DON EUGENE EVANS v. THE STATE OF TEXAS--Appeal from County Court at Law of Kleberg County

   NUMBER 13-03-304-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

  CORPUS CHRISTI  B EDINBURG

DON EUGENE EVANS, Appellant,

v.

THE STATE OF TEXAS, Appellee.

 On appeal from the County Court at Law

of Kleberg County, Texas.

M E M O R A N D U M O P I N I O N

 Before Chief Justice Valdez and Justices Hinojosa and Rodriguez

   Opinion by Chief Justice Valdez

Appellant, Don Eugene Evans, was convicted by a jury in Kleberg County of the misdemeanor offense of hunting wildlife resources without the consent of the landowner. See Tex. Parks & Wild. Code Ann. _ 61.022(a) (Vernon 2004). The court assessed punishment at confinement in the Kleberg County jail for a term of ninety days, suspended for twelve months= community supervision, and a fine of $500. Appellant appeals his conviction in one issue: the evidence presented at trial was factually insufficient to prove his guilt beyond a reasonable doubt. We affirm.

Facts

The primary issue in dispute at trial was whether appellant, while hunting, had knowingly crossed from public State property to private King Ranch property without the consent of King Ranch=s owners. According to testimony at trial, on December 23, 2001, Texas Parks & Wildlife game wardens John McFall and Hector Garza came into contact with appellant and his wife near Comitas Lake[1] off the coast of Alazan Bay in Kleberg County. According to McFall=s testimony, the game wardens received a call from King Ranch personnel about someone illegally hunting on King Ranch property. After finding appellant=s docked and empty boat, McFall testified that he located appellant in an area which he described as Awell on King Ranch property.@ Appellant was found wearing hunting gear and carrying a high-powered scope rifle used for hunting large game animals. According to McFall, appellant accompanied the two wardens as they traced his tracks to where they first led onto private King Ranch property, which was about one-half to one mile away. Both McFall and Garza testified that the area appellant was found on belonged to King Ranch; however, appellant was neither charged nor arrested during this encounter with the game wardens. Instead, McFall took appellant=s information in case King Ranch personnel wanted to press charges.

The State of Texas demarcates private land and state lands through a Amean high tide@ system.[2] See John G. & Marie Stella Kenedy Mem. Found. v. Dewhurst, 90 S.W.3d 268, 278-79 (Tex. 2002) (explaining and applying the mean high tide system). According to Garza, who has twenty-one years= experience as a warden, the mean high tide line which demarcates the boundary between public and private land is easily discernible in the area of Comitas Lake.

On January 7, 2002, McFall met with Clint Fergeson, a King Ranch law enforcement agent,[3] to determine who owned the land where appellant was found. Fergeson testified that appellant was Awell beyond the mean high tide line . . . and up onto King Ranch property.@ Acting as an agent of the King Ranch and possessing familiarity with King Ranch property lines, Fergeson testified that appellant was several hundred yards onto the King Ranch and that no consent was given to appellant to be on King Ranch property.

A witness for the defense, Leny Claige, testified that he has hunted white tailed deer and hogs around the Comitas Lake area since 1988. Claige testified that there are metal ANo Hunting@ and ANo Trespassing@ signs on top of bluffs well within the mean high tide water line, but there are no signs on the beach or mud flats indicating exactly where the private property line lies. It was common for Claige, while hunting, to park his boat and walk across the same mud flats where appellant was found by the wardens. Claige also testified that he has previously encountered game warden Garza in this area while hunting but was never charged with trespassing or taking wildlife resources without consent.

Appellant testified that he practiced the same hunting techniques as Claige; he would park his boat and wade through mud flats, using a global position system (GPS) to track his whereabouts. It was appellant=s testimony that he stayed in the lower mud flats and did not cross the mean high tide water line and enter King Ranch property. Appellant explained that he intended to hunt on public lands only, not on King Ranch land.

Appellant testified that he stored his GPS coordinates and track marks from the date in question on his GPS. He then gave these coordinates to Claige about a week after the incident. Claige testified that he used these coordinates to determine that appellant was not on private King Ranch property. At no time, however, did appellant give these GPS coordinates to any of the questioning wardens. Appellant also subsequently purchased his own mapping software, plugged in his coordinates from the day in question and allegedly determined that he had remained below the mean high tide mark and on State property.

Factual-Sufficiency

Standard of Review

Appellant argues that the evidence presented at trial was factually insufficient to prove his guilt. He specifically disputes (1) the jury=s finding that he crossed the mean high tide water line and (2) the implicit finding that he knowingly entered King Ranch property.

In a factual sufficiency review, the evidence is viewed in a neutral light, favoring neither party. See Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996). In this neutral light, we determine whether Athe proof of guilt is so obviously weak as to undermine confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof.@ See Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). A clearly wrong and unjust verdict occurs where the jury's finding Ashocks the conscience@ or Aclearly demonstrates bias.@ Santellan v. State, 939 S.W.2d 155, 164 65 (Tex. Crim. App. 1997). We measure the factual sufficiency of the evidence by the elements of the offense as defined by a hypothetically correct jury charge. See Adi v. State, 94 S.W.3d 124, 128 (Tex. App.BCorpus Christi 2002) (citing Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)).

Mean High Tide Mark

The jury was charged with determining whether appellant crossed the mean high tide water mark and thereby entered onto private property. The definition of the mean high tide mark was provided to the jury without objection in the charge of the court. Appellant argues only he, and not the State, provided evidence at trial of where the mean high tide water mark was located. He further contends the State=s evidence regarding the location of this mark or line was opinion evidence only and could not conclusively establish that he crossed onto private property.

Reviewing the totality of the evidence in a neutral light, we conclude that the proof of guilt is so not obviously weak as to undermine confidence in the jury=s determination and that the proof of guilt is not outweighed by contrary evidence. See Johnson, 23 S.W.3d at 11. The jury is the exclusive judge of the credibility of witnesses and of the weight to be given their testimony. Barnes v. State, 876 S.W.2d 316, 321 (Tex. Crim. App. 1994) (per curiam). In this case, the jury could reasonably choose to accept the State=s evidence and disbelieve the testimony presented by appellant. Although the map used at trial by appellant states: AShoreline is the approximate line at mean high tide water mark,@ there is no indication on the map that delineates this shoreline. There are various lines on the map at the expected water level as well as around Comitas Lake. The jury could reasonably evaluate the various map lines and the testimony about whether appellant=s location was above or below the mean high tide water mark and could decide that appellant had in fact trespassed and hunted on private property. See id. at 321.

Mens Rea

Appellant further argues that the State provided no evidence that appellant possessed the appropriate mens rea to commit the offense alleged. The crime of taking wildlife resources without the consent of the landowner under section 61.022 of the Texas Parks and Wildlife Code requires a culpable mental state. Harrison v. State, 76 S.W.3d 537, 541 (Tex. App.BCorpus Christi 2002, no pet.); see Tex. Parks & Wild. Code Ann. _ 61.022(a). Hunting is not, by its nature, a criminal act, and section 61.022 does not prohibit any specific result. Harrison, 76 S.W.3d at 541. This Court has previously stated: AWhat makes hunting or possessing a wildlife resource a criminal act under section 61.022 is a circumstance; that it is done without the landowner's consent.@ Id. Thus, it follows that in order to be convicted under section 61.022, a person must be shown to have been acting without the consent of the owner or the owner's agent and must have known that he was acting without the owner's consent. See id.

In the present case the jury was correctly charged as to the culpable mental state being alleged.[4] As shown in Harrison, establishing the required culpable mental state when dealing with cases such as this involves determining whether a person has consent from the landowner or landowner=s agent and knows whether he has such consent. See id. The requisite mental state is not, as appellant argues, whether appellant Afelt@ he was on State public land. Reviewing the totality of the evidence in a neutral light, we conclude that there was sufficient evidence presented at trial to establish the requisite mental state, in that appellant did not have consent from the King Ranch owners or agents to hunt on their property and knew he did not have such consent. Thus, appellant=s conviction for taking wildlife resources without consent is supported by factually sufficient evidence, see Johnson, 23 S.W.3d at 11, and his sole issue is accordingly overruled.

Conclusion

The judgment of the trial court is affirmed.

Rogelio Valdez,

Chief Justice

Do not publish.

Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and filed

this 13th day of October, 2005.

[1]Comitas Lake is actually a dried out piece of land covered by sand and mud flats.

[2]The line of mean high tide marks the boundary between private beach front property and the state=s submerged property. See John G. & Marie Stella Kenedy Mem. Found. v. Dewhurst, 90 S.W.3d 268, 278 79 (Tex. 2002). This boundary line may move landward or seaward as the beach moves and the property line moves accordingly. See id. The Amean high tide line@ is the average of the highest daily tides over a period of approximately nineteen years. See id.; see also Borax Consol., Ltd. v. Los Angeles, 296 U.S. 10, 26-7 (1935).

[3]Fergeson is employed by the King Ranch through commission by Kleberg County Sheriff=s Office.

[4]The relevant section of the jury charge read as follows: ANow, if you find from the evidence beyond a reasonable doubt that on or about the 23 rd of December, 2001, in Kleberg County, Texas, the defendant DON EUGENE EVANS, did intentionally or knowingly hunt a wildlife resource, namely white-tailed deer without the consent of the owner of the land, namely, Clint Fergeson; when said place was covered by Chapter 61 of the Texas Parks and Wildlife Code, then you will find the Defendant guilty as charged.@