text:
    STATE of Louisiana, Appellee v. Gary Anthony BAILEY, Jr., Appellant.
    No. 48,042-KA.
    Court of Appeal of Louisiana, Second Circuit.
    May 15, 2013.

      Louisiana Appellate Project by Peggy J. Sullivan, Monroe, LA, for Appellant.
    Gary Anthony Bailey, Jr., Pro se.
    J. Schuyler Marvin, District Attorney, John M. Lawrence, Robert Randall Smith, Assistant District Attorneys, for Appellee.
    Before CARAWAY, PITMAN & GARRETT, JJ.
   PITMAN, J.

| defendant, Gary Anthony Bailey, Jr., was found guilty by a jury of simple burglary, a violation of La. R.S. 14:62. A presentence investigation was ordered and Defendant was sentenced to serve ten years at hard labor with credit for time served. This appeal followed. For the following reasons, Defendant’s conviction and sentence are affirmed.

FACTS

Defendant was charged by bill of information with the September 23, 2011 simple burglary of a vacant mobile home owned by David Horton (“Horton”), located in Pecan Valley Mobile Home Park on Barks-dale Boulevard in Bossier City. There were two eyewitnesses to the crime and Defendant was apprehended in a nearby field by K-9 search shortly after the incident.

At trial, Tracy Bailey (“Tracy”) (no relation to Defendant) testified first on behalf of the state. Tracy and his girlfriend, Kristine Doss (“Kristine”), live in the mobile home park where the burglary took place and were coming home from a friend’s house shortly before midnight on September 23, 2011. Tracy testified that, as they drove into the park, he saw a person walking down the street and toward the vacant mobile home. He and Kristine watched the individual from their front porch. The individual was wearing dark pants or long shorts and a white tank top. Tracy watched the person trying to break the window air conditioning unit out of the front window of the mobile home. He testified that he heard glass breaking and saw the window unit fall into the mobile home. The person then climbed in through the window and, a few minutes later, exited the mobile home through the front door, carrying the window unit. Tracy maintained that the individual entered the mobile home through the window and that he could hear “shifting” while he was inside. According to Tracy, the person was not wearing a shirt when he came out of the mobile home. During this time, Tracy went into his |2mobile home to retrieve his phone to call the police. He came back outside and continued to watch the incident with Kristine.

Tracy further testified that the area close to the mobile home is dark, but there is a street light about 80 feet away. He testified that he saw the person apprehended by police that night. At trial, he positively identified Defendant as the person who stole the window unit.

On cross-examination, Tracy stated that he did not recall seeing any tattoos on the person who committed the burglary.

Kristine corroborated Tracy’s testimony, also positively identifying Defendant as the person she saw steal the window unit. Kristine testified that Defendant was stumbling down the street toward the vacant mobile home. She observed him “messing with” the window unit and she walked to the middle of the street in an attempt to distract him and let him know someone was watching him. Kristine testified that Defendant was unaffected by her presence and she returned to her front porch and told Tracy to call the police. Kristine testified that she saw Defendant push the window unit into the mobile home and crawl inside through the window. She heard a noise from inside the mobile home and then saw Defendant stumble out of the front door carrying the window unit. Kristine described | .-¡Defendant as wearing dark colored pants that were short or very long shorts. She also testified that she observed Defendant after he was arrested that night and she had “no doubt at all. I’m sure it was him.”

On cross-examination, Kristine testified that she saw a second individual, but did not see him interact with Defendant in any way. She also did not notice any tattoos on Defendant.

Officer Justin Dunn of the Bossier Parish Sheriffs Office testified regarding the apprehension of Defendant. Officer Dunn was the K-9 handler who responded to the scene with his dog, Tigo. Officer Dunn gave a verbal warning that the dog was going to be released and waited for Defendant to surrender. After several seconds, Tigo was “put on the ground” and Tigo tracked Defendant through a hole in a fence and into a nearby pasture, where Defendant was lying on the ground. Tigo bit Defendant. Officer Dunn and his partner, Officer Eric Sproles, apprehended Defendant and returned with him to the mobile home park.

Tigo then tracked Defendant’s scent to a shed behind a mobile home in the park. Officer Dunn did not search the shed at that time, but made contact with Defendant’s mother, who owned the shed. Officer Dunn testified that Defendant’s mother advised him that Defendant stays in her shed when he is in town and that she signed a consent to search form for the shed. Officer Dunn gave the consent to search form to Sergeant Kenneth Johnson, also with the Bossier Parish Sheriffs Office.

Sgt. Johnson testified that he supervised the officers at the scene and the collecting of evidence. Sgt. Johnson stated that the window unit was |4found in the shed on Defendant’s mother’s property. Sgt. Johnson further testified that Horton was notified and that he spoke with Horton when he arrived at the scene. Horton identified the window unit as his since he recognized some plastic he had left on the cord of the unit.

During the investigation, Officer Sproles acted as Officer Dunn’s backup partner while Officer Dunn handled the K-9. Officer Sproles was the first to see the window unit in the shed following Defendant’s arrest. He testified that Defendant was wearing camouflage pants and no shirt when he was apprehended. Officer Sproles stated that Defendant had numerous tattoos on his arms and body.

Horton provided testimony regarding the window unit and the mobile home. He testified that the mobile home was vacant at the time of the burglary, but had been rented and was to be occupied in “a couple of days.” He had been in the mobile home earlier in the day getting it ready for occupancy and had left at approximately 2:00 p.m. Horton testified that, when he left the mobile home, he locked the deadbolt and the doorknob. When he entered the mobile home after the window unit was stolen, the deadbolt was unlocked, but the doorknob was locked. Horton explained that the deadbolt had a turn lock on the inside and a keyed lock on the outside. The doorknob was self-locking. If it was locked from the inside and the door was then closed, one would be locked out. He also testified that the refrigerator had been pulled out from the wall and turned slightly.

|¡;On cross-examination, Horton testified that there was broken glass around the window, but he did not find any blood around the window or in the mobile home.

The only witness for the defense at trial was Defendant. Defendant described his background and that he had an abusive, alcoholic father and “good old lady” mother. He grew up on Lake Bistineau and dropped out of high school. When asked what he did after high school, he answered, “I went to prison.” Defendant was 43 years old at the time of this offense and described his lengthy felony criminal history, which began when he was 17 years old. He testified that, in 2007, he was convicted of molestation of a juvenile and has a previous conviction for burglary of an inhabited dwelling and an attempted burglary.

Regarding the current offense, Defendant admitted that he took the window unit and had the intent to steal it. He testified that he stays in his mother’s shed when he is in town because it bothers her when he drinks. He testified that he knew the former tenants had moved out and he had thought about stealing the window unit earlier in the day. Defendant started drinking in his mother’s shed and, after getting drunk, decided to steal it. While Defendant admitted he took the window unit, he adamantly denied going into the mobile home. He testified that he pushed up on the unit, which smashed the window, and he “ripped it out of the trailer” and “throwed it down in'’my momma’s shed.” While he was carrying it to the shed, Defendant noticed a person squatting down talking on a cell phone, but the person was not paying attention to him. According to Defendant, he |figot a feeling that something was not right. After being in the shed for a few minutes, he looked out of the shed and saw a patrol car. He left the window unit there and went through a fence and into a pasture where he passed out.

Defendant testified that it would make no sense for someone to go into the vacant mobile home to steal anything because it was empty. There was nothing to steal. He testified that he was treated at the hospital for the dog bites, but did not have any injuries from broken glass. Finally, he testified that he is “covered” in tattoos. ■

As previously stated, the jury found Defendant guilty as charged and he was sentenced to ten years at hard labor. The trial court ordered the sentence to run consecutively with any other sentence Defendant was currently serving or any sentence he will have to serve. Timely motions for post-verdict judgment of acquittal, new trial and for reconsideration of sentence were filed and denied. Defendant now appeals, urging 2 assignments of error through counsel with the Louisiana Appellate Project and 24 pro se assignments/arguments.

DISCUSSION

Counseled Assignment of Error Number 1: The evidence adduced at trial was insufficient to support a conviction of simple burglary.

Pro se Assignments of Error Numbers 2, 3, 8 and Ip. Challenges to sufficiency of evidence.

Defendant argues that the state failed to meet its burden of proving the element of entry; therefore, the evidence was insufficient to sustain the conviction.

|7The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Tate, 01-1658 (La.5/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004); State v. Carter, 42,894 (La.App.2d Cir.1/9/08), 974 So.2d 181, writ denied, 08-0499 (La.11/14/08), 996 So.2d 1086. This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 05-0477 (La.2/22/06), 922 So.2d 517; State v. Dotie, 43,819 (La.App.2d Cir.1/14/09), 1 So.3d 833, writ denied, 09-0310 (La.11/6/09), 21 So.3d 297.

Defendant was charged with and found guilty of simple burglary, defined in La. R.S. 14:62 as the unauthorized entering of any dwelling, vehicle, water craft, or other structure, movable or immovable, or any cemetery, with the intent to commit a felony or any theft therein, other than as set forth in La. R.S. 14:60. Noting that “entry” is not statutorily defined in Louisiana, the supreme court has expressly adopted “the universal definition given to the term ‘entry,’ ” and has held as a matter of law that an “entry” for purposes of the crime of burglary occurs when any part of the intruder’s person crosses the plane of the threshold. State v. Bryant, 12-233 (La.10/16/12), 101 So.3d 429.

|gWhen viewed in the light most favorable to the prosecution, the evidence presented at trial was sufficient to convict Defendant of simple burglary. The only element challenged by Defendant is “entry.” Two eyewitnesses testified that they watched a person, whom they both identified as Defendant, push the window unit into the mobile home, crawl through the window and exit through the front door carrying the window unit. The jury chose to credit this direct evidence over the testimony of Defendant.

Defendant further argues that he sustained no lacerations from broken glass and suggests that the window was too high off the ground for him to crawl through. The state points out that the window unit rests on the window sill with the glass portion of the window raised and resting on the top of the unit. It is completely reasonable that Defendant crawled over the window sill and into the mobile home without being cut by glass. In addition, the design of the locks as described by Horton supports the theory that Defendant turned the deadbolt to unlock it from the inside; and, once outside, when he closed the door, the self-locking doorknob locked. This explains why the deadbolt was unlocked, but the doorknob was locked when Horton exited the mobile home after the burglary.

There is sufficient evidence on which the jury could have based a finding that Defendant entered the mobile home and is guilty of simple burglary. The assignments of error addressing the sufficiency of the evidence are without merit.

In his pro se brief, Defendant also attacks the credibility of Tracy and Kristine, suggesting that their testimony contains inconsistencies which |9dictate that their testimony be discredited. He also complains that he was improperly convicted based solely on circumstantial evidence. First, for the reasons previously expressed, the state presented sufficient evidence to support the finding that Defendant entered the mobile home. In addition, credibility determinations are within the province of the trier of fact and this Court does not reweigh evidence or assess credibility. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442; State v. Eason, 43,788 (La.App.2d Cir.2/25/09), 3 So.3d 685, writ denied, 09-0725 (La.12/11/09), 23 So.3d 913; State v. Hill, 42,025 (La.App.2d Cir.5/9/07), 956 So.2d 758, writ denied, 07-1209 (La.12/14/07), 970 So.2d 529. The jury chose to accept the testimony of Tracy and Kristine, the eyewitnesses, and to reject the testimony of Defendant. This court must accord deference to that determination and should not disturb the jury’s findings. Second, contrary to Defendant’s assertion, he was not convicted on circumstantial evidence. Rather, the conviction was based on the direct evidence of two eyewitnesses who observed him crawl through the window of the mobile home and exit through the front door.

The pro se assignments are also without merit.

Pro se Assignments of Error Numbers k-7, 21 and 22: Ineffective Assistance of Counsel

Defendant complains that his appointed trial counsel was ineffective and that Pamela Smart of the Indigent Defender’s Office failed to provide him with effective counsel. He also complains that the Bossier Parish Clerk of Court, the assistant district attorneys and the public defender’s office were informed via carbon copies of his numerous letters to the trial court | mthat he was being denied effective counsel. Specifically, Defendant alleges that his counsel failed to subpoena witnesses he desired to call to testify and asserts that his trial counsel “sold him out” by revealing to the district attorney that he could not have crawled through the window because he did not have any cuts or lacerations.

As a general rule, a claim of ineffective assistance of counsel is more properly raised in an application for post-conviction relief (“PCR”) in the trial court than by appeal since the PCR process creates the opportunity for a full evidentia-ry hearing under La. C. Cr. P. art. 930. State ex rel. Bailey v. City of West Monroe, 418 So.2d 570 (La.1982); State v. Ellis, 42,520 (La.App.2d Cir.9/26/07), 966 So.2d 139, writ denied, 07-2190 (La.4/4/08), 978 So.2d 325. When the record is sufficient, this issue may be resolved on direct appeal in the interest of judicial economy. State v. Ratcliff, 416 So.2d 528 (La.1982); State v. Willars, 27,394 (La.App.2d Cir.9/27/95), 661 So.2d 673.

There has been no showing that Defendant’s trial counsel was deficient. A review of the record reveals that Defendant’s appointed counsel made appropriate filings and advanced the interests of Defendant at each stage of the proceedings, including effective witness questioning and presentation of evidence. The evidence against Defendant was strong, including the testimony of two eyewitnesses, and his counsel made appropriate and vigorous argument to the jury on his behalf. Defendant has not specified any particular deficiency on the part of his trial counsel that would support a claim of ineffectiveness. Furthermore, any perceived |n deficiency certainly did not prejudice the defense or deprive Defendant of a fair trial.

These assignments are without merit.

Pro se Assignments of Error Numbers 9, 15 and 18: Defendant was denied complete discovery until after trial.

On September 27, 2011, Defendant’s appointed counsel filed a motion for discovery and production of documents. On April 12, 2012, Defendant filed a pro se motion for discovery under four different docket numbers, including the instant matter. On January 30, 2012, the trial judge denied the pro se motion as repetitive in the instant matter, noting that it had previously granted counsel’s motion and the state had complied therewith on November 15, 2011. On February 29, 2012, Defendant filed a pro se motion to produce, requesting all “photos pertaining to his case” and all “medical records pertaining to his case.” On March 21, 2012, Defendant filed a pro se motion for production of documents requesting “all pre-trial motions filed.” The trial court again denied the motions as repetitive and ordered Defendant to obtain the requested material from his court-appointed counsel.

Defendant was convicted on May 22, 2012, and remanded for sentencing on August 14, 2012. On June 13, 2012, after his trial and conviction, Defendant filed a pro se motion for production of documents seeking a copy of his “bill of information, bill of particular, photo copies of evidence, indictment, copies of pretrial hearing, police investigation reports, police report, court minutes.” The motion was again denied as repetitive and Defendant was again advised to obtain the information from his court-jappointed12 counsel. Defendant was further advised that, after sentencing, he would be entitled to one free copy of his guilty plea colloquy, bill of information, criminal case minutes and documents committing him to custody in accordance with the law. Though technically not discovery, Defendant requested by letter and motions copies of court transcripts, each of which were appropriately addressed by the trial judge and/or law clerk.

Throughout his pro se brief, Defendant argues that his counsel failed to provide him with the information he continually sought through the above-described motions.

There is nothing in the record before this Court that supports the argument that Defendant was denied discovery. The record contains several rulings of the trial court noting that the state complied with discovery and advising Defendant to obtain the information from his counsel. Defendant makes the bare allegation that counsel would not provide the discovery to him, but there is no support for this assertion in the record. Defendant acquiesced in counsel’s representation of him pretrial and through sentencing.

These assignments are without merit.

Pro se Assignments of Error Numbers 1 and 16: The “arrest affidavit” and Bill of Information were defective.

Defendant argues that the arrest affidavit was not reviewed within 48 hours. Defendant attached the Arrest Report of the Bossier Parish Sheriffs Office to his brief on appeal and complains that the affidavit portion of the report is not signed and dated by a judge. The report, however, is not part of the record on appeal and will not be considered.

| ^Defendant also argues that the Bill of Information was not signed by the district attorney and, therefore, is defective. The Bill of Information contained in the record at page 10 is in proper form and signed by an assistant district attorney.

These assignments are without merit.

Pro Se Assignment of Error Numbers 10, 11 and 12: Defendant was denied his right to a speedy trial, was denied a contradictory hearing on his Motion for Speedy Trial and was denied contradictory hearings on other motions.

Speedy Trial

Defendant argues that he was denied a contradictory hearing on his motion for speedy trial and that the denial of the motion was error.

For the noncapital felony with which Defendant was charged in the present case, the state was given two years from the institution of prosecution to commence trial. La. C. Cr. P. art. 578. Defendant’s arguments are meritless because the matter went to trial within two years of the institution of prosecution. In addition, there is no indication of error in the trial court’s handling of the motion and the denial thereof.

Denial of Other Contradictory Hearings

It is unclear from Defendant’s brief or from his other numerous filings exactly what he is complaining about in this assignment. It seems he believes he was entitled to contradictory hearings on various pretrial motions, which are not identified. Based on the argument of Defendant and the fact that there is no evidence in the record of a denial of any contradictory hearings, this court finds no error.

Accordingly, this assignment is without merit.

| uPro se Assignment of Error Number IS: There was no consent to search form signed by his mother granting permission to search the shed.

Defendant argues that his mother did not sign a consent to search form and that the search of the shed was in violation of his constitutional right to be free from unreasonable search and seizure.

Officer Sproles testified that he spoke with Defendant’s mother and had her sign a consent to search form, which he then gave to Sgt. Johnson. Sgt. Johnson conducted the search. The alleged consent to search form was not introduced at trial and is not a part of the record.

Defendant failed to object during either officer’s testimony. If Defendant had not been provided the signed consent to search form by the state prior to trial, he failed to seek to have the same produced. Defendant cannot challenge the testimony of the officers regarding his mother’s consent to search for the first time after the jury’s verdict has been rendered. La. C. Cr. P. art. 841.

This assignment is without merit.

Pro se Assignments of Error Numbers 19, 20 and 2⅛: The procedure for the preliminary examination was improper and, therefore, Defendant was unprepared for the hearing; the trial court erred in denying Defendant’s motion in limine.

On March 8, 2012, Defendant filed a motion for preliminary hearing and a motion in limine, under several docket numbers, including the instant matter. The motion in limine sought to prohibit the “district attorney, Judge or any other from using [Defendant’s] criminal background against [him] to convict [him].” By ruling dated April 3, 2012, the trial judge set a contradictory hearing on the motions for May 15, 2012. There is no | ^transcript of a hearing on that date and the record contains no ruling on the motions.

Preliminary Examination

When a criminal defendant feels he has a right to a preliminary examination, he should assert that right before trial by means of an application for supervisory writs. On appeal after conviction, he can no longer allege that he was improperly denied a preliminary examination. State v. Brent, 347 So.2d 1112 (La.1977). Since Defendant was convicted, he may not claim that he was denied a preliminary examination. State v. Brent, supra.

Motion in Limine

Within a reasonable time before trial, the state must furnish a defendant with a statement in writing of the criminal acts or offenses it intends to offer in evidence specifying the exception to the general exclusionary rule upon which it relies for admissibility. State v. Prieur, 277 So.2d 126 (La.1973). Absent evidence that the state evaded Prieur notice requirements by deliberately reserving its other crimes evidence for cross-examination or rebuttal, the Prieur notice requirements do not apply where the defendant, through his own testimony, makes the other crimes evidence relevant. State v. Silguero, 608 So.2d 627, 630 (La.1992).

Defendant chose to testify on his own behalf. He testified freely on direct examination about his criminal history. Even if the evidence was elicited first by the state in cross-examination, the evidence was admissible hRfor impeachment purposes. La. C.E. arts. 404 and 609.1; State v. Prieur, supra.

These assignments are without merit.

Pro se Assignment of Error Number 23: Defendant’s “first appeal” was denied on false grounds.

Following his conviction, but before sentencing, Defendant filed a pro se motion for appeal. Citing La. C. Cr. P. art. 911, the trial court denied the motion as premature because Defendant had not yet been sentenced. Defendant argues that this denial was “a lie” and he should have been granted the appeal. This assignment is moot, as the matter is currently on appeal. There is no error in the trial court’s ruling.

Accordingly, this assignment is without merit.

Counseled Assignment of Error Number 2: The sentence of ten years at hard labor is excessive under the facts and circumstances of this case.

Defendant argues that the trial court failed to tailor the sentence to him and this offense, instead basing a near-maximum sentence solely on his criminal history.

The trial court ordered a presentence investigation and thoroughly reviewed the report at sentencing. In addition, the trial judge was aware of and considered the testimony of Defendant regarding his personal and familial background. The judge also considered Defendant’s criminal history, which began as soon as he dropped out of high school. In 1986, Defendant pled guilty to simple burglary. A year later, his probation was revoked. In 1987, he pled guilty to felony property damage. In 1989, Defendant pled guilty to attempted burglary of a business in Bossier City |17and in 1993 to simple burglary of an inhabited dwelling in Red River Parish. Defendant was convicted of DWI in 2002 and pled guilty to molestation of a juvenile in 2004. At the time of sentencing in the instant matter, Defendant had a pending charge of failure to register as a sex offender. In addition, the presentence investigation report revealed a myriad of arrests and nol grossed charges. Since Defendant was a sixth felony offender, the trial judge found that the factors of La. C. Cr. P. art. 894.1 supported Defendant’s need of correctional treatment in a custodial environment to protect the citizens of Bossier Parish.

An appellate court utilizes a two-pronged test in reviewing a sentence for excessiveness. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Lathan, 41,855 (La.App.2d Cir.2/28/07), 953 So.2d 890, writ denied, 07-0805 (La.3/28/08), 978 So.2d 297. The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense, and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Ates, 43,327 (La.App.2d Cir.8/13/08), 989 So.2d 259, writ denied, 08-2341 (La.5/15/09), 8 So.3d 581. There is no requirement that specific matters be given any particular weight at sentencing. State v. Shumaker, 41,547 (La.App.2d Cir.12/13/06), 945 So.2d 277, writ denied, 07-0144 (La.9/28/07), 964 So.2d 351.

Second, a sentence violates La. Const. Art. 1, § 20, if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La.1993). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 01-0467 (La.1/15/02), 805 So.2d 166. A trial court has wide discretion to sentence within the statutory limits. Absent a showing of manifest abuse of that discretion, a sentence will not be set aside as excessive. State v. Black, 28,100 (La.App.2d Cir.2/28/96), 669 So.2d 667, writ denied, 96-0836 (La.9/20/96), 679 So.2d 430. As a general rule, maximum sentences are reserved for the worst kind of offender. State v. Cozzetto, 07-2031 (La.2/15/08), 974 So.2d 665; State v. McKinney, 43,061 (La.App.2d Cir.2/13/08), 976 So.2d 802.

The trial judge adequately considered the statutory factors in sentencing this sixth felony offender. The ten-year hard labor sentence is within the statutory range and is not a manifest abuse of the trial court’s vast sentencing discretion. Furthermore, the sentence is neither a purposeless infliction of pain and suffering, nor does it shock the sense of justice.

This assignment is without merit.

| ^CONCLUSION

For the reasons set forth above, the conviction and sentence of Defendant, Gary Anthony Bailey, Jr., are affirmed.

AFFIRMED.


source: Caselaw Access Project

author: LOLLEY, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Varnel MARTIN, Jr., Appellant.
    No. 48,045-KA.
    Court of Appeal of Louisiana, Second Circuit.
    May 15, 2013.

      Douglas Lee Harville, Louisiana Appellate Project, for Appellant.
    J. Schuyler Marvin, District Attorney, John M. Lawrence, Assistant District Attorney, for Appellee.
    Before MOORE, LOLLEY and PITMAN, JJ.
   LOLLEY, J.

| iVarnel Martin, Jr., was convicted by the 26th Judicial District Court, Parish of Bossier, State of Louisiana, of one count of second degree robbery in violation of La. R.S. 14:64.4 and was sentenced to 25 years’ hard labor. Martin now appeals. For the following reasons, we affirm his conviction and sentence.

FACTS

On November 17, 2009, Martin entered the home of an acquaintance, Huey Green, while wearing a mask and carrying a gun. Martin shot Green and stole $400.00 from him. Green, who survived the attack, recognized Martin as the assailant and informed the police that Martin had shot and robbed him.

Martin was arrested and charged by bill of information with armed robbery in violation of La. R.S. 14:64. On the day set for trial and pursuant to a plea agreement, Martin pled guilty to one count of second degree robbery in violation of La. R.S. 14:64.4, and the State agreed not to charge Martin as a habitual offender. At the Boykin hearing, the trial court properly questioned Martin to ensure he knowingly and voluntary relinquished his rights to trial by accepting the plea deal.

Prior to sentencing, Martin filed a pro se motion to withdraw his guilty plea as unknowing, contending that his trial counsel had misinformed him by stating that the charge of second degree robbery was “not a crime of violence” and, therefore, would only subject him to serve only 55% of his sentence. After a contradictory hearing, the trial court denied Martin’s motion to withdraw his guilty plea. At the sentencing hearing, the trial |2court reviewed the presentence investigation report, and after articulating the reasons for its ruling, sentenced Martin to serve 25 years’ hard labor. This appeal followed.

DISCUSSION

As his first assignment of error, Martin argues that the trial court erred by denying his motion to withdraw his guilty plea. Specifically, Martin claims that prior to his guilty plea, his trial counsel had advised him that the crime of second degree robbery was not a crime of violence as defined by La. R.S. 14:2B and, therefore, he would only have to serve only 50% of his sentence pursuant to diminution of sentence for good behavior under La. R.S. 15:571.3. Martin claims he did not discover until after he pled guilty that second degree robbery was in fact a crime of violence and that he would not receive credit for good time served and, therefore, the misinformation provided by his trial counsel precluded him from entering a knowing and voluntary plea.

Louisiana. C. Cr. P. art. 559A allows a trial court to permit a plea of guilty to be withdrawn at any time before the imposition of a sentence. The discretion to allow withdrawal of a guilty plea under Art. 559A lies with the trial court and such discretion cannot be disturbed unless an abuse or arbitrary exercise of that discretion is shown. State v. Harris, 43,069 (La.App.2d Cir.03/19/08), 980 So.2d 174. A defendant has no absolute right to withdraw a guilty plea. Id.

When the record establishes that an accused was informed of and waived his right to trial by jury, to confront his accusers, and against | ^self-incrimination, then the burden shifts to the accused to prove that despite this record, his guilty plea was involuntary. State v. Wynne, 40,921 (La.App.2d Cir.04/12/06), 926 So.2d 789; see also Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).

A plea is constitutionally infirm when the defendant is induced to plead guilty by a plea agreement or by what the defendant reasonably believes is a plea agreement and the terms of the agreement are not satisfied. State v. Bouwell, 45,635 (La.App.2d Cir.09/22/10), 48 So.3d 335. Where a defendant’s misunderstanding is not induced by or attributed to representations made by the district attorney or the trial court, there are no grounds for withdrawal of the plea. State v. Hall, 26,006-26,007 (La.App.2d Cir.1994), 637 So.2d 645, writ denied, 94-1873 (La.09/30/94), 642 So.2d 868. In the absence of fraud, intimidation, or incompetence of counsel, a guilty plea is not made less voluntary or less informed by the considered advice of counsel. Id.

Here, the trial court properly denied Martin’s motion to withdraw his guilty plea. The transcript of Martin’s guilty plea colloquy reflects that the trial court informed Martin of his Boykin rights and the applicable penalty range for second degree robbery. Martin stated that he understood both his rights and the attendant penalty range. Martin admitted to the facts of his crime as recited by the State, and he pled guilty to second degree robbery. At no point during the lengthy guilty plea colloquy did Martin ask the trial court whether he would be eligible for good time credit if he pled guilty.

^Furthermore, at the contradictory hearing concerning Martin’s motion to withdraw his guilty plea, Martin failed to present any evidence supporting his claim that his trial counsel had misinformed him even though his trial counsel was present at the hearing to testify. Martin merely stated that he had believed, based on his trial counsel’s representations, that he would be eligible for good time credit if he pled guilty. Because Martin presented no evidence supporting his claim that his plea was unknowing and involuntary, the trial court did not abuse its discretion in denying Martin’s motion to withdraw his guilty plea, and this assignment of error is without merit.

As his second assignment of error, Martin claims that the trial court erred by imposing an unconstitutionally excessive sentence. We disagree.

The test applied by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial court is not required to list every aggravating or mitigating circumstance so long as the record reflects that it adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Washington, 46,913 (La.App.2d Cir.02/01/12), 86 So.3d 697, writ denied, 2012-1407 (La.11/21/12), 102 So.3d 54. The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is | Sunnecessary even where there has not been full compliance with La. C. Cr. P. art. 894.1. State v. Lanclos, 419 So.2d 475 (La.1982); State v. Swayzer, 43,350 (La.App.2d Cir.08/13/08), 989 So.2d 267, writ denied, 2008-2697 (La.09/18/09), 17 So.3d 388. The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense, and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Ates, 43,327 (La.App.2d Cir.08/13/08), 989 So.2d 259, writ denied, 2008-2341 (La.05/15/09), 8 So.3d 581. There is no requirement that specific matters be given any particular weight at sentencing. State v. Moton, 46,607 (La.App.2d Cir.09/21/11), 73 So.3d 503, writ denied, 2011-2288 (La.03/30/12), 85 So.3d 113.

Second, a sentence violates La. Const. Art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Smith, 2001-2574 (La.01/14/03), 839 So.2d 1; State v. Dorthey, 623 So.2d 1276 (La.1993). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 2001-0467 (La.01/15/02), 805 So.2d 166; State v. Walls, 47,006 (La.App.2d Cir.02/29/12), 86 So.3d 71.

Louisiana R.S. 14:64.4B governs sentencing upon a conviction for second degree robbery and states, “Whoever commits the crime of second degree robbery shall be imprisoned at hard labor for not less than three years and for not more than forty years.”

| (¡Here, the trial court adequately considered the criteria set forth in La. C. Cr. P. art. 894.1, and Martin’s sentence was not excessive. First, the record reflects that at Martin’s sentencing hearing, the trial court thoroughly articulated its consideration of the factors enumerated within La. C. Cr. P. art. 894.1. Specifically, the trial court noted that Martin used a gun in the commission of his crime and greatly endangered human life by shooting his victim in the leg. Next, the trial court noted Martin’s extensive criminal history. At the time of sentencing, Martin qualified as a fourth felony offender. The trial court noted a felony conviction for aggravated burglary, two felony convictions for simple burglary, and the subject conviction for second degree robbery. Indeed, as the trial court made reference to, Martin had spent a significant majority of his adult life incarcerated. As for Martin’s personal history, the trial court noted that Martin was unmarried, had no children, and had never graduated from high school or obtained a G.E.D. Although 35 years of age at the time of sentencing, Martin had worked only a total of 20 months during his lifetime.

Second, the sentence of 25 years’ hard labor imposed by the trial court was not grossly disproportionate to the seriousness of Martin’s offense. The crime for which Martin was convicted exposed him to a possible sentence of 40 years’ hard labor. In the commission of his offense, Martin entered the home of his victim wearing a mask and inflicted grievous bodily injury by shooting his victim in the leg before stealing $400.00. Furthermore, Martin’s predation upon a known acquaintance in the autumn years of his life has truly torn at the fabric of society as it exhibited both a [ /lightening degree of heedless compulsion and lack of any moral code. Martin’s victim was at a complete loss as to why Martin felt the need to act as he did. Finally, Martin’s criminal record reveals a penchant for armed robbery and a reliable failure to behave within the bounds of any decent human conduct. Considering the extremely violent nature of Martin’s crime and his complete disregard for the law and the rights of others, any lesser sentence would deprecate the seriousness of the offense. Thus the trial court’s sentence was not a needless infliction of pain and suffering, and this assignment of error is without merit.

CONCLUSION

For the foregoing reasons, the conviction and sentence of Varnel Martin, Jr. are affirmed.

AFFIRMED.


author: CARAWAY, J. STEWART, J.,

text:
    Lou K. TAYLOR, Plaintiff-Appellant v. J.D. DUMAS, Jr. and Doris Shannon Dumas, Defendants-Appellees.
    No. 48,055-CA.
    Court of Appeal of Louisiana, Second Circuit.
    May 15, 2013.
    Rehearing Denied June 20, 2013.
    William A. Jones, Jr., for Appellant.
    Chris L. Bowman, Jonesboro, LA, E. Yvette Dumas, Lafayette, LA, for Appel-lees.
    Before WILLIAMS, STEWART and CARAWAY, JJ.
   CARAWAY, J.

h This action was filed to establish the boundary line between two tracts and determine ownership of a disputed .7592 acres along the common property line. At the filing of this action, defendants were in possession of the disputed tract, having constructed a new boundary fence before plaintiff’s purchase of the land. After a bench trial, the trial court determined that plaintiff failed to prove her ancestor-in-title’s intent to possess the disputed tract as owner. The boundary was fixed by the judgment along the surveyed ideal boundary which was the location where defendants’ new fence had been built. The plaintiff appeals the trial court’s judgment. We affirm.

Facts

The property that plaintiff, Lou Taylor, now owns is referred to as the Pesnell tract. Evidence was presented to indicate that the Pesnells (or Pesnell heirs) owned the tract from 1940 until 2006. The adjoining property owned by the defendants, J.D. and Doris Dumas (hereinafter the “Dumases”), is generally referred to as the Spencer tract. Evidence indicated that the Spencer family owned their tract from about 1941 until 1997.

The two tracts share a common boundary in which the southern border of the Pesnell tract is the northern boundary of the Spencer tract and is approximately 560 feet in length (hereinafter the “Ideal Boundary”). There is a fence or remnants of an old fence (hereinafter “Old Fence”) that was constructed and encroaches on the northern boundary of the Spencer 12tract taking in an area of .7592 acres (hereinafter the “Disputed Tract”). At the location of the Old Fence, the boundary between these two tracts was surveyed to be approximately 590 feet from a road on the west to the corner of both properties on the east. Neither party introduced evidence regarding the owner of the land who built the Old Fence or when that occurred.

The Dumases purchased the Spencer property on November 22, 2000. In April 2006, Frank Miller, a surveyor, completed a survey for the Dumases. Miller noted the existence of old fence fragments and a change in timber on his survey along that line. Miller placed the Ideal Boundary approximately 45 feet north of the Old Fence on the west side of the tract at the road and the line ran easterly to a point approximately 80 feet north of the Old Fence. Dumas constructed a new fence on the Ideal Boundary (hereinafter the “New Fence”) in August 2006.

Taylor acquired the Pesnell tract on March 23, 2007, from Myles Thibodeaux and Lee Savoy. Thibodeaux and Savoy had purchased the Pesnell tract from the Pesnell heirs in March 2006 and were the owners when the New Fence was built. At the time of Taylor’s 2007 acquisition, the New Fence had been constructed for seven months. As a result, Taylor never took possession of the Disputed Tract south to the Old Fence.

Soon after purchasing the Pesnell tract, Taylor hired a surveyor, Troy Lowe. Lowe’s preliminary survey discovered the existence of the Old Fence and noticeable change in timber on the other side of the New Fence. Ultimately, as found by the trial court, Lowe did not perform a complete survey, and the Ideal Boundary found by the Miller survey is the proven Lcommon boundary established from the written descriptions in the deeds to the Spencer and Pesnell tracts.

Taylor wrote the Dumases on October 25, 2007, in order to inform them of the encroachment caused by their New Fence. Taylor waited until May 15, 2009, however, to file a petition to establish her ownership of the Disputed Tract. She alleges that the Old Fence was established by her ancestors-in-title as the southern boundary of the Pesnell tract with over 30 years of continuous and uninterrupted possession before the construction of the New Fence.

A bench trial for the case was held. At the trial, Taylor and two others from the community testified that the Old Fence was the recognized boundary between the Pesnell and Spencer tracts for over 30 years. In contrast, the Dumases presented a witness from the community who disputed the existence of the Old Fence. Taylor admitted that her deed describes her southern Ideal Boundary as being the New Fence, not the Old Fence.

Taylor introduced photos at the trial that show an old and somewhat dilapidated barbed wire fence (some of the fence posts appear to have fallen over), a fire lane and a change in timber. Everyone concedes that the Old Fence still exists and extends all but 50 feet across the approximately 590-foot boundary. Newton Kavanaugh is Taylor’s brother and a former lessee of the Spencer tract from 1980 until 1993. Kava-naugh stated that the northern boundary line of his lease was the Old Fence. He also testified that the fire lane was created in 1993 so that the Spencers could plant pine trees.

[4The surveyor, Frank Miller, testified that he marked things on his plat that could have an “adverse impact” on the property on the Dumases’ survey. According to Miller, he recommended that the Dumases contact an attorney before building a New Fence due to the presence of the Old Fence and timber change.

Taylor introduced the depositions of Thi-bodeaux and Savoy at the trial. Savoy purchased the property so that his grandson, Thibodeaux, would have a place to live while attending Louisiana Tech. Thibo-deaux and Savoy denied any discussions with Dumas regarding a survey or New Fence. Yet, when questioned regarding a fence, Thibodeaux stated, “I don’t remember a fence. I think there was a newer fence there.” They both stated that they never examined the property line. Thibo-deaux admitted that he only spent a couple of nights at the property. Although neither was aware of the Disputed Tract and Old Fence, they both stated that they only bought and sold property according to the description in their deed.

J.D. Dumas testified on his own behalf at the trial. In contrast to Thibodeaux’s deposition, Dumas testified that:

I actually visited with Mr. Myles Thibo-deaux and told him what my intentions were. He indicated that he had seen the survey crew out there doing the marking of the trees with the red paint, etc_ He indicated that ... he would trust this surveyor since he was so well known.

Additionally, Dumas admitted that an old fence runs across his property, but he stated that it fails to traverse the entire boundary. Dumas admitted that he and Miller walked the “fence line together,” but he did not remember Miller’s precautionary advice regarding the situation. Dumas testified that |5he received quitclaim deeds from both Thibodeaux and Savoy five days before the trial. He recalled paying Savoy $500 for his quitclaim deed.

The trial court ultimately held for the Dumases and set the boundary according to the Ideal Boundary from the parties’ deeds. The court held that:

Plaintiff submitted no testimony and/or evidence from her predecessors in title or from any other prior owner(s) of the Taylor Tract establishing that any owners of the Taylor Tract took adverse corporeal possession of the Disputed Tract with the intent to own. While Track Kavanaugh testified that he saw someone on the Pesnell property mow up to the old fence, it was not established who performed this act, which act, without more, failed to establish adverse corporeal possession of the Disputed Tract. Plaintiff presented no evidence regarding who built the old fence or the purpose for which the old fence was built.

The trial court noted that the Disputed Tract was not described or contained in Taylor’s deed. Additionally, she has never had possession of the Disputed Tract. Therefore, Taylor failed to prove ownership by title or acquisitive prescription. Taylor appeals this judgment.

Discussion

While Taylor’s petition is captioned like a petitory action for the recognition of her ownership to the Disputed Tract, its fact allegations reveal that a boundary dispute exists between two adjacent owners. The description of the competing deeds when plotted reveal one common line which the undisputed Miller survey determined on the ground as the location of the New Fence. However, Taylor claims ownership beyond that Ideal Boundary to the Old Fence, an additional .7592 acres. The court’s final judgment ultimately fixed the boundary between the two owners at the New Fence, rejecting Taylor’s claim to the Disputed Tract.

|fiThe substantive and procedural provisions for a boundary action dispute directs the court to fix the boundary between the contiguous tracts on the basis of either the ownership or possession of the parties. La. C.C. art. 792 and La. C.C.P. art. 3693. Regarding these two legal concepts for disputed property along a boundary, Civil Code Article 792 states that “if neither party proves ownership, the boundary shall be fixed according to limits established by possession.”

From the record, it is undisputed that between the time of the construction of the New Fence by the Dumases in August 2006 until the filing of this action in 2009, the Dumases had exercised actual corporeal possession of the Disputed Tract. The possession and right of possession that Thibodeaux and Savoy may have had in August 2006 was disturbed, interrupted, and lost by the eviction for over one year that resulted by the Dumases’ action in constructing the New Fence. La. C.C. arts. 3433 and 3434. Possession was established in the Dumases.

The legal concepts of ownership and possession expressed in these articles for the boundary action produce the same effects as in other real actions. The relationship between a party in possession and the adverse party claiming ownership and the applicable burden of proof are the same for the boundary action which is a specific proceeding within the title of the Code of Civil Procedure for real actions. See Book VII, Title II, Chapter 2 of the Louisiana Code of Civil Procedure. First, Civil Code Article 3423 elevates the party in possession in a real action, as follows:

A possessor is considered provisionally as owner of the thing he possesses until the right of the true owner is established.

17This principle shifts the burden of proof to the adverse party who is not in possession but claiming ownership. That burden for the boundary and other real actions is best expressed in Article 3654 of the Code of Civil Procedure, in pertinent part, as follows:

[T]he court shall render judgment in favor of the party:
(1) Who would be entitled to the possession of the immovable property or real right therein in a possessory action, unless the adverse party proves that he has acquired ownership from a previous owner or by acquisitive prescription.

La. C.C.P. art. 3654; Loutre Land and Timber Co. v. Roberts, 10-2327 (La.5/10/11), 63 So.3d 120.

Thus, under the effects of the above principles reflected in Civil Code Article 792 and La. C.C.P. art. 3654, Taylor had the burden of proving her ownership to the Disputed Tract as acquired either from (1) a previous owner or (2) through her own acquisitive prescription by her actual possession extending before the time of the New Fence. It is obvious that Taylor never actually possessed the Disputed Tract at any time so that she could not prove ownership by her own acquisitive prescription of 10 or 30 years. Instead, she claims that the possession of her predecessors-in-title amounted to ownership of the Disputed Tract by their adverse possession over 30 years. Thus, under La. C.C.P. art. 3654, she claims to have proven that she “acquired ownership from a previous owner.”

For our analysis, even if we assume that Taylor’s evidence established actual corporeal possession of the Disputed Tract by the Pesnells, Thibodeaux and Savoy for over 30 years and that the trial court’s fact determination of their lack of intent to own was manifestly erroneous, |Rwe nevertheless affirm the trial court’s ruling. Because of the interruption of Thibodeaux and Savoy’s possession in August 2006, Taylor failed to demonstrate a juridical link to ownership of the Disputed Tract and therefore did not prove she “acquired ownership from a previous owner” in 2007.

Various provisions of the Civil Code address the transfer of ownership of an immovable:

La. C.C. art. 1839: A transfer of immovable property must be made by authentic act or by act under private signature. La. C.C. art. 2440: A sale or promise of sale of an immovable must be made by authentic act or by act under private signature.
La. C.C. art. 2477: Delivery of an immovable is deemed to take place upon execution of the writing that transfers its ownership.

Central to this written act requirement for the transfer of ownership of an immovable is the necessity for a sufficient property description identifying the tract. Nitro Energy, L.L.C. v. Nelson Energy, Inc., 45,201 (La.App.2d Cir.4/14/10), 34 So.3d 524. In Hargrove v. Hodge, 9 La.App. 434, 121 So. 224, 225 (La.App. 2d Cir.1928), it was determined that the property description in the instrument must be such that the property intended to be conveyed could be located and identified, and the general rule is that the description must fully appear within the four corners of the instrument itself, or that the instrument should refer to some map, plat, or deed as a part of the description, so that the same may be clear. It is not permissible to indulge in speculation when interpreting deeds to real property.

Taylor’s March 23, 2007 deed from Thi-bodeaux and Savoy is a particular title and juridical link conveying ownership. It particularly | ¡^described the Pesnell Tract with a metes and bounds description that extended only to the Ideal Boundary. There were no omnibus expressions within the deed, suggesting any additional land. In addition to her particular title, the facts on March 23, 2007, revealed that a constructed boundary, the New Fence, extended precisely along the Ideal Boundary. Thus, from the standpoint of the juridical link of Taylor’s written deed, she cannot show that she acquired ownership to the excess Disputed Tract from Thibodeaux and Savoy.

The rule for transfer of the ownership of an immovable by a particular title is not, however, without exception. In a boundary dispute setting, Article 794 of the Civil Code provides as follows:

When a party proves acquisitive prescription, the boundary shall be fixed according to limits established by prescription rather than titles. If a party and his ancestors in title possessed for thirty years without interruption, within visible bounds, more land than their title called for, the boundary shall be fixed along these bounds.

The important last sentence of Article 794 is a special rule for tacking of possession in boundary actions. As a general rule, possession is transferable by universal title or by particular title. La. C.C. art. 3441. However, as an exception, without a particular title or juridical link, “tacking is permitted in boundary actions within the limits of Article 794.” Revision Comment (d), La. C.C. art. 3442.

In Loutre Land and Timber, supra, the Louisiana Supreme Court applied Article 794’s possession tacking principle to also encompass the conveyance of ownership of an immovable without a particular title. In the Loutre Land boundary dispute, Loutre Land, like Taylor, purchased the land | mfrom a predecessor-in-title who had possession of the tract for over 30 years within visible bounds for more land than described in the predecessor’s title. Thus, at the time of the sale, Loutre Land’s predecessor had both possession and ownership by acquisitive prescription. The excess property extended for 15 acres to an established old fence line that encroached upon the defendant’s adjacent land to the south. As a critical distinction to the present case, at the time of Loutre Land’s acquisition deed, there was no boundary fence along the ideal property line north of the old fence so that the existing possession of Loutre Land’s predecessor to the 15 acres was transferred to Loutre Land. The question presented was whether the transfer of the disputed 15 acres without a particular title was a sufficient transfer of the ownership of that land, and the court concluded as follows:

Thus, we conclude that La.Civ.Code art. 794 does not require particular title to the Disputed Tract in order to convey the accompanying acquisitive prescription rights to that land. Rather, the continued possession of the land to the fence’s boundary by the Succession and Loutre for over thirty years mandates a finding that Loutre owns the Disputed Tract. In fact, because the law operates in favor of Loutre in the absence of a particularized description of the land, the Act of Sale would have required a clause excluding the Disputed Tract if that had been the parties’ intent.

Id. at 126. (Bold emphasis added.)

Loutre Land confirms therefore that the special tacking rule of possession of Article 794 also conveys ownership where acquisitive prescription has previously accrued. Nevertheless, it operates as a transfer of ownership without a particular title to the excess land so long as the facts on the ground allow for the transfer of possession to that land. In the language of Article 794, Loutre Land and its ancestors-in-title possessed the [ndisputed tract without interruption and within the visible bounds which existed on the date of Loutre Land’s deed. In contrast, at the time of Taylor’s deed, Thibodeaux and Savoy had already been evicted from their possession of the Disputed Tract, and Taylor never possessed “more land than ... called for” in her deed. Moreover, an examination of the property on the ground on the date of Taylor’s sale would have confirmed to her that the Dumases had constructed the New Fence as a boundary. Therefore, without Taylor’s demonstration of an acquisition comporting with the special tacking rule of Article 794, she did not prove that she acquired ownership of the Disputed Tract from Thibodeaux and Savoy.

Regarding any ownership rights of Thi-bodeaux and Savoy, the record reveals that they first tolerated the surveying of the Ideal Boundary and the Dumases’ constructing of the New Fence on that line. They later effectively confirmed the New Fence as the boundary when they quit-claimed to the Dumases any ownership of the Disputed Tract by deed with a particular description of the Spencer tract, including the .7592 acres. Accordingly, from the rules of possession and ownership which govern the fixing of a boundary, the trial court’s ruling in this case is affirmed.

Conclusion

Based on the foregoing, the trial court’s judgment is affirmed. The boundary was correctly fixed at the New Fence and Ideal Boundary. Costs of this appeal are assessed to appellant.

AFFIRMED.

STEWART, J., dissents with written reasons.

STEWART, J.,

dissenting.

11 What is clear in this case is that the evidence proves that the Pesnell family acquired ownership of the land up to the Old Fence by virtue of BO years of possession under La. C.C. art. 3486. Therefore, Dumas could not have acquired ownership by title of the disputed area when he acquired the adjoining tract in November 2000. The evidence proves that when Dumas had the land surveyed in 2006, he was put on notice by his own surveyor of the existence of a disputed boundary. Therefore, one could conclude that Dumas was in bad faith when he constructed the new fence to encompass the disputed area. Dumas should not be allowed to acquire in bad faith property which the Pesnell family acquired based on 30 years of possession. Based on the existence of the old fence line, the change of timberline, the visual view of the property, and the neighborhood understanding, Dumas’s possession was always in bad faith and subsequent construction of the new fence did not cure this.

Therefore, I conclude that Taylor should be able to tack on to the Pesnell family’s previous possession and ownership of the disputed land under La. C.C. art. 794.

I respectfully dissent.

APPLICATION FOR REHEARING

Before WILLIAMS, STEWART, CARAWAY, MOORE and LOLLEY, JJ.

| xRehearing denied.

STEWART and LOLLEY, JJ., would grant rehearing.


author: CONERY, Judge. PICKETT, J.,

text:
    William J. BERARD and Jacqueline Castle Berard v. ST. MARTIN PARISH GOVERNMENT and Ace American Insurance Company.
    No. 13-114.
    Court of Appeal of Louisiana, Third Circuit.
    June 5, 2013.

      Jacques P. Soileau, Soileau Law Office, Breaux Bridge, LA, for Plaintiffs/Appel-lees, William J. Berard, Jacqueline Castille Berard.
    James L. Pate, Sara Rodrigue, Laborde & Neuner, Lafayette, LA, for Defendants/Appellants, St. Martin Parish Government, Ace American Insurance Company.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, ELIZABETH A. PICKETT, and JOHN E. CONERY, Judges.
   CONERY, Judge.

hThe trial court found in favor of William and Jacqueline Berard (the Berards) and against the St. Martin Parish Government and its insurer, Ace American Insurance Company (collectively, St. Martin Parish), and awarded treble damages, costs, and attorney fees for the destruction of three live oaks and seven pecan trees during the clearing of a drainage channel located in St. Martin Parish. For the following reasons, we affirm the damage award of $37,790.00 for the loss of the trees and damage to the Berards’ property, plus trial court costs of $1,300.00, but we reverse the award of treble damages of $113,370.00 and attorney fees of $35,000.00.

FACTS AND PROCEDURAL HISTORY

In September of 2010, St. Martin Parish performed maintenance and drainage improvement work on a drainage channel located on Sosthene Guilbeau Road near Breaux Bridge, Louisiana. The drainage channel at issue runs between the property of the Berards and that of their neighbor to the west, Eta S. Lalonde. The boundary line between the two properties is in the center of the drainage channel.

The Berard and Lalonde properties were also separated by a tree line on the eastern, or Berard, side of the boundary, which served as a fence to enclose and shade the pasture for their horses. There was an old fence constructed of barbed wire twisted around the tree line, as well as some cypress fence posts placed on the property by Mr. Berard’s grandfather.

|2The entirety of the Berards’ property in question is described in the St. Martin Parish Assessor’s Parcel Reports, dated October 20, 2009, and consists of parcels 04301A3934, 04301A4334, and 04301A4534. The October 20, 2009 Parcel Reports introduced in to the record at trial consist of properties that are described as “LANDOWNER NO. 2 RESIDENTIAL,” “LANDOWNER NO. 4 VACANT,” and “LANDOWNER NO. 6 VACANT.” The residential lot is .616 acres, assessed at $5000.00. The two vacant lots are each approximately .516 acres, assessed at $3,000.00 each, or $6,000.00 total.

Due to a problem with drainage back up on the adjoining Lalonde property, Ms. Lalonde made a request to her Parish Councilman, James Hebert, to have St. Martin Parish clear the debris, trees, and tree roots from the drainage channel in order to facilitate proper drainage. Councilman Hebert contacted the St. Martin Parish Department of Public Works (DPW) to put in the request, and Parish Road Supervisor Ronnie Angelle conducted an inspection of the drainage channel.

After the inspection, Angelle concluded the drainage channel was silted up with sedimentation and vegetative debris, including trees and tree roots. Based on the condition of the drainage channel, he proposed a maintenance and improvement project to improve the limits of the entire channel. DPW further confirmed that St. Martin Parish had maintained the drainage channel in the past for many years. Angelle testified at trial he personally worked on the drainage channel for approximately twenty to thirty years as an employee of the DPW. This prior maintenance thus granted the DPW the authority to perform the proposed |sproject, as St. Martin Parish had established a “maintenance servitude” on the Berards’ property.

On August 11, 2010, St. Martin Parish sent correspondence to all affected landowners, including the Berards, notifying them of the impending work on the drainage channel. The correspondence contained a legal description of the drainage channel and a map highlighting the proposed maintenance. The letter to the adjacent property owners also stated:

In an effort to improve drainage in this area, this project will include the removal of trees along the canal and the subsequent excavation of the canal. The trees will be burned and buried and excavated material will be spread onto the property as per our standard operating procedure.

(Emphasis added.)

The August 11, 2010 correspondence from St. Martin Parish also advised the landowners to contact Nanette Theriot, Public Works Technician for St. Martin Parish, if they had any questions or concerns, but a response was not necessary. The letter was sent to the landowners as a courtesy to inform them of the plans for maintenance of the drainage channel, which was “scheduled to begin within the next twenty-one (21) to thirty-five (35) days weather permitting.” The correspondence also notified the landowners that James Hebert, District 8 Council Member, “played a major role in getting this job approved.”

The Berards did not contact Theriot at the DPW office, but instead visited Councilman Hebert at his home to discuss the upcoming project. Mr. Berard is a riverboat captain, and he was scheduled to be on the Ohio River during the planned execution of the drainage channel project. The details of the Berards’ conversation |4with Councilman Hebert were disputed at trial. Hebert denied that the Berards voiced any concerns over the anticipated tree removal. Mr. Berard testified that he was very concerned for his property, his horses and the trees, which included trees planted at least seventy-two years ago by Mr. Berard’s grandfather and trees planted some thirty or so years ago by Mr. Berard. He specifically testified that he told the councilman he did not want their large trees to be removed. Councilman Hebert testified that the Berards were concerned about the safety of their horses during the work, but they did not reserve any trees or request that the trees not be removed. It is undisputed that several large trees on or near the drainage channel were removed during the project that began in September of 2010.

Following the removal of the trees on the Berards’ property, St. Martin Parish cleaned up all debris, leveled the property, and put up a fence in order to contain the Berards’ horses. At the Berards’ request, St. Martin Parish President Guy Cormier toured their property to personally view the work done by the DPW on the drainage channel and to discuss the loss of the trees. During the meeting, Mr. Berard expressed his concern over the barbed wire used to construct the fence and the danger it posed to his horses. As a result, Cormier instructed the DPW to return to the Berards’ property and construct a new fence to the Berards’ specifications, including the use of a wire that would not hurt or place the Berards’ horses at risk.

Suit was filed by the Berards on January 18, 2011, seeking damages against St. Martin Parish for the wrongful and intentional destruction of their property, specifically including nine thirty-year-old pecan trees, as well as other damages, which eventually included three live oak trees.

Is A bench trial was held on June 19-20, 2011. At the close of evidence and testimony, the trial court found in favor of the Berards and ruled that St. Martin Parish had removed trees from the Berards’ property without their permission. The trial court then found that St. Martin Parish had the right to clear the drainage channel of obstructions as the result of a right-of-way granted by the Berards’ ancestor-in-title, William Berard, or by virtue of prior maintenance performed on the property. The trial court did not award damages for the trees which were removed by St. Martin Parish which he determined were impeding drainage.

The trial court then determined that seven pecan trees and three live oak trees removed from the Berards’ property by St. Martin Parish, without the Berards’ consent, however, were not impeding the drainage channel. The trial court valued the seven pecan trees and three live oak trees at $37,790.00, based on the uncontra-dicted testimony of the Berards’ expert arborist, James Foret.

The trial court then applied the provisions of La.R.S. 3:4278.1, the timber piracy statute, and found bad faith on the part of St. Martin Parish based on its failure to conduct a survey prior to beginning the drainage channel project. The trial court then awarded the Berards treble damages of $113,370.00, attorney fees of $35,000.00, and witness fees of $500.00 for the surveyor, Michael Breaux, and $800.00 for the expert arborist, James For-et. The total sum of the award to the Berards was $149,670.00 plus interest and costs.

^ASSIGNMENTS OF ERROR

Appellant provides the following assignments of error:

I. The trial court failed to recognize that the Parish had a legal servitude on the Berards’ property pursuant to La. R.S. 38:113, giving it the right to clear trees from the channel within 100 [feet] on the Berards’ property. This legal error must be reversed.
II. The trial court imposed treble damages, attorney’s fees, and costs pursuant to La. R.S. 3:4278.1 despite finding that the Parish had a virtue of maintenance servitude and/or right-of-way on the plaintiffs’ property. This legal error must be reversed.
III. The trial court expanded the scope of La. R.S. 3:4278.1, in direct contravention of the recognized purpose of the timber piracy statute, to impose penalties and sanctions against the Parish. This legal error must be reversed.
IV. The trial court substituted its judgment for that of the Parish and the Department of Public Works when it determined that the Parish removed 7 pecan trees and B live oak trees which were not impeding drainage. The court lacked the authority to do so, and this legal error must be reversed.

DISCUSSION

Standard of Review

“Appellate review of a question of law is simply a decision as to whether the [trial] court’s decision is legally correct or incorrect.” Jim Walter Homes, Inc. v. Jessen, 98-1685, p. 5 (La.App. 3 Cir. 3/31/99), 732 So.2d 699, 702 (citing Ducote v. City of Alexandria, 95-1269 (La.App. 3 Cir. 7/17/96), 677 So.2d 1118). “If the trial court’s decision was based on its erroneous application of law, rather than on a valid exercise of discretion, the trial court’s decision is not entitled to deference by the reviewing court.” Id. (citing Kem Search, Inc. v. Sheffield, 434 So.2d 1067 (La.1983)). If an appellate court finds that a reversible error of law was made by |7the trial court, it must review the facts de novo and render a judgment on the merits. Lasha v. Olin Corp., 625 So.2d 1002 (La.1993).

The trial court’s ruling on the legal issues surrounding the application of La. R.S. 38:113 and 3:4378.1 to the facts is reversible error that necessitates the reversal of the award of treble damages and attorney fees to the Berards. This reversible error of law by the trial court requires us to conduct a de novo review of the facts and properly apply the law.

Application of La.R.S. 38:113

All four assignments of error urged by St. Martin Parish are related to St. Martin Parish’s right-of-way to clear the drainage channel. One such right-of-way is the statutory application of La.R.S. 38:113 which provides:

The various levee and drainage districts shall have control over all public drainage channels or outfall canals within the limits of their districts which are selected by the district, and for a space of one hundred feet on both sides of the banks of such channels or outfall canals, and one hundred feet continuing outward from the mouth of such channels or outfall canals, whether the drainage channels or outfall canals have been improved by the levee or drainage district, or have been adopted without improvement as necessary parts of or extensions to improved drainage channels or outfall canals, and may adopt rules and regulations for preserving the efficiency of the drainage channels or outfall canals.

Parishes in Louisiana have been granted the discretion to create a drainage district within the parish. La.R.S. 38:1602 provides:

18For the purpose of draining and reclaiming the undrained or partially drained marsh, swamp, and overflowed lands in Louisiana that must be leveed and pumped in order to be drained and reclaimed, the various parishes on their own initiative, may create drainage districts embracing all or part of the land in their parishes. All of the land in any drainage district shall be contiguous. No drainage district created under this Part shall contain within its limits less than five landowners, resident or nonresident and no land shall be included within more than one drainage district.

If a parish chooses to create a drainage district, then La.R.S. 38:1605 requires the Louisiana Department of Public Works to approve the drainage district.

The creation of such a drainage district is not mandatory, however. The parish governing authority is granted the power to perform drainage work where no drainage district exists. This authority is specifically granted in La.R.S. 33:1236(13) which states in pertinent part:

The police juries and other parish governing authorities shall have the following powers
(13) To construct and maintain drainage, drainage ditches, and drainage canals; to open any and all drains which they may deem necessary and to do and perform all work in connection therewith ... They may perform all other acts necessary to fully drain all the land in their respective parishes and maintain such drainage when established. This Paragraph is intended to furnish additional means whereby parishes in the State of Louisiana may accomplish the objects and purposes herein referred to, and shall be liberally interpreted.

(Footnotes omitted.)

This court in Dugas v. St. Martin Parish Police Jury, 351 So.2d 271, 273 (La.App. 3 Cir.1977), writ denied, 353 So.2d 1046 (La.1978), specifically held, “all public drainage channels within the limits of St. Martin Parish come within the control of the St. Martin Parish Police Jury for the purposes of [La.R.S. 38:113].” |aThe St. Martin Parish Police Jury has been replaced by the St. Martin Parish Government and the Parish Council as the governing body for the Parish of St. Martin, with the Parish President as administrator.

Testimony presented at trial by St. Martin Parish President Guy Cormier and Director of St. Martin Parish DPW Casey Alexander confirmed that St. Martin Parish elected not to create a drainage district, but chose to have all drainage work performed through its DPW. Thus, La. R.S. 38:113 gives St. Martin Parish a legal servitude of one hundred feet on either side of the drainage channel.

This court in Lavergne v. Lawtell Gravity Drainage District No. 11, 562 So.2d 1013, 1015 (La.App. 3 Cir.1990), cited Terrebonne Parish Police Jury v. Matherne, 405 So.2d 314 (La.1981), cert. denied, 456 U.S. 972, 102 S.Ct. 2234, 72 L.Ed.2d 845 (1982), wherein the Louisiana Supreme Court clarified the scope of the protections afforded to a political subdivision with respect to La.R.S. 38:113 and stated:

La.R.S. 38:113 never authorizes a public body to take or damage private property without just compensation or without due process of law. The “advantage” that a drainage district enjoys when it can exercise the legal servitude established by this article, is that it can enter the property for drainage purposes without being guilty of a trespass, and without exposing itself to damages for a trespass.

However, in order for a drainage district or political subdivision such as St. Martin Parish to take advantage of the one-hundred-foot legal servitude over drainage channels, which grants the right to maintain the drainage in a channel located within the parish, this court in Whipp v. Bayou Plaquemine Brule Drainage Bd., 476 So.2d 1042, 1044-45 (La.App. 3 Cir.1985), held that the following prerequisites must be met:

First, the drainage channel must have been either previously improved by the drainage district or adopted without pri- or improvement as a necessary part of or extension to improved drainage channels. Second, Imthe drainage channel must be a public channel. Third, the channel must be selected by the drainage district and recommended and approved by the Office of Public Works.

First Prong of Whipp — La. R.S. 38:113

Testimony at trial clearly supported both St. Martin Parish’s position and the finding of the trial court that the drainage channel on the Berards property met the prerequisites of the first prong of Whipp and the application of La.R.S. 38:113. Whipp first requires that “the drainage channel must have been either previously improved by the drainage district or adopted without prior improvement as a necessary part of or extension to improved drainage channels.” Id. at 1044.

Ronnie Angelle, the supervisor of the project involving the Berards’ property and a thirty-year employee of St. Martin Parish, testified that he had maintained the channel for twenty to thirty years. He recalled personally performing maintenance work there six to seven years before the incident at issue. Casey Alexander, Director of the St. Martin DPW, also confirmed that St. Martin Parish had maintained the channel in the past and, consequently, had the authority to complete the project. The record clearly established that St. Martin Parish had a lawful “maintenance” servitude on the drainage channel in question.

Additionally, documentation placed into the trial record indicates that on May 20, 1986, the Berards’ ancestor-in-title, William Berard, signed a right-of-way agreement which granted “to the Parish of St. Martin through its Police Jury, the necessary right-of-way for the construction, maintenance and improvement of drainage facilities through and across [his] property.” This declaration was ^followed by the legal description of the property at issue. The document further stated, “[t]he consideration for this grant is the expectation of benefits to said property as a result of the drainage improvement program.”

Thus, the public drainage channel on the Berards’ property appropriately meets the prerequisites of prong one of Whipp and the protections of La.R.S. 38:113, by virtue of the maintenance and dredging of the drainage channel by the St. Martin Parish DPW, as well as by the written right-of-way granted to St. Martin Parish by William Berard to maintain the drainage channel as needed on the entirety of the property in question.

Second Prong of Whipp — La.R.S. 38:113

Whipp also requires that the channel at issue be a public drainage channel. This second prong “requires a finding that the channel has been used for the purpose of drainage for many years and that this drainage protects the interest of the public in general rather than the interests of particular individuals.” Whipp, 476 So.2d at 1046 (citing Dugas, 351 So.2d 271). Testimony at trial indicated the channel at issue runs for a thousand feet along the property owned by several individuals, including the Berards, and eventually outfalls into a public bayou, which impacts not only the public and the adjacent landowners, but those individuals living near the outfall bayou. Angelle also testified that St. Martin Parish has maintained the channel for twenty to thirty years, and the Berards confirmed the channel has existed for at least thirty-five years.

Uneontradicted testimony at trial reflected that the trees, roots, and debris blocked the flow of drainage from the adjacent neighbor’s property. Poor drainage was the “root” of the problem, as the debris, trees, and roots prevented water from properly flowing through to the drainage channel until it reached its next | ^destination, the public bayou. Thus, the public drainage channel on the Berards’ property meets the prerequisites of prong two of Whipp and the protections of La. R.S.38:113.

Third Prong of Whipp — La.R.S. 38:113

In 1991, La.R.S. 38:113 was amended and reenacted to provide that a channel “selected by the district” need no longer be “recommended and approved by the Department of Public Works.” The only requirement necessary is that the channel be selected by the district or public body in control of drainage projects within the Parish. As previously established, this authority flows to St. Martin Parish by virtue of its replacement of the St. Martin Parish Police Jury.

The record reflects that St. Martin Parish Councilman James Hebert received a request from an affected landowner for St. Martin Parish to clear the subject channel. The request was presented to the St. Martin DPW, an inspection was duly conducted, and the necessary work order was eventually completed. The project was subsequently approved by Councilman James Hebert, Public Works Director Casey Alexander, and Parish President Guy Cormier. The project commenced in September 2010, after due process notice to all adjacent property owners. Thus, the public drainage channel on the Berards’ property meets the prerequisites of prong three of Whipp and the protections of La. R.S.38:113.

The trial court correctly determined in its ruling that St. Martin Parish had a right-of-way to clear the trees, which required dredging the roots out of the ditches on the Berards’ property, and found:

[T]he Parish had the right to clear the ditch of obstructions due to their continuous maintenance of the right-of-way, or as a result of a right-of-way granted by William Berard which was very vague as to whether it applied to that ditch or not, but the fact that they continuously maintained it gives them the right to maintain it.

| ^Boundaries of the Legal Servitude— La. R.S. 38:113

Louisiana Revised Statute 38:113 granted the authority for St. Martin Parish to enter the Berards’ property without their permission to maintain the public drainage channel. Pursuant to La.R.S. 38:113, that legal servitude granted to St. Martin Parish, extends to one hundred feet on each side of the channel.

All of the testimony and evidence presented at trial, including the testimony of the Berards and their expert, James For-et, placed the trees at issue within three to four feet from the drainage channel and seven to eight feet from the newly constructed fence. Thus, the record reflects that St. Martin Parish did not exceed the legal servitude granted by virtue of La. R.S. 38:113.

Application of La. R.S. 3:4278.1

After the trial court determined that St. Martin Parish had a right-of-way to maintain the drainage channel on the Berards’ property, the trial court then erroneously determined that St. Martin Parish had failed to conduct a survey of the Berards’ property prior to the work on the drainage channel. Neither the Berards nor Eta S. Lalonde ever disputed that the boundary between the two properties was in the center of the drainage channel. Nevertheless, the trial court applied the provisions of La.R.S. 8:4278.1(A)(1) and (B) and awarded the Berards “civil damages in the amount of three times the fair market value of the trees cut, felled, destroyed, removed, or diverted, plus reasonable attorney fees and costs.”

Louisiana Revised Statute 3:4278.1 provides, in pertinent part:

A. (1) It shall be unlawful for any person to cut, fell, destroy, remove, or to divert for sale or use, any trees, or to authorize or direct his agent |,4or employee to cut, fell, destroy, remove, or to divert for sale or use, any trees, growing or lying on the land of another, without the consent of, or in accordance with the direction of, the owner or legal possessor, or in accordance with specific terms of a legal contract or agreement.
B. Whoever willfully and intentionally violates the provisions of Subsection A of this Section shall be liable to the owner, co-owner, co-heir, or legal possessor of the trees for civil damages in the amount of three times the fair market value of the trees cut, felled, destroyed, removed, or diverted, plus reasonable attorney fees and costs.
E. The provisions of this Section shall not apply to the clearing and maintenance of rights of way or to utility service situations where a utility is acting in good faith to minimize the damage or harm occasioned by an act of God.

The legislative intent of La.R.S. 3:4278.1 was discussed in Williams v. Industrial Helicopters, Inc., 519 So.2d 1180, 1185 (La.App. 3 Cir.1988) (citations omitted), and the court stated the statute, “was [intended] to impose severe sanctions upon those who flagrantly disregarded the property rights of owners ... and is principally aimed at tree pirates who cross clearly marked ownership lines and cut timber or remove timber for their own profit.” Williams further provides, “Subsections B and C are punitive damages; therefore, they must be strictly construed.” Id. (citing Jordan v. Stevens Forestry Services, Inc., 430 So.2d 806 (La.App. 3 Cir.1983)).

Applying strict rules of construction, the trial court in Williams interpreted subsection (D) of La.R.S. 56:1478.1 (now subsection (E) of La.R.S. 3:4278.1) by listing the exceptions which prohibit a trial court from awarding treble damages, attorney fees, and costs. The court in Williams concluded the following three classes of persons may not be assessed with treble damages:

|1R1. Rights-of-way owners clearing and maintaining them. (This would include, beside utilities, all other owners of rights-of-way, both public and private, e.g., pipelines, gravity drainage rights-of-way, highways, streets, telephone lines, etc.)
2. A utility acting in good faith to minimize the damage or harm occasioned by an act of God.
3. Registered land surveyors when they are surveying.

(Emphasis added.)

As in Williams, the drainage channel work done by St. Martin Parish on the Berards’ property would qualify as a “gravity drainage right-of-way,” precluding the trial court from awarding treble damages and attorney fees as against St. Martin Parish pursuant to La.R.S. 3:4278.1(E).

Regardless of whether St. Martin Parish had a one-hundred-foot servitude as outlined in La.R.S. 38:113, it is uncontradicted that St. Martin Parish had a conventional written servitude signed by Mr. Berards’ ancestor-in-title. It was also uncontested that St. Martin Parish had a' de facto maintenance servitude to maintain the drainage channel as part of its drainage improvement program for many years. The exception to treble damages for a public body acting pursuant to lawful drainage servitude set forth in La.R.S. 3:4278.1(E) clearly applies, no matter how we classify the servitude.

The trial court committed legal error in applying treble damages and attorney fees under the “tree piracy” statute against a public body acting pursuant to a lawful drainage servitude.

Damages

St. Martin Parish’s appeal and assignments of error seek only reversal of the award of treble damages, attorney fees, and costs. St. Martin Parish urges through |16its attorney in their brief, “Because the drainage improvement project was done pursuant to several Parish servi-tudes, the plaintiffs are only entitled to actual damages for the removed trees.”

As determined by the trial court in Whipp, “[djespite the existence of a legal servitude under LSA-R.S. 38:113, defendants are not authorized to damage private property without just compensation.” Whipp, 476 So.2d at 1047 (citing Matherne, 405 So.2d at 315).

In Whipp, “the contractor cut down trees ... [and] removed fencing between the Whipp property and Boone-Doucet properties.” Id. at 1044. The Whipp court found that La.R.S.38:113 applied to the Whipp property and thus, provided protection to the drainage board for trespass and precluded the award of attorney fees. However, the trial court still awarded damages to the Whipps, and stated:

As discussed earlier, we find that defendants had obtained a legal servitude over the Whipp Canal. Defendants are liable for damaging the property in connection with the work performed on the Whipp Canal, not for the taking of the Whipps’ property. The damage to the property did not amount to a taking of property or an appropriation by the state. Therefore, the trial judge erred in awarding attorney fees to the Whipps.

Id. at 1047.

Here, the trial court determined, based on the testimony of the Berards’ expert arborist, James Foret, whose testimony was uncontradicted, that the work on the drainage channel resulted in the removal of seven pecan trees valued at $1,970.00 each, for a total of $13,790.00, and three oak trees valued at $8,000.00 each, for a total of $24,000.00. Thus, the total award of damages to the Berards for the loss of their trees was $37,790.00.

[17In making the award of $37,790.00 to the Berards, the trial court determined that the removed trees were “outside of the right-of-way” and that “they were not obstructing the drainage channel.” Again, this finding is legally and factually incorrect as it was clearly established at trial that St. Martin Parish had a servitude to go on the Berards’ property and correctly use its discretion to clear the drainage channel of trees, roots, and debris. As stated in Whipp:

A determination by the Drainage Board and the Office of Public Works of the necessity of any extension to a drainage channel is given great deference.
No court can substitute its judgment as to the necessity of such a project for the combined judgment of the Drainage Board and the Office of Public Works unless there is evidence of some palpable abuse of discretion.

Id. at 1045.

However, while the authority granted to St. Martin Parish pursuant to La.R.S. 38:118, or its conventional or de facto maintenance servitude, allows the necessary work to be conducted in order to maintain the channel drainage, it does not restrict the trial court from awarding damages to the Berards for the loss of the trees. Id. at 1047. Therefore, based on the record and the lack of any evidence in opposition to the value of the trees lost in connection with the work performed by St. Martin Parish on the Berards’ property, we affirm the trial court’s award of $37,790.00. There was no appeal by St. Martin Parish of this award, and the issue was further conceded by counsel for Defendants/Appellants.

This award is greatly in excess of the total assessed value of all of the residential and pasture land at issue. Combined with the cost of the clean-up, 1¶ leveling, fencing and re-fencing done by St. Martin Parish, this court concludes that St. Martin Parish was in good faith and attempted to treat the Berards fairly.

DISPOSITION

The trial court committed reversible error in failing to find that La.R.S. 38:113 was applicable to the channel drainage work done on the Berards’ property. The trial court did find that St. Martin Parish had a valid conventional and maintenance servitude, but erred in awarding treble damages and attorney fees to the Berards pursuant to the timber piracy statute, La. R.S. 3:4278.1. Therefore, the award of treble damages in the amount of $113,370.00 and attorney fees in the amount of $35,000.00 is reversed. The original award for damage to the Berards’ property for the removal of seven pecan trees and three live oaks in the amount of $37,790.00 and the court costs awarded in the amount of $1,300.00 were not appealed and are affirmed. Costs for this appeal are assessed to Plaintiffs/Appellees.

REVERSED IN PART; AFFIRMED IN PART.

THIBODEAUX, Chief Judge, concurs in the result.

PICKETT, J., concurs in the result and assigns written reasons.

PICKETT, J.,

concurs in the result and assigns written reasons.

|J concur in the result reached by the majority. I respectfully disagree that La. R.S. 38:113, as interpreted by Dugas, is the governing law in this case. There was no levee or drainage district created by St. Martin Parish, so I do not believe the (quite extensive) one hundred foot servitude for drainage projects exists here. I would find that La.R.S. 33:1236(13) applies in this case.

      . St. Martin Parish did not conduct a survey of the property prior to the work on the drainage channel. However, the Berards' expert surveyor, Michael Breaux, testified that the boundary line between the two properties was, in fact, in the center of the drainage channel.

      . Defendants' Exhibit C (Parcel Reports in globo, Pages 283, 285 and 287).

      . Defendants' Exhibit C (in globo-St. Martin Parish Drainage Project, Page 284, which re-fleets a servitude based on "Virtue of Maintenance Channel").

      . The trial court did not state any reasons or factual findings for its conclusion that the trees for which it awarded damages were not, in fact, impeding drainage.

      . It is significant that aerial photos taken by Google Earth and introduced into evidence show that all the trees in question were on or very near the drainage channel line on the Berards’ property. Exhibit A5 (in globo).

      .Plaintiffs' claims for mental anguish and other ancillary damages were denied based on the holding of Sagnibene v. Roy O. Martin Lumber Co., 10-1331 (La.App. 3 Cir. 6/1/11), 68 So.3d 32, which prohibited the recovery of both statutory and tort damages. No answer to appeal was filed by Plaintiffs/Appellees, and, thus, this issue is not before the court.

      . The Berards contend in their Reply Brief that the application of La.R.S. 38:113 was never raised in the trial court and is now raised for the first time on appeal. However, St. Martin, in its "Answer and Affirmative Defenses To Petition For Damages,” specifically states in Paragraph 13, “The St. Martin Parish Government has a drainage servitude on the subject property, and as a result, its actions did not constitute trespass and it is not responsible for trespass damages.” Thus, though the statute itself was not specifically cited by Defendants/Appellants at trial, the issue was raised at the trial court level and is properly before this court. Fact pleading is allowed by Louisiana courts in La.Code Civ.P. art. 854, and all legal issues raised by the fact pleadings at trial can be properly considered on appeal.

      . La.R.S 38:113 was amended and reenacted in 1991 to remove the requirement that the channel be "recommended and approved by the Department of Public Works.”

      .Testimony at trial from the Berards' expert surveyor, Michael Breaux, also confirmed that the correct boundary line between the two properties was in the middle of the drainage channel.

      . Louisiana Revised Statute 3:4278.1 was previously designated as La.R.S. 56:1478.1 but was changed by Acts 1987, No. 144.

      . Subsection (E) of 3:4278.1 was previously subsection (D) of 56:1478.1.

      . Foret’s determination of the size and the number of trees removed from the Berards’ property by St. Martin Parish was based on information he received from the Berards.