Bradley v. State

• Decision Date: 05 April 1978
• Docket Number: No. 56475,56475
• Citation: 564 S.W.2d 727
• Parties: Rickey Lee BRADLEY, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 727

564 S.W.2d 727

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

No. 56475.

Court of Criminal Appeals of Texas,En Banc.

April 5, 1978.

Rehearing Denied May 3, 1978.

Melvyn Carson Bruder, Dallas, for appellant.

Henry Wade, Dist. Atty., and John H. Hagler, Asst. Dist. Atty., Dallas, for the State.

Before the court en banc.

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 Honor, 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 notice ¹ 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 evidentiary 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. Whisenant 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...