author: DANIEL, Justice.

text:
    Walter H. MENGDEN, Sr., Petitioner, v. PENINSULA PRODUCTION COMPANY et al., Respondents.
    No. B-5982.
    Supreme Court of Texas.
    Nov. 24, 1976.
    Rehearing Denied Dec. 31, 1976.
    Foreman, Dyess, Prewett, Rosenberg & Henderson, Thomas H. Lee, Marilyn Abous-sie and William G. Lowerre, Houston, for petitioner.

      Ralph J. Graham, Corpus Christi, for respondents.
   DANIEL, Justice.

This suit involves the pooling provisions of two adjacent mineral leases which were farmed out to the same assignee; the allocation of production on two gas units formed by the assignee from portions of both leases; and the method of calculating “payouts” and partial reversions under the farmout agreements. Peninsula Production Company, et al., successors in interest of the farmout-assignors, and Walter H.' Mengden, Sr., the assignee who formed the gas units, sought declaratory judgments to determine the effective date of Peninsula’s reversion or “back-in” right to one-fourth of the working interest on gas production, which was to occur after certain costs were recovered by Mengden.

Peninsula contends that, for the purpose of calculating Mengden’s recovery of costs, all of the production from the pooled units should be allocated entirely to the lease farmout on which the wells were physically located. Mengden contends that such production should be apportioned between the two lease farmouts in proportion to the amount of acreage which each contributed to the producing units. Each contributed approximately one-half of the total acreage within the units. The lower courts, based upon a cost recovery provision in the farmout covering acreage upon which the wells were located, agreed with Peninsula and allocated 100 percent of the production from the units to the farmout on which the unit wells were located. 534 S.W.2d 749. We disagree. The judgments of the courts below are reversed and the case is remanded to the trial court for rendition of a judgment in accordance with this opinion.

The two adjacent oil and gas leases, herein referred to as lease “A” and lease “B”, each cover 1713.2 acres in La Salle and Webb Counties. They were executed in 1964 and 1965, respectively, by A. E. Schletze, et ux. to Charles H. Stevenson, Jr., Trustee. They contain identical pooling paragraphs which provide in part as follows:

“4. Lessee, at its option, is hereby given the right and power to pool or combine the acreage covered by this lease, or any portion thereof as to oil and gas, or either of them, with other land, lease or leases in the immediate vicinity thereof to the extent hereinafter stipulated, when in Lessee’s judgment it is necessary or advisable to do so in order properly to explore, or to develop and operate said leased premises in compliance with the spacing rules of the Railroad Commission of Texas, or other lawful authority, or when to do so would, in the judgment of Lessee, promote the conservation of oil and gas in and under and that may be produced from said premises. Operations for drilling on or production of oil or gas from any part of the pooled unit which includes all or a portion of the land covered by this lease . . . shall be considered as operations for drilling on or production of oil or gas from land covered by this lease whether or not the well or wells be located on the premises covered by this lease, and the entire acreage constituting such unit or units, as to oil and gas, or either of them, as herein provided, shall be treated for all purposes, except the payment of royalties on production from the pooled unit, as if the same were included in this lease. For the purpose of computing the royalties to which owners of royalties and payments out of production and each of them, shall be entitled on production of oil and gas, or either of them, from the pooled unit, there shall be allocated to the land covered by this lease and included in said unit a pro rata portion of the oil and gas, or either of them, produced from the pooled unit after deducting that used for operations on the pooled unit. Such allocation shall be on an acreage basis — that is to say, there shall be allocated to the acreage covered by this lease and included in the pooled unit that pro rata portion of the oil and gas, or either of them, produced from the pooled unit which the number of surface acres covered by this lease and included in the pooled unit bears to the total number of surface acres included in the pooled unit.” (Emphasis added.)

The title to lease “A” passed to Miltex Oil and Gas Corporation and certain individual investors and all interest in lease “B” passed to Miltex, less certain reserved overriding royalties. Mengden acquired his interest in the leases through two contemporaneous farmout agreements effective November 15, 1968. Both were negotiated on behalf of the then owners by John Hada, president of Miltex and subsequently president of Peninsula Production Company. The “A” farmout (also referred to as the Miltex farmout) covered 640 acres of the “A” lease, and the “B” farmout (sometimes referred to as the Baria farmout) covered all of the “B” lease. Mengden received a working interest equal to 49/e4ths of %ths under the 640 acres of the “A” lease and 4%4ths of %ths under all of the “B” lease. The “A” farmout obligated Mengden to commence operations within 60 days for drilling a well to test the Escondido sand in the Encinal Field at a specified location. The “B” farmout provided for termination and reassignment if Mengden failed to drill the well provided for in the “A” farmout or if he failed thereafter to commence operations for a well on the “B” lease within 60 days after the “A” lease well was completed or abandoned. Neither agreement contained any provision against pooling or against apportionment of production in the event of pooling. The subsequent assignments recited that they were . . . “in all things subject to the terms and provisions” of the respective oil, gas, and mineral leases. The “B” lease assignment dated November 15,1968, specifically provided for a proportionate reduction in a reserved overriding royalty in the event of unitization with other lands for the production of gas.

Each farmout provided for a “back-in” or reversion to the assignors of a percentage of the net working interest if and when Mengden recouped from production the expenses of his operations. These reversion-ary rights are now owned by Peninsula, et al. as to farmout “A” and by Peninsula alone as to farmout “B”. Specifically, they provided for reversion to the respective assignors of Vi of the assigned net working interest under the respective leases as to gas and gas rights and ½ as to oil, oil rights and other mineral rights when Mengden had recovered, after taxes, from “production of oil, gas or other minerals accruing to [the] . . . net working interest therein all costs and expenses incurred by [him],” including the costs of drilling, completing and operating, if productive, and the costs of drilling, plugging and abandoning, if dry, all wells drilled on the leased premises. The “A” farmout, however, contained a special “in lieu of costs” clause which gave rise to this controversy. It provides:

“In connection with the foregoing, it is understood that if you complete any gas well or wells in the Escondido Sand under such lease premises then in lieu of the aforerecited recovery of costs incurred thereon you will be entitled to recover $70,000.00 times the number of such wells on the production accruing to a 49/64ths of 8/8ths net working interest therein from such wells before such assignment terminates [reverts] in part as aforeprovided for. ...”

Mengden drilled five wells on the premises covered by the two farmouts, each of which was located on a separate gas unit of 320 acres pursuant to Railroad Commission spacing rules. A sketch showing the reía-tive locations of the “A” and “B” farmouts and the five gas units formed by Mengden follows:

Wells #1 and #3 were completed as good commercial gas wells in the Escondido sand, each being located on gas units comprised of acreage contributed from the “A” and “B” farmouts. The other three wells were drilled on gas units which were formed from acreage wholly within the “B” farm-out. Two of these wells, # 2 and # 5, were dry holes, and #4 was a meager gas producer which will not yield enough to pay for itself.

Gas units #1 and #3 were formed by Mengden in accordance with the pooling terms of the “A” and “B” leases, with the wells located on the lease “A” portions of each unit. Peninsula does not deny the validity of the units. Its pleadings and the trial court’s judgment recognize that the portions of the “B” lease included in the # 1 and # 3 gas units are being perpetuated by Mengden’s production from the unit wells located on the acreage contributed from the “A” lease. Neither does Peninsula deny the other normal consequences of pooling. Such consequences are detailed in paragraph 4 of the leases, and they were fully discussed by this Court in Southland Royalty Company v. Humble Oil & Refining Company, 151 Tex. 324, 249 S.W.2d 914 (1952). See also Garza v. De Montalvo, 147 Tex. 525, 217 S.W.2d 988 (1949); Brown v. Smith, 141 Tex. 425, 174 S.W.2d 43 (1943); Veal v. Thomason, 138 Tex. 341, 159 S.W.2d 472 (1942); Leach v. Brown, 251 S.W.2d 553 (Tex.Civ.App.1952, writ ref’d); Texaco v. Lettermann, 343 S.W.2d 726 (Tex.Civ.App.1961, writ ref’d, n. r. e.); 1A Summers, Oil and Gas § 104, 144-145 (2nd ed. 1954); 35 Tex.L.Rev. 401 (1957). The opinion in Texaco, Inc. v. Lettermann, supra, at 732, contains the following statements which are applicable to this case:

“That pooling or unitizing of oil and gas leases is a standard practice in the industry cannot be questioned. It is equally recognized that unitization is often a more feasible method of operation from an engineering and scientific point of view. Unitization can be said to be advantageous to both lessors and lessees. We think these facts lead to the conclusion that in the absence of clear language to the contrary, pooling clauses should not be construed in a narrow or limited sense. . . . Appellants have shown good faith in including appellees’ leased acreage in two different unitized designations, and have completed a producing gas well on each of the two units. These two wells entitle appellees to their proportionate share of the royalties from each of the two consolidated units, even though one of the wells is not on the land leased by appellees. Brown v. Smith, 141 Tex. 425, 174 S.W.2d 43.” (Emphasis added.)

From the above cases it must be concluded that, in the absence of an express provision to the contrary in the subsequent assignments or farmout agreements, Meng-den had the right to form gas units # 1 and # 3 from portions of the “A” and “B” leases, and the total unit production and costs should be allocated to each lease in proportion to the number of acres contributed therefrom to the respective units. As heretofore indicated, we have found no provision in the farmout agreements or assignments to Mengden which would prevent or alter the normal rights and effects of the pooling provision of the leases. Peninsula’s contention to the contrary is based wholly upon the special $70,000 per well “payout” clause contained in the lease “A” farmout agreement, which clause has been quoted above.

We interpret that clause as applying only to production “accruing to a 49/64ths of %ths net working interest” of any gas wells completed “in the Escondido sand under such lease premises,” whether the accrual is from a well on a unit comprised solely of lease “A” acreage or from lease “A’s” proportionate share of production from a unit which includes acreage from another lease. Peninsula would place the emphasis on wells completed on such lease premises rather than on production accruing to [the] net working interest therein from such wells. We hold that the latter phrase is controlling, because a consequence of pooling is apportionment of production regardless of where the well is located. When a unit is properly pooled, the owners of the minerals or reversionary interests in a separate tract within the unit surrender their right to receive their interest in all production from wells located on their own tract, and in turn they receive the right to share proportionately from wells on the other included tract. Southland Royalty Company v. Humble Oil and Refining Company, supra.

The holding of the lower courts to the contrary disregards the fact that approximately one-half of the total acreage in the two units was contributed from the “B” lease farmout and that consequently such proportion of the total production accrued to the “B” lease. The holding also disregards the fact that the “B” farmout contained a different method of calculating Mengden’s payout and the effective date of Peninsula’s “back-in” or reversion as to ¼ of the gas working interest on the portion of the unit contributed from the “B” farm-out. It became effective after Mengden recovered from “production accruing” to the net working interest of the “B” lease all of his expenses of drilling and operating on lease “B” acreage, including the cost of drilling and abandoning dry holes. These expenses on lease “B” have amounted to considerably more than the $70,000 which Mengden was permitted to recover from production accruing to the net working interest on each gas well completed on lease “A” acreage. If the producing wells had been located on lease “B” portions of the units, it is not likely that Peninsula would contend that the payout provisions of farm-out “B” should apply to the entire units. Neither should the payout provisions of farmout “A” apply to the entire units. We hold that payout provisions of both farm-outs are applicable to the unit wells in proportion to the acreage that each contributed to the units.

To illustrate, if the farmouts contributed equally to the total acreage in the units, the farmout “A” payout provisions apply to the one-half of the production accruing to the acreage it contributed to the units. The farmout “B” payout provisions apply to the other half of the production accruing to the acreage it contributed to the units. Upon the assumption of such equal contribution of acreage, the reversionary rights of Peninsula, et al described in farmout “A” became effective as to the acreage contributed from that farmout on the date when Mengden recovered a total of $70,000 (½ X $70,000 X 2 wells) from the production accruing to a 4%4ths of 8/sths net working interest in one-half of said units. Based upon the same assumption of equal contribution of acreage, the reversionary rights of Peninsula described in farmout “B” become effective as to the portions of the units contributed from that farmout on the date after Mengden recovers from the production accruing to a ‘‘Vwths of %ths net working interest in unit #4 and farmout “B’s” one-half share of units #1 and #3 all expenses incurred by Mengden on the farmout “B” wells, as well as one-half of the costs of the unit #1 and #3 wells. Whether or not this recoupment has already occurred is not shown. The figures on costs and .production were stipulated as of November 22, 1974.

The case is remanded to the trial court with instructions to enter a judgment in accordance with this opinion and based on current figures as to production proceeds and relevant costs. Also, instead of using the approximation of equal contributions from each farmout to units #1 and #3, the trial court will base its judgment on the exact number of acres contributed to each unit from each farmout. In that manner the date when the reversionary interests take effect under the two farmouts will be based on the apportionment of the production from the # 1 and # 3 gas units, as well as the recoverable costs as set forth in the farmout agreements, between the two farmouts in the proportion that the exact number of acres from each farmout bears to the total number of acres in each unit.

Accordingly, the judgments of the courts below are reversed and the case is remanded to the trial court with instructions to enter judgment in accordance with this opinion.

      . A farmout or “farm out” agreement is defined by Williams and Meyers as a “very common form of agreement . . . whereby the owner of a lease not desirous of drilling at the time agrees to assign the lease, or some portion of it . . .to another operator who is desirous of drilling the tract . . The primary characteristic of a farmout is the obligation of the assignee to drill one or more wells on the assigned acreage as a prerequisite to the completion of the transfer to him.” Williams and Meyers, Oil and Gas Law, Manual of Terms 167 (1971).

      . Unit 1 was formed with 134.76 acres from lease “A” and 185.24 acres from lease “B”. Unit 3 was formed from 185.27 acres of lease “A” and 134.73 acres from lease “B”. This was so near a total contribution of 50% of the two units by each of the two leases that the Court of Civil Appeals treated the farmouts as though each had contributed an equal percentage. We do likewise. Mengden filed written designation of the acreage comprising Unit 1 on February 3, 1969, and the same as to Unit 3 on March 18, 1969. These designations were recorded prior to Peninsula succeeding to the reversionary rights of its predecessors under the farmout agreements.

      . The record indicates that this amount of re-coupment by Mengden has already occurred, but the date thereof is not shown.

      . As of that date it appears that Mengden had recovered approximately $200,000 from the net working interest attributable to lease “B” acreage on the basis above stated, and that he had spent on dry holes and initial costs attributable to farmout “B” acreage approximately $307,-000. The amount received from subsequent lease “B” production, less recoverable costs under the “B” farmout, will of course determine the present status of this reversionary interest. The remainder of farmout “B”, except for unit #4 and its proportionate share of units # 1 and # 3, has terminated.


source: Caselaw Access Project

author: McGEE, Justice. REAVLEY, Justice GREENHILL, Chief Justice

license: Public Domain

text:
    Beatrice HENDERSON, Petitioner, v. The TRAVELERS INSURANCE COMPANY, Respondent.
    No. B-5886.
    Supreme Court of Texas.
    Dec. 1, 1976.
    Rehearing Denied Dec. 31, 1976.

      James W. Mehaffy, Jr., Beaumont, for petitioner.
    Strong, Pipkin, Nelson, Parker & Powers, John G. Bissell, Beaumont, for respondent.
   McGEE, Justice.

This is a suit brought by Mrs. Beatrice Henderson for death benefits under the workmen’s compensation law. Her husband died of a heart attack on the employer’s premises soon after a workday had ended. The trial court instructed a verdict for the defendant at the close of the plaintiff’s evidence. The court of civil appeals affirmed. 533 S.W.2d 407. We reverse the judgment of the court of civil appeals and remand the case to the trial court.

It was stipulated that Owen Henderson died at the Texaco Port Arthur Refinery after having worked his regular shift. The evidence reveals that on January 16, 1973 Henderson arrived on the job at 7:30 in the morning. It was also shown that Henderson operated an air hoist or air tugger. An “air tugger” was described as a winch which is powered by pressurized air. The function of the air tugger was to hoist materials and equipment up to laborers working on various levels of a building under repair by utilization of a cable and pulley system. It was Henderson’s job to remain at the bottom of the structure under repair to operate the air tugger, raising and lowering materials as necessary. It was shortly after Henderson had worked his full shift on January 16,1973 that he suffered a heart attack on the employer’s premises and died.

Petitioner’s position is to the effect that the trial court erred in granting defendant’s motion for an instructed verdict because the evidence raised fact issues which required submission to a jury. Conversely, the respondents contend that an instructed verdict was proper because there was no evidence that Henderson suffered any kind of strain; nor was there any medical evidence offered that strain of any kind precipitated Henderson’s heart attack. In an instructed verdict case, our task is to determine whether there is any evidence of probative force to raise fact issues on the material questions presented. Upon review, we must consider all of the evidence in its most favorable light in support of the plaintiff’s position and discard all contrary evidence and inferences. Anderson v. Moore, 448 S.W.2d 105 (Tex.1969); Triangle Motors of Dallas v. Richmond, 152 Tex. 354, 258 S.W.2d 60 (1953). When reasonable men may differ as to the truth of controlling facts, a jury issue is present. Najera v. Great Atlantic & Pacific Tea Co., 146 Tex. 367, 207 S.W.2d 365 (1948). See, 3 McDonald, Texas Civil Practice, Sec. 11.28.2 (1970).

The workmen’s compensation law does not provide for health insurance but is purposefully designed to compensate an employee for incapacity flowing from an accidental personal injury while engaged in the performance of his employment. As was stated in Whitaker v. General Insurance Co. of America, 461 S.W.2d 148, 151 (Tex.Civ.App. — Dallas 1970, writ ref’d n. r. e.):

“The mere fact that an employee dies while on the premises of his employer, and during working hours,' is not sufficient. It is incumbent upon one seeking to recover death benefits under the law to prove that the deceased sustained an injury which caused or contributed to cause the death.”

However, in Baird v. T. E. I. A., 495 S.W.2d 207, 211 (Tex.1973), this court recently reaffirmed that a heart attack caused by strain or over-exertion is an accidental injury to the physical structure of the body within the meaning of the Workmen’s Compensation Act. With reference to the causal connection required to be established between the exertion and the heart attack, the court in Baird went on to conclude that “. in the very nature of these cases, the evidence is most often largely circumstantial or based on answers by medical witnesses to hypothetical questions.” The crucial evidence produced in the case now before us when viewed in the light most favorable to the plaintiff is substantially as follows:. Deposition testimony of Henderson’s supervisor, Joseph Dawson, established Henderson’s work activities on the day in question. Dawson testified:

“Q What was Mr. Henderson’s job?
“A He was running an air hoist or air tugger.”
“Q Okay. Now, what time of day did Mr. Henderson come to work that morning?
“A He was there at 7:30.
“Q All right, he began his regular shift?
“A At 7:30.”
“Q Mr. Dawson, did Mr. Henderson work at this job as operating that air tugger all during the day, that is, eight hours of his shift on the day he died?
“A Yes, sir, that was his primary job.”

Donald LeBlanc, a co-worker with Mr. Henderson, testified by deposition as to the normal duties of an “air tugger operator.” LeBlanc had not worked with Henderson on the day of Henderson’s death, but he had operated an air tugger on numerous occasions. LeBlanc testified as follows:

“Q Assume with me that Mr. Henderson was working this job of operating the air tugger by himself. Is it a physically strenuous or demanding job?
“A Definitely so. Most of the time you are working around people and your loads could be endangering the people that you’re working around if you’re not real careful what you’re doing. . . . You’ve got to listen to the whoops and hollers, and we’ve got certain signals for up and down or hold it. And there’s a bunch of people and everybody hollering, and so you can’t really see actually where your load is.
"Q How about just the physical strain, that is, whether you have to pull or push or use your muscles any?
“A If you’re just running a lever, no. But that ain’t all there is to running an air tugger. You’ve got to pull cable, keep it straight, and like I say, I’ve seen very few times when people have sat down and run an air tugger. It’s very few and far between.
“Q How about just moving around; do you have to do a good bit of moving from one place to another?
“A Every move you make, every time you let off on that air tugger, you’ve got to move to the front and pull it.
“Q Is that something you can do just kind of leisurely . . .?
“A Well, you’ve got people hollering at you all the time and the bosses, and also you know that someone is going to be in a strain if you don’t go up or come down on the other end, so you are usually moving pretty good on an air tugger.
“Q How about any mental strain or mental pressure; is there any of that on that particular job?
“A Again, it depends on the type of work you’re doing. Personally, a lot of times, there’s a lot of mental strain because you are working with people and real close, and the wrong move could hurt someone.”
“A So you are worried about somebody being under you at all times. Sure, it’s a strain, unless you’re just picking up a bucket or something when no one is around. But it is definitely a strain.
“Q Can you work at your own pace and at your own speed in doing the job that Mr. Henderson was doing or not?
“A Well, if you’re running an air tug-ger, sometimes you may make three lifts a day, but most of the time it’s continually up and down all the time. And when the people flag you to get up, you get up. And when they flag you to get down and pull up slack, you go to the front and you pull slack.”

We believe there is at least some evidence presented which raises an issue as to whether or not Henderson suffered any strain or exertion while at work.

However, an additional aspect of this type of action which must now be considered is whether there is any evidence in this record which would raise a fact issue as to whether or not any strain or exertion suffered by Henderson was a producing cause of his heart attack. Dr. Gwynne performed an autopsy on Henderson on January 17, 1973. The doctor indicated that Henderson had an enlarged left ventricle and Dr. Gwynne further testified by deposition in the following fashion:

“Q Doctor, assume that the history that you got second hand about Mr. Henderson’s death and the circumstances surrounding it was correct, and then taking into account your autopsy and the findings, do you have an opinion based upon reasonable medical probability as to what the immediate cause of Mr. Henderson’s death was, medically speaking?
“A I have an opinion as to the most probable cause of death in this case.
“Q All right, sir.
“A As I indicated in my report to the Judge and in my completed protocol, I feel the most probable cause of death was cardiac arrhythmia, irregularity in the action of the heart, producing inadequate flow of blood to the heart itself and to other vital organs; this cardiac arrhythmia resulting from insufficient blood supply and consequently insufficient oxygen supply to the muscle of the heart, . . . This reduction in blood flow to the muscle of the heart would be more likely in the presence of an enlarged left ventricle, a left ventricle enlarged because of high blood pressure, which commonly occurs in high blood pressure. Although I don’t have a record of the man’s blood pressure, this would be likely — high blood pressure would be likely in a man with nodular hyper-plasia of the adrenal cortices, as I described in my protocol.
“Q What is the exact relationship between physical exertion then and this heart arrhythmia, or how does physical exertion get us to heart arrhythmia?
“A [I]f we have a man with a borderline blood supply to his heart, and then he exerts himself, maybe just a little bit, you see, and then his heart needs to speed up and needs to work harder. ... Then from having barely enough, he goes to having not quite enough, and then that can precipitate this sort of thing, and will be associated with the development of a thrombus and myocardial infarction, or an occlusion, a functional or a myocardial occlusion.
“Q How about the arrhythmic situation here?
“A As I say, under conditions of increased need for oxygen in the poorly supplied myocardium, they can go from barely enough oxygen and nutrients getting to the heart to not quite enough, and then the not quite enough can produce a fatal cardiac arrhythmia, which I think is probably what happened here.”

See, Insurance Company of North America v. Kneten, 440 S.W.2d 52, 54 (Tex.1969).

Additionally, the pertinent deposition testimony of Dr. Joe Alex DeLeon, a cardiologist, was subsequently read into the record. Dr. DeLeon was asked to give his opinion about the cause of death and he responded as follows:

“Q Assume for the purpose of the question further that operating the air hoist and greasing the bolts were things which did not involve great physical stress, but did involve a moderate amount of physical movement or moving around — and again getting back to my question of defining a ‘producing cause’ as simply being one of the things however many there may have been that brought about the event. Then, in your opinion would the physical activity prior to his death have been one of the or a producing cause of his death in your judgment?
“A Yes, sir, it could be.
“Q All right, sir. Is that based on reasonable medical probability?
“A Yes, sir, to the best of my knowledge.”

On cross-examination, Dr. DeLeon stated that “[gjenerally speaking most people die either from physical activity or work —tennis, working out or doing other enjoyable things. ... So, that if the man had been working, this could have produced his enlarged myocardium which could have led to sudden arrhythmia and sudden death.” We believe that this is some evidence that the heart attack was caused by Henderson’s strenuous work on the day of his death.

It was revealed that Henderson had suffered a prior on-the-job injury in 1969. Because of the injuries sustained at that time, Henderson was placed on “light” or “restricted duty” by his employer. However, Donald LeBlanc, who was Henderson’s coworker, was asked the question as to whether or not Texaco considered the operation of an air tugger to be a “light duty” job. In responding, LeBlanc stated: “Definitely not, not all air tuggers.”

The cases which respondents rely most heavily upon are Olson v. Hartford Accident & Indemnity Company, 477 S.W.2d 859 (Tex.1972), and Whitaker v. General Insurance Company of America, 461 S.W.2d 148 (Tex.Civ.App. — Dallas 1970, writ ref’d n. r. e.). However, we do not find those authorities controlling of the present controversy. In Olson, the facts revealed that the plaintiff did not perform any manual labor to speak of and previous to his heart attack, the plaintiff was not subjected to any particular physical strain or over-exertion. Further, recovery was sought under the theory that the plaintiff had suffered three or four irritating and frustrating job experiences over a 19-day period which together allegedly precipitated the heart attack (i. e. mental stimuli). Finally, the court noted that no attempt was made to connect any one of the frustrating experiences to the heart attack suffered by the plaintiff. Olson, supra at 859. Such is obviously not the same situation as the one now before us. As for the court of civil appeals decision in Whitaker, we also regard it as being clearly distinguishable from the instant case. In Whitaker the court upheld the trial court’s action sustaining the insurance company’s motion for judgment non obstante veredicto. The court held that there was no evidence to support a jury finding that the heart attack the plaintiff had suffered was an injury sustained in the course of his employment and that such injury was a producing cause of plaintiff’s death. In reaching its decision, the court reviewed the following testimony elicited from an individual who worked with Whitaker on the day of his death:

“Q. All right. Were you there at all times except for your lunch hour?
“A. Yes, sir, I was.
“Q. During that time that you were there, both morning and afternoon, did he (Whitaker) ever do anything strenuous, such as change a tire?
“A. No, sir.”

The plaintiff in Whitaker had suffered an earlier heart attack a few months prior to his going to work at the gas station. Dr. Markowitz, after testifying concerning his treatment of Whitaker for the previous heart condition and attack, and based upon a hypothetical question concerning the activity engaged in by Whitaker at the service station, was asked to state whether or not the man simply suffered another attack or whether he might have suffered an injury which caused an attack. The doctor stated that there was no way to give such an opinion. He testified that without an autopsy he was not 100 percent sure that the second attack killed Whitaker but he would have to assume that he died of a heart attack. The court of civil appeals also found that other medical testimony elicited was improperly based upon facts not in the record. Under the record in Whitaker, the court concluded that there was no evidence of probative force that Mr. Whitaker was called on to perform any work that required strenuous exertion or strain. The court announced that the limited medical testimony offered by the plaintiff was too speculative to constitute probative evidence and upheld the trial court’s judgment non obstante veredicto. Again, we believe the fact situation presented in Whitaker to be substantially different from the situation presently before us. We find that the other eases relied upon by the respondents are similarly distinguishable.

In conclusion, it is always difficult in this type of case to answer the problem of whether the evidence, most often circumstantial, and the inferences drawn therefrom, present issuable facts. “There is no precise rule to measure probative force and by which to decide if questions of fact are raised by the evidence.” Baird v. T. E. I. A., 495 S.W.2d 207, 211 (Tex.1973). In the case now under consideration, it was revealed that Henderson had worked a full shift doing a job that could often be strenuous in nature. We have testimony from the doctor who actually performed the autopsy on Henderson to the effect that the cause of death was, in his opinion, cardiac arrhythmia. This medical testimony was further substantiated by Dr. DeLeon. As a result, givehjthis record, we cannot say that the evidence offered to prove the vital facts is so weak as to do no more than create a mere surmise or suspicion of their existence. See, Seideneck v. Cal Bayreuther Associates, 451 S.W.2d 752, 755 (Tex.1970); Joske v. Irvine, 91 Tex. 574, 44 S.W. 1059 (1898); Calvert, “No Evidence” and “Insufficient Evidence” Point of Error, 38 Texas L.Rev. 361 (1960). We hold that the circumstances thus shown by the evidence are such as to call for a factual determination of whether Henderson suffered an injury in the course of his employment, and, if so, whether such was a producing cause of his death.

Accordingly, we reverse the judgment of the court of civil appeals and remand this cause to the trial court.

Concurring opinion by REAVLEY, J., in which STEAKLEY, J., joins.

Dissenting opinion by GREENHILL, C. J., in which DENTON, J., joins.

REAVLEY, Justice

(concurring).

Mrs. Henderson is entitled to receive death benefits under the workmen’s compensation law if her husband’s death occurred when it did because of an injury sustained in the course of his employment. A heart attack precipitated or brought on by the activity of the job is an injury sustained in the course of employment. A claimant must prove activity and then prove that the activity was a cause of this particular attack or injury. The proof cannot stop at possibility — nor need it reach certainty; it is enough to prove the probability. The claimant need only produce evidence and obtain findings that it is more likely than not that the workman’s activity at his work overstrained his heart and precipitated his death.

The testimony of Dr. Gwynne and of Dr. DeLeon may be reasonably construed to the effect that it was their opinion that Owen Henderson’s work probably precipitated his heart attack and death. The jury was entitled to construe their testimony to that effect — and to accept it.

The problem here is whether a jury would be entitled to find — and whether the doctors were entitled to assume — physical activity by Henderson prior to his attack. This is by no means the first case where the efforts and injury of the workman have been connected by circumstantial evidence rather than by eyewitness testimony of a particular event to which the injury is directly connected. In Carter v. Travelers Ins. Co., 132 Tex. 288, 120 S.W.2d 581 (1938), a hotel maid died of a cerebral hemorrhage. There was no proof of her movements on her last day at work. It was proved that she had been at her job for two or three hours before complaining of a pain in the back of her head, and it was proved that on prior days she had lifted heavy articles and moved furniture in the course of her employment. The proof was circumstantial, but it was legally sufficient to support the finding of the jury.

The very fact that tasks were preformed may be evidence of the workman’s effort required to perform them. So in Pan American Fire & Casualty Co. v. Reed, 436 S.W.2d 561 (Tex.Civ.App.1968, writ ref’d n.r.e.), there was no witness available to testify to a particular incident of exertion immediately prior to the collapse of the truck driver, who was found dead in front of his truck; it was enough to prove that he had worked all day and that he had apparently drained a pump prior to his death. In Standard Fire Ins. Co. v. Sullivan, 448 S.W.2d 256 (Tex.Civ.App.1969, writ ref’d n.r.e.), circumstances tended to prove that the deceased had operated a tractor to cut weeds on the day of his death.

I do not contend that all of the cases can be harmonized. Unfortunately, the courts are not always consistent. Por example, in Monks v. Universal Underwriters Ins. Co., 425 S.W.2d 431 (Tex.Civ.App.1968, writ ref’d n.r.e.), circumstances tended to prove that the workman was pulling a wheel and tire from the hub of an automobile at the time of the heart attack which caused his death. In my opinion a directed verdict was not justified.

The evidence in the present case indicates that Owen Henderson died at his job after having performed a full day’s work which began at 7:30 a.m. There was evidence that his work was physically strenuous or demanding. Examples were given of the types of strain and pressure required by his job. We have no reason to require proof of an episode of physical exertion at the instant before Henderson collapsed — not if the doctors do not require that to make the medical causal connection. The doctors took the findings of the autopsy and the time and place of Henderson’s death; then with their knowledge and experience they concluded that Henderson’s work probably was a producing cause of his death.

I believe that a jury could find that Henderson’s body was subjected to strain by this day’s work. It is not a question of presumption — or presumption upon presumption. It is simply that evidence that Henderson successfully completed this day’s work, together with evidence of what his job required, reasonably support the conclusion that Henderson probably did tire and strain his diseased heart until the deadly attack occurred.

I concur in the remand of the cause for trial.

STEAKLEY, J., joins in this concurring opinion.

GREENHILL, Chief Justice

(dissenting).

Only four years ago, this Court, following its previous holdings, held that for there to be an accidental injury, or an industrial accident, there must be an undesigned, untoward event traceable to a definite time, place, and cause. This was in a heart attack case, Olson v. Hartford Accident & Indemnity Co., 477 S.W.2d 859 (Tex.1972). That opinion quoted the late Justice Norvell who had written that the Legislature has not provided health insurance, but has designed the law to provide for compensation for incapacity flowing from an accidental personal injury except in cases of occupational diseases. That opinion reviewed our previous heart attack cases. They show a liberal interpretation of the workmans’ compensation statute, but nevertheless a requirement of some particular strain, exertion, or other precipitating event.

Almost any job insured for workmens’ compensation contemplates some form of physical activity, some more strenuous than others. It is difficult to imagine instances where the employment of workmen could not involve physical activity and some strain.

What we have in this case is a job description, — the type of work the man did, and testimony of the job description that the work could be strenuous, plus some testimony, later discussed, that the job was strenuous.

Neither the Court nor the plaintiff cite any cases wherein a general job description, which includes the possibility of strenuous activity, has been held to be sufficient for a recovery under workmens’ compensation. On the other hand, there is a substantial line of cases, all approved by this Court, where this has been held not to be enough.

Evidence amounting to a general job description was found to be insufficient in the following cases. In Whitaker v. General Insurance Co., 461 S.W.2d 148 (Tex.Civ.App.1970) writ ref’d n.r.e., the plaintiff had the same type of attack as Mr. Henderson. He had an arrhythmia and ventricular fibrillation. There was direct evidence that the plaintiff worked at the service station but no evidence that he performed any particular activity which was competent to produce the attack. The Court held that there must be probative evidence that one seeking recovery did actually sustain a strain or exertion which amounted to a compensable injury and the mere fact that an employee dies on the working premises is not enough.

In O’Dell v. Home Indemnity Co., 449 S.W.2d 485 (Tex.Civ.App. — 1969), writ ref’d n.r.e., the Court held that:

“While the evidence presented here indicated that the work performed by the deceased was normally strenuous, plaintiff produced no evidence that O’Dell’s heart attack was related to or occasioned by any unusual strain or overexertion in O’Dell’s work. Evidence that the work performedby the deceased was strenuous, standing alone, is not sufficient.” [Emphasis added.]

There was no evidence of particular activities causing strain or overexertion and the court stated that in order to show a com-pensable injury of this nature, strain or overexertion may not be presumed. It must be shown by the evidence.

In General Accident, Fire & Life Assur. Corp., Ltd. v. Perry, 264 S.W.2d 198 (Tex.Civ.App.1954) writ ref’d n.r.e., Plaintiff was found dead at the intersection of two highways after walking one mile from a tractor which he had been operating. His job was to build and repair fences and to operate a tractor with a sickle-type moving blade.

There was direct evidence that plaintiff had been driving the tractor mowing grass along the road and that it had mired up on the side of the road; that some attempt had been made to unstick the tractor; that the wheels of the tractor were more difficult to turn when it was mired; but there was no evidence of particular stress or event which caused his attack. The holding was that the trial court should have granted the defendant’s motion for judgment notwithstanding the verdict.

In Monks v. Universal Underwriters Ins. Co., 425 S.W.2d 431 (Tex.Civ.App.1968) ref’d n.r.e., the Court found no evidence of strain or exertion beyond the normal activities of his job as an auto mechanic. His job could have been strenuous. He had been changing tires that morning and there was direct evidence that he had taken the lugs off the wheels with a machine. No one testified to his specific activities at the time of the attack or as to any strain or exertion. He became ill while “criss-crossing” tires on an automobile. The general job description was held to be no probative evidence, — even a description of work done that morning. The holding was that the trial court correctly instructed a verdict for the defendant.

In Bean v. Hardware Mutual Casualty Co., 349 S.W.2d 284, (Tex.Civ.App.1961) writ ref’d n.r.e., the employee operated a blacksmith shop and handled pieces of metal. Some pieces were heavier than others. It was his duty to bring these pieces ,of metal into the shop with the assistance of a chain hoist. The only evidence admitted before the court amounted to a general job description of plaintiff's typical duties as an iron cutter for the Texas Metal Works, which work could have been strenuous. The Court refused to pile presumption on presumption such as to first presume that plaintiff was doing the strenuous work on the day in question and then that he suffered some strain or exertion causing injury which then caused the attack resulting in death three years later. There was no evidence other than that he worked that day and that he performed some duties which he normally performed.

In Houston Fire & Casualty Ins. Co. v. Biber, 146 S.W.2d 442 (Tex.Civ.App.1940) writ dism’d. judgmt. cor., the plaintiff Biber, a foreman at a cotton seed company, while at work collapsed between the seed house and the office on a hot day. Evidence amounting to a typical job description for the employee was introduced, but there was no evidence that he actually performed any of the strenuous activities described. Plaintiff relies on inferences. The late Justice Norvell wrote that, “the fact that Biber was about the premises of the employer, in itself is not sufficient to establish the necessary causal relationship.” “The jury findings to the effect that Biber while in the course of his employment underwent physical exertion or became overheated causing a cerebral hemorrhage and death are based upon speculation, conjecture and surmise and therefore cannot stand.”

In Travelers Ins. Co. v. Smith, 448 S.W.2d 541 (Tex.Civ.App.1969) writ ref’d n.r.e., the employee had been employed as a pumper and treater for oil wells. His duties were to carry chemicals in 30 pound containers to the wells and to lift other materials weighing 50 to 100 pounds. The day he had a heart attack, he left home at 6:30 a.m. There was evidence that the deceased was seen driving his employer’s truck at 9:00 a.m., going to a lease where the employer’s well needed treatment. He had with him the necessary equipment to do the treatment, but at 10:00 a.m. he was at home with chest pains. The court found no valid proof that the deceased suffered a strain or overexertion. “Evidence which establishes only that the event could have occurred does not satisfy the requirement, it must be sufficient to support a finding that it did occur.” That deceased could have been moving some equipment does not constitute evidence of probative force. Notwithstanding a dissent by one justice of the Court of Civil Appeals, this court denied a writ of error.

Our case, in my opinion, is not controlled by Baird v. Texas Employers Insurance Company, 495 S.W.2d 207 (Tex.1973). This Court pointed out in Baird that before the employee had the heart attack, he had had repeatedly to climb a ladder and was doing work that he had not customarily done, i.e., bending conduits. The medical testimony as to causation was centered on these particular physical activities, — climbing ladders, lifting aluminum sheets, and twisting conduits overhead while on the ladder. There was in Baird at least some proof of direct, job related strain. It wasn’t much; and, in my opinion went as far as the Court should go. This case goes much farther,— or all the way.

Other eases are cited by the plaintiff, but they all at least purport to follow the general rule of Olson, and they are distinguishable.

In Continental Insurance Company v. Marshall, 506 S.W.2d 913 (Tex.Civ.App. no writ), the El Paso Court restated the rule established in Olson, supra, that there must be an occurrence traceable to a definite time and place. The plaintiff in Continental was found dead at the top of a flight of stairs. His job involved opening a valve at the top of the stairs. The valve was half open, and a tool used to open valves was lying beside the plaintiff. He had suffered a prior attack while attempting to open such a valve. While no one saw him attempt to open the valve, there is certainly direct evidence of his climbing the steps and strong circumstantial evidence of his attempt to open the valve. Medical testimony established the causation factor.

In Hardware Mutual Casualty Company v. Wesbrooks, 511 S.W.2d 406 (Tex.Civ.App. —Amarillo 1974, no writ), there was direct evidence that the plaintiff suffered pain in the chest, difficulty in breathing and complained of heart pains, following his efforts in moving heavy jacks for Wesbrooks Hydraulic Equipment Service Company. Plaintiff there presented direct evidence of a particular job related occurrence which caused the attack.

In the present case the plaintiff has presented no evidence of any work activities actually performed on the day of the attack and has produced only testimony consisting of a general job description to indicate the possibility of job related activities resulting in strain or exertion. The plaintiff’s medical expert testified that if the plaintiff had worked as an air tugger operator and the job had been mildly strenuous, it could have been a producing cause, but so could about any other activity or stress unrelated to the job.

The only evidence suggesting that the job could be strenuous is contained in testimony from Mr. Donald L. LeBlanc, also an air tugger operator at Texaco, who testified as to the general nature of deceased’s job. He also testified that he did not observe Mr. Henderson at work on January 16, 1978, and had no first-hand knowledge of what he actually did that day. All parties admit that the job is different on different units and at different times and that Mr. Le-Blanc was testifying regarding a general description of the job of air tugger operator. Mr. LeBlanc could not say for sure that he had ever worked on the particular unit where Mr. Henderson supposedly worked on January 16, 1973.

Mr. LeBlanc’s testimony indicated that the operation of an air tugger could be physically and mentally taxing and it usually took two people to run or operate it. He testified based upon the assumption that plaintiff was operating the tugger by himself.

On the other hand, Mr. Dawson, the supervisor, testified that unless the person running the air tugger let the cable pile up on the drum, and get tangled, he ordinarily would not be required to pull it off by hand. He also said that on this unit the operator would not ordinarily pull the slack out, and a good craftsman would not have a problem with cable pile-up.

There is no direct testimony from anyone who observed any of the plaintiff’s activities on January 16, 1973. Mr. Dawson, plaintiff’s supervisor, was the only witness called to testify as to the actual nature of plaintiff’s work on the day of his death. He testified that the plaintiff was there at 7:30 and that running the air tugger was his assigned job. When asked, “Did Mr. Henderson work at this job as operating that air tugger all during the day, that is, eight hours of his shift on the day he died?”, Mr. Dawson answered, “Yes, sir, that was his primary job.” Taken in isolation that statement is misleading because Mr. Dawson also testified that, “On this day, the only contact that I actually had with him (plaintiff) was probably just, ‘Good morning, Oakie.’ ” He also testified that he might have been up on the structure all day, that he did not supervise Mr. Henderson’s work, and that he was not aware of Mr. Henderson’s particular activities on the day of his death.

As stated, the possibility of strain or exertion is present in all types of employment especially those jobs involving some element of manual labor. If proof that one’s job may, or even usually does involve some manual labor, or may be strenuous, is sufficient to establish particular strain or overexertion for recovery under the Workmen’s Compensation Laws, then we really have turned this legislation into health insurance. Health insurance may be highly desirable, but the Legislature has not provided for it.

I agree with the judgments of the trial court and the Court of Civil Appeals and with the opinion of the Court of Civil Appeals where the holdings are that there is present in this case no evidence of probative value which raises a fact issue as to plaintiff’s suffering any particular strain or exertion while at work. I would affirm.

DENTON, J., joins in this dissenting opinion.

      . It should be noted at this point that it is not required that the injury in the course of employment be the sole cause of disability or death, and that a predisposing bodily infirmity will not preclude compensation. See, Texas Indemnity Ins. Co. v. Staggs, 134 Tex. 318, 134 S.W.2d 1026 (1940).


author: STEAKLEY, Justice.

text:
    Ray CONSTANCE, Petitioner, v. Grace Carol CONSTANCE, Respondent.
    No. B-6141.
    Supreme Court of Texas.
    Dec. 15, 1976.
    Rehearing Denied Jan. 12, 1977.
    Bartram, Reagan & Burrus, Charles E. Blackley, New Braunfels, for petitioner.
    Dickson & Associates, William Dickson, Houston, for respondent.
   STEAKLEY, Justice.

This is an action by Grace Carol Constance, Respondent, against her former husband, Ray Constance, Petitioner, for partition of military retirement benefits received by him subsequent to their decree of divorce. The trial court ruled that the divorce decree adjudicated ownership of the benefits in the husband and sustained his plea of res judicata. The Court of Civil Appeals ruled otherwise and reversed the judgment of the trial court and remanded the cause. 537 S.W.2d 488.

The parties were married in September 1952 and were divorced on April 6, 1967. There were three sons born of the marriage who were between the ages of five and thirteen at the time of the divorce. The husband completed 20 years of service in the United States Army and became eligible for retirement in February 1965. He retired on May 1, 1967, approximately a month subsequent to the divorce. This suit was instituted by the wife in 1973.

The question to be decided is whether the decreed division of the property in the April 6, 1967 divorce judgment adjudicated ownership of the retirement benefits to be received by the husband after retirement. The wife agrees that if the benefits were awarded to her husband, the plea of res judicata was properly sustained by the trial court in this proceeding.

The controlling provisions of the divorce decree are as follows:

And it further appearing to the Court that there were three children born as issue of said marriage, to-wit: Ray Constance, Jr., a male child, born September 27, 1962; Charles Edward Constance, a male child, born March 3,1954; and Robert Louis Constance, a male child, born June 3, 1960, and it further appearing to the Court that the best interest of said minor children will be served if the three minor children are awarded to Plaintiff. It is therefore ORDERED, ADJUDGED and DECREED by the Court that the care, custody and control of said minor children, Ray Constance, Jr., Charles Edward Constance, and Robert Louis Constance, be and are hereby awarded to Plaintiff and that Defendant shall be afforded reasonable rights of visitation. And it further appearing to the Court that the Defendant is being retired as a Sergeant from the U.S. Army on a 20 year retirement plan and will receive approximately $220.00 per month as retired pay at this time, and that plaintiff has spent approximately fifteen years of the twenty years upon which the retirement is based as his wife, and inasmuch as no award is being made to Plaintiff for any portion of the retired pay, the Court finds that the sum of $200.00 per month for child support is reasonable and it is accordingly ORDERED by the Court that the Defendant contribute the sum of $200.00 per month toward the support and maintenance of said minor children and that the first payment in the sum of $200.00 shall be due and payable on the first day of May, 1967, and a like payment shall be due and payable on the first day of each and every succeeding month thereafter until the youngest child shall attain the age of eighteen years, or until further ordered by the Court. (Italics are added for emphasis).

A division of other properties of the parties was decreed in accordance with their agreed property settlement which the court found to be fair, just and equitable. The settlement agreement did not contain any reference to the retirement benefits.

It was the view of the Court of Civil Appeals that the provisions of the divorce decree pertaining to the retirement benefits, quoted above, “constitute nothing more than an opinion or finding of the court and makes no adjudication,” and that the benefits were thereafter held jointly by the parties as tenants in common. We disagree.

Judgments, like other written instruments, are to be construed as a whole toward the end of harmonizing and giving effect to all the court has written. Rodgers v. Williamson, 489 S.W.2d 558 (Tex.1973); Lone Star Cement Corp. v. Fair, 467 S.W.2d 402 (Tex.1971); Larrison v. Walker, 149 S.W.2d 172 (Tex.Civ.App.1941, writ ref’d). Conclusive effect is not to be given the use or not at a particular point in the judgment of the commonly employed decretal words, and what the court has adjudicated is to be determined from a fair reading of all the provisions of the judgment.

It is clear on the face of the decree in question that the award of $200 per month for child support rested upon the decision of the trial court to award the retirement benefits to the husband. Moreover, it is reasonable to conclude that the trial court and the parties recognized that the ownership of this property had been decreed; otherwise, the retirement benefits would have been included in the agreed property settlement and in the decreed division of the properties based thereon. The inclusion of the retirement benefits in the express terms of the divorce decree renders inapposite Busby v. Busby, 457 S.W.2d 551 (Tex.1970), and like cases, where the judgments were silent with respect to the property in question, and where, in this cireum-stance, the husband and wife became tenants in common with the omitted property subject to later partition.

The judgment of the Court of Civil Appeals is reversed and that of the trial court is affirmed.


text:
    Shirley CEARLEY, Petitioner, v. Robert L. CEARLEY, Respondent.
    No. B-6051.
    Supreme Court of Texas.
    Dec. 15, 1976.
    Mitchell, George & Belt, Terry L. Belt and Arthur Mitchell, Austin, for petitioner.
    Bolton & Bolton, Michelle B. Bolton, Cedar Park, for respondent.
    Donald R. Smith, Dallas, and Reba Graham Rasor, Raggio & Raggio, Inc., Dallas, amicus curiae, for petitioner.
   DANIEL, Justice.

This is a divorce case in which the only remaining question concerns the propriety of the trial court granting the wife a fractional interest in future military retirement benefits if and when received by the husband.

Prior to the divorce on June 3, 1975, Robert L. Cearley had served for 19 years as an enlisted man in the Air Force, during which period he and Shirley had been married for 18 years. Robert was to have completed the 20 years necessary for receipt of retirement benefits on May 7, 1976, and his enlistment at the time of the divorce extended to August 31, 1976.

The trial court ordered that “If and when Robert L. Cearley . . . retires and receives a retirement benefit then, and in such an event, the Petitioner [Shirley Cearley] is to receive one-half (½) of 18 of the fraction of the number of years of active service until retirement . . .” The Court of Civil Appeals reversed and rendered only that portion of the judgment awarding the wife a share of the contingent retirement benefits. Tex.Civ.App., 536 S.W.2d 96. We reverse the judgment of the Court of Civil Appeals and affirm the judgment of the trial court.

The Court of Civil Appeals held that the trial court was without authority to order division of the husband’s prospective military retirement benefits because no vested interest had been acquired therein at the time of the judgment. We have jurisdiction under Section 2 of Article 1728 because the above decision is in conflict with the decision of the Court of Civil Appeals in Miser v. Miser, 475 S.W.2d 597 (Tex.Civ.App.1971, writ dism’d), on a question of law material to a decision of this case.

Military Retirement Pensions Earned During Coverture Are Community Property

Section 5.01 of the Family Code provides that community property consists of the property, other than separate property, acquired by either spouse during marriage. A spouse’s separate property consists of the property acquired by the spouse by gift, devise or descent. Despite an earlier view that retirement and pension plans were gifts bestowed by benevolent employers on retiring employees, they are now regarded as a mode of employee compensation earned during a given period of employment. The earlier view was rejected in Lee v. Lee, 112 Tex. 392, 247 S.W. 828 (1923), in the following language construing a corporate employee’s benefit:

“It was in no sense a donation to the employe for individual merit, but was manifestly additional compensation for faithful and continuous service. It was as much a fruit of his labors as his regular wages or salary. It was in the strictest sense a ‘gain’ added to the common acquests of the marital partnership, as the direct result and fruit of his labor and services.”

It is now well established that matured private retirement, annuity, and pension benefits earned by either spouse during the marital relationship are part of the community estate and thus subject to division upon dissolution of the marriage. Herring v. Blakeley, 385 S.W.2d 843 (Tex.1965); Hughes, “Community Property Aspects of Profit-Sharing and Pension Plans in Texas — Recent Developments and Proposed Guidelines for the Future,” 44 Tex.L.Rev. 860 (1966).

The same characterization of community property was first given to military retirement benefits by this Court in Busby v. Busby, 457 S.W.2d 551 (Tex.1970), which approved a holding in Kirkham v. Kirkham, 335 S.W.2d 393 (Tex.Civ.App.1960, no writ), that “the military retirement pay account was not a gift or gratuity but an earned property right which accrued to him by reason of his years in military service; the military retirement pay account was earnings of the husband during marriage, and as such, community property.” This Court also cited with approval similar holdings in Mora v. Mora, 429 S.W.2d 660 (Tex.Civ.App. 1968, writ dism’d); Webster v. Webster, 442 S.W.2d 786 (Tex.Civ.App.1969, no writ); LeClert v. LeClert, 80 N.M. 235, 453 P.2d 755 (1969); Morris v. Morris, 69 Wash.2d 506, 419 P.2d 129 (1966). Other cases with similar holdings are Ables v. Ables, 540 S.W.2d 769 (Tex.Civ.App.1976, no writ); Freeman v. Freeman, 497 S.W.2d 97 (Tex.Civ.App.1973, no writ); and Miser v. Miser, 475 S.W.2d 597 (Tex.Civ.App.1971, writ dism’d).

Future Pension Benefits As Contingent Community Property Rights

While the status of military pension benefits earned during marriage is now firmly established as community property, the decisions in this and other community property States have differed as to whether the pension payments must have vested or matured before they are subject to apportionment by a divorce court, .or whether future contingent payments may be apportioned “if, as, and when” they mature and are received by the retired spouse. The argument of the husband, and the holding of the Court of Civil Appeals in the instant case, is that the power of the divorce courts to “order a division of the estate of the parties” does not apply to future military retirement benefits because they have not been “acquired” or vested during the marriage. Sections 3.63 and 5.01, Texas Family Code (1975).

For such contingent or inchoate rights to reach the status of assets of the estate of the parties, the Court of Civil Appeals held that “all events [must] have occurred which fix the liability of the government” to pay retirement benefits, adding: “The conditions must be such as would entitle the claimant [husband] to institute an action, if necessary, for a money judgment.” This is a more rigid requirement than has been found in any other case or writing on the subject. It comes nearer to the rule of French v. French, 17 Cal.2d 775, 112 P.2d 235 (1941), which plagued the California courts until the Supreme Court of California reversed itself in Brown v. Brown, 15 Cal.3d 838, 126 Cal.Rptr. 633, 544 P.2d 561 (1976). The French case, supra, involved the wife’s claim to a community interest in a portion of the prospective retirement pay of her husband, an enlisted man in the Fleet Reserve, payable if and when he completed additional years of service. The California Supreme Court held that this “non-vested” pension right was a mere “expectancy” and thus not a community asset subject to division upon dissolution of a marriage. Reliance on the date of collectibility as the inception of contingent pension rights earned during coverture was soon recognized to be inconsistent with basic community property principles. The French decision led to much criticism and attempts by lower California courts to find reasons for distinguishing the case and extending community property protection to unmatured retirement benefits.

We shall quote at length from Brown v. Brown, supra, because of the California Supreme Court’s long and careful study of the community property aspects of the question which now faces this Court:

“Upon reconsideration of this issue, we have concluded that French v. French should be overruled and that the subsequent decisions which rely on that precedent should be disapproved. As we shall explain, the French rule cannot stand because nonvested pension rights are not an expectancy but a contingent interest in property; furthermore, the French rule compels an inequitable division of rights acquired through community effort. Pension rights, whether or not vested, represent a property interest; to the extent that such rights derive from employment during coverture, they comprise a community asset subject to division in a dissolution proceeding. [15 Cal.3d at 843, 126 Cal.Rptr. at 634, 544 P.2d at 562]
“We conclude that French v. French, and subsequent cases erred in characterizing nonvested pension rights as expectancies and in denying the trial courts the authority to divide such rights as community property.- This mischaracterization of pension rights has, and unless overturned, will continue to result in inequitable division of community assets. Over the past decades, pension benefits have become an increasingly significant part of the consideration earned by the employee for his services. As the date of vesting and retirement approaches, the value of the pension right grows until it often represents the most important asset of the marital community.
“The present case illustrates the point. Robert’s pension rights, a valuable asset built up by 24 years of community effort, under the French rule would escape division by the court as a community asset solely because dissolution occurred two years before the vesting date. . [15 Cal.3d at 847, 126 Cal.Rptr. at 638, 544 P.2d at 566]
“In dividing nonvested pension rights as community property the court must take account of the possibility that death or termination of employment may destroy those rights before they mature. In some cases the trial court may be able to evaluate this risk in determining the present value of those rights. (See DeRevere v. DeRevere, supra, 5 Wash.App. 741, 491 P.2d 249; Thiede, op.cit., supra, 9 U.S.F.L.Rev. 635, 654.) But if the court concludes that because of uncertainties affecting the vesting or maturation of the pension that it should not attempt to divide the present value of pension rights, it can instead award each spouse an appropriate portion of each pension payment as it is paid. This method of dividing the community interest in the pension renders it unnecessary for the court to compute the present value of the pension rights, and divides equally the risk that the pension will fail to vest.” [15 Cal.3d 848, 126 Cal.Rptr. at 639, 544 P.2d at 567]

This method of apportioning prospective unmatured military retirement benefits as part of the community estate had been approved by Texas and New Mexico courts several years earlier. Mora v. Mora, 429 S.W.2d 660 (Tex.Civ.App.1968, writ dism’d); Webster v. Webster, 442 S.W.2d 786 (Tex.Civ.App.1969, no writ); Miser v. Miser, 475 S.W.2d 597 (Tex.Civ.App.1971, writ dism’d); LeClert v. LeClert, 80 N.M. 235, 453 P.2d 755 (1969). In those eases the pension benefits had not matured at the time of divorce because the husbands had not retired. Although all but Miser had served the number of years required for their pension benefits to have accrued, all were still on active duty when their marriages were dissolved; they had not received the required honorable discharges; neither had they met other contingencies enumerated by the Court of Civil Appeals in the instant case as being necessary for such contingent benefits to be apportioned as part of the community estate. Yet, in each of those cases apportionment of the unmatured retirement benefits was ordered or approved if, as, and when received in the future by the prospective retiring spouse, just as the trial court ordered in the instant case. The Mora, Webster and LeClert decisions were cited with approval by this Court in Busby v. Busby, 457 S.W.2d 551 (Tex.1970), which affirmed a partition of matured military benefits, with the wife’s portion to be paid “if, when, and as” the benefits were paid to the husband.

Miser v. Miser, supra, was the first reported case in this State to apply the above method of apportionment to military retirement benefits which had neither accrued nor matured when the marriage was dissolved. The facts were very similar to those in the present case. At the time of the divorce the enlisted man had served approximately eighteen and one-half years in the Air Force, with his current enlistment extending nearly a year beyond the date when he was eligible for retirement. His marriage and his military service coincided for approximately 170 months. The trial court awarded the wife V2 of 170ths “of the number of months Harvey S. Miser has served or attained at the time of retirement . . .if and when he retires and receives a military retirement benefit or pension. The husband made the same arguments against that portion of the divorce decree which are urged in the instant case. In Miser, the Court of Civil Appeals, in a well-reasoned opinion, found no difficulty in applying the rule announced in Mora, Webster, and LeClert to the contingent unma-tured benefits. It affirmed the award of the fractional amount to the wife “when, if and as the payments are eventually made to [the] appellant husband.”

Apportionment As Contingent Property Interest

While the status of unaccrued and unma-tured military retirement benefits earned wholly or partially during marriage is a question of first impression for this Court, we believe that most of the objections to their treatment as a contingent property interest were anticipated and answered by this Court in Busby v. Busby, supra. For instance, the husband there argued that he never possessed a “property right” in his disability retirement benefits during the marriage; that they were a mere expectancy, because he had not retired prior to the divorce, and the rights were subject to forfeiture by death or dishonorable discharge prior to his retirement. These arguments were overruled. The Court held that the benefits were community property at the time of the divorce even though they had not matured and were not at that time subject to possession and enjoyment. As heretofore indicated, the Court cited with approval the decisions in Mora, Webster, and LeClert, supra, which held that the contingencies merely made such benefits subject to non-maturity or divestment. It was held that the fact that the benefits were subject to divestment under certain conditions did not reduce the benefits to a “mere expectancy.” See also Nail v. Nail, 486 S.W.2d 761, 762 (Tex.1972). Even the dissent in Busby, which objected to the recognition of matured retirement benefits as vested property rights, stated that the court granting the divorce “[can] and should take it [retirement benefits] into consideration” in exercising its broad powers under Article 4638 [Section 3.63 of the Family Code], to the end that an order might be entered “that is just and equitable under the circumstances,” citing Mora v. Mora, supra, and Kirkham v. Kirkham, supra.

In Herring v. Blakeley, 385 S.W.2d 843 (Tex.1965), this Court held that profit sharing and retirement plans may be classed as community property even though none of the funds were available or subject to possession at the time of the divorce. The Court said: “Community rights may exist in interests that cannot be reduced to possession, such as remainder or reversion rights.” A similar analogy was made in Brown v. Brown, supra, with respect to the community interest in a contingent fee earned during the marriage but which had not matured at the time of the divorce. See Waters v. Waters, 75 Cal.App.2d 265, 170 P.2d 494 (1946). Although a serviceman’s military pension is not payable before the date of its maturity, it is not “earned” on that day. Rather it is a form of deferred compensation which is earned during each month of his military service. LeClert v. LeClert, supra. The portion that he earned during the months of coverture became contingent earnings of the community which may or may not bloom into full maturity at some future date. We hold that such rights, prior to accrual and maturity, constitute a contingent interest in property and a community asset subject to consideration along with other property in the division of the estate of the parties under Section 3.63 of the Family Code.

Any other decision would result in an unnecessary multiplicity of suits. The present case is a good example. The trial court has properly settled the matter in the divorce judgment if, as, and when the retirement benefits mature. It was shown at the trial that the husband was to have completed the 20 years necessary for accrual of his retirement benefits on May 7,1976, with the possibility of maturity at the end of his current enlistment on August 31, 1976. It is possible that either or both of these events have occurred. If the trial court were reversed on the basis set forth by the Court of Civil Appeals, then Shirley Cearley, in order to obtain her share of the benefits which were earned during the marriage, would have to file a second lawsuit against Robert Cearley for partition thereof after the date that the retirement benefits mature.

The bench and the bar were cautioned by this Court in Busby v. Busby, supra, to inquire as to the existence of insurance or retirement programs in all divorce suits “to the end that the final judgment fully disposes of all property valuables of the community.” Pension and retirement benefits have become an increasingly significant part of the consideration earned for military, governmental, and private services, sometimes being of the principal asset accumulated by the community. Brown v. Brown, supra; Kirkham v. Kirkham, supra. The administration of justice will best be served if contingent interests in retirement benefits are settled at the time of the divorce, even though it may be necessary in many instances for the judgment to make the apportionment to the nonretiring spouse effective if, as, and when the benefits are received by the retiring spouse. We approve this method of apportionment and award of contingent interests in military retirement benefits because of the uncertainties affecting the accrual and maturity of such benefits. This method will forego the difficulty of computing a present value and will fairly divide the risk that the pension may fail to mature.

The three Court of Civil Appeals opinions referred to in footnotes 2 and 5, supra, ' Bright v. Bright, 531 S.W.2d 440; Lumpkins v. Lumpkins, 519 S.W.2d 491; and Davis v. Davis, 495 S.W.2d 607; are disapproved insofar as they conflict with this opinion.

The judgment of the Court of Civil Appeals in this case is reversed and the judgment of the trial court is affirmed.

      . All citations to statutes refer to Vernon’s Annotated Texas Civil Statutes, unless otherwise noted. For the applicable Federal statutes, see 10 U.S.C. §§ 8911-8929 (1959 and supp.).

      . Compare the following Texas cases which do agree with the concept of nonvesting of property rights in the community estate until the officer or enlisted man has served the full time required for retirement. Bright v. Bright, 531 S.W.2d 440 (Tex.Civ.App.1975, no writ); Lumpkins v. Lumpkins, 519 S.W.2d 491 (Tex.Civ.App.1975, writ ref’d, n. r. e.); Davis v. Davis, 495 S.W.2d 607 (Tex.Civ.App.1973, writ dism.).

      . See Article, The Identification and Division of Intangible Community Property: Slicing the Invisible Pie, 6 U.C.Davis L.Rev. 26 (1973); Note, Retirement Pay: A Divorce in Time Saved Mine, 24 Hastings L.J. 347 (1973). In overruling the above mentioned holding in French, the California Supreme Court said in Brown v. Brown, supra, that it had sought two years earlier to reconsider “the current viability of the rule of French v. French.”

      . The term “accrued,” as used in this opinion, means only that the minimum number of years required for military pension eligibility has been served. It is thus intentionally distinguished from the term “matured,” which denotes that all requirements have been met for immediate collection and enjoyment, and from “vested,” which frequently has been used as though synonymous with both of the other terms.

      . Subsequently, the same court reached a different result in Davis v. Davis, 495 S.W.2d 607 (Tex.Civ.App.1973, writ dism’d), by an immaterial distinction as to retirement rights and procedures applicable to officers. See footnote 2, supra, for two other cases which followed Davis, and which are hereinafter disapproved insofar as they are in conflict with this opinion.


author: ONION, Presiding Judge.

text:
    Richard McCONATHY, Appellant, v. The STATE of Texas, Appellee.
    No. 52984.
    Court of Criminal Appeals of Texas.
    Dec. 15, 1976.

      Kerry P. Fitzgerald, Dallas, for appellant. Henry Wade, Dist. Atty., and Harry J. Schulz, Jr., Asst. Dist. Atty., Dallas, Jim D. Vollers, State’s Atty., and David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

ONION, Presiding Judge.

This is an appeal from a final judgment forfeiting a bail bond in the amount of $200.00.

Cecil Frank Kovar was charged by complaint and information with the offense of theft of more than $5.00 but less than $20.00 and was arrested on October 3, 1975. On the same date he was released on a $200.00 bail bond with the appellant McCo-nathy as surety. On February 10, 1976 Kovar signed a printed form which waived trial by jury and “any delay in sentencing.” On that date he entered a guilty plea to the theft charge and his punishment was assessed at thirty (30) days in the county jail and a fine of $150.00. However, the court placed him on probation for six (6) months under the terms of Article 42.13, Vernon’s Ann.C.C.P. On the same date Kovar filed a motion for new trial. On March 1, 1976 Kovar filed an amended motion for new trial. On March 23, 1976 a hearing was called on the amended motion for new trial. Kovar failed to appear and the court entered a judgment nisi. On May 28, 1976, after a hearing, the judgment nisi was made final.

At the outset appellant contends his liability as surety was discharged and terminated on February 10, 1976, when the principal Kovar was “finally convicted and sentenced” and that any subsequent proceedings were unauthorized and void as a matter of law. There is nothing in the record to reflect or even suggest that Kovar was sentenced on February 10, 1976. In fact, the contrary appears. Kovar was granted misdemeanor probation on that date. Article 42.13, § 4, Vernon’s Ann.C. C.P., provides that in such cases the finding of guilt does not become final and the court does not even render judgment. While the court is required to record the grant of probation and the details of the judgment, there is no final conviction. Without a judgment there can be no sentence. Article 42.02, Vernon’s Ann.C.C.P. We reject appellant’s contention.

In the alternative, the appellant argues that his liability as a surety on the bond was discharged on March 22, 1976, the date that Kovar’s amended motion for new trial was overruled by operation of law, and thereafter no subsequent proceedings were authorized by law absent the giving of the notice of appeal by the principal on the bond, which in the instant case was not done.

The amended motion for new trial was overruled by operation of law twenty days after it was filed on March 1, 1976. See Article 40.05, Vernon’s Ann.C.C.P.; St. Jules v. State, 438 S.W.2d 568 (Tex.Cr.App.1969); Morton v. State, 502 S.W.2d 121 (Tex.Cr.App.1973). And the rule is applicable in misdemeanor probation cases for the reasons set forth in McIntosh v. State, 534 S.W.2d 143 (Tex.Cr.App.1976). Therefore on March 23, 1976, when the court called a hearing on the amended motion for new trial, it had already been overruled by operation of law. What then was Kovar’s status on March 23 so as to affect the appellant’s liability as surety on the bail bond?

In Ross v. State, 523 S.W.2d 402 (Tex.Cr.App.1975), this court concluded that terms of probation commenced at the time an order dismissing the appeal was entered. Analogy was made to Delorme v. State, 488 S.W.2d 808 (Tex.Cr.App.1973), where it was held that the terms of probation do not commence until the mandate of this court is issued when an appeal has been taken.

In the instant case where no notice of appeal was given by the principal-defendant, we conclude the terms of probation commenced on the day the amended motion for new trial was overruled by operation of law. The court was not authorized to hold a hearing the next day on the already overruled amended motion for new trial as Article 40.05, Vernon’s Ann.C.C.P., does not authorize the court to extend the time in which such motions may be determined, and Kovar’s probation had already commenced. Thus, we do not construe the unauthorized hearing to be a subsequent proceeding had relative to the offense charged as contemplated by Article 17.09, Vernon’s Ann.C.C.P. We hold that under the circumstances of the instant case the appellant-surety’s liability to insure the principal’s appearance at a subsequent proceeding was discharged upon the date the motion for new trial was overruled by operation of law as his misdemeanor probation had commenced and there could be no subsequent proceedings had relative to the charge absent the giving of a notice of appeal.

The judgment is reversed and the cause remanded.


author: ODOM, Judge. ROBERTS, Judge

text:
    Ray Junior PAUL, Appellant, v. The STATE of Texas, Appellee.
    No. 52660.
    Court of Criminal Appeals of Texas.
    Per Curiam Sept. 15, 1976.
    Dissenting Opinion Dec. 22, 1976.

      W. L. Somers, Sherman, for appellant.
    Joe Max Shelton, County Atty., and Ralph Petty, Jr., Asst. County Atty., Sherman, Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ODOM, Judge.

This is an appeal from a conviction for murder under our former Penal Code. Punishment was assessed at ninety-nine years.

In the first ground of error appellant contends that the trial court erred in failing to halt the trial sua sponte and conduct a hearing upon the question of appellant’s competence to stand trial “when it was brought to the attention of the Trial Court that Appellant had been committed to the Wichita Falls Mental Institution on two separate occasions prior to the date of the alleged offense for which he was being tried.”

The record reflects that prior to trial, which began on July 31, 1973, the trial court, at the request of the State, ordered appellant to undergo a psychiatric examination by Dr. David T. Wells. Wells examined appellant for approximately one half hour in the county jail. His report, dated the day before trial, stated, “The prisoner was not too cooperative and refused to talk about many areas of his life however I do feel that he cooperated enough for me to have an opinion as to whether he is or is not mentally ill.” Wells summarized that opinion as follows:

“I cannot make a definitive diagnosis in this case without the benefit of psychological testing and further interviews with the prisoner. I would hesitate to guess his IQ without formal testing but certainly believe that his IQ is sufficient for him to understand the charges against him, for him to assist his attorneys in his defense, etc. I suspect that he is basically schizophrenic and has had schizophrenic breaks which caused his commitment to the State Hospital on two previous occasions however the disease is in fair remission at the present time and I suspect that this is the basic illness only because of his flatness of affect, his blocking in speech and his inability to abstract proverbs. Again however I feel that at the present time he is in a mental condition sufficient to know the difference between right and wrong, to know the nature and consequences of any act that he might commit, etc. His actions at the time he supposedly committed the crime sound rather peculiar so perhaps it is unfortunate that he was not examined by a psychiatrist at that time however now it would be impossible to speculate about his mental condition at a time so far in the past.”

We construe these findings as inconclusive upon the question of insanity at the time of the commission of the offense. That issue was, however, developed during the trial itself and does not constitute the subject of appellant’s complaint.

The test of legal competence to stand trial is “whether the accused has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and whether he has a rational as well as factual understanding of the proceedings against him. Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960) . . . [other citations omitted].” Bonner v. State, Tex.Cr.App., 520 S.W.2d 901, 906.

We construe Dr. Wells’ findings as concluding that appellant was medically competent to stand trial under this legal standard.

During the trial appellant called Paul Lee, County Clerk of Grayson County, to testify. Lee was shown to be the custodian of the records of mental patients in Wichita Falls. He testified that appellant had first been committed to the Wichita Falls Mental Institution on December 5,1968, for a maximum of ninety days, apparently under the authority of Art. 5547-38(b), V.A.C.S.

In February, 1969, his commitment status was changed to indefinite, apparently pursuant to Art. 5547-40, V.A.C.S., and Art. 5547-52(b), V.A.C.S. The record does not reflect that he was ever adjudicated to be mentally incompetent, see Arts. 5547-51(a)(3), 5547-4(7), V.A.C.S. Even if he was, his discharge on March 13, 1969, had the effect of terminating any presumption of legal incompetency that might otherwise have attached by virtue of the December 5 commitment. Arts. 5547-81(b), 5547-83(a), V.A.C.S.

Appellant was committed to the same institution a second time on December 22, 1971, under a temporary commitment, and was officially discharged according to Lee’s testimony, on April 6, 1972.

Appellant contends that the trial court, following Lee’s testimony, erred in failing to excuse the jury at that point and to conduct an independent inquiry into appellant’s mental competence.

The relevant provisions of Art. 46.02, V.A.C.C.P., in effect at the time of trial, were as follows:

“Section 1. No issue of insanity shall be tried in advance of trial on the merits, except upon written application on behalf of the accused with the consent of the state’s attorney and the approval of the trial judge.
“Section 2. (a) At the trial on the merits, the trial court shall hear evidence on the issue of present insanity.
(1) if prior to the offer thereof there be filed on behalf of the defendant’s written motion [sic] asking the court to hear evidence on such issue and requesting the court to declare a mistrial because of such insanity in the manner and to the extent provided for in this article; or
(2) if the defendant or his counsel otherwise asks for a decision or issue thereon, in which event such act of the defendant shall be treated and considered as if the defendant had filed such a motion for mistrial. For purposes of present insanity, the defendant shall be considered presently insane if he is presently incompetent to make a rational defense.”

Acts 1967, 60th Leg., p. 1748, ch. 659, Sec. 33, eff. Aug. 28, 1967.

These provisions, unlike the version of Art. 46.02 presently in effect, envisage some request by a defendant or his counsel at some time before the trial court is required to hear additional evidence. The record in the' instant case contains no such request either before or during trial. Hence, no violation of the statute has been shown.

There remains the question, however, whether under Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966), any violation of due process of law occurred by the failure of the trial court to conduct a competency hearing. In that case it was held that due process of law may in certain circumstances require that the trial court order a competency hearing even absent any request to do so. See also Bishop v. United States, 350 U.S. 961, 76 S.Ct. 440, 100 L.Ed. 835 (1956).

In the instant case, the trial court was relieved of any responsibility to hold a pretrial hearing by virtue of appellant’s announcement of ready and entry of a plea without any suggestion of incompetency. Perryman v. State, Tex.Cr.App., 507 S.W.2d 541; Zapata v. State, Tex.Cr.App., 493 S.W.2d 801, cert. denied, 414 U.S. 1128, 94 S.Ct. 865, 38 L.Ed.2d 752 (1974); Boss v. State, Tex.Cr.App., 489 S.W.2d 580.

The trial court was also apprised before trial of the gist of Lee’s testimony relating to appellant’s prior commitments. His conclusion that the fact of discharge in addition to Dr. Wells’ report was sufficient to dispel any question of present competency was not an abuse of discretion.

After Lee’s testimony, appellant’s sister testified that she believed him to be insane. She stated that he had once undergone brain surgery following an automobile accident and that at their father’s funeral, appellant had tried to lift him out of the coffin and talk to him.

Appellant then testified on his own behalf in a reasonably coherent and lucid manner. In addition to testifying about the details of the commission of the offense, he denied that he had ever been discharged from the institution following his second commitment, but stated that he had “just walked off.” This testimony contradicted that of Lee, but the trial court was not bound to believe it. Moreover, there was no showing that appellant had ever been adjudicated mentally incompetent, see Arts. 5547-51(c), 5547-83, and 5547-4(l), V.A.C.S. Finally, the trial court had already heard appellant’s lengthy testimony and then proceeded to hear him withstand vigorous cross-examination.

Neither appellant’s testimony at trial nor Dr. Wells’ psychiatric evaluation can be considered dispositive of his mental competency. Pate v. Robinson, 383 U.S. 375, 385-86, 86 S.Ct. 836, 842, 15 L.Ed.2d 815 (1966). However, in light of appellant’s mental history which was not nearly so bizarre as that of Robinson, and all the other circumstances of the case, we conclude that the failure of the trial court to have conducted an independent inquiry into mental competency presents no reversible error. King v. State, Tex.Cr.App., 511 S.W.2d 32; Jackson v. State, Tex.Cr.App., 509 S.W.2d 570; Quintanilla v. State, Tex.Cr.App., 508 S.W.2d 647; Perryman v. State, Tex.Cr.App., 507 S.W.2d 541. See also Ainsworth v. State, Tex.Cr.App., 493 S.W.2d 517. The first ground of error is overruled.

In the second ground of error, appellant complains of error in the charge of the trial court. No objection was made at trial, however, and as appellant’s counsel conceded upon oral argument before this Court, nothing is presented for review.

Finally, appellant contends that trial counsel was ineffective. Many of the alleged instances of ineffective assistance are clearly speculative. It is not argued or shown, for example, that any effort to suppress appellant’s oral confession would have been successful or that a transcript of the jury voir dire would have reflected reversible error.

Appellant’s trial strategy was to fully admit that he had killed the deceased, which was not surprising in view of the fact that his own sister was an eye witness to the shooting. He attempted instead to prove insanity at the time of the commission of the offense, self defense, lack of malice, justifiable homicide in defense of another, and the bad reputation of the deceased in the context of the prior relationship between deceased and appellant. The trial court charged the jury upon all these matters. Trial counsel persuaded them vigorously at trial and made frequent objections to the manner in which the prosecution presented its case.

Under the circumstances, we conclude that appellant was not only given reasonably effective assistance of counsel under the test of MacKenna v. Ellis, 280 F.2d 592 (5th Cir. 1960), cert. denied, 368 U.S. 877, 82 S.Ct. 121, 7 L.Ed.2d 78 (1961), he was given excellent assistance. See Herring v. Estelle, 491 F.2d 125 (5th Cir. 1974); Ex parte Gallegos, Tex.Cr.App., 511 S.W.2d 510. The third ground of error is overruled.

The judgment is affirmed.

ROBERTS, Judge

(dissenting).

In his motion for rehearing the appellant again urges that the trial judge should have excused the jury and conducted a separate hearing on the appellant’s incompeteney to stand trial. See Art. 46.02, V.A.C.C.P. The majority overrules this motion without written opinion. I believe the motion should be granted.

In his brief on rehearing appellant calls our attention to Ex Parte Halford, 536 S.W.2d 230 (Tex.Cr.App.1976), in which this Court held that there was sufficient evidence to raise an issue of Halford’s incompetency to stand trial. This Court granted Halford habeas corpus relief on this issue, relying principally on Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966), even though Pate was decided some three years after Halford’s trial.

As appellant correctly points out, the circumstances in this case raise an even greater doubt about the appellant’s competency than did those in Halford. This is especially true when one considers that the trial judge here had the benefit of the holding in Pate v. Robinson to guide him. See also Townsend v. State, 427 S.W.2d 55 (Tex.Cr.App.1968); Ainsworth v. State, 493 S.W.2d 517 (Tex.Cr.App.1973); and Cavender v. State, 515 S.W.2d 277 (Tex.Cr.App.1974).

The trial judge should have stopped the trial and conducted a separate competency hearing. His failure to do so was reversible error. Ex parte Halford, supra; Cavender v. State, supra.

The judgment should be reversed.

      . Art. 46.02, Sec. 1, V.A.C.C.P., is a statutory codification of this earlier formulated due process standard.

      . Later amendments to Art. 46.02, V.A.C.C.P., enacted before the time of trial, including Acts 1969, 61st Leg., p. 1698, ch. 554, Sec. 1, eff. June 10, 1969; Acts 1969, 61st Leg., p. 2474, ch. 833, Sec. 1, eff. June 18, 1969; Acts 1971, 62nd Leg., pp. 3026, 3027, ch. 995, Secs. 1, 2, eff. Aug. 30, 1971; and Acts 1973, 63rd Leg., p. 658, ch. 275, Sec. 1, eff. June 11, 1973; added nothing to the force and effect of the quoted provisions.