Davis v. State
| Decision Date | 15 July 2009 |
| Docket Number | No. 10-07-00368-CV.,10-07-00368-CV. |
| Citation | 293 S.W.3d 794 |
| Parties | W.E. DAVIS and 1989 Eagle Tour Bus, TX LP # W81-MKG, Appellants, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Appeals |
William F. Carter, Bryan, for appellants.
Bill R. Turner, Brazos County Dist. Atty., Bryan, for appellee.
Before Chief Justice GRAY, Justice REYNA, and Justice DAVIS.
This is an appeal of a forfeiture of a bus that was allegedly used in the conspiracy for the murder of Tommy Andrade. Because at the forfeiture hearing no evidence was properly introduced to show the use of the bus in the murder, we reverse the judgment of forfeiture.
Willie Davis complains that the trial court improperly took judicial notice of the testimony of two criminal jury trials without the transcripts being offered into evidence at the forfeiture proceeding. TEX. CODE CRIM. PROC. ANN. Ch. 59 (Vernon 2008). He then complains that the evidence without the judicially noticed testimony is legally and factually insufficient to support the granting of the forfeiture.
Willie Davis was convicted of capital murder by a jury. TEX. PEN.CODE ANN. § 19.03 (Vernon 2008). Willie Davis's son, Chad Davis, was also separately convicted of capital murder for the same incident. Willie Davis's other son, Trey Davis, pled guilty and was convicted of the offenses of robbery and burglary of a habitation for that same incident. The State of Texas filed a forfeiture action, alleging that a 1989 Eagle Tour Bus TX LP # W81 MKG owned by Willie Davis was used in the commission of that offense and therefore was contraband. TEX.CODE CRIM. PROC. art. 59.01 (Vernon 2008). The trial court granted the forfeiture after a hearing. In the alternative, the trial court awarded the bus to the First National Bank of Snook, the lien holder, in the event the forfeiture was improperly granted.
The only evidence presented to the trial court at the forfeiture proceeding by the State was the indictment, jury charge and judgment in the criminal case of Willie Davis and the judgments in the criminal cases of Chad Davis and Trey Davis. The trial court also took judicial notice of the testimony in the criminal trials of Willie Davis and Chad Davis, over which the trial court had presided. No transcripts of either trial were offered into evidence, and Willie Davis objected to the trial court taking judicial notice of the testimony given at the prior trials without the transcripts being offered into evidence. The State then rested its case, calling no witnesses to testify.
Texas Rule of Evidence 201 sets forth the procedure for the trial court to take judicial notice of adjudicative facts. TEX.R. EVID. 201. Section (b) describes the kinds of facts that may be judicially noticed:
"A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned."
In order to be judicially noticed, a fact must be a matter of common knowledge, verifiable without the necessity of an assessment of the truth and veracity of an interested witness in a particular case. First National Bank of Amarillo v. Jarnigan, 794 S.W.2d 54, 61 (Tex.App.-Amarillo 1990, writ denied). Testimony given during a trial is necessarily subject to an assessment as to the truth of the testimony and the honesty or bias of an interested witness.
The existence of the prior testimony is not what was judicially noticed, but rather it was the substance of the testimony, and specifically the testimony of how the bus was used in connection with the murder that was relevant to the forfeiture proceeding.
Testimony adduced during a criminal trial cannot be "generally known within the territorial jurisdiction of the trial court" and therefore the testimony would necessarily have to be "capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned" under subsection (2). TEX.R. EVID. 201(b); Garza v. State, 996 S.W.2d 276, 279 (Tex.App.-Dallas 1999, pet. denied). Assertions made by an individual, even under oath, are generally not the type of facts capable of accurate and ready determination by a source whose accuracy cannot reasonably be questioned. Id. at 279-80.
A trial court may generally take judicial notice of its own records in a case involving the same subject matter between the same or practically the same parties. Gardner v. Martin, 162 Tex. 156, 345 S.W.2d 274, 276 (Tex.1961); Briones v. Solomon, 769 S.W.2d 312, 319 (Tex.App.-San Antonio 1989, writ denied); Escamilla v. Estate of Escamilla, 921 S.W.2d 723, 726 (Tex.App.-Corpus Christi 1996, writ denied).
However, testimony from a previous trial cannot be considered by the trial judge at a subsequent trial unless it is admitted into evidence at the subsequent proceeding. FH1 Fin. Serv., Inc. v. Debt Settlement Am., Inc., No. 10-06-00199-CV, 2007 WL 2325652 at *2, 2007 Tex.App. LEXIS 6502 at *4 (Tex.App.-Waco August 15, 2007, no pet.); Escamilla, 921 S.W.2d at 726 (); Traweek v. Larkin, 708 S.W.2d 942, 946-47 (Tex.App.-Tyler 1986, writ ref'd n.r.e.).
The trial judge's own memory of what the witness may have said at the prior proceeding is insufficient to substitute for an accurate and properly authenticated record of that testimony. Escamilla, 921 S.W.2d at 726. A fact is not capable of accurate and ready confirmation simply because a trial judge remembers that a witness testified to it in trial. Garza, 996 S.W.2d at 280. While a court may take judicial notice of the existence of the testimony in a co-defendant's trial, as the trial court did in this case, a court may not take judicial notice of the truth of the factual content of that testimony because its accuracy can reasonably be questioned. Resendez v. State, 256 S.W.3d 315, 324 (Tex.App.-Houston [14th Dist.], pet. granted).
A trial judge may not even judicially notice testimony that was given at a temporary hearing in a family law case at a subsequent hearing in the same cause without admitting the prior testimony into evidence. May v. May, 829 S.W.2d 373, 376 (Tex.App.-Corpus Christi 1992, writ denied); Wilson v. Wilson, 132 S.W.3d 533, 538 (Tex.App.-Houston [1st Dist.], pet. denied). Further, while a court may judicially notice the existence of an affidavit in its file, it may not take judicial notice of the truth of the factual contents contained therein. Jackson v. State, 139 S.W.3d 7, 21 (Tex.App.-Fort Worth 2004, pet. ref'd).
Accordingly, in order for testimony at a prior hearing or trial to be considered at a subsequent proceeding, the transcript of such testimony must be properly authenticated and entered into evidence. FH1 Fin., 2007 WL 2325652 at *2, 2007 Tex.App. LEXIS 6502 at *4; Briones, 769 S.W.2d at 319; Ex parte Turner, 478 S.W.2d 256, 258 (Tex.Civ.App.-Houston [1st Dist.] 1972, orig. proceeding).
We note that an exception has been created for probation revocation cases allowing a trial court to properly take judicial notice of the prior proceedings. Bradley v. State, 564 S.W.2d 727, 729 (Tex. Crim.App.1978); Barrientez v. State, 500 S.W.2d 474 (Tex.Crim.App.1973). That exception, however, does not apply to this forfeiture proceeding.
In this forfeiture action, the trial court improperly took judicial notice of the testimony in the criminal trial of Willie Davis because it was not even yet transcribed prior to the judge's ruling on the forfeiture. The record of the testimony in the trial of Chad Davis had been transcribed prior to the hearing on the forfeiture and was therefore available to be offered into evidence, but was not.1 Therefore, any testimony from those trials was not properly before the trial court at the forfeiture hearing and provides no evidence concerning the facts underlying the forfeiture action.
In this case, findings of fact and conclusions of law were timely requested, but were not filed. TEX.R. CIV. PROC. 296. However, no further request was made pursuant to Texas Rule of Civil Procedure 297. TEX.R. CIV. PROC. 297. As such, any complaint about the trial court's failure to make the findings are waived. TEX.R.APP. PROC. 33.1(a); Ogletree v. Glen Rose Indep. Sch. Dist., 226 S.W.3d 629, 633 (Tex.App.-Waco 2007, pet.). Where findings of fact and conclusions of law are not filed, we presume that the trial court made all the necessary findings to support the judgment. Ogletree, 226 S.W.3d at 633; $10,052.00 in U.S. Currency v. State, No. 2-04-307-CV, 2005 WL 1542657, 2005 Tex. App. LEXIS 5145 (Tex.App.-Fort Worth June 30, 2005, pet. denied); $162,950 in Currency of the United States v. State, 911 S.W.2d 528, 529 (Tex.App.-Eastland 1995, writ denied).
In a legal sufficiency review, "all of the record evidence must be considered in a light most favorable to the party in whose favor the verdict has been rendered, and every reasonable inference deducible from the evidence is to be indulged in that party's favor." Haggar Clothing Co. v. Hernandez, 164 S.W.3d 386, 388 (Tex. 2005); Formosa Plastics Corp. USA v. Presidio Eng'rs & Contractors, Inc., 960 S.W.2d 41, 48 (Tex.1998). If more than a scintilla of evidence supports the challenged finding, the no-evidence challenge fails. Formosa, 960 S.W.2d at 48. When the evidence offered to prove a vital fact is so weak as to do no more than create a mere surmise or suspicion of its existence, the evidence is no more than a scintilla and, in legal effect, is no evidence. Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex.1983).
When conducting a legal sufficiency review in a criminal case, we "determine whether the necessary...
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Tafel v. State
...refused to supplement the appellate record with something that was not before the trial court when it made its decision. Davis v. State, 293 S.W.3d 794, 798 (Tex. App.–Waco 2009, no pet.) (in a civil forfeiture, trial court erred in judicially noticing the record from the criminal trial bef......
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Tafel v. State
...refused to supplement the appellate record with something that was not before the trial court when it made its decision. Davis v. State, 293 S.W.3d 794, 798 (Tex. App.—Waco 2009, no pet.) (in a civil forfeiture, trial court erred in judicially noticing the record from the criminal trial bef......
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Tafel v. State
...refused to supplement the appellate record with something that was not before the trial court when it made its decision. Davis v. State, 293 S.W.3d 794, 798 (Tex. App.—Waco 2009, no pet.) (in a civil forfeiture, trial court erred in judicially noticing the record from the criminal trial bef......
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Tafel v. State
...refused to supplement the appellate record with something that was not before the trial court when it made its decision. Davis v. State, 293 S.W.3d 794, 798 (Tex. App.—Waco 2009, no pet.) (in a civil forfeiture, trial court erred in judicially noticing the record from the criminal trial bef......