Bradley v. State

CLINTON, Judge,

dissenting.

Though the Barrientez concept of “judicial notice” is not barred by statute, neither is it authorized by one. It is purely a judicially conceived notion transformed into fiat by written opinion. Without explica *663 tion of rationale, 1 the Court justified the concept of a trial court taking “judicial notice” of evidence introduced in a prior proceeding to support revocation of probation on a policy of convenience, viz:

“Certainly, 2 Judge Walker could take judicial notice of the evidence introduced in that prior proceeding. Are we to pretend that this judge was not present at the murder trial, and force the State to reproduce the same witnesses? We think not. Such a requirement would place an unreasonable burden on the State.”

In the several cases that have followed Bar-rientez, 3 only O’Hern v. State, supra in note 3, attempts a restatement of a policy consideration underlying its rule:

“It would be useless to have witnesses to appear before the same judge during the revocation proceeding when he had already heard their testimony when they were subjected to cross-examination on the same fact issue.”

Bradley I, supra in note 3, without pretension of rationale more candidly justifies the rule “in light of special considerations surrounding the revocation proceedings,” id., at 729. 4

Still, one working with the theory is left disturbed and unsettled by calling what Barrientez permits, a form of “judicial notice.” In the first place, “it is well settled that the scope of the exercise of the function of judicial notice is not coextensive with the personal knowledge of the individual judge. Personal knowledge is not judicial knowledge,” 1 Texas Practice 195-196, Ray, Law of Evidence (Third Edition) § 162. Secondly, where the fact qualifies for notice “the judge is justified in declaring the truth of the fact without evidence from the party” requesting him to do so, id. at 193. Only a casual hearing of variations on the same theme played by Barrientez and its progeny brings the realization that the tune is not “judicial notice.”

Bradley I pinpoints what the others imply. The trial judge stated for the record that he was relying on his personal knowledge. 5 As Mr. Ray makes clear, that is not judicial knowledge. Yet, even that knowledge was not spread upon the record of the revocation hearing. Thus, the Bradley I Court found itself compelled to require “for purposes of review, that the facts so noticed be apparent from the record,” id. at 731, and suggested alternative methods "to cure, for review process purposes, the failure of the record of the probation revocation hearing to reflect the testimony noticed therein,” id. at 732. None of this sounds like “judicial notice” to one who has listened all his professional life to stalwarts such as McCormick and Ray orchestrate it. Whatever personal knowledge of a trial judge evidenced by a record of testimony may be, judicial notice it is not.

Moreover, pretending that it is, raises a warning signal that cannot be ignored and must be stilled. As Mr. Ray points out, 1 Texas Practice at 199:

“... While there appears to be no Texas cases directly in point, the weight of authority elsewhere clearly supports the *664 view that when judicial notice of a fact has been taken, evidence to the contrary is not admissible ...”

Unfairness could be no more fundamental than denying to a probationer the right to challenge, to demolish, to rebut judicially noticed testimony against him. Of course, we do not reach that question here for appellant, though objecting to the trial court’s taking notice, did not proffer competing testimony in his own behalf. But that the problem lurks about for accosting in the future is enough to suggest caution in providing a certain opportunity for the confrontation.

Rather than a forced drill to the beat of “judicial notice” the Court should find a different drummer. The procedure of holding simultaneously the trial on indictment and hearing on motion to revoke, suggested by Judge Dally in Bradley I, at 733, may not be feasible in a particular case. If not, then provisions of Articles 3720, 6 and 3731a, 7 V.A.C.S. authorize the State to tender as evidence of its “occurrence and existence,” Article 40.09, § 4, 8 V.A.C.C.P., portions of the transcription of notes taken by the official court reporter 9 of testimony deemed relevant to the motion to revoke. 10 Such reproduced testimony has been held admissible. Oklahoma R. Co. v. Boles, 30 Okl. 764 , 120 P. 1104 (1912); see also 1A Texas Practice 470, Ray, Law of Evidence (Third Edition) § 1278. 11 In this way problems from the unorthodox resort to “judicial notice” will be avoided. 12

I respectfully dissent to continuation of what is manifestly an awkward procedure fraught with existing and potential difficulties.

PHILLIPS, J., joins.

. Barrientez finds Hilton v. State, 443 S.W.2d 844, n.1 (Tex.Cr.App.1969), “in point.” Despite a dissenting caution for hesitation by the Court “before placing its stamp of approval on such procedure as here utilized,” id., at 847 , the Court merely applied the abuse of discretion standard and, utterly without explanation, found none.

. It is sometimes said that a declaration beginning "certainly,” "surely,” or "plainly” is not all that much so, for if it were the basis for the declaration could be just as easily stated. (All emphasis is supplied throughout by the writer of this opinion unless otherwise indicated.)

. E. g., 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) and Bradley v. State, 564 S.W.2d 727 (Tex.Cr.App.1978) “Bradley I.”

. In note 1 of its opinion the Court rejects criticism that the rule goes beyond proper limits of judicial notice and concludes, “The rule of Barrientez . . . now has an established place within the doctrine of judicial notice."

. “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 . . .,” Bradley I, supra at 729.

. Article 3720 permits certified copies of records of courts of this State to be admitted as evidence where the original records would be admissible.

. Article 3731a makes admissible any official written record, or part of record, made by an officer of this State or of any governmental subdivision thereof upon proper notice and when attested, certified and authenticated as provided therein.

. “. .. A transcription of the reporter’s notes when certified to by him and included in the record shall establish the occurrence and existence of all testimony. ..."

. An official court reporter has been legislatively designated “a sworn officer of the court” by Article 2321, V.A.C.S., and as a notary public holds an office authorized by the Constitution of Texas, Article 4, § 23 and, is a “public officer,” Lawyers Surety Corp. v. Gulf Coast Investment Corp., 410 S.W.2d 654, 657 (Tex.Civ.App.-Tyler 1967, writ ref’d n. r. e., 416 S.W.2d 779 , 1969), whose appointment, duties and responsibility are extensively regulated by law, e. g., Article 5949, V.A.C.S., and whose removal from office is legislatively provided by Article 5988, V.A.C.S.

. Article 2324, V.A.C.S. mandates that each official court reporter shall upon request:

“Preserve all shorthand notes taken in said court for further use . .. and furnish to any person a transcript of all such evidence . . . or any portion thereof as such person may order....”

. The rationale of ancient opinions holding that a transcript of stenographic notes is not admissible as documentary evidence, see 32 C.J.S. 853-854, Evidence § 652, is no longer valid, and the more modern view is that the transcription may be made admissible by statute when certified and verified as required, ibid.

. The proposal to utilize the official written record procedure is based, of course, on the premise that any confrontation problem does not exist or has been resolved and also with the understanding that provisions of Article 39.01, V.A.C.C.P. are not implicated since the record is being used in a probation revocation hearing rather than “the trial of such defendant’s criminal case.” Moreover, the probationer remains free to offer other portions of recorded testimony and, indeed, to call the trial witnesses for such further examination deemed advisable.