# Bradley v. State > Court of Criminal Appeals of Texas · November 26, 1980 · 608 S.W.2d 652 URL: https://www.frixlaw.com/law-library/cases/9772111 ## Case - **Full name:** Rickey Lee BRADLEY, Appellant, v. the STATE of Texas, Appellee - **Court:** Court of Criminal Appeals of Texas - **Decided:** November 26, 1980 - **Citations:** 608 S.W.2d 652; 1980 Tex. Crim. App. LEXIS 1461 - **Precedential status:** Published - **Opinion:** Dissent by Onion - **Judges:** Roberts, Onion, Clinton, Dally, Phillips - **Cited by:** 69 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9772111 ## Opinion text ONION, Presiding Judge, dissenting. Sires who beget unnatural creatures of decisional law never seem to lose their fatherly or protective instincts regardless of the continuing confusion, delay and injustice that follows in the ever-growing wake of their offspring. The instant case presents an interesting example of this fact. The revocation of probation in this cause occurred on September 2, 1976. Here, over four years later, we are still trying to unravel the questions surrounding the revocation merely because of the trial court’s use of the “judicial notice” hatched by Barrientez v. State, 500 S.W.2d 474 (Tex.Cr.App.1973). When this cause was abated on original submission, 564 S.W.2d 727 (Tex.Cr.App.1978), I wrote in my dissent that: “The chickens hatched by Barrientez v. State, 500 S.W.2d 474 (Tex.Cr.App.1973), are coming home to roost.” I would now add that the chickens have been roosting so long the chicken house needs to be cleaned out and Barrientez, along with other refuse, thrown away. In Barrientez, the majority of this court held that in a revocation of probation proceeding the trial judge could, over objection, take “judicial notice” of the testimony *657 of a prior trial conducted before him for the purpose of supporting the allegations of the revocation motion. This was done although it was well established that while a court may take judicial notice of its own orders in a previous hearing between the same parties on the same subject, the court cannot take judicial notice of the testimony heard before it on another trial and enter independent judgment thereon. See the dissenting opinion in Barrientez at p. 477 and cases there cited. Further, it was noted in the dissent that the majority in Barrientez failed to explain just how this court could review the sufficiency of the evidence in a probation revocation hearing when the trial court takes “judicial notice” of the testimony of a prior trial and that “testimony” is not part of the record on appeal from the revocation order. Further, Barrientez failed to explain the lack of a predicate required by Article 39.-01, V.A.C.C.P., to authorize the use of testimony of a witness from a prior case. Since the Barrientez opinion was also silent as to the effect of the holding upon the effective assistance of counsel at the revocation hearing, the dissent raised the question of whether the Barrientez rule applied unless defense counsel was the same at the prior trial and the revocation hearing. The only reason given for the establishment of the new rule in Barrientez was the unreasonable burden upon the State to produce the same witnesses at the revocation hearing as at the prior trial. 1 Barrientez was followed in cases like Stephenson v. State, 500 S.W.2d 855 (Tex.Cr. App.1973); O’Hern v. State, 527 S.W.2d 568 (Tex.Cr.App.1975); Green v. State, 528 S.W.2d 617 (Tex.Cr.App.1975); Bradley v. State, 564 S.W.2d 727 (Tex.Cr.App.1978); and Cleland v. State, 572 S.W.2d 673 (Tex. Cr.App.1978); Torres v. State, 595 S.W.2d 537 (Tex.Cr.App.1980) (panel opinion); Bailey v. State, 543 S.W.2d 653 (Tex.Cr.App.1976); Haile v. State, 556 S.W.2d 818 (Tex.Cr.App.1977); Broussard v. State, 598 S.W.2d 873 (Tex.Cr.App.1980) (En banc). In Barrientez and Green and others, it was obvious that what the majority was doing was looking to appellate records of trials resulting in convictions which were independently appealed to this court to see if there was testimony there to support the revocation of probation where the testimony “judicially noticed” was not in the appellate record of the appeal from the order revoking probation. The opinions in Barrientez and Green , etc., were silent as to such action despite the fact that in Cain v. State, 468 S.W.2d 856, 861 (Tex.Cr.App.1971), this court, speaking through Judge Roberts, wrote: “The fact that in the event of an appeal this Court may find another appellate record which may supply the deficiency in the predicate is not controlling. The rule announced in 23 Tex.Jur.2d, Evidence, § 29, p. 51, was never intended to be used in this fashion.” It is clear that this court cannot look to another appellate record to supply any deficiency in proof in a case under consideration on appeal. See 1 Ray, Texas Practice, Law *658 of Evidence, § 186, p. 236. Cain v. State, supra; Barrientez v. State, supra (dissenting opinion), and authorities there cited. In Bradley I at p. 732, the majority finally came out of the closet and, without admitting its past actions, placed its stamp of approval upon such procedure by saying that if the testimony “judicially noticed” in a revocation proceeding is properly identified in the appellate record then this court will take “judicial notice” of such testimony if it is found in another appellate record before this court. This, of course, is not “judicial notice.” Thus, we have improper judicial notice piled upon improper judicial notice. And finally Cleiand v. State, supra, a panel opinion, made no bones about the fact that the testimony in another appellate record had been examined to determine the sufficiency of the evidence to support a revocation order where “judicial notice” had been taken of such testimony but where it had not been included in the appellate record before this court on the appeal from the order revoking probation. Bradley I, however, presented another problem. The testimony “judicially noticed” was from a trial which apparently had resulted in a hung jury. The testimony was not in the record before this court, and since the earlier trial had resulted in a hung jury there was no other appellate record before this court to examine for such “judicially noticed” testimony. Faced with this situation, the majority wrote: “We abate this appeal with directions that the State have reduced to writing, and thep 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. 2 The Bradley revocation occurred on September 2, 1976. The appellate record was filed here on October 12,1977. The opinion abating the appeal was handed down en banc on April 5, 1978 and the motion for leave to file for rehearing was denied May 3, 1978. Since the abatement the record reflects that a statement of facts was filed in this court of a prior murder case. For some unexplained reason, the reinstated appeal was referred to a panel rather than to the court en banc. On November 8, 1978, Panel No. 2, 4th Quarter, in a per curiam opinion again abated the appeal because the said statement of facts was labeled to be that of trial court Cause No. F-76-1545LJ 3 and so certified to be by the court reporter and trial judge, and the record showed that the testimony the judge took “judicial notice” of was that in trial court Cause No. F-76-1545-NJ. The per curiam panel opinion again requested the testimony of which the trial judge had taken “judicial notice.” On December 20, 1978, the trial court conducted a hearing stating it was doing so at the request of the Court of Criminal Appeals in order to clarify the cause number. Of course, nothing in the opinion of November 8,1978 mentioned a hearing. Be that as it may, a hearing was held, but it did not serve to remove all confusion, and the record of the brief hearing did not reach this court until January 17,1980, more than a year later. At the hearing Sandra Day, a court reporter, testified she took and transcribed the testimony “in a prior hearing” on July *659 6,1976, involving Rickey Bradley, whom she identified as being present in the courtroom. She was then asked: “Q. ... Do your notes there indicate what the cause number in that cause was in which you took the testimony? “A. Yes. The first cause number that the Judge says, F-76-1545-NJ.” Thereafter, she identified State’s Exhibit No. 1 as the statement of facts in said "prior hearing.” Said exhibit was admitted into evidence over objection. She then admitted the cause number on said exhibit “F-76-1545-LJ” was not correct and should have read “F-76-1545-NJ.” The reporter then identified State’s Exhibit No. 2 as a certification which she had signed. The State then offered the “top portion” of State’s Exhibit No. 2, and the objection was sustained. The bottom portion of State’s Exhibit No. 2 was never offered or admitted, though the trial judge later made reference to the bottom portion of said exhibit as containing his findings. Neither State’s Exhibits Nos. 1 or 2 of said hearing is in the record before this court. Whether State’s Exhibit No. 1 is the same as the statement of facts filed in this court on July 20, 1978 marked as Cause No. F-76-1545-LJ, we have no way of knowing. Under the circumstances, it is not possible to compare said State’s Exhibit No. 1 with the statement of facts received earlier. Nevertheless, despite the condition of the record, the appeal has been reinstated by the majority who have now decided to utilize the statement of facts received earlier in passing on the evidence to sustain the allegations of the revocation motion without mention of the absence of the exhibits. It is observed that the revocation motion in its only count alleged that the appellant violated his probationary conditions by causing the death of the named deceased “by hitting him on the head with a hammer.” There was never an attempt to amend said motion. The statement of facts from the prior murder trial 4 apparently used by the majority, shows the medical examiner testified that the cause of the death of the deceased was a stab wound to the chest inflicted by a knife. The appellant testified the deceased, his roommate, who had been drinking heavily, attacked him and began choking him and that he (appellant) stabbed the deceased with a knife, but that the deceased gained control of the knife and a board and continued to attack, and that in self-defense he (appellant) picked up a hammer and hit the deceased. There was no skull fracture but tears on the scalp and hands of the deceased were consistent with blows by a hammer according to the medical examiner although these blows were not the cause of death. Even if the statement of facts before this court can now be considered, it does not support the allegations of the revocation motion that the appellant killed the deceased by hitting him on the head with a hammer. The majority, however, holds that where death resulted from a different weapon than that alleged no variance is presented between the pleading and proof in a revocation hearing where defendant admitted using both weapons even though the weapon alleged did not cause the death. This is pure baloney. In Bell v. State, 196 S.W.2d 923 (Tex.Cr.App.1946), it was held that where the indictment avers means or instrument with which the killing was accomplished, the means or the instrument must be proved as alleged. And where the indictment alleged that he did “strike, wound and bruise” the prosecutrix with a “gun” with intent to murder her, but the State’s evidence showed that the defendant struck the prose-cutrix one blow with the stock of a gun which had been broken from the barrel of a gun, and which was merely equivalent to a piece of wood, the court should have given defendant’s requested jury instruction on the ground of variance. See also Ferguson *660 v. State, 4 Tex.App. 156 (1878). Still further, allegations in an indictment of means by which assault was committed, though unnecessary, must be proven substantially as alleged. Burrell v. State, 526 S.W.2d 799 (Tex.Cr.App.1975). Allegations in a motion to revoke probation need not strictly comply with requirements of an indictment but should fully inform the probationer so that he and his counsel will know what he will be called upon to defend against. Wilcox v. State, 477 S.W.2d 900 (Tex.Cr.App.1972); Grantham v. State, 547 S.W.2d 286 (Tex.Cr.App.1977). Leyva v. State, 552 S.W.2d 158 (Tex.Cr.App.1977); Peoples v. State, 566 S.W.2d 640 (Tex.Cr.App.1978); Chacon v. State, 558 S.W.2d 874 (Tex.Cr.App.1977). See also Kuenstler v. State, 486 S.W.2d 367 (Tex.Cr.App.1972); Dempsey v. State, 496 S.W.2d 49 (Tex.Cr.App.1973); Diaz v. State, 516 S.W.2d 154 (Tex.Cr.App.1974); Davila v. State, 547 S.W.2d 606, 609 (Tex.Cr.App.1977). This proposition of law was cited by the majority as supporting the holding that there was no fatal variance between the allegations of the revocation motion and the proof offered under the circumstances. This proposition cannot be stretched that far. It does not mean that the State may allege one offense in the revocation motion as a violation of probationary conditions and prove a different offense or prove the same offense but by different means than alleged. In Pickett v. State, 542 S.W.2d 868, 870 (Tex.Cr.App.1976), this court stated: “Probation may not be revoked upon a finding of any violation of the law other than that alleged or necessarily included within the allegations of that alleged in the motion to revoke. Franks v. State, Tex.Cr.App., 516 S.W.2d 185 ; Ford v. State, Tex.Cr.App., 488 S.W.2d 793 .” 5 Thus, the holding of the majority in this regard is clearly erroneous. The difficulties with the majority’s opinion, however, do not here cease. On original submission the appellant contended that there was no showing that he was represented by the same counsel at the prior trial and the revocation hearing and urged the Barrientez rule would not thus apply. Subsequent to abatement the trial judge took judicial notice that the attorney for the appellant was the same and the majority notes that a docket sheet was introduced into evidence. The questionable statement of facts now considered by the majority both reflect that an attorney by the same name represented the appellant at both proceedings. The majority finds the record reflects the appellant was represented by the same counsel at both proceedings, but declares it is unnecessary as a matter of law to decide whether the counsel must be the same at both proceedings under the Barrientez rule. Despite such disclaimer, the majority proceeds to discuss and in effect decide such question, therefore influencing and prejudicing future decisions by suggesting that such a requirement would impose an inflexible requirement upon the Barrientez rule. The Barrientez rule is a house built on shifting sands and is already loose as a goose. Nevertheless, the majority states: “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.” 6 It is thus interesting to note that at the time of the revocation hearing the testimony of which the trial judge took “judicial notice” was untranscribed and thus not available to the appellant’s counsel. How in Texas’ green earth is it possible that due process and the effective assistance of counsel are produced where a different counsel *661 for the defense at the revocation hearing is confronted with the court taking “judicial notice” of an untranscribed record as evidence supporting the revocation? 7 The majority states that even though both parties agreed that the Barrientez rule required the same attorney in both proceedings it could not agree. Certainly as noted by the majority the Barrientez opinion did not mention such requirement despite the dissent on this very point. In Stephenson v. State, 500 S.W.2d 855, 856 (Tex.Cr.App.1973), shortly after Barrientez, it was stated in applying the Barrientez rule that “... the same attorney who had by appointment represented [Stephenson] represented him at the revocation of probation hearing." The majority in the instant case then states that this writer in a concurring opinion in O’Hern v. State, 527 S.W.2d 567, 570 (Tex.Cr.App.1975), incorrectly stated that such a requirement was a part of the Barrientez rule. If this writer was incorrect, it is observed that within a month thereafter Judge Roberts, the author of the Barrientez opinion and of the instant case, wrote in a concurring opinion in Green v. State, 528 S.W.2d 617, 619 (Tex.Cr.App.1975): “I concur in the result reached in this case. Although it does not appear from the record that counsel at the revocation hearing was the same as counsel at the trial of the aggravated robbery charge, such fact was admitted by the parties at oral argument. The requirements of Barrientez v. State, 500 S.W.2d 474 (Tex.Cr.App.1973), for the introduction of this testimony are thus satisfied.” (Emphasis supplied.) 8 See also dissenting opinion in Green . In Bailey v. State, 543 S.W.2d 653 (Tex.Cr.App.1976), Judge Odom in applying the Barrientez rule stated for the court: “In the case at bar, the revocation hearing and the trial for the offense of felony theft occurred before the same judge on the same day. Appellant was also represented by the same counsel during the entire course of the proceedings. Green v. State, Tex.Cr.App., 528 S.W.2d 617 ; Barrientez v. State, Tex.Cr.App., 500 S. W.2d 474 . It was not improper for the trial court to revoke the appellant’s probation on the basis of his guilty plea to the offense of felony theft .... ” (Emphasis supplied.) In a panel opinion, Judge Roberts speaking for the panel, stated in Haile v. State, 556 S.W.2d 818, 820 (Tex.Cr.App.1977): “We are confronted with a situation where the motion to revoke was heard one day after a jury convicted the appellant of the offense upon which the motion to revoke was based. The trial judge in both cases was the same. The same attorney represented the appellant in both cases. “These facts bring us within the scope of our holdings in Barrientez v. State, 500 S.W.2d 474 (Tex.Cr.App.1973); O’Hern v. State, 527 S.W.2d 568 (Tex.Cr.App.1975), and Green v. State, 528 S.W.2d 617 (Tex.Cr.App.1975) ....” In every case where the Barrientez rule has been applied by this court the attorney was the same at both the prior trial and the revocation hearing whether the opinions mentioned that fact or not. In view of the above, is it any wonder both parties in the instant case agreed the attorney had to be the same at both proceedings? The majority concludes that the record, as they review it, shows that the same attorney represented the appellant at both proceedings, but reaches out to indicate that such a requirement is not necessary for the Barrientez rule to be applied. Can we really say that appointed counsel for a defendant in a revocation proceeding whom the majority has even said is not entitled to a ten days’ preparation period, *662 Hill v. State, 480 S.w.2d 200 (Tex.Cr.App.1971), need not be the same attorney at the prior hearing or trial before the Barrientez rule can be applied? Despite this court’s lip service to due process in revocation proceedings, may an attorney be appointed to represent a defendant at a revocation of probation proceeding and without ten days to prepare be forced to a hearing where he is confronted with “judicial notice” of testimony of a prior trial or hearing by the trial judge over which the trial judge states he presided and of which the attorney has no personal knowledge and which at the time is untranscribed and not available to the appointed counsel and perhaps not available even on an appeal on original submission? Horsefeathers. Hogwash. Judge Dally suggested in Bradley I that the revocation hearing be held at the same time as the trial on the merits of the penal offense alleged as a violation of probationary conditions in order to avoid the Barrien-tez rule. The feasibility of such suggestion may present some problems. There may well be alleged violations of probationary conditions which are not related to the charge on the said trial on the merits. Evidence as to such probationary conditions, as well as defensive matters, would have to be presented out of the presence of the jury if a jury is the trier of the facts at the trial on the merits, and objections and other remarks to the court would have to be closely guarded not to reveal to the jury that another hearing was being conducted along with the trial on the merits including extraneous offenses and matters. What this court has done is to create or imagine a difficulty where there was no difficulty and then offer an unorthodox solution to the dreamed of difficulty-the unreasonable burden on the State to reproduce witnesses from a prior trial. The common witnesses in a probation revocation proceeding are the clerk of the court and probation officers who are usually readily available to the court, and this is particularly true where the violations alleged are the failure to pay court costs, supervisory fees, etc., and the failure to report to the probation officer as required. Where a violation of a penal offense has been alleged as a probationary violation, and there has been a prior trial on merits, where is the unreasonable burden on the State to reproduce the witnesses from the prior trial? Is there any greater burden on the State than if this court reversed a conviction and a second trial ensued? Is there any greater burden if the trial judge has a common cold and cannot preside at the trial on the merits and the witnesses must be re-produced because of a continuance or postponement? Of course not, and an individual’s liberty is involved in both proceedings. The only difference is the attitude of a majority of this court to probation revocation proceedings. The truth of the matter, as most members of the bench and the bar know, is that where there has been a prior trial and conviction for the offense alleged as the basis of the revocation the defense is not going to insist upon the State reproducing their witnesses from the prior trial at the revocation proceedings. Prior to Barrientez the State recalled only such witnesses as were necessary to sustain their lesser burden of proof in revocation proceedings or frequently entered into stipulations of facts or entered an agreed statement of facts to be considered by the court where there had been a prior trial on the very offense the defendant was alleged to have committed. The use of a Frankenstein-type of “judicial notice” which is not judicial notice at all is not necessary for the effective prosecution of revocation of probation proceedings. The trial courts and prosecutors are better advised to spend a few more minutes with revocation proceedings and foreclose all matters of possible error. Why spend years in litigation where minutes will do the job? I dissent. . This reasoning was reiterated in footnote # 3 of O’Hern v. State, 527 S.W.2d 568 (Tex.Cr.App.1975). The majority in the instant case on original submission, Bradley v. State, 564 S.W.2d 727 (Tex.Cr.App.1978), recognized the shortcomings of the basis for the Barrientez rule and tried to find justification for the rule, not on the original basis, but “in light of special considerations surrounding the revocation proceedings,” at p. 729. Such “justification” merely listed some of the inroads made previously upon the procedural safeguards in revocation hearings as though one inroad justified another, while at the same time paying lip service to the proposition that due process is applicable to revocation proceedings. Such “justification” is simply more of the “anything goes” approach so long as it is a revocation of probation proceeding that is involved. See the dissenting opinions in Casarez v. State, 468 S.W.2d 412, 414 (Tex.Cr.App.1971); Barnes v. State, 467 S.W.2d 437, 441 (Tex.Cr.App.1971). Although an individual’s liberty is involved, the majority’s attitude towards revocation of probation as a lesser and insignificant proceeding prompts some prosecutors and some trial courts to constantly look for shortcuts in handling the same, sometimes to save five, 10 or 15 minutes, but which results in delays of years. Today’s case bouncing around in the judicial system for four years is a good example. . The majority apparently felt that this abatement was a ticket for this trip and for this trip only. It wrote: “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 abate-ments by this Court is already a considerable burden on the criminal justice system, an 1 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.” It will be interesting to await the arrival of another appeal in the same posture as Bradley I. . F-76-1545-LJ is shown to be the trial court number of the revocation of probation proceedings. . Neither the indictment nor its allegations in other form are in the appellate record before this court. . It is observed that in Cleland v. State, 572 S.W.2d 673, 675 (Tex.Cr.App.1978), Judge Roberts, speaking for the panel quoted the above portion of Pickett with approval. . Of course, it is not the proceedings that are judicially noticed but the testimony introduced therein. . The record in the instant case before us shows that the statement of facts considered by the majority was certified and approved long after the revocation hearing. The record does not otherwise show it was available to counsel at the time of the revocation. . This concurrence was necessary because the majority opinion in Green failed to mention that the attorney representing Green was the same at both proceedings. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9772111. Public record. Not legal advice.