IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
AUGUST 22, 2007
______________________________TEXAS PARKS and WILDLIFE DEPARTMENT,
Appellant
v.
THE SAWYER TRUST,
Appellee
_________________________________FROM THE 100TH DISTRICT COURT OF DONLEY COUNTY;
NO. 6358; HON. DAVID M. MCCOY, PRESIDING _______________________________
Memorandum Opinion _______________________________
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
This is an interlocutory appeal from the trial court's denial of a plea to the jurisdiction filed by the Texas Parks and Wildlife Department. We affirm.
The Sawyer Trust (the Trust) sued the Department. Among other things, the Trust sought relief against the Department for unlawfully taking its property in violation of both the United States and Texas Constitutions, for declaratory judgment regarding the purported navigability of a stream lying on Trust realty, and for temporary and permanent injunctions prohibiting the Department from "interfering with its property rights." The State filed a plea to the jurisdiction of the trial court contending that sovereign immunity barred prosecution of the suit. The trial court disagreed and denied the motion.
The property in question lies within Donley County and the Salt Fork of the Red River runs through a portion of it. Furthermore, the Trust wishes to sell sand and gravel from the river's bed. Yet, the State of Texas, through the Department, has asserted that the river is navigable and, thus, owned by the State. At the heart of the dispute before us is the question of whether the river is indeed navigable. If it is, then its bed is property of the State. (1) If not, then it belongs to the Trust. According to the Department, this issue cannot be resolved by the courts of this state without prior approval of the Texas Legislature. Without such approval, according to the Department, the only way a court can address it is if the Trust attempted to take gravel from the river bed and the State was to decide to criminally prosecute the Trust for theft, trespass, or whatever other crime it thought appropriate.
Generally, a party can maintain a suit to determine its rights without legislative permission as long as damages are not sought. Federal Sign v. Texas Southern University, 951 S.W.2d 401, 404 (Tex. 1997). Here, the Trust argues that the State is acting without legal or statutory authority in claiming title to the sand and gravel because the waterway is not navigable. So too does it seek declaratory relief to adjudicate whether the river is navigable and, if it is not, injunctive relief to prevent further interference with its use of same. A declaratory judgment action seeking the determination of a disputed fact issue, to wit: whether the Salt Fork of the Red River is a navigable waterway as it passes through the Trust's property, is not a suit against the State that implicates sovereign immunity. Although it may have the collateral consequence of resolving a factual dispute that impacts a claim being made by the State, it is not an action that is in essence one for the recovery of money from the State or for determination of title; therefore, legislative permission to prosecute it is unnecessary. See Cobb v. Harrington, 144 Tex. 360, 190 S.W.2d 709, 712-13 (1945) (in which the court was asked to determine by declaratory judgment whether the parties were motor carriers as defined by the tax statute which the court found not to be a suit against the state). We voice no opinion on any other cause of action within the live pleading, however.
Accordingly, we cannot say that the trial court erred in denying the Department's plea. Additionally, the order denying that plea is affirmed.
Per Curiam
1. Lands underlying navigable waters are owned by the state. State v. Bradford, 121 Tex. 515, 50
S.W.2d 1065, 1069 (1932). A navigable stream is one which retains an average width of 30 feet from the
mouth up regardless of whether it is actually navigable. Tex. Nat. Res. Code Ann. §21.001(3) (Vernon 2001).
against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the fact finder's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Johnson v. State, 23 S.W.3d 1, 11 (Tex.Cr.App. 2000) (adopting complete civil factual sufficiency formulation); see also King v. State, 29 S.W.3d 556, 563 (Tex.Cr.App. 2000). In conducting this analysis, we may disagree with the jury's determination, even if probative evidence supports the verdict, but must avoid substituting our judgment for that of the fact finder. See Santellan v. State, 939 S.W.2d 155, 164 (Tex.Cr.App. 1997).
Before determining whether the evidence is legally sufficient to sustain the conviction, we must review the essential elements the State was required to prove. Appellant was convicted of delivery of one gram but less than four grams of cocaine. Tex. Health & Safety Code Ann. § 481.112(c) (Vernon Pamph. Supp. 2002). Deliver means to transfer, knowingly or intentionally, to another a controlled substance. § 481.002(8). The State presented four witnesses whose testimonies established appellant's guilt. Officer Reyna testified that while wearing a transmitter, he purchased crack cocaine from appellant for $150. Floydada's Chief of Police, Darrell Gooch, testified that he was nearby monitoring the transaction with a handheld radio and recognized appellant's voice. He explained that he and appellant had grown up together and played football in high school. The defense attempted to show that Gooch had not been in contact with appellant for approximately 16 years. However, Gooch testified that he was very familiar with appellant's voice and immediately recognized it. Officer Jonny Hutson, also a member of the task force, testified that his assignment was to record the transaction. He authenticated the tape recording and explained that interference caused portions of it to be garbled; but the garbled portions occurred prior to the conversation between appellant and Officer Reyna. By its final witness, a Department of Public Safety expert, the State established that appellant delivered 1.26 grams of cocaine, including dilutants and adulterants, to Reyna. The defense did not present any evidence. Viewing the evidence under Jackson, we conclude it is legally sufficient to support the verdict
Concluding that the evidence is legally sufficient to support the verdict, we must now determine, after a neutral review of all the evidence, whether it is factually sufficient to support the verdict. Johnson, 23 S.W.3d at 11. It is the exclusive province of the fact finder to determine the credibility of the witnesses and the weight to be given their testimony. Johnson v. State, 571 S.W.2d 170, 173 (Tex.Cr.App. 1978); Armstrong v. State, 958 S.W.2d 278, 284 (Tex.App.--Amarillo 1997, pet. ref'd).
As previously noted, the State established that appellant delivered cocaine to Officer Reyna by placing a plastic bag on the passenger's side of appellant's car in exchange for $150. Reyna identified appellant at trial as the person from whom he purchased the cocaine. Although he had never met appellant, he was close enough in proximity to him during the transaction to identify him at trial. Further, Chief Gooch knew appellant well enough to identify his voice immediately. Although he had not been in close contact with appellant for many years, he did have casual encounters with him when he visited Floydada. After reviewing all the record evidence under Johnson, 23 S.W.3d at 11, and without substituting our own judgment, we conclude that the evidence is factually sufficient to support the verdict.
We have also made an independent examination of the entire record to determine whether there are any arguable grounds which might support the appeal. See Penson v. Ohio, 488 U.S. 75, 109 S. Ct. 346, 102 L. Ed. 2d 300 (1988); Stafford v. State, 813 S.W.2d 503, 511 (Tex.Cr.App. 1991). We have found no such grounds and agree with counsel that the appeal is without merit and is, therefore, frivolous. Currie v. State, 516 S.W.2d 684 (Tex.Cr.App. 1974); Lacy v. State, 477 S.W.2d 577, 578 (Tex.Cr.App. 1972).
Accordingly, counsel's motion to withdraw is hereby granted and the judgment of the trial court is affirmed.
Don H. Reavis
Justice
Do not publish.
1. Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967).