Bradley v. State, 56475

• Decision Date: 26 November 1980
• Docket Number: No. 56475,56475
• Citation: 608 S.W.2d 652
• Parties: Rickey Lee BRADLEY, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 652

608 S.W.2d 652

Rickey Lee BRADLEY, Appellant, v. The STATE of Texas, Appellee.

No. 56475.

Court of Criminal Appeals of Texas, En Banc.

Nov. 26, 1980.

Melvyn Carson Bruder, Dallas, for appellant.

Henry M. Wade, Dist. Atty. and John H. Hagler, Asst. Dist. Atty., Dallas, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

ROBERTS, Judge.

This is an appeal from an order revoking probation. Appellant's probation was revoked after the trial court judicially noticed the record of a murder trial previously held before him. On appeal, it is contended that the evidence was insufficient to support the court's revocation order. In a prior opinion we held that the trial court properly noticed the record in the murder trial. Bradley v. State, 564 S.W.2d 727 (Tex.Cr.App.1978). See Barrientez v. State, 500 S.W.2d 474 (Tex.Cr.App.1973). We abated the appeal, however, so that the murder trial record judicially noticed might be forwarded to this Court for the purpose of aiding in the disposition of appellant's challenge to the sufficiency of the evidence. Since the transcription of the court reporter's notes of that murder trial is now before us, we proceed to consider appellant's contentions.

We turn first to appellant's argument that the record was supplemented improperly in that the State was permitted, after abatement, to suggest that the trial court take judicial notice that appellant was represented by the same attorney at both the murder trial and the later revocation hearing.

Appellant acknowledges our statement in Armstrong v. State, 550 S.W.2d 25 (Tex.Cr.App.1977) that a record may be supplemented after it has been approved. He contends, though, that "... the State seeks to add to the record in this case ... new evidence ... not developed at the revocation hearing ...." We find no merit in appellant's argument.

Subsequent to the abatement of this appeal, the trial court took judicial notice that appellant was represented by the same attorney at both proceedings. In support of this assertion the State introduced a certified copy of a docket sheet of a prior proceeding reflecting appellant's representation by one Steve Sumner. Appellant objected to the introduction of this docket sheet on the ground that "it constituted new evidence." In response to appellant's objection the court said, "(i)t was my intention to take judicial notice of everything that had to do with it ... all of the documents and papers and pleadings and participants and all that." Moreover, we have before us the statements of facts in both the revocation proceeding and the murder trial noticed therein. It appears to us that Steve Sumner represented the appellant in both causes. Accordingly, we overrule appellant's contention that the record was improperly supplemented. Therefore, though we do not at this time decide whether it is necessary as a matter of law under the Barrientez rule, that counsel in both the revocation proceeding and the prior trial judicially noticed therein be the same, we find that, under the circumstances of this case, the evidence is ample that appellant was, in fact, represented by the same attorney at both proceedings.

Though both parties take it for granted that Barrientez requires that the attorney in both proceedings be the same, we cannot, by any means, agree. Certainly, the matter was not even mentioned in Barrientez. This modification of the Barrientez rule seems to have had its origin in Stephenson v. State, 500 S.W.2d 855 (Tex.Cr.App.1973) wherein Judge Morrison noted, "... the same attorney who had by appointment represented (Stephenson) represented him at the revocation of probation hearing." Id. at 856. Whether or not this observation was essential to the holding of Stephenson is unclear. That the Barrientez rule was so modified is suggested by the concurring opinion in Green v. State, 528 S.W.2d 617, 619 (Tex.Cr.App.1975). Likewise, in O'Hern v. State, 527 S.W.2d 568, 570 (Tex.Cr.App.1975) (Onion, P. J., concurring) it was suggested, incorrectly, that Barrientez stood for the proposition that the attorney in both proceedings must be the same and that Stephenson so held.

In effect, then, the question of whether or not the attorney in both proceedings must be the same has not been resolved. That such a requirement poses difficulty in the application of the Barrientez rule cannot be gainsaid. One can readily imagine situations wherein representation by the same attorney might not be possible or practicable. We are, therefore, unwilling to impose an inflexible rule requiring the presence of the same attorney at both proceedings. If, as we hold it does, the Barrientez rule remains a viable rubric of procedure in these matters, no denial of due process occurs where the new attorney in the revocation proceedings has before him the record of the trial in the noticed proceedings.

We turn now to appellant's contention that the evidence was insufficient to support the court's order revoking his probation. Appellant asserts that there was a fatal variance between the State's pleading and proof in that it was alleged that he caused the death of the victim by "hitting him on the head with a hammer" whereas the proof established that the victim died of a knife wound.

Appellant was alleged to have violated condition (a) of his probation in that he "commit(ted) an offense against the laws of this State ...; (On or about the 25th day of January, 1976, in Dallas County, Texas, Rickey Lee Bradley did then and there intentionally and knowingly cause the death of an individual, Dwaine Barnes, by hitting him on the head with a hammer.)" Appellant's contention appears to be that there is a fatal variance between the allegation in the motion to revoke and the evidence introduced at the trial judicially noticed because the medical examiner testified that the actual cause of Barnes' death was a stab wound to the chest. Notwithstanding this, we note that the State alleged that appellant committed an offense against the laws of the State of Texas.

At trial, appellant admitted that he assaulted the deceased with a knife. He testified that this assault was a response to Barnes' attempt to choke him. Appellant did not, though, deny striking the deceased with a hammer. The medical testimony established that the deceased received injuries to the back of the head and that his hands bore the marks of defensive wounds. A claw hammer covered with blood was recovered at the scene. It was admitted into evidence without objection. Moreover, as we have said, appellant admitted stabbing the deceased with a knife.

Where the State alleges a violation of a condition requiring the probationer to refrain from violating the law, it is not necessary that such an allegation be in the same precise terms as would be necessary in an indictment allegation. It is sufficient that a violation of law be alleged and that fair notice be given to the probationer. Chacon v. State, 558 S.W.2d 874, 876 (Tex.Cr.App.1977); Davila v. State, 547 S.W.2d 606, 609 (Tex.Cr.App.1977). In this case, appellant was alleged to have violated the law and a description of the offense was added to apprise him of the name of the victim of the offense and the manner in which it was committed. That there was expert testimony that death actually resulted from the application of one and not the other weapon used in the attack is not such a variance between pleading and proof as is fatal under the circumstances of a hearing on a motion to revoke probation at which the defendant admitted using both weapons. We hold that, in this case, the evidence was sufficient to support the revocation of appellant's probation and overrule his contentions to the contrary.

Appellant asserts also that the evidence to support the revocation of his probation was insufficient because the trial court made "no oral or written specific or detailed findings of fact and conclusions of law regarding the basis for his order ...." First of all, appellant made no request for specific findings of fact and conclusions of law. Moreover, the evidence adduced at the prior trial, reviewed above, indicates that there was no abuse of discretion in the court's finding that appellant had, indeed, violated condition (a) of his probation. This ground of error is overruled.

In a multifarious assignment of error, appellant argues that the application of the Barrientez rule and the supplementation of the record in this case are offensive to the Fifth, Sixth and Fourteenth Amendments of the Constitution of the United States. See Article 40.09(9), V.A.C.C.P. Appellant, on the one hand, admits that the doctrine of collateral estoppel does not prevent the revocation of his probation for the commission of an offense even though a jury hung on the issue of his guilt in a prior trial therefor. Even though he admits that collateral estoppel has no application in this case, appellant would have us hold that, "the doctrine must be considered if it is applied with realism and rationality and in conjunction with other principles" guaranteed by the due process clauses. According to appellant, "(c)ollateral estoppel prohibits the State from using the same evidence which was insufficient to convince a jury that the defendant committed the murder to convince a judge in revocation proceedings of the same ultimate fact, i. e., that the defendant committed the murder." He states that, "this court must now deal with the propositions (1) that it is constitutional error to deprive a person of his liberty upon proof which does not satisfy the beyond a reasonable doubt standard and (2) that it is constitutional error to retry an accused after there has been a determination that the evidence is insufficient to sustain a conviction. Sanabria v. United States, (437 U.S. 54) 98 S.Ct. 2170 (57 L.Ed.2d 43) (1978); Greene v. Massey, (437 U.S. 19) 98 S.Ct. 2151 (57 L.Ed.2d 15) (1978); Burks v. United States, ...