author: DOUGLAS, Judge.

text:
    Ex parte Oscar Wayne THOMAS.
    No. 51828.
    Court of Criminal Appeals of Texas.
    July 14, 1976.
    Oscar Wayne Thomas, pro se.
    Jim D. Vollers, State’s Atty. and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DOUGLAS, Judge.

This is a post-conviction habeas corpus proceeding under Article 11.07, V.A.C.C.P.

Petitioner challenges his conviction for the offense of murder where he was assessed punishment at twenty years because he had been convicted for robbery by firearms growing out of the same transaction where he was assessed twenty years. The sentences ran concurrently. He contends that he should not have been convicted for the second offense because his first conviction constituted jeopardy.

The hearing court found that the victim in both offenses was Thomas E. Terry and no circumstances that interrupted the continuous nature of the assault. The court concluded that the robbery conviction, Cause No. C73-12605-IM, is valid and the conviction for murder in Cause No. C73-12604-IM is void.

Upon the hearing court’s finding, we conclude that the murder conviction must be set aside. See Ex parte Hilliard, 538 S.W.2d 135 (Tex.Cr.App., decided July 7, 1976); and Ex parte Jewel, 535 S.W.2d 362 (Tex.Cr.App.1976). Cf. Ex parte Caldwell, 537 S.W.2d 265 (Tex.Cr.App.1976).

It is so ordered.


source: Caselaw Access Project

license: Public Domain

text:
    Jimmy Ray FISHER, Appellant, v. The STATE of Texas, Appellee.
    No. 52237.
    Court of Criminal Appeals of Texas.
    July 14, 1976.
    Brown, Bancroft & Miller, Big Spring, for appellant.
    Tom O’Connell, Dist. Atty., and Verla Sue Holland, Asst. Dist. Atty., McKinney, Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for ⅛6 state.
   OPINION

DOUGLAS, Judge.

This is an appeal from a conviction for aggravated robbery. The plea was guilty before a jury and punishment was assessed at twenty-three years.

Appellant was tried on August 11, 1975 for an offense which occurred on September 18, 1974. He waived indictment by the Grand Jury and was tried upon an information. Appellant made no objection to the information- at the trial.

Appellant contends that the information was insufficient to sustain a conviction for aggravated robbery. The information reads, in part, as follows:

“. . . Jimmy Ray Fisher did then and there while in the course of committing theft of Three Hundred and Seventy-Five Dollars (4375.00) in Lawful United State Currency, hereinafter called “The Property”, from Mrs. W. B. Hendricks, with intent to obtain and maintain control of the property, using and exhibiting a deadly weapon, namely, a pistol, knowingly and intentionally threaten and place Mrs. W. B. Hendricks, in fear of imminent bodily injury and death. . . ”

He maintains that the information was defective because it failed to allege the elements of the offense of theft. This information is essentially the same in substance as the indictment sustained in Earl v. State, 514 S.W.2d 273 (Tex.Cr.App.1974). There it was decided that under the 1974 Penal Code it was not necessary to allege the elements of theft in an indictment for aggravated robbery. This Court, in Earl, reasoned that because the actual commission of the theft is not a prerequisite to the completion of crime of aggravated robbery, it would not be necessary to allege the elements of the offense of theft in an indictment for aggravated robbery.

The same rules which apply to an indictment also apply to an information. Article 21.23, V.A.C.C.P. We hold that the information in this case was not defective for failure to allege the elements of the offense of theft. See also Watson v. State, 532 S.W.2d 619 (Tex.Cr.App.1976).

Next he contends that the information was vague and indefinite and therefore insufficient to support a conviction because the use and exhibition of a deadly weapon is subject to two interpretations. The first interpretation is that the weapon was displayed at the beginning of the robbery; the second interpretation is that the weapon was displayed subsequent to the beginning of the transaction (that is, after the taking of the property).

Since the information is complained of first on appeal, only fundamental defects in the information can be considered. Such a fundamental defect would be whether the indictment failed to allege the elements of the offense before the court. See Terry v. State, 517 S.W.2d 554 (Tex.Cr.App.1975); Article 27.08, Y.A.C.C.P.

V.T.C.A., Penal Code, Section 29.02, states that a person commits robbery if “in the course of committing theft” he causes or threatens bodily injury. Y.T.C.A., Penal Code, Section 29.01, defines “in the course of committing theft” as conduct which occurs “in an attempt to commit [theft] during the commission, or in immediate flight after the attempt or commission of theft.” Under the 1974 Penal Code either interpretation of the information offered by the appellant would constitute the offense of robbery. The information is sufficient to allege the offense. See Trevino v. State, 519 S.W.2d 864 (Tex.Cr.App.1975).

No error is shown. The judgment is affirmed.


author: ONION, Presiding Judge.

text:
    Mike PRESLEY, Appellant, v. The STATE of Texas, Appellee.
    No. 52333.
    Court of Criminal Appeals of Texas.
    July 14, 1976.

      Jerry Paquin, Seminole, for appellant.
    Joe K. McGill, County Atty., Seminole, Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ONION, Presiding Judge.

This is an appeal from an order revoking a conditional discharge under Article 4476-15, Sec. 4.12, Vernon’s Ann.C.S. (Controlled Substances Act).

The record reflects that appellant was charged with possession of a usable quantity of less than two ounces of marihuana. It appears that on June 3, 1975, appellant entered a plea of guilty to the complaint and information charging him with such offense and the court, after hearing evidence, without entering a judgment of guilt and with appellant’s consent, granted a conditional discharge for the first offense and deferred further proceeding and placed the appellant on probation for six months subject to certain conditions under the provisions of said Section 4.12.

A motion to revoke “probation” or the conditional discharge was filed on September 16,1975. An amended motion was filed on October 9, 1975, and after a hearing on November 7, 1975, the court revoked the conditional discharge for four violations of the probationary conditions imposed. Punishment was assessed at six (6) months in the county jail and sentence was imposed after waiver of the time in which to file a motion for new trial or in arrest of judgment.

In his first ground of error appellant complains that the court failed to provide a court reporter at the revocation hearing, although he candidly admits that no request for one was made by him. In Cartwright v. State, 527 S.W.2d 535 (Tex.Cr.App.1975), this court held that the provisions of Article 40.09, Vernon’s Ann.C.C.P., requiring the court to appoint a court reporter, when requested to do so, to report all trial proceedings are applicable to county court prosecutions where the case may be appealed to the Court of Criminal Appeals. In footnote 6 of said opinion, it was noted that this court has made clear that a defendant in a criminal case must make an affirmative request for the court reporter to take the record under Article 40.09, supra, in order to show error on appeal. See Taylor v. State, 489 S.W.2d 890 (Tex.Cr.App.1973); Jones v. State, 496 S.W.2d 566 (Tex.Cr.App.1973), and cases there cited; Garrett v. State, 434 S.W.2d 142 (Tex.Cr.App.1968).

While this court has urged trial courts to provide court reporter even in absence of a timely request unless the same is waived, see, e. g. Jackson v. State, 491 S.W.2d 155 (Tex.Cr.App.1973); Taylor v. State, supra; Jones v. State, supra, there is no error if the services of a court reporter are not requested.

Next appellant complains that since no punishment is assessed at the time an accused is placed on conditional discharge for first offense none was assessed in this case, but that in assessing punishment for the original offense following the revocation order the court took into account the violations of the law shown at the revocation hearing. In the record before us, which does not contain a transcription of the court reporter’s notes, there is nothing to support appellant’s contention. Nothing is presented for review.

Lastly appellant complains the trial court erred in assessing punishment for possession of marihuana of two ounces or less. The punishment assessed was six (6) months in the county jail. Appellant contends that under Section 4.05(b)(3) the possession of marihuana of two ounces or less is a Class B misdemeanor, and that under the provisions of V.T.C.A., Penal Code, Section 12.22, a person adjudged guilty of a Class B misdemeanor cannot be confined in jail for a term longer than 180 days. He urges that six months is in excess of the maximum punishment of 180 days in jail. Appellant may be technically correct. However, it has been held that a “month” not otherwise defined by statute and used in assessing punishment means a solar month or 30 days and not a calendar or lunar month. See Lurie v. State, 162 Tex.Cr.R. 604, 288 S.W.2d 505, 506 (1956); McKinney v. State, 43 Tex.Cr.R. 387, 66 S.W. 769 (1902); Yeary v. State, 66 S.W. 1106 (Tex.Cr.App.1902); 1 Branch’s Anno. P.C., 2nd ed., Sec. 663, p. 641. While it would have been better practice in assessing punishment to use the terminology of the statute to avoid the question now presented, we interpret the “six months” set forth in the judgment and sentence as meaning 6 x 30 days or 180 days. Under any circumstances, appellant is entitled to discharge when he has credit for 180 days in the county jail.

The judgment is affirmed.

      . Section 4.12 of the Controlled Substances Act provides:
      “(a) If any person who has not previously been convicted of an offense under this Act, or, subsequent to the effective date of this Act, under any statute of the United States or of any state relating to a substance that is defined by this Act as a controlled substance, is charged with a violation of this subchapter or is found guilty of a violation of this subchapter after trial or on a plea of guilty, the court may, without entering a judgment of guilt and with the consent of the defendant, defer further proceedings and place him on probation on such reasonable conditions as it may require and for such period as the court may prescribe, except that the probationary period may not exceed two years.
      “(b) Upon violation of a condition of the probation, the court may enter an adjudication of guilt, pronounce sentence, and punish him accordingly. The court may, in its discretion, dismiss the proceedings against the defendant and discharge him from probation before the expiration of the maximum period prescribed for his probationary period. If during the period of his probation the defendant does not violate any of the conditions of the probation, then upon expiration of the probationary period the court shall discharge him and dismiss the proceedings against him. Discharge and dismissal under this subsection shall be without an adjudication of guilt, but a nonpublic record of the proceedings shall be retained by the director solely for use by the courts in determining whether or not, in subsequent proceedings, the person qualifies for conditional discharge under this section.
      “(c) A discharge or dismissal under this section shall not be deemed a conviction for purposes of disqualifications or disabilities imposed by law for conviction of a crime, including any provision for enhancement of punishment for repeat or habitual offenders. There may be only one discharge and dismissal under this section with respect to any person.
      “(d) This section shall not be construed to provide an exclusive procedure. Any other procedure provided by law relating to suspension of trial or probation may be followed, in the discretion of the trial court.”

      . V.T.C.A., Penal Code, Section 12.22, provides:
      “An individual adjudged guilty of a Class B misdemeanor shall be punished by:
      “(1) a fine not to exceed $1,000.
      “(2) confinement in jail for a term not to exceed 180 days; or
      “(3) both such fine and imprisonment.”


text:
    Edward William KUYAVA, Appellant, v. The STATE of Texas, Appellee.
    No. 52573.
    Court of Criminal Appeals of Texas.
    July 14, 1976.
    James H. Kreimeyer, Belton, for appellant.
    Joe Carroll, Jr., Dist. Atty. and Troy C. Hurley, Asst. Dist. Atty., Belton, Jim D. Vollers, State’s Atty., and David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

ONION, Presiding Judge.

This is an appeal from a conviction for possession of marihuana of more than four ounces under Article 4476-15, Sec. 4.05, Vernon’s Ann.C.S., wherein the punishment was assessed by the court at five (5) years in the Department of Corrections.

In his sole ground of error appellant contends that the trial court erred in accepting his plea of guilty because there was no finding that appellant was mentally competent to stand trial.

The offense charged was a third degree felony, and the guilty plea was taken on September 8, 1975, after the 1975 amendment to Article 26.13, Vernon’s Ann.C.C.P.

Appellant notes that the trial court made no inquiry at the time of the guilty plea as to mental competency, and the only finding in the printed form of judgment is that . . and it plainly appearing to the Court that the Defendant is sane . . .”

Appellant urges that the 1975 amendment to Article 26.13, supra, and the definition of incompeteney in Article 46.02, Section 1, Vernon’s Ann.C.C.P., would indicate a different test from sanity. He notes that V.T.C.A., Penal Code, Section 8.01 (Insanity), provides:

“(a) It is an affirmative defense to prosecution that, at the time of the conduct charged, the actor, as a result of mental disease or defect, either did not know that his conduct was wrong or was incapable of conforming his conduct to the requirements of the law he allegedly violated.
“(b) The term ‘mental disease or defect’ does not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct.”

Appellant argues that “sanity” should be the converse of the foregoing definition of “insanity” and thus a large difference between “mental competence” and “sanity” exists. He contends that this cause must be reversed because nowhere in the record is there a finding by the court that appellant was mentally competent. We cannot agree.

As appellant recognizes, this court has long held in interpreting Article 26.13, supra, that unless an issue is made of an accused’s present insanity or mental competency at the time of the plea the court need not make inquiry or hear evidence on such issue. Ring v. State, 450 S.W.2d 85, 88 (Tex.Cr.App.1970), and cases there cited; Kane v. State, 481 S.W.2d 808 (Tex.Cr.App.1972); McClintick v. State, 508 S.W.2d 616 (Tex.Cr.App.1974); Tupper v. State, 506 S.W.2d 858 (Tex.Cr.App.1974); Heiskell v. State, 522 S.W.2d 477 (Tex.Cr.App.1975); Helms v. State, 484 S.W.2d 925 (Tex.Cr.App.1972); Williams v. State, 497 S.W.2d 306 (Tex.Cr.App.1973); Lucero v. State, 502 S.W.2d 750 (Tex.Cr.App.1973); Faz v. State, 510 S.W.2d 922 (Tex.Cr.App.1974). And this has been particularly true where the court has had opportunity to observe the accused in open court, hear him speak, observe his demeanor and engage him in colloquy as to the voluntariness of his plea. Summerall v. State, 514 S.W.2d 265 (Tex.Cr.App.1974). We find nothing in the 1975 amendment to Article 26.13, supra, which would render these cases inapplicable, although the better practice is for the trial judge to inquire into mental competence of the accused whether an issue is made of the same or not. See Ring v. State, supra, at p. 88; Lucero v. State, supra, at p. 753; Summerall v. State, supra, at p. 266.

While prior to the 1973 and 1975 amendments to Article 26.13, supra, the statute used the word “sane” (see footnote # 1) and while some of the opinions referred generally to “sanity,” it was always understood that the statute had reference to the present sanity of the accused or his mental competency to stand trial as opposed to insanity at the time of the commission of the offense (insanity as a defense). See Lucero v. State, supra; Summerall v. State, supra.

Obviously what happened is that a form of judgment printed prior to the recent amendments to the statute was used and the word “sane” rather than the words “mentally competent” is found therein. Since the word “sane” as used in former Article 26.13 and “present insanity” and “mentally competent” are all synonymous we find no merit in appellant’s contention that the record is devoid of any finding as to his mental competency to stand trial.

Appellant’s contention being without merit, the judgment is affirmed.

      . Article 26.13, supra, as amended in 1975 (Acts 1975, 64th Leg., p. 909, ch. 341, § 3, eff. June 19, 1975) provides:
      “(a) Prior to accepting a plea of guilty or a plea of nolo contendere, the court shall ad- ' monish the defendant of:
      “(1) the range of punishment attached to the offense; and
      “(2) the fact that any recommendation of the prosecuting attorney as to punishment is not binding on the court.
      “(b) No plea of guilty or plea of nolo conten-dere shall be accepted by the court unless it appears that the defendant is mentally competent and the plea is free and voluntary.

        “(c) In admonishing the defendant as herein provided, substantial compliance by the court is sufficient, unless the defendant affirmatively shows that he was not aware of the consequences of his plea and that he was misled or harmed by the admonishment of the court.”
      Article 26.13, as enacted as a part of the 1965 Code of Criminal Procedure and its forerunners, provided that a plea of guilty or nolo contendere should not be received unless “it plainly appears that he is sane.” However, in 1973 the statute was amended to provide that such pleas should not be taken “unless it plainly appears that he is mentally competent.”

      . Section 1 of Article 46.02, supra, provides:
      “Section 1. (a) A person is incompetent to stand trial if he does not have:
      “(1) sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding; or
      “(2) -a rational as well as factual understanding of the proceedings against him.
      “(b) A defendant is presumed competent to stand trial and shall be found competent to stand trial unless proved incompetent by a preponderance of the evidence.”

      . In Summerall v. State, supra, this court rejected the contention that the new sanity test set forth in V.T.C.A., Penal Code, Section 8.01, as affirmative defense should be applied in accepting guilty pleas under Article 26.13, Vernon’s Ann.C.C.P.


author: DAVIS, Commissioner.

text:
    Richard MORALES, Appellant, v. The STATE of Texas, Appellee.
    No. 52689.
    Court of Criminal Appeals of Texas.
    July 14, 1976.
    John L. Lesly, Amarillo, for appellant.
    Barry E. Blackwell, Dist. Atty., Dumas, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DAVIS, Commissioner.

Appeal is taken from an order revoking probation.

Appellant entered a plea of guilty before the court to possessing more than four ounces of marihuana on September 30, 1974. Punishment was assessed at three years and a fine of $250.00. Imposition of sentence was suspended and appellant was placed on probation.

The State filed a motion to revoke appellant’s probation on November 17, 1975, alleging that appellant violated condition “number two (2)” of his probation “when on November 2, 1975 probationer was found to have drank [sic] intoxicating beverages.”

Condition No. 2 of appellant’s probated sentence provided:

“Avoid injurious or vicious habits, such as drinking intoxicating beverages, gambling, etc.”

The record reflects that after a hearing on January 20, 1976, the court entered an order revoking appellant’s probation in which the court made the following finding:

“That on or about the 2nd day of November, A.D. 1975, in Moore County in the State of Texas, Richard Morales did then and there unlawfully and willfully violate Article number two (2) of his probated sentence as set out by this Court when on November 2, 1975, probationer was found to have drank [sic] intoxicating beverages.”

Appellant contends there is insufficient evidence to support the court’s finding in revoking appellant’s probation.

David Hawkins, an officer with the Dumas Police Department since April, 1974, testified that it was' his opinion that appellant drank intoxicating beverages on November 2, 1975. On cross-examination, Hawkins testified that he “felt like” appellant was intoxicated when he came to the jail on November 2, 1975, to see about getting a person out of jail on bond. In response to appellant’s question, “Did he stagger when he walked?” Hawkins answered, “No, sir, he was louder than usual.” On recross-examination, Hawkins answered in the affirmative to the question, “You did not see the gentleman [appellant] drink intoxicating liquor, the only thing you have testified here today is you smelled alcohol and, too, he was louder than usual and on these two factors you base this opinion he was drunk?” The only other testimony relative to appellant drinking was appellant’s denial that he had anything to drink on the day in question.

The condition of probation appellant was found to have violated required that he “avoid injurious or vicious habits, such as drinking intoxicating beverages.”

The testimony of officer Hawkins that he concluded that appellant was intoxicated on November 2, 1975, because he smelled alcohol and appellant was louder than usual does not support a finding for violation of the condition of probation that appellant “avoid injurious or vicious habits.” A single act of drinking cannot be characterized as a habit. See Campbell v. State, Tex.Cr.App., 456 S.W.2d 918.

We conclude that the court abused its discretion in revoking appellant’s probation.

The order revoking probation is reversed.

Opinion approved by the Court.


author: QUENTIN KEITH, Commissioner.

text:
    Charles Wilson LOVEL, Appellant, v. The STATE of Texas, Appellee.
    No. 51298.
    Court of Criminal Appeals of Texas.
    July 14, 1976.

      John Emmett Crow, Pasadena, for appellant.
    Arthur C. Eads, County Atty. and Ernie B. Armstrong, Asst. County Atty., Belton, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION ON APPELLANT’S MOTION FOR REHEARING

QUENTIN KEITH, Commissioner.

On March 24, 1976, this Court found that appellant’s brief was filed late in the trial court and that a review of the record revealed nothing that should be considered in the interest of justice. We affirmed the judgment of the trial court in a per curiam opinion. Appellant timely moved for leave to file a motion for rehearing in which he contended that the brief was actually filed within an extended period fixed by the trial court. Although we disagree with the factual basis of the motion, we have, nevertheless, granted leave to file the motion for rehearing.

The record was approved on July 8, 1975, and appellant’s retained counsel was notified of such fact by letter from the trial court dated July 10, 1975. By an order dated July 14, the trial court extended the time for the filing of appellant’s brief until August 21. The brief was tendered for filing on August 25 and contains a notation in the trial judge’s handwriting, “Late but accepted,” followed by the initials of the judge.

Under the provisions of Sec. 9, Art. 40.09, Vernon’s Ann.C.C.P., appellant’s brief could have been filed on or before August 21, 1975 “or within such additional period as the court may in its discretion authorize.” It is clearly apparent from the notation of the judge that in the exercise of the discretion conferred upon it, the trial court extended the time for the filing of such brief until the date it was actually filed, August 25, 1975. Therefore, we turn now to a consideration of the merits of the appeal.

After convicting appellant of driving while intoxicated, the jury assessed his punishment at confinement in jail for ninety days and the payment of a fine of $500. There is no suggestion of indigency in our record and appellant has been represented at all times by retained counsel.

Although we review an appeal from a misdemeanor conviction, we are confronted with a record in excess of four hundred pages covering a trial which lasted for three days. Appellant presents four grounds of error; but, from our review of the record, there is no reversible error disclosed and the judgment of the trial court will be affirmed for the reasons now to be stated.

During the early morning hours of June 23, 1974, the truck appellant was driving was involved in a collision with an automobile upon Highway 36 about five miles west of Temple. Appellant and the members of his family in the truck were thrown from the vehicle to the pavement and appellant sustained severe cuts and lacerations. An ambulance took him to the emergency room at a hospital in Temple and, while in the emergency room undergoing treatment at the hands of an unidentified doctor, Highway Patrolman Richard Barnes appeared to continue his “investigation” of the collision.

Barnes testified that while the surgeon was suturing appellant’s wounds appellant turned his head to the left and vomited over the side of the table. The vomitus splashed upon the floor, some getting on the surgeon’s trousers and shoes. The doctor jumped back, saying: “ ‘You drunk son-of-a-gun.’ ” This testimony was admitted over appellant’s timely objection and forms the basis of the first ground of error.

The surgeon, immediately after the preceding event, then asked Barnes and Patrolman Leroy Schiller if they were going to ask appellant to submit to a blood test to determine the alcoholic content of his blood. Again, there was a timely objection that the statement of the physician was hearsay but the evidence was received. This event constitutes the basis of the second ground of error.

Before discussing the two grounds of error noted above, we first note the fact structure of the case as shown by our record.

The State established by an unchallenged chemical analysis of a sample of appellant’s blood that the alcoholic content was fifteen hundredths of one percent (0.15) and that he was legally drunk. Appellant’s wife testified that appellant had been drinking beer since at least seven in the evening before the accident occurring at approximately one in the morning; that he had drunk more than one six-pack of beer while attending a barbecue after which they went to the Peppermint Lounge for more drinking. Appellant’s wife and several of his other kinsmen testified that appellant was operating the motor vehicle at the time of the accident after just having left the Peppermint Lounge.

Several experienced highway patrolmen testified that appellant was intoxicated when he was observed in the emergency room at the hospital and remained firm in their testimony despite rigorous cross-examination. Appellant did not testify, but, as noted earlier, did offer members of his family who had accompanied him to the barbecue and his later visit to the lounge.

Assuming, arguendo, that the statements from the unidentified surgeon constituted hearsay and inadmissible evidence, we do not find reversible error is presented. It has long been the rule that improper admission of evidence does not constitute reversible error if the same facts were proved by other proper testimony. Lassere v. State, 458 S.W.2d 81, 82 (Tex.Cr.App.1970). See also, Cherb v. State, 472 S.W.2d 273, 278 (Tex.Cr.App.1971); Bacon v. State, 500 S.W.2d 512, 514 (Tex.Cr.App.1973); Hayles v. State, 507 S.W.2d 213, 216 (Tex.Cr.App.1974). There being an overwhelming abundance of evidence properly admitted to support the judgment, no reversible error appears and grounds one and two are overruled.

Patrolmen Barnes and Schiller visited appellant while he was in the emergency room at the hospital in Temple. They testified that they were merely concluding their investigation of the collision and that appellant was not under arrest nor was he in custody. Barnes asked appellant, “What happened out there?” and was told by appellant: “ ‘Well, I just pulled out on that road, and somebody ran into me. That’s all I remember.’ ”

Appellant now complains, by his third ground of error, that this constituted an impermissible interrogation designed to elicit an inadmissible oral confession. Reliance is placed upon the Jack Ruby Case [Rubenstein v. State, 407 S.W.2d 793, 795 (Tex.Cr.App.1966)]. We find no merit to the contention so advanced and overrule ground three.

The identical contention was considered and found to be without merit in Tilley v. State, 462 S.W.2d 594, 595 (Tex.Cr.App.1971). See also, Adami v. State, 524 S.W.2d 693, 699 (Tex.Cr.App.1975), following Tilley, where additional authorities are cited.

We quote ground four in its entirety

“A mistrial should have been granted numerous times due to the misconduct of the prosecutor, Mr. Armstrong.”

This is followed by at least a dozen, and possibly more, specific references to alleged prosecutorial misconduct ranging from the asking of allegedly improper questions, improper argument, etc. The mere statement of the ground of error shows that it is multifarious and presents nothing for review.

In Rodriguez v. State, 530 S.W.2d 944, 945 (Tex.Cr.App.1975), we held:

“Appellant’s third ground of error is multifarious in combining two separate complaints and is not in compliance with Article 40.09, Sec. 9, V.A.C.C.P. Nothing is presented for review. Stein v. State, Tex.Cr.App., 514 S.W.2d 927; Thompson v. State, Tex.Cr.App., 510 S.W.2d 949.”

See also, Barnes v. State, 520 S.W.2d 401, 404 (Tex.Cr.App.1975); Hurd v. State, 513 S.W.2d 936, 940 (Tex.Cr.App.1974).

Ground of error number four is overruled.

Having carefully reviewed the record and finding no reversible error, the judgment of the trial court is affirmed.

■Approved by the Court.

      . Appellant’s counsel lived some distance from Bell County and we can take judicial notice of the erratic nature of the mail service. Furthermore, the period of time involved is not long, the four days being only from a Thursday to the following Monday.

      . See Ex parte Martinez, 530 S.W.2d 578, 580 (Tex.Cr.App.1975).


text:
    Charlotte Harrington FORD, Appellant, v. The STATE of Texas, Appellee.
    No. 51532.
    Court of Criminal Appeals of Texas.
    July 14, 1976.

      John W. Tottenham, III, Fort Worth, for appellant.
    James Mullin, County Atty., and Fred M. Barker, Asst. County Atty., Weatherford, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION ON APPELLANT’S MOTION FOR REHEARING

DOUGLAS, Judge.

This is an appeal from a conviction for resisting arrest. A jury assessed punishment at thirty days in jail and a five hundred dollar fine, probated.

This judgment was affirmed in a per curiam opinion dated March 17, 1976, and the question of the constitutionality of the statute discussed below was not considered because of the late filing of an appellate brief. The trial court has sent to this Court a supplemental transcript containing a copy of a timely order extending the time for filing the brief. The trial court also found that the brief had been timely filed. We will now consider the contentions raised. Lynch v. State, 502 S.W.2d 740 (Tex.Cr.App.1973).

Appellant was arrested for speeding. She refused to sign a promise to appear and was taken before a justice of the peace who gave her ten days to make an appearance bond. When she failed to make bond, the judge issued a warrant for her arrest. Two uniformed police officers went to the elementary school where she taught and tried to serve the warrant. She refused to go and began fighting with them.

In her first ground of error she argues that V.T.C.A., Penal Code, Section 38.03, V.T.C.A., Penal Code, Section 9.31, and V.T. C.A., Penal Code, Section 9.51, are in violation of Article One of the Texas Constitution and the Fourth, Fifth and Fourteenth Amendments of the United States Constitution.

Without deciding, but assuming that the arrest is illegal, we will discuss the constitutionality of the statute.

V.T.C.A., Penal Code, Section 38.03, reads, in part, as follows:

“Sec. 38.03. Resisting Arrest or Search
“(a) A person commits an offense if he intentionally prevents or obstructs a person he knows is a peace officer or a person acting in a peace officer’s presence and at his direction from effecting an arrest or search of the actor or another by using force against the peace officer or another.
“(b) It is no defense to prosecution under this section that the arrest or search was unlawful." (Emphasis added)

Subsection (b) of Section 38.03 negates the common law right to resist an unlawful arrest. The question the appellant raises is whether this change in the law unduly interferes with due process of law and the guarantee against unreasonable searches and seizures provided by the Texas and United States Constitutions.

Several states have eliminated either by statute or by judicial decision the common law right to resist an unlawful arrest. This reflects a growing realization that the use of self-help to prevent an unlawful arrest presents too great a threat to the safety of individuals and society to be sanctioned. The line between an illegal and legal arrest is too fine to be determined in a street confrontation; it is a question to be decided by the courts. By limiting the common law right to resist an unlawful arrest, the Legislature has not limited the remedies available to the person arrested. He or she may still take advantage of the right to bond, to appointed counsel if indigent, to prompt arraignment and determination of probable cause, to the exclusionary rule and to civil remedies against the offending policeman. The State has not increased the deprivation of liberty suffered upon arrest by the abolition of the common law right to resist an unlawful arrest. We hold that Section 38.-03, supra, is a valid exercise of the police power and does not violate the United States or Texas Constitution.

The appellant also challenges V.T. C.A., Penal Code, Section 9.31, which limits the right of self-defense against an illegal arrest. V.T.C.A., Penal Code, Section 9.31, reads as follows:

“Sec. 9.31. Self-Defense
“(a) Except as provided in Subsection (b) of this section, a person is justified in using force against another when and to the degree he reasonably believes the force is immediately necessary to protect himself against the other’s use or attempted use of unlawful force.
“(b) The use of force against another is not justified:
“(1) in response to verbal provocation alone;
“(2) to resist an arrest or search that the actor knows is being made by a peace officer, or by a person acting in a peace officer’s presence and at his direction, even though the arrest or search is unlawful, unless the resistance is justified under Subsection (c) of this section;
“(3) if the actor consented to the exact force used or attempted by the other; or
“(4) if the actor provoked the other’s use or attempted use of unlawful force, unless:
“(A) the actor abandons the encounter, or clearly communicates to the other his intent to do so reasonably believing he cannot safely abandon the encounter; and
“(B) the other nevertheless continues or attempts to use unlawful force against the actor.
“(c) The use of force to resist an arrest or search is justified:
“(1) if, before the actor offers any resistance, the peace officer (or person acting at his direction) uses or attempts to use greater force than necessary to make the arrest or search; and
“(2) when and to the degree the actor reasonably believes the force is immediately necessary to protect himself against the peace officer’s (or other person’s) use or attempted use of greater force than necessary.
“(d) The use of deadly force is not justified under this subchapter except as provided in Sections 9.32, 9.33 and 9.34 of this code.” (Emphasis added)

This limitation of the right of self-defense against an unlawful arrest is a necessary complement to Section 38.03, supra, and is also a reasonable and legitimate exercise of police power. As in Section 38.03, supra, the Legislature has limited the citizen’s right to use force when he knows he is confronted by an officer of the law and the officer does not himself use excessive force to make the arrest. The citizen still maintains all his judicial remedies for an unlawful arrest. We hold that V.T.C.A., Penal Code, Section 9.31, is not unconstitutional.

Finally, appellant contends that V.T. C.A., Penal Code, Section 9.51, is unconstitutional. Section 9.51, supra, reads, in part, as follows:

“Sec. 9.51. Arrest and Search
“(a) A peace officer, or a person acting in a peace officer’s presence and at his direction, is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to make or assist in making an arrest or search, or to prevent or assist in preventing escape after arrest, if:
“(1) the actor reasonably believes the arrest or search is lawful or, if the arrest or search is made under a warrant, he reasonably believes the warrant is valid; and
“(2) before using force, the actor manifests his purpose to arrest or search and identifies himself as a peace officer or as one acting at a peace officer’s direction, unless he reasonably believes his purpose and identity are already known by or cannot reasonably be made known to the person to be arrested.” (Emphasis added)

This statute allows an officer of the law or his agent to use whatever force is necessary to arrest a person when the officer or his agent has a reasonable belief that the arrest is lawful. The statute does not allow a policeman or his agent to use excessive force to effect an arrest nor does it contradict Sections 38.03 and 9.51, supra, which deal only with lawful or unlawful peaceful arrests.

Appellant attacks the statute on the ground that it allows, literally, the legality or illegality of an arrest, for all purposes, to be determined by the reasonable belief of a peace officer. She argues that the reasonable belief of a police officer is not an adequate standard for the determination of the legality of an arrest.

The plain language of the statute does not give to policemen the discretion to determine the' legality or illegality of an arrest for all purposes. The statute only speaks to the use of force to make an arrest and allows the police to arrest without acting at their peril on a matter which may take a court months to decide.

This statute gives police some maneuverability in the performance of their duties. The United States Supreme Court has sanctioned the use of similar police discretion in cases such as Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). We find that V.T.C.A., Penal Code, Section 9.51, is a valid exercise of the State’s police power and does not violate the Texas or United States Constitution.

This is like the situation of one escaping from jail. A defendant charged with such an offense may not rely upon the invalidity of an indictment to show that his restraint is unlawful to constitute a defense to such an offense.

In Rodriquez v. State, 457 S.W.2d 555 (Tex.Cr.App.1970), this Court wrote:

“Even if the indictment under which appellant was held was invalid, its validity may not be challenged in this case. One cannot test the propriety of his confinement in jail by escaping from it. See Godwin v. United States, 185 F.2d 411 (8th Cir. 1950). Remedies, other than escape, are available for procuring through legal process the release of those who are unlawfully held in custody. For a well-reasoned discussion on a case in point, see People v. Hill, 17 Ill.2d 112, 160 N.E.2d 779 (1959).”

The first ground of error is overruled.

Appellant’s remaining grounds of error depend upon the unconstitutionality of Sections 38.03, 9.31 and 9.51, supra. Since we have held these statutes constitutional, these contentions need not be discussed.

The motion for rehearing is denied; the judgment is affirmed.

      . See California Penal Code, Section 834a (West 1970) [held constitutional in People v. Curtis, 70 Cal.2d 347, 74 Cal.Rptr. 713 (1969)]; Ill.Rev.Stat. ch. 38, Section 7-7 (1971) [upheld in People v. Carroll, 133 Ill.App.2d 78, 272 N.E.2d 822 (1971)]; R.I.Gen.Laws Ann. Section 12-7-10 (1970) [held constitutional in State v. Ramsdell, 109 R.I. 320, 285 A.2d 399 (1971); N.H.Rev.Stat.Ann. Section 594:5 (1955); Del. Code Ann. tit. 11, Section 1905 (1953); New York Penal Code, McKinney’s Ann., Section 35.27 (1972) [upheld in People v, Lattanzio, 35 A.D.2d 313, 316 N.Y.S.2d 163 (1970)]; Michigan C.L.A., Section 752.825 (1968); State v. Koonce, 89 N.J.Super. 169, 214 A.2d 428 (App.Div.1965); City of Columbus v. Fraley, 41 Ohio St.2d 173, 324 N.E.2d 735 (1975); Miller v. State, 462 P.2d 421 (Alaska 1969); State v. Lockner, 20 Ariz.App. 367, 513 P.2d 374 (1973).


text:
    Ex parte Sammie MAYES, Appellant, v. The STATE of Texas, Appellee.
    No. 52735.
    Court of Criminal Appeals of Texas.
    July 19, 1976.

      Sammie Mayes, pro se.
    Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ONION, Presiding Judge.

This is a purported appeal in a habeas corpus proceeding in which the applicant sought a reduction in bail pending the appeal of his criminal conviction.

On April 20, 1976, applicant waived trial by jury and entered a plea of guilty before the court to the offense of aggravated robbery. Applicant was sentenced the same date. On April 23, 1976, applicant gave notice of appeal to this court. Bail pending appeal was set in the amount of $40,000.00. Subsequently, applicant made a pro se application for writ of habeas corpus to the trial court seeking a reduction in bail pending appeal. The application alleged that the bail as set was excessive, that applicant was indigent, and requested a reduction in bail to the amount of $8,000.00. On June 23, 1976, the trial court entered the following order:

“The relief prayed for be (sic) Applicant, Sammie Mayes, in the attached petition for Writ of Habeas Corpus is denied without hearing, because same does not state sworn facts which, if believed, would entitle him to relief. The Clerk of this Court is directed to place a file mark on said petition and docket this order and petition ancillary to Cause No. 230,830. “The Clerk is further ordered to transmit a copy of said petition and order to the Clerk of the Court of Criminal Appeals of Texas at Austin, Texas, another to Chief Justice Joe Greenhill of the Supreme Court of Texas, at Ausitn (sic), Texas, and a copy of this order to the applicant.”

It appears from the order entered (stating that petition did not state sworn facts which, if believed, would entitle him to relief), the fact that it was transmitted to this court without notice of appeal, and the fact that the record is labeled “post-conviction” that the trial court assumed it was dealing with a post-conviction writ of habe-as corpus under the provisions of Article 11.07, Vernon’s Ann.C.C.P.

By its very terms Article 11.07, supra, applies to applications for writ of habe-as corpus “after final conviction in any felony case” and the procedures to be followed. The normal question presented in such cases is whether the final judgment under which the petitioner is confined is void. See Ex parte Young, 418 S.W.2d 824 (Tex.Cr.App.1967).

A criminal case on appeal is not a final conviction, and the habeas corpus proceedings by which an applicant seeks a reduction in bail pending appeal is not governed by Article 11.07, supra.

In order to obtain review by this court from an order of the trial court in a habeas corpus proceeding in which the object is the setting or reduction of bail, the habeas corpus applicant must invoke the appellate jurisdiction of this court. This latter type proceeding is not subject to automatic review by this court under Article 11.07, supra; rather, it is subject to review under Article 44.34, Vernon’s Ann.C.C.P., after notice of appeal has been timely given in accordance with Article 44.08, Vernon’s Ann.C.C.P. See Ex parte Silva, 486 S.W.2d 349 (Tex.Cr.App.1972), and the cases cited under Annotation 23, Article 44.08, supra. In the instant case no such notice of appeal can be found in the record. Consequently, we are without jurisdiction to entertain the appeal.

Even had notice of appeal been timely given from the order entered by the trial court in the instant case, we would still not have jurisdiction of the instant appeal. In Nichlos v. State, 158 Tex.Cr.R. 367, 255 S.W.2d 522 (1953), it was stated:

“We understand the rule to be that where an application alleging unlawful restraint is presented to a judge, and he declines to hear the prayer for relief and any proof which may be offered in support thereof no appeal lies. In fact no order is necessary in such a case, the judge merely having declined to hear the matter, the relief available to the applicant being to present his application to another judge having jurisdiction.
“On the other hand, if the judge to whom the application for habeas corpus is presented grants the writ and, after hearing the matter, determines from the evidence or from the application, or from both, that the applicant is not illegally restrained and he denies the relief prayed for, thereby remanding the applicant to custody, if on bail, or if not on bail leaving him in custody, an appeal lies to this Court.” See also Ex parte Nichlos, 245 S.W.2d 704 (Tex.Cr.App.1952).

We also held in Nichlos v. State, supra, that the nature of the proceeding and the question of its appealable nature is not to be determined alone from the form of the order entered, but the entire record will be examined. However, it is apparent in the instant case not only from the order entered by the trial court, but the record as a whole, that the trial judge refused to issue a writ of habeas corpus commanding the person having applicant in custody to produce him before the court for a determination of the allegations in the application. Because the writ never issued or a hearing held, applicant’s remedy was to present his application to another judge having jurisdiction. Nichlos v. State, supra. Since the order entered by the trial court in the instant case was not an appealable one, this purported appeal must be dismissed. See Ex parte Farrington, 467 S.W.2d 479 (Tex.Cr.App.1971). We are confident that once it is brought to the trial court’s attention that this is not a proceeding under Article 11.07, supra, the court will accord the applicant a hearing on his habeas corpus application for reduction of bail pending appeal to which he is entitled.

For the reasons stated, the appeal is dismissed.

      . While other district judges would have authority to entertain habeas corpus proceedings, this court recognizes the reluctancy of other judges to entertain such proceedings where the conviction has occurred in another district court.


author: PER CURIAM. CADENA, Justice.

text:
    Janet L. LAYTON, Appellant, v. Gary A. LAYTON, Appellee.
    No. 15450.
    Court of Civil Appeals of Texas, San Antonio.
    Jan. 14, 1976.
    Opinion On the Merits May 12, 1976.
    As Modified by Opinion On Denial of Rehearing June 9, 1976.

      Brock Huffman, Luther Rutherford, San Antonio, for appellant.
    Tanner & Falkow, Inc., Christopher C. Beller, San Antonio, for appellee.
   PER CURIAM.

Appellant, Janet L. Layton, filed this suit in a district court of Bexar County to enforce a judgment, rendered by a court of the State of Maryland, awarding her recovery in the sum of $6,640.18, representing unpaid installments of alimony and child support which her former husband, appel-lee, Gary A. Layton, had been ordered to pay by a prior decree of a Maryland court. Appellant here complains of the refusal of the Texas court to enforce such judgment.

The trial court failed to file findings of fact and conclusions of law, although appellant complied with the requirements of Rules 296 and 297, Tex.R.Civ.P.

The rule in this state has been that a failure of the trial court to file findings of fact and conclusions of law where the requesting party has complied with the applicable rules constitutes reversible error, unless the record before the appellate court affirmatively reflects that the complaining party has suffered no injury. Wagner v. Riske, 142 Tex. 337, 178 S.W.2d 117 (1944). No court reporter was present during the trial of this case and we are without the benefit of a statement of facts. Under these circumstances, we cannot hold that appellant has not been injured. Cooper v. Sullivan, 455 S.W.2d 958 (Tex.Civ.App. — El Paso 1970, no writ).

However, since the omission may be corrected by the judge of the trial court, we conclude that, instead of reversing the judgment, the proper order is one merely directing the trial court to file its findings of fact and conclusions of law so that we may proceed as if such findings and conclusions had been timely filed. Rule 434, Tex. R.Civ.P.; 4 McDonald, Texas Civil Practice § 16.08.1, pp. 20-21 (1971 rev.).

Such findings and conclusions shall be certified to this Court no later than February 20, 1976.

If the trial judge finds it impossible to make such findings of fact or conclusions of law because of absence of a statement of facts, passage of time, defects of memory or other causes, then it shall certify that fact to this Court no later than February 20, 1976.

ON THE MERITS

CADENA, Justice.

Appellant, Janet L. Layton, plaintiff below, complains of the judgment of a district court of Bexar County, Texas, refusing to enforce a judgment of a Maryland court that she recover from her former husband, appellee, Gary A. Layton, the sum of $8,233.68, representing past due installments of alimony and child support ($6,640.18) which appellee had been ordered to pay by a prior decree of the Maryland court, plus attorney’s fees in the amount of $1,500.00 and court costs in the sum of $93.50.

The principal question before us is whether Article IV, Sec. 1 of the United States Constitution, which commands that full faith and credit be given in each state to the judicial proceedings of every other state, requires that a Texas court enforce the Maryland judgment for arrearages in alimony and child support, when both such judgment and the prior child support and alimony decree on which it is based were rendered by the Maryland court after a Texas court had rendered judgment, in a suit filed by appellee husband in Bexar County, dissolving the marriage between appellant and appellee, dividing the property of the parties, awarding custody of the parties’ two minor children to appellant, and ordering appellee to make periodic payments toward the support of such children.

The parties were married in the State of Virginia. Thereafter, because of appellee’s military service, the parties lived in several states before coming to Texas, where appel-lee had been assigned to duty, in 1971. After they had been in Texas some months, they finally separated, and appellant established her residence with the children in Baltimore County, Maryland. Appellee remained in Texas at his then post, Lackland Air Force Base, in Bexar County.

Appellee filed his suit for divorce in Be-xar County on April 27, 1972. His petition alleged' that appellant and the children were residents of Maryland. After out-of-state notice was personally served on her in Maryland, appellant entered a special appearance challenging the jurisdiction of the Texas court. Her objection to jurisdiction was overruled, and she filed no further pleadings in the Texas case. The decree of divorce entered by the Texas court on October 3, 1972, recites that, other than her unsuccessful challenge to the jurisdiction of the Texas court, appellant failed to enter her appearance in the Texas case, either in person or by attorney, and “wholly made default.”

Prior to the time that she was served with notice of the Texas divorce suit, appellant filed her petition in the circuit court for the City of Baltimore, Maryland, seeking a divorce a mensa et thoro, custody of the minor children, child support, and alimony. On November 22, 1972, after the Texas divorce decree had been rendered and had become final, appellant filed her amended or supplemental complaint in the Maryland court, seeking the same relief as that sought in her original complaint, except that in this amended pleading she sought a divorce a vinculo, rather than a divorce a mensa et thoro.

In answer to this amended or supplemental complaint, appellee filed “preliminary objections” in the Maryland court. In this pleading appellee asked that the “service of summons returned by the Sheriff of Baltimore City as to the Supplemental Bill of Complaint and Show Cause Order appended thereto” be quashed “on the grounds of lack of jurisdiction over the person ” of appellee “and insufficiency or illegality of service of process.” (Emphasis added.)

In his “preliminary objections” appellee alleged (1) that he was a resident of Texas; (2) that while he was temporarily in the City of Baltimore, Maryland for the purpose of visiting his sick grandmother, a deputy sheriff served the summons in question on appellee’s father, rather than on appellee; and (3) that the divorce proceedings in Texas, in which Janet had participated, and the divorce degree entered by the Texas court were “determinative . of all issues of alimony, support, custody and property.”

Appellee’s preliminary objections were overruled by order entered by the Maryland court on January 22, 1973. This order recites that the Maryland court had acquired in personam jurisdiction over appellee. Ap-pellee filed no further pleadings in the Maryland case.

On August 1, 1973, the Maryland court entered a “Decree of Permanent Alimony And Other Relief.” This decree recited that the Maryland court had “acquired in personam jurisdiction over . . . Gary A. Layton;” and that the court was satisfied that “all allegations as to the acts of . abandonment committed by” ap-pellee had been proved by “clear and convincing evidence.” After a recital to the effect that the Maryland court had “reviewed and considered” the prior Texas divorce decree, there follows language (1) awarding custody of the minor children to appellant; (2) ordering appellee to pay, as child support, the sum of $51.92 per week, per child; (3) awarding appellant, as permanent alimony, the sum of $57.69 per week; (4) ordering appellee to-pay all ar-rearages in child support payments, amounting, as of the date of this decree, to $2,509.61; (5) ordering appellee to pay ar-rearages in alimony pendente lite in the total amount of $1,384.56; and (6) ordering appellee to pay $1,500.00 to appellant’s attorney as attorney’s fees.

Appellee did not appeal from this decree.

On November 23,1973, in the same cause as that in which the August 1, 1973 decree was entered, appellant filed her petition seeking a determination of “alimony and support arrearages” and praying that the court reduce the amounts so determined to a money judgment. It was in response to this petition that the judgment, which appellant now seeks to enforce in Texas, was rendered. This judgment, entered January 3, 1974, recites appellee had personal notice of appellee’s petition and that in personam jurisdiction had been acquired over appellee by the Maryland court.

There is no showing that any of the orders, decrees or judgments rendered by the Maryland court have been set aside or modified, and appellee does not suggest that such orders, decrees or judgments are not final.

The ease now before us was filed by appellant in Bexar County, Texas, seeking enforcement of the money judgment rendered by the Maryland court on January 3, 1974. In his answer to such suit appellee, in addition to special exceptions not here relevant and a general denial, made the following allegations: (1) Appellant appeared in the Texas divorce case for the purpose of challenging the jurisdiction of the Texas court. (2) After her challenge to the jurisdiction was overruled, the case was set for trial on the merits but, although appellant was notified of such setting, she failed to appear at the hearing and the divorce decree was rendered by the Texas court. (3) Thereafter, appellant, “flaunting the jurisdiction of” the Texas court, “proceeded to obtain subsequent divorce decree in the State of Maryland, which decree she now seeks to enforce.” (4) “Thus, by reason of these facts, [appellant] is estopped from enforcing said Maryland decree, which is subsequent in time to the Texas decree.

Nowhere in appellee’s pleadings is there any language suggesting that the Maryland court lacked jurisdiction over the subject matter or the person of appellee. It should also be pointed out that the Maryland court did not enter a “divorce decree.”

One of the reasons given by the trial court in support of its refusal to enforce the Maryland decree is that “Texas does not recognize permanent alimony as this is against the public policy of Texas.” It is true that the award of permanent alimony following the dissolution of a marriage is against the public policy of this State. Francis v. Francis, 412 S.W.2d 29, 32 (Tex.1967). But this is irrelevant. Where unpaid installments of alimony due under the decree of a court of a sister state have been reduced to judgment by the same court which rendered the alimony decree, such judgment is entitled to full faith and credit in Texas. Rumpf v. Rumpf, 150 Tex. 475, 242 S.W.2d 416 (1951).

We are not here concerned with the theory of “divisible divorce,” which views the marital relationship as consisting of a “bundle of incidents.” Under this view, the wife’s right to support is one of the incidents of the marriage which has been classified as a personal right of the wife which cannot be terminated by judgment of a court lacking jurisdiction of her person. As a result of this concept, it has been held that a court of the wife’s domiciliary state can, even after the rendition of a valid ex parte divorce decree by a foreign court at the suit of the husband, enter a judgment enforcing the wife’s right to support, under the law of her domiciliary state, assuming, of course, that the court of the state of the wife’s domicile has jurisdiction of the husband’s person or of his property. Vanderbilt v. Vanderbilt, 354 U.S. 416, 77 S.Ct. 1360, 1 L.Ed.2d 1456 (1957); Note, Divisible Divorce, 76 Harv.L.Rev. 1233 (1963). Of course, if the court rendering the post-divorce alimony decree has jurisdiction only over the property of the husband, the alimony decree is enforceable only against the property of the husband within the jurisdiction of that court. Restatement 2d, Conflict of Laws § 77 (1971).

This concept of divisible divorce, insofar as it permits a court of the wife’s domiciliary state to enter an order for her support after the marital relationship has been dissolved by a decree of a foreign court, is applicable only in cases where the foreign court lacked jurisdiction of the person of the wife. Lynn v. Lynn, 302 N.Y. 193, 97 N.E.2d 748 (1951); Restatement 2d, Conflict of Laws § 77, comment e (1971). The United States Supreme Court, in cases such as Vanderbilt, in upholding the right of the state of the wife’s domicile to make provision for her support following a valid foreign divorce, has always spoken in terms of ex parte foreign divorces. Since we find no basis for rejecting the finding of the court below that the Texas court which rendered the divorce decree had jurisdiction of the parties to such divorce suit, we need concern ourselves no further with the doctrine, other than to point out that the Maryland courts have adopted it. Dackman v. Dackman, 252 Md. 331, 250 A.2d 60 (1969).

For the purpose of this opinion, we assume, without deciding, that the Texas divorce decree terminated appellant’s right to support, although it might be argued that since the Texas courts are prevented by Texas law from ordering a husband to support his wife after the divorce, the question of permanent alimony was not litigated in the Texas court.

However, such assumption merely leads to the conclusion that the Maryland court should have given conclusive effect to the Texas decree and denied appellant’s prayer for alimony. That is, the Maryland court should have given full faith and credit to the Texas judgment as finally determinative of appellant’s right to support after the divorce. It is clear that the Maryland court failed to give such effect to the Texas judgment. The question, then, is whether the refusal of the Maryland court to give full faith and credit to the Texas judgment relieves the Texas courts of the obligation to enforce the Maryland decree.

It is clear that a Texas court, when asked to give full faith and credit to another state’s judicial proceedings, may collaterally inquire into the jurisdiction of the foreign court to enter the judgment in question. Williams v. North Carolina, 325 U.S. 226, 65 S.Ct. 1092, 89 L.Ed. 1577 (1945); Gunther v. Gunther, 478 S.W.2d 821 (Tex.Civ.App. — Houston [14th Dist.] 1972, writ ref’d n. r. e.).

Appellee insists that the Maryland court had no jurisdiction to enter the decree which appellant now seeks to enforce in Texas. There are two reasons why this argument is unpersuasive.

In the first place, as already pointed out, appellee’s pleadings below raise no question concerning the jurisdiction of the Maryland court to enter the judgment. His pleadings merely assert that because the Texas divorce was rendered prior to the Maryland decree and because appellant “flaunted” the jurisdiction of the Texas court, she is “es-topped” from attempting to enforce the subsequent Maryland decree. There is no allusion to the power of the Maryland court. At best, appellee’s answer can be interpreted only as a plea of res judicata or, perhaps, estoppel by judgment. The pleading condemns the actions of appellant, not the action of the Maryland court.

The conclusions of law filed by the court below recite that the “parties and the issues were the same in Texas as in the State of Maryland finally,” and that the Maryland court “was without jurisdiction to proceed to grant any type of relief to [appellant] on any issue decided by the Texas Court.”

We know of no rule supporting the conclusion that the jurisdiction of a court of a sister state is affected by the action of a Texas court. The Texas divorce decree would not, in fact, have deprived even a Texas court of jurisdiction to entertain a subsequent suit involving the same issues. It is true, of course, that the prior decree could be successfully interposed as a defense to the subsequent litigation involving the same parties and the same issues. But this invocation of the prior judgment would be simply a resort to the doctrine of res judicata. The plea of res judicata is a plea in bar. It is not a plea to the jurisdiction. Burson v. Montgomery, 386 S.W.2d 817 (Tex.Civ.App. — Houston 1965, no writ). Res judicata is an affirmative defense which must be affirmatively pleaded. Rule 94, Tex.R.Civ.P. Failure to plead this defense results in its waiver. 34 Tex.Jur.2d, Judgments § 551, p. 654. Since it is elementary that a court’s lack of jurisdiction over the subject matter cannot be waived, it must be concluded that a final determination by one court of the issues before it has no effect on the power of other courts. It cannot be held that the Texas divorce decree in some manner deprived the Maryland court of jurisdiction.

The findings of fact and conclusions of law make no reference to the in personam jurisdiction of the Maryland court. They do not contain a statement to the effect that appellee was not subject to the jurisdiction of that court. The issue of in per-sonam jurisdiction of the Maryland court was not raised by the pleadings.

In the second place, even if we give to the pleadings and the findings of fact and conclusions of law the broadest possible interpretation and conclude that the lower court concluded that the Maryland court lacked jurisdiction of the subject matter and the person of appellee, such a finding cannot stand. While, as pointed out above, a Texas court which is asked to enforce the the judgment of a sister state may collaterally inquire into the jurisdiction of the court of such other state, this collateral inquiry is permissible only where the party resisting enforcement of the foreign judgment did not appear in the foreign proceedings. In the case before us, appellee appeared in the Maryland proceedings and unsuccessfully litigated the question of the jurisdiction of the Maryland court. He therefore had no right to relitigate the jurisdictional issue in Texas. Sherrer v. Sherrer, 334 U.S. 343, 68 S.Ct. 1087, 1097, 92 L.Ed. 1429 (1948); Davis v. Davis, 305 U.S. 32, 59 S.Ct. 3, 83 L.Ed. 26 (1938). In Gunther, supra, the Texas court correctly inquired collaterally into the jurisdiction of the California court, since the party resisting enforcement in Texas of the California judgment received no notice of the California proceedings, nor did he participate in such proceedings in any way. 478 S.W.2d at 821.

The trial court’s conclusion, if, in fact, it concluded, that the Maryland court lacked jurisdiction of the subject matter or of the parties is erroneous.

The law applicable to this case is stated in Roche v. McDonald, 275 U.S. 449, 451-52, 48 S.Ct. 142, 143, 72 L.Ed. 365 (1927), as follows:

It is settled by repeated decisions of this Court that the full faith and credit clause of the Constitution requires that the judgment of a State court which had jurisdiction of the parties and the subject-matter in suit, shall be given in the courts of every other State the same credit, validity and effect which it has in the State where it was rendered, and be equally conclusive upon the merits; and that only such defense as would be good to a suit thereon in that State can be relied on in the courts of any other State.

The place to raise the defense that the Texas divorce decree should be given full faith and credit as determinative of appellant’s right to support was in the Maryland court and, in fact, appellee expressly raised that issue by his pleadings in the Maryland proceedings. As the New York court of appeals pointed out in Lynn, supra, appel-lee’s only remedy to correct the error, if any, of the Maryland court in failing to give adjudicative effect to the Texas judgment was by direct appeal through the Maryland courts and, if necessary, to the Supreme Court of the United States. 97 N.E.2d at 751. Texas courts cannot sit as appellate tribunals for the purpose of correcting mistakes made by Maryland courts in applying the Full Faith and Credit Clause.

The fact that the Maryland court failed to give full faith and credit to the prior Texas judgment does not justify retaliatory action by the Texas courts. Morris v. Jones, 329 U.S. 545, 552, 67 S.Ct. 451, 91 L.Ed. 488 (1947). As the court said in Southard v. Southard, 305 F.2d 730, 732 (2d Cir.1962):

It is clear . . . [the appellant] entered an appearance in the Connecticut divorce action the outcome of which he here seeks to attack. His person was thus under the jurisdiction of the Connecticut court, and there are.no allegations which could support collateral attack on the judgment. Whether or not the appellant subsequently defaulted as to the further proceedings leading up to the judgment, and whether or not he was deprived of rights by errors of the Connecticut court, our determination that that court had jurisdiction over him and the case precludes any further attack on the judgment. Morris v. Jones, 329 U.S. 545, 67 S.Ct. 451, 91 L.Ed. 488 (1947). The substantive defense that the Connecticut divorce was barred by the requirement that that state give full faith and credit to the Nevada decree was one that could have been and indeed apparently was raised in the Connecticut court. Whether that court actually passed upon the defense or not, principles of res judi-cata forbid us to consider it. The appellant’s opportunity to attack the Connecticut decree on the merits died with his failure to appeal, * * *. Morris v. Jones, supra; Reed v. Allen, 286 U.S. 191, 201, 52 S.Ct. 532, 76 L.Ed. 1054 (1932); Restatement, Judgments § 42 (1942).

In summary: (1) Appellee, having appeared in the Maryland proceedings and having litigated the jurisdictional question unsuccessfully there, cannot relitigate the question of the jurisdiction of the Maryland court in Texas, not in view of the final determination of that question by the Maryland court, may a Texas court collaterally review the correctness of such determination, as it would have the power to do if appellee had not appeared in the Maryland suit. (2) Even if it be assumed that the Maryland court erroneously failed to give full faith and credit to the prior Texas divorce decree, appellee’s right to attack the Maryland judgment on that ground “died with his failure to appeal” from that judgment. (3) The error, if any, of the Maryland court in refusing to give full faith and credit to the Texas judgment does not justify the refusal of the Texas court to enforce the Maryland judgment. (4) The traditional Texas policy against permanent alimony does not support the refusal to enforce foreign decrees reducing unpaid alimony installments to money judgments.

The judgment of the trial court is reversed and judgment is here rendered that appellant, Janet L. Layton, recover from appellee, Gary A. Layton, the sum of $8,233.68, with interest at the rate of 9% per annum from January 3, 1973, the date of the Maryland judgment which judicially ascertained and reduced to a liquidated amount the extent of appellee’s arrearage in alimony and child support payments.

      . Provisions for child support, of course, do not violate the public policy of Texas.


author: BARROW, Chief Justice.

text:
    C. C. STANUSH, Appellant, v. AETNA LIFE INSURANCE COMPANY, Appellee.
    No. 15527.
    Court of Civil Appeals of Texas, San Antonio.
    June 2, 1976.
    Rehearing Denied June 30, 1976.

      Dibrell, Dotson & Dibrell, Edward Wool-ery-Price, San Antonio, for appellant.
    Joe Meador, San Antonio, for appellee.
   BARROW, Chief Justice.

Appellant has perfected his appeal from a take-nothing judgment rendered after a jury trial in his suit upon a group health policy for the reasonable cost of an artificial limb following amputation of his right leg. The jury verdict was favorable to appellant, but judgment was granted upon appellee’s motion for judgment non obstan-te veredicto.

On January 19, 1972, appellant was employed as a mechanic for Tom Benson Chevrolet Company which had a group health policy issued by appellee. This policy covered Benson’s employees for the reasonable charges which an employee was required to pay for the necessary treatment of a nonoccupational disease and specifically included the charge for an artificial limb. The dispute in this case arose because appellee’s policy with Benson was terminated on July 18,1972. Although appellant’s leg was amputated on January 19, 1972, it was not until March of 1973 that appellant’s doctor gave him the go-ahead for the artificial limb. The policy extended benefits for a period of up to twelve months after termination provided the employee was “totally disabled” as defined therein. Since appellant had returned to work for Benson in March of 1972, although only in a clerical position at reduced wages, appellee urged and the trial court concluded that he was not totally disabled as a matter of law.

Appellant urges by his seventeen points of error that the trial court erred in entering the take-nothing judgment and in not granting his motion for judgment upon either of two theories of recovery. He urges first that appellee became obligated to pay for the artificial limb at the time of the amputation of the leg. Secondly, he urges that there is evidence to support the jury findings that he was totally disabled from the time of the amputation of his leg until he made claim for the artificial limb, and therefore, he is entitled to recover under the terms of the policy. Appellee urges, in the alternative, by cross-points, that the trial court erred in not submitting his definition of “total disability” and in overruling his objections to the definition as submitted.

Dr. Anatolio B. Cruz, Jr. performed a hemipelvectomy on appellant because of a malignant tumor in appellant’s right groin. Dr. Cruz testified that it was necessary that appellant be fitted with an artificial leg as a part of the treatment; however, a wait of about one year for post-operative treatment and observation was medically required to see that the malignancy did not recur in the stump. This evidence fully supports the jury finding that the need for an artificial limb was a necessary part of the treatment arising from removal of appellant’s leg. It was stipulated that the reasonable and necessary cost of the artificial limb is $1,350.00.

A somewhat similar situation was considered in Maryland Casualty Company v. Thomas, 289 S.W.2d 652 (Tex.Civ.App.— Amarillo 1956, writ ref’d n. r. e.). An insured boy injured his mouth in an accident. The evidence established that because of the boy’s age it would take more than the year provided by the term of the policy to securely repair the damages done to the growing boy’s mouth and teeth. It was held that the insurer became liable for all reasonable expenses caused by the accident on the day it occurred, and thus it was liable irrespective of whether the medical services were performed within one year from the date of the accident. See also, American Bankers Insurance Co. v. McDonald, 369 S.W.2d 688 (Tex.Civ.App.— Austin 1963, writ dism’d); Drinkard v. Group Hospital Service, Inc., 366 S.W.2d 637 (Tex.Civ.App. — Dallas 1963, writ ref’d n. r. e.).

We believe this holding is applicable to our situation. Appellant’s need for the artificial limb arose on January 19, 1972, when his leg was removed. This medical expense became necessary at that time and appellee was obligated to pay for the artificial limb under the terms of its group health policy. This obligation was not changed by the termination of the policy by Benson. The trial court erred in not granting appellant judgment for the stipulated cost of $1,350.00 for the artificial limb plus penalty interest, and attorney’s fees. It is unnecessary to consider the points of appellant and appellee relating to the question of whether appellant was totally disabled within the meaning of the policy.

The judgment of the trial court is reversed and here rendered that C. C. Sta-nush recover judgment against Aetna Life Insurance Company for the sum of $1,350.00 plus 12 per cent penalty interest, and the sum of $1,600.00 as attorney’s fees.

On Motion for Rehearing

Appellee complains on motion for rehearing that we did not consider its cross-point that the award of $1,600.00 to appellant for attorney’s fees for prosecuting this suit was excessive in view of the amount in controversy.- Article 3.62 of the Insurance Code, Tex.Rev.Civ.Stat.Ann., authorizes the recovery of “reasonable attorney fees for the prosecution and collection” of such claim. This statute requires that the fee be reasonable under the particular circumstances of the case under consideration, and ordinarily the fee must bear some reasonable proportion to the amount involved. Capitol Life Insurance Company v. Rutherford, 468 S.W.2d 535 (Tex.Civ.App. — Houston [1st Dist.] 1971, no writ).

The award for attorney’s fees is fully supported by the testimony of Oliver Heard, Jr., Esq. Mr. Heard examined appellant’s file, with particular regard to the amount of time spent on this case, and testified that a reasonable attorney’s fee would be the sum of $2,550.00. Appellee did not cross-examine Mr. Heard or introduce any evidence to the contrary.

We cannot say that the amount of said fee is so out of proportion to the amount in controversy as to be excessive. Appellee’s cross-point sixteen is without merit and is overruled.

Appellee’s motion for rehearing is overruled.

      .The jury found substantially as follows:
      1. We DO find that Plaintiff was totally disabled as a result of the amputation of his leg on January 19, 1972.
      In connection with the above question you are instructed that disability shall be deemed to be total, when during all such time his condition is such that common prudence, and the exercise of ordinary care, would require him to refrain from working under the same or similar circumstances that he was engaged in immediately before the amputation in question.
      2. We Do find that Plaintiff was totally disabled at the time the Defendant’s group insurance coverage was terminated.
      3. We DO find that Plaintiff notified Defendant of a claim for a limb within twelve months of the termination of the coverage.
      4. We DO find that Plaintiff was totally disabled at the time he notified Defendant of a claim for a limb.
      5. We DO find that the need for an artificial limb was a necessary part of the treatment arising from the removal of Plaintiffs leg.
      6. A reasonable attorney’s fee for preparation and trial of this case on behalf of the Plaintiff is $1,600.00.

      . The words “total disability” as applied to an employee mean that the employee is prevented, solely because of the non-occupational disease, “from engaging in his regular or customary occupation and is performing no work of any kind for compensation or profit.”