Nixon, Cleveland, PD-1158-15

Background

Petitioner Cleveland Nixon sought bail pending appeal under Tex. Code Crim. Proc. art. 44.04(c) after an adjudication and five‑year sentence; the trial court denied bail following an October 14, 2014 hearing (recorded in Reporter’s Record Vol. 5).
The trial court’s later written order denying bond included findings referencing prior testimony and facts not reflected in the Vol. 5 hearing transcript; no party requested judicial notice during the October 14 hearing.
Petitioner argued the trial court relied on evidence outside the limited 44.04(c) hearing record (and did so without taking formal judicial notice or placing prior testimony into the record), depriving him of notice and a meaningful hearing.
The Fifth Court of Appeals affirmed, holding trial courts are not restricted to the evidence presented at the specific 44.04(c) hearing and that the trial court need not use “magic words” (e.g., expressly announcing judicial notice) to rely on prior testimony.
Petitioner contends the appellate opinion permitted consideration of materials not in the appellate record and departed from precedent requiring the record to show the evidence a trial court considered, implicating due process/due‑course concerns.

Issues

Issue	Plaintiff's Argument (Nixon)	Defendant's Argument (State)	Held
Whether the trial court was restricted to evidence presented at the §44.04(c) hearing	Trial court was limited to evidence actually presented at the Oct. 14, 2014 hearing (Vol. 5); any prior testimony relied on must be placed in the record or judicially noticed on the record	Trial court may consider prior testimony/evidence from other proceedings without repeating it at the §44.04(c) hearing	Court of Appeals: trial court not restricted to only the evidence presented at that hearing; prior material may be considered without specific “magic words”
Whether trial court must use explicit language (e.g., "judicial notice") to show it considered prior proceedings	Nixon: explicit recitation or identification of prior testimony/documents is required so defendant has notice and chance to object; otherwise appellate review is impossible	State: no requirement for specific formulaic language; trial court's statements can show it considered earlier evidence	Court of Appeals: no magic‑words requirement; trial court not required to use particular phrasing to show consideration of prior evidence
Whether the Court of Appeals improperly considered evidence not in the appellate record	Nixon: Fifth Court relied on facts not included in Vol. 5 or the clerk’s record and improperly considered materials from other volumes/appeals	State: appellate court may consider the trial judge’s recollection and the broader record where appropriate	Petitioner argues appellate court erred; lower court affirmed without restricting review to Vol. 5, leading to contention that the opinion relied on outside materials
Whether denial of bond without notice of evidence considered violated due process/due course of law	Nixon: lack of on‑the‑record judicial notice or transcription of prior testimony deprived him of fair notice and meaningful opportunity to respond, violating Tex. Const. art. I § 19 and the U.S. Constitution	State: §44.04(c) proceeding does not require full adversarial trial protections; the quantum of process varies and can allow reliance on prior proceedings	Court of Appeals held the trial court’s procedure sufficient; petitioner asserts constitutional error and requests supervisory review

Key Cases Cited

Mathews v. Eldridge, 424 U.S. 319 (balancing test for required procedural due process)
Gagnon v. Scarpelli, 411 U.S. 778 (due process protections in revocation and similar proceedings)
Shockley v. State, 717 S.W.2d 922 (Tex. Crim. App.) (due process required before denying bail pending appeal)
Bradley v. State, 564 S.W.2d 727 (Tex. Crim. App.) (record must show facts judicially noticed for appellate review)
Putnam v. State, 582 S.W.2d 146 (Tex. Crim. App.) (standards for ‘‘good cause to believe’’ to deny bond)
State v. Cobb, 851 S.W.2d 871 (Tex. Crim. App.) (treatment of documents in appellate record vs. trial proof)