author: TIJERINA, Justice. CADENA, Chief Justice,

text:
    Sterling ALLEN, Appellant, v. The STATE of Texas, Appellee.
    No. 04-83-0146-CR.
    Court of Appeals of Texas, San Antonio.
    Feb. 13, 1985.

      Mark Stevens, San Antonio, for appellant.
    Sam Oatman, Criminal Dist. Atty’s Office, Llano, for appellee.
    Before CADENA, C.J., and REEVES and TIJERINA, JJ.
   OPINION

TIJERINA, Justice.

Appellant was convicted of the felony offense of theft. The jury assessed punishment at eight years’ confinement in the Texas Department of Corrections.

In his first ground of error, appellant alleges that the evidence is insufficient to prove beyond a reasonable doubt that he, acting either alone or as a party, unlawfully appropriated money from Diane McCro-han as charged in the indictment.

When a challenge is made to the sufficiency of the evidence, the standard for review in both direct and circumstantial evidence cases is whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Houston v. State, 663 S.W.2d 455, 456 (Tex.Crim.App.1984). And in reviewing the sufficiency of the evidence, the evidence must be viewed in the light most favorable to the verdict. Id. Attentive to these legal principles, we find the record reveals that the following evidence was produced by the State.

The complainant, Diane McCrohan, was the sole clerk working at the Nu-Way grocery store in Mason on the date of the alleged offense. At approximately 4:00 P.M., a car containing four black males stopped and two men exited from the vehicle. One of the men was appellant and the other man was Donald Dents. McCrohan was alone in the store when appellant and Dents entered. Appellant asked her for change. As McCrohan attempted to comply with his request, appellant began rapidly producing more money and requesting change. When appellant refused McCro-han’s request to slow down, she shut the cash register drawer and said “No” to his requests. Appellant then told McCrohan that he wanted some mixed cartons of soft drinks. To comply with this request, McCrohan left the cash register-counter area and proceeded to the back of the store where a walk-in cooler was located. Appellant followed her. When she opened the cooler door and entered, appellant also entered. As McCrohan started mixing soft drinks, appellant kept changing his mind as to which ones he wanted. Through the glass on the cooler she saw Dents walk behind the counter at the front of the store. She told appellant that she had to get back to the front of the store and for him to mix his own drinks. Appellant told her, “No, you are going to fix the drinks.” He kept repeating this and she became frightened. When McCrohan again told appellant she had to get back to the front of the store and started to leave, appellant grabbed her and threw her against a stack of soft drinks. Appellant then began dancing around as if to block her exit and told her to fix the mixed soft drinks. She finally managed to get through the door and out of the cooler. As she exited the cooler, she observed Dents walk back around to the front of the counter. Appellant followed McCrohan and kept talking to her about mixing drinks. After McCrohan returned to the counter, Dents paid McCrohan for a hat, appellant purchased a six pack of one brand of soft drinks, and then both men returned to the car. Believing something was wrong, McCrohan asked a customer who entered the store, Randy Leifeste, to get the car’s license number; Leifeste complied. Immediately she examined the cash register drawer, which did not appear to have been disturbed. She then looked for her purse. It was not on a shelf under the counter where she had placed it around 1:00 P.M. that day. She then observed her purse, lying unzipped at the opposite end of the counter. Her wallet, containing approximately two hundred and fifty dollars in currency, was missing from the purse. McCrohan explained she had cashed her husband’s check in the amount of two hundred and five dollars around noon that day. In addition to this money, she had forty-five dollars of her own in the wallet. She gave neither appellant nor anyone else permission to take the money or her wallet. In response to questioning, McCrohan stated that neither appellant nor his companion could have seen the purse while standing in front of the counter.

After discovering that her wallet was missing, McCrohan contacted the Mason County Sheriffs Department and reported the incident. She gave a description of the car, the car’s license number, and a description of the occupants. This information was relayed by radio to Deputy Brown of the McCullough County Sheriff’s Department and to Brady police officer Jerry Whi-senhunt. The information relayed also noted the vehicle was traveling north on Highway 87 from Mason towards Brady.

Officers Brown and Whisenhunt spotted the vehicle traveling north on Highway 87. The vehicle turned onto Highway 71 and was stopped by both officers. Other officers arrived and the four men exited the vehicle. The driver was a man named Taffy. A second man, Henderson, stated that the car belonged to his brother, which statement the officers verified. The last two men were Donald Dents and appellant. Appellant identified himself to the officers as Johnny White. Approximately three hundred and ninety-two dollars in folding currency was found in Dents’ pocket. Less than fifty dollars in currency was found on appellant. An undisclosed amount of money was found on the vehicle’s interior floor.

John Hudnutt, Diane MeCrohan’s father, testified that he found his daughter’s wallet the next day. The wallet was found in a ditch alongside Highway 87 going north from Mason. Except for a hidden two dollar bill, the wallet contained no money.

In its charge to the jury, the court abstractly defined the applicable provisions of the law of parties to the offense and criminal responsibility for conduct of another. See TEX.PENAL CODE ANN. §§ 7.01(a) and 7.02(a)(2) (Vernon 1974).

While mere presence at the scene of the commission of the offense will not make one a party, it is a circumstance tending to prove that a person is a party and, taken with other facts, may be sufficient to show that the accused was a participant. Medellin v. State, 617 S.W.2d 229 (Tex.Crim.App.1981). In determining whether a person was a participant in an offense, the courts may look to events occurring before, during, and after commission of the offense, including actions which show an understanding and common design to do a certain act. Harris v. State, 645 S.W.2d 447, 457-58 (Tex.Crim.App.1983); Taylor v. State, 630 S.W.2d 469, 472 (Tex.App. — San Antonio, 1982, no pet.). In this case the State did not prove the essential elements of the offense beyond a reasonable doubt. There is no direct evidence that appellant took the money from the complaining witness’ purse, and there is no direct evidence that he solicited, encouraged, directed, aided or attempted to aid the other person to commit the offense. Consequently, appellant’s guilt as a principal or a party was not established. Proof beyond a reasonable doubt is essential under the due process clause of the Fourteenth Amendment. In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). “When such a conviction [obtained even when no rational trier of fact could have found guilt beyond a reasonable doubt] occurs in a State trial, it cannot constitutionally stand.” Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781-2789, 61 L.Ed.2d 560 (1979).

The trial court charged the jury on the law of parties under TEX.PENAL CODE ANN. § 7.02(a)(2), and on circumstantial evidence. Direct and circumstantial evidence are to be treated with equal dignity. Hankins v. State, 646 S.W.2d 191, 199 (Tex.Crim.App.1983). In Denby v. State, 654 S.W.2d 457 (Tex.Crim.App.1983), the Court of Criminal Appeals addressed a question on the standard of review in circumstantial evidence cases, stating: “If the State’s evidence supports an inference other than a finding of the essential elements of the crime, then no trier of fact could rationally find the accused guilty beyond a reasonable doubt.” This decision requires Texas courts to continue using the “exclusion of outstanding reasonable hypotheses” test. Id. at 464. In the instant case the State’s evidence relevant to this issue is as follows: (1) The complaining witness cashed her husband’s cheek for two hundred five dollars at 12:00 o’clock noon and placed the money in her wallet; she had an additional forty-five dollars; the wallet was in her purse which was left on a shelf under the counter at approximately 1:00 P.M.; (2) The complaining witness testified that she could have used the purse to obtain coins to buy a soft drink sometime between 1:00 P.M. and 4:00 P.M.; (3) Appellant and his companions were on the business premises at 4:00 P.M.; (4) There is no evidence that appellant or any of his companions took the wallet; (5) There was no testimony indicating that appellant and his companions were the only customers to visit the store between 1:00 P.M. and 4:00 P.M.; (6) The money found in appellant’s possession and in his companion’s possession was not identified; (7) There was no physical evidence such as fingerprints. The State’s proof amounts at most to a strong suspicion or mere probability to connect appellant to the offense charged which is not sufficient to sustain the conviction. See Wilson v. State, 654 S.W.2d 465 (Tex.Crim.App.1983); Autry v. State, 626 S.W.2d 758, 761 (Tex.Crim.App.1982). Thus, we find the circumstantial evidence to be insufficient and that it does not exclude every reasonable hypothesis except the guilt of appellant. Accordingly, we sustain the assignment of error.

The second ground of error alleges that the charge to the jury was fundamentally defective because it failed to include a form for a “not guilty” verdict.

Pursuant to our order, a supplemental transcript has been prepared and filed in this court which reveals that a “not guilty” verdict form was in fact included in the charge submitted to the jury. Additionally, where no objection to the charge or request for such a charge or form is made, as in the case before us, the omission of a “not guilty” verdict form from the charge does not constitute reversible error. Berghahn v. State, 683 S.W.2d 697 (Tex.Crim.App.1984). Appellant’s second ground of error is overruled.

Appellant’s third ground of error alleges that the trial court’s charge to the jury on the law of parties is fundamentally defective because it impermissibly shifted the burden of proof from the State to appellant. Particularly, appellant points to paragraph six of the charge which reads as follows:

The mere presence of Defendant, STERLING ALLEN, at the scene of the theft, if any, would not constitute him a party to the offense charged, and if you should find from the evidence beyond a reasonable doubt that said Defendant did not act with intent to promote or assist the commission of the offense of theft, if any, by encouraging, soliciting, directing, aiding, or attempting to aid another in the commission of said offense, then you will find Defendant, STERLING ALLEN, not guilty.

Appellant neither objected to the charge nor specially request a charge. In the absence of objections to the charge or a specially requested charge, no error therein can be considered on appeal unless it appears that the error was calculated to injure the defendant’s rights or prevent a fair and impartial trial. See Grady v. State, 614 S.W.2d 830, 831 (Tex.Crim.App.1981). “Fundamental error is presented where the error in the court’s instructions to the jury goes to the very basis of the case so that the charge fails to state and apply the law under which the accused is prosecuted.” Martinez v. State, 576 S.W.2d 854, 855 (Tex.Crim.App.1979). In determining whether fundamental error is present, it is proper to view the charge as a whole. See White v. State, 610 S.W.2d 504, 507 (Tex.Crim.App.1981).

In the instant cause, the very basis of the case to which the court’s charge had to conform necessarily involved an application of the law of parties. This is so because the circumstantial evidence, previously discussed herein, reveals that appellant, if guilty at all, was guilty only as a party to the offense. The complainant readily admitted that appellant could not have personally removed the wallet from her purse. Appellant’s guilt hinged upon the State proving facts and circumstances which would establish his participation in the offense. Although the court’s charge only abstractly defined the law of parties, and did not apply the same to the facts of the case, the charge enlarged appellant’s criminal responsibility and benefited the State. See generally Romo v. State, 568 S.W.2d 298 (Tex.Crim.App.1978) (On State’s Motion for Rehearing). When the State relies on the theory of parties, as it did here, it is the State’s burden to present evidence showing that the defendant acted with intent to promote or assist in commission of the offense by soliciting, encouraging, directing, aiding, or attempting to aid the other person in its commission. See Gordon v. State, 640 S.W.2d 743, 758 (Tex.App. — San Antonio 1982, no pet.). A reading of paragraph six reveals that it shifted the burden of proof from the State to appellant on that which formed the very basis of the case, criminal responsibility. As to appellant’s criminal responsibility, a not guilty verdict was authorized, under paragraph six, if the jury found from the evidence beyond a reasonable doubt that appellant had not acted with intent to promote or assist the commission of the offense by encouraging, soliciting, directing, aiding, or attempting to aid another in its commission.

Viewing the charge as a whole, the harmful effect of the error contained in paragraph six is obvious. As was noted previously herein, the charge only abstractly defined parties to the offense and criminal responsibility. The charge did not apply the law of parties to the facts of the case. Thus, paragraph six was the only instruction in the entire charge which specifically addressed appellant’s criminal responsibility for the alleged theft, the very basis of the case on which the charge should have required the State to prove beyond a reasonable doubt.

In criminal cases, the constitutionally required burden of proof is that the State establish all elements of the offense beyond a reasonable doubt. See Crocker v. State, 573 S.W.2d 190, 207 (Tex.Crim.App.1978) (On Rehearing), and cases cited therein. A shift in the burden of proof of an essential element of the crime rises to constitutional proportions and renders the trial fundamentally unfair. See Smith v. Smith, 454 F.2d 572, 579 (5th Cir.1971), cert. denied, 409 U.S. 885, 93 S.Ct. 99, 34 L.Ed.2d 141 (1972). Because paragraph six shifted the burden of proof on criminal responsibility, the very basis of the case, to appellant, the charge prejudiced appellant’s rights to a fair trial and is fundamentally defective.

Accordingly, appellant’s third ground of error is sustained. This cause is reversed and the trial court is directed to enter a judgment of acquittal. See Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978).

CADENA, Chief Justice,

concurring in part; dissenting in part.

I would reverse the judgment because of the fundamentally erroneous charge which, in effect, required appellant to prove his innocence beyond a reasonable doubt. Since I cannot agree that the evidence is insufficient, I would not order the entry of an order of acquittal, but would remand the cause for a new trial.

The court’s opinion, after following the customary practice of referring to the various formulae to be used in determining the sufficiency of the evidence, purports to detail “the State’s evidence relevant to this issue ...” Presumably, the phrase “this issue” refers to the “exclusion of reasonable hypotheses” test.

The review of the evidence is unusually selective. This review may be summarized, insofar as it is relevant, as follows:

1. At approximately 1:00 P.M., McCro-han placed her purse, containing the wallet with approximately $250.00 in cash, under the counter. This is undisputed.

2. There is no evidence that appellant and his companion, Dents, were the only customers who had been in the store between 1:00 P.M. and 4:00 P.M., when the theft of the wallet was discovered.

3. There is no evidence that appellant or Dents took the wallet.

4. The money found in the possession of appellant and Dents was not identified.

5. There is no fingerprint evidence.

The summary, insofar as evidence of guilt is concerned, of course supports the conclusion that it raises no more than a strong suspicion of guilt. In fact, if we accept the summary as accurate, there may not even be grounds for suspicion. But if, as we must, we consider the entire record, the strange nature of the summary is revealed and, if we view the entire evidence in the light most favorable to the verdict, the conclusion that it raises only a “strong suspicion” is exposed as untenable.

Each part of the summary must be evaluated in the light of all of the evidence.

1. Location of the purse. It is true that McCrohan placed her purse under the counter at 1:00 P.M., some three hours before Dents and appellant entered the store. The evidence establishes that the purse under the counter was not visible or accessible to a person standing on the customer’s side of the counter.

2. Failure to negate presence of other customers. While McCrohan did not testify that no other persons entered the store between 1:00 P.M. and 4:00 P.M., her testimony establishes that when she was lured into the walk-in cooler by appellant, she saw Dents walk behind the counter. When, despite appellant’s efforts to keep her in the cooler, she left the cooler, she saw Dents walk from the back of the counter to the customers’ side. No other persons were present in the store.

3. Lack of evidence that appellant or Dents took the wallet. It is clear that appellant did not take the wallet. But the evidence establishes (a) the wallet was in the purse behind and under the counter; (b) when McCrohan was lured to the cooler in back of the store, Dents walked behind the counter; (c) when McCrohan finally managed to elude appellant and returned to the counter, the purse, unzipped, was lying atop the opposite end of the counter; (d) the vehicle in which appellant and Dents were riding headed north on Highway 87, away from Mason and toward Brady; (e) when the vehicle was seen by police officers, it was proceeding north on Highway 87 and then turned onto Highway 71 before it was stopped by officers; (f) the wallet was found in a ditch on Highway 87 between Mason, the scene of the theft, and Brady.

The evidence points so overwhelmingly to the theft of the wallet by Dents as to compel the conclusion that Dents removed the wallet from the purse. No other conclusion, rational or otherwise, is justified. There is no evidence supporting or even suggesting an inference other than the guilt of Dents.

4. Lack of identification of the money. There is no requirement that a person from whom money has been stolen be able to identify the actual bills and coins which were taken in the theft. It would, indeed, be a rare case in which the victim could identify the money. If such identification were required, few, if any, persons charged with theft of money could ever be convicted.

5. Lack of fingerprints. Fingerprint evidence is not a prerequisite to conviction. If the absence of fingerprints were decisive, we would have to conclude that nobody took the wallet which was later found several miles from the scene of the crime.

At another point in the court’s opinion, it is asserted that there is no “direct” evidence that appellant solicited, encouraged, directed, aided or attempted to aid Dents in committing the theft. A finding of guilt as a party is not required to rest on “direct” evidence. Participation as a party may be established by circumstantial evidence. The court’s opinion notes, but ignores holdings, as in Harris v. State, 645 S.W.2d 447, 457-8 (Tex.Crim.App.1983), that we may look to events occurring before, during and after the commission of the offense, and appellant’s actions which show he understood what was happening and participated in the common design to commit the crime.

We need look only to appellant’s actions just prior to and during the theft.

Appellant’s actions were rather strange and not typical of the usual customer. His additional demands for change, after McCrohan had completed with his original request, certainly support the conclusion that he was attempting to divert her attention. Although his request for mixed cartons of soft drink was not unreasonable, his inability to decide the nature of the mixture can rationally be interpreted as establishing an intent to keep McCrohan away from the counter as long as possible. When, after seeing Dents walk behind the counter, she told appellant to make up his own assortment because she had to get back to the front, he demanded that she stay and “mix” the drinks. When she attempted to leave the cooler and return to the counter, he assaulted her, threw her against a stack of soft drinks, continued to attempt to prevent her return to the corner and repeated his insistence that she remain in the cooler and prepare the mixed cartons. When she finally eluded him and returned to the counter, he abandoned his plans to purchase mixed cartons.

The evidence abundantly supports the conclusion that appellant’s bizarre behavior, including his efforts to prevent, by resort to physical violence, McCrohan’s return to the counter, was designed to facilitate theft of the wallet by Dents. The evidence, in fact, is such as to justify label-ling the inference of any other intent as falling far short of rational.

It may be true that appellant did not direct or solicit Dents to commit the theft. But the evidence that he knew that Dents was going to commit the crime of theft and that he aided Dents by giving Dents as much time as possible and trying to prevent immediate discovery of the theft is so overwhelming that the order of acquittal cannot be defended.

The case should be remanded for a new trial.


source: Caselaw Access Project

author: TIJERINA, Justice.

license: Public Domain

text:
    Ed WOODRUFF, et al., Appellants, v. CITY OF LAREDO, A Municipal Corporation, et al., Appellees.
    No. 04-84-00118-CV.
    Court of Appeals of Texas, San Antonio.
    Feb. 13, 1985.
    Rehearing Denied March 15, 1985.

      John E. Mann, Mann, Freed, Trevino & Hale, Carlos David Castillon, Laredo, Harvey L. Hardy, San Antonio, for appellants.
    Anthony C. McGettrick, Laredo, for ap-pellees.
    Before CADENA, C.J., and REEVES and TIJERINA, JJ.
   OPINION

TIJERINA, Justice.

This cause involves a lawsuit seeking both an injunction to prevent the City of Laredo from annexing the Del Mar Conservation District and a declaratory judgment that the City of Laredo was without legal authority to annex the district. The trial court denied injunctive relief and subsequently rendered a summary declaratory judgment adverse to appellants.

The City of Laredo initiated proceedings to annex the Del Mar Conservation District, a municipal utility district, and an adjacent territory, by ordinance under the city charter. The annexation ordinance was introduced at a city council meeting on February 7, 1984, was adopted February 21, 1984, and became effective March 23, 1984. Appellants appeal from the judgment, which was rendered on February 14, 1984. There was no appeal from the denial of injunctive relief.

Appellees filed a motion to dismiss the appeal on grounds of mootness, contending that the annexation ordinance was not before the trial court since it was adopted after the rendition of the judgment. The petition for declaratory judgment, based on the anticipated annexation proceedings, asked the trial court to declare that the City of Laredo was without legal right to annex the Del Mar Conservation District. A declaratory judgment proceeding is intended as a speedy and effective remedy for the determination of the rights of the parties when a real controversy has arisen and even before the wrong has been committed. Cobb v. Harrington, 144 Tex. 360, 190 S.W.2d 709, 713 (1945). Moreover, when the question presented is one of public interest and of recurrent character, jurisdiction is not lost because a threatened act has become accomplished fact. Railroad Commission v. Houston Natural Gas Corp., 186 S.W.2d 117, 124 (Tex.Civ.App. — Austin 1938, writ ref’d w.o. m.); see also TEX.REV.CIV.STAT.ANN. art. 2524-1 (Vernon 1965) (Uniform Declaratory Judgment Act); Calvert, Declaratory Judgments in Texas, 14 ST. MARY’S L.J. 11 (1982). The motion to dismiss is overruled.

Appellant’s first assignment of error requires that we determine whether the trial court erroneously declared that TEX.REV. CIV.STAT.ANN. art. 1182a (Vernon 1963) is only cumulative in its operation to the charter provisions of the City of Laredo. Specifically, appellants contend that the annexation of the Del Mar Conservation District was void because there was no election by the city or district as required by TEX.REV.CIV.STAT.ANN. art. 1182a, §§ 1-3 (Vernon 1963). They argue that the provisions of article 1182a, supra, are expressly cumulative only as to those cities of 100,000 or greater population, but mandatory as to cities with less population. It is undisputed that Laredo has less than 100,-000 population.

Article 1182a, § 1 provides in pertinent part, viz:

Whenever the City Commission of any City within this State, acting under and by virtue of any Charter adopted under Home Rule Amendment Article 11, Section 5, of the Constitution of this State, shall initiate or order an election for the extension of the territorial limits of said city, to be submitted to the legally qualified property tax paying voters residing within the territorial limits of said city, to determine whether or not the adjacent territory desired to be annexed shall be included within the territorial limits of said city, said City Commissioners shall at the same time order an election to be held at some convenient place within said city limits, so that the legally qualified property tax paying voters residing in the territory contiguous to said city and proposed to be annexed, may appear and cast their vote for the purpose of determining whether a majority of the legally qualified property tax paying voters residing in said territory proposed to be annexed, favor the annexation of said territory proposed to be annexed.

Laredo is a home rule city structured under the provisions of TEX. CONST, art. XI, § 5 and TEX.REV.CIV. STAT.ANN. art. 1175(2) (Vernon 1963). The home rule city in exercising legislative power to annex adjacent territory is restrained only to the extent that “no charter or any ordinance passed under said charter shall contain any provision inconsistent with the Constitution of the State, or of the general laws enacted by the Legislature of this State.” City of Irving v. Dallas County Flood Control District, 383 S.W.2d 571, 575 (Tex.1964). Section 1.03 of the Charter of the City of Laredo provides in pertinent part, as follows:

The City Council shall have the power by ordinance to fix the boundary limits of the City of Laredo and to provide for the alteration and extension of said boundary limits, and the annexation of additional territory lying adjacent to the city, with or without the consent of the territory and inhabitants annexed.

Thus it appears that home rule cities have power to annex adjacent territory ... according to provisions of the charter not inconsistent with the procedural rules mandated by the Municipal Annexation Act. See Sitton v. City of Lindale, 455 S.W.2d 939, 940 (Tex.1970); TEX.REV.CIV.STAT. ANN. art. 970a (Vernon Supp.1985).

Texas case law, prior to the 1968 enactment of the Municipal Annexation Act, generally held that home rule cities had the power under the charter provisions to annex adjacent territory without the consent of the inhabitants of such land. In Allen v. City of Austin, 116 S.W.2d 468, 469 (Tex.Civ.App. — Austin 1938, writ ref d), the court stated:

We hold that the Constitution, section 5, article 11, and the Legislature, article 1175, subd. 2, and the Charter of the City of Austin, article 1, § 2a, gave the city ample statutory and constitutional authority to annex the territory by ordinance without submitting the question to the qualified voters of the city or of the territory annexed.

Appellants, in citing this case, incorrectly stated that the population of the City of Austin in 1938 was more than 100,000. In City of Fort Worth v. State ex rel. Ridglea Village, 186 S.W.2d 323, 327-28 (Tex.Civ.App. — Fort Worth 1945, writ ref’d w.o.m.), the court discussed this question, saying:

Article 1182a cannot be accepted as evidence of a purpose on the part of the Legislature to require the consent of the inhabitants of the territory to be annexed in all cases of annexation, because it expressly continues in force the right in certain cases to annex territory by ordinance of the city.... Clearly there is no general public policy in Texas, either by legislative enactment or by judicial decision, to the effect that territory cannot be annexed without the consent of the inhabitants of such territory. There is nothing in Article 1182a to indicate an intent on the part of the Legislature to establish a new general policy in this respect. When the caption and the emergency clause, as well as the second and third sections, of Article 1182a are examined, it seems reasonable to believe that the chief purpose of the act is to provide a method of equalizing taxes in cases where a city annexes territory lying within a water improvement district, or a district of like nature. When we consider the entire act, together with the caption and the emergency clause, we cannot believe that the Legislature intended by its enactment to abolish the established method of annexing territory by charter amendment. [Emphasis added.]

The Supreme Court in Sitton v. City of Lindale, supra, clearly stated that article 970a did not change “home rule” and “general law” cities’ power of annexation as such powers existed prior to the enactment of article 970a in 1963. “[Sjince 1913 ‘home rule’ cities have continued to derive their power of annexation from their charter as authorized under Article 1175, Sec. 2.” Sitton, 455 S.W.2d at 941.

Section 4 of article 1182a states the article is not mandatory for cities over 100,-000. The express mention or enumeration of one class is tantamount to an express exclusion of all others. State v. Mauritz-Wells Co., 141 Tex. 634, 175 S.W.2d 238, 241 (1943). Accordingly, appellants are correct in their assertion that article 1182a is mandatory for Laredo; it then becomes a question of what is mandated by the article.

Appellants contend that article 1182a, when read in conjunction with its caption, requires an election prior to annexation of a water district. While the caption of an Act may be of assistance in ascertaining legislative intent, it is not a part of the statute in the sense that resort to it may be had to control the meaning of clear and unambiguous language which appears in the body of the Act. Byke v. City of Corpus Christi, 569 S.W.2d 927, 931-32 (Tex.Civ.App. — Corpus Christi 1978, writ ref d n.r.e.). By its own words, the article is triggered “[w]henever the City Commission ... shall initiate or order an election.” Because Laredo’s city charter permits annexation by ordinance alone, article 1182a is not applicable. Allen, 116 S.W.2d at 469; Sitton, 445 S.W.2d at 940. Appellants’ first point of error is overruled.

In their second point of error, appellants assert that the appellee failed to comply with the hearing requirement of TEX.REV. CIV.STAT.ANN. art. 970a (Vernon Supp. 1985) (Municipal Annexation Act). The Texas Supreme Court has held that full compliance with the statutory requirements of notice and hearing are necessary to the validity of an annexation ordinance. Fuller Springs v. State ex rel. City of Lufkin, 513 S.W.2d 17, 19 (Tex.1974); City of Duncanville v. City of Woodland Hills, 489 S.W.2d 557, 558 (Tex.1972).

Section 6 of the Municipal Annexation Act mandates that prior to institution of annexation proceedings the governing body of the city “shall provide an opportunity for all interested persons to be heard at two public hearings to be held not more than forty (40) nor less than twenty (20) days prior to institution of such proceedings.” Appellee conducted two hearings within the requisite time frame, then held an additional hearing some fourteen days prior to the institution of annexation proceedings in order to satisfy the requirement of the city charter.

In Duncanville and Fuller Springs, supra, the annexation ordinances were invalid because no hearings were held within the statutory time period. Duncanville, 489 S.W.2d at 558; Fuller Springs, 513 S.W.2d at 19. Thus, these cases are not controlling.

Article 970a(6) mandates two hearings within the statutory period; it does not expressly limit any hearings held to the designated time frame. Moreover, such an interpretation is inconsistent with the stated purpose of the hearings: providing an opportunity for all interested persons to be heard. Accordingly, we hold that the additional hearing does not void the annexation ordinance. This harmonizes the statute and the city charter provision and gives them both effect. Cf. Knapp v. City of El Paso, 586 S.W.2d 216, 218 (Tex.Civ.App.— El Paso 1979, writ ref’d n.r.e.). The second point of error is overruled.

The judgment of the trial court is affirmed.


author: NYE, Chief Justice.

text:
    George Francis VERTZ, Appellant, v. STATE of Texas, Appellee.
    No. 13-84-034-CR.
    Court of Appeals of Texas, Corpus Christi.
    Feb. 14, 1985.

      Donald Dailey, Jr., Corpus Christi, for appellant.
    Grant Jones, Dist. Atty., Corpus Christi, for appellee.
    Before NYE, C.J., and SEERDEN and BENAVIDES, JJ.
   OPINION

NYE, Chief Justice.

This is an appeal from a conviction for burglary of a habitation. The jury assessed punishment at ninety-nine years in the Texas Department of Corrections.

Appellant asserts in his first ground of error that the trial court erred in overruling his motion for new trial because the evidence was insufficient to corroborate the testimony of the accomplice witness as required by TEX. CODE CRIM.PROC. ANN. art. 38.14 (Vernon 1979).

A detailed recitation of the facts is necessary. Carmine Stanzione, the accomplice witness, testified at trial that he and the appellant burglarized the home of the complainants in September 1982. According to Stanzione, he and appellant came to Corpus Christi in September 1982 with the express intention of burglarizing homes. The two, as testified to by Stanzione, purchased an inflatable raft to be used as their mode of transportation in carrying out a burglary of a bayfront home. On their first trip to Corpus Christi, they launched the raft in Corpus Christi Bay, but it almost capsized in the rough bay waters. Stanzione said that they left the Corpus Christi area after this attempt and returned to Houston. There, they purchased another, more suitable raft and returned to the Holiday Lodge in Rockport, where they had stayed previously. Stanzione testified that, on the evening of September 19, 1982, he and appellant launched the raft, propelled by a motor, into the bay in search of a house to burglarize. Stanzione testified that, after motoring a few miles, they chose complainant’s house because there was an accessible sand beach nearby and they later could see complainants in their bedroom through sheer curtains. He suggested that it was wiser to choose a home in which the residents were at home in a confined area, rather than getting shot in a darkened house.

It was Stanzione’s testimony that they put the raft onto the sand and watched the home for a couple of hours. At one point during their surveillance, complainants’ dog began to growl. One of the complainants got up and checked around the house and returned to the bedroom. Stanzione testified that he then shot out an outdoor light with a BB gun. He also shot holes through a back window with a BB gun, and they later entered through that window. Stanzione said that using a BB gun would prevent the window glass from shattering and would prevent the alarm system from being set off. He had seen a red light earlier which indicated to him that the house had an activated burglar alarm system. The two men entered the home. Stanzione testified that he began loading pillowcases with silverware while appellant kept watch at the complainants’ bedroom door, armed with a .22 automatic. The two then decided to enter the bedroom to search for jewelry. There was a deadbolt on the door, so Stanzione broke down the door. He testified that, upon entering the room, appellant tied up the complainants. According to Stanzione, appellant took two rings and a watch from one of the complainants when he tied her up. One of the complainants aided Stanzione in opening a safe containing diamond and gold jewelry which was located in a closet area in the bedroom. The total value of the property taken in the burglary was approximately $1,200,000.00. According to Stanzione, he and appellant arrived back in Rockport at about 2:00-2:30 a.m. Stanzione testified that appellant left Rockport at about 4:00 a.m. for a court hearing in Liberty, Texas, which was supposed to take place the following morning. Appellant returned to Rockport the following evening, and the next day they went back to Houston, where they sold the property.

One of the complainants identified Stan-zione’s voice. She testified essentially to the same series of events as Stanzione. She indicated that both burglars wore ski masks. The other burglar was taller and thinner than Stanzione. Her version of the facts was similar to Stanzione’s, with the exception that she more graphically explained the threats which were made against her and her husband by the two intruders.

Shirley Kroupa, owner of the Holiday Lodge in Rockport, testified that a man named Duke, who she identified as appellant, and his brother, Tony, who she identified as Stanzione, registered on two separate occasions at the motel. Appellant registered at the motel as “John Duke.” She remembered having a conversation with appellant about a rubber raft which he claimed got a hole in it, and he and his “brother” had almost drowned. She also remembered that, on their second visit, appellant had asked her where he could get BB’s for his BB gun. Appellant had been staying in Room 9, and Stanzione and his wife stayed in Room 11. In Room 9, Krou-pa discovered a hole in the ceiling after appellant left which hadn’t been there previously. She found a box on the dresser with a picture of a BB gun on it. Sergeant Gary testified that he collected evidence at the Holiday Lodge and found a BB which had been lodged in the bathroom door of Room 9. Kroupa further testified that Stanzione and appellant first stayed at the motel from September 13 through September 14. The second time, they stayed from September 17 until September 21. This corresponded with Stanzione’s testimony that they had come to the area, left, and returned after purchasing another raft in Houston. Kroupa testified that, on the morning of September 20, she checked the parking lot for cars and noticed that appellant’s car was gone by 9:00 a.m. She also testified that she recalled seeing appellant on the evening of September 20 between 8:00 and 9:00 p.m. During the day, Stan-zione’s wife had paid for another night at the motel.

The appellant testified that he stayed at the Holiday Lodge with the Stanziones. According to appellant, they were on vacation together. He acknowledged that he knew Stanzione was a burglar and was looking for places to burglarize. He testified that, on September 19, 1982, he drove the car they were renting to Liberty, Texas, for a court hearing. He claimed that he left Roekport at 7:30 p.m. that evening, hours before the burglary. He denied participation in the burglary.

The standard of review for sufficiency of corroborating evidence is that the testimony of an accomplice will not support a conviction unless it is corroborated by “other evidence tending to connect the defendant with the offense committed.” TEX.CODE CRIM.PROC.ANN. art. 38.14 (Vernon 1966). In reviewing the evidence, we eliminate from consideration that evidence of the accomplice witness to ascertain if there is inculpatory evidence which tends to connect the defendant with the commission of the offense. If there is other evidence of an incriminating nature, the corroboration is sufficient; otherwise, it is not. James v. State, 538 S.W.2d 414 (Tex.Crim.App.1976). The corroborative evidence need not directly link the accused to the crime or be sufficient alone to establish guilt; it need only make the accomplice testimony more likely to be true than not. Warren v. State, 514 S.W.2d 458 (Tex.Crim.App.1974). Presence of the accused in the company of the accomplice shortly before or after the time of the offense is not sufficient corroboration. However, on the other hand, the presence of the accused, when coupled with other circumstances, may be sufficient to corroborate the testimony of the accomplice. Ayala v. State, 511 S.W.2d 284 (Tex.Crim.App.1974). The corroborative evidence is sufficient if the cumulative weight of such evidence tends to connect the accused with the crime. Ayala at 287. All facts and circumstances in evidence may be looked to as furnishing the necessary corroboration. Mitchell v. State, 650 S.W.2d 801 (Tex.Crim.App.1983). Sometimes insignificant circumstances afford the most satisfactory evidence of guilt and corroboration of the accomplice witness’ testimony. Mitchell at 807.

Here, we find that the corroborating evidence sufficiently showed that appellant was in the company of Stanzione shortly before the crime was committed and also in the evening after the crime took place. This was at a location which, although it was not near the crime, certainly was not so far away as to make his involvement in the crime impossible. There was testimony that the appellant had inquired of Mrs. Kroupa where he could obtain BB’s for his BB gun. This conversation took place at a time within a few days of the commission of the burglary. There was evidence that BB’s were used at the crime scene. A BB and an empty box which had once contained BB’s were found in appellant’s room at the Holiday Lodge. The testimony also revealed that appellant and Stanzione registered at the motel under false names. The testimony of Mrs. Kroupa showed that appellant had been in a rubber raft which had nearly capsized. This corroborated Stanzione’s testimony that their first attempt to use a rubber raft had failed. The complainant had been able to identify Stan-zione from a voice comparison. She identified the other burglar as being taller and thinner than Stanzione, although the record contains no testimony that the appellant was, in fact, taller and thinner than Stan-zione. Both men were before the jury, who had an opportunity to view their physical appearances. We find that the corroborating evidence was sufficient to link appellant to the burglary. The state met its burden to show that there was other evidence of an incriminating nature which tended to make the accomplice’s testimony certainly more likely than not. Appellant’s first ground of error is overruled.

In appellant’s second and third grounds of error, he argues that his conviction is void because he did not receive effective assistance of counsel in violation of his constitutional rights under Art. 1, § 10 of the Texas Constitution and the Sixth and Fourteenth Amendments to the United States Constitution. Appellant claims that, at the guilt stage, defense counsel allowed very damaging hearsay evidence to be admitted and failed to call alibi witnesses. At the punishment phase, he asserts that counsel failed to voir dire the state’s reputation witnesses and allowed the prosecutor to make extremely prejudicial arguments which were outside the record.

The right to effective assistance of counsel insures the right to reasonably effective assistance. Ingham v. State, 679 S.W.2d 503 (Tex.Crim.App.1984); Ex parte Duffy, 607 S.W.2d 507 (Tex.Crim.App.1980). A court, in deciding an effectiveness claim, must judge the reasonableness of counsel’s conduct based upon the facts of the particular case viewed as of the time of counsel’s conduct. Strickland v. Washington, — U.S. -, 104 S.Ct. 2052, 80 S.Ct. 674 (1984). In Strickland, the U.S. Supreme Court set out the test to be used in determining whether counsel was ineffective in his representation at trial.

First, the defendant is required to show counsel’s representation was deficient. This may be shown by a demonstration that counsel made errors so serious that he was not functioning as “counsel” guaranteed the defendant by the Sixth Amendment.

Second, there must also be a showing that the deficient performance prejudiced the defendant.

Addressing appellant’s first contention concerning hearsay testimony which was elicited during the examination of James Peters, a Texas Ranger, we find, that on direct examination by the State, Peters testified that, in October 1982, he transported ten BB’s from Corpus Christi to the firearms laboratory in Austin. The BB’s that he brought back were marked for identification and admitted into evidence. Appellant’s counsel on cross-examination elicited testimony from Peters that he was told that the BB’s were Daisy Brand BB’s. He testified that the laboratory made a report on the brand of BB. He then testified that the photo lab photographed various BB’s to show the comparison among various types of BB’s. On redirect, the state offered a photograph which portrays the BB’s that he took to the lab in Austin as well as five different varieties of BB’s. This evidence was received without objection. On recross, appellant’s counsel elicited an opinion from Peters that the BB’s analyzed in Austin looked closest to the Daisy Rock-port BB’s. The lab report indicated that it was their opinion that the BB’s found at the crime scene were consistent with the BB’s from the motel room in terms of being the same approximate weight, diameter and appearance.

The evidence appellant complains of was introduced in hearsay form and was unobjected to by appellant’s counsel. In fact, appellant’s counsel elicited some of the hearsay testimony. It appears from the record that the State was planning to introduce this evidence through another witness. In his opening statement, counsel, for the State told the jury that he was planning to call an intelligence officer, Ron Richardson, with the Department of Public Safety who would testify that the BB’s recovered from the crime scene and those recovered from the motel room were similar as to weight, size and color. The statement made by the prosecutor was not evidence. The State did not, in fact, call Richardson of the Department of Public Safety. In all likelihood, the testimony elicited through Peters precluded the necessity of calling Richardson as a witness. We agree with counsel for appellant that the testimony elicited was hearsay. We also agree that it should have been objected to. However, ineffective assistance is generally not established by separating out one portion of trial counsel’s representation for examination. Bolden v. State, 634 S.W.2d 710, 714 (Tex.Crim.App.1982). Our determination of the adequacy of counsel’s representation must be based upon the totality of representation. Ferguson v. State, 639 S.W.2d 307 (Tex.Crim.App.1982). The admission of this evidence through a hearsay witness, by itself, did not constitute ineffective assistance of counsel.

Appellant next asserts that his counsel did not provide him with effective assistance of counsel because he did not call as a witness Frank Hughes, appellant’s Houston attorney, or subpoena his Liberty County court records. Appellant claims that he met with Hughes on the day following the burglary. Appellant testified that he left Rockport on September 19, 1982, at 7:30 p.m. The burglary took place in the late evening hours of the 19th. Appellant’s motion for new trial shows that he appeared in the 253rd District Court in Liberty on September 20,1982. The motion also contains the affidavit of Frank Hughes that he spoke with the appellant on September 20 between 8:30 a.m. and 9:00 a.m. There is no evidence in the record that the testimony of Hughes would corroborate appellant’s testimony that he left Rockport for Liberty on September 19 at 7:30 p.m. There was testimony that Liberty, Texas, is located approximately 300 miles from Corpus Christi. Stanzione testified that appellant left for Liberty at about 4:00 a.m. on September 20, 1982. Attorney Hughes’ affidavit states that he spoke with appellant on September 20 between 8:30 and 9:00 a.m. Appellant does not contend, nor do we find anything in the record to suggest that the testimony of Hughes or the Liberty court records would place appellant in Liberty on the evening of September 19 or the very early morning hours of September 20, thus creating an alibi for appellant.

Appellant’s trial counsel requested, in a pretrial motion, a subpoena for attorney Hughes and certain Liberty County Court records pertaining to appellant's appearance in court. The record before us does not reflect whether appellant’s trial counsel ever attempted to follow through with the requested subpoena for the attorney or the records. Based upon the evidence before us in the appellate record, we do not know whether counsel made a conscious decision not to subpoena Hughes and the Liberty County records or whether he simply failed to have the subpoenas issued. Either way, this did not amount to ineffective assistance of counsel. Our duty is not to second-guess the strategy of trial counsel, but to review the totality of trial counsel’s representation. From this, we determine whether appellant has been denied the right to effective assistance of counsel.

Appellant next contends that the failure of his counsel to take reputation witnesses on voir dire out of the jury’s presence deprived him of effective assistance of counsel. At the punishment stage of trial, the State called three police officers who testified that appellant’s reputation for being a peaceable and law-abiding citizen was bad. Appellant’s counsel cross-examined all three officers. One officer testified that he had not had contact with appellant for over a year. Another testified that he did not know appellant personally. The third testified that he had no knowledge of appellant ever being convicted of a crime in Beaumont. We find that counsel’s decision not to voir dire these officers was a decision which he could properly have made. While he certainly had a right to voir dire these witnesses, it was a tactical decision for him not to do so. There was also testimony that Stanzione’s reputation in the community was bad. We do not see how his failure to voir dire the officers amounted to ineffective assistance of counsel.

Appellant also asserts that the failure of counsel to object to the prosecutor’s argument constituted ineffective assistance. Jury argument is proper in the following areas: 1) summation of the evidence; 2) reasonable deductions from the evidence; 3) answering argument of opposing counsel; and 4) proper pleas for law enforcement. Alejandro v. State, 493 S.W.2d 230 (Tex.Crim.App.1973). Appellant objects to the following arguments made by the prosecutor:

Now, I keep a shotgun next to my bed. I have to deal with people like this all the time and I’m scared of them. So I have got some protection.
* sjc * * * sje
And any time I’m around a bunch of people I don’t know like at a party or something like that and I tell them where I work, people get real incensed sometimes, like, by God, why don’t they do something about this or why don’t they do something about that, or, you know, well, I’m tired of these DWI’s, I’m tired of these burglars, I’m tired of this, why don’t they do something about it. I’ll tell you the same thing I tell those people. Right now, when you are on a jury, you’re they, you’re the people that can do something about it. What I always tell those people getting after me at parties and things like that, I always say, T hope you’ll remember that whenever you’re on jury duty, because that’s the only chance you’re going to get to do anything about it.’

We find that both of these arguments were proper pleas for law enforcement. See Denison v. State, 651 S.W.2d 754 (Tex.Crim.App.1983); Haynes v. State, 627 S.W.2d 710 (Tex.Crim.App.1982).

Appellant also objects to the following argument of the prosecutor which was made during the prosecutor’s rebuttal at the punishment phase of trial:

And he sits there and belittles those police officers who came all the way down here from Houston and Beaumont, tells you you shouldn’t pay any attention to them. Well, I’ll tell you why he doesn’t want you to pay any attention to them because of what their testimony was. Like I told you, all I can ask them is what his reputation is.

The appellant’s counsel made the following argument during his summation:

The DA even spent the taxpayers’ money to bring three detectives down here from Houston and Beaumont and what did they say? They said he’s got a bad reputation. Hell yes, anybody who’s been in jail is going to be described as having a bad reputation. You spend a few months in jail and you’ll be a person with a bad reputation. That wasn’t any great shock or surprise, nor do I think it should have any effect.

We find that the State’s argument was merely answering the argument of the appellant and was not error. We do not see how trial counsel’s failure to object to a prosecutorial argument which was proper could be deemed a showing of ineffective assistance of counsel.

Viewing all of the evidence as a whole, we find that appellant’s trial counsel rendered reasonably effective assistance. We note that trial counsel made pretrial motions, participated in the voir dire examination, cross-examined the State’s witnesses, made objections, objected to the jury charge, requested an instructed verdict and presented final arguments at both the guilt-innocence and punishment phases of trial. We need not reach the second prong of the Strickland test concerning prejudice because we have determined that appellant’s counsel was not so deficient as to be deemed ineffective assistance of counsel.

Appellant’s second and third grounds of error are overruled. The judgment of conviction is affirmed.


author: KENNEDY, Justice.

text:
    Servando ORELLANA, Appellant, v. STATE of Texas, Appellee.
    No. 13-84-055-CR.
    Court of Appeals of Texas, Corpus Christi.
    Feb. 14, 1985.

      Humberto Trejo, Houston, for appellant.
    Calvin Hartmann, Asst. Dist. Atty., Houston, for appellee.
    Before NYE, C.J., and KENNEDY and SEERDEN, JJ.
   OPINION

KENNEDY, Justice.

In a jury trial appellant was convicted of involuntary manslaughter. Punishment was assessed by the trial court at ten years’ imprisonment. We affirm.

In his first ground of error appellant contends that he was denied a Speedy Trial as required by TEX.CODE CRIM.PROC. ANN. art. 32A.02 (Vernon 1984) of the Texas Code of Criminal Procedure. The original complaint was filed on March 10, 1983 and appellant was placed in custody on March 14, 1983, but he was not tried until October 18, 1983, a period far exceeding the 120 day period authorized. However, Section 4(3) of Article 32A.02 provides that in computing the time by which the State must be ready for trial, the State may exclude “a period of delay resulting from a continuance granted at the request or with the consent of the defendant or his counsel . . . ” [Emphasis added]. The record contains a series of “Agreed Settings” pursuant to which this case was repeatedly postponed. Each of the Agreed Settings was signed by appellant’s trial attorney. At the hearing on the Motion to Dismiss for failure to grant a Speedy Trial, the trial judge specifically found that “all previous resets were by agreement between counsel for the defendant, the defendant, and the State [and that the] State announced ready before the expiration of a hundred twenty days.” When the delay attributable to the agreed postponements is excluded, appellant was tried well within the 120 day period. Garcia v. State, 625 S.W.2d 831 (Tex.App. — Houston [14th Dist.] 1981, pet ref’d). Appellant’s first ground of error is overruled.

In his second ground of error appellant contends that a juror conversed with the State’s “main witness” during a recess from its deliberations and “that the State failed to rebut the presumption of harm resulting from jury separation.” Ms. Felic-itas Orellano, appellant’s sister, testified that all the jurors had been allowed out of the courtroom for coffee and that she observed one of the jurors talking to Mr. Tony Rodriguez (a witness for the State) for about ten minutes when the witness returned. Appellant filed a Motion for New Trial in which he alleged that the juror had conversed with Tony Rodriguez “about the facts of the case resulting in injury to the Defendant” with “a juror, name unknown, but described as 5’10”, blonde hair, round face, and heavy set _” Ms. Orellano could not testify personally about what the juror and Mr. Rodriguez might be discussing because she could not understand English.

Appellant concedes that the “law regarding juror separation is well stated in McDonald v. State, 597 S.W.2d 365, 367 (Tex.Crim.App.1980) _” That case notes, however, that it is appellant’s burden to insure that the record reflects that he did not consent to the separation; until this fact is established, the burden of negating harm from an improper separation need not be assumed by the State. McDonald at 367. In the case before us, appellant has neither alleged nor shown that he objected to the separation. Thus, the defendant has the burden to establish that if a conversation did occur between a non-sequestered juror and someone else, “the discussion involved matters concerning the specific case at trial.” Chambliss v. State, 647 S.W.2d 257 (Tex.Crim.App.1983). Although we would overrule appellant’s contention on its merits, we need only find that the burden of proof rested with appellant, rather than the State, and that appellant failed to satisfy that burden. Appellant’s second ground of error is correspondingly overruled.

In his third ground of error appellant contends that the trial court erred by failing to order a pre-sentence investigation report from a probation officer, as required by the amendment to Article 42.12(4)(a) of the Texas Code of Criminal Procedure set out in House Bill 1178, 68th Legislature, Regular Session. We find, however, that this issue has been resolved against appellant in the recently decided case of State Ex.Rel. Turner v. McDonald, 676 S.W.2d 375 (Tex.Crim.App.1984), in which the Court found invalid all the material provisions now asserted.

All of appellant’s grounds of error are overruled and the judgment of the trial court is AFFIRMED.


author: COLLEY, Justice.

text:
    Hellen TATOM, Appellant, v. James GUILLEBEAU, M.D., Appellee.
    No. 12-83-0127-CV.
    Court of Appeals of Texas, Tyler.
    Feb. 14, 1985.
    Rehearing Denied March 21, 1985.

      Robert R. Waldie, Seven Points, for appellant.
    Michael E. Jones, Tyler, for appellee.
   COLLEY, Justice.

On December 10, 1982, Hellen Tatom, plaintiff/appellant, filed a medical malpractice suit against Dr. James Guillebeau, defendant/appellee. Guillebeau filed a motion for summary judgment on February 8, 1983, supported by his affidavit. The sole ground of the motion is that there is no genuine fact issue material to the cause. Tatom filed a response to the motion, but did not present any summary judgment evidence in opposition thereto. On April 26, 1983, the trial judge signed a summary judgment for Guillebeau that Tatom take nothing. We reverse and remand.

Dr. Guillebeau’s affidavit establishes that he is an experienced, board certified orthopedic surgeon. His affidavit shows that he possesses impecable credentials, and that he is on the staff of two Tyler hospitals. The affidavit also establishes the following facts: Dr. Guillebeau first saw Tatom as a patient on February 4, 1980, and had professional contacts with her up until April 16, 1980. After examination of Tatom’s left thumb, Dr. Guillebeau concluded that Tatom was suffering from degenerative arthritis of the carpal metacarpal joint of her left thumb. He recommended conservative treatment for the condition which treatment was rejected by Ta-tom. On February 13,1980, Dr. Guillebeau at the request of Tatom, and with her signed written consent, performed an ar-throdesis (fusion) of the carpal metacarpal joint by inserting a “bone peg” taken from the left elbow of Tatom. Dr. Guillebeau states in his affidavit that he performed the surgery “in accordance with general [sic] accepted medical standards.” He also states that “no action taken by me during the operation or failure to act on my part during the operation constituted negligence .... I hereby state that I did not fail to exercise that degree of care, skill and learning as a physician of ordinary prudence under the same or similar circumstances or community would have exercised and that I committed no act or omission which constituted negligence as that term is defined by law for the acts of physicians.”

Tatom urges five points of error, three of which allege that the granting of the summary judgment motion was erroneous because a fact issue remains in the case, that is, whether Dr. Guillebeau was guilty of negligence in his treatment, care and supervision of her.

Dr. Guillebeau argues that the judgment is supported by the unchallenged statements and opinion testimony rendered by him in his supporting affidavit. We disagree. Dr. Guillebeau’s affidavit fails to articulate the standard of care applicable to his medical services to, and treatment of Tatom. Rather, in conclusionary statements he alleges that he “performed [the surgery] in accordance with generally accepted medical standards in ... Smith County ... and in accordance with general [sic] accepted medical standards for orthopedic surgery.” Dr. Guillebeau further alleges that he was not guilty of negligence which caused Tatom any damages and that he performed the surgery in the same manner as any “reasonably prudent orthopedic surgeon in Smith County would have performed the same.” Additionally Dr. Guille-beau states that his postoperative care and treatment of Tatom were likewise in accordance with accepted standards of care “prevalent in the orthopedic surgeon community in Smith County.” He also rendered an opinion that his care and treatment of Tatom “was the same that she would have received by any other reasonable [sic] prudent medical doctor practicing in Smith County ... as an orthopedic surgeon.”

Tatom contends, in effect, under her first point of error that the affidavit is insufficient to support the summary judgment because the question of Dr. Guille-beau’s negligence can only be determined by the court or jury. Tatom argues that Dr. Guillebeau’s conclusion that he was not negligent is not binding on the fact finder because he is an interested party. Dr. Guillebeau responds that Rule 166-A(c) provides that a summary judgment may be based on opinion testimony by an interested expert, citing Duncan v. Horning, 587 S.W.2d 471 (Tex.Civ.App. — Dallas 1979, no writ). We agree with the Dallas Court’s conclusion that the language added to Rule 166-A(c) by the 1978 Amendment allows a summary judgment to be based on an interested expert’s opinion. However, we do not agree that under Rule 166-A(e) and the rules of evidence existing prior to the adoption of the new rules of evidence, that Dr. Guillebeau’s opinion that he was not guilty of negligence or that he cared for Tatom as any reasonably prudent orthopedic surgeon would have, entitled him to the judgment rendered below. No medical expert is competent under the former rules of evidence to express an opinion as to “what a reasonable and prudent doctor would have done under the same or similar circumstances.” A determination of that factual issue is for the trier of the facts. Snow v. Bond, 438 S.W.2d 549, 550-551 (Tex.1969). Tatom’s first point of error is sustained.

The judgment is reversed, and the cause is remanded.

      . All reference to Rules are to Texas Rules of Civil Procedure unless otherwise noted.

      . "A summary judgment may be based on un-controverted testimonial evidence of an interested witness, or of an expert witness as to subject matter concerning which the trier of fact must be guided solely by the opinion testimony of experts, if the evidence is clear, positive and direct, otherwise credible and free from contradictions and inconsistencies, and could have been readily controverted.”

      .Texas Rules of Evidence, created by order of the Texas Supreme Court dated November 23, 1982, effective September 1, 1983.


author: CADENA, Chief Justice. TIJERINA, Justice,

text:
    Mariann Bateman RANKIN, Appellant, v. Jack Norman BATEMAN, Appellee.
    No. 04-82-00504-CV.
    Court of Appeals of Texas, San Antonio.
    Feb. 20, 1985.
    Rehearing Denied March 14, 1985.

      Sam Bashara, San Antonio, for appellee.
    S. Olsson Kahn, Adams & Hunter, San Antonio, for appellant.
    Before CADENA, C.J., and REEVES and TIJERINA, JJ.
   OPINION

CADENA, Chief Justice.

Appellant, Mariann Bateman Rankin, appeals from an order interpreting that portion of a divorce decree which awarded her an interest in the military retirement benefits received by her former husband, Jack Norman Bateman.

We affirm the judgment below.

The proceedings which culminated in the challenged order were initiated when appellant filed a motion seeking to have appellee held in contempt because of his failure to make the payments which she claimed he was required to make under the decree. Her motion did not allege the amount of each monthly payment which she claimed to be due, nor did she allege the amount of the claimed arrearage. She did allege that under the property settlement which was incorporated in the divorce decree the ap-pellee was ordered to pay her “a pro rata share of the retirement benefits with 6.5 as the numerator of a fraction and with the denominator of said fraction being the number of years spent by [appellee] in the U.S. Army.”

On the day that the motion for contempt was set for hearing, the parties appeared before the court and announced that an agreement had been reached under which appellee was to pay appellant $6,500.00 and that such payment would absolve appellant of “all arrearages in the payment owed for military benefits accrued up to” the date of the hearing. Counsel for appellant then announced that the parties had been unable to agree concerning “the percentage of the retirement benefits [appellee] is to pay hereafter, and as to what dollar amount the percentage is to be applied to.” He added:

So, we are here submitting to the court for interpretation the divorce decree and with the evidence we have as to what the monies are and so forth as to how much percentage and of what base he should pay future military benefits. And with the court making that determination, we have agreed that as part of the order to be entered herein, that he will be ordered that the payments be made as interpreted by the court and further that he do all things to institute an allotment so that she would receive that money directly from the Army Finance Center each month.

Counsel for the parties then agreed that appellee would make all efforts to cause an allotment to be made, but that if his efforts proved unsuccessful he would be under order of the court to make the payments to appellant. Counsel for appellee, after it had been made clear to appellee that he would be hound to make the payments “whether the allotment occurs or not,” then said:

And, Judge, so the court understands what the real dispute is before the Court, let me just make this by way of predicate argument. We take the position that he was a Major at the time of the divorce. And we take the position that the decree and the intention of the parties was that the retirement benefits were to be based upon his rank; not the years of service. Because that was negotiated. That’s 6.50 over the years of service. But on his rank at the time of divorce.
They take the position that they are entitled to the entire amount that he receives now at the upgraded rank that he obtained after marriage. And that’s what the issue before the Court is, as I understand it.

Counsel then stated the issue before the court in terms of whether appellant was entitled to receive the stipulated percentage of the retirement pay based on the amount received by a lieutenant colonel on retirement after 30 years’ service or whether the payment due appellant was to be calculated on the basis of the percentage appellee would have received if he had retired as a major. Appellant’s attorney said: “He said that very well. I think that capsulized the dispute, crystallizes the dispute.”

The court then announced that he would order that the amount to be paid by appel-lee would be based on the retirement benefits received by a Major. Counsel for ap-pellee inquired whether the court’s order that the money to be received by appellant would be “based upon as if he retired as a Major and not as a Lieutenant Colonel, which he actually retired? ” The court answered, “That’s correct.”

There can be no doubt that Rule 67, TEX.R.CIV.P., is applicable. Both parties made it clear to the court that they wanted the question decided and both presented arguments to persuade the court that their interpretation of the divorce decree was correct. Both expressly agreed on the nature of the question they wanted decided. A reading of the record compels the conclusion that both parties understood that the question was before the court, and neither party pointed out the defects in pleading to the court. See 2 R. McDONALD, TEXAS CIVIL PRACTICE § 5.18, p. 47 (rev. 1982).

The cases relied on by Justice Tijerina in his dissent are not relevant. In Cunningham v. Parkdale Bank, 660 S.W.2d 810 (Tex.1983), there is no mention of Rule 67 nor any discussion of trial by express or implied consent. A reading of the opinion reveals that the question of trial of un-pleaded issues by consent could not be in the case, since the order complained of in that case was entered without a hearing and the complaining part on appeal did not appear in court. It is impossible to speak of consent by a party who was not present in court and, therefore, could have no inkling concerning the issues the trial court believed were presented. In fact, a reading of the opinion makes it clear that no one appeared in court. It takes great imagination and even more determination to interpret Cunningham as a case limiting the effect of Rule 67 insofar as trial by consent is concerned. Since that issue was not and, indeed, could not be before the Supreme Court in that case, the complete failure of the opinion to address the question is understandable.

In Foxworth-Galbraith Lumber Company v. Southwestern Contracting Corp., 165 S.W.2d 221, 224 (Tex.Civ.App. — Fort Worth 1942, writ ref’d n.r.e.), which was decided about 13 months after Rule 67 became effective, the court did say that Rule 67 was not intended to establish “a general rule of practice” and that it was to be applied only “to the exceptional case where it clearly appears from the record as a whole that the parties tried out an un-pleaded issue, perhaps having overlooked the omission in the pleadings, or else having failed to plead carefully or clearly the issues upon which the case was tried.” This language in no way supports the position taken by the dissenter, since in the case before us “it clearly appears from the record as a whole that the parties tried out an unpleaded issue_” The actual holding in that case was the affirmance of a judgment which allowed recovery on an unpleaded cause of action.

Jay Fikes and Associates v. Walton, 578 S.W.2d 885 (Tex.Civ.App. — Amarillo 1979, writ ref’d n.r.e.), does not support the dissenter’s position. Insofar as Rule 67 is concerned, the court merely held that the record furnished no basis for concluding that the issue of recovery of attorney’s fees, which was not mentioned in the pleadings, had been tried by consent. The same is true of Realtex Corp. v. Tyler, 627 S.W.2d 441, 444 (Tex.App.Houston [1st Dist.] 1981, no writ), where the court pointed out that the record did not establish that the parties understood that the question of recovery of a trustee’s fee was before the trial court.

The trial court ruled that the retirement benefits to be paid to Mrs. Rankin under the decree of divorce should be based on the rank of Major, the rank held by the husband at the time of the divorce, and not the rank of Lieutenant Colonel, the rank held by him at the time of his retirement after the divorce.

The conclusion that the pro-rata share to be paid to Mrs. Rankin under the divorce decree must be based on the husband’s rank at the time of the divorce, rather than on the rank subsequently attained by him, is correct.

In Berry v. Berry, 647 S.W.2d 945, 947 (Tex.1983), the Supreme Court held that a divorce court, in dividing military retirements benefits, must base the division on the rank held by the prospective retiree at the time of the divorce, rather than upon the rank attained subsequent to the divorce. As applied to this case, an order awarding Mrs. Rankin a pro-rata share of a Lieutenant Colonel’s retirement, rather than a pro-rata share of a Major’s retirement, would invade the separate property of Mr. Bateman.

The judgment of the trial court is affirmed.

TIJERINA, Justice,

dissenting.

I respectfully dissent.

This action originated by way of a motion for contempt to enforce payment of the unpaid portion of military retirement benefits. The trial court, without jury, rendered judgment providing for the payment of military retirement benefits to appellant based on appellee’s rank of major at the time of the entry of the divorce decree and not that of a Lieutenant Colonel, the rank held on the date of retirement.

The parties were divorced in 1971 and at issue, as a community property asset, was thirteen (13) years of military service during the marital status. Appellee had the rank of major with twenty-one (21) years of military service on the date of the divorce. He retired eight-and-a-half (8½) years later with the rank of Lieutenant Colonel having completed approximately thirty (30) years of military service. The property settlement agreement, approved by the court and incorporated by reference in the divorce decree, provided that appellant was to receive as her sole and separate property one-half (V2) of the accumulated benefits to appellee’s military retirement in accordance with the following formula:

... the parties do hereby agree that at the time of Husband’s retirement, that the amount of the retirement should be prorated between the parties in accordance with the formula described in this paragraph. It is agreed that Wife shall receive 6.5 as a numerator of a fraction and with the denominator of said fraction being the actual number of years that husband spent in the United States Army at the time of retirement, ...

The parties, at the contempt hearing, announced to the court that they had reached an agreement to settle the claim for the unpaid portion of appellant’s pro rata share of military retirement benefits for the sum of six thousand five hundred dollars ($6,500.00). Upon the payment of said amount, appellee was to be released and absolved of liability for all such payments in arrears. Subsequently, upon the request, agreement and stipulation of the parties, the court proceeded to determine the remaining controversy concerning the value of military retirement benefits due appellant under the property settlement agreement, incorporated by reference into the 1971 divorce decree. It was further stipulated that the computation of appellant’s interest in the military retirement benefits was to be based on the formula of 6.5 as a numerator of a fraction over the denominator of 30, being the actual number of years that appellee spent in the military service at the time of retirement.

Recently, the Supreme Court in Berry v. Berry, 647 S.W.2d 945 (Tex.1983), held that post-divorce increases in retirement benefits cannot be awarded to a divorced spouse, for to do so would invade the other spouse’s separate property and that the value of retirement benefits are to be apportioned to the spouses upon the value of the community’s interest at the time of the divorce. In Berry v. Berry, supra, the decree of divorce was silent as to the distribution of retirement benefits; consequently, the Berry ruling is not applicable to the instant case, where the retirement benefits were clearly distributed and disposed of by the property settlement agreement.

If the settlement agreement is set forth in the decree or is incorporated by reference and approved by the trial court, it is accorded the same degree of finality and binding force as a final judgment, and binds the parties. McCray v. McCray, 584 S.W.2d 279, 281 (Tex.1979) (per curiam); McKnight, Family Law: Husband and Wife, 37 S.W.L.J. 65, 90-1 (1979). It is well established that a court is without authority to modify a trial court’s judgment relating to property adjudication, except as provided by law. McGehee v. Epley, 655 S.W.2d 305, 308 (Tex.App. — San Antonio), rev’d in part on other grounds, 661 S.W.2d 924 (Tex.1983); TEX.R.CIV.P. 329b.

The trial court was without authority to rule or render relief on this issue. The only matter before the trial court on written pleading was the contempt action. There is no statutory right to appeal from an order holding a party in contempt, Anderson v. Burleson, 583 S.W.2d 467 (Tex.Civ.App. — Houston [1st Dist.] 1979, no writ), or from an order refusing to hold a party in contempt. Hamborsky v. Hamborsky, 497 S.W.2d 405, 406 (Tex.Civ.App. —San Antonio 1973, no writ). The trial court cannot grant relief without pleadings to support it, and a judgment which is not supported by pleadings is void. See Oil Field Haulers Association v. Railroad Commission, 381 S.W.2d 183, 191 (Tex.1964); Carreon v. Texas State Department of Public Welfare, 537 S.W.2d 345, 347 (Tex.Civ.App. — San Antonio 1976, no writ). See also TEX.R.CIY.P. 301. In the instant case, the parties were before the trial court on a motion for contempt, the issues of which were compromised and settled. At that time there was no further controversy between the parties on which the court could render judgment in conformance with the pleadings. The jurisdiction of the trial court was not invoked to enter an order construing the divorce decree when there were no pleadings to support the order. See Carreon v. Texas State Department of Public Welfare, 537 S.W.2d 345, 348 (Tex.Civ.App. — San Antonio 1976, no writ); Rodriguez v. Vela, 488 S.W.2d 872, 875 (Tex.Civ.App. — San Antonio 1972, no writ); Goodman v. Goodman, 236 S.W.2d 641, 646 (Tex.Civ.App. — San Antonio 1951, no writ). Very recently, the Supreme Court in Cunningham v. Parkdale Bank, 660 S.W.2d 810 (Tex.1983), held that a party may not be granted relief in the absence of pleadings to support that relief. In setting aside the judgment, the Supreme Court held that the jurisdiction of the trial court was not invoked in the absence of pleadings. Id. at 811. Therefore, the part of the court’s order with reference to the issue of retirement benefits is void.

Appellant argued that the issue on military retirement benefits was tried by express consent under TEX.R.CIV.P. 67. It is correct that when issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. TEX.R.CIV.P. 67. However, Rule 67 is not intended to establish a general rule of practice. Instead, it is intended to cover the exceptional case where it clearly appears from the record as a whole that the parties tried out an un-pleaded issue, perhaps having overlooked the omission in the pleadings, or else having failed to plead carefully or clearly the issues upon which the case was tried. Foxworth-Galbraith Lumber Co. v. Southwestern Contracting Corp., 165 S.W.2d 221, 224 (Tex.Civ.App. — Fort Worth 1942, writ ref’d w.o.m.). Accord Realtex Corp. v. Tyler, 627 S.W.2d 441, 443-44 (Tex.App. —Houston [1st Dist.] 1981, no writ); Jay Fikes & Associates v. Walton, 578 S.W.2d 885, 889 (Tex.Civ.App. — Amarillo 1979, writ ref’d n.r.e.). Rule 67 is intended to apply to cases which are tried in accordance with the pleadings, but in which there are issues not supported by the pleadings raised and proven without objection during trial. The rule is not intended to allow a judgment to be rendered in the complete absence of pleadings. Rule 67 covers the gaps in pleadings where the parties have overlooked an omission in the pleadings or have failed to plead carefully or clearly the issues to be tried. Rule 67 does not envision a circumstance where parties can orally request an adjudication on a matter of controversy between them. The allegations contained in the pleadings determine the nature and character of a suit. Wynn v. State ex rel. Wichita County, 431 S.W.2d 934, 935 (Tex.Civ.App. — Amarillo 1968, no writ). The petition must contain a statement in clear and concise language of the plaintiff’s cause of action and must give fair notice of the claim involved. Christy v. Hamilton, 384 S.W.2d 795, 796 (Tex.Civ.App. — Amarillo 1964, no writ); TEX.R. CIV.P. 47. A party must recover in the right in which he sues and upon proof of the facts stated in his pleadings; he cannot recover through a right not asserted. Jay Fikes & Associates v. Walton, supra at 889. It is mandatory that a judgment conform to the pleadings. Cunningham v. Parkdale Bank, supra; TEX.R.CIV.P. 301. The order on the military retirement benefits should be deleted from the judgment; the only remaining matter would be the order on contempt of which we have no jurisdiction.

Accordingly, I would reverse the judgment and order the cause dismissed.

      . Rule 67 reads in pertinent part as follows: "When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings...."

      . Appellant did not raise the question of the sufficiency of the pleadings to support the judgment either in the court below or in this court. Although the question probably is not before us, the dissenting opinion’s sua sponte consideration of the question required a discussion of the correct application of Rule 67.


author: CANTU, Justice.

text:
    Richard HARKRIDER, Appellant, v. Bertha A. MORALES, Appellee.
    No. 04-83-00209-CV.
    Court of Appeals of Texas, San Antonio.
    Feb. 20, 1985.

      Randolph N. Osherow, San Antonio, for appellant.
    John W. Benbow, Benbow & Gross, Inc., San Antonio, for appellee.
    Before ESQUIVEL, CANTU and DIAL, JJ.
   OPINION

CANTU, Justice.

This is an appeal from a judgment partitioning a monthly military retirement pension. The parties have brought forth an agreed statement of the case and of the facts proven as permitted by TEX.R.CIV.P. 378.

The following facts were stipulated to by both parties at the time of the trial and have been brought forward on the appeal:

1. That the Plaintiff, BERTHA A. MORALES, and RICHARD HARKRI-DER were married on April 2, 1961.
2. That the Defendant, RICHARD HARKRIDER was in the military service of the United States Army at the time of his marriage to the Plaintiff, BERTHA A. MORALES.
3. That the Defendant, RICHARD HARKRIDER, remained in the military service of the United States Army continuously from the date of marriage to the Plaintiff, BERTHA A. MORALES until he was retired on February 28, 1978.
4. Following his retirement from the United States Army, Defendant RICHARD HARKRIDER began drawing a monthly retirement pension which he has drawn on continuously and still receives as a result of his military service.
5. That the Defendant, RICHARD HARKRIDER, served for two hundred forty (240) months in the active service of the United States Army at the time of his retirement.
6. BERTHA A. MORALES, Plaintiff, was married to the Defendant, RICHARD HARKRIDER, for a total of one hundred ninety three (193) months during the two hundred forty (240) months with the United States Army.
7. On September 14, 1981, in Cause No. 81-CI-9747 in the 45th District Court, Bexar County, Texas, the Plaintiff, BERTHA A. MORALES and the Defendant, RICHARD HARKRIDER were divorced.
8. At the time the Plaintiff, BERTHA A. MORALES and RICHARD HARKRI-DER, Defendant were divorced on September 14, 1981, the Defendant, RICHARD HARKRIDER was already drawing his military retired pay monthly from the United States Army.
9. The divorce decree dated September 14, 1981 reflecting the divorce of the Plaintiff, BERTHA A. MORALES, and Defendant RICHARD HARKRIDER, made no reference to the military pension or retirement pay being received by the Defendant, RICHARD HARKRI-DER.
10. No appeal was perfected by either party to the Decree of Divorce dated September 14, 1981.
11. The retirement pension or pay paid to the Defendant, RICHARD HAR-KRIDER by the United States Army is regular retirement earned while on active duty and is not the result of any disability incurred on active duty or any disability pay received through the United States Veteran’s Administration.

Plaintiff brought suit for a partition of the monthly retirement pension. Evidence was presented and arguments heard on January 14, 1983. Judgment was rendered on March 4, 1983, finding that the parties were tenants in common of the military retirement benefits and that plaintiff was entitled to fifty-percent (50%) of 19%4oths of the gross retirement pension payment then being received monthly by defendant and all future monthly payments. The first payment was ordered to be paid on February 1, 1983, for the last seventeen days of January 1983, and each payment thereafter to be made on the first day of each month.

Defendant maintains that non-disability military retirement pay is not subject to being partitioned where the divorce decree fails to mention the retirement pay and the divorce was granted after June 25, 1981, and before the effective date of the Uniformed Services Former Spouses’ Protection Act (USFSPA), 10 U.S.C.A. § 1408 (1983).

A brief history of the law pertaining to military retirement pay is in order. Prior to June 26, 1981, all military retirement benefits which accrued during the marriage under Texas law were community property. See Taggart v. Taggart, 552 S.W.2d 422 (Tex.1977); Cearley v. Cearley, 544 S.W.2d 661 (Tex.1976); Busby v. Busby, 457 S.W.2d 551 (Tex.1970); Mora v. Mora, 429 S.W.2d 660 (Tex.Civ.App. — San Antonio 1968, writ dism’d). Where the divorce decree failed to provide for a division of this community property, the husband and wife became tenants in common or joint owners thereof and the property was thereafter subject to partition. Busby v. Busby, supra, at 554; Clendenin v. Krock, 527 S.W.2d 471, 473 (Tex.Civ.App. — San Antonio 1975, no writ).

On June 26, 1981, the United States Supreme Court handed down McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981). In the wake of McCarty, the Texas Supreme Court held that the supremacy clause effectively foreclosed the division of military retirement benefits under Texas community property laws. Trahan v. Trahan, 626 S.W.2d 485, 487 (Tex.1981).

On September 9, 1982, the President signed into law the Uniformed Services Former Spouses’ Protection Act (USFSPA), 10 U.S.C.A. § 1408 (1983). Our Supreme Court responded on October 13, 1982, with the opinion in Cameron v. Cameron, 641 S.W.2d 210 (Tex.1982), wherein it stated that the purpose of the act was to reverse the effect of the McCarty decision.

Under the act, a divorce court may divide military retirement pay between the spouses in accordance with the law of the jurisdiction of that court. The act limits such division of retirement pay to periods beginning after June 25, 1981. [10 U.S. C.A. § 1408(c)(1)].

Id. at 212-13. On review of an appeal from the divorce decree, the court affirmed that portion of the judgment awarding the wife a percentage of the retirement pay, but only for the period beginning after June 25, 1981. In Segrest v. Segrest, 649 S.W.2d 610, 613 (Tex.1983), in a footnote, the court stated that “Title 10, section 1408 of the Department of Defense Authorization Act of 1983 makes McCarty nugatory with respect to its application to judgments rendered after the date of the decision.” Citing Cameron v. Cameron, 641 S.W.2d 210 (Tex.1982); 10 U.S.C.A. § 1408(c)(1); 128 Cong.Rec. H5999-6000 (daily ed. August 16, 1982, conference explanation).

Thus, according to our interpretation of opinions of the Texas Supreme Court, military retirement benefits again became subject to our Texas community property laws as of June 25, 1981. Plaintiff was married to the defendant for a total of one hundred and ninety-three (193) months during the two hundred and forty (240) months he served in the United States Army. Under the act, plaintiff is entitled to receive a portion of the retirement pay. The divorce decree of September 14, 1981, did not mention the retirement pay. According to our community property laws, plaintiff and defendant became tenants in common, and the military retirement pay was thereafter subject to a partition action.

After review of the case of Salmans v. Salmans, 643 S.W.2d 778 (Tex.App.—San Antonio 1982, no writ), written by another panel of this court, we find it to be in conflict with the position we now assume. The Salmans case was an appeal from a take nothing judgment on a petition for partition of military retirement benefits. The parties were divorced prior to McCarty and the divorce decree failed to mention military retirement benefits. After an examination of the USPSPA, a panel of this court held that the act’s provisions did not affect the authority of the holding in Tra-han which held that McCarty precluded a division of a spouse’s entitlement to military retirement benefits which were not divided in the original divorce decree.

It appears, under Cameron, that any retirement pay payable to members for pay periods beginning after June 25, 1981, are subject to Texas’ community property laws. Thus in Salmans, any retirement pay payable after June 25, 1981, should have been subject to a partition action as provided for by our community property laws. This panel therefore declines to follow the holding in Salmans.

Defendant further complains that the trial court erred in applying the USFS-PA to this case since the act did not take effect until February 1, 1983. The judgment in this case was signed and rendered on March 4, 1983, more than one month after the effective date of the act. Defendant’s ground of error two is overruled.

The judgment is affirmed.

      . The effective date of the act was February 1, 1983.

      . The panel appears to have been wrongfully swayed by the fact that the parties therein had not been married 10 years. See Oxelgren v. Oxelgren, 670 S.W.2d 411 (Tex.App.—Fort Worth 1984, no writ).