*1 Appellant’s ground last supra, at
error is overruled. err found no reversible
Having
or,7 judgment we affirm the
court. BRADLEY,
Rickey Appellant, Lee Texas, Appellee. STATE
No. 56475. Texas, Appeals
Court of Criminal
En Banc.
Nov.
enhancement
grounds
indictments contained these
three
five
7. We have reviewed
provisions
provisions,
were
pro
but the other two
se brief and find them
error raised
12,311,
alleges
ground
State in
No.
and
waived
Cause
be without merit. His first
12,312,
fatally
in the
not included
defective because
No.
and were
the indictment
Cause
jury.
“attempt
charge
punishment
and-
court’s
word “did”
omitted
jury
true in Cause
indictments state
to be
commit theft.” All three
found the evidence
intentionally
12,310
appel
“did there and then
the trial
sentenced
No.
offenses,
burglary
knowingly,
the effective consent of
without
life. In the other two
lant to
thereof,
years
did at-
jury
punishment
a habitation and
each.
owner
enter
at 25
assessed
Friday,
tempt
authority
parte
We find
to commit and commit theft.”
Ex
Under
authority,
Carvajal
(Tex.Cr.App.1977),
us to
neither does
cite
law,
(Tex.Cr.App.1975)
an indictment
case
that holds such
S.W.2d 517
fundamentally
four
Calloway,
In his other
parte
defective.
extending
151 Tex.
to Ex
back
pun-
grounds appellant
of his
long
raises the issue
(1947),
as a
Henry Atty. M. Dist. Dallas, Hagler, Atty., Robert Asst. Dist. Austin, Huttash, Atty., State’s State.
OPINION ROBERTS, Judge. revoking from is an an order
This re- probation was probation. Appellant’s noticed voked after the trial held previously of a murder trial the record contended that appeal, him. On before support the was insufficient evidence prior opinion order. In a court’s revocation properly we held that the trial court in the murder the record trial.
See Barrientez appeal, (Tex.Cr.App.1973). We abated however, so trial record the murder might forwarded judicially noticed aiding in the purpose this Court challenge to the disposition of appellant’s the tran- sufficiency of the evidence. Since reporter’s notes scription of the court us, we is now before that murder appellant’s contentions. proceed to consider same, cannot, first in both be the appellant’s argument We turn was supplemented improp- means, Certainly, the record agree. matter by any erly permitted, that the State was in Barrientez. was not even mentioned abatement, suggest the trial court the Barrientez rule This modification of rep- take origin to have had seems its *3 resented the same at both the attorney (Tex.Cr.App.1973) murder trial and the hear- later revocation noted, Judge “... wherein Morrison ing. by appointment attorney same who had represented represented [Stephenson] Appellant acknowledges our statement in hearing.” probation the revocation of Armstrong not this observation Id. at 856. Whether or App.1977) supplement that record be Stephenson holding was essential to the ed it has been He con approved. is unclear. That Barrientez rule was so tends, though, that “... seeks to suggested by concurring modified is add to the new record in this case ... in evidence ... not the revoca Green v. developed at ” Likewise, tion .... no merit in in We find O’Hern appellant’s argument. 1975) (Onion, J., concurring) sug P. it was Subsequent to the abatement of this gested, incorrectly, that Barrientez stood appeal, judicial the trial court took in proposition attorney both that appellant represented by that must and proceedings be the same that
attorney proceedings. support at both In held. this assertion the a certi State introduced pro fied of a docket copy sheet of a effect, then, question ceeding reflecting appellant’s representa pro or not in attorney whether both Appellant tion one Steve ob Sumner. ceedings must be same has not been jected to the introduction of this docket poses requirement resolved. That such a ground sheet on the that “it constituted difficulty in the application of the Barrien appellant’s new evidence.” In response to tez rule cannot be gainsaid. One can readi objection said, my the court inten “[i]t representa ly imagine situations wherein everything tion to take notice of might same not attorney tion that had to do with it of the docu ... all are, therefore, possible practicable. or We papers partici ments and and pleadings unwilling impose rule re an inflexible Moreover, pants and all that.” we have presence quiring attorney before us the of facts in both statements If, does, proceedings. we hold it at both proceeding the revocation and the murder viable the Barrientez rule remains a rubric trial noticed therein. to us that appears It matters, procedure in no denial of these in represented Steve Sumner new attorney due occurs where the ap Accordingly, both causes. we overrule in the revocation before im pellant’s contention that the record was him the record of trial in Therefore, properly supplemented. proceedings. we do not at this whether it is time decide as a law under the necessary matter of now contention appellant’s We turn rule, that in both the counsel to sup- insufficient that the evidence was prior trial proceeding revoking proba- his port court’s order same, noticed therein be the there was a Appellant that tion. asserts that, of this find under the circumstances pleading fatal variance between the State’s case, is ample the evidence that that he proof in it was was, fact, same attor represented by the “hitting victim caused the death of the both ney hammer” whereas him on the head with a died of the victim Though parties granted both it for established that take requires attorney a knife wound. that Barrientez used in the attack weapon other Appellant was to have violated proof as is pleading and (a) probation his he a variance between condition of a fatal the circumstances against an offense the laws of under “commit[ted] .; at which (On probation to revoke day this State . . the 25th on motion about weap- using both Texas, January, County, admitted Dallas defendant case, that, evi- in this did in- ons. We hold Rickey Lee then there the revoca- support dence tentionally cause the death was sufficient knowingly and overrule individual, Barnes, tion by hitting of an Dwaine contrary. hammer.)” him on head with a contentions Appel- appears lant’s contention to be there the evi Appellant asserts also allegation a fatal variance between the pro the revocation of his dence to revoke in- motion to and the evidence bation was insufficient because the *4 trial judicially troduced at the noticed be- specific or “no oral written court made cause medical examiner testified that of findings of and conclusions detailed fact ” the actual cause Barnes’ death was a law for his order .... regarding basis Notwithstanding stab wound to chest. all, request made no appellant First of this, alleged that that note State specific findings fact and conclusions against appellant committed offense Moreover, adduced at law. evidence laws of the State Texas. above, trial, indicates reviewed trial, At that appellant admitted he as- in the that was no abuse of discretion there saulted the deceased a knife. He tes- indeed, with had, finding appellant court’s that response tified assault that this was a to (a) This probation. his violated condition Appellant Barnes’ to attempt choke him. ground of error is overruled. not,
did though, deny striking the deceased error, assignment of In a multifarious with a hammer. The medical application of the appellant argues that the inju- established that the deceased received supplementation rule ries to of the the back head and that his offensive to the the record in this case are hands bore the marks of defensive wounds. Fifth, Amendments and Fourteenth Sixth A claw hammer with blood was covered of the of the United States. Constitution recovered at the scene. It was admitted 40.09(9), Appellant, V.A.C.C.P. See Article Moreover, into objection. evidence without hand, the doctrine on the admits that one said, appellant as we have admitted stab- prevent the rev- estoppel does not collateral bing the deceased with knife. a for the commission his ocation of jury hung on though a a of an even alleges
Where the viola offense prior trial there- guilt his in a requiring probation tion of a issue of condition law, he admits that collateral violating er to it is for. refrain from Even case, estoppel application not necessary allegation that such an be in that, hold “the appellant be would have us precise terms as would neces applied must be if sary allegation. an indictment It is suf doctrine considered in conjunc- rationality ficient a violation law be with realism and that guaranteed proba principles” and that tion with other given fair notice According ap- clauses. to tioner. 558 the due Chacon estoppel prohibits the pellant, “[cjollateral (Tex.Cr.App.1977); Davila which using same evidence In this State from jury that the case, appellant have violated was insufficient convince murder to con- the law committed the description and a of the offense was defendant added to name of the vince apprise of the e., fact, de- i.
victim of
in the same ultimate
the offense and the manner
He states
which it
the murder.”
That
fendant committed
committed.
there
that,
deal
expert
now
actually
result
“this
must
death
(1)
er-
it is constitutional
propositions
ed from
one and not the
application
sought
assault on the deceased but
ted the
person
liberty upon
of his
deprive
ror to
self-defense. Our
terms of
satisfy
beyond
explain
it in
proof which does
(2)
murder trial
that it is
reasonable doubt standard
of the record
review
the con-
retry
error to
an accused af-
constitutional
state’s contention
supports the
into
ter there has been a determination that
not admitted
question
were
fessions
proper,
to sustain a convic-
evidence is insufficient
at the trial
jury
evidence before
States,
pretrial
U.S.
tion.
v. United
at a
Sanabria
been admitted
though they had
[437
(1978);
further,
L.Ed.2d
find,
98 S.Ct.
hearing. We
54]
[57
43]
Massey,
Greene v.
U.S.
S.Ct.
found
same facts
trial to the
[437
19]
testified at the
(1978);
Burks v. Unit-
L.Ed.2d
Accord-
confessions.
extrajudicial
[57
15]
in these
States,
98 S.Ct.
ed
U.S.
of the trial
province
[57
[437
1]
it was within the
ingly,
(1978).”
L.Ed.2d
hearing,
court,
subsequent
1]
testi-
credibility
assess the
contention
reject appellant’s
We
have chosen to
might properly
and he
mony
error to order
that it was constitutional
explanation for
exculpatory
disbelieve the
based on the trial court’s
probation revoked
error is shown.
No
fatal assault.
an offense of which a
consideration of
had not found
in a
is affirmed.
judgment
proba
A
reasonable doubt.
guilty beyond a
simply
not a crim
tion revocation
DALLY, J., dissents.
*5
degree
prosecution
inal
dissenting.
allega
ONION, Presiding Judge,
of the
required to establish the truth
is not
probation
tion in a motion to revoke
creatures
beget unnatural
who
Sires
Russell
same as that in a criminal trial.
lose their fa
to
law never seem
decisional
State,
(Tex.Cr.App.
714
v.
551 S.W.2d
regardless of
instincts
protective
therly
98
1977), cert. den. 434
S.Ct.
U.S.
injus
confusion, delay and
continuing
State,
(1977);
v.
(J57
State, 527
568
O’Hern v.
S.W.2d
App.1973);
of a
conducted before him for
State,
v.
purpose
allegations
of the
528
supporting
Green
(Tex.Cr.App.1975);
revocation motion.
Bradley v.
(Tex.Cr.App.1975);
617
S.W.2d
State,
(Tex.Cr.App.1978);
727
564 S.W.2d
although
This was done
it was well estab-
(Tex.
and Cleland
judicial
lished that while a court
take
595 S.W.2d
Cr.App.1978); Torres
previous
of its own orders in a
hear-
Bai
(panel opinion);
(Tex.Cr.App.1980)
ing
parties
on the same
between
subject,
no-
the court cannot take
ley v.
543 S.W.2d
testimony
(Tex.
tice
before it on
heard
1976);
Haile
independent
judg-
another trial
enter
Cr.App.1977); Broussard
dissenting
opinion
ment thereon. See
banc).
(En
(Tex.Cr.App.1980)
p.
in Barrientez at
cases there cited.
others,
it
In Barrientez and Green
Further,
noted
in the dissent
majority
that what
was obvious
failed to explain
in Barrientez
looking
appellate records of
doing was
just
this
how
court could review the suffi-
which were
resulting
trials
convictions
probation
of the evidence
revo-
ciency
this
independently appealed to
court
see
cation
when the
takes
there to
if there was
notice” of the
of a
where
testimo
revocation of
“testimony”
part
trial and that
is not
appel
noticed” was
in the
ny “judicially
appeal
record on
from the revocation order.
from the order
late record of
Further,
explain
Barrientez
failed
opinions in
revoking
Bar
probation.
required
lack
39.-
predicate
Article
Green,
etc., were
rientez
silent
01, V.A.C.C.P.,
the use
testi-
to authorize
in Cain v.
despite
action
the fact that
mony of a witness from prior
case. Since
856, 861 (Tex.Cr.App.
was also silent as to
court,
1971),
through
speaking
Judge
holding
the effect of the
effective
Roberts, wrote:
assistance of counsel at the revocation hear-
*6
ap-
of an
“The fact
that in the event
ing,
question
the dissent
raised the
of
appel-
find another
peal
Court
the
applied
whether
Barrientez rule
unless
may supply
late
which
defi-
record
prior
defense counsel was the same at the
controlling.
is not
hearing.
ciency
predicate
trial and the
revocation
in
Tex.Jur.2d,
in 23
Evi-
The rule announced
only
given
The
reason
for the establish-
dence,
51,
29,
intended to
p.
was never
§
ment of the new rule Barrientez was the
used
in this fashion.”
upon
pro-
unreasonable burden
the State to
duce the same witnesses at the revocation
look to
It is
this court cannot
clear
as at the
trial.1
supply
record to
defi-
appellate
another
in a
under consideration
ciency
case
cases
Barrientez was followed in
like Ste-
Practice,
State,
(Tex.Cr.
Law
phenson
appeal.
Ray,
supra; supra Barrientez v. hearing.2 tion ing opinion), and authorities there cited. Sep- revocation occurred on Bradley The I Bradley p. final- appellate record 1976. The tember and, ly came out of the closet without ad- 12,1977. opinion The filed here on October actions, mitting past placed stamp its its down was handed en abating appeal approval upon such procedure saying 5, 1978 and the motion for April banc on if testimony “judicially noticed” in rehearing May was denied leave to file for properly a revocation proceeding is identi- the record the abatement Since fied in appellate record then this court of facts was filed reflects that a statement “judicial testimony will take notice” of such murder case. For in this court of a if appellate it is found in another record reason, the reinstated unexplained ap- some This, course, before this court. rather than to peal panel was referred to a Thus, “judicial notice.” improper have 8, 1978, banc. On November the court en piled upon improper judicial Quarter, per 4th in a curiam Panel No. notice. And finally supra, Cleiand v. appeal because the opinion again abated the panel opinion, made no bones about the was labeled to be of facts said statement appellate fact that the in another testimony No. F-76-1545- that of trial court Cause record had been examined to determine the so certified to be the court LJ3 and evidence to sufficiency of the judge, and the record reporter and trial “judicial order where notice” had testimony judge took showed that testimony been but where it taken was that in trial court “judicial notice” of appellate in the rec- had not been included per curiam Cause No. F-76-1545-NJ. ord before this court on the from the panel opinion again requested testimony order revoking probation. judge had taken of which the trial I, however, presented another notice.” problem. “judicially no- 20, 1978, December the trial court On apparently ticed” was from a trial which stating doing it was conducted a hung jury. had resulted in a Criminal request of the Court court, was not in the record before this cause num- Appeals clarify in order to hung since the earlier trial had resulted in a course, in the nothing ber. Of appellate there was no other record 8,1978 hearing. Be mentioned a November “judi- before this court to examine for such held, hearing but may, that as it cially testimony. noticed” confusion, and all did not serve to remove *7 situation, Faced with this the hearing did not reach the record of the brief wrote: 17,1980, more than January this court until with directions appeal “We abate this year a later. writing, that the have reduced to State thep court re- hearing Day, a At the Sandra and the trial court for present to transcribed porter, she took and appellate rec- testified approval supplemental as a ord, hearing” July notes of the tes- reporter’s the court “in adequate majority apparently where alternatives are available we felt this abate- 2. The that trip trip such as and for this will not to that burden. In cases ment was a ticket for this only. add available, adequate and this alternatives are It wrote: procedures in future cases one of the herein- encourage abating “In this case we neither followed.” described should be suggest nor that the in future cases of a interesting will It to await the arrival posture similar should allow submission appeal posture another in the same as appeal of the facts without identification I. noticed, expectation that with the per- an abatement be ordered to allow the trial court 3. F-76-1545-LJ is shown to be of abate- fection of the record. The number proceed- number of the ings. already by a considerable ments this Court is justice system, 1an burden on the criminal of facts from the The statement 6,1976, Bradley, involving Rickey whom she used the ma- apparently present in the court- murder trial4 being as identified testified examiner jority, shows the medical room. She then asked: deceased the death that cause of indicate “Q. your ... Do notes there aby the chest inflicted was a wound to stab in what cause number deceased, appellant testified knife. The you took the cause was which roommate, drinking heav- had been who his testimony? choking him began him and ily, attacked “A. Yes. The first cause number de- stabbed the (appellant) he and that Judge says, F-76-1545-NJ.” knife, that the deceased but ceased with Thereafter, she identified State’s Exhibit and knife and a board of the gained control as No. 1 the statement of facts said attack, in self-de- to continued "prior hearing.” exhibit was admitted Said picked hammer up a (appellant) fense he objection. over She then ad- into evidence There was skull hit the deceased. mitted the cause number on said exhibit scalp and hands on the fracture but tears “F-76-1545-LJ” was not correct should with blows deceased were consistent reporter have read “F-76-1545-NJ.” according to the medical examin- a hammer then identified Exhibit No. as State’s were not the cause blows although er these signed. she had certification which of death. “top portion” State then offered the facts before Even if the statement of objection State’s Exhibit No. considered, does not portion sustained. The bottom of State’s court can now be the revocation allegations Exhibit No. was never offered or admit- ted, made ref- killed the de- though later motion that portion erence the bottom of said exhibit the head with hitting him on ceased however, as containing findings. Neither State’s holds majority, hammer. Exhibits Nos. or 2 of said is in the resulted from a different that where death record before this court. Whether State’s than no variance weapon 1 is Exhibit No. the same as the statement pleading and presented between the July facts filed this court on defendant in a revocation where F-76-1545-LJ, marked as Cause No. weapons even using both admitted have no the cir- way knowing. Under did not cause the death. weapon alleged cumstances, possible compare it is not baloney. pure This is said State’s Exhibit No. 1 with the state- State, 196 In Bell v. ment of facts received earlier. in it was held that where the App.1946), Nevertheless, despite the condition of the means or instrument dictment avers record, been reinstated accomplished, killing which majority who have now decided uti- proved or the instrument must be means lize the statement of facts received earlier alleged. And where the indictment passing evidence to sustain the “strike, he and bruise” did wound with- allegations the revocation motion with intent prosecutrix “gun” with a out mention the absence exhibits. her, evidence but State’s murder prose- showed that the defendant struck motion It is observed that the revocation *8 gun of a blow with the stock cutrix one alleged appellant in its count that the only from the barrel of been broken which had by probationary conditions violated to a merely equivalent was and which gun, causing of the named deceased the death wood, given have the court should piece him the head with ham- “by hitting jury instruction requested attempt defendant’s mer.” There was never Ferguson also ground of variance. See amend said motion. allegations its nor Neither the indictment appellate before other form are in the record this court. 660 State, however, (1878). majority’s
v.
4
with the
Tex.App.
opinion,
156
fur-
do not
Still
ther, allegations in an indictment of means
here cease.
committed,
which assault was
con-
appellant
On
submission the
unnecessary,
proven
must be
substantially
showing
was no
that he
tended that
there
State,
Burrell v.
alleged.
as
as a
conditions
probationary
violation of
procedure
rule
rubric of
remains a viable
prove prove
a different offense or
matters,
process
denial of due
in these
same offense but
different means than
attorney in
new
alleged.
occurs where the
has before
proceedings
In Pickett v.
the noticed
the record of
stated:
(Tex.Cr.App.1976), this court
proceedings.”6
“Probation
not be revoked
finding of
violation of the law other
interesting to note
It is thus
than
necessarily
included
hearing the testimo-
time of the revocation
allegations
within the
of that
took
ny of which the trial
the motion to revoke. Franks v.
thus not
notice” was
untranscribed
185;
Ford
Tex.Cr.App., 516 S.W.2d
How
counsel.
available
State, Tex.Cr.App.,
661
was
day. Appellant
same
judge on the
hearing
at the
for the defense
revocation
counsel
same
dur-
by the
taking
represented
confronted with the court
also
proceedings.
as
record
evi-
course
ing
notice” of an untranscribed
entire
the
Tex.Cr.App., 528 S.W.2d
State,
the revocation?7
supporting
dence
Green v.
State, Tex.Cr.App.,
617;
v.
Barrientez
that even
majority
The
states
for
improper
not
It was
500 W.2d
S.
Barrientez rule
agreed
both
that the
parties
revoke
proceed
in
required
attorney
both
guilty plea
of his
the basis
probation on
agree. Certainly as noted
ings it could not
”
....
felony theft
to the offense
opinion
did
majority
Barrientez
supplied.)
(Emphasis
requirement despite the
not mention such
point.
In
v.
very
dissent on
speak-
Judge Roberts
opinion,
panel
In a
State,
S.W.2d
856
500
stated in Haile
ing
panel,
Barrientez,
1973),
it was stat
shortly after
(Tex.Cr.App.1977):
820
556 S.W.2d
in
the Barrientez rule that “...
applying
ed
a situation
“We are confronted
attorney
appointment
who had
same
was heard
revoke
where the motion
represented [Stephenson] represented
the appel-
convicted
day
one
hearing."
at
the revocation
the motion
which
the offense
lant of
case then states
majority
The
in the instant
in
based. The trial
revoke was
in
concurring opinion
in a
that this writer
same at-
was the same.
both cases
(Tex.
570
O’Hern v.
527 S.W.2d
in
both
represented
torney
stated that such a
incorrectly
Cr.App.1975),
cases.
requirement
part
of the Barrientez
was
scope
within
bring us
“These facts
incorrect, it
rule.
If this writer was
State, 500
holdings in Barrientez v.
of our
observed that within a month thereafter
O’Hern
(Tex.Cr.App.1973);
S.W.2d
Roberts,
Judge
of the Barrientez
the author
(Tex.Cr.App.1975),
State, 527
S.W.2d
case,
in a
opinion and of the instant
wrote
(Tex.
and Green
in
concurring opinion Green
....”
Cr.App.1975)
(Tex.Cr.App.1975):
Barrientez rule
every
where the
In
case
in this
“I concur in the result reached
attorney
court the
applied by this
has been
from
Although
appear
case.
does
both
was
same at
at
the record that counsel
opinions
hearing whether the
at
as counsel
was the same
fact or not.
mentioned that
robbery charge,
the aggravated
trial of
parties
fact
was admitted
above,
wonder
is it
view of the
In
argument.
requirements
oral
agreed
the instant case
parties
both
(Tex.
Barrientez v.
pro-
both
same at
attorney had to
of this
Cr.App.1973),for the introduction
that the
majority concludes
ceedings? The
(Emphasis
testimony are thus satisfied.”
it,
record,
review shows
they
opinion
also
supplied.)8
dissenting
See
attorney represented
same
Green.
to indi-
proceedings,
reaches out
both
but
(Tex.
neces-
requirement
is not
Bailey v.
cate that such
applied.
Judge
to be
applying
Odom
rule
Cr.App.1976),
sary for the Barrientez
counsel
appointed
rule stated for the court:
say
really
Can we
proceeding
in a revocation
bar,
for a defendant
the revocation
“In the case at
is not
even said
majority
of whom
the trial for the offense
period,
days’ preparation
same
entitled to a ten
occurred before the
felony theft
necessary because the
This concurrence
case before us
7. The record in the instant
majority
failed to mention
Green
considered
shows that
the statement
facts
representing
approved
attorney
was the
Green
certified
hearing.
long
at both
record
after the revocation
does not otherwise show it
available
counsel at the time
the revocation.
*10
Hill v.
mon witnesses in a probation revocation
proceeding are the clerk of the court and
CLINTON, Judge, dissenting.
probation officers
usually
who are
readily
Though
concept
“judi-
the Barrientez
court,
particular-
available to the
and this is
statute,
cial
notice”
not barred
neither
ly true
where the violations
are the
is it
purely
authorized
one.
It
costs,
pay
fees,
failure to
supervisory
etc.,
conceived notion transformed into
report
proba-
failure to
required.
tion officer as
Where a violation
fiat by
opinion.
explica-
written
Without
*11
(Third Edition)
rationale,1
Ray,
of Evidence
162.
of
the
Law
justified
§
tion
Court
the
for
concept
taking “judicial
qualifies
a
of
trial court
where the fact
Secondly,
declaring
notice” of
introduced in a
truth
justified
evidence
judge
“the
is
proceeding
proba-
par-
to
revocation of
from the
of the fact without evidence
convenience,
so,
viz:
policy
tion
a
of
id. at 193.
him to do
ty” requesting
on the
a
of variations
Judge
Only
casual
“Certainly,2
Walker could take
its
Barrientez and
played by
same
notice of the
theme
judicial
evidence introduced
that the tune
brings the realization
progeny
pre-
we to
prior proceeding.
that
Are
notice.”
“judicial
is not
judge
present
tend that
at
this
not
trial,
to
murder
and force the State
I
what the others im-
Bradley
pinpoints
reproduce
same witnesses? We think
judge stated for the record
ply. The trial
place
a requirement
not.
would
Such
personal
he
on his
knowl-
relying
on the
unreasonable burden
State.”
clear,
RayMr.
makes
edge.5 As
is not
In the several cases that have followed Bar-
Yet,
knowledge.
even that knowl-
judicial
rientez,3
only
supra
O’Hern
in note
upon the record
edge
spread
of
3,
a
of
attempts
policy
restatement
a
con-
Thus,
I
hearing.
Bradley
revocation
underlying
sideration
its rule:
require “for
compelled
itself
to
Court found
review,
“It
purposes
would
to have witnesses
facts
noticed
be useless
731,
record,”
appear
id.
judge during
apparent
to
before the
from the
cure,
"to
proceeding
suggested
when he had
alternative methods
already
they
process purposes,
heard their
when
for review
the failure
subjected
were
to
revocation hear-
cross-examination on
the record
there-
ing
same fact issue.”
to reflect
in,” id. at
None of this sounds like
732.
I,
3,
Bradley
supra
preten-
in note without
all
“judicial
to one who has listened
notice”
candidly justifies
sion
rationale more
as
professional
life
stalwarts such
to
“in light
special
rule
considerations sur-
it. What-
Ray
McCormick and
orchestrate
id.,
rounding the
proceedings,”
personal knowledge of a
ever
at 729.4
be,
testimony may
by a record of
evidenced
Still,
working
theory
one
with the
is left
judicial notice it is not.
by calling
disturbed
unsettled
what
is,
Moreover,
raises
pretending
permits,
Barrientez
no-
form
ignored and
signal that cannot be
warning
tice.”
place,
In the first
“it well settled
out, 1
Ray points
must be stilled. As Mr.
scope
of the exercise of the func-
Texas Practice at 199:
tion of judicial notice is not coextensive
with the
no Texas
personal knowledge
appears
“... While there
to be
individ-
judge.
weight
au-
knowledge
judi-
directly
point,
ual
is not
Personal
cases
195-196,
clearly
knowledge,”
supports
cial
elsewhere
thority
1 Texas Practice
g.,
1.
E.
Barrientez finds Hilton v.
3.
1973);
(Tex.Cr.App.
1969),
point.”
(Tex.Cr.App.
Despite
“in
O'Hern
n.1
1975);
(Tex.Cr.App.
dissenting
Green v.
S.W.2d 568
for
caution
hesitation
Court
1975)
Bradley
approval
Rather than a drill the beat forced
“judicial notice” the Court should find a procedure
different drummer. of hold-
ing the trial on simultaneously indictment revoke, suggested motion I, 733,
by Judge Dally may particular not,
not be feasible in a If case. 3720,6 provisions
then of Articles
3731a,7 authorize V.A.C.S. the State
tender as evidence its “occurrence and
existence,” 40.09, 4,8 V.A.C.C.P., Article §
portions of transcription notes taken by reporter9 the official 2324, 10. Article V.A.C.S. mandates that each permits copies 6. Article 3720 certified of rec- reporter upon request: official court shall ords of courts of this State to be admitted as “Preserve all shorthand notes taken in said evidence where the records would be any court for further use . .. and furnish to admissible. person transcript of all such evidence . . . portion any or person thereof as such any 7. Article 3731a makes admissible official order....” record, record, part by written made any governmental officer of this State or of opinions holding The rationale of ancient upon proper subdivision thereof notice and transcript stenographic notes is not attested, when certified and authenticated as evidence, documentary admissible as see 32 provided therein. 853-854, 652, longer C.J.S. Evidence is § valid, is view that more modern transcription reporter’s A “. .. notes by transcription may be made admissible by when certified to and included in the required, statute when certified verified record shall establish occurrence and exist- ibid. testimony. all ence of ..." proposal 12. The to utilize the official written legislative reporter 9. An official court has been based, course, procedure record premise ly designated “a sworn officer of court” problem does 2321, V.A.C.S., confrontation notary public Article and as a or has been resolved and also with the exist holds an office authorized the Constitution 39.01, understanding provisions Texas, of Article 4, and, “public of officer,” Article is a § implicated the record Lawyers Surety are not since Corp. V.A.C.C.P. v. Gulf Coast being (Tex. Corp., used in a Investment e., Civ.App.-Tyler rather crimi- than “the trial of such defendant’s writ ref’d n. r. Moreover, 1969), probationer appointment, whose nal remains duties case.” responsibility extensively regulated portions and law, are free to offer testimo- other recorded 5949, V.A.C.S., g., and, indeed, ny e. Article and whose to call the trial witnesses provided legislatively from removal office is such further examination deemed advisable. Article V.A.C.S.