Whitehead v. State

• Decision Date: 11 April 1986
• Docket Number: No. 09,09
• Citation: 710 S.W.2d 645
• Parties: Wilburn H. WHITEHEAD, Appellant, v. The STATE of Texas, Appellee. 85 080 CR.
• Court: Texas Court of Appeals

Page 645

710 S.W.2d 645

Wilburn H. WHITEHEAD, Appellant, v. The STATE of Texas, Appellee.

No. 09 85 080 CR.

Court of Appeals of Texas,

Beaumont.

April 11, 1986.

Petition for Discretionary Review

May 29, 1986.

Louis Dugas, Jr., Orange, for appellant.

Bill A. Martin, Dist. Atty., Charles R. Mitchell, Asst. Dist. Atty., Newton, for appellee.

OPINION

BROOKSHIRE, Justice.

Appellant was convicted of felony theft. The punishment was assessed at 10 years confinement plus a fine of $10,000.00. The indictment arose because of the removal of more than $19,000.00 [indictment says of the value of more than $10,000.00] worth of timber from a tract of land in Newton County.

Sheriff Woods and another law enforcement officer received word that there was a cutting and removal of timber occurring on January 7, 1981. This information was that the timber cutting and removing was not authorized. Then, the Sheriff and a Ranger, named Davis, went to the site of the timber in question. Appellant acknowledged that he was in charge of the operation and that he was selling the timber. No consent or authorization had been given to the Appellant to cut or sell the timber. Trial was by jury. By the verdict of the jury, the Appellant was convicted of theft of timber valued at more than $10,000.00 in trial cause No. 3558.

THE HISTORY OF THE CASE

The positions, briefs, authorities, and vehement oral arguments of the parties, induce an adequate recounting of the record.

Before the trial on the merits of the instant charge, the Appellant had been indicted for the same offense under another cause number, being cause No. 3343, in the District Court. That cause and the indictment were for theft of timber. That proceeding went to trial in May of 1982. On May 25, 1982, the State had presented its case. Mr. Whitehead moved for an instructed verdict. The court granted the same after dismissing the jury in cause No. 3343. Later on, the Appellant was reindicted in cause No. 3407 and, later, under another indictment, numbered 3558. Each indictment had alleged a theft of over $10,000.00 worth of timber in January of 1981. Appellant filed a plea of formal acquittal, apparently, in both cause Nos. 3407 and 3558. A hearing was held in cause No. 3407 and the plea was denied. There were several motions originally filed in cause No. 3407, which were said to be transferred to cause No. 3558. One such motion was a motion for change of venue, which, the Appellant alleges, was never controverted by the State.

Both Sheriff Woods and Ranger Roscoe Davis had received information from a Mr. Robert Williams that timber was being unlawfully taken from certain land in Newton County near a settlement known as "Biloxi". Mr. Robert Williams was identified as being an owner of a sawmill near the town of Bon Wier, in Newton County. Sheriff Woods, Ranger Roscoe Davis and Mr. Williams accompanied each other to the scene of the timber cutting. Ranger Davis recognized and saw Mr. Wilburn Whitehead at the scene of the timber removal and identified him as the defendant on trial. Whitehead seemed to be in charge of the cutting operation. He was instructing the workers and the saw hands. The Ranger asked Whitehead if he was taking the timber from the land and Whitehead replied that he was.

Over objections, a number of exhibits, being conveyances, were offered into evidence as Exhibits of the State, Nos. 12 through 28 with the exception of No. 24.

A surveyor testified that there was a 90 acre tract over which there were no conflicts of boundaries with a senior survey and that it was on this 90 acre tract where the timber in question had been denuded.

There was testimony in the record, undergirded by documentary evidence, that the status of the title to the 90 acres of timberland in question was no different on or about January 7, 1981, than it was at the time the judgment was entered in the related civil case. Also, the persons who took the position that they were the owners and, indeed, the record owners, had paid all the taxes due on the property.

We deem it noteworthy to point out that, at the time the Sheriff of Newton County, accompanied by Ranger Davis and another, actually went on the land in question and observed the actual cutting of the timber, the Appellant, Mr. Wilburn H. Whitehead, was at the scene of the timber cutting and was directing his rather large crew as to how to cut the timber. Significant, also, is the testimony that when Robert Woods, the Sheriff of Newton County, made a direct inquiry of Mr. Whitehead, at the scene of the cutting and while the timber was being cut, to the effect that the Sheriff asked Whitehead if he, Whitehead, was selling the timber; Whitehead replied: "I'm damn sure not giving it away." The Sheriff then testified that this "colorful language", in addition to other actions he observed, clearly indicated to him that the Appellant was in charge of the timber operation and the transporting and selling of same.

The Sheriff identified Whitehead, on the land, as being the same person who was seated in the District Courtroom at the counsel table as the defendant on trial.

The Sheriff also testified that he, in the past, had experience in timber cutting operations and that he had made a report of this incident or transaction. The Sheriff testified that, on the occasion in question, he saw pulpwood being cut and loaded. He did not see any saw wood that had already been cut. The Sheriff further testified that all the timber he saw that day was not cut on the day he visited the scene of the timber operations. He testified, further, that there was a timber crew of about 5 men and that they could cut approximately 3 loads of pulpwood a day. The Sheriff did see some other stumps that had been previously cut. He testified that pulpwood up to about 24 inches was accepted at the Evadale Mill.

TESTIMONY OF ROSCOE DAVIS, THE TEXAS RANGER

Ranger Davis, on January 7, 1981, had an occasion to go on the property where the timber cutting in question was going on. It was located, definitely, in Newton County. He went with Sheriff Woods and Robert Williams. He, also, definitely saw the Appellant at the scene of the timber operation. He positively identified the Appellant in court as the director of the timber operations. The Appellant, at the scene, was wearing work clothes. To the Ranger, Whitehead seemed to be in complete charge of the timber cutting. Mr. Whitehead was instructing the workers and the "saw hands." Later, the Ranger went to the land again with a Mr. Kay Henson. The Ranger showed Mr. Kay Henson the exact property that he had visited on January 7, 1981, the date stated in the indictment. The Ranger did testify that he saw some of the people working at the scene that were actually "working to fill this truck". The Ranger testified that the truck was being loaded with logs.

THE BOUNDARY CONFLICT QUESTION

Then, James Kay Henson was called to the stand. He was employed by Temple-Eastex, Incorporated. He was the manager of the Land Department. He testified that he is a Registered Surveyor in the State of Texas; that he supervised 3 survey crews. He testified that Temple-Eastex, his employer, had land in the area that adjoined the property in question. He testified that he examined State's Exhibit No. 27, which was a deed from Loftin to Cleavenger which described the tract of land involved. As well, he identified State's Exhibit No. 25, being a deed from Blackshear to Lucas Trust, as containing the same field notes that described the property in question where the cutting took place. He testified to virtually the same facts concerning State's Exhibit No. 22, being a deed from McDonald to Elmer Simmons. The registered surveyor also testified that he had been on the ground of the land in question. Henson did notice signs of timber cutting on the tract in question. In fact, he answered "Yes, it has been denuded, yes." He said he had been on the land on several occasions.

This registered surveyor had also been shown State's Exhibits Nos. 30 and 31. They were field notes prepared by one Frank Strother. Apparently, in the preparation of these field notes by Frank Strother, James Kay Henson had collaborated. These later field notes resolved any conflicts in the surveys. Apparently, some 25 or 30 acres of the land involved were in possible conflict with a senior survey. Henson testified that there existed about 90 acres that were free of conflict; that this 90 acre tract was shown by regular chain of title, from a surveyor's standpoint and a field note standpoint; and that those specific 90 acres were reflected correctly in State's Exhibits Nos. 30 and 31; and, the same 90 acre tract was the land that was actually denuded by Appellant.

On cross-examination, the accused's lawyer elicited that Mr. Henson worked for one of the largest timber owners in the county and that Henson and his employer had paid a forest crew and some other crews at the rate of about $250.00 to $325.00 a day, working on some of the evidence and exhibits in this case. Henson testified that he made about $40,000.00 a year, at the trial date; but, back in 1981, he made about $24,000.00 a year and that Henson had a certain "disaffectation" for the Appellant. Henson admitted that his services, as well as the services of some of the crews of his employers, had been used and proffered to the District Attorney in this case. Henson reiterated that he had walked all over this tract, to an extent that he could actually see every boundary to it and that a lot of timber had been cut. He testified that everything that could be sold had been cut over the 90 acres of land.

Without objection, Henson testified that the letters he had written, concerned certain deeds into Whitehead. These deeds had been placed in the Deed Records of Jasper County as well as Newton County and that Whitehead was placing these deeds of record where he simply did not have any title to the property. Without...