Long v. State

7 S.W.3d 316, 1999 Tex. App. LEXIS 9438, 1999 WL 1223886
CourtCourt of Appeals of Texas
DecidedDecember 22, 1999
Docket09-98-469 CR
StatusPublished
Cited by15 cases

This text of 7 S.W.3d 316 (Long v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Long v. State, 7 S.W.3d 316, 1999 Tex. App. LEXIS 9438, 1999 WL 1223886 (Tex. Ct. App. 1999).

Opinions

OPINION

RONALD L. WALKER, Chief Justice.

A jury found Greg Long guilty of felony theft and the trial court assessed punishment at ten years’ confinement in the Texas Department of Criminal Justice — Institutional Division. Long was also assessed restitution in the amount of $105,488. The trial court suspended imposition of Long’s incarceration and assessed him community supervision for a period of ten years. Long raises two points of error on appeal, viz:

Number One: The trial court erred in holding the evidence to be sufficient to sustain the conviction, because the evidence was insufficient to prove that the alleged stolen property was owned by the alleged owner, Steve McClain. Number Two: The trial court erred while assessing punishment by setting the amount of restitution in a statutorily impermissible manner.

The basic facts developed at trial were that an illegal logging operation on property owned by the Thomas S. Foster Estate, a family owned business located in San Jacinto County, was discovered by Foster employees. Long was ultimately identified as being in charge of said operation. When confronted by Foster employees, Long produced a timber deed. Unfortunately for Long, the timber deed was for property adjacent to the Foster Estate property. Long’s defense at trial was mistake of fact. See Tex. Pen.Code Ann. § 8.02 (Vernon 1994). An instruction on mistake of fact was included in the trial court’s charge to the jury.

At the outset with regard to Long’s first point of error, we are concerned with his continued reference to the fact that his trial counsel made a motion for a directed/instructed verdict at the conclusion of the State’s case-in-chief, that said motion was denied by the trial court, that the only evidence of McClain’s ownership status in the State’s case-in-chief was that McClain was the “general manager” of Foster, and that McClain “did not even testify during the case-in-chief.” In short, the tone of appellant’s argument under his first point of error is one of limiting appellate review of legal sufficiency to only the evidence produced by the State during its case-in-chief.

The Due Process Clause of the Fourteenth Amendment to the United States Constitution requires that every state criminal conviction be supported by evidence that a rational factfinder could find as sufficient to prove all elements of the offense beyond a reasonable doubt. In re Winship, 397 U.S. 358, 362-364, 90 S.Ct. 1068, 1071-73, 25 L.Ed.2d 368, 374-375 (1970); Coit v. State, 808 S.W.2d 473, 475 [318]*318(Tex.Crim.App.1991). Tex. Pen.Code Ann. § 2.01 (Vernon 1994) contains the same requirement. When an appellant raises the question of the existence of legally sufficient evidence to support his conviction, the task of the reviewing court is to consider all of the record evidence, direct and circumstantial, in the light most favorable to the verdict, and to determine whether, based on that evidence, any rational trier of fact could have found all of the elements of the offense proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Johnson v. State, 967 S.W.2d 410, 411 (Tex.Crim.App.1998). In determining legal sufficiency of the evidence, the reviewing court considers all the evidence, both admissible and inadmissible. Johnson, 967 S.W.2d at 412. We therefore reject any implication on the part of Long that our review of the evidence is limited to only that elicited during the State’s case-in-chief. The fact that Mr. McClain was called to testify during the State’s case in rebuttal has no bearing on the law of legal sufficiency. That said, we now reproduce pertinent portions of the testimony of Steve McClain who was alleged as the owner of the stolen timber:

Q. [State’s Attorney] And what is your current occupation?
A. [McClain] I’m an attorney.
Q. Is that there in Conroe?
A. Yes.
Q. And aside from that, do you hold any other jobs or responsibilities?
A. I am the manager of the— of Foster Management.
Q. And how long have you been the manager for Foster Management?
A. Approximately nine years.
Q. And is there a person by the name of Foster that you manage this property for?
A. No longer. Foster is— was the original person who acquired this land years and years ago. A family by a different name owns the property now.
Q. How did it fall upon you to be the general manager for Foster Management?
A. Just the fact that I have some knowledge in the timber management business and, also, in the area and most of the family members live away from here.
Q. I’m going to direct your attention to nine— September the 3rd of 1997 and ask you if you had an opportunity to have a meeting in your office with Greg Long?
A. September the 3rd?
Q. Yes, sir.
A. I’m not sure of the exact date; but I did have a meeting with Greg Long in the Foster Management offices, yes.
Q. And was it after it had been discovered that timber had been cut off Foster property in San Jacinto County?
A. Yes, sir. That’s correct.
Q. And in this meeting that you had with Mr. Long, was there a discussion regarding painted blaze marks on Foster trees?
A. Correct.
Q. And did Mr. Long acknowledge to you that he noticed the blaze lines?
A. Yes, sir. That’s correct.
Q. Did he offer up any explanation as to why he cut on the other side of the blaze lines?
A. None at all.
Q. Now, at that tune, did you tell him that Foster was out a considerable amount of money for the theft of the trees or the loss of the trees?
A. Yes, sir, we did.
Q. And did you ask him about making good for Foster’s loss?
A. Yes, sir.
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Q. Now, early on the defense introduced a letter dated September the 15th that you sent to Mr. Long. Do you recognize that letter?
[319]*319A. Yes, sir, I do.
Q. And in it there was a demand made to him for $117,000. What would be included in that $117,000?
A. The price of the timber, obviously; cost of regeneration because of the fact that their tract was basically barren after the work was done.

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Long v. State
7 S.W.3d 316 (Court of Appeals of Texas, 1999)

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7 S.W.3d 316, 1999 Tex. App. LEXIS 9438, 1999 WL 1223886, Counsel Stack Legal Research, https://law.counselstack.com/opinion/long-v-state-texapp-1999.