
NO. 07-06-0487-CV

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).
