


 
IN THE
TENTH COURT OF APPEALS










 

No. 10-05-00325-CR
 
Terry Lee McCormick,
                                                                      Appellant
 v.
 
The State of Texas,
                                                                      Appellee
 
 

From the 54th District Court
McLennan County, Texas
Trial Court No. 2005-390-C
 

ORDER





 
          The
Court’s opinion and judgment dated January 10, 2007 are withdrawn.
 
 
                                                          PER
CURIAM
 
Before
Chief Justice Gray,
          and
Justice Vance
Opinion
and judgment withdrawn
Order
issued and filed February 21, 2007
Do
not publish


                                                                           

DISSENTING OPINION
                                                                                                                

      I would sustain Acadian’s second issue and hold that the Plaintiffs’ claims based on “profit
sharing plans” fail as a matter of law.
      PGS acquired Acadian through an transaction described as a “reverse triangular merger.” 
PGS caused a wholly-owned subsidiary to merge with Acadian, and Acadian’s shareholders
received shares of PGS in exchange for their shares of Acadian.  Acadian survived as a subsidiary
of PGS.  Acadian received no “proceeds.”
      Furthermore, the plaintiffs’ contracts relate to “profits.”  Proceeds that Acadian might have
received from PGS does not translate into profits.
      We sustain a no-evidence issue when the record reveals one of the following: (1) a complete
absence of evidence of a vital fact; (2) rules of law or rules of evidence bar the appellate court
from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to
prove a vital fact is no more than a scintilla; or (4) the evidence conclusively establishes the
opposite of a vital fact.  Juliette Fowler Homes, Inc. v. Welch Assoc., Inc., 793 S.W.2d 660, 666
n.9 (Tex. 1990) (citing Calvert, "No Evidence" and "Insufficient Evidence" Points of Error, 38
Tex. L. Rev. 361, 362-363 (1960)).  I find no evidence to support a finding that “profit sharing
plan” means “proceeds”; indeed, the evidence conclusively establishes the opposite of that fact. 
See id.  Thus, the  judgment that the plaintiffs are entitled to any part of the “proceeds” of the
“sale” of Acadian should not stand.  Because the majority holds otherwise, I respectfully dissent.
 
                                                                   BILL VANCE
                                                                   Justice

Opinion delivered and filed July 9, 2003
