source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    William RICHARDSON, Appellant, v. The STATE of Texas, State.
    No. 2-09-195-CR.
    Court of Appeals of Texas, Fort Worth.
    Aug. 12, 2010.

      W. Ty Wilson and Valerie Ly, Denton, TX, for Appellant.
    Paul Johnson, Crim. Dist. Atty., Charles E. Orbison, Asst. Crim. Dist. Atty. and Chief of the Appellate Section, John Rentz, and David Jahn, Asst. Crim. Dist. Attys., for State.
    PANEL: McCOY and WALKER, JJ.; and DIXON J. HOLMAN (Senior Justice, Retired, Sitting by Assignment).
   OPINION

PER CURIAM.

I. Introduction

In four issues, Appellant William Richardson appeals his conviction for fraudulent use or possession of identifying information. We affirm

II. Factual and Procedural Background

In the early morning hours of December 4, 2007, Flower Mound Police Officer Nick Hill pulled over a vehicle for a traffic violation. Officer Hill approached and made contact with the driver, identified as Richardson by his driver’s license and insurance. After making contact with the passenger, Gary Wayne Webster, Officer Hill instructed Richardson to stand at the rear of the vehicle while he ran a standard computer check. The computer check returned an outstanding warrant for Richardson. Officer Hill, requested a back-up unit and asked dispatch for confirmation on Richardson’s warrant. The back-up unit, driven by Officer Ben Lippens, arrived almost immediately.

While Officer Lippens kept an eye on Webster, Officer Hill questioned Richardson. He asked whether Richardson owned the vehicle he was driving; Richardson responded that the car belonged to his mother. Officer Hill also asked, “Do you have any problem if I take a look in your car?” Richardson responded that he did not. Shortly thereafter, dispatch confirmed the warrant, and Officer Hill arrested Richardson and seated him in the backseat of his patrol unit.

The Officers then removed Webster from the front passenger seat and searched the vehicle, discovering a Wal-Mart bag in the driver’s seat containing a clear plastic wallet insert with a social security card, a Unicard, a Visa card, and a Texas Department of Human Services card, all bearing the name Burgie Davis. The bag also contained Wal-Mart gift cards still attached to their original cardboard backing and a receipt from the Fair-field Inn in Richardson’s name. In the center console, the officers discovered another bag containing more gift cards.

The officers found a laptop computer and a clear plastic box on the front passenger side floorboard. The box contained transparency graphing paper; razor blades; glues and adhesives; gift cards; and drivers’ licenses, identifications, and keychain credit cards, all belonging to individuals other than Richardson or Webster, including some that belonged to Burgie Davis. On the driver’s side backseat floorboard, the officers discovered a red plastic folder containing, among other items, a list of The Sun Shop’s customers and their financial information (The Sun Shop list); pictures of Webster; a document from a website discussing magnetic strip readers; and hotel receipts with credit card information on individuals other than Richardson or Webster. On the middle rear floorboard, the officers found a small photo printer that was attached to a laptop computer (belonging to Webster) and to a power inverter plugged into the cigarette lighter. The officers also discovered a Nikon camera, a cell phone, CDs, and DVDs in the backseat. In the trunk, the officers found an aluminum box containing razor blades, white-out, hard drives for laptops, glue, a screwdriver, batteries, scissors, and printer cartridges.

After searching the vehicle, Officer Hill transported Richardson to the jail. A wallet found in Richardson’s back pocket contained a business card for The Sun Shop, clear graphing transparency paper, and receipts showing purchases made using a Visa card discovered in the clear plastic box found on the front floorboard. The State charged Richardson with fraudulent possession of identifying information for over fifty individuals (specifically those on The Sun Shop list) and included an enhancement paragraph for a prior felony conviction — aggravated assault on a peace officer.

At trial, in addition to both Officer Hill and Officer Lippens testifying to the facts stated above, Kelly Wood, an ex-employee of The Sun Shop, testified that she had stolen billing lists from The Sun Shop, taken them to Webster’s house, assisted Webster and Richardson in making fraudulent cards from the billing lists, and that she, Richardson, and Webster had used the fraudulent cards to shop. Wood also testified that she went to Webster’s house to “get high” on methamphetamine. She further stated that Richardson and Webster were roommates and that Richardson was Webster’s driver.

Elizabeth Herring, The Sun Shop’s manager, confirmed that the list found in the vehicle was, in fact, one of The Sun Shop’s billing lists. Herring testified that The Sun Shop’s employees were not allowed to give out its customers credit card information to third parties — she specifically testified that neither Wood, Richardson, nor Webster had permission to have The Sun Shop’s billing list. She further testified that she recognized fifty-seven specific customers on the list and that none of them had given their permission for The Sun Shop to share their information.

The owner of The Sun Shop, Dennis Sheldon, also testified that the business was not allowed to, and did not, give anyone permission to have The Sun Shop’s billing lists. Sheldon confirmed Wood’s dates of employment and also confirmed that Wood had stolen billing lists from The Sun Shop.

Jesse Basham, an FBI computer forensic examiner, testified that the laptop found in the vehicle contained photographs, signature strips, driver’s license templates, university ID cards, credit card numbers, and social security numbers for individuals other than Richardson or Webster.

At the close of evidence, the jury found Richardson guilty of fraudulent use or possession of identifying information for over fifty individuals (specifically those individuals on The Sun Shop list). During the punishment phase, Richardson pleaded true to the enhancement paragraph in the indictment — aggravated assault on a peace officer — and he also stipulated that he had a previous felony conviction for driving while intoxicated (DWI), along with two other DWI convictions. The jury assessed punishment at life, and the trial court sentenced Richardson accordingly. This appeal followed.

III. Sufficiency of the Evidence

In his second issue, Richardson argues that the evidence is legally and factually insufficient to support his conviction.

A. Fraudulent Use or Possession of Identifying Information

Under § 32.51 of the penal code, a person commits fraudulent use or possession of identifying information, if the person, with the intent to harm or defraud another, obtains, possesses, transfers, or uses an item of identifying information of another person without the other person’s consent. Tex. PemCode Ann. § 32.51(b) (Vernon Supp.2008). Because Richardson only challenges the sufficiency of the evidence to show that “he was in ‘possession’ of [The Sun Shop list],” we limit our discussion to address only the possession element of the offense.

This appears to be a ease of first impression. We, like the parties, were unable to find any prior case law addressing a sufficiency challenge to the possession element of fraudulent use or possession of identifying information. However, we agree with the parties that the proper law to apply in this case is the body of law pertaining to affirmative links developed in controlled substance cases. See Evans v. State, 202 S.W.3d 158, 161-62 (Tex.Crim.App.2006) (discussing the affirmative links rule and pointing out that the purpose of the rule is to protect the innocent bystander, relative, roommate, or friend from conviction merely by their proximity to another’s contraband). Therefore, we apply the linking rule to determine whether the evidence was legally and factually sufficient to show that Richardson was in possession of The Sun Shop list.

B. Linked to Contraband

To prove possession, the State must show the accused (1) exercised control, management, or care over the contraband and (2) knew the matter possessed was contraband. Evans, 202 S.W.3d at 161; Cuong Quoc Ly v. State, 273 S.W.3d 778, 781 (Tex.App.-Houston [14th Dist.] 2008, pet. refd). Possession may be proved through either direct or circumstantial evidence. Poindexter v. State, 153 S.W.3d 402, 405-06 (Tex.Crim.App.2005); see also Rice v. State, 195 S.W.3d 876, 881 (Tex.App.-Dallas 2006, pet. refd) (stating jury could infer knowing or intentional possession of contraband).

When, as here, the accused is not in exclusive possession or control of the place where contraband is discovered, the State must show additional facts and circumstances linking the accused to the contraband to show the accused’s knowledge of or control over the contraband. Poindexter, 153 S.W.3d at 406; Grisso v. State, 264 S.W.3d 351, 355 (Tex.App.-Waco 2008, no pet.). We consider the totality of the circumstances when determining whether the accused is linked to the recovered contraband. See Hyett v. State, 58 S.W.3d 826, 830 (Tex.App.-Houston [14th Dist.] 2001, pet. ref'd). The accused’s connection with the contraband must be “more than just fortuitous.” Poindexter, 153 S.W.3d at 405-06. The accused’s presence at the scene where contraband is found is insufficient, by itself, to establish possession. Evans, 202 S.W.3d at 162. However, presence or proximity combined with other direct or circumstantial evidence (e.g., “links”) may be sufficient to establish the elements of possession beyond a reasonable doubt. Id.

' Reviewing courts have developed several factors showing a possible link between the accused and contraband, including: (1) the accused’s presence when the search was conducted, (2) whether the contraband was in plain view, (3) the accused’s proximity to and the accessibility of the contraband, (4) whether the accused possessed other contraband when arrested, (5) whether the accused made incriminating statements when arrested, (6) whether the accused owned or had the right to possess the place where the contraband was found, (7) whether the contraband was found in an enclosed place, and (8) whether the conduct of the accused indicated a consciousness of guilt. See Cuong Quoc Ly, 273 S.W.3d at 781-82; Grisso, 264 S.W.3d at 355. The number of linking factors present is not as important as the “logical force” they create to prove the accused knowingly or intentionally possessed the controlled substance. Evans, 202 S.W.3d at 162; see also Roberson v. State, 80 S.W.3d 730, 735 (Tex.App.-Houston [1st Dist.] 2002, pet. ref'd) (recognizing proof of links between the accused and contraband “generates a reasonable inference that the accused knew of the contraband’s existence and exercised control over it”).

C. Legal Sufficiency

1. Standard of Review

In reviewing the legal sufficiency of the evidence to support a conviction, we view all of the evidence in the light most favorable to the prosecution in order to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Clayton v. State, 235 S.W.3d 772, 778 (Tex.Crim.App.2007).

2. Analysis

Here, although Richardson was not alone in the vehicle at the time of the stop, he was the driver of the vehicle and the vehicle belonged to his mother. Thus, Richardson was in possession and control of the vehicle.

In addition to Richardson’s control over the vehicle, there are several other factors linking him to The Sun Shop list found in the vehicle, including: (1) Wood’s testimony that Richardson knew of the billing lists from The Sun Shop and that Richardson had assisted in making fraudulent cards from the billing lists; (2) Wood’s testimony that Richardson had used the fraudulent cards to shop; (3) The Sun Shop list’s proximity to Richardson — that is, the backseat floorboard on the driver’s side; (4) Richardson’s wallet, which contained a business card from The Sun Shop in addition to clear graphing transparency paper and receipts linking him to the clear plastic box found in the front floorboard of the vehicle; (5) the clear plastic box, which contained transparency graphing paper; razor blades; glues and adhesives; gift cards; and drivers’ licenses, identifications, and keychain credit cards, all belonging to individuals other than Richardson or Webster; (6) credit cards inside the center console; and (7) the laptop computer and photo printer plugged into the cigarette lighter, which contained templates for creating fraudulent identifications.

Based on the direct and circumstantial evidence presented here, we hold that a reasonable jury could conclude beyond a reasonable doubt that Richardson knowingly exercised joint possession and control over The Sun Shop list along with Webster. Thus, the evidence is legally sufficient to support the verdict. Accordingly, we overrule this portion of Richardson’s second issue.

D. Factual Sufficiency

1. Standard of Review

When reviewing the factual sufficiency of the evidence to support a conviction, we view all the evidence in a neutral light, favoring neither party. Steadman v. State, 280 S.W.3d 242, 246 (Tex.Crim.App.2009); Watson v. State, 204 S.W.3d 404, 414 (Tex.Crim.App.2006). We then ask whether the evidence supporting the conviction, although legally sufficient, is nevertheless so weak that the factfinder’s determination is clearly wrong and manifestly unjust or whether conflicting evidence so greatly outweighs the evidence supporting the conviction that the factfin-der’s determination is manifestly unjust. Steadman, 280 S.W.3d at 246; Watson, 204 S.W.3d at 414-15, 417. To reverse under the second ground, we must determine, with some objective basis in the record, that the great weight and preponderance of all the evidence, although legally sufficient, contradicts verdict. Watson, 204 S.W.3d at 417.

Unless we conclude that it is necessary to correct manifest injustice, we must give due deference to the factfinder’s determinations, “particularly those determinations concerning the weight and credibility of the evidence.” Johnson v. State, 23 S.W.3d 1, 9 (Tex.Crim.App.2000); see Steadman, 280 S.W.3d at 246. Evidence is always factually sufficient when it preponderates in favor of the conviction. Stead-man, 280 S.W.3d at 247; see Watson, 204 S.W.3d at 417.

2. Analysis

Richardson combined his legal and factual sufficiency challenges together in a single issue. We construe Richardson’s argument to challenge the factual sufficiency of the evidence on two grounds: (1) the folder containing The Sun Shop list clearly belonged to Webster and (2) he would not have consented to the search of the vehicle had he known about the list.

Viewing the evidence neutrally, we recognize that the folder containing The Sun Shop list also contained items linking it to Webster and that Richardson consented to the search of his vehicle. However, Richardson was the driver of a vehicle that was full of evidence relating to an identity theft scam — that is, identifying information for individuals other than Richardson or Webster, blank credit cards, transparency paper, and a laptop computer and printer capable of creating fraudulent identifications. There was also evidence in Richardson’s wallet connecting him to evidence within the vehicle that related to the identity theft scam. See Wootton v. State, 132 S.W.3d 80, 89-90 (Tex.App.-Houston [14th Dist.] 2004, pet. ref'd) (holding factually sufficient evidence existed that appellant knew tanks contained anhydrous ammonia when appellant’s truck, where the tanks were found, also contained many other ingredients used to manufacture methamphetamine). Moreover, there was testimony that Richardson knew of The Sun Shop list and that he made fraudulent cards from the list, which he later used.

In light of the evidence supporting the jury’s verdict, we conclude that the evidence is not so obviously weak that the verdict is clearly wrong and manifestly unjust or that the proof of guilt is against the great weight and preponderance of the evidence. See Steadman, 280 S.W.3d at 246; Watson, 204 S.W.3d at 414-15, 417. Therefore, we hold that the evidence is factually sufficient to support Richardson’s conviction. Accordingly, we overrule the remaining portion of Richardson’s second issue.

IV. Corroboration Evidence

In his first issue, Richardson asserts that, apart from Wood’s accomplice testimony, there is insufficient evidence linking him to the crime. We disagree.

A. Accomplice-Witness Rule

“Article 38.14 [of the Texas Code of Criminal Procedure] provides that a defendant cannot be convicted of an offense upon the testimony of an accomplice without other corroborating evidence ‘tending to connect’ the defendant to the offense.” Simmons v. State, 282 S.W.3d 504, 505 (Tex.Crim.App.2009). In determining the sufficiency of non-accomplice evidence to corroborate accomplice testimony, the proper appellate standard is “whether a rational fact-finder could conclude that the non-accomplice evidence ‘tends to connect’ appellant to the offense.” Id. at 509; see Brown v. State, 270 S.W.3d 564, 567 (Tex.Crim.App.2008) (explaining that the accomplice-witness rule “requires that, before a conviction may rest upon the testimony of an accomplice witness, the accomplice’s testimony must be corroborated by independent evidence tending to connect the accused with the crime”). Non-accomplice evidence must not be taken as isolated facts, but rather considered together as a whole, and if the force of the evidence is such, as a whole, that it tends to connect the defendant to the offense, then it is sufficient. Simmons, 282 S.W.3d at 511. “The corroborative evidence, however, need not be sufficient in itself to establish guilt, nor must it directly link the accused to the commission of the offense.” Brown, 270 S.W.3d at 567. ‘We view the evidence in the light most favorable to the jury’s verdict.” Id.

B. Non-accomplice Evidence

The non-accomplice evidence in this case consisted of (1) Richardson driving a vehicle which contained among other things:

(a) a Wal-Mart bag containing a clear plastic wallet insert with a social security card, a Unicard, a Visa card, and a Texas Department of Human Services card, all bearing the name Burgie Davis; Wal-Mart gift cards still attached to their original cardboard backing; and a receipt from the Fairfield Inn in Richardson’s name;
(b) a clear plastic box in the floorboard on the front passenger side containing transparency graphing paper; razor blades; glues and adhesives; gift cards; drivers’ licenses, identifications, and keychain credit cards, all belonging to individuals other than Richardson or Webster, including some that belonged to Burgie Davis;
(c) a bag in the center console containing more gift cards;
(d) a red plastic folder in the backseat floorboard on the driver’s side containing The Sun Shop list; and
(e) a small photo printer in the middle rear floorboard of the vehicle attached to both a laptop computer and a power inverter plugged into the cigarette lighter,

(2) a wallet in Richardson’s back pocket containing a business card for The Sun Shop, clear graphing transparency paper, and receipts showing purchases made using a Visa card discovered in the clear plastic box found in the front floorboard of the vehicle, (3) expert testimony that the laptop contained photographs, signature strips, driver’s license templates, university ID cards, credit card numbers, and social security numbers of individuals other than Richardson or Webster, and (4) testimony that The Sun Shop list was in fact The Sun Shop’s billing list, which neither Richardson nor Webster had permission to possess.

C. Analysis

In sum, Richardson was driving a vehicle that had fraudulent identifying information all throughout it — some of which was in plain view. There were receipts bearing Richardson’s name in a bag containing identifying information belonging to someone other than Richardson or Webster. A laptop computer with the capability of creating fraudulent identifications was attached to a power inverter plugged into the vehicle’s cigarette lighter. And, Richardson’s wallet contained a business card from The Sun Shop in addition to receipts that connected him to the plastic box found in the vehicle’s front passenger floorboard, which contained fraudulent identifying information. Thus, considering the non-accomplice evidence together as a whole while viewing the evidence in the light most favorable to the jury’s verdict, we conclude that a rational factfinder could have concluded that the non-accomplice evidence tended to connect Richardson to the offense — that is, fraudulent possession of The Sun Shop list. See Simmons, 282 S.W.3d at 508, 511; Brown, 270 S.W.3d at 567. Accordingly, we overrule Richardson’s first issue.

V. Extraneous Offense Evidence

In his third issue, Richardson contends that the trial court abused its discretion by admitting the following testimony over his Texas Rules of Evidence 404(b) objection regarding his alleged participation in “dumpster diving.”

Direct Examination:

[State]: Did [Webster] or [Richardson] ever obtain numbers from outside The Sun Shop?
[Richardson objected under Rule 404(b) and Rule 403. The trial court overruled Richardson’s objections but instructed the jury to only consider the line of questioning as it pertained to Richardson’s knowledge or intent.]
[State]: Ms. Wood, I believe the question that I’d asked was: Were credit card numbers ever obtained outside of The Sun Shop records?
[Wood]: Yes.
[State]: And how were those credit card numbers obtained?
[Wood]: Dumpster diving. I mean, like out of gas stations, they throw them roll away, you know.
[Wood]: The roll with the credit card number on it. Some gas stations print out the last four; some print out the whole number.
[State]: Okay. After you-all — were you ever with them when that was going on?
[Wood]: At the gas stations?
[State]: Yes.
[Wood]: No.
[State]: After those numbers were obtained, what would happen to them?
[Wood]: We would take them back to [Webster’s] house, and then [Richardson] would call and check the numbers and either write—
[State]: Let me stop you there. Call who and check the numbers?
[Wood]: It’s a 1-800 number, 888 number. I don’t know what it is. But you just call and you put in the number, and then you put in a dollar amount. And it will say either it’s been approved or it hasn’t, you know....
[State]: Okay. Did you ever call and check those numbers?
[Wood]: Yes.
[State]: And you saw personally Mr. Richardson doing that also?
[Wood]: Yes.

Cross-Examination:

[Defense]: How did you — where were these dumpsters that you went through? [Wood]: I didn’t say that I went through them. But, I mean, I don’t know. They’re outside of gas stations.
[Defense]: Well, who went through them?
[Wood]: He [the State] asked me where else they got the cards — or the numbers, and I said out of dumpsters. I don’t know.
[Defense]: Well, who got them out of dumpsters?
[Wood]: I don’t know. I mean, all I know is that they had them at his house, at Maniac’s [Webster’s] house, you know, and that those were numbers being used also. I don’t know who got them out of the dumpsters.
[Defense]: So you never knew if [Richardson] was going through garbage bins and dumpsters retrieving identifying information.
[Wood]: That’s where they got them from. I don’t know who actually went and took them out. I mean, I wasn’t there. I can’t say that.
[Defense]: All right. You said that [Richardson] would call credit card and debit card numbers to verify the validity of stolen credit and debit card numbers.
[Wood]: Yes.
[Defense]: Were you there when he did that?
[Wood]: Yes.

A.Standard of Review

A trial court’s decision to admit evidence is reviewed under an abuse of discretion standard. Ellison v. State, 86 S.W.3d 226, 227 (Tex.Crim.App.2002); Mitchell v. State, 931 S.W.2d 950, 953 (Tex.Crim.App.1996). The reviewing court may reverse the trial court’s decision only if the ruling is outside the zone of reasonable disagreement. Ford v. State, 919 S.W.2d 107, 115 (Tex.Crim.App.1996); Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App.1991) (op. on reh’g).

B.Applicable Law

Rule 404(b) embodies the established principle that a defendant is not to be tried for collateral crimes or for being a criminal generally. Tex.R. Evid. 404(b); Nobles v. State, 843 S.W.2d 503, 514 (Tex.Crim.App.1992); Booker v. State, 103 S.W.3d 521, 530 (Tex.App.-Fort Worth 2003, pet. ref'd). Extraneous offenses are not admissible at the guilt-innocence phase of trial to prove that a defendant acted in conformity with his character by committing the charged offense. Tex.R. Evid. 404(b); Booker, 103 S.W.3d at 529; Martin v. State, 42 S.W.3d 196, 199-200 n. 2 (Tex.App.-Fort Worth 2001, pet. ref'd). Evidence of other crimes or extraneous misconduct, however, may be admissible to prove motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Tex.R. Evid. 404(b); Booker, 103 S.W.3d at 529-30. Such evidence may also be introduced to rebut a defensive theory. Powell v. State, 63 S.W.3d 435, 439-40 (Tex.Crim.App.2001). By raising a defensive theory, the defendant opens the door for the State to offer rebuttal testimony regarding an extraneous offense if the extraneous offense has common characteristics with the offense for which the defendant was on trial. See Bell v. State, 620 S.W.2d 116, 126 (Tex.Crim.App.1980); Jones v. State, 119 S.W.3d 412, 421 (Tex.App.-Fort Worth 2003, no pet.).

C.Analysis

Richardson argues that Wood’s testimony “was being offered to prove that [Richardson] has the propensity to commit identity theft with credit card numbers and for that purpose, the evidence is inadmissible.” In response, the State asserts that Wood’s testimony “was admissible for the nonconformity purpose of rebutting [Richardson’s] defensive theory.”

Richardson’s defensive theory at trial was that (1) he had no knowledge of the identifying information found in his car, (2) the identifying information did not belong to him, and (3) the identifying information was in his car by mistake. During his opening statement, Richardson denied possessing or using identifying information, stating that he “was helping a co-employee — fellow employee move at the time. He made the mistake of giving Gary Webster a ride and moving these items [identifying information] out of a storage shed.” In his closing argument, Richardson argued that Officer Hill “jumped to the conclusion that everybody in th[e] car knew about these items.”

He [Officer Hill] asked Mr. Richardson were those his items I think at least on two occasions, maybe three, and Mr. Richardson denied them — that they were his each time.
And if Mr. Richardson knew about all these items, if he knew these items were located in the driver’s seat, if he knew they were in the gray plastic box, if he knew they were in the console, if he knew the stuff was in the trunk, why in the heck would he consent to the search?

Upon comprehensive review of the record, we hold that the trial court could have reasonably concluded that Wood’s testimony was not offered for character conformity purposes, but instead was offered to rebut Richardson’s defensive theory that the identifying information was in his car by mistake and that he had no knowledge of the identifying information. See Lemmons v. State, 75 S.W.3d 513, 522-23 (Tex.App.-San Antonio 2002, pet. refd) (explaining that an extraneous robbery offense offered by State to show murder defendant was aggressor in the past was relevant to rebut defendant’s self-defense claim). Moreover, the trial court’s limiting instruction shows that the trial court admitted the testimony for noneharacter conformity purposes — that is, to determine Richardson’s knowledge of, and intent to, commit the alleged offense. See Tex.R. Evid. 105(a) (providing for a limiting instruction when evidence is admissible for one purpose but not admissible for another). Therefore, the trial court did not abuse its discretion by admitting Wood’s testimony as rebuttal evidence to Richardson’s defensive theory. Accordingly, we overrule Richardson’s third issue.

VI. Grossly Disproportionate Sentence

In his fourth issue, Richardson complains that the trial court abused its discretion by imposing a grossly disproportionate sentence, which violated his constitutional right to be free from cruel and unusual punishment. In response, the State questions whether Richardson preserved this issue for review and argues, in the alternative, that Richardson’s sentence is not so grossly disproportionate to his crimes as to constitute cruel and unusual punishment.

To preserve error for appellate review, a defendant must make a timely, specific objection and obtain a ruling from the trial court. Tex.R.App. P. 33.1. This requirement applies even to errors of constitutional dimension, including those asserting that a sentence is cruel and unusual. Solis v. State, 945 S.W.2d 300, 301 (Tex.App.-Houston [1st Dist.] 1997, pet. ref'd) (cited by Jackson v. State, 989 S.W.2d 842, 844 n. 3 (Tex.App.-Texarkana 1999, no pet.)); see also Henderson v. State, 962 S.W.2d 544, 558 (Tex.Crim.App.1997). There is nothing in the record indicating that Richardson objected to the sentence. He did, however, timely file a motion for new trial, complaining that his “sentence violates his constitutional protection to be free from disproportionate sentences.”

To preserve an issue by motion for new trial, a defendant must present the motion to the trial court. Tex.R.App. P. 21.6. The defendant cannot merely file the motion for new trial, but must ensure that the trial court has actual notice of the motion. See Carranza v. State, 960 S.W.2d 76, 79 (Tex.Crim.App.1998) (interpreting predecessor rule, which is identical to 21.6). Actual notice may be shown by such things as the judge’s signature or notation on a proposed order or by a hearing date set on the docket. Id.

There is no presentment of the motion shown in this record. There is no entry on the trial court’s docket sheet regarding the motion for new trial, no hearing was set or held, there is no signature by the judge on the motion, and there is no indication in the record that the trial court had actual knowledge that the motion for new trial was filed. Thus, Richardson has failed to preserve his claim regarding the alleged disproportionate sentencing for our review. See Thompson v. State, 243 S.W.3d 774, 776 (Tex.App.-Fort Worth 2007, pet. refd) (holding appellant forfeited his complaint regarding his post-adjudication sentence because he did not object at trial or present his motion for new trial). Accordingly, we overrule his fourth issue.

VII. Conclusion

Having overruled all four of Richardson’s issues, we affirm the trial court’s judgment.

      . While reviewing courts previously referred to the necessary connection between an accused and contraband as “affirmative links,” we now refer to these connections simply as "links.” See Evans, 202 S.W.3d at 161 n. 9.

      . Dumpster diving was defined at trial as searching through trash cans for identifying information.


author: BILL MEIER, Justice. LEE ANN DAUPHINOT, Justice,

text:
    Kellie Parker SUTTON, Appellant, v. The STATE of Texas, State.
    No. 2-09-120-CR.
    Court of Appeals of Texas, Fort Worth.
    Aug. 19, 2010.

      Brian Salvant, Fort Worth, TX, for Appellant.
    Joe Shannon, Jr., Criminal District Attorney; Charles M. Mallín, Chief of the Appellate Section; Andy Porter, Susan Pruett, Tamla S. Ray, Asst. Criminal District Attorneys, for Tarrant County, Fort Worth, TX, for Appellee.
    PANEL: DAUPHINOT, McCOY, and MEIER, JJ.
   OPINION

BILL MEIER, Justice.

I. Introduction

Appellant Kellie Parker Sutton appeals her conviction for unlawful possession of a firearm. In two issues, Sutton argues that the evidence is legally and factually insufficient to support her conviction and that the trial court erred by denying her motion for a directed verdict. We will affirm.

II. Background

At approximately 2:00 a.m. on November 19, 2008, several officers with the Fort Worth Police Department approached a house in search of a fugitive they thought was inside of the house. When one of the officers stopped next to a truck parked in front of the house, Sutton shouted from the house, “I have a gun[;] get your ass away from my truck or I’ll shoot you.” The officers identified themselves and walked up to the front porch. A short time later, Sutton opened the front door, told the officers that the house was hers, and gave them permission to search the house. Sutton sat on a bed located just inside of the front door as the officers conducted then* search.

Officers arrested Sutton after they discovered that she was wanted for several outstanding traffic violations. They searched the immediate area where she had been sitting during the search of the house for the fugitive and located a loaded pistol directly underneath the mattress where she had been seated.

At trial, Officer Ryan Stepp testified that an officer observed Sutton naked and without a weapon before she opened the front door to speak to the police officers. Stephen Minshew testified that he was the only person at the house that was not arrested on November 19, 2009, that the house belonged to an individual named “Dennis,” and that five or six people stayed at the house. Minshew recalled that Sutton slept in the “living room,” but he also testified that Sutton did not sleep in the bed next to the front door.

Sutton moved for a directed verdict on the ground that the State “ha[d] not proven possession,” but the trial court denied the motion. A jury convicted Sutton of unlawful possession of a firearm, and the trial court sentenced her to four years’ confinement.

III. Standards of Review

A. Legal Sufficiency

A challenge to the trial court’s ruling on a motion for a directed verdict is, in actuality, a challenge to the legal sufficiency of the evidence to support the conviction. Williams v. State, 937 S.W.2d 479, 482 (Tex.Crim.App.1996); Madden v. State, 799 S.W.2d 683, 686 (Tex.Crim.App.1990), cert. denied, 499 U.S. 954, 111 S.Ct. 1432, 113 L.Ed.2d 483 (1991). In reviewing the legal sufficiency of the evidence to support a conviction, we view all of the evidence in the light most favorable to the prosecution in order to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Clayton v. State, 235 S.W.3d 772, 778 (Tex.Crim.App.2007). This standard gives full play to the responsibility of the trier of fact to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319, 99 S.Ct. at 2789; Clayton, 235 S.W.3d at 778. The trier of fact is the sole judge of the weight and credibility of the evidence. See Tex.Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Brown v. State, 270 S.W.3d 564, 568 (Tex.Crim.App.2008), cert. denied, — U.S. —, 129 S.Ct. 2075, 173 L.Ed.2d 1139 (2009). Thus, when performing a legal sufficiency review, we may not re-evaluate the weight and credibility of the evidence and substitute our judgment for that of the factfinder. Dewberry v. State, 4 S.W.3d 735, 740 (Tex.Crim.App.1999), cert. denied, 529 U.S. 1131, 120 S.Ct. 2008, 146 L.Ed.2d 958 (2000). Instead, we “determine whether the necessary inferences are reasonable based upon the combined and cumulative force of all the evidence when viewed in the light most favorable to the verdict.” Hooper v. State, 214 S.W.3d 9, 16-17 (Tex.Crim.App.2007). We must presume that the factfinder resolved any conflicting inferences in favor of the prosecution and defer to that resolution. Jackson, 443 U.S. at 326, 99 S.Ct. at 2793; Clayton, 235 S.W.3d at 778.

B. Factual Sufficiency

When reviewing the factual sufficiency of the evidence to support a conviction, we view all the evidence in a neutral light, favoring neither party. Steadman v. State, 280 S.W.3d 242, 246 (Tex.Crim. App.2009); Watson v. State, 204 S.W.3d 404, 414 (Tex.Crim.App.2006). We then ask whether the evidence supporting the conviction, although legally sufficient, is nevertheless so weak that the factfinder’s determination is clearly wrong and manifestly unjust or whether conflicting evidence so greatly outweighs the evidence supporting the conviction that the factfin-der’s determination is manifestly unjust. Steadman, 280 S.W.3d at 246; Watson, 204 S.W.3d at 414-15, 417. To reverse under the second ground, we must determine, with some objective basis in the record, that the great weight and preponderance of all the evidence, although legally sufficient, contradicts the verdict. Watson, 204 S.W.3d at 417.

Unless we conclude that it is necessary to correct manifest injustice, we must give due deference to the factfinder’s determinations, “particularly those determinations concerning the weight and credibility of the evidence.” Johnson v. State, 23 S.W.3d 1, 9 (Tex.Crim.App.2000); see Steadman, 280 S.W.3d at 246. Evidence is always factually sufficient when it preponderates in favor of the conviction. Steadman, 280 S.W.3d at 247; see Watson, 204 S.W.3d at 417.

In determining whether the evidence is factually insufficient to support a conviction that is nevertheless supported by legally sufficient evidence, it is not enough that this court “harbor a subjective level of reasonable doubt to overturn [the] conviction.” Watson, 204 S.W.3d at 417. We cannot conclude that a conviction is clearly wrong or manifestly unjust simply because we would have decided differently than the jury or because we disagree with the jury’s resolution of a conflict in the evidence. Id. We may not simply substitute our judgment for the factfinder’s. Johnson, 23 S.W.3d at 12; Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App.1997). Unless the record clearly reveals that a different result is appropriate, we must defer to the jury’s determination of the weight to be given contradictory testimonial evidence because resolution of the conflict “often turns on an evaluation of credibility and demeanor, and those jurors were in attendance when the testimony was delivered.” Johnson, 23 S.W.3d at 8. Our deference in this regard safeguards the defendant’s right to a trial by jury. Lancon v. State, 253 S.W.3d 699, 704 (Tex.Crim.App.2008).

IV. Evidentiary Challenges

In her first issue, Sutton argues that there is legally and factually insufficient evidence that she possessed the firearm found under the mattress where she sat during the officers’ search of the house for the fugitive. She argues that “[u]sing the ‘links’ test, the evidence suggests that [she] did not intentionally and knowingly possess a firearm.” In her second issue, Sutton argues that the trial court erred by denying her motion for a directed verdict.

A. Unlawful Possession of a Firearm and Links

The State was required to prove beyond a reasonable doubt that Sutton, a felon, was in unlawful possession of a firearm. See Tex. Penal Code Ann. § 46.04(a)(1) (Vernon Supp.2009). To establish the offense of unlawful possession of a firearm by a felon, the State must show that the defendant was previously convicted of a felony offense and possessed a firearm after the conviction and before the fifth anniversary of the person’s release from confinement. Id. Sutton does not dispute that she had a prior felony conviction. Instead, she challenges only the evidence that she possessed a firearm.

The penal code defines possession as “actual care, custody, control, or management.” Id. § 1.07(a)(39) (Vernon Supp. 2009). A person commits a possession offense only if he voluntarily possesses the prohibited item. Id. § 6.01(a) (Vernon 2003). Possession is voluntary if the possessor knowingly obtains or receives the thing possessed or is aware of his control of the thing for a sufficient time to permit him to terminate his control. Id. § 6.01(b).

If the firearm is not found on the defendant’s person or is not seen in the defendant’s exclusive care, custody, control, or management, as in this case, the State must offer additional, independent facts and circumstances that link the defendant to the firearm. Bates v. State, 155 S.W.3d 212, 216-17 (Tex.App.-Dallas 2004, no pet.); see Villarreal v. State, Nos. 02-07-00329-CR, 02-07-00330-CR, 2009 WL 671042, at *1 (Tex.App.-Fort Worth Mar. 12, 2009, pet. refd) (mem. op., not designated for publication) (“The ... links doctrine also applies to the possession of firearms.”)- The purpose of linking the accused to the firearm is to protect innocent bystanders from conviction solely on their fortuitous proximity to the firearm. See Poindexter v. State, 153 S.W.3d 402, 406 (Tex.Crim.App.2005). Such links may be established by either direct or circumstantial evidence. See Evans v. State, 202 S.W.3d 158, 161-62 (Tex.Crim.App.2006). An appellate court examines factors such as whether the firearm was in plain view, whether the defendant owned the premises where the firearm was found, whether the defendant made incriminating statements, whether the defendant was in close proximity to the firearm and had ready access to it, whether the defendant attempted to flee, whether the defendant’s conduct indicated a consciousness of guilt, whether the defendant had a special connection to the firearm, and whether the firearm was found in an enclosed space. Smith v. State, 176 S.W.3d 907, 916 (Tex.App.-Dallas 2005, pet. ref'd); Westbrook v. State, No. 02-07-00455-CR, 2008 WL 5672533, at *4 (Tex.App.-Fort Worth Feb. 26, 2009, pet. refd) (mem. op., not designated for publication). Significantly, it is the logical force of the factors, not the number of factors present, that determines whether the elements of the offense have been established. See Smith, 176 S.W.3d at 916.

B. Legal Sufficiency Review

There are several facts that link Sutton to the firearm found under the mattress. First and foremost, Sutton made incriminating statements to the officers. She affirmatively declared, “I have a gun,” and “[G]et your ass away from my truck or I’ll shoot you.” [Emphases added.] Sutton’s statements that she had a gun and that she would shoot the person near her truck are highly probative, logically forceful links that she possessed a firearm for the simple reason that when she announced to the police, “I have a gun,” she admitted possessing a firearm. Sutton’s admissions essentially constitute an explicit recognition by her that she exercised actual care, custody, control, or management over a firearm. See Rhodes v. State, No. 12-01-00268-CR, 2003 WL 22240365, at *2 (Tex.App.-Tyler Sept. 30, 2003, no pet.) (mem. op., not designated for publication) (holding evidence legally sufficient to support conviction for unlawful possession of a firearm when defendant testified that he owned, transported, and fired firearm); Moore v. State, No. 07-01-00477-CR, 2002 WL 31627079, at *1-2 (Tex.App.-Amarillo Nov. 22, 2002, pet. ref'd) (mem. op., not designated for publication) (concluding appeal was frivolous and mentioning that appellant admitted possessing firearm).

Another fact that links Sutton to the firearm is her admission of ownership or responsibility for the house in which the firearm was found. Officer Brian Oglesby testified in part as follows:

[State]: What did she tell you about the house?
[Officer Oglesby]: We asked her if it was her residence, basically, just to establish some sort of residency. She said that it was her house and she didn’t have a problem with us checking. [Emphasis added.]

As the State points out, the jury could have rationally inferred from Sutton’s statement of ownership or responsibility over the house that she could exercise care, custody, and control over the house’s contents, including the gun. See Hughes v. State, 612 S.W.2d 581, 583 (Tex.Crim.App.1981) (stating that appellant’s residency is a factor in determining if she exercised care, custody, or management).

Another fact that links Sutton to the firearm is the proximity of the mattress under which the gun was found to the front door of the house where Sutton yelled at the officers. Officer Oglesby testified that Sutton was standing at the front doorway when she yelled at the officers. After Sutton yelled at the officers, she closed the front door for a brief period before coming back to the door to speak with the officers. Officer Stepp testified that the bed where the gun was found was located only “inches” away from the front door and that it would only take a few seconds for someone who was at the front door to place the gun underneath the mattress. According to Officer Oglesby, the grip of the gun was facing towards the outside edge of the mattress, and the gun was “readily grabbable.” Considering the proximity of the mattress to the front door, the jury could rationally have inferred that Sutton exercised actual care, custody, or control over the gun before placing it under the mattress and after yelling at the officers that she had a gun. See Gipson v. State, Nos. 05-01-00770-CR, 05-01-00771-CR, 05-01-00772-CR, 05-01-00773-CR, 2003 WL 21053918, at *5 (Tex.App.-Dallas May 12, 2003, no pet.) (not designated for publication) (holding that evidence was sufficient to support conviction for unlawful possession of a firearm in part because pistol was conveniently accessible to appellant, who was seated on couch).

Another link, though less logically forceful than those already addressed, is the fact that the gun was found “directly beneath” where Sutton was sitting when the officers searched the house. Officer Oglesby testified that the officers asked Sutton to have a seat but did not tell her to sit on the bed. Also, Sutton was the only person at the front of the house— which is where officers found the gun— when the officers entered the house. The fugitive that the officers were searching for was hiding in a bathroom at the back of the house, and Minshew testified that he was sleeping in his bedroom at the back of the house.

Viewing all of the evidence in the light most favorable to the prosecution, giving full play to the responsibility of the trier of fact to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts, a rational jury could have found beyond a reasonable doubt that Sutton possessed the gun that officers discovered underneath the mattress that Sutton sat on during the officers’ search of the house and that was located only “inches” away from the front door of the house where Sutton yelled to the officers, “I have a gun[;] get your ass away from my truck or I’ll shoot you.” See Jackson, 443 U.S. at 319, 99 S.Ct. at 2789; Clayton, 235 S.W.3d at 778. Accordingly, we hold that the evidence is legally sufficient to support Sutton’s conviction. We overrule the part of Sutton’s first issue challenging the legal sufficiency of the evidence and her second issue.

C. Factual Sufficiency

Sutton argues that the evidence is insufficient to show that she possessed the gun because (1) Minshew testified that “Dennis” owned the house, (2) she followed the officers’ commands to sit down on furniture that was nearest to the door, (3) the bed where the gun was found opened into one of the living rooms in the house and was where another individual was staying, and (4) an officer saw her naked and without a gun. We address Sutton’s arguments relating to her being naked and without a gun first.

Officer Stepp is the only witness who testified about Sutton being naked and without a gun. He testified on direct examination as follows:

[State]: How did you get into the house?
[Officer Stepp]: We were waiting for the person that — the female that yelled that comment to come to the door and talk with us. It took a few minutes and she opened the door.
[State]: Okay. When you say it took a few minutes, do you know why it took a few minutes?
[Officer Stepp]: I assumed she was putting clothes on. We had information over our earpieces that there was a female that was observed naked inside the residence and told us to hold on.

Officer Stepp testified on cross-examination as follows:

[Defense counsel]: Is it Officer Stepp?
[Officer Stepp]: Yes, sir.
[Defense counsel]: Did you ever see my client in possession of that weapon?
[Officer Stepp]: No, sir.
[Defense counsel]: Okay. That’s a no?
[Officer Stepp]: Yes, correct, sir. No, sir, I did not.
[Defense counsel]: Let me ask you this.
[Defense counsel]: May I approach that board, Your Honor?
THE COURT: Yes, sir.
[Defense counsel]: This bed right here, right here, the bed where the gun was found?
[Officer Stepp]: Yes, sir.
[Defense counsel]: How close is that to the front door?
[Officer Stepp]: Inches, inches away from the front door.
[Defense counsel]: If someone was at that front door with a weapon and then stuck it underneath the mattress, that would only take a couple of seconds, correct?
[Officer Stepp]: Yes, sir.
[Defense counsel]: I think it’s your testimony that at some point my client closed the door while y’all were still outside before y’all entered the house, right?
[Officer Stepp]: Yes, sir.
[Defense counsel]: She was gone for a couple of minutes I think you said, correct?
[Officer Stepp]: Yes, sir.
[Defense counsel]: Or I don’t want to put words in your mouth. The door was closed for a couple of minutes and then she reappeared, correct?
[Officer Stepp]: Yes, sir.
[Defense counsel]: Okay. I think you testified that someone said that my client was naked; is that correct?
[Officer Stepp]: Yes, sir.
[Defense counsel]: Was that, I mean, was that one of the other officers?
[Officer Stepp]: Yes, sir.
[Defense counsel]: Okay. So there was an officer that made a visual and saw that my client was naked?
[Officer Stepp]: Saw a female that was naked, yes.
[Defense counsel]: Saw a female that was naked?
[Officer Stepp]: Yes, sir.
[Defense counsel]: Did that officer see a weapon at that point?
[Officer Stepp]: No, sir.
[Defense counsel]: So there was a female. And we know there was only one female in the house, correct?
[Officer Stepp]: Yes, sir.
[Defense counsel]: Is it safe to assume that that female was my client?
[Officer Stepp]: Yes, sir.
[Defense counsel]: Client at the door naked with no weapon?
[Officer Stepp]: Yes, sir.
[Defense counsel]: Closes the door for a couple of minutes?
[Officer Stepp]: (Moving head up and down).
[Defense counsel]: I need you to answer.
[Officer Stepp]: Yes, sir. Yes, sir.
[Defense counsel]: And then she reappears with clothes on?
[Officer Stepp]: Yes, sir.
[Defense counsel]: Now, is it fair to say that in that amount of time she went to put clothes on?
[Officer Stepp]: Yes, sir.
[Defense counsel]: Okay. Certainly if she had a weapon, it would only take a couple of seconds, correct?
[Officer Stepp]: Yes, sir.
[Defense counsel]: But we know she didn’t have a weapon because she was naked?
[Officer Stepp]: No weapon was seen in her hands when she was seen naked. [Emphases added.]

Sutton makes only two statements in her argument relevant to this evidence. She first states, “Neither officer could testify that they personally saw [Sutton] possess a firearm. In fact, Officer Stepp testified that when [Sutton] came to the door and yelled at the officers she was nude.” The second statement that Sutton makes regarding her being naked is as follows: “Officer Stepp further testified that [Sutton] did not have a weapon in her possession when she was undressed.” Following Sutton’s logic, her argument appears to be that because she did not have a firearm when she was naked, and she was naked when she was at the front door and yelled at the officers, then she did not possess a firearm when she was at the front door and yelled at the officers. Sutton’s argument emphasizes that no one actually saw her with a firearm in her hands. But whether the officers actually saw Sutton with a firearm is not conclusive of whether she “possessed” the firearm; that is, whether she had a firearm in her care, custody, control, or management. Rather, we must examine the record for additional, independent facts and circumstances that link Sutton to the firearm. Considering all of the evidence, including Sutton’s statements to the officers, her close proximity to where the firearm was ultimately found, and her admission of ownership or responsibility for the house, the jury was free to infer and conclude, as it obviously did, that Sutton had possession — that is, exercised actual care, custody, control, or management — of the firearm even though none of the officers actually saw her with a firearm in her hands. The evidence that Sutton said that the house was her residence and that she allowed the police officers to enter; that she said, “I have a gun”; that she sat down by her own choice on the mattress under which the gun was found; and that she was within inches of the mattress where the gun was found when she was at the front door and made the statement, “I have a gun,” is not rendered factually insufficient as a result of Officer Stepp’s testimony that no one saw Sutton with a firearm in her hands when she was seen naked. See Westbrook v. State, No. 02-07-00455-CR, 2008 WL 5672538, at *5 (Tex.App.-Fort Worth Feb. 26, 2009, pet. ref d) (mem. op., not designated for publication) (holding that the evidence was legally and factually sufficient to support conviction for unlawful possession of a firearm by a felon when officers discovered a firearm that was wrapped in a denim shirt that appellant was able to directly point out to the officers in a bedroom); Ramos v. State, Nos. 02-07-00118-CR, 02-07-00119-CR, 2008 WL 623777, at *7 (Tex. App.-Fort Worth Mar. 6, 2008, pet. ref'd) (mem. op., not designated for publication) (holding that the evidence was legally and factually sufficient to support conviction for unlawful possession of a firearm when shotgun was found in master bedroom closet, which appellant shared with his wife); Smith v. State, No. 12-06-00021-CR, 2007 WL 2178541, at *3 (Tex.App.Tyler July 31, 2007, no pet.) (mem. op., not designated for publication) (holding that the evidence was legally and factually sufficient to support conviction for unlawful possession of a firearm when pistol was found in plain view in linen closet next to bedroom where appellant slept).

Regarding the other bases for Sutton’s factual sufficiency argument, as the trier of fact, the jury was free to disbelieve or give less weight to Minshew’s testimony regarding who owned the house and who stayed where in the house. See Lancon, 253 S.W.3d at 706 (reaffirming that “an appellate court must give deference to a jury’s decision regarding what weight to give contradictory testimonial evidence because the decision is most likely based on an evaluation of credibility and demeanor, which the jury is in the better position to judge”). Further, the evidence that supports the verdict is not rendered insufficient merely because Sutton presented conflicting evidence. See Anderson v. State, 701 S.W.2d 868, 872 (Tex.Crim.App.1985), cert. denied, 479 U.S. 870, 107 S.Ct. 239, 93 L.Ed.2d 163 (1986); see also Steadman, 280 S.W.3d at 247 (reasoning that evidence is always factually sufficient when it preponderates in favor of the conviction).

The dissent seems to contend that there is no evidence Sutton exercised actual care, custody, control, or management over the handgun because no one actually saw her with a gun in her hand. The dissent demands more than what the law requires. Contrary to the dissent’s proposition, although it is undisputed that no one saw Sutton with a gun in her hands, that does not end the possession inquiry. See, e.g., James v. State, 264 S.W.3d 215, 219-21 (Tex.App.-Houston [1st Dist.] 2008, pet. ref d) (applying links analysis and holding that the evidence was legally and factually sufficient to support conviction for unlawful possession of a firearm even though no one saw appellant handle the gun). As we already explained, if the firearm is not found on the defendant’s person or is not in the defendant’s exclusive possession, as in this case, the State must offer additional, independent facts and circumstances that link the defendant to the firearm to demonstrate actual care, custody, control, or management of the firearm. See Bates, 155 S.W.3d at 216-17; see also Evans, 202 S.W.3d at 162 (stating that mere presence is insufficient to establish possession). The entire analysis above examines the numerous independent facts and circumstances that link Sutton to the firearm discovered by the police under the mattress: it is undisputed that Sutton was the only female in the house; that she was at the front door when she yelled, “I have a gun[;] get your ass away from my truck or I’ll shoot you”; that the bed and mattress where the readily accessible gun was found were located only “inches” away from the front door; and that she was sitting on the mattress underneath which the gun was found.

Viewing all the evidence in a neutral light, favoring neither party, we conclude that the evidence supporting the conviction is not so weak that the jury’s determination is clearly wrong and manifestly unjust, nor does the conflicting evidence so greatly outweigh the evidence supporting the conviction that the jury’s determination is manifestly unjust. See Steadman, 280 S.W.3d at 246; Watson, 204 S.W.3d at 414-15, 417. Accordingly, we hold that the evidence is factually sufficient to support Sutton’s conviction. We overrule the remainder of Sutton’s first issue challenging the factual sufficiency of the evidence.

V. Conclusion

Having overruled Sutton’s two issues, we affirm the trial court’s judgment.

DAUPHINOT, J., filed a dissenting opinion.

LEE ANN DAUPHINOT, Justice,

dissenting.

I must respectfully dissent because I cannot follow the majority’s analysis of a very clear record and because I believe that the majority has not addressed the questions fundamental to the disposition of this case.

Officer Stepp confirmed that another officer saw Appellant Kellie Parker Sutton “at the door naked with no weapon.”

The majority characterizes the following as illogical: She did not possess a firearm when she was naked. She was naked when she was at the front door and yelled at the officers. Therefore, she did not possess a firearm when she was at the front door and yelled at the officers. Respectfully, the conclusion is logical. If Appellant was seen naked at the front door, and no weapon was seen in her hands when she was naked, is the majority suggesting that the gun was someplace on her body?

The majority works too hard to complicate the record. There is no testimony that anyone saw Appellant with a firearm on her person. Taking the record as it is without rewriting it or skewing it, none of the police officers saw a firearm on Appellant’s person, even when they saw her naked. They did watch her stand in her doorway and yell, “I have a gun[;] get your ass away from my truck or I’ll shoot you.”

The issues the majority should address based on this uncomplicated record are:

(1)If Appellant was the person yelling, would her knowledge that another person in the house had a gun in his bedroom be sufficient evidence that Appellant exercised care, custody, and control over that gun?
(2) Does a threat to use a gun constitute the exercise of care, custody, and control over a firearm?
(3) Is the threat evidence that Appellant knew that that specific firearm was located in a place to which she had access?
(4) Is following police officers’ orders to sit down in someone else’s room by sitting on a bed where officers later found a firearm evidence that Appellant exercised care, custody, or control over that firearm or that she knew the firearm was located under the mattress when the firearm was not visible until officers searched under the mattress?

Because the majority fails to address the clear issues raised by the record, I respectfully dissent.

      . The officers located the fugitive hiding in a bathroom.


author: Justice BENAVIDES.

text:
    CITY OF EDINBURG and The Texas Department of Transportation, Appellants, v. A.P.I. PIPE & SUPPLY, LLC and Paisano Service Company, Inc., Appellees.
    No. 13-09-00159-CV.
    Court of Appeals of Texas, Corpus Christi-Edinburg.
    Aug. 26, 2010.
    Rehearing Overruled Nov. 4, 2010.

      Analisa Figueroa, Willette & Guerra, LLP, Brownsville, Lisa Marie McClain, Susan Desmarais Bonnen, Asst. Attys. Gen., Austin, for Appellants.
    Mark Wilkins, Rolando Quintana, Wilkins & Wilkins, McAllen, for Appellees.

      Before Justices RODRIGUEZ, BENAVIDES, and VELA.
   OPINION

Opinion by

Justice BENAVIDES.

Appellants, the City of Edinburg (the “City”) and the Texas Department of Transportation (“TxDot”), appeal the trial court’s denial of their plea to the jurisdiction in favor of appellees, API Pipe and Supply, LLC and Paisano Service Co., Inc. (collectively “API/Paisano”). See Tex. Civ. Prac. & Rem.Code Ann. § 51.014(a)(8) (Vernon 2008). By one issue, the City and TxDot argue that they have sovereign immunity from API/Paisano’s claims. We affirm.

I. BACKGROUND

A. Original Suit for Condemnation

On February 24, 2003, the City filed a petition for condemnation in County Court at Law No. 4, Hidalgo County, Texas. The petition sought to acquire fee title to 9.869 acres of land out of Blocks 37, 38, and 39 of the Santa Cruz Ranch Subdivision for the public purpose of laying out, opening, constructing, reconstructing, maintaining, and operating a certain right-of-way for U.S. Highway 281 drainage outfall ditches. In its petition, the City set out the following:

That the Plaintiff [the City] and the Defendant [H.B. White a/k/a Herschell B. White] have been unable to agree on the value of said real estate and interest therein to be condemned or the damages occasioned by the acquisition of such land and ask that Special Commissioners be appointed as provided by law to assess the damages of the Defendant. WHEREFORE, PREMISES CONSIDERED, Plaintiff respectively prays that three disinterested freeholders be appointed as Special Commissioners to assess the damages, [sic] of Defendant; that the said Special Commissioners filed [sic] their decision as required by law; that Plaintiff have a final judgment of condemnation vesting in the fee title to said land and the rights therein, all as more particularly set out above....

On April 25, 2003, a special commissioners hearing was held. White, the landowner at that time, and the City presented evidence of the value of the property based on appraisals prepared for each party by different appraisers. The appraiser hired by the City valued compensation due White at $165,196, and White’s appraiser valued the compensation due at $326,721. Each appraiser valued the compensation based on a fee simple acquisition. The special commissioners awarded $224,249 to White as adequate compensation for the property being condemned. They also awarded the City “all rights described and prayed for in Plaintiffs Original Statement and Petition for Condemnation.”

On May 1, 2003, the City deposited $224,249 into the court’s registry, and on May 7, 2003, White withdrew the money. Neither party objected to the special commissioners’ award. On June 3, 2003, Hi-dalgo County Court at Law Number 4 entered its “Judgment of Court in Absence of Objection” (the “2003 Judgment”) adopting the special commissioners’ award that vested fee title in the City.

On May 19, 2004, however, the county court entered a “Judgment Nunc Pro Tunc” (the “2004 Judgment”) regarding the same 9.869 acres of property. This order stated the following:

[The City] is entitled to condemn, and [does] hereby have judgment against the above named Defendant and any other interested parties for a right of way easement over that real property described in Exhibit “A” and “B” for the purpose of opening, constructing and maintaining a permanent channel or drainage easement in, along, upon and across said property together with the right and privilege at all times of the [City], its agents, employees and representatives of ingress and egress to and from said property for the purpose of making any improvements, modifications or repairs which [City] deems necessary.

(Emphasis added). The 2004 Judgment also provided that it “supercedes and makes [the] ‘Judgment of Court in Absence of Objection’ signed on June 3, 2003[,] null and void, without effect and vacated by this Court. This Court hereby enters the Judgment Nunc Pro Tunc as the sole and final judgment of the case.” The 2004 Judgment was filed in the real property records on May 19, 2004.

In September 2004, through a general warranty deed with a vendor’s lien attached, API/Paisano purchased approximately thirty-four acres from White. This purchase included the 9.869 acres of land at issue in this case, subject to an easement granted to the City as set forth in the 2004 Judgment. On June 22, 2005, the City granted an easement over the property in question to the State of Texas, by and through TxDOT, “for the purpose of opening, constructing and maintaining a permanent channel or drainage easement.”

On May 16, 2006, API/Paisano filed their original petition against the City and TxDot, claiming inverse condemnation for the taking of soil located within the drainage channel. TxDOT and the City filed pleas to the jurisdiction, which the trial court denied.

B. The First Appeal

TxDot and the City appealed the trial court’s ruling on their plea to the jurisdiction. See generally Tex. Dept. of Transp. v. A.P.I. Pipe & Supply, LLC, No. 13-07-221-CV, 2008 WL 99629 (Tex.App.-Corpus Christi Jan. 10, 2008, no pet.) (mem. op., not designated for publication). TxDot and the City argued that they were immune from a suit for inverse condemnation because API/Paisano did not have an interest in the property. TxDot and the City reasoned that the 2004 Judgment was void because it was issued after the trial court’s plenary power expired and because it purported to substantively change the judgment. Id. at *4. Thus, the City and TxDot argued that the 2003 Judgment was the effective judgment and granted the City title to the property in fee simple. Id.

We agreed that the 2004 Judgment was void and that the 2003 Judgment granted the City title to the property in fee simple. Id. We held, however, that fact issues precluded a decision on whether API/Pais-ano had an interest in the property as good faith purchasers for value:

Although we have concluded that the City acquired the property at issue in fee simple pursuant to the 2003 Judgment, an unrecorded conveyance of any interest in real property is void as to a creditor or subsequent purchaser who gives valuable consideration and is without actual notice of the transaction. There is evidence in the record that only the void 2004 Judgment was recorded and that API purchased the property from White subject to an easement owned by the City. There is no support in the record to establish that the conveyance to the City in fee simple, awarded pursuant to the 2008 Judgment, was recorded. Furthermore, API asserts it did not have actual knowledge of the 2003 Judgment. Thus, fact questions remain which affect the jurisdictional issue of appellant’s immunity claim. Because a trial court cannot grant the plea to the jurisdiction if the evidence creates a fact question regarding the jurisdictional issue, the trial court correctly denied appellants’ pleas to the jurisdiction.

Id. at *5 (citations omitted). Therefore, we affirmed the trial court’s denial of the City and TxDot’s plea to the jurisdiction, and the case proceeded in the trial court.

C. Subsequent Proceedings

After the appeal, TxDot and the City filed a second plea to the jurisdiction. In the second plea, TxDot and the City argued that the 2003 Judgment was recorded in the official records of Hidalgo County, Texas on April 28, 2004. TxDot and the City attached a certified copy of the 2003 Judgment, which shows it was recorded as document number 1328354 in the property records on April 28, 2004, at 2:57 p.m. — before API/Paisano’s purchase of the property on August 30, 2004. TxDot and the City claimed that API/Pais-ano were not good faith purchasers for value without notice because the 2003 Judgment was recorded in the official property records prior to API/Paisano’s purchase of the property and because the 2004 Judgment references the 2003 Judgment, providing them with actual notice of the City’s interest in the property.

The City and TxDot further claimed that API/Paisano’s suit was not just for inverse condemnation but for trespass to try title, and they are immune from such a suit. The City and TxDot contended that they were immune from suit for any negligence claim and that a party cannot acquire a property interest adverse to a governmental entity by the application of an equitable doctrine such as estoppel, laches, adverse possession, dereliction, or the acts or conduct of their officers or agents. Alternatively, the City and TxDot argued that any interest API/Paisano had in the property would be subject to the easement granted in the 2004 Judgment, which allowed the City and TxDot, as its assignee, the right to use all materials in the easement for the purpose of constructing, repairing, or improving the highway.

API/Paisano filed a response to the plea and incorporated evidence attached to an earlier-filed motion for partial summary judgment. API/Paisano argued that the 2004 Judgment was an agreed judgment that was approved by (1) counsel for the Whites; (2) counsel for the City of Edin-burg; and (3) TxDot representatives. API/Paisano submitted a facsimile from Mary M. Kelly of the City of Edinburg’s Public Works Department to the City’s attorney instructing him to execute the 2004 Judgment and to forward it to the City after recording it “for TxDot submission, as they require original documents with field notes & parcel plats as attached exhibits.” API/Paisano also submitted an e-mail from Pedro Segundo with TxDot to Kelly, stating that he “spoke to Randy Ward, ROW Attorney regarding the proposed Judgment Nunc Pro Tunc for the above subject parcel. Mr. Ward has no problem with the Draft as presented by” the City’s attorney.

API/Paisano argued that by executing the 2004 Judgment, the City and TxDot permitted the Whites to hold evidence of complete ownership of the property in fee simple, and the 2004 Judgment was intended to be relied upon and was, in fact, relied upon by third parties. Thus, API/Paisano purchased the property in good faith, and the law imputes onto TxDot and the City “some degree of negligence, for which they ought to suffer.” API/Paisano argued that at most, they were only subject to the easement granted in the 2004 Judgment, which did not permit TxDot to remove soil from the property without compensation.

On September 2, 2008, the trial court held a hearing on the plea to the jurisdiction. On December 18, 2009, the trial court denied the plea, and this interlocutory appeal ensued.

II. Standard of Review

“A plea to the jurisdiction is a dilatory plea, the purpose of which is to defeat a cause of action without regard to whether the claims asserted have merit.” See Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex.2000). A plea to the jurisdiction tests the trial court’s subject-matter jurisdiction. Tex. Dept. of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex.1999).

When a plea to the jurisdiction challenges the plaintiffs pleadings, “[wjhether a pleader has alleged facts that affirmatively demonstrate a trial court’s subject[-]matter jurisdiction is a question of law reviewed de novo.” Tex. Dept. of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex.2004). The trial court must construe the pleadings liberally in favor of the pleader. Id. If the pleadings do not allege facts sufficient to affirmatively demonstrate jurisdiction, but the pleading defects 'are curable by amendment, the issue is one of pleading sufficiency, and the pleader should be offered an opportunity to amend. Id. at 226-27.

If the plea to the jurisdiction challenges the existence of jurisdictional facts, however, we review the evidence submitted by the parties. Id. at 227. “[Wjhether undisputed evidence of jurisdictional facts establishes a trial court’s jurisdiction is also a question of law.” Id. at 226. If evidence is submitted regarding the trial court’s subject-matter jurisdiction that is intertwined with the merits of the case, we review that evidence to determine if there is a fact question. Id. at 227-28. If so, the trial court must deny the plea to the jurisdiction and submit the issue to the finder of fact. Id.

III. Inverse Condemnation

The City and TxDot concede that the Texas Constitution waives sovereign immunity for inverse condemnation claims. See Gen. Servs. Comm'n v. Little-Tex Insulation Co., 39 S.W.3d 591, 598-99 (Tex.2001). They argue, however, that a proper inverse condemnation claim necessarily requires a showing that the claimant had a compensable interest in the property. See Tex. Dep’t of Transp. v. City of Sunset Valley, 146 S.W.3d 637, 644 (Tex.2004). If API/Paisano do not have a compensable interest in the property, then TxDot and the City are immune from suit under the doctrine of sovereign immunity. See id. at 645-46; see also Little-Tex Insulation Co., 39 S.W.3d at 598-99.

Our decision in the first appeal established that the 2004 Judgment was void, and the 2003 Judgment vested title to the property in the City in fee simple. Tex. Dept. of Transp., 2008 WL 99629, at *4-5. API/Paisano assert, however, that they were subsequent good faith purchasers for value because the 2004 Judgment, which granted the City only an easement and not fee simple title to the property, was recorded in the county deed records, and they relied upon the 2004 Judgment when they purchased the property from White.

The City and TxDot dispute that API/Paisano can be good faith purchasers for value. First, the City and TxDot argue that API/Paisano cannot rely on equitable doctrines, such as the good faith purchaser for value doctrine or estoppel, to take title away from a governmental entity. Additionally, the City and TxDot argue that API/Paisano cannot be good faith purchasers for value because the 2003 Judgment was also recorded and because API/Paisano had actual notice of it. Second, the City and TxDot argue that API/Paisano’s suit is really for trespass to try title and negligence, and they have sovereign immunity from these claims. Alternatively, TxDot and the City argue that the easement granted in the 2004 Judgment allows them to take and keep any soil excavated from the drainage ditches; therefore, API/Paisano do not have a compensable property interest in the excavated soil. For the reasons that follow, we disagree.

A. Good Faith Purchasers for Value

Section 13.001(a) of the Texas Property Code provides:

A conveyance of real property or an interest in real property or a mortgage or deed of trust is void as to a creditor or to a subsequent purchaser for a valuable consideration without notice unless the instrument has been acknowledged, sworn to, or proved and filed for record as required by law.

Tex. PROPERTY Code Ann. § 13.001(a) (Vernon 2003). Stated otherwise, a “good faith purchaser for value” is one who acquires real property in good faith, for valuable consideration, and without actual or constructive knowledge of an outstanding equity or an adverse interest or title. See id,.; Colvin v. Alta Mesa Res., Inc., 920 S.W.2d 688, 691 (Tex.App.-Houston [1st Dist.] 1996, writ denied). It is undisputed that both the 2003 and 2004 Judgments were filed in the official property records prior to API/Paisano’s purchase. Additionally, the City and TxDot do not dispute that they agreed to the 2004 Judgment and took steps to have it filed in the property records. The only dispute relates to the legal effect of these actions, which is a question of law that we review de novo. See Miranda, 133 S.W.3d at 226.

First, the City and TxDot argue that API/Paisano could not be good faith purchasers for value against the claim of a governmental entity because a party may not acquire a property interest adverse to a governmental entity by the application of an equitable doctrine, citing Odessa Tex. Sheriff’s Posse, Inc. v. Ector County, 215 S.W.3d 458 (Tex.App.-Eastland 2006, pet. denied), and Capitol Rod & Gun Club v. Lower Colo. River Auth., 622 S.W.2d 887, 896 (Tex.App.-Austin 1981, writ ref'd n.r.e.) (op. on reh’g). Odessa Texas Sheriff’s Posse involved the creation of a “lease by conduct,” which is where “a lease may be created by words or other conduct expressing consent to the lessee’s possession.” 215 S.W.3d at 465. Capitol Rod & Gun Club involved a claim to property by use of the doctrines of limitations, estop-pel, and acquiescence theory. 622 S.W.2d at 896.

However, the “good faith purchaser for value” doctrine is not merely an equitable doctrine — it is statutorily mandated, and no exception is made in the statute for governmental entities. See Tex. Property Code Ann. § 13.001(a). In fact, other courts have applied the good faith purchaser for value doctrine as against a governmental entity. See also City of Richland, Hills v. Bertelsen, 724 S.W.2d 428, 430 (Tex.App.-Fort Worth 1987, no writ). Thus, we reject the City and TxDot’s argument that they cannot be made subject to API/Paisano’s property interest as good faith purchasers for value because governmental entities are subject to the statutorily-imposed good faith purchaser for value doctrine.

The question remains, however, whether API/Paisano had either constructive or actual notice of the City and TxDot’s claim to the property in fee simple. API/Paisano does not dispute that it had notice or actual knowledge of both the 2003 and 2004 Judgments, which were filed of record. The question is whether API/Paisano should have known that, after the fact, the City and TxDot would claim that the 2004 Judgment, to which they agreed and which they caused to be filed, was void. We hold that API/Paisano was not required to inquire as to the effect or validity of the 2004 Judgment and was entitled to rely on the 2004 Judgment, filed in the official property records.

“A purchaser is charged with knowledge of the provisions and contents of recorded instruments. Purchasers are also charged with notice of the terms of deeds which form an essential link in their chain of ownership.” Cooksey v. Sinder, 682 S.W.2d 252, 253 (Tex.1984) (per cu-riam). The converse is likewise true — a party who performs a diligent search of the property records is entitled to rely on the recitations in those records when purchasing property, particularly as against the party who causes the recitations to be there in the first place. As the Texas Supreme Court explained as early as 1891:

Protection is given to a bona fide purchaser on the ground that it would be unjust to deprive him of property which he has purchased from another holding all the evidences of right necessary under the law to show that he is the true owner of the thing purchased; and when a person not having the entire beneficial interest is permitted by those having adverse interests to hold the evidences of perfect right in himself prescribed by law for the purpose, among others, of showing who the true owner is, then the law imputes to those having such adverse interest some degree of negligence, for which they ought to suffer, rather than that loss should be imposed on a bona fide purchaser from one holding the evidences of complete ownership.

Patty v. Middleton, 82 Tex. 586, 17 S.W. 909, 911 (Tex.1891); see Potka v. Potka, 205 S.W.2d 51, 54 (Tex.Civ.App.-Waco 1947, writ ref d n.r.e.) (holding that subsequent purchaser was entitled to rely on a subsequent partition judgment that conflicted with an earlier deed, because the adverse claimants allowed the partition judgment to be entered without asserting their rights).

The 2004 Judgment expressly states that it is

in replacement of the “Judgment of Court in Absence of Objection” signed on June 3, 2003 and later recorded as Document Number 1328354, Official Records of Hidalgo County, Texas. This Judgment Nunc Pro Tunc thereby supersedes and makes said “Judgment of Court in Absence of Objection” signed on June 3, 2008 null and void, without effect and vacated by this Court. This Court hereby enters this Judgment Nunc Pro Tunc as the sole final judgment of the case.

The 2004 Judgment was signed by the City’s attorneys. The 2004 Judgment, on its face, expressly superseded the 2003 Judgment and contained all the requisites of a valid judgment. See Slaughter v. Qualls, 139 Tex. 340, 162 S.W.2d 671, 675 (Tex.1942) (holding that a party who purchased land in good faith at from a person who acquired the land at a foreclosure sale acquired good title to the land even though the foreclosure sale was deemed void); Gholson v. Peeks, 224 S.W.2d 778, 782 (Tex.Civ.App.-Eastland 1949, writ ref'd) (op. on reh’g). Nothing in the official property records would have revealed that the 2004 Judgment was void because it was issued outside the trial court’s plenary power, and we will not require parties to review the contents of the clerk’s file in a lawsuit to which they are not a party and form a legal opinion about the validity of a judgment that appears valid on its face. Cf. Martin v. Cadle Co., 133 S.W.3d 897, 905 (Tex.App.-Dallas 2004, pet. denied) (holding purchasers had notice that foreclosure was void because chain of title put them on notice). Thus, we hold that API/Paisano was entitled to rely on the 2004 Judgment as good faith purchasers for value.

B. Trespass to Try Title and Negligence

TxDot and the City argue that API/Paisano’s claim is really one for trespass to try title, not inverse condemnation, and they are immune from such a suit. Furthermore, TxDot and the City argue that they are immune from any negligence claims asserted by API/Paisano.

First, we note that nowhere in API/Pais-ano’s petition do they assert a claim for negligence. In fact, the only claim raised is for inverse condemnation. API/Paisano uses the word “negligence” only to explain their good faith purchaser for value argument — that because TxDot and the City allowed the 2004 Judgment to be entered, the law requires that any harm for that negligence should fall on TxDot and the City. See Patty, 17 S.W. at 911 (“[WJhen a person not having the entire beneficial interest is permitted by those having adverse interests to hold the evidences of perfect right in himself prescribed by law for the purpose, among others, of showing who the true owner is, then the law imputes to those having such adverse interest some degree of negligence, for which they ought to suffer, rather than that loss should be imposed on a bona fide purchaser from one holding the evidences of complete ownership.”) (emphasis added). API/Paisano’s citation of Patty merely provides the theoretical underpinnings of the good faith purchaser for value doctrine; it does not convert their claim into a negligence claim. See id.

Second, TxDot and the City’s argument that this suit is one for trespass to try title is not supported by the law. “[A] takings claim is not the functional equivalent of a trespass to try title claim or a suit to quiet title.” Porretto v. Patterson, 251 S.W.3d 701, 708 (Tex.App.-Houston [1st Dist.] 2007, no pet.). The remedy for an inverse condemnation claim is just compensation for the taking, while a successful trespass to try title claim requires immediate transfer of possession of the property. Id. “[Although land ownership is universally an underlying consideration of a takings claim, legislative consent is unnecessary to pursue just compensation (as opposed to possession and title) because the Texas and United States Constitutions already grant private landowners such a right.” Id. If we were to accept TxDot and the City’s argument, no claimant could ever recover for inverse condemnation if the governmental entity challenged the claimant’s ownership of the property because, according to TxDot and the City, the claimant would be barred by the doctrine of sovereign immunity from proving ownership. City of Sunset Valley, 146 S.W.3d at 644 (“It is fundamental that, to recover under the constitutional takings clause, one must first demonstrate an ownership interest in the property taken.”). That is a result that simply cannot obtain.

Accordingly, for all the foregoing reasons, we reject TxDot and the City’s argument and overrule their issue in this regard.

C. Scope of the Easement

Next, the parties dispute ownership of the soil removed from the property, which is the subject of API/Paisano’s inverse condemnation suit. The City and TxDot argue that the easement granted in the 2004 Judgment allowed them to remove soil from the property and to keep it for their own use; thus, API/Paisano do not have any property interest in the excavated soil.

API/Paisano concede that any interest they obtained as good faith purchasers for value is necessarily subject to the easement granted in the 2004 Judgment, which provides:

[The City] is entitled to condemn, and [does] hereby have judgment against the above named Defendant and any other interested parties for a right of way easement over that real property described in Exhibit “A” and “B” for the purpose of opening, constructing and maintaining a permanent channel or drainage easement in, along, upon and across said property together with the right and privilege at all times of the [City], its agents, employees and representatives of ingress and egress to and from said property for the purpose of making any improvements, modifications or repairs which [City] deems necessary.

API/Paisano further concede that pursuant to the easement, TxDot and the City had the right to excavate the soil in question because the excavation was “reasonably necessary” for the construction of the drainage easement. API/Paisano argue, however, that once the soil was excavated, TxDot and the City had “no rights whatsoever with respect to the soil.”

When considering the terms of an express easement, we apply basic principles of contract construction and interpretation. Marcus Cable Assocs. L.P. v. Krohn, 90 S.W.3d 697, 700 (Tex.2002). The intent expressed in an easement determines the scope of the easement, and unless the easement’s language is ambiguous, we look solely to the terms of the written instrument. Id. at 700-01. “[I]f a particular purpose is not provided for in [a] grant, a use pursuing that purpose is not allowed.” Id. at 701 (citations omitted). “Nothing passes by implication ‘except what is reasonably necessary’ to fairly enjoy the rights expressly granted.” Id.

An easement is merely “[‘]a liberty, privilege, or advantage in land without profit, existing distinct from the ownership of the soil.[’]” F.J. Harrison & Co. v. Boring & Kennard, 44 Tex. 255, 1875 WL 7685, at *8 (Tex.1875) (quoting Herman on Estoppels, sec. 517; 3 Kent’s Comm., 565.).

[A]n easement is a nonpossessory interest, though it authorizes its holder to use the property for a particular purpose. While establishment of an easement, in general terms, implies a grant of unlimited reasonable use as is reasonably necessary and convenient, the fee owner retains title to the land and all that is ordinarily considered part of that land.

Brownlow v. State, 251 S.W.3d 756, 760-61 (Tex.App.-Houston [14th Dist.] 2008, pet. granted) (citing Marcus Cable Assocs., L.P., 90 S.W.3d at 700; Coleman v. Forister, 514 S.W.2d 899, 903 (Tex.1974); Brunson v. State, 418 S.W.2d 504, 506 (Tex.1967)).

In Brownlow, the Brownlows granted the State an easement to build a water detention facility as part of the State’s highway construction project, describing the easement as:

a permanent easement in the property ... for the purpose of opening, constructing, and maintaining a detention/mitigation facility in, over, and across the tract of land for the purpose of making additions to, improvements on, and repairs to said detention facility or an part thereof....

Id. at 759. Thereafter, the State began removing large amounts of soil and used the soil in another section of the highway project. Id. The court held that the easement allowed the State to excavate soil from the property but did not allow the State to take the soil and use it for its own purposes:

While it may be “reasonably necessary” for the [Sjtate to displace the soil to dig the detention facility, the [Sjtate provided no testimony or other evidence that it was reasonably necessary for it to cart off an enormous amount of soil to another location not owned by the Brownlows and use it for its own purposes. This court takes judicial note that in the marketplace today soil is a valuable commodity. Having bargained only for an easement, the State is not entitled to ownership of the extracted soil.

Id. at 762 (internal citation omitted).

As in Brownlow, the easement here allowed the City and TxDot to excavate soil to the extent reasonably necessary to fulfill the purpose of the easement: “opening, constructing and maintaining a permanent channel or drainage easement.” The easement, however, does not grant the City and TxDot title to the soil that is removed, which remains the property of API/Paisa-no. Id.

The City and TxDot rely on City of La Grange v. Brown, 161 S.W. 8 (Tex.Civ. App.-Austin 1913, writ ref'd), and City of San Antonio v. Mullaly, 11 Tex.Civ.App. 596, 33 S.W. 256 (1895, no writ), arguing that when an easement is granted for highway purposes, the easement also allows the removal of dirt or gravel from the road, and the easement owner may use that dirt or gravel to maintain another street or highway. These cases are distinguishable in that they deal with the removal of soil, gravel, or other like material from above the grade line of one part of a street or highway to another portion of that or some other street or highway. See Mullaly, 33 S.W. at 256; La Grange, 161 S.W. at 10. The Brownlow court recognized that in La Grange, the State came into “incidental possession” of small amounts of soil while grading the highway — the State was not removing large amounts of soil and keeping it without providing an explanation for why that was reasonably necessary. Brownlow, 251 S.W.3d at 762.

We likewise agree that the highway-grading cases are distinguishable, and we follow Brownlow. Id. The City and TxDot have not provided any explanation for why it was reasonably necessary for it to keep the soil it removed from the drainage ditches. Accordingly, we hold that the easement did not authorize the City and TxDot to keep the soil it removed from the easement, and API/Paisano have a sufficient property interest in that soil to maintain an action for inverse condemnation. Therefore, the City and TxDot do not have sovereign immunity, and we overrule their issue on appeal.

IV. CONCLUSION

Having overruled the City and TxDot’s issue on appeal, we affirm the trial court’s order denying their plea to the jurisdiction.

      . This is the second time this Court has addressed this case, and the facts relevant to the first appeal are again relevant to the instant appeal. See generally Tex. Dept. of Transp. v. A.P.I. Pipe & Supply, LLC, No. 13-07-221-CV, 2008 WL 99629 (Tex.App.-Corpus Christi Jan. 10, 2008, no pet.) (mem. op., not designated for publication).

      . At the time the City filed its petition, the property was owned by H.B. White a/k/a Herschell B. White. API/Paisano purchased the property from White at a later date and, thus, were not parties to the City’s condemnation proceeding.

      . API also asserted a claim for conversion.

      . API/Paisano also amended its petition to drop its claim for conversion, leaving only the claim for inverse condemnation.

      . Although not explained in the briefs or in the record, based on the context, we believe that "ROW” stands for "Right of Way.”

      . As part of their issue, the City and TxDot argue that it must be presumed that the prior owners recovered all damages to the property in the prior condemnation proceeding and that because the City has already paid for the value of the fee simple interest, any recovery by API/Paisano will be a "double recovery” for the acquisition of the same piece of land. The City and TxDot do not explain why API/Paisano, as good faith purchasers for value, have benefitted in any way from the payment that the City made to White before the City agreed to the 2004 Judgment, on which API/Paisano relied when purchasing the property from White. Furthermore, the City and TxDot do not explain how these arguments relate to dre jurisdiction of the trial court, which is all we may review in this appeal. Accordingly, we decline to address them as inadequately briefed. Tex.R.App. P. 38.l(i).