Later courts went against this
Overruled on other grounds by Smith v. State, 1970 Tex. Crim. App. LEXIS 1366 (1970)
387 S.W.2d 396, 398 (Tex. Crim. App. 1965), overruled on other grounds by Smith v. State, 450 S.W.2d 618, 622
Distinguished
Distinguished by Kotlar v. State, 1986 Tex. App. LEXIS 12232 (1986)
Urban and McCaleb are distinguishable as both involve the introduction into evidence of the indictment of the ease presently under trial.
The opinion
WOODLEY, Judge
(dissenting).
The dissent of the writer on original sub-, mission was addressed in part to appellant’s contention that “presentment” is a distinguishable act from that of “filing” and that the statute refers to the “filing” of the indictment, whereas the indictment alleged that the bets were taken within a period of one year next preceding the presentment of the indictment.
In connection with this point appellant cited Flores v. State, 143 Tex.Cr.R. 382 , 158 S.W.2d 1012 .
The state’s motion for rehearing cites this case and others which sustain its contention that the filing of the indictment evidences the date of presentment.
Ex parte Leifeste, 127 Tex.Cr.R. 445 , 77 S.W.2d 675 , cited in Luna and Luna v. State, Tex.Cr.App., 387 S.W. 660 , sustains the state’s contention that an official file mark on a document serves as evidence of the fact of filing.
The state’s motion for rehearing should be granted, not only because of the erroneous holding that the file mark on the in *401 dictment was hearsay and of no weight as evidence, hut because no proof of the date the indictment was “returned”, “presented” or “filed” was required. The trial court was authorized to take judicial notice of such facts and date and instruct the jury as he did. Donald v. State, 165 Tex.Cr.R. 252 , 306 S.W.2d 360 ; Dunn v. State, 92 Tex.Cr.R. 126 , 242 S.W. 1049 ; Baker v. State, 79 Tex.Cr.R. 510 , 187 S.W. 949 .