved without objection.  Moff, 131 S.W.3d at 489.

         In Moff, the appellant argued that the evidence was insufficient to prove the value of the items that he stole because the officer that testified concerning the value was neither the owner of the items, nor an expert.  Moff, 131 S.W.3d at 490.  The Court reasoned that this issue was really a combination of a sufficiency question (the State failed to prove the element of value) and an evidentiary question (the State’s evidence of value was not admissible).  Id.  The evidentiary question was not preserved, but the sufficiency question remained for review.  Id.

          Though restitution is not an element of the offense like the issue in Moff, Drilling’s situation is analogous.  While Drilling repeatedly informed the trial court of the statutory requirements for restitution, he did not specifically object to the admissibility of the State’s evidence.  Therefore, Drilling has waived his evidentiary complaint.  Id.  Accordingly, we review the factual basis of the restitution order considering all the evidence, including that which perhaps should have been excluded, in our analysis.  See Moff, 131 S.W.3d at 489-90.

          Challenges to restitution orders are reviewed under an abuse-of-discretion standard.   Cartwright v. State, 605 S.W.2d 287, 288‑89 (Tex. Crim. App. 1980).  An abuse of discretion occurs when a trial court’s decision is so clearly wrong that it lies outside the “zone of reasonable disagreement.”  Gonzalez v. State, 117 S.W.3d 831, 839 (Tex. Crim. App. 2003). 

          Though a trial court is given broad discretion in ordering restitution, due process requires three restrictions on the restitution:  (1) the amount must be just and supported by a factual basis within the record; (2) the restitution ordered must be only for the offense for which the defendant is criminally responsible; and (3) the restitution ordered must be proper only for the victim or victims of the offense with which the offender is charged.  Cantrell v. State, 75 S.W.3d 503, 512 (Tex. App.—Texarkana 2002, pet. ref’d); see Cabla v. State, 6 S.W.3d 543, 546 (Tex. Crim. App. 1999).

          Drilling argues that the amount of restitution was not supported by a factual basis in the record. The trial court based the restitution amount on an inventory list prepared by Pfeffer, and an insurance agent’s testimony.  The trial court found that Drilling should pay $35,000.00 in restitution to Pfeffer and $70,000.00 to her insurance company.

The Inventory List

          Pfeffer prepared an inventory list immediately after the fire.  Previously, the list of items included undamaged items and items of Drilling’s personal property.  See Drilling, 134 S.W.3d at 470.  We abated the appeal, and ordered the trial court to conduct a new restitution hearing so these problems could be resolved. Id. at 471.  At the new hearing, the suspect items were excluded and new calculations were made. However, Pfeffer, consistent with her previous testimony, testified that the list was not that of destroyed property alone, but of the entire contents of the house, and that the list was never meant to demonstrate loss.  Pfeffer could not identify which items on the list were undamaged by the fire, because after the fire she left the area for three months, and when she returned everything was either ruined by water, or stolen.  Despite these inconsistencies, Pfeffer’s testimony was accepted by the trial court, and Drilling did not specifically object to the admissibility of this evidence.  Therefore, we must include these items in our analysis.

          Despite our remand, no direct testimony of fair market value was elicited. Restitution must be ordered for the value of the property on the date of destruction, and not the purchase price. See Tex. Code Crim. Proc. Ann. art. 42.037(b)(i) (Vernon 2003); Drilling, 134 S.W.3d at 470.  Drilling testified that some of the items on the list were not purchased, but were a gift. Also he stated that the value Pfeffer listed for some items was either a highly inflated purchase price or the original purchase price.  However, an owner may testify either in terms of purchase price or replacement cost, and is presumed to be testifying to an estimation of fair market value.  See Sullivan v. State, 701 S.W.2d 905, 909 (Tex. Crim. App. 1986).  Drilling and Pfeffer presented two different accounts concerning the value of the items in the list, and the trial court chose to believe Pfeffer.  While we might have arrived at a different conclusion, we cannot say that the trial court’s decision was outside the “zone of reasonable disagreement.”  Gonzalez, 117 S.W.3d at 839.

The Testimony of the Insurance Agent

          Drilling also argues that the court abused its discretion by awarding restitution to the insurance company because the insurance agent’s testimony does not provide a sufficient factual basis, and because the restitution is to be paid to someone other than the victim.

          While there was no specific testimony of the fair market value of Pfeffer’s house, the insurance agent testified that the company paid Pfeffer an amount suggested by the company’s claims adjustor and investigatory team.  References to the amount an insurance company has paid is sufficient to prove value.  Jimenez v. State, 67 S.W.3d 493, 506 (Tex. App.—Corpus Christi 2002, pet. ref’d) (holding insurance payment to victim sufficient to prove value despite no evidence of fair market value).  Furthermore, in the interest of justice, restitution may be made to a person who has compensated the victim for the loss to the extent that person has paid compensation.  Maloy v. State, 990 S.W.2d 442, 444 (Tex. App.—Waco 1999, no pet.).  This includes insurance companies that compensate victims.  See Flores v. State, 513 S.W.2d 66, 69-70 (Tex. Crim. App. 1974); Narvaez v. State, 40 S.W.3d 729, 730 (Tex. App.—San Antonio 2001, pet. dism’d) (trial court did not abuse its discretion by ordering appellant to pay restitution to a hospital for the victim’s medical bills); Maloy, 990 S.W.2d at 444.  Finding no abuse of discretion, we overrule Drilling’s second issue.

Conclusion

          Having overruled all of Drilling’s issues, we affirm the judgment of the trial court.

                                                                   FELIPE REYNA

                                                                   Justice

Before Chief Justice Gray,

          Justice Vance, and

          Justice Reyna

          (Chief Justice Gray concurring and dissenting)

Affirmed

Opinion delivered and filed February 23, 2005

Do not publish

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