dissenting.
Having reconsidered my ruling on the question of the sufficiency of the evidence to support the jury’s finding that a joint venture was contemplated by the parties, I would grant appellees’ motion for rehearing. I now would conclude that the jury’s affirmative answer to special issue number one was based on more than sufficient probative evidence.
SPECIAL ISSUE NO. 1
Do you find from a preponderance of the evidence that on or prior to March 23, 1977, Plaintiff, Frank Heger, and Defendants, G. Hasslocher and Veva Has-slocher, entered into a joint venture agreement concerning the North Star Diamond?
“Joint venture” means a special combination of two or more persons in the nature of a partnership engaged in the joint prosecution of a particular transaction for their mutual benefit or profit. The elements of a joint venture are: (1) mutual right of control, (2) community of interest, (3) agreement to share profits as principals, and (4) agreement to share losses, costs or expenses.
You are further instructed that in order to create a binding agreement, the minds of the parties must meet with respect to both the subject matter of the agreement and all of its essential terms. The undisclosed intentions or understandings of one party will not bind the other unless the other party also attaches the same meanings to the words.
. We, the Jury, answer: We do
“The jury is thus not only the judge of the facts and circumstances proven but may also draw reasonable inferences and deductions from the evidence adduced before it. Its findings may not be disregarded ... if the record discloses any evidence of probative value” in support thereof. Lynch v. Ricketts, 158 Tex. 487, 314 S.W.2d 273, 276 (1958). In the instant case the joint control and community interest, the first two elements of a joint venture, are established by the memorandum of agreement drafted by appellant. Both parties performed under the agreement and the fact that appellant later moved the diamond to another safety deposit box would be irrelevant since the diamond was still accessible to appellee. The agreement *695to share profits as principals was undisputed. With reference to the fourth element, the agreement to share losses, costs or expenses, the evidence was conflicting. The jury resolved the conflict by disregarding appellant’s testimony that there was no agreement to share losses. Appellant testified he expected to be reimbursed by appel-lee for the interest payments on the loan. Appellee testified he felt obligated to share the losses. See Royal v. Cameron, 382 S.W.2d 335 (Tex.Civ.App.—Tyler 1964, writ ref d n.r.e.). Concerning the jury’s inquiry (whether they were required to find that all three,. losses, costs and expenses existed) we can only assume that the jury, based on the direct and circumstantial evidence, impliedly found the agreement to share losses. See Harrison v. Harrison, 597 S.W.2d 477 (Tex.Civ.App.—Tyler 1980, writ ref’d n.r.e.).
Texas cases usually require the following test for determining whether a joint venture exists: (1) a community interest in the undertaking, (2) a right to share in the profits and an obligation to share in the losses, and (3) a mutual right to control the enterprise. 19 R. HAMILTON, BUSINESS ORGANIZATIONS § 4 (Tex.Practice 1973). The Supreme Court in W.H. Hodges & Co. of Alexandria, Inc. v. Donley County State Bank, 407 S.W.2d 221, 224 (Tex.1966), additionally required, for the determination of a joint venture, that there be an agreement either express or implied. Under the written agreement in this record, appellee, prior to the repudiation of the agreement by appellant, did have control and possession of the diamond and was held responsible for its value while under his possession. It was the jury’s exclusive prerogative, as the trier of fact, to judge the credibility of the witnesses and the weight to be given their testimony, to resolve conflicts in the testimony of witnesses, or to believe part of a witness’s testimony or disregard it. Royal v. Cameron, supra. An appellate court cannot substitute its judgment for that of the trier of fact. Szmalec v. Madro, 650 S.W.2d 514, 517 (Tex.App.—Houston [14th Dist.] 1983, writ ref’d n.r.e.). Thus, having reviewed the entire record, I conclude that the jury’s answer to special issue number one is not so against the great weight and preponderance of the evidence as to be manifestly wrong or unjust. I withdraw my ruling and substitute this opinion to affirm the judgment of the trial court.