IN THE
TENTH COURT OF APPEALS
No. 10-03-00029-CV
     CIRCLE X LAND AND CATTLE CO.,
                                                                              Appellant
     v.
     CAGO INC.,
                                                                              Appellee
From the 361st District Court
Brazos County, Texas
Trial Court # 53586
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MEMORANDUM OPINION
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      This is a dispute between the surface owner of land and the operator of two wells. Because we find that the trial court erred in entering an order allowing the operator 120 days to remove equipment and plug the wells, we will reverse it and render an order denying the operator the relief requested.
      Circle X Land and Cattle Co. Ltd. owns property in Brazos County, on which CAGO, Inc. was the operator of wells known as the Burkhart #1 and Burkhart B. Circle X sought a judicial determination that the oil and gas lease covering the property had expired. On September 10, 2002, the trial court signed an order granting Circle Xâs motion for a partial summary judgment, which declared that the lease had terminated on November 15, 2001, due to the non-payment of the minimum royalty required by the lease. CAGO then filed a motion for partial summary judgment seeking access to the property and the right to plug the two wells and remove its personal property. On January 10, 2003, the court signed an order granting that motion and allowing CAGO 120 days from the date of the order to remove the property and plug and abandon the wells. These matters were severed from other claims in the suit, and Circle X appealed from the latter order.
      The order declaring the lease to have terminated is not in dispute. The dispute is centered on whether the court erred in allowing 120 days from the date of its order rather than 120 days from the date the lease terminated.
      Paragraph 15 of the lease provides generally that within 120 days after abandonment of any well, the lessee shall remove its equipment, restore the land, and plug that well. Within 120 days after expiration of the lease, the lessee shall perform all those obligations that have not been performed previously.
      Using general contract principles, Circle X says that the court should enforce the contract as written and not make a new or different contract for the parties. CAGO, on the other hand, points to authority allowing a suspension of operations until a determination of the controversy, when a lessor gives unqualified notice to the lessee that the lease has terminated. Repudiation of a lease by a lessor relieves the lessee from any obligation to conduct any operation on the land in order to maintain the lease in force while a judicial resolution of the controversy between the lessee and lessor over the validity of the lease is pending. Exploracion De La Estrella Soloataria Incorporacion v. Birdwell, 858 S.W.2d 549, 554 (Tex. App.âEastland 1993, no writ) (citing Kothmann v. Boley, 158 Tex. 56, 308 S.W.2d 1, 4 (1957), and Cheyenne Resources, Inc. v. Criswell, 714 S.W.2d 103, 105 (Tex. App.âEastland 1986, no writ)). The doctrine of repudiation is a variation of the doctrine of estoppel. Id. (citing Kothmann, 308 S.W.2d at 4). However, the Eastland Court also noted:
. . . , for the doctrine of repudiation to apply, the lease must be subsisting. Cheyenne Resources, Inc. v. Criswell, supra. We have previously held that there is sufficient evidence to support the trial court's findings that the leases terminated under their own terms 60 days after May 20, 1988, and September 14, 1989. The trial court found that both leases had terminated prior to June 18, 1990, the date appellants received appellees' demand letter. Because the leases had already terminated, an excuse of performance because of the repudiation on June 6, 1990, would not perpetuate the leases.
Id. Here, the lease provides for termination under the minimum royalty provision âupon notice from the Lessor.â Circle X notified CAGO on November 15, 2001, that the lease was terminated under that provision, and the trial court ultimately signed an order declaring that it had terminated on that date. We will follow the Eastland Court and hold that Circle Xâs notice of termination did not perpetuate the lease. CAGO also points to Cheyenne Resources as authority for allowing 120 days after the courtâs order, but there the jury found that the lease had not terminated. Cheyenne Resources, 714 S.W.2d at 105. Because the lease had not terminated, the court utilized a 60-day provision of the lease to allow the lessee to continue operations.
      Because of the courtâs finding that the lease had terminated, we find ourselves in agreement with Circle X. No one claims that the language of the lease is ambiguous. Thus, the court should not have allowed 120 days from the date of its order for CAGO to remove its property and plug the wells, but should have enforced the lease as written. See Heritage Resources, Inc. v. NationsBank, 939 S.W.2d 118, 121 (Tex. 1996) (court will enforce the unambiguous document as written). We reverse the âOrder Granting Partial Summary Judgment to Defendant Cago, Inc.â signed on January 10, 2003, and render an order denying the relief requested in CAGOâs motion for summary judgment filed on September 3, 2002.
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                                                                   BILL VANCE
                                                                   Justice
Before Chief Justice Gray,
      Justice Vance, and
      Justice Reyna
Reversed and order rendered
Opinion delivered and filed June 23, 2004
[CV06]
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(2)Â Â at or in the direction of one or more individuals.
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See Tex. Pen. Code Ann. § 22.05(b)(1) (Vernon 2003).
           Wilkerson argues that he was entitled to the requested instruction because Officer SandlinÂs testimony about the threat he posed to the officers constitutes evidence on which a rational jury could have relied to find that he was guilty only of deadly conduct because he did not threaten the officers. See Smith, 297 S.W.3d at 275.
           The first three counts of the indictment each included the descriptive averment that Wilkerson discharged a firearm in the complainantÂs direction as the manner and means of committing the offense of aggravated assault. This descriptive averment is identical to the statutory elements for deadly conduct. Therefore, under this indictment, deadly conduct is a lesser-included offense of aggravated assault by threat under article 37.09(1).[2] See Watson, 306 S.W.3d at 273; Rice v. State, 305 S.W.3d 900, 906-07 (Tex. App.ÂDallas 2010, pet. granted) (reckless driving is lesser-included offense of aggravated assault by threat); Brown v. State, 183 S.W.3d 728, 732-33 (Tex. App.ÂHouston [1st Dist.] 2005, pet. refÂd) (same).  But see Rogers v. State, 38 S.W.3d 725, 727-28 (Tex. App.ÂTexarkana 2001, pet. refÂd).[3]
           The second step of our inquiry requires us to determine whether there is Âsome evidence in the record that would permit a rational jury to find that if the defendant is guilty, he is guilty only of the lesser-included offense. Smith, 297 S.W.3d at 275. Â[I]t is not enough that the jury may disbelieve crucial evidence pertaining to the greater offense, but rather, there must be some evidence directly germane to the lesser-included offense for the finder of fact to consider before an instruction on a lesser-included offense is warranted. Grey v. State, 298 S.W.3d 644, 653 n.11 (Tex. Crim. App. 2009) (quoting Hampton v. State, 109 S.W.3d 437, 441 (Tex. Crim. App. 2003)).
           Wilkerson contends that, based on Officer SandlinÂs testimony, a rational jury could have found that his act of shooting in the direction of the officers did not threaten them with imminent bodily injury. We disagree. Officer Sandlin testified that the officers Âwere in danger when Wilkerson shot in their direction. The jury would have to disbelieve Officer SandlinÂs testimony that the officers were in danger before it could find Wilkerson guilty of only deadly conduct. This is not a sufficient evidentiary basis on which to support a request for a lesser-included offense. See id. Accordingly, the court did not err by failing to submit the requested charge on the lesser-included offense.
           WilkersonÂs second issue is overruled.
We affirm the judgment.
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FELIPE REYNA
Justice
Before Chief Justice Gray,
Justice Reyna, and
Justice Davis
Affirmed
Opinion delivered and filed September 1, 2010
Do not publish
[CRPM]
[1]              The State argues that WilkersonÂs first issue is moot because the jury convicted him of a lesser-included offense. We disagree. For either the charged offense or the lesser-included offense, the jury had to find that Wilkerson intentionally or knowingly threatened Havens with imminent bodily injury.
[2] Â Â Â Â Â Â Â Â Â Â Â Â Â Article 37.09(1) provides, ÂAn offense is a lesser included offense if . . . it is established by proof of the same or less than all the facts required to establish the commission of the offense charged.ÂÂ Tex. Code Crim. Proc. Ann. art. 37.09(1) (Vernon 2006).
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[3]              The facts of Rogers appear close to the facts in WilkersonÂs case. See Rogers v. State, 38 S.W.3d 725, 727 (Tex. App.ÂTexarkana 2001, pet. refÂd). But Rogers was decided before the Court of Criminal Appeals clarified that Âdescriptive averments, such as non-statutory manner and means must be considered in the lesser-included analysis. See Ex parte Watson, 306 S.W.3d 259, 273 (Tex. Crim. App. 2009) (per curiam) (op. on rehÂg).
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