Bradley v. State

564 S.W.2d 727, 1978 Tex. Crim. App. LEXIS 1091

Opinions

OPINION

ODOM, Judge.

This is an appeal from an order revoking probation.

Appellant was convicted of burglary of a habitation and placed on probation for six years. Subsequently the State filed a motion to revoke probation alleging violation of the condition that he commit no offense against the laws of Texas, in that he committed the offense of murder.

We are confronted at the outset with a defect in the record that requires this appeal be abated for supplementation of the record. Appellant contends the trial court abused its discretion when it took judicial notice of the testimony heard in another proceeding and the sufficiency of the evidence to support the trial court’s order revoking probation is challenged.

The record reflects that following appellant’s plea of untrue to the motion to revoke probation the following occurred:

“[THE STATE]: Your Honor, at this time the State would ask the Court to take judicial notice and knowledge of testimony heard by the Court in Cause No. F-76-1545-NJ, The State of Texas versus Rickey Lee Bradley, wherein the Defendant was charged with murder, which testimony the Court heard on July 6th, 1976, in this same court, which trial was a jury trial, which trial resulted in a hung jury.

“[DEFENSE COUNSEL]: Your Hon- or, I object to the Court taking judicial notice and ask that the State put on its case in order to prove up the grounds to revoke his probation.

“THE COURT: On what grounds do you object to my taking notice?

“[DEFENSE COUNSEL]: I would think this isn’t a matter the Court could take judicial notice of.

“THE COURT: I’m going to overrule your objection. I recall the trial and I recall the testimony. I want the record to show this is testimony that was heard in this court by this Judge and I want the record to further show that the Defendant was present at the time that the testimony was given, that he was represented by counsel at the time the testimony was given, and further that his right to confrontation and cross-examination of witnesses were reserved during that trial. For those reasons, I will take judicial notice of the proceedings in this court.

Both sides then rested and closed. This is all the material considered by the trial court, as reflected in the record of the hearing on the motion to revoke.

The State contends judicial notice was properly taken under Barrientez v. State, Tex.Cr.App., 500 S.W.2d 474; Stephenson v. State, Tex.Cr.App., 500 S.W.2d 855; Green v. State, Tex.Cr.App., 528 S.W.2d 617; and O’Hern v. State, Tex.Cr.App., 527 S.W.2d 568. Those cases are authority for a court to take judicial notice¹ at a hearing to revoke probation of the evidence heard in a prior criminal trial of the probationer. This rule is allowed in light of special considerations surrounding the revocation proceedings. The hearing on a motion to revoke probation is not a trial in a constitutional sense (Hill v. State, Tex.Cr.App., 480 S.W.2d 200, cert. denied 409 U.S. 1078, 93 S.Ct. 694, 34 L.Ed.2d 667, and cases there cited), and such a hearing being administrative in nature, procedural and ev-identiary requirements are not enforced as strictly as they would be in a criminal trial. Kelly v. State, Tex.Cr.App., 483 S.W.2d 467, 471 (concurring opinion) and examples cited therein. The relationship between the probationer and the court is contractual in nature. Espinoza v. State, Tex.Cr.App., 486 S.W.2d 315; Lasater v. State, Tex.Cr.App., 456 S.W.2d 104. Although review on an appeal from a revocation of probation is limited to a determination of whether the trial judge abused his discretion, Hilton v. State, Tex.Cr.App., 443 S.W.2d 844, probation nevertheless may not be terminated without an affirmative finding of a violation of probation supported by a preponderance of the evidence, Scamardo v. State, Tex.Cr.App., 517 S.W.2d 293, and the probationer is entitled to certain due process protections in the revocation proceedings. Whisemnt v. State, Tex.Cr.App., 557 S.W.2d 102. We do not waiver from our firm adherence to approval of the procedure followed in Barrientez and its progeny, supra. The issue presented here, however, is different.

In Barrientez, O’Hern and Green, supra, the defendant contended on appeal that the evidence was insufficient to prove the violation of probation in that the prior conviction relied on for revocation was on appeal and not final at the time of the revocation hearing. Those contentions were overruled in that the probations there were revoked for the commission of an offense, not for conviction for an offense. In contrast, appellant here urges the rules of law that it is an abuse of discretion to revoke probation where the proof does not conform to the allegations set out in the motion to revoke, Ford v. State, Tex.Cr.App., 488 S.W.2d 793, or where it fails to establish an element of the offense. Reed v. State, Tex.Cr.App., 533 S.W.2d 35. He then asserts that the record here is devoid of evidence to support the allegation in the motion to revoke that appellant committed the offense of murder. This deficiency, he argues, renders the evidence insufficient to support the revocation of probation. Thus, it is here contended that the evidence is insufficient to show the commission of the offense alleged.

The State on this issue cites Dart v. State, Tex.Cr.App., 515 S.W.2d 119, in which it was stated:

“It is clear and unambiguous from a reading of Sec. 5 of Art. 40.09 [V.A.C.C. P.], that the burden is upon the party desiring a transcription of the court reporter’s notes to not only obtain such, but to further see that same is filed with the Clerk in time for inclusion in the record.”

The State argues appellant made no attempt to include in this record a transcription of the court reporter’s notes from the criminal trial of which judicial notice was taken. This position misses the mark. The transcription of those court reporter’s notes was never a part of the record in this case. The court at the revocation of probation hearing took judicial notice of the events that would be reflected in those notes, yet the actual notes were not introduced as evidence at the hearing. Cf. O’Hern v. State, supra, in which record of the testimony from the prior trial was placed in evidence at the probation revocation hearing.

We draw a distinction between the obligation to secure inclusion in the record on appeal of material that was part of the record in the proceedings in the trial court and the obligation urged by the State, that the appealing party go beyond the record to secure and place in the record matter that is part of the State’s case. It is proper that the appealing party be required to present as complete a record of the trial proceedings as is necessary to consider and dispose of the issues urged on appeal. Here, the complete record of the probation revocation proceeding has been made a part of the record on appeal. It is not proper to require the appellant to go beyond that trial record to make the State’s case against himself. In short, we draw a distinction between the burden on the appellant to bring from the trial record the matter he relies on for appeal issues and the burden on the State to bring to the trial record the evidence it relies on to meet its burden of proof. Appellant has presented a complete record; the State did not meet its burden to present the material relied on to meet its burden of proof in a manner capable of reflection in the trial record, so that a meaningful review could be had on the appellate record in this Court.

Although this record reflects all that occurred at the hearing on the motion to revoke probation, it does not reflect the content of the matters judicially noticed by the trial court upon the State’s motion and necessary to meet the State’s burden of proof. While the theory allowing judicial notice of a fact is that the fact “is so easily determinable with certainty from sources considered reliable, it would not be good sense to require formal proof,” 1 McCormick and Ray, Texas Law of Evidence, 2nd ed., Sec. 151, this does not dispense with "the requirement, for purposes of review, that the facts so noticed be apparent from the record. Under the Barrientez rule for revocation of probation hearings, the facts judicially noticed here were' matters of testimony heard in the prior criminal trial, i.e., that certain witnesses gave certain testimony. Those facts, i.e., what the testimony was, are not shown in this record and are not known to this Court, and yet, to dispose of the issue of the sufficiency of the evidence raised in this case, such facts judicially noticed must be made known to this Court. The statement in the record that judicial notice was being taken of unstated facts is not a sufficient presentation of the matter relied on by the State to meet its burden of proof such as to be meaningful to this Court and to allow disposition of the issue raised in this appeal. How are we to dispose of this matter?

In Garcia v. State, Tex.Cr.App., 488 S.W.2d 448, an appeal from a revocation of probation, the findings of the court revoking probation were held not sufficient to inform the appellate court of the violations found by the trial court upon which probation was revoked. As a result this Court was unable to review the issues on appeal. The disposition there ordered was:

“The orders revoking probation, and the sentences imposed, are hereby set aside until such time as the probations granted to this appellant have been revoked by the trial court in orders clearly setting out the findings and conclusions upon which they are made.”

Reversal was there required because the defect went to the order revoking probation, a prerequisite to and the foundation for the sentence. Thus, the defect raised in that appeal could not have been corrected without setting aside the judgment of revocation and subsequent sentence. On remand, however, no new hearing was required. It was sufficient for the trial court to enter new orders and pronounce sentence. Garcia v. State, Tex.Cr.App., 499 S.W.2d 126.

The issue here, as distinguished from Garcia, goes not to the judgment itself, nor to the determination of trial issues (the facts judicially noticed were known to the fact finder), but rather the matter goes strictly to the review process, i.e., to the ability of this Court to dispose of the issue. See generally, Ex parte Jones, Tex.Cr.App., 562 S.W.2d 469. Consequently, we conclude the judgment need not be reversed as it was in Garcia v. State, Tex.Cr.App., 488 S.W.2d 448. In Hester v. State, Tex.Cr.App., 535 S.W.2d 354, it was necessary to abate the appeal and direct the trial judge to reduce to writing his findings on the disputed fact issues on the issue of the voluntariness of the defendant’s confession raised under Art. 38.22, Sec. 2, Y.A.C.C.P. That abatement was required in order that this Court could finally dispose of the appeal. Cf. Lang v. State, Tex.Cr.App., 538 S.W.2d 121; Sheeley v. State, Tex.Cr.App., 530 S.W.2d 108. In the instant case we likewise conclude that abatement is necessary in order that a proper, final disposition of the issue of the sufficiency of the evidence raised by appellant may be had.

In abating this case we neither encourage nor suggest that the State in future cases of a similar posture should allow submission of the appeal without identification of the facts judicially noticed, with the expectation that an abatement may be ordered to allow perfection of the record. The number of abatements by this Court is already a considerable burden on the criminal justice system,² and where adequate alternatives are available we will not add to that burden. In cases such as this adequate alternatives are available, and in future cases one of the procedures hereinafter described should be followed.

In Cartwright v. State, Tex.Cr.App., 527 S.W.2d 535, the practice for presenting reversible error on appeal for violation of certain provisions of Art. 40.09, Y.A.C.C.P., was changed. In Ex parte Jones, 562 S.W.2d 469 it was made clear that the change in practice effected in Cartwright,. in that it was accomplished as a matter of judicial policy and went strictly to the review process, would be given prospective effect only. Much earlier, in Butler v. State, 33 Tex.Cr.R. 232, 26 S.W. 201, the practice for presenting a proper statement of facts on appeal was described as then provided for in the rules of the Court. Although the record in Butler was not in compliance with those rules, the record was considered, with the announcement, “Hereafter such violations of the rules [for preparing the statement of facts] will simply be met by this court’s refusing to consider the statement of facts for any purpose.” That rule for presenting matters for review was announced as a prospective rule, created by the Court in its discretion, to govern consideration of future appeals brought before it. In a like spirit we today indicate the following alternatives that should be followed in future cases to avoid the situation that in this case necessitates an abatement. We do not, however, lay these down with the force of an ironclad mandate.

The defect to be avoided or cured is the failure of the record to reflect the fact or facts judicially noticed by the trial court. The defect may be avoided in the first instance by precisely reciting such facts for the record or placing them in the record. For judicial notice of such facts as here considered, this may be done by placing the transcribed court reporter’s notes, appropriately identified, into the record, as was done in O’Hern v. State, Tex.Cr.App., 527 S.W.2d 568, or, if the matter is not excessively long, by reading the testimony judicially noticed into the record, as was done in Stephenson v. State, Tex.Cr.App., 500 S.W.2d 855.

At least three methods are available to cure, for review process purposes, the failure of the record of the probation revocation hearing to reflect the testimony judicially noticed therein, should some issue resting on that testimony, such as the sufficiency of the evidence, be raised in the probationer’s appeal brief. These depend, however, on a sufficient identification at the revocation hearing of the trial proceedings judicially noticed. If such trial proceedings are clearly identified, and if the facts so noticed are necessary for disposition of an issue raised on the appeal, one of the following methods may be “followed, according to the circumstances.

If the criminal trial judicially noticed, resulted in an appeal to this Court, and if the record in that appeal contains transcribed court reporter’s notes reflecting the testimony judicially noticed, or otherwise reflects that testimony, it will be sufficient for the State to cite and rely on that record of this Court in its reply brief. We will judicially notice the record of the same testimony noticed by the trial court. In order to do so, however, the record of the revocation hearing must clearly reflect the precise matter judicially noticed.

If there was no appeal of the criminal trial, or if it was appealed but the record therein does not reflect the testimony judicially noticed, it will be necessary for the State to produce the record of the judicially noticed testimony in its entirety for inclusion in the record of the probation revocation appeal. This must be done while the case is still before the trial court, as was done with a State’s exhibit necessary to sustain the State’s burden of proof for enhancement of punishment in Almand v. State, Tex.Cr.App., 536 S.W.2d 377, which exhibit was introduced at trial but was omitted from the record as originally approved. The same, procedure was followed by the State to supply a missing indictment in Guzman v. State, Tex.Cr.App., 521 S.W.2d 267, and a missing transfer order in Ellis v. State, Tex.Cr.App., 543 S.W.2d 135. Again, though, the matter so presented for a supplemental record must be sufficiently identified at the revocation hearing as being judicially noticed, in order that the identity of the two will be apparent from the record before this Court.

Finally, the parties may agree, with the approval of the trial court, to a brief statement of the facts judicially noticed, under Article 40.09(14), V.A.C.C.P. Compare the practice under Article 759a, Sec. 1(E), V.A.C.C.P. (1925), applied in Hilliard v. State, Tex.Cr.App., 401 S.W.2d 814.

In the instant case the matter was identified at the revocation hearing as the testimony heard by Judge Zimmerman of Criminal District Court No. 3 of Dallas County on July 6, 1976, in Cause No. F-76-1545-NJ, the State of Texas vs. Rickey Lee Bradley. This was sufficient identification and the record ordered on abatement of this appeal should reflect its identity with that trial identification. We abate this appeal with directions that the State have reduced to writing, and then present to the trial court for approval as a supplemental appellate record, the court reporter’s notes of the testimony judicially noticed at the revocation hearing.

It is so ordered.

VOLLERS, J., not participating.

1 . This rule has been criticized as going beyond the proper limits of judicial notice. See, e.g. the dissenting opinion in Barrientez v. State, supra. The basis for judicial notice has been described this way:

“The doctrine of judicial notice is based on convenience and expediency, and to say that a court will take judicial notice of a fact is merely another way of saying that the usual forms of evidence will be dispensed with if knowledge of the fact can be otherwise acquired. Judicial knowledge is not reached by the use of evidence; it is a matter pertaining to the judicial function and its existence, like that of an admission, stipulation, or rule of presumption, dispenses with evidence as to the point covered.” 31 C.J.S. Evidence § 13.

The proper limits of judicial notice are not static and rigidly fixed. “The list of things covered by judicial notice is constantly expanding, and no exact limit can be placed thereon.” Id., Sec. 7. In McCormick and Ray’s Texas Law of Evidence, 2nd ed., Texas courts are criticised for giving the doctrine too narrow an application:

“Because of its elasticity the doctrine of judicial notice offers great possibilities for the improvement and speeding up of trial procedure. Although the foregoing sections indicate a liberal use of the doctrine by Texas courts many instances of too narrow application might be cited. These seem to be due to two things: (1) The courts evidently forget that there are two parts of the doctrine, i.e., mandatory and discretionary. And it is in the latter part that the possibilities for great usefulness lie . . . (2) Too often the courts think in terms of the older and more familiar basis of the doctrine, namely, ‘common knowledge’ instead of the more modem and elastic basis, i.e. ‘verifiable certainty.’ In this channel lies the greatest opportunity for expansion.” Id. Sec. 211.

The rule of Barrientez v. State, supra, now has an established place within the doctrine of judicial notice.

2 . See, “Dismissals and Abatements by the Court of Criminal Appeals,” 41 Texas Bar Journal 53.