author: ANNE GARDNER, Justice.

text:
    William Matthew SCHIFFERT a/k/a Jerry Schiffert, Appellant, v. The STATE of Texas, State.
    No. 2-02-278-CR.
    Court of Appeals of Texas, Fort Worth.
    Dec. 23, 2004.

      Lisa Mullen, Fort Worth, for Appellant.
    Tim Curry, Crim. Dist. Atty., Charles M. Mallín, Chief Appellate Division, Sylvia Mandel, James R. Hudson, Asst. Dist. Atty’s For Tarrant County, Fort Worth, for Appellee;
    Panel A: CAYCE, C.J.; LIVINGSTON and GARDNER, JJ.
   ANNE GARDNER, Justice.

OPINION ON REHEARING

The State has filed a motion for rehearing regarding our original opinion and judgment. We withdraw our opinion and judgment of August 12, 2004 and substitute the following. We overrule the motion for rehearing.

L INTRODUCTION

A jury convicted Appellant William Matthew Schiffert as a party of the first-degree felony offense of murder, found the habitual offender allegations true, and assessed Appellant’s punishment at seventy-five years’ confinement in the Institutional Division of the Texas Department of Criminal Justice. See Tex. Penal Code Ann. § 19.02(b), (c) (Vernon 2003), § 12.42 (Vernon Supp.2004-05). The trial court sentenced Appellant accordingly. On appeal, Appellant raises four points: (1) the trial court egregiously erred in the parties application paragraph of the jury charge by failing to require the State to prove intent; (2) the evidence is factually and legally insufficient; (3) trial counsel was ineffective; and (4) the trial court erred in the self-defense portion of the jury charge. We will reverse and remand.

II. LEGAL SUFFICIENCY

A. Standard of Review

In his second point, Appellant claims that the evidence presented at trial is le-gaily and factually insufficient to support his conviction. The jury was authorized by the trial court’s charge to convict Appellant of murder as either a primary actor or as a party. See id. §§ 7.01, 7.02. The jury returned a general verdict, finding Appellant guilty of murder. See id. § 19.02.

In reviewing the legal sufficiency of the evidence to support a conviction, we view all the evidence in the light most favorable to the verdict 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); Burden v. State, 55 S.W.3d 608, 612 (Tex.Crim.App.2001). 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. When performing a legal sufficiency review, we may not sit as a thirteenth juror, re-evaluating the weight and credibility of the evidence and, thus, substituting our judgment for that of the fact finder. 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).

When a jury returns a general verdict and the evidence is sufficient to support a guilty finding under any of the allegations submitted, the verdict will be upheld. Swearingen v. State, 101 S.W.3d 89, 95 (Tex.Crim.App.2003); Tippitt v. State, 41 S.W.3d 316, 323 (Tex.App.-Fort Worth 2001, no pet.). Thus, we apply the legal sufficiency standard of review to each theory submitted to the jury in the court’s charge. Rabbani v. State, 847 S.W.2d 555, 558 (Tex.Crim.App.1992), cert. denied, 509 U.S. 926, 113 S.Ct. 3047, 125 L.Ed.2d 731 (1993); Tippitt, 41 S.W.3d at 323.

B. Evidence at Trial

The evidence presented at trial indicated that Brandy Upchurch began dating the victim, Corey McMillan, in 1999. Soon after, they began living together and eventually moved into the Budget Inn motel. According to a statement that Appellant gave to the police, Appellant first met Brandy Upchurch when he went to the motel to visit a friend. Upchurch told Appellant that she couldn’t come outside because her “old man [McMillan] would beat her.” Appellant continued to talk to Upchurch whenever he went to the motel.

Ultimately, Upchurch left McMillan and moved into Appellant’s trailer. About a month later, Appellant arrived at the trailer and found Upchurch gone. According to Upchurch, McMillan had found her in Appellant’s trailer, and after he threatened her, she went back with him to the motel. The following day, November 5, 2001, Up-church called Appellant to come get her; she told him that she had been kidnapped by McMillan and that she wanted Appellant to come pick her up. Appellant and his nephew, Aaron Kennedy, went to the motel to get her.

In the meantime, after a confrontation with McMillan, Upchurch left the motel on foot. She was picked up by Appellant and Kennedy in a restaurant parking lot. The three of them went back to the motel to get Upchurch’s clothes. When Appellant, Kennedy, and Upchurch arrived at the motel, Appellant drove the truck near the motel doors, so that Kennedy could jump out and grab Upchurch’s belongings, which were in a neighbor’s room.

GinnyLu Ward was in the parking lot of Enterprise Rent-A-Car, which shares the lot with the motel, when the events transpired. According to Ward, when Appellant drove into the motel parking lot, he “acted like [he] didn’t see who [he was] looking for, and [then he] made a U-turn.” Upchurch testified that Appellant stopped the car and called McMillan on the phone and said, “I’m looking at your punk bitch now.” However, the car kept rolling and almost hit a fire hydrant; Appellant swung the car around and hit a truck. Soon afterwards, McMillan came out into the parking lot. According to Ward, “[the driver] saw who [he was] looking for and [he] gunned it, and when he gunned it, he lost control for just a moment and hit [a] red truck.”

Appellant then came back around to the motel doors, and Kennedy jumped out of the car and began stabbing McMillan. Ward testified that, as Kennedy stabbed McMillan, McMillan said, “[W]hat the hell are you doing?” and “[W]hy are you here?” According to Ward, Appellant was the driver of the vehicle, and he parked it twelve to fifteen inches behind McMillan’s car, so that McMillan’s car could not have been backed out without running into Appellant’s car. While Kennedy was stabbing McMillan, Ward said that Appellant turned to her and “smirked.” After a short time, Kennedy got back in the car, and Appellant quickly drove away. As the car left the lot, Upchurch looked back; she saw McMillan’s hand over his throat and blood on his shirt.

Officer Michael McGuire was dispatched to the motel, where he found McMillan, who was bleeding and appeared to have been stabbed in the left side of his neck and on the left side of his chest. McMillan was taken to the hospital, where he subsequently died. Detective Tim Gilpin was also dispatched to the scene. He noticed a red pickup truck in the parking lot; the left bumper area of the truck had been struck. Based on information that he received from interviewing witnesses at the scene, Gilpin ran a license plate number and found that the registered owner of the car was Appellant.

The day after McMillan’s death, Officer Richard Curtis, who was assigned to the Crime Scene Search Unit, was dispatched to an apartment complex after a search warrant had been obtained for Appellant’s vehicle. The car was found at the complex and the police impounded it. While examining the car, Curtis stated that he had trouble getting the driver-side door open; the door would open only about twelve inches. There was one license plate on the car, but it was not registered to the car.

Upchurch said that, in the days following McMillan’s death, she saw Appellant, and he and Kennedy were trying to stay separate from each other. She also stated that she heard Appellant discuss leaving town because he was on parole and he was afraid that the police would be looking for him.

On November 9, 2001, Officer Benjamin Jones was on patrol when he saw a car with a brake light out. He pulled over the car and asked for identification, but the driver had none. The driver gave his name as “Michael Smith.” Officer Kenneth Stack arrived on the scene after Jones had pulled over the car. Based on a photo that he had seen earlier that day, Stack recognized Appellant as the driver. According to Stack, when he showed the photo to Appellant, Appellant said, “You got me.”

According to Deputy Medical Examiner Daniel Konzelmann, McMillan’s body had two distinct stab wounds, one on the chest and one on the neck. The neck wound was not lethal because it did not cross any vital structures. The wound to the chest was lethal because it went into the heart. Konzelmann saw no defensive wounds on McMillan’s upper arms or hands and no signs indicating a prolonged struggle.

C. Analysis

The evidence clearly established that Aaron Kennedy, not Appellant, stabbed and killed Corey McMillan with a knife. Therefore, the evidence was legally insufficient to support Appellant’s conviction as a primary actor. See, e.g., Tippitt, 41 S.W.3d at 323. Thus, in finding Appellant guilty of murder, the jury necessarily concluded that Appellant was guilty as a party.

The Texas penal code states that “[a] person is criminally responsible as a party to an offense if the offense is committed by his own conduct, by the conduct of another for which he is criminally responsible, or by both.” Tex. Penal Code Ann. § 7.01(a). Criminal responsibility is defined several ways, one of which is that the defendant, “acting with intent to promote or assist the commission of the offense ... solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense.” Id. § 7.02(a)(2).

The abstract portion of the charge submitted to the jury stated the following, in relevant part:

All persons are parties to an offense who are guilty of acting together in the commission of the offense. A person is criminally responsible as a party to an offense if the offense is committed by his own conduct, by the conduct of another for whom he is criminally responsible, or by both.
A person is criminally responsible for an offense committed by the conduct of another if, acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense. Mere presence alone will not constitute one a party to an offense.

The application portion of the jury charge stated, in relevant part, that the jury was authorized to find Appellant guilty of murder if it found that

Aaron Kennedy did ... intentionally with the intent to cause serious bodily injury to Corey McMillan, commit an act clearly dangerous to human life, namely, to stab him with a knife, which caused the death of an individual, Corey McMillan, and you further find that the Defendant, William Matthew Schiffert, acted with intent to solicit, encourage, direct, aid, or attempt to aid Aaron Kennedy in the commission of the offense....

The abstract portion of the charge correctly stated that criminal responsibility requires both (1) acting with intent to promote or assist the commission of the offense and (2) soliciting, encouraging, directing, aiding, or attempting to aid the other person to commit the offense. See id. However, the application portion of the charge erroneously authorized conviction of Appellant as a party if the jury found only that he acted with intent to solicit, encourage, direct, aid, or attempt to aid Aaron Kennedy in the commission of the offense. In other words, the application portion of the charge required neither acting with intent to promote or assist the commission of the offense, nor soliciting, encouraging, directing, aiding, or attempting to aid Kennedy in the commission of the offense. Instead, it required only acting with intent to solicit, encourage, direct, aid, or attempting to aid Kennedy in the commission of the offense. This is contrary to the elements of the offense, as defined by statute. See id.

However, sufficiency of the evidence should be measured by the elements of the offense as defined by the hypothetically correct jury charge for the case. Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App.1997). This hypothetical charge accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s theories of liability, and adequately describes the particular offense for which the defendant was tried. Id.

The hypothetically correct jury charge would have properly authorized the jury to convict Appellant if it found that he acted with intent to promote or assist Aaron Kennedy in the stabbing death of Corey McMillan, and that he solicited, encouraged, directed, aided, or attempted to aid Kennedy in the stabbing death of McMillan. Using this approach, we find that the evidence is legally sufficient to support Appellant’s conviction.

Appellant was driving the car when he, Kennedy, and Upchurch arrived at the motel. According to a witness, Appellant seemed to be looking for someone as he drove through the parking lot. Appellant called McMillan from his car and told him, “I’m looking at your punk bitch now.” When he saw McMillan, he “gunned” the car. Appellant subsequently parked behind McMillan’s car, and then Kennedy jumped out of the car and began stabbing McMillan. The jury could rationally have inferred that Appellant’s focus was on McMillan, rather than getting Upchurch’s belongings, and that Appellant used what Upchurch conceded were “fighting words” toward McMillan. Moreover, a rational jury could conclude that by parking behind McMillan’s car, Appellant wanted to ensure that McMillan did not leave the area.

Given all this evidence, as well as the speed with which Kennedy jumped from Appellant’s car and began stabbing McMillan, a rational jury could conclude that Appellant acted with the intent to assist Kennedy in the stabbing of McMillan, and that he solicited, encouraged, directed, aided, or attempted to aid Kennedy in the stabbing of McMillan. Thus, we find that, viewing the evidence in the light most favorable to the verdict, a rational jury could have found beyond a reasonable doubt that Appellant was guilty of murder as a party. The legal-sufficiency portion of Appellant’s second point is overruled.

III. FACTUAL SUFFICIENCY

A. Standard of Review

In reviewing the factual sufficiency of the evidence to support a conviction, we are to view all the evidence, both for and against the finding, in a neutral light, favoring neither party. See Zuniga v. State, 144 S.W.3d 477, 481 (Tex.Crim.App.2004). The only question to be answered in a factual sufficiency review is whether, considering the evidence in a neutral light, the fact finder was rationally justified in finding guilt beyond a reasonable doubt. Id. at 484. There are two ways evidence may be factually insufficient: (1) the evidence supporting the verdict or judgment, considered by itself, is too weak to support the finding of guilt beyond a reasonable doubt; or (2) when there is evidence both supporting and contradicting the verdict or judgment, weighing all of the evidence, the contrary evidence is so strong that guilt cannot be proven beyond a reasonable doubt. Id. at 484-85. “This standard acknowledges that evidence of guilt can ‘preponderate’ in favor of conviction but still be insufficient to prove the elements of the crime beyond a reasonable doubt.” Id. at 485. Evidence supporting a guilty finding may legally support a rational jury’s conclusion, but nevertheless be so weak that it does not support the finding of guilt beyond a reasonable doubt. See id. In performing a factual sufficiency review, we are to give deference to the fact finder’s determinations, including determinations involving the credibility and demeanor of witnesses. Id. at 481; Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App.1997). We may not substitute our judgment for that of the fact finder. Zuniga, 144 S.W.3d at 482.

B. Vodochodsky v. State

Recently, the Court of Criminal Appeals held, in a capital murder case, that the evidence presented at trial was factually insufficient to support the jury’s verdict that the defendant was guilty as a party to the offense. Vodochodsky v. State, No. 74129, 2004 WL 840121, at *6-7, - S.W.3d - at -(Tex.Crim.App. Apr.21, 2004). Because that case also deals with party liability, a comparison between it and the instant case is useful in determining whether the evidence is factually sufficient to support Appellant’s liability as a party to an offense.

In that case, the primary actor, Jeremiah Engleton, ambushed and killed two sheriffs deputies and a state trooper before killing himself. Id. at *1, at-. The defendant, Engleton’s friend, was tried for and convicted of the capital murder of a peace officer who was acting in the lawful discharge of an official duty. Id.

The evidence indicated that Engleton, his wife Violet, her sister Sara, and Sara’s boyfriend, the defendant, lived together. Id. Following a deputy’s response to En-gleton’s violent behavior toward his wife one night, Engleton said to the defendant, “Do you remember what we’ve been talking about? I’m going to do it right now.” Id. at *2, at-. The defendant replied, “No, it’s not worth it.” Id. Engleton was subsequently arrested for his violent behavior and while in jail, he told one of his cellmates that “[tjhese motherfuckers don’t know what they got coming” and that it was going to make the front page. Id. While in jail, Engleton called the defendant and told him to make sure that En-gleton’s wife did not take his semiautomatic assault rifle or his semiautomatic pistol. Id. Engleton also told another cellmate that he had been arrested for domestic violence and that when he got out, he “had plans and planned to make some headlines.” Id. In another telephone conversation, Engleton asked the defendant to take care of his belongings, and he specifically mentioned the assault rife. Id. Engleton also told the defendant to bring $1,000.00 that Engleton had left him, to make his bad. Id.

After Engleton was freed on bail, the defendant accompanied Engleton to a gun shop where Engleton purchased several boxes of ammunition. Id. When Engleton and the defendant arrived home, no one else was there. Id. Sara subsequently called the house, and the defendant told her that Engleton had left. Id. Sara, Violet, and the defendant’s brother then drove toward the residence. Id. When they arrived, they saw Engleton’s vehicle and continued on to a grocery store in Pleasanton. Id. Sara then called the defendant again. Id. At first, the defendant acted like he was angry because they had not shown up, but then he dropped his voice to a whisper and told Sara not to come home. Id. Instead, he told her that he would meet her at his brother’s house later. Id.

Subsequently, while the defendant was still at the house, a bogus 911 call was placed to the County Sheriffs Office from the house. Id. at *3, at-. Over the next several hours, Engleton killed two officers who had been dispatched to his residence, took one of the officers’ guns, and wounded several other officers. Id. Before he could be taken into custody, he killed himself. Id. at *4, at -. Just prior to the killings, a neighbor saw the defendant taking some of his belongings from the house to his vehicle. Id. at *3, at

Two days later, the defendant talked to a neighbor about the killings, telling him that he had bailed Engleton out of jail “[t]o do this.” Id. at *4, at-. The defendant also told the neighbor that the night that Engleton was initially arrested for assaulting his wife, Engleton wanted to kill the officer who came to arrest him, but the defendant told Engleton, “No, ... we ain’t got nothing planned yet.” Id. Finally, the defendant also told his neighbor that he knew that Engleton had gone “over the edge” when he took the deputy’s gun. Id.

Although the Court of Criminal Appeals concluded that the evidence was legally sufficient, it held that it was factually insufficient to support the defendant’s conviction as a party. Id. at *5-6, at- -. The court noted that when Engle-ton expressed a desire to “do it right now” and the defendant told him they did not yet have a plan, neither man specifically mentioned killing a peace officer. Id. at *6, at-. Also, when the defendant stated that he bailed Engleton out of jail “to do this,” he did not specifically state that he bailed him out as part of a- plan to kill police officers. Id. Although the defendant removed belongings from the house, the court pointed out that there was no proof that he did so as part of a murderous plot. Id. Finally, the court pointed out the defendant’s comment that Engleton had “gone over the edge” when he took the deputy’s gun could just as reasonably have been a speculative comment, rather than one indicating that he had witnessed the officer’s murder. Id.

Thus, according to the court, none of the evidence presented at trial necessarily suggested that the defendant acted with intent to promote or assist Engleton. Id. None of his statements directly referred to killing police officers, they were devoid of information on the details of the alleged murder plot, and there was no other information in the record suggesting that the defendant was planning the event with En-gleton. Id.

Also, other evidence suggested that the defendant was not working with Engleton. Id. His whispered warning to his wife could indicate that while he may have known of Engleton’s plan, he was not a party to it. Id. He did not participate in the purchase of ammunition, and there was no evidence that the defendant actually did any affirmative act to assist Engleton with the plan. Id.

C. Analysis

As in Vodochodsky, all of the evidence in the instant case detailed above, that could legally support a rational jury’s conclusion, is nevertheless so weak when viewed in a neutral light that our confidence in the verdict is undermined. Here, there was no evidence of any kind of conversations or planning on the part of Appellant and Kennedy. The witness who saw Kennedy stab McMillan stated that she did not know if Appellant said anything to Kennedy just before Kennedy got out of the car and began stabbing McMillan. Moreover, there was no evidence that Appellant knew that Kennedy intended to stab McMillan or, indeed, that Kennedy even had a knife. The testimony of the witness that Appellant looked at her during the stabbing indicates that he may not even have been aware that Kennedy was stabbing McMillan. Finally, Appellant’s attempts to avoid the police do not necessarily suggest that he had acted with intent to promote or assist Kennedy. After the stabbing, Appellant expressed fear that the police would be looking for him because he was on parole and certainly knew that the police would want to speak with him about what happened.

Thus, we conclude that the proof of Appellant’s guilt as a party is too weak to support the finding of guilt beyond a reasonable doubt. The factual-sufficiency portion of Appellant’s second point is sustained.

IV. CONCLUSION

Because we conclude that the evidence is factually insufficient to support Appellant’s conviction, we reverse the judgment of the trial court and remand this cause for a new trial. See Zuniga, 144 S.W.3d at 482; Clewis v. State, 922 S.W.2d 126, 135 (Tex.Crim.App.1996).

      . In light of our reversal of this cause for factual insufficiency, we find it unnecessary to address Appellant's remaining points. See Tex.R.App. P. 47.1.


source: Caselaw Access Project

author: DAVID PURYEAR, Justice.

license: Public Domain

text:
    Edward LAMBRIGHT, Richard Moore, Eric Kimball, Terry Ricks, and Calhoun County Shrimpers, Appellants, v. TEXAS PARKS AND WILDLIFE DEPARTMENT and Texas Parks and Wildlife Commission, Appellees.
    No. 03-03-00748-CV.
    Court of Appeals of Texas, Austin.
    Jan. 27, 2005.

      James B. Blackburn Jr., Blackburn & Carter, P.C., Houston, for Appellants.
    Anthony C. Grigsby, Cynthia Woelk, Nancy Elizabeth Olinger, Asst. Attys. Gen., Natural Resources Division, Austin, for Appellees.
    Before Chief Justice LAW, Justices PATTERSON and PURYEAR.
   OPINION

DAVID PURYEAR, Justice.

In this appeal, we consider the validity of one newly adopted rule and two amended rules promulgated by appellees, Texas Parks and Wildlife Department and Texas Parks and Wildlife Commission (collectively, TPW). Appellants Edward Lambright, Richard Moore, Eric Kimball, Terry Ricks, and the Calhoun County Shrimpers (collectively, the Shrimpers) sued to invalidate the rules. The parties filed cross motions for summary judgment and the court decided in favor of TPW and against the Shrimpers, who then brought this appeal. We will affirm the judgment of the district court.

BACKGROUND

Appellants are Texas bay shrimpers licensed by TPW to catch shrimp along the Texas gulf coast. In 200Ó, TPW amended two existing rules and proposed one new rule shortening the fall shrimping season, expanding nursery areas closed to shrimping and requiring shrimpers to install “by-catch reduction devices” (BRDs) in their shrimp nets. See 25 Tex. Reg. 6670-6686 (2000), adopted 25 Tex. Reg. 10157 (2000) (codified at 31 Tex. Admin. Code §§ 58.102(3), (16) (2002) (nursery areas); 58.160(e) (2002) (BRDs); 58.163(c)(1) (2002) (fall open season)).

TPW justified the restrictions on bay shrimping on several bases. It noted that shrimp were “a critical part of healthy coastal ecosystems in Texas [and] ... an important food source for game fish that support a $2 billion sport fishery.” 25 Tex. Reg. 6670. “Three principal species, brown shrimp, pink shrimp, and white shrimp, are the basis for Texas’ most valuable commercial fishery,” and “a decline of 27 years or longer of catch per unit effort (CPUE)[] in the shrimp fishery indicates that biological overfishing of shrimp populations is occurring.” Id. The legislature directed TPW to achieve optimum yield, that is, the amount of shrimp the shrimp fishery could produce on a continuing basis to gain maximum economic benefits, controlling for relevant social and ecological factors. Id. If shrimp populations are ov-erfished, optimum yield cannot be achieved. Id. TPW’s 1989 Shrimp Fishery Management Plan documented the overfishing of Texas shrimp populations; increased effort only resulted in the harvest of more shrimp at smaller sizes, giving rise to concerns for the long-term viability of shrimp stocks. Id.

Beginning in January of 1999, TPW conducted an 18-month-long “detailed re-examination” of the long-term trends in the shrimp fishery and determined that overfishing impacts all three shrimp species and that the harvest of juvenile shrimp had increased by over 400 percent since 1972. Id. According to TPW, the National Fisheries Service concurred with its conclusion that the shrimp industry in Texas suffered “growth overfishing,” which meant that shrimp were harvested before they could mature, reducing the potential for escapement to the gulf to spawn. Id. at 6670-71. “The resulting reduction of adult shrimp entering the spawning group in the Gulf threatens the sustainability of the shrimp fishery” and could lead to more serious biological problems. Id. at 6671. TPW based its proposed rules upon these investigations and findings. Id. at 6670.

After TPW adopted the rules, the Shrimpers sued for declaratory relief, see Tex. Gov’t Code Ann. § 2001.038 (West 2000), seeking a declaration that: (1) the rules were invalid because they were adopted without a reasoned justification, id. § 2001.033, .035, (2) the rules were invalid because TPW failed to conduct a regulatory-impact analysis, id. § 2001.0225(a)(4), (3) the rules were inconsistent with TPW’s enabling statute, Tex. Parks & Wild.Code Ann. § 77.007 (West 2002), and (4) the rules deprived them of due process. They also sought to enjoin enforcement of the rules. See Tex. Civ. Prac. & Rem.Code Ann § 65.011 (West 1997).

TPW twice moved for partial summary judgment. See Tex.R. Civ. P. 166a(c). The district court granted both the first motion, which addressed the Shrimpers’ first three claims without specifying grounds, and the second motion, which addressed the fourth claim. The district court also denied the Shrimpers’ two motions for summary judgment based on the claim of lack of reasoned justification and based on the claim that TPW was arbitrary and capricious in making these rules. The Shrimpers appeal the denial of their motions for summary judgment in two issues. They contend that TPW adopted its rules without a reasoned justification because (1) it did not comply with section 77.007(f) of the parks and wildlife code, which prohibits TPW from promulgating rules that are inconsistent with TPW’s fish management plan, and (2) it did not comply with section 77.007(b) of the parks and wildlife code, which sets out a list of factors TPW must consider when promulgating rules governing shrimping.

DISCUSSION

Standard of review

To be entitled to summary judgment, the movant must show that it is entitled to judgment as a matter of law. Sergeant Enters., Inc. v. Strayhorn, 112 S.W.3d 241, 244 (Tex.App.-Austin 2003, no pet.). When both parties move for summary judgment and the trial court grants one motion and denies the other, we review the summary judgment evidence presented by both sides and determine all the questions presented and render the judgment the trial court should have rendered. Commissioners Ct. v. Agan, 940 S.W.2d 77, 81 (Tex.1997); Lower Laguna Madre Found. v. Texas Natural Res. Conservation Comm’n, 4 S.W.3d 419, 423 (Tex.App.-Austin 1999, no pet.). We review the granting of a summary judgment de novo. Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex.1994). Because the district court did not state the basis for granting summary judgment in favor of TPW, the Shrimpers must negate all grounds that support the judgment. State Farm Fire & Cas. Co. v. S.S. & G.W., 858 S.W.2d 374, 381 (Tex.1993); Carr v. Brasher, 776 S.W.2d 567, 569 (Tex.1989). If the appellants fail to negate each ground on which the judgment may have been rendered, we must uphold the summary judgment. Carr, 776 S.W.2d at 569.

Reasoned justification

The Administrative Procedures Act provides for “notice-and-comment” rulemak-ing by agencies. See Tex. Gov’t Code Ann. §§ 2001.001, .021, .034, .037 (West 2000 & Supp.2004 — 05). In order to adopt a rule under that system, an agency must provide: (1) public notice; (2) an opportunity for and full consideration of comments; and (3) a reasoned justification for the rule. See id. §§ 2001.023, .029, .033; McCarty v. Texas Parks & Wildlife Dep’t, 919 S.W.2d 853, 854 (Tex.App.-Austin 1996, no writ).

The Shrimpers first argue that the rules lack a reasoned justification because TPW failed to consider factors that the legislature intended it to consider when it shortened the fall shrimping season, expanded nursery and bait bays closed to shrimpers, and required them to install and use BRDs. See Tex. Parks & Wild.Code Ann. § 77.007(b) (West 2002).

To satisfy the reasoned justification requirement, the order adopting the rules must explain how and why TPW reached its conclusion. See Tex. Gov’t Code Ann. § 2001.033; National Ass’n of Indep. Insurers v. Texas Dep’t of Ins., 925 S.W.2d 667, 669 (Tex.1996). A reviewing court must confine its search for a reasoned justification to the four corners of the order finally adopting the rule, and the agency must provide a reasoned justification for the rule as a whole, not clause by clause. Reliant Energy, Inc. v. Public Util. Comm’n of Tex., 62 S.W.3d 833, 840 (Tex.App.-Austin 2001, no pet.). That reasoned justification must include (1) a summary of the comments from interested persons; (2) a summary of the factual basis for the rule; and (3) the reasons why TPW disagreed with a party’s comments. See Tex. Gov’t Code Ann. § 2001.033; Lower Laguna Madre Found., 4 S.W.3d at 425. An order demonstrating “in a relatively clear and logical fashion that the rule is a reasonable means to a logical objective” substantially complies with the reasoned justification requirement. Tex. Gov’t Code Ann. § 2001.035(c) (2000). The order must accomplish the legislative objectives underlying the reasoned justifieation requirement: to give notice of factual, policy, and legal bases for the rule as adopted by the agency, in light of all the evidence it gathered. Reliant Energy, Inc., 62 S.W.3d at 841. A rule not adopted in substantial compliance with the reasoned justification requirement is voidable. Tex. Gov’t Code Ann. § 2001.035(a).

We review a challenge to the reasoned justification requirement using an “arbitrary and capricious” standard and not presuming that facts exist to support the agency’s order. Reliant Energy, Inc., 62 S.W.3d at 841 (citing Texas Hosp. Ass’n v. Texas Workers’ Comp. Comm’n, 911 S.W.2d 884, 887 (Tex.App.-Austin 1995, writ denied)). In applying the arbitrary and capricious test to agency rulemaking, we examine whether the agency’s explanation of the facts and policy concerns it relied on in adopting the rule demonstrates that the agency considered all relevant factors and engaged in reasoned deci-sionmaking. Id. (citing Railroad Comm’n v. ARCO Oil & Gas Co., 876 S.W.2d 473, 491 (Tex.App.-Austin 1994, writ denied)). An agency acts arbitrarily if in making a decision it: (1) omits from its consideration a factor that the legislature intended the agency to consider in the circumstances; (2) includes in its consideration an irrelevant factor; or (3) reaches a completely unreasonable result after weighing only relevant factors. Id. (citing Statewide Convoy Transp. Inc. v. Railroad Comm’n, 753 S.W.2d 800, 804 (Tex.App.-Austin 1988, no writ)).

Measures based on the best scientific evidence available

The Shrimpers argue that TPW omitted from its consideration factors that the legislature intended for TPW to consider. They contend that rule 58.163(c), shortening the shrimping season by fifteen days in December; rules 58.102(3)(A) & (B), (16)(A) & (B), increasing nursery closures and bait bay designations; and rule 58.160(e), requiring BRDs, do not comply with section 77.007(b)(2) because TPW did not consider the best scientific data available before making these changes. See Tex. Parks . & Wild.Code Ann. § 77.007(b)(2).

We disagree. The record supports TPW’s argument that it based the rules on the best scientific information available. The text of the rules specifically stated that the purpose of the amendments was to address the overfishing of all shrimp populations and cited fifty-seven treatises, studies, and other data in support of the rules. 25 Tex. Reg. 10159-61.

The Shrimpers argue that there is no data showing an actual decline in the shrimp population, that the bay shrimp fishery is healthy and not in danger, and that, because this rule targets growth overfishing, a closure in December, when the white shrimp in the bays are mature, is irrational and designed to regulate the bay shrimpers out of existence.

TPW explained clearly and logically how the rules were a reasonable means to its objective of preserving the shrimp fishery, using the best scientific evidence available. It noted the long-term downward trend in the size of harvested shrimp and the long-term downward trend in CPUE. 25 Tex. Reg. 10159-61. It considered submissions by Dr. Adolfo Gracia, Director, Instituto de Ciencias del Mary Limnología, Univer-sidad Nacional Autonoma de Mexico, an expert who explained the connection between growth and recruitment overfishing and the collapse of fisheries in the Gulf of Mexico in white and pink shrimp populations. Id. at 10159. He demonstrated that increased shrimping of both juvenile and adult shrimp had caused shrimp fishery collapses in Mexico. Id. The National Marine Fisheries Service provided additional data and concurred that a precautionary approach was necessary. Id. Closing the bay earlier, TPW observed, would allow more mature shrimp to escape to spawn and prevent a reduction in adult spawners from threatening the sustainability of the shrimp fishery. Id. at 10158. TPW relied on such information in setting the end of the season and in enlarging the areas prohibiting shrimping in order to limit the overfishing of shrimp.

The Shrimpers protest that there is no scientific basis for the new designation of nursery areas and bait bays because there is no data indicating that such areas qualify as nurseries under TPW’s Shrimp Fishery Management Plan’s (SFMP) use of the term “nursery” or that designation of additional nursery areas would achieve TPW’s goal of promoting efficiency by reducing bycatch and habitat destruction. The SFMP Source Document uses the term “nursery” to describe an area less than 0.9 meters deep that has abundant detritus or vegetation. The question here is whether TPW used the best scientific evidence available to reach its decision designating additional nursery areas and closing them to shrimping. See Tex. Parks & Wild.Code Ann. § 77.007(b)(2). TPW need not prove that the closed areas are less than 0.9 meters deep and have detritus or vegetation in order to show a reasoned justification of its decision to close them as nurseries, nor need it specifically quantify the reduction in bycatch and habitat destruction in order to show it considered the best scientific evidence available in deciding to designate new nursery areas.

TPW considered ample scientific data indicating that a reduction in shrimping activity in general would promote the health of the shrimp fishery by reducing long-term overfishing trends, as discussed above. Scientific data showing that shrimpers were catching more juvenile shrimp indicated overfishing. 25 Tex. Reg. 10158-59. Specifically, the expansion of nursery and bait bay areas was designed to address growth overfishing, defer harvest of smaller shrimp and allow them to mature, and protect the environment and biodiversity by reducing bycatch and habitat destruction, based on current nursery monitoring data. Id. at 10170. TPW relied on expert opinions from Dr. Gracia and other scientific reports in determining that extending the nurseries and bait bays would increase escapement and increase spawning potential. Id. at 10159. The data showed that closing nursery areas would allow more shrimp to grow and escape to spawn, and that the nursery designation would protect the habitat, shrimp, and other species. See id. at 10167. These rules were designed to defer harvest of shrimp until they were more mature, creating a sustainable shrimp fishery by reversing the growth overfishing trend observable from the available data and preventing it from becoming a recruitment problem. Id. at 10164.

The Shrimpers also argue that TPW’s proffered scientific justification of increasing efficiency in the use of shrimp resources by reducing bycatch of finfish and invertebrates is really a goal and not seien-tifie data. See 25 Tex. Reg. 10159. TPW provided research and documentation that shrimping reduces biodiversity by altering the habitat and through bycatch, and it follows that a reduction in shrimping in certain areas would reduce its ill effects; “elimination of shrimping efforts in these areas should result in greater potential escapement of shrimp to the Gulf, elimination of bycatch in these areas, and elimination of trawling impacts on the nursery habitat.” Id. at 10159-10161. Thus, TPW did not act arbitrarily by failing to base its nursery designations on the best scientific information available. See Reliant Energy, Inc., 62 S.W.3d at 841.

The Shrimpers also argue that the BRD requirements were not based on the best scientific information available because BRDs are used to protect other species, not to reduce overfishing of shrimp. They contend that the rule is arbitrary and capricious because it is designed to protect other fish species from shrimp nets. They assert that it therefore does not comply with the requirement that TPW predicate the adoption of a rule only on the best scientific data available. Tex. Parks & Wild.Code Ann. § 77.007(b)(2). This is a non-sequitur. Although the BRDs are primarily intended to reduce bycatch and not the shrimp harvest, the record supports TPW’s argument that it relied on the best scientific evidence available in determining whether to require BRDs.

Accordingly, TPW does not attempt to support this rule with scientific data connecting the necessity for BRDs with the preservation of shrimp, but instead argues that the effect of shrimping on other marine life is a valid consideration for TPW. We agree. In applying an “arbitrary and capricious” test to agency rulemaking, we examine whether the agency’s explanation of the facts and policy concerns relied on in adopting the rule demonstrates that it considered all factors relevant to the objectives of the agency’s delegated rulemak-ing authority and engaged in reasoned decision making. ARCO Oil & Gas Co., 876 S.W.2d at 491.

TPW’s enabling statute gives it regulatory power over “game, fish, oysters, and marine life.” Tex. Parks & Wild.Code Ann. § 12.001 (West 2002). Because TPW is authorized to regulate all aquatic life, its concern for the effect of shrimping on other aquatic life was properly addressed by rule. TPW noted that shrimping damages the habitat supporting other sea life, like turtles and finfish. 25 Tex. Reg. 10159. TPW’s own tests and data as well as other expert studies indicated that on average four pounds of bycatch are landed with every pound of shrimp taken in the bays and that eighty-six percent of sea turtle mortalities attributed to humans are caused by shrimp trawling. Id. at 10159, 10160, 10162. The National Marine Fisheries Service recommends BRDs to reduce this wasted bycatch; BRD use is required in federal waters. Id. at 10162. Furthermore, in its rules TPW cited multiple studies explaining how BRDs reduce bycatch mortality and increase habitat biodiversity and complexity. Id. at 10159. There is no merit to the Shrimpers’ argument that TPW neglected to examine the best scientific evidence available in determining that requiring BRDs was an appropriate response to a real problem in efficient utilization of shrimp resources.

TPW promulgated its rules shortening the fall season, expanding nursery areas and bait bays, and requiring BRDs based on its own research, numerous studies, and expert recommendations. We cannot say that TPW acted arbitrarily by neglecting to consider the best scientific evidence available in promulgating its rules. Given TPW’s consideration of the scientific evidence, the challenged amendments constitute a reasonable means to a logical objective and TPW has therefore substantially complied with the reasoned justification requirement in this respect. See Tex. Gov’t Code Ann. § 2001.035(c); ARCO Oil & Gas Co., 876 S.W.2d at 491; Reliant Energy, Inc., 62 S.W.3d at 841.

Economic allocation and efficiency

The Shrimpers also contend that rule 58.163(c) (shortening the fall open season) and rule 58.160(e) (requiring BRDs) lack a reasoned justification because both fail to comply with section 77.007(b)(4), which requires TPW to consider “measures, where practicable, that will promote efficiency in utilizing shrimp resources, except that economic allocation may not be the sole purpose of the measures.” Tex. Parks & Wild.Code Ann. 77.007(b)(4).

The shortened season, the Shrimpers argue, is pure economic allocation, which is prohibited by the code. See id. The Shrimpers reason that, because the shrimp fishery in the bay is healthy, this rule simply removes mature white shrimp from the nets of bay shrimpers and allows them to be caught by other shrimpers in the gulf. In short, they contend that TPW has singled out their industry for elimination and intends to regulate them out of business.

However, TPW regulates both the gulf shrimpers and bay shrimpers. See, e.g., 25 Tex. Reg. 6683 (2000), adopted 25 Tex. Reg. 10157 (2000) (codified, at 31 Tex. Admin. Code § 58.161(d)(4)) (changing last day of gulf fall shrimping season from December 15 to November 30). Further, TPW’s rule amendments list several purposes for the rules other than economic allocation. As discussed in detail above, TPW included in its rules extensive discussions of overfishing, environmental concerns, and the long-term viability of the shrimp fishery and habitat. CPUE measurements and observations by TPW and others indicate that the shrimp fishery is at risk of collapse if current trends continue. See, e.g., 25 Tex. Reg. 10158. The extended seasonal closure allows more shrimp to escape and spawn and is directed to prevent recruitment overfishing, not to favor gulf shrimpers over bay shrimpers. The reasoned justification TPW provided in the rules shows that economic allocation was not the sole purpose of these measures.

The Shrimpers claim that the BRD requirement also fails to satisfy section 77.007(b)(4) because TPW failed to demonstrate how BRDs promote efficiency in utilizing shrimp resources. TPW’s response to the Shrimpers’ comment, they argue, amounted to a mere conclusion that BRDs would promote efficiency. To the contrary, the Texas Register reveals that TPW considered whether BRDs were an appropriate response to the staggering levels of bycatch and waste associated with shrimping efforts. See, e.g., 25 Tex. Reg. 10159 (explaining how BRDs decrease wasted by catch). TPW commented that BRDs have been shown to reduce fish mortality for recreationally caught fish, juvenile finfish and invertebrates, and to enhance the overall viability of the ecosystem. Id. at 10159. The measures were designed to increase efficiency by reducing bycatch while maintaining the shrimp catch within 3% of current levels. Id. at 10160. In explaining that bycatch presented a problem and how BRDs reduce bycatch, TPW demonstrated that it considered practicable measures to promote efficiency in utilizing shrimp resources and substantially complied with the reasoned justification requirement by considering the factors the legislature mandated. See Tex. Parks & Wild.Code Ann. 77.007(b)(4) (West 2002); Reliant Energy, Inc., 62 S.W.3d at 841. The BRD requirement is a reasonable means to a logical objective. See Tex. Gov’t Code Ann. § 2001.035(c).

We conclude that TPW provided a reasoned justification for its rule amendments and complied with the parks and wildlife code section 77.007(b).

Shrimp Fishery Management Plan

The Shrimpers next contend that the rules are inconsistent with the mandate of the Parks and Wildlife Department’s fish management plan. See Tex. Parks & Wild.Code Ann. § 77.007(f). The parks and wildlife code gives TPW the authority to promulgate rules only after it has approved and adopted a fish management plan, and any rales it creates must be consistent with that plan. Id. We treat the Shrimpers’ argument that the rules must be consistent with the SFMP as a protest that TPW exceeded its authority by promulgating a rule that failed to be consistent with the SFMP. See id.

The legislature may delegate its power to administrative agencies established to carry out legislative purposes. Edgewood Indep. Sch. Dist. v. Meno, 917 S.W.2d 717, 740 (Tex.1995). Administrative agencies only have those powers expressly or impliedly conferred by the legislature. State v. Pub. Util. Comm’n of Tex., 883 S.W.2d 190, 194 (Tex 1994). An agency can only adopt rules that are authorized by and consistent with its statutory authority. Railroad Comm’n of Tex. v. Lone Star Gas Co., 844 S.W.2d 679, 685 (Tex.1992). The determining factor in whether a particular administrative agency has exceeded its rulemaking authority is whether the rules are “in harmony with the general objectives of the legislation involved.” Id.; Al Boenker Ins. Agency, Inc. v. Texas Fair Plan Assoc., 2004 WL 1686598, at *4 (Tex.App.-Austin July 29, 2004, pet. denied).

Whether the rules are “in harmony” with the general objectives of the legislation involved is a question of law determined through statutory construction. Id. at *3-4. We review matters of statutory construction de novo. City of San Antonio v. City of Boerne, 111 S.W.3d 22, 25 (Tex.2003). In construing a statute, our objective is to determine and give effect to the legislature’s intent. Id. If a statute’s meaning is unambiguous, we look to the plain meaning of the statute. State v. Gonzalez, 82 S.W.3d 322, 327 (Tex.2002). The plain meaning of “consistent” is agreeing, compatible, and not contradictory. Webster’s Third New International Dictionary 484 (1986). Thus, the rules are valid if they are compatible with and not contradictory to the SFMP.

The rules at issue are presumed valid and the Shrimpers bear the burden of showing that they are incompatible with the SFMP. See Chrysler Motors Corp. v. Texas Motor Vehicle Comm’n, 846 S.W.2d 139, 141 (Tex.App.-Austin 1993, no writ). Courts will uphold “legislative” administrative rules if they are reasonable. Bullock v. Hewlett-Packard Co., 628 S.W.2d 754, 756 (Tex.1982). The rules need not be, in the court’s opinion, wise, desirable, or necessary. Id. We now inquire whether the rules are consistent with the SFMP.

In interpreting the SFMP, we treat it as an administrative rule construed in the same way as statutes, giving the agency interpretation of its own rule’s requirements the deference it is entitled to receive from the courts unless it is plainly erroneous. See Public Util. Comm’n v. Gulf States Utils. Co., 809 S.W.2d 201, 207 (Tex.1991); Lewis v. Jacksonville Bldg. & Loan Ass’n, 540 S.W.2d 307, 310-12 (Tex.1976); Envoy Med. Sys., L.L.C. v. State, 108 S.W.3d 333, 337 (Tex.App.-Austin 2003, no pet.). When there is vagueness, ambiguity, or room for policy determinations we defer to an agency’s interpretation unless it is plainly inconsistent with the language of the rule. BFI Waste Sys. of N. Am. v. Martinez Envtl. Group, 93 S.W.3d 570, 575 (Tex.App.-Austin 2002, pet. denied).

The SFMP recommends that closures and time restrictions continue to be based upon the life history of shrimp and defines shrimp nurseries based on the characteristics of the water environment and the life cycle of the shrimp. SFMP at 52; SFMP Source Document at 62. The Shrimpers contend that the rules did not take into account the character of the ecosystem or the life cycle of the shrimp. The Shrimpers first challenge the shortened season by pointing to provisions of the SFMP stating that area closures and time period restrictions should be the primary shrimp management tools, and that areas closed to shrimping should continue to be based on the life history of shrimp, especially as it relates to growth. SFMP at 52.

The Shrimpers misconstrue the SFMP by arguing that all restrictions on the length of shrimp seasons must be related to the life history of shrimp. The passage the Shrimpers rely upon recommends that closures of particular areas be based upon the life history of shrimp; it does not address limits on the shrimping season in general. See id. However, TPW did justify the shortened season on numerous bases, which included the life history of shrimp. The rules as a whole are based on data showing overfishing and failure to achieve optimum yield, as required by the SFMP, and the regulatory measures chosen reflect the SFMP’s recommendations; the primary management tools are time and area closures and gear requirements. 25 Tex. Reg. 10170. TPW noted that the shortened season would defer harvest of smaller shrimp, allowing them to be harvested later in their life cycle, when they have had an opportunity to grow, mature and spawn. Id, at 10159. The continuing increase in the harvest of small shrimp is an ecologically unsustainable trend precisely because it interferes with the life cycles of shrimp. See id. at 10163. The seasonal closure would limit trawling and thereby reduce damage to the habitats that juvenile shrimp need during a portion of their life history; this allows juvenile shrimp to survive the fall open season and migrate over the winter months. Id. at 10159-61.

Citing the SFMP, the Shrimpers claim that nursery areas must be less than .9 meters deep and contain abundant detritus or vegetation, and that the rule expanding designated nurseries is inconsistent with the SFMP because it includes areas that are not really “nurseries.” See SFMP Source Document at 7. Although the Shrimpers cite an SFMP reference to waters less than .9 meters deep in discussing the needs of postlarval shrimp, this is not even a purported definition of permissible designated nursery areas, and it does not purport to govern TPW’s authority to make closures. See id. What the SFMP does require regarding nursery designations is that areas closed to shrimping continue to be based on the life history of shrimp, especially as related to growth. SFMP at 52.

TPW expanded the designated nursery areas to prevent premature harvesting of juvenile shrimp. 25 Tex. Reg. 10167-68. TPW reasoned that “inshore closure or protection of juveniles seems to be more effective for allowing a stock to recover and for increasing spawning potential.” Id. at 10158. Providing protection to shrimp in the new nursery areas would allow them to grow before being caught and increase the amount of shrimp available in open areas and the probability of escapement to the gulf to spawn. Id. at 10159. Consequently, we conclude that the nursery closures to protect juvenile shrimp are rationally based upon the life history of shrimp, especially as relates to growth, and are consistent with the SFMP regardless of whether the new nursery areas are .9 m deep or contain vegetation or detritus.

We hold that the rule amendments complied with section § 77.007(f) requiring consistency with the SFMP and that the Shrimpers have not shown them to be invalid. See Tex. Parks & Wild.Code Ann. § 77.007(f); Chrysler Motors Corp., 846 S.W.2d at 141.

CONCLUSION

Because TPW provided a reasoned justification for its rules and because the rules were not inconsistent with the SFMP, we hold that the district court properly granted summary judgment in favor of TPW. We affirm the district court’s judgment.

      . The Texas Parks and Wildlife Department is a state agency operating “under the policy direction of the Parks and Wildlife Commission.” Tex. Parks & Wild.Code Ann. § 11.011 (West 2002).

      . “Bycatch” refers to unwanted catch of non-target organisms. A bycatch reduction device is a device installed in a shrimp net that allows other species to escape the net without injury. See 25 Tex. Reg. 10172-73 (October 6, 2000).

      .Catch per unit effort (CPUE) measures the amount of shrimp caught for a given amount of energy expended. A CPUE decline means fewer shrimp are caught given the same amount of effort. 25 Tex. Reg. 10164.

      . Section 77.007(b) sets out six factors the legislature intended for TPW to consider when adopting a rule:
      (1) measures to prevent overfishing while achieving, on a continuing basis, the optimum yield for the fishery;
      (2) measures based on the best scientific information available;
      (3) measures to manage shrimp throughout their range;
      (4) measures, where practicable, that will promote efficiency in utilizing shrimp resources, except that economic allocation may not be the sole purpose of the measures;
      (5) measures, where practicable, that will minimize cost and avoid unnecessary duplication in their administration; and
      (6) measures which will enhance enforcement.
      Tex. Parks & Wild.Code Ann. § 77.007(b) (West 2002).

      . Part of the Shrimpers’ argument centers on TPW's alleged failure to relate the rules individually to the life cycle of white shrimp. TPW claims that "growth overfishing,” or premature harvesting of small, young shrimp, necessitates a shortened season although mature white shrimp are the only shrimp migrating from the bays to the gulf during December. The Shrimpers argue that TPW has only shown that brown shrimp suffer growth overfishing, that “recruitment overfishing,” which impairs the stock by depleting the numbers of spawning shrimp to levels where numbers of offspring decline, must be the justification for any closure at the end of the shrimp maturity cycle and that TPW had failed to connect its rules to any risk of overfishing of white shrimp. However, TWP considered white shrimps’ cycles. It cited an expert assessment that brown and white shrimp were experiencing growth overfishing and noted that shortening the shrimping seasons would allow more shrimp, including white shrimp, to escape to the gulf to spawn and that continued high rates of fishing mortality, including that occurring at the end of the season, could reduce spawning stock size to levels risking recruitment overfishing. 25 Tex. Reg. 10158. According to TPW, because all three species of bay shrimp can be harvested during the same season and even by the same boat, the rules were directed toward the fleet and were not species-specific. Id. at 10164.

      . The Shrimpers argue that CPUE is an economic concept, not a scientific principle. However, the CPUE data can also indicate the biological health of a fishery. See 25 Tex. Reg. 10159-61.

      . This proposition was based on data gathered in the bays by TPW monitoring efforts.

      . In proposing the amendment, TPW noted that the net effect of the changes to paragraphs (3) and (16) would be to “increase the amount of nursery area closed to shrimping from a previous total of 12% of the bay waters coastwide to 18%” and would "increase the bait bay area from a previous total of 35% of the bay waters to 39%.” 25 Tex. Reg. 6673.

      . Terry J. Cody et ah, Coastal Fisheries Branch, Texas Parks and Wildlife Dep’t, Texas Shrimp Fishery Management Plan: Fishery Management Plan Series Number 2 (1989). (SFMP).

      . Terry J. Cody et al., Coastal Fisheries Branch, Texas Parks and Wildlife Dep't, Texas Shrimp Fishery Management Plan: Fishery Management Plan Series Number 2: Source Document 7 (1989). (SFMP Source Document).

      . In fact, although current nursery areas are generally shallow with dense vegetation or detritus, the term is also used to describe protected bay areas where shrimping is prohibited in order to allow shrimp to mature before being caught. See, e.g., 25 Tex. Reg. 10170.

      . Chapter 77 requires TPW to study "the status of marine resources and habitats affected by shrimping” and consider measures that will "prevent overfishing while achieving, on a continuing basis, the optimum yield for the fishery, ” while promoting "efficiency in utilizing shrimp resources.” Tex. Parks & Wild. Code Ann. § 77.005(a)(4) (West 2002). Chapter 61 authorizes TPW to "regulate the means, methods, and places in which it is lawful to hunt, take, or possess ... aquatic animal life.” Id. § 61.052 (West 2002). We construe the provisions of chapters 61 and 77 in pari materia to give full effect to the intent of the legislature. Lenhard v. Butler, 745 S.W.2d 101, 105 (Tex.App.-Fort Worth 1988, writ denied) (citing Trinity Universal Ins. Co. v. McLaughlin, 373 S.W.2d 66, 69 (Tex.Civ.App.-Austin 1963, writ ref'd n.r.e.)); see also Norman J. Singer, Sutherland Statutory Construction §§ 77:1, 77:6 (6th ed.2003) (noting that laws providing for conservation of natural resources should be liberally construed and that environmental statutes are to be read in pari materia).

      . This totals "about 2 billion organisms” captured but "discarded as bycatch each year during commercial bay shrimping activities.” 25 Tex. Reg. 10159.

      . The Shrimpers appear to conflate their arguments about statutory authority and reasoned justification when, in their brief, they state that, by promulgating rules that were inconsistent with the SFMP, TPW acted arbitrarily and capriciously by ignoring a factor that the legislature intended it to consider and failed to offer a reasoned justification for its rules. The gist of the Shrimpers' argument is that the rules were not consistent with the SFMP as required by the parks & wildlife code section 77.007(f). They do not show that the legislature included the SFMP in the list of factors TPW must consider in promulgating a rule; these six factors are listed in the Parks and Wildlife Code section 77.007(b), which does not refer to the SFMP. Therefore, the rules’ alleged inconsistency with the SFMP cannot show that TPW acted arbitrarily and capriciously in omitting a factor the legislature intended it to consider. See Reliant Energy, Inc. v. Public Util. Comm'n of Tex., 62 S.W.3d 833, 841 (Tex.App.-Austin 2001, no pet.). Likewise, inconsistency with the SFMP has no bearing on whether TPW failed to offer a reasoned justification by omitting a summary of comments received, a discussion of the factual basis for the rule, or reasons it disagreed with certain comments. See Tex. Gov’t Code Ann. § 2001.035(c) (West 2000); Lower Laguna Madre Found. v. Texas Natural Res. Conservation Comm'n, 4 S.W.3d 419, 426 (Tex.App.-Austin 1999, no pet.). Instead, the Shrimpers argue that, despite section 77.007(f), which prohibits rulemaking unless the rules are consistent with the SFMP, TPW made rules inconsistent with the SFMP and thus exceeded its grant of statutory authority.

      . The SFMP's Management Strategies section, paragraph 5, recommends closing the season at certain times during the year instead of using bag limits as a management tool. Paragraph 6 recommends area closures continue to be based on the life history of shrimp, especially as it relates to growth. SFMP at 52.

      . “All three Penaus species utilize estuarine waters as nursery grounds. Postlarvae usually concentrate in water less than 0.9 m deep, where there is attached vegetation and/or abundant detritus. Shrimp stay in these areas 2-4 weeks before moving to deeper water.” SFMP Source Document at 7.


author: Justice ROSS.

text:
    Donald WESLEY, Appellant, v. The STATE of Texas, Appellee.
    No. 06-04-00085-CR.
    Court of Appeals of Texas, Texarkana.
    Submitted Jan. 24, 2005.
    Decided Feb. 9, 2005.

      Mark W. Cargill, Cargill & Associates, Palestine, for Appellant.
    Doug Lowe, Dist. Atty., Colin Dean McFall, Asst. Dist. Atty., Palestine, for state.
    Before MORRISS, C.J., ROSS and CARTER, JJ.
   OPINION

Opinion by

Justice ROSS.

On May 9, 2003, Donald Wesley pled guilty before the court, pursuant to a plea agreement, to intentionally or knowingly possessing a controlled substance, cocaine. See Tex. Health & Safety Cobe Ann. § 481.115(a), (b) (Vernon 2003). In accord with the agreement, the trial court found that the evidence substantiated Wesley’s guilt, but deferred further proceedings without entering a finding of guilt and placed Wesley on community supervision for five years. See Tex.Code Ceim. PRoc. Ann. art. 42.12, § 5(a) (Vernon Supp.2004-2005).

On September 19, 2003, the State filed a motion to revoke Wesley’s community supervision and to proceed to adjudication and judgment, but later moved to dismiss the motion, noting that the conditions of Wesley’s supervision had been modified to place him in a substance abuse sanction program. The State’s motion to dismiss was granted by the trial court November 5, 2003. On March 24, 2004, the State filed another motion to revoke Wesley’s supervision and to proceed to adjudication and judgment, and amended that motion March 31, 2004.

A hearing was held on the State’s amended motion May 5, 2004. The court found that Wesley had violated the conditions of his community supervision as the State had alleged. The court then adjudged Wesley guilty of the offense originally charged and sentenced him to two years’ confinement in a state jail facility.

Wesley appeals, contending in a single point of error that the trial court erred at his revocation hearing by refusing to consider his affirmative defense of due diligence afforded by Article 42.12, Section 24 of the Code of Criminal Procedure. See Tex.Code Cmm. PRoc. Ann. art. 42.12, § 24 (Vernon Supp.2004-2005).

Article 42.12, Section 5(b) of the Code of Criminal Procedure provides:

On violation of a condition of community supervision imposed under Subsection (a) of this section, the defendant may be arrested and detained as provided in Section 21 of this article. The defendant is entitled to a hearing limited to the determination by the court of whether it proceeds with an adjudication of guilt on the original charge. No appeal may be taken from this determination.

Tex.Code CRiM. Proc. Ann. art. 42.12, § 5(b) (Vernon Supp.2004-2005).

In construing this provision, the Texas Court of Criminal Appeals has stated:

[GJiven the plain meaning of Article 42.12, § 5(b), an appellant whose deferred adjudication probation has been revoked and who has been adjudicated guilty of the original charge, may not raise on appeal contentions of error in the adjudication of guilt process.

Connolly v. State, 983 S.W.2d 738, 741 (Tex.Crim.App.1999).

The Texas Court of Criminal Appeals went on to hold that the trial court’s decision about whether the State exercised due diligence in apprehending the defendant and having a hearing on adjudication of guilt was “merely a part of its decision to revoke and proceed to judgment, and no appeal lies from that decision.” Id.

Although the Connolly court was not construing Article 42.12, Section 24, we hold that a decision by the trial court concerning due diligence pursuant to Article 42.12, Section 24 is likewise “a part of its decision to revoke and proceed to judgment,” and that no appeal lies from that decision. See also Poledore v. State, 8 S.W.3d 22, 24 (Tex.App.-Houston [14th Dist.] 1999, pet. ref'd).

We therefore conclude this Court lacks jurisdiction to consider Wesley’s challenge to the trial court’s refusal to consider his affirmative defense of due diligence under Article 42.12, Section 24.

We dismiss the appeal for want of jurisdiction.


author: Justice CARTER.

text:
    Cadell JACKSON, Appellant, v. The STATE of Texas, Appellee.
    No. 06-04-00051-CR.
    Court of Appeals of Texas, Texarkana.
    Submitted Jan. 12, 2005.
    Decided Feb. 9, 2005.

      Patrice Savage, Carthage, for appellant.
    William M. Jennings, Dist. Atty., Ray Bowman, Asst. Dist. Atty., Longview, for state.
    Before MORRISS, C.J., ROSS and CARTER, JJ.
   OPINION

Opinion by

Justice CARTER.

Cadell Jackson was convicted on two separate indictments, each charging him with delivery of a controlled substance. The two cases were tried together before the same jury. After finding Jackson guilty on both charges, the jury assessed punishment at two years’ confinement on each charge. The trial court sentenced Jackson to serve the two periods of confinement consecutively rather than concurrently. Jackson contends the trial court erred by ordering his sentence in cause number 26,267-B be “stacked” onto his sentence from the offense of delivery of a controlled substance, cause number 26,-269-B. The consecutive sentence is erroneous, and we will reform the judgment.

Is a consecutive sentence authorized?

In his sole issue before this Court, Jackson contends the trial court erred in stacking the two sentences when the two cases were tried in one trial. When the same defendant has been convicted in two or more cases, the trial court has the discretion to order the sentences to be served consecutively or concurrently. Tex. Code Crim. Proc. Ann. art. 42.08 (Vernon Supp.2004-2005). An exception to the general rule for cases involving illegal narcotics offenses is if the accused is found guilty of more than one offense arising out of the same criminal episode prosecuted in a single criminal action, a sentence for each offense for which the accused has been found guilty shall be pronounced, and those sentences run concurrently. Tex. Health & Safety Code Ann. § 481.132(d) (Vernon 2003). A criminal episode is defined as the offenses that are “committed pursuant to the same transaction or pursuant to two or more transactions that are connected or constitute a common scheme, plan, or continuing course of conduct;” or “the repeated commission of the same or similar offenses.” Tex. Health & Safety Code AnN. § 481.132(a)(1), (2) (Vernon 2003).

LaPorte v. State, 840 S.W.2d 412 (Tex.Crim.App.1992), is on point. In LaPorte, in a single trial based on separate indictments, a jury convicted LaPorte of possession of marihuana and possession of methamphetamine with intent to deliver. Id. at 413. The jury assessed punishment at confinement for twenty-five years and thirty-five years, respectively. Id. The trial court ordered that the sentence in the methamphetamine conviction be consecutive to that in the marihuana conviction. Id. The Texas Court of Criminal Appeals reversed the judgment. Id.

The court reasoned the Legislature intended a single criminal action to refer to a single trial or plea proceeding. Id. at 414. Section 3.03 applies whenever a defendant is prosecuted in a single criminal action, whether pursuant to one charging instrument or several. Id. at 415. The trial court’s general authority under Article 42.08 to order consecutive sentences is statutorily limited by Section 3.03. Id. “If the facts show the proceeding is a single criminal action based on charges arising out of the same criminal episode, the trial court may not order consecutive sentences.” Id. at 415. Therefore, the court held the judgments should be reformed to delete the cumulation order. Id.

Similarly, the two offenses here are the repeated commission of the same offense, which is the delivery of a controlled substance as stated in Tex. Health & Safety Code Ann. § 481.112(b) (Vernon 2003). Jackson and the State agree the offenses presented here constitute one criminal episode. Also, both offenses were tried in a single proceeding constituting a single criminal action; thus, Section 3.03 of the Texas Penal Code and Section 481.132(d) of the Texas Health and Safety Code apply. See LaPorte, 840 S.W.2d at 414. Since the proceeding is a single criminal action based on charges arising out of the same criminal episode, the trial court may not order consecutive sentences. See id. at 415.

Did Jackson waive a concurrent sentence?

LaPorte further held that “[a]n improper cumulation order is, in essence, a void sentence, and such error cannot be waived. A defect which renders a sentence void may be raised at any time.... Consequently, a contemporaneous objection is not necessary to preserve the error for appellate review.” Id. (citations omitted). After La Porte, the Texas Court of Criminal Appeals decided Ex parte McJunkins, 954 S.W.2d 39 (Tex.Crim.App.1997), and found that a defendant could waive an improper cumulation order in one particular instance. McJunkins had been indicted for capital murder. Id. However, he pled guilty to two lesser information charges, and was convicted and sentenced, in accordance with a negotiated plea agreement in which he specifically accepted the imposition of consecutive sentences in a single criminal action. Id. McJunkins did not appeal, but filed an application for habeas corpus relief from the order that cumulated the sentences. Id. The Texas Court of Criminal Appeals held that his decisions not to request a severance, and to accept the imposition of consecutive sentences imposed in a single criminal action for two offenses arising out of the same criminal episode in accordance with a negotiated plea agreement, were valid waivers of this right to concurrent sentences. Id. at 41.

The State contends Jackson failed to object during voir dire when the trial court admonished the venire that the court would order the sentences to be served either concurrently or consecutively, failed to object during the punishment phase when the trial court pronounced a cumulative sentence, and stated in his closing argument that the court would decide whether the sentences would run concurrently or consecutively. The State contends that the McJunkins case authorizes us to find that Jackson affirmatively waived his right to concurrent sentences. We disagree.

McJunkins is distinguishable from the facts of this case. McJunkins pled guilty to the charges of murder and aggravated robbery based on a negotiated plea agreement. The consecutive sentences were pronounced in accordance with the negotiated plea agreement. The Texas Court of Criminal Appeals found that McJunkins specifically accepted the imposition of consecutive sentences by the negotiated plea agreement, which he intelligently and voluntarily entered. In return, the State dismissed the capital murder indictment. In contrast, Jackson pled not guilty to both the charges, there was no negotiated plea agreement, and Jackson did not knowingly and intelligently accept the imposition of consecutive sentences. Further, the court in McJunkins specifically stated, “We should not be understood as holding that LaPorte ... was wrongly decided.” Id. McJunkins is limited to instances when the defendant makes a counseled, intelligent, and voluntary waiver or his or her right to concurrent sentences. Therefore, LaPorte governs, and for the above-stated reasons, Jackson’s failure to object to the cumulation order does not waive the error.

Accordingly, the judgment in cause number 29,267-B from the 124th Judicial District Court of Gregg County is reformed to delete the cumulation order. As reformed, we affirm the judgment of the trial court.

      . The rules are the same for criminal cases that do not involve illegal narcotics. See Tex. Pen.Code Ann. §§ 3.01, 3.03 (Vernon 2003).


text:
    Roosevelt J. JONES, Appellant, v. John C. SMITH, Appellee.
    No. 06-04-00043-CV.
    Court of Appeals of Texas, Texarkana.
    Submitted Jan. 20, 2005.
    Decided Feb. 9, 2005.
    Rehearing Overruled March 8, 2005.

      Roosevelt J. Jones, Houston, pro se.
    Dean A. Searle, Marshall, for Appellee.
    Before MORRISS, C.J., ROSS and CARTER, JJ.
   OPINION

Opinion by

Justice CARTER.

A judgment was entered establishing a boundary between property owned by Roosevelt J. Jones and John C. Smith in accordance with a survey prepared by Smith’s surveyor, Dan Hampton. By way of a declaratory judgment, the trial court also granted Smith a judgment against Jones for damages of $8,943.00 and attorney’s fees of $10,000.00. Jones presents several issues: (1) legal and factual sufficiency of the evidence to support the determination of placement of the boundary line; (2) use of a declaratory judgment in granting relief; (3) failure to abate the case due to nonjoinder of other cotenants; and (4) failure to rule on Jones’ motion for sanctions for discovery abuse and summary judgment. We reform the judgment to delete the damages and attorney’s fee awards and otherwise affirm the judgment.

Approximately seven and one-half acres of wooded property is involved in this boundary line dispute. Jones’ family has owned one parcel since at least the early 1940’s, and Smith’s family has owned the other since 1973. Smith built a fence in 1997 across their adjoining boundary, in the location of a prior fence. Jones, who had not seen this portion of the property for over fifty years, discovered the fence in what he remembered as the wrong place. He also had some objective support for that belief, based on a survey of an adjoining tract. Jones moved a portion of the fence to the location he believed was proper; Smith then filed suit to determine the boundary of the properties.

Two weeks after the judgment was signed, the Texas Supreme Court rendered its opinion in Martin v. Amerman, 133 S.W.3d 262 (Tex.2004). In that opinion, the court agreed that, because the boundary dispute involved title to a strip of land, it was in the nature of a trespass to try title action and must be treated as such.

This is purely a boundary dispute. The court in Martin held that the strict pleading and proof requirements for a trespass to try title action are relaxed in cases where the only issue is the location of a boundary line. Id. at 268. The court recognized that, although title to the disputed property was obviously at issue, there was a “procedural distinction between trespass-to-try-title actions and boundary disputes for jurisdictional and evidentiary purposes,-” Id. at 267. Thus, in this case, where boundary is the sole issue, it is necessary to establish, by adequate proof, the location of the boundary line between the properties.

Jones first contends the evidence is factually and legally insufficient to support the court’s decision setting the boundary.

1. Legal and factual sufficiency of the evidence to support the placement of the boundary line

In determining a no-evidence issue, we are to consider only the evidence and inferences that tend to support the finding and disregard all evidence and inferences to the contrary. Bradford v. Vento, 48 S.W.3d 749, 754 (Tex.2001); Cont’l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex.1996). Anything more than a scintilla of evidence is legally sufficient to support the finding. Cazarez, 937 S.W.2d at 450. When considering a factual sufficiency challenge to a jury’s verdict, courts of appeals must consider and weigh all of the evidence, not just that evidence which supports the verdict. Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402, 407 (Tex.1998). A court of appeals can set aside the verdict only if it is so contrary to the overwhelming weight of the evidence that the verdict is clearly wrong and unjust. Id.; Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986).

Smith provided evidence that the fence was on the boundary line determined by a surveyor in 1973 when Smith’s predecessor in title (his father) had purchased the property. The fence was on that line in 1986, and the evidence was that, when Smith replaced the fence in 1997 he put it exactly where it had been before. After this dispute arose, Hampton again surveyed the property in September 1999 at Smith’s request. He testified that, based on his review of the deeds and the property, the boundary line shown by the fence was correct. He also acknowledged the dispute about the location of this property line, which was based on a disputed call in a 1932 deed conveying a piece of property to the east of these tracts. There was also a disparity between the amount of acreage set out in Jones’ deed and the actual acreage. However, even if the fence was placed as Jones urged, his total acreage would be less than as provided in his deed.

Hampton also acknowledged that surveys done by the previous surveyor, Mr. McClelland, were inconsistent. McClel-land’s 1961 survey had set out one property line, but McClelland changed that survey in 1973 to reflect the current location of the line at issue. Hampton testified he found nothing on the ground to support the 1961 location, but did find pins to support its present location. Hampton also testified that the changed location of the line made the mathematical calculations for the amount of land stated in the deed to Smith correct-calculations for the previous line resulted in fewer acres than were set out in the deeds going back through the decades. Hampton was also questioned about the deed transferring ownership to Jones and noted that the tract was described in terms of acreage instead of boundary descriptions.

Jones testified he lived on the property until 1944 and took care of it after his parents died. He became aware of the new fence in 1999 and testified that it was in a different location than he remembered. He based that belief on his memories from fifty-five years earlier, which was the last time he had been on the northern boundary of the property, and on a measurement he took from a call set out in the deed to an adjoining piece of property. Jones’ father sold a forty-acre tract to Leon Ford in 1932. Jones believes the property line he shares with Smith is approximately 150 feet north of the line established by the survey. He came to this conclusion based on a reference to a 480 varas call in the 1932 deed to Leon Ford’s property, which adjoins his property. It is his belief that Ford’s west boundary line is coextensive with his east boundary line. He testified that, after converting the 480 varas measurement to feet, he then measured the distance and moved the fence accordingly.

The evidence in favor of the verdict, as set out above, is legally sufficient to support the verdict. Considering all of the evidence as summarized above, although there is conflict to be resolved, it does not appear that the fact-finder reached its verdict against the great weight and preponderance of the evidence.

2. Use of a declaratory judgment in granting relief

Jones next contends that the court erred by rendering the judgment in the form of a declaratory judgment, because that remedy has no application here, and because this is in the nature of a trespass to try title claim. He further argues the monetary awards linked to that cause of action must, therefore, be deleted.

This judgment was rendered, in part, as a declaratory judgment. Boundary disputes are not amenable to declaratory judgment. Martin, 133 S.W.3d at 262. Based on the Martin case, Smith acknowledges that the attorney’s fees and damages awarded are improper. That contention of error is meritorious, and we reform the judgment to delete those awards.

3. Failure to abate the case due to non-joinder of other cotenant

On the day before trial, Jones filed a motion asking to abate the case because Smith had not joined all necessary and indispensable parties. Jones alleges that he is one of several cotenants of the property and argued that they are necessary parties to the suit and that the cause should, therefore, be abated.

This issue is directly controlled by Tex.R. Civ. P. 39. The determination of whether to proceed in the absence of such a party is a discretionary decision for the trial court. Clear Lake City Water Auth. v. Clear Lake Utils. Co., 549 S.W.2d 385, 389-90 (Tex.1977); Allegro Isle Condo. Ass’n v. Casa Allegro Corp., 28 S.W.3d 676, 678 (Tex.App.-Corpus Christi 2000, no pet.); MCZ, Inc. v. Smith, 707 S.W.2d 672, 675 (Tex.App.-Houston [1st Dist.] 1986, writ ref'd n.r.e). A trial court abuses its discretion when it rules arbitrarily, unreasonably, without regard to guiding legal principles, or without supporting evidence. Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex.1998).

Smith brought this lawsuit because Jones disputed the location of the boundary line, moved a portion of the fence, and thereby “placed a cloud” on his title to the property. As pointed out by Smith at the hearing, Jones is the only one of the coten-ants who had indicated any disagreement about the location of the boundary. Smith also acknowledged that he wanted to proceed with the lawsuit and that he might have to repeat the action against the other co-owners if they chose to raise similar claims.

The rules of joinder provide that a person shall be joined as a party in the action (1) if, in his or her absence, complete relief cannot be accorded among those already parties, or (2) if he or she claims an interest relating to the subject of the action and is so situated that the disposition of the action in his or her absence may, as a practical matter, impair or impede his or her ability to protect that interest or leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his or her claimed interest. Under the language used in the rule, it is clear that none of the other cotenants had “claimed an interest” in the portion of the property in dispute in this suit.

The Texas Supreme Court has specifically stated that it would be rare indeed if there were a person whose presence was so indispensable that his or her absence deprived the court of jurisdiction to adjudicate between the parties already joined. Cox v. Johnson, 638 S.W.2d 867, 868 (Tex.1982); Caldwell v. Callender Lake Prop. Owners Improvement Ass’n, 888 S.W.2d 903, 907 (Tex.App.-Texarkana 1994, writ denied).

Even more recently, in the context of a declaratory judgment and a suit brought by members of a homeowner’s association, the court held that the failure to join other landowners in a subdivision property owner’s action against a homeowners’ association did not deprive the trial court of jurisdiction, and returned the case to this Court for consideration of the remaining issues. Simpson v. Afton Oaks Civic Club, Inc., 145 S.W.3d 169 (Tex.2004). The court applied the analysis that it used in Brooks v. Northglen Ass’n, 141 S.W.3d 158 (Tex.2004), in which it held that a declaratory judgment action against a property owners’ association would not prejudice the rights of the other property owners because unjoined owners would not be bound by the suit, noting that nothing prevented the trial court from rendering complete relief to those parties before it, and if the homeowners’ association were exposed to multiple suits, that was the result of its own inaction.

We also note that the motion to abate and join new parties was filed the day before trial, when the information necessary to pursue the motion had been known since the suit had been filed a year earlier. See Akinwamide v. Transp. Ins. Co., 147 S.W.3d 623 (Tex.App.-Corpus Christi 2004, no pet.) (finding that a trial court did not abuse its discretion by denying a motion to join additional parties seventeen days before trial, which would surely have required postponing the trial). Trial courts are guided by Rule 37 of the Texas Rules of Civil Procedure when deciding whether to allow the joinder of another party at a time which would unreasonably delay the trial of the case. See Tex.R. Civ. P. 37.

We conclude that the court did not abuse its discretion by denying the motion to abate.

4. Failure to rule on Jones’ motion for sanctions for discovery abuse and motion for summary judgment

Jones next contends the trial court erred by failing to impose sanctions on Smith for discovery abuse and for failing to rule on Jones’s motion for summary judgment.

Jones’ argument is: if sanctions had been imposed keeping Smith from entering his deeds into evidence, Jones would have prevailed at trial, and the sanctions could also have resulted in the court granting his motion for summary judgment.

Jones filed both motions October 8, 2003, and he states in his brief that he requested a setting on them. Smith argues that Tex.R.App. P. 33.1 controls in this case, because Jones never sought to obtain a ruling on either motion.

The Texas Supreme Court has directed that “the failure to obtain a pretrial ruling on discovery disputes that exist before commencement of trial constitutes a waiver of any claim for sanctions based on that conduct.” Remington Arms Co. v. Caldwell, 850 S.W.2d 167, 170 (Tex.1993); Martin v. Commercial Metals Co., 138 S.W.3d 619, 623 (Tex.App.-Dallas 2004, no pet.). This is in accord with the general rule that, as a prerequisite to a complaint for appellate review, the record must show that the trial court, either expressly or implicitly, ruled on the motion. Tex.R.App. P. 33.1(a)(2)(A). Thus, similarly, the failure to obtain a ruling on the motion for summary judgment has not preserved any error for our review. The contention of error is overruled.

We reform the judgment to delete the monetary awards made pursuant to the declaratory judgment, and otherwise affirm.

Rule 43.4 provides that a court of appeals should award costs to the prevailing party. Tex.R.App. P. 43.4. In this case, no party prevailed on all of the principal issues. We, therefore, apportion the costs between the parties. See, e.g., City of Austin v. Capitol Livestock Auction Co., 453 S.W.2d 461, 465 (Tex.1970); Burke v. Union Pac. Res. Co., 138 S.W.3d 46, 75-76 (Tex.App.-Texarkana 2004, pet. granted) (op. on reh’g). Costs are apportioned at one half to each party.

      . Smith had originally also raised an adverse possession claim, but nonsuited that claim at the beginning of the trial.

      . In a formal trespass to try title action, the plaintiff must prove a regular chain of conveyances from the sovereignty, prove superior title out of common source, prove title by limitations, or prove prior possession which has not been abandoned. Rogers v. Ricane Enters., Inc., 884 S.W.2d 763 (Tex.1994). A boundary determination necessarily involves the question of title, or the parties would gain nothing by the judgment. However, the court has recognized a procedural distinction between trespass to try title actions and boundary disputes for jurisdictional and evidentiary purposes. Martin, 133 S.W.3d at 267.
      Since this is a boundary dispute, it was not necessary for Smith to establish his superior title to the property in question in the manner required by a formal trespass to try title action to avoid losing title to his property. Id. at 268; see Plumb v. Stuessy, 617 S.W.2d 667, 669 (Tex.1981); Poth v. Roosth, 146 Tex. 7, 202 S.W.2d 442 (1947).

      . No findings of fact or conclusions of law were requested or filed. When a party does not request findings of fact or conclusions of law, it is implied that the trial court made all necessary findings of fact to support the judgment, provided that the proposition is one raised by the pleadings and supported by the evidence, and that the judge’s decision can be sustained on any reasonable theory that is consistent with the evidence and the applicable law, considering only the evidence favorable to the decision. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex.1990).

      . Tex.R. Civ. P. 39 states:
      (a) Persons to be Joined if Feasible. A person who is subject to service of process shall be joined as a party in the action if (1) in his absence complete relief cannot be accorded among those already parties, or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest. If he has not been so joined, the court shall order that he be made a party. If he should join as a plaintiff but refuses to do so, he may be made a defendant, or, in a proper case, an involuntary plaintiff.
      (b) Determination by Court Whenever Joinder Not Feasible. If a person as described in subdivision (a)(l)-(2) hereof cannot be made a party, the court shall determine whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed, the absent person being thus regarded as indispensable. The factors to be considered by the court include: first, to what extent a judgment rendered in the person’s absence might be prejudicial to him or those already parties; second, the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided; third, whether a judgment rendered in the person’s absence will be adequate; fourth, whether the plaintiff will have an adequate remedy if the action is dismissed for non-joinder.

      . “Before a case is called for trial, additional parties, necessary or proper parties to the suit, may be brought in, either by the plaintiff or the defendant, upon such terms as the court may prescribe; but not at a time nor in a manner to unreasonably delay the trial of the case.” Tex.R. Civ. P. 37.