author:
ODOM, Judge. DALLY, Judge, ONION, Presiding Judge, DOUGLAS, Judge,
      PHILLIPS, Judge,

text:
    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.
   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 Hon- or, 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 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 ev-identiary 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. Whisemnt 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 required because the defect went to the order revoking probation, a prerequisite to and the foundation for the sentence. Thus, the defect raised in that appeal could not have been corrected without setting aside the judgment of revocation and subsequent sentence. On remand, however, no new hearing was required. It was sufficient for the trial court to enter new orders and pronounce sentence. Garcia v. State, Tex.Cr.App., 499 S.W.2d 126.

The issue here, as distinguished from Garcia, goes not to the judgment itself, nor to the determination of trial issues (the facts judicially noticed were known to the fact finder), but rather the matter goes strictly to the review process, i.e., to the ability of this Court to dispose of the issue. See generally, Ex parte Jones, Tex.Cr.App., 562 S.W.2d 469. Consequently, we conclude the judgment need not be reversed as it was in Garcia v. State, Tex.Cr.App., 488 S.W.2d 448. In Hester v. State, Tex.Cr.App., 535 S.W.2d 354, it was necessary to abate the appeal and direct the trial judge to reduce to writing his findings on the disputed fact issues on the issue of the voluntariness of the defendant’s confession raised under Art. 38.22, Sec. 2, Y.A.C.C.P. That abatement was required in order that this Court could finally dispose of the appeal. Cf. Lang v. State, Tex.Cr.App., 538 S.W.2d 121; Sheeley v. State, Tex.Cr.App., 530 S.W.2d 108. In the instant case we likewise conclude that abatement is necessary in order that a proper, final disposition of the issue of the sufficiency of the evidence raised by appellant may be had.

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 abatements by this Court is already a considerable burden on the criminal justice system, and 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.

In Cartwright v. State, Tex.Cr.App., 527 S.W.2d 535, the practice for presenting reversible error on appeal for violation of certain provisions of Art. 40.09, Y.A.C.C.P., was changed. In Ex parte Jones, 562 S.W.2d 469 it was made clear that the change in practice effected in Cartwright,. in that it was accomplished as a matter of judicial policy and went strictly to the review process, would be given prospective effect only. Much earlier, in Butler v. State, 33 Tex.Cr.R. 232, 26 S.W. 201, the practice for presenting a proper statement of facts on appeal was described as then provided for in the rules of the Court. Although the record in Butler was not in compliance with those rules, the record was considered, with the announcement, “Hereafter such violations of the rules [for preparing the statement of facts] will simply be met by this court’s refusing to consider the statement of facts for any purpose.” That rule for presenting matters for review was announced as a prospective rule, created by the Court in its discretion, to govern consideration of future appeals brought before it. In a like spirit we today indicate the following alternatives that should be followed in future cases to avoid the situation that in this case necessitates an abatement. We do not, however, lay these down with the force of an ironclad mandate.

The defect to be avoided or cured is the failure of the record to reflect the fact or facts judicially noticed by the trial court. The defect may be avoided in the first instance by precisely reciting such facts for the record or placing them in the record. For judicial notice of such facts as here considered, this may be done by placing the transcribed court reporter’s notes, appropriately identified, into the record, as was done in O’Hern v. State, Tex.Cr.App., 527 S.W.2d 568, or, if the matter is not excessively long, by reading the testimony judicially noticed into the record, as was done in Stephenson v. State, Tex.Cr.App., 500 S.W.2d 855.

At least three methods are available to cure, for review process purposes, the failure of the record of the probation revocation hearing to reflect the testimony judicially noticed therein, should some issue resting on that testimony, such as the sufficiency of the evidence, be raised in the probationer’s appeal brief. These depend, however, on a sufficient identification at the revocation hearing of the trial proceedings judicially noticed. If such trial proceedings are clearly identified, and if the facts so noticed are necessary for disposition of an issue raised on the appeal, one of the following methods may be “followed, according to the circumstances.

If the criminal trial judicially noticed, resulted in an appeal to this Court, and if the record in that appeal contains transcribed court reporter’s notes reflecting the testimony judicially noticed, or otherwise reflects that testimony, it will be sufficient for the State to cite and rely on that record of this Court in its reply brief. We will judicially notice the record of the same testimony noticed by the trial court. In order to do so, however, the record of the revocation hearing must clearly reflect the precise matter judicially noticed.

If there was no appeal of the criminal trial, or if it was appealed but the record therein does not reflect the testimony judicially noticed, it will be necessary for the State to produce the record of the judicially noticed testimony in its entirety for inclusion in the record of the probation revocation appeal. This must be done while the case is still before the trial court, as was done with a State’s exhibit necessary to sustain the State’s burden of proof for enhancement of punishment in Almand v. State, Tex.Cr.App., 536 S.W.2d 377, which exhibit was introduced at trial but was omitted from the record as originally approved. The same, procedure was followed by the State to supply a missing indictment in Guzman v. State, Tex.Cr.App., 521 S.W.2d 267, and a missing transfer order in Ellis v. State, Tex.Cr.App., 543 S.W.2d 135. Again, though, the matter so presented for a supplemental record must be sufficiently identified at the revocation hearing as being judicially noticed, in order that the identity of the two will be apparent from the record before this Court.

Finally, the parties may agree, with the approval of the trial court, to a brief statement of the facts judicially noticed, under Article 40.09(14), V.A.C.C.P. Compare the practice under Article 759a, Sec. 1(E), V.A.C.C.P. (1925), applied in Hilliard v. State, Tex.Cr.App., 401 S.W.2d 814.

In the instant case the matter was identified at the revocation hearing as the testimony heard by Judge Zimmerman of Criminal District Court No. 3 of Dallas County on July 6, 1976, in Cause No. F-76-1545-NJ, the State of Texas vs. Rickey Lee Bradley. This was sufficient identification and the record ordered on abatement of this appeal should reflect its identity with that trial identification. We abate this appeal with directions that the State have reduced to writing, and then 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.

It is so ordered.

VOLLERS, J., not participating.

DALLY, Judge,

concurring.

I concur in the result reached by the majority because I believe it is a fair resolur tion of this appeal where the parties have relied upon former decisions of this Court. In the future I would follow the reasoning in Presiding Judge Onion’s dissenting opinion because I do not believe that testimony in another proceeding is the proper subject of judicial knowledge.

I would suggest a procedure that would avoid the problems raised in this appeal. When a pending motion to revoke probation alleges as a ground for revocation an offense and that offense is also alleged in an indictment, the court should announce prior to trial on the indictment that it will at the same time consider that evidence on the ground for revocation in the motion to revoke. See for example, Rodriquez v. State, 552 S.W.2d 451 (Tex.Cr.App.1977), in which the procedure suggested was used.

ONION, Presiding Judge,

dissenting.

The chickens hatched by Barrientez v. State, 500 S.W.2d 474 (Tex.Cr.App.1973), are coming home to roost. Instead of putting an end to the mounting problems created by Barrientez and its progeny by overruling Barrientez, the majority warmly embraces this erroneous rule, and in an apologia, seeks to shore up the rule in the light of the circumstances of the instant case. It abates the appeal to allow the State to supplement the record by including the testimony from a prior trial record of which the trial judge took “judicial notice” in this revocation proceeding but which was never included in the record in the first place. The State is thus allowed to re-open its case and to correct its mistake by abatement of appeal.

On October 16,1975 the appellant entered a plea of guilty before the court, after waiving trial by jury, to the offense of burglary of a habitation. His punishment was assessed at six (6) years’ imprisonment, but the imposition of the sentence was suspended and he was placed on probation. Among the probationary conditions imposed was the requirement that appellant “(a) Commit no offense against the laws of this or any other state or the United States.”

On January 27, 1976 the State filed a motion to revoke probation alleging “on or about the 25th day of January, 1976, in Dallas County, Texas, Rickey Lee Bradley did then and there intentionally and knowingly cause the death of an individual, Dwaine Barnes, by hitting him in the head with a hammer.”

On September 2, 1976 a hearing was conducted on said revocation motion, to which the appellant pled “untrue.” The court then announced the burden was upon the State and authorized it to proceed. The record then reflects:

“MR. DAVIS (Assistant District Attorney): 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.
“MR. SUMNER: Your Honor, I object to the Court taking judicial notice and ask that the State put on its ease in order to prove up the grounds to revoke his probation.
“THE COURT: On what grounds do you object to my taking notice?
MR. SUMNER: 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, which I think the law permits me to do. Do you rest?
“MR. DAVIS: The State rests.
“MR. SUMNER: The Defense rests, Your Honor.”

Both sides then closed and the court, without more, revoked probation. Sentence was imposed and notice of appeal was given.

The appellate record as prepared contained no testimony from the said Cause No. F-76-1545-NJ or other records and there is nothing showing what testimony the trial judge took “judicial notice” of, whether the deceased in said cause was the same deceased as alleged in the revocation motion or whether the offense occurred during the probation period.

After appellant filed his appellate brief in the trial court in accordance with Article 40.09, V.A.C.C.P., the trial judge conducted a hearing on September 9, 1977 to supplement the record, over the objection of appellant, to show that the defense attorney in said Cause No. F-76-1545-NJ was the same attorney for the appellant at the revocation proceedings. The docket sheet from Cause No. F-76-1545-NJ was introduced. It noted Steve Sumner as defense counsel, who was also counsel at the revocation hearing.

In three related grounds of error appellant urges that the trial judge improperly took judicial notice of the facts upon which the probation was revoked, that the evidence was insufficient to justify revocation, and that even if Barrientez v. State, 500 S.W.2d 474 (Tex.Cr.App.1973), is applicable, its requirements were not here met since there was no proper showing that the defense counsel were the same at the prior trial and at the revocation hearing.

In Barrientez v. State, supra, the majority extended the rule of judicial notice by permitting a trial judge in a revocation of probation hearing to take judicial notice of testimony offered at a prior trial over which the same trial judge presided.

The rule adopted in Barrientez was contrary to the long standing holdings that a trial judge may take judicial notice of its previous orders, records, et.c., but he cannot take judicial notice of testimony heard before him on another trial and enter independent judgment thereon. Scott v. Clark, 38 S.W.2d 382 (Tex.Civ.App.—Austin, 1931); Grayson v. Rodermund, 135 S.W.2d 178 (Tex.Civ.App.—Austin, 1939); Entrekin v. Entrekin, 398 S.W.2d 139 (Tex.Civ.App.—Houston, 1966); Ex parte Turner, 478 S.W.2d 256 (Tex.Civ.App.—Houston [1st Dist.], 1972), no writ history.

“ . . . [i]t 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 . . . The judge may personally know a fact of which he cannot take judicial notice ... If the judge has personal knowledge of a fact not judicially known the proper way to make use of it is for him to take the stand as a witness and testify to what he knows . . .” Texas 'Practice, 1 McCormick & Ray, 2nd Ed., Evidence, § 152, p. 1972. See also Jackson v. State, 70 Tex.Cr.R. 582, 157 S.W. 1196 (1913); Lerma v. State, 81 Tex.Cr.R. 109, 194 S.W. 167 (Tex.Cr.App.1917).

Without discussing these holdings or the rule of judicial notice in general, the majority in Barrientez simply stated:

“Certainly, 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 upon the State.”

Of course, the question in Barrientez was not whether Judge Walker was present at the earlier murder trial, but whether he could properly take judicial notice of the testimony in such prior trial. And surely the rules of evidence should not be changed simply because the State must shoulder the obligation imposed on it by law.

“Judicial knowledge is that which is so notoriously and indisputably known that everybody, including the court, knows it. And if a fact is judicially noticed, it need not be pleaded or proved.” 23 Tex. Jur.2d, Evidence, § 10, p. 27.

The majority acknowledges that the theory of 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., § 151, but requires proof of the prior testimony of which the judge took “judicial notice” in the instant case. The basic purpose of judicial notice is to dispense with formal proof. Thus, the basic flaw in the reasoning m Barrientez is exposed like a raw nerve.

It is interesting, very interesting, to note that in Barrientez and Green v. State, 528 S.W.2d 617 (Tex.Cr.App.1975), re-affirming the Barrientez rule, the testimony of the prior trials which were “judicially noticed” were not in the appellate records of those cases, and yet those cases were affirmed, putting foundation under the so-called Bar-rientez rule. Today, however, the instant case is abated because of a defect in the appellate record, “ . . . the absence of the testimony of which the court took judicial notice.” If it is a defect in the instant case, and certainly it is, then it was a defect in the Barrientez and Green records. How this court was able to pass on the sufficiency of the evidence to sustain the revocations in Barrientez and Green, and is not able to do so in the instant case, is not answered by the majority. There is only one plausible explanation which the majority has yet to acknowledge or mention. The prior trials in Barrientez and Green resulted in convictions and appeals were taken therefrom and the appellate records in those cases were in this court and available when the appeals from the probation revocations were being considered. While the majority does not admit it, it is obvious the majority looked to these records in determining the sufficiency of the evidence to justify the revocations, although it is not proper for this court to look to another appellate record to supply any deficiency in the proof of another case under consideration on appeal. See 1 McCormick and Ray, Texas Law of Evidence, § 186, p. 207 (2nd Ed., 1956); Cain v. State, 468 S.W.2d 856, 861 (Tex.Cr.App.1971). How else could there have been a determination of the sufficiency of the evidence to sustain the revocations in Barrientez and Green ?

The majority opinion talks of “the defect to be avoided” and the obligation of the State to have the record reflect the facts judicially noticed by the trial court, but does this obligation vary from case to case depending upon whether an appeal is taken from the prior conviction whose testimony is judicially noticed? The bench and bar are left to wonder. The majority opinion avoids the subject.

There are other problems with the Bar-rientez rule. Suppose upon an abatement of an appeal or even at the time of the revocation hearing it is discovered that the court reporter has lost or destroyed his notes from the prior trial and there is no way to reproduce a transcription of such notes. What happens then with regard to the “judicial notice”? Is the “judicial notice” of the facts so easily determinable with certainty from sources considered reliable still valid? Does the abatement then become a reversal upon such showing?

While Barrientez did not make plain whether defense counsel should also be the same at both the prior trial and the revocation hearing for the extension of the rule to apply, later cases have made clear that counsel should be the same. 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) (Concurring Opinion); Green v. State, supra (Concurring Opinion). Under any circumstances, the defense counsel was the same at both hearings in Barrientez, Stephenson, O’Hern and Green. It is observed that Judge Roberts, the author of the Barrientez opinion, concurred in Green with the following comments:

“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.”

Such concurring opinion was necessary because the majority opinion in Green simply ignored the question of whether the same counsel was involved in applying the Barrientez rule.

All of this raises the question of just how valid a rule of “judicial notice” is that depends upon the lawyers for the defendant being the same at the prior trial and at the revocation hearing. Yet it is so well established as not to require the citation of authority that a defendant is entitled to counsel and the effective assistance of counsel at a hearing on the revocation of probation. How can such counsel be effective if he was not the same counsel at the prior trial, or how can he properly object to the matters of which the court is taking “judicial notice,” but of which he is completely ignorant? This is just another problem with the Barrientez rule.

The majority suggests that for “judicial notice of facts as here considered” the complete record of the prior trial should be completely incorporated in the appellate record as was done in O’Hern v. State, supra, or by reading into the record selected excerpts from the prior testimony “judicially noticed” as was done in Stephenson v. State, supra. In doing so, the majority neither considers nor explains Article 39.01, V.A.C.C.P., and the predicate it requires for admission of testimony of a prior hearing. In Carver v. State, 510 S.W.2d 349 (Tex.Cr.App.1974), cert. denied 419 U.S. 841, 95 S.Ct. 71, 42 L.Ed.2d 68, it was held that for prior testimony given by a witness at a former trial or hearing to be admissible at a subsequent trial it must be shown that the witness’ prior testimony was given under oath, that it was competent, that the accused was present and had adequate opportunity to cross-examine through counsel and that the accused was the defendant at the former trial or hearing upon the same charge, and that such predicate must be clearly and satisfactorily established before the prior testimony can be reproduced. See also Forbes v. State, 513 S.W.2d 72 (Tex.Cr.App.1974); Whitehead v. State, 450 S.W.2d 72 (Tex.Cr.App.1968).

The majority seems to justify its position “in light of the special considerations surrounding . . . revocation proceedings.” Although it is acknowledged that a probationer is entitled to due process in revocation proceedings, attention is called to the fact that the State’s burden of proof is by a preponderance of evidence, Scamardo v. State, 517 S.W.2d 293 (Tex.Cr.App.1974), that the relationship between the probationer and the court is contractual in nature, and that evidentiary requirements are not to be strictly enforced, etc. This is a further extension of the “anything goes” approach by the majority to revocation proceedings, further eroding the due process requirements applicable to such proceedings. The attitude is that if it is a revocation proceeding, who cares. See, e. g., the dissents in Casarez v. State, 468 S.W.2d 412, 414 (Tex.Cr.App.1971); Barnes v. State, 467 5.W.2d 437, 441 (Tex.Cr.App.1971). See also the dissent in Barrientez at p. 478.

The majority recognizes in part the weakness of its position when it states:

“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 .. . .”

The majority admits that the State can take advantage of today’s ruling. So if the State feels no appeal will be taken, it will take advantage of the Barrientez rule, and if perhaps, an appeal is taken, the State will relax because it knows an abatement will result. The State will continue its present practices despite the majority’s other suggestions.

Why doesn’t this court face up to the problem, and recognize that the Barrientez rule as to “judicial notice” was ill-conceived and should be overruled. It creates more problems than it solves. Barrientez and its progeny should be overruled.

For the reasons stated, I dissent.

DOUGLAS, Judge,

dissenting.

The majority still follows the rule in Barrientez v. State, 500 S.W.2d 474 (Tex.Cr.App.1973). In that case this Court held that a trial judge in a revocation of probation hearing may take judicial notice of testimony offered at a prior trial over which the same trial judge presided. It would be an illogical and futile act to require witnesses to appear before a judge during the revocation hearing when the same judge had already heard their testimony, while they were subject to cross-examination, on the same fact issue.

A majority abates the appeal because there is no statement of facts of the trial where the same judge heard the evidence and considered it in the present case to revoke probation. Appellant did not ask that a transcription of that evidence be typed and included in the record. That burden is on him. The case is that simple.

Article 40.09, Sections 2 and 5, V.A.C. C.P., provide:

“2. Each party may file with the clerk a written designation specifying matter for inclusion in the record. The failure of the clerk to include designated matter will not be ground for complaint on appeal if the designation specifying such matter be not filed with the clerk within sixty days after notice of appeal is given.
“5. A party desiring to have included in the record a transcription of notes of the reporter shall have the responsibility of obtaining such transcription and furnishing same to the clerk in duplicate in time for inclusion in the record and the defendant shall pay therefor. The court will order the reporter to make such transcription without charge to defendant if the court finds, after hearing in response to affidavit by defendant that he is unable to pay or give security therefor. Upon certificate of the court that this service has been rendered, payment therefor shall be made from the general funds by the county in which the offense is alleged to have been committed in a sum to be set by the trial judge. The court reporter shall report any portion of the proceedings requested by either party or directed by the court.”

The dissent by the Presiding Judge, who would reverse, constructs a straw man by stating that we must have a means to review the sufficiency of the judicially noticed evidence, and then knocks it down by reasoning that it surely cannot be the defendant’s burden to get such evidence in the record. Why not? He could%follow Article 40.09 and request it as has been provided for by the Legislature. It has always been the rule that an appellant must see that a record is prepared on appeal so that the sufficiency of the evidence may be reviewed.

The burden is on the party desiring a transcription of the court reporter’s notes of the evidence adduced at trial and to furnish the transcription to the clerk for inclusion in the record. Article 40.09, Section 5, supra. See Ex parte Denson, 165 Tex.Cr.R. 420, 307 S.W.2d 952 (1957). Moreover, no amount of judicial embroidery can obscure this Court’s long-standing rule that questions regarding the sufficiency of the evidence are not presented for review where the appellate record contains no statement of facts. See, e. g., Hankins v. State, 163 Tex.Cr.R. 553, 294 S.W.2d 850 (1956); Williams v. State, 164 Tex.Cr.R. 138, 297 S.W.2d 169 (1957); Cooper v. State, 365 S.W.2d 793 (Tex.Cr.App.1963); Pizzitola v. State, 374 S.W.2d 446 (Tex.Cr.App.1963); Sullivan v. State, 377 S.W.2d 952 (Tex.Cr.App.1964); Price v. State, 378 S.W.2d 312 (Tex.Cr.App.1964); Beavers v. State, 378 S.W.2d 329 (Tex.Cr.App.1964); Slade v. State, 400 S.W.2d 570 (Tex.Cr.App.1966); Herbort v. State, 422 S.W.2d 456 (Tex.Cr.App.1967); Daughtrey v. State, 544 S.W.2d 158 (Tex.Cr.App.1976).

Appellant was not an indigent and was apparently represented by retained counsel at trial and is represented by retained counsel on appeal. He should have asked for and paid for a transcription of the court reporter’s notes and furnished the transcription to the clerk for inclusion in the record. If the record of the prior trial had been typed before the revocation proceeding, would the majority require the court to see that it was included in the record without a request under the statute?

In the absence of a complete transcription of the court reporter’s notes of the prior trial, the question of the sufficiency of the evidence to support the revocation order cannot be reviewed and the judgment should be affirmed. See and cf. Goodings v. State, 500 S.W.2d 173 (Tex.Cr.App.1973), and Daughtrey v. State, supra. That the absent statement of facts was recorded in a prior trial, and not in the revocation hearing, does not require a different result because appellant knew the sole basis for the revocation of probation was the testimony of the prior trial. This case is like any other case where the sufficiency of the evidence is attacked but there has been no request for the evidence to be included in the record.

In East v. State, 420 S.W.2d 414 (Tex.Cr.App.1967), defendant was convicted of murder without malice. He filed a motion for new trial alleging jury misconduct. The evidence adduced at the hearing was not included in the record on appeal because he failed to file with the clerk a written designation specifying that evidence for inclusion in the record as required by Article 40.09, Section 2, supra.

On appeal, defendant contended that the trial court erred in refusing permission to file additional transcript relating to the hearing on the motion for new trial. This Court rejected that contention because of the failure to designate the evidence contained in the transcript and refused to consider the contention regarding the motion for new trial because nothing was presented for review. The judgment was affirmed.

In Hammond v. State, 465 S.W.2d 748 (Tex.Cr.App.1971), defendant was convicted of felony theft. He contended on appeal that the trial court erred in failing to grant his motion for inclusion in the record of the transcript of evidence of a prior trial in which he was convicted for murder without malice. We rejected the contention and affirmed the judgment because defendant did not designate the transcript of the prior trial for inclusion in the record and because no attempt was made to show the relevancy of such transcription. It appears, however, that the failure to comply with Article 40.-09, Section 2, supra, was sufficient in itself to require affirmance.

In the instant case appellant made no effort to incorporate the testimony of the prior proceeding into the record. In this connection, if the court reporter’s notes from that trial were not available because they had been lost or destroyed or had never been transcribed, then it was incumbent upon appellant to show the reason for the absence of the statement of facts by securing an affidavit from the reporter. Upon a showing that the reporter’s notes were requested and were unavailable we would be compelled to reverse the judgment revoking probation. Cf. Ex parte Coleman, 487 S.W.2d 119 (Tex.Cr.App.1972). No such showing was made by appellant in this case.

Tn Ex parte Henderson, 565 S.W.2d 50 (Tex.Cr.App.1978), and Ex parte Sims, 565 S.W.2d 45 (Tex.Cr.App.1978) (opinion on motion for rehearing), we held that a decision in a habeas corpus hearing must be affirmed when the record on appeal contains no statement of facts. We should do no less in the instant case and adhere to the well-established rule that the judgment must be affirmed on direct appeal when defendant evades his statutorily imposed responsibility to obtain and pay for a transcription of the court reporter’s notes and to furnish the transcription to the clerk for inclusion in the record. The question regarding the sufficiency of the evidence is not presented for review.

It would be useless to abate the appeal so that the evidence introduced at the prior trial could be prepared because appellant did not designate that this evidence be included in the record. Under East v. State, supra, the trial court is not required to have such evidence included in the record. See Dart v. State, 515 S.W.2d 119 (Tex.Cr.App.1974), a later case on the subject containing a well-reasoned opinion by Judge Tom Davis.

The majority should require appellant to pay for the record in accordance with Article 40.09, supra.

No error is shown. The judgment should be affirmed.

PHILLIPS, Judge,

dissenting.

I dissent to the majority’s disposition of this case due to the fact it is erroneously decided on two grounds. First, and foremost, is the majority’s reliance on Barrien-tez v. State, Tex.Cr.App., 500 S.W.2d 474. In Barrientez, this Court erroneously extended the doctrine of judicial notice to allow the trial judge, at a revocation of probation hearing, to judicially notice evidence introduced in a prior proceeding. After the trial judge took judicial notice of the evidence in Barrientez, this Court affirmed the judgment assuming that if the testimony at the prior proceeding had been in the appellate record, it would have been sufficient to support the revocation. With such an extension and perversion of the doctrine of judicial notice I cannot agree and I would overrule Barrientez and the subsequent cases which rely upon it. See, for example, Green v. State, Tex.Cr.App., 528 S.W.2d 617.

Assuming for the moment that Barrien-tez was correctly decided, the majority opinion abates the appeal in order for the “judicially noticed” testimony to be placed in the record. In this regard, the majority states:

“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, is not shown in this record and is 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 known to this Court.”

The majority opinion then disposes of the matter by abating the appeal. However, such a result is inapposite to the holding (albeit erroneous) in Green v. State, supra. In Green, the defendant attacked the sufficiency of the evidence to support the revocation order where the trial court had simply taken judicial notice of the testimony introduced at a prior proceeding without incorporating that testimony into the record in any way. In Green, relying primarily on Barrientez, the judgment was affirmed. It is apparent that if this Court is to follow the decisions in Barrientez and Green, the majority must affirm the revocation order.

However, I join with Presiding Judge Onion in proposing a solution to the problem presently facing this Court. Barrientez and its progeny should be overruled. In so doing, this Court would again adopt the general rule as stated in 29 Am.Jur.2d, Evidence, Sec. 58:

“[T]he courts will not take judicial notice of the proceedings or record in another cause, whether such cause was tried in the same court or in another court, so as thereby to supply, without the formal introduction of evidence, facts essential to the support of the particular cause before the court from those shown in the prior cause. This rule applies even though the other proceeding bears upon the controversy under consideration, and even though it was between the same parties. Unforeseeable consequences could result from any such rule as that in the trial or hearing of a particular cause the plaintiff or complainant could present therein a part of the facts of his case and thereupon call upon the court to take judicial notice of the record in another cause, even in the same court, whereby to supply the remainder of the facts essential to a decree or judgment in his favor in the instant cause before the court. If the courts were to take judicial notice of facts adjudicated in another cause, it would make such facts, although unsupported by evidence in the instant cause, conclusive against the opposing party, while if they had been properly introduced, they might have been met and overcome by him.”

The adoption of such a rule would require the State to introduce into evidence the transcription of the court reporter’s notes of the prior proceeding. Such a procedure would not only allow this Court to properly determine the sufficiency of the evidence but would also afford a defendant the opportunity to rebut the introduction of that testimony.

To follow the rule originally espoused in Barrientez could lead to unreasonable results. A defendant on probation could be tried and acquitted of a subsequent offense; and yet, under the lower standard of proof in a revocation proceeding, the trial judge could later take “judicial notice” of the testimony offered in that acquittal and in considering that testimony with all the reasonable inferences, the trial court could revoke a defendant’s probation. This revocation could be accomplished by the State without presenting any evidence or placing any witnesses on the stand. Such a procedure could only be termed unfair as it would not afford a defendant the opportunity to rebut the prior testimony nor would it allow this Court to review the sufficiency of the evidence on appeal. With such a result I cannot agree.

This Court has consistently held that due process of law applies to revocation proceedings. Campbell v. State, Tex.Cr.App., 456 S.W.2d 918; Spencer v. State, Tex.Cr.App., 503 S.W.2d 557; Nicklas v. State, Tex.Cr.App., 530 S.W.2d 537; see also Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967); Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973).

For the reasons stated, I respectfully dissent.

      . This rule has been criticized as going beyond the proper limits of judicial notice. See, e.g. the dissenting opinion in Barrientez v. State, supra. The basis for judicial notice has been described this way:
      “The doctrine of judicial notice is based on convenience and expediency, and to say that a court will take judicial notice of a fact is merely another way of saying that the usual forms of evidence will be dispensed with if knowledge of the fact can be otherwise acquired. Judicial knowledge is not reached by the use of evidence; it is a matter pertaining to the judicial function and its existence, like that of an admission, stipulation, or rule of presumption, dispenses with evidence as to the point covered.” 31 C.J.S. Evidence § 13.
      The proper limits of judicial notice are not static and rigidly fixed. “The list of things covered by judicial notice is constantly expanding, and no exact limit can be placed thereon.” Id., Sec. 7. In McCormick and Ray’s Texas Law of Evidence, 2nd ed., Texas courts are criticised for giving the doctrine too narrow an application:
      “Because of its elasticity the doctrine of judicial notice offers great possibilities for the improvement and speeding up of trial procedure. Although the foregoing sections indicate a liberal use of the doctrine by Texas courts many instances of too narrow application might be cited. These seem to be due to two things: (1) The courts evidently forget that there are two parts of the doctrine, i.e., mandatory and discretionary. And it is in the latter part that the possibilities for great usefulness lie . . . (2) Too often the courts think in terms of the older and more familiar basis of the doctrine, namely, ‘common knowledge’ instead of the more modem and elastic basis, i.e. ‘verifiable certainty.’ In this channel lies the greatest opportunity for expansion.” Id. Sec. 211.
      The rule of Barrientez v. State, supra, now has an established place within the doctrine of judicial notice.

      . See, “Dismissals and Abatements by the Court of Criminal Appeals,” 41 Texas Bar Journal 53.

      . The seven page transcription of the court reporter’s notes from the September 2, 1976 revocation hearing was not filed until June 20, 1977.

      . The rule established in Barrientez was apparently designed to apply only to the revocation of probation proceedings. At least it has only been so applied, and today’s majority lends support to such theory.

      . The majority opinions in both Barrientez and Green are silent as to the appellate records in the other cases. The dissenting opinion in Barrientez noted at p. 477 that the earlier murder conviction had been affirmed in Barrientez v. State, 487 S.W.2d 97 (Tex.Cr.App.1972). In Green none of the opinions mention the earlier conviction, but an examination of our records shows there was pending in this court at the time an appeal from an aggravated robbery conviction [see Green v. State, Tex.Cr.App., 531 S.W.2d 350] which was disposed of in a per curiam opinion on January 7, 1976.

      . However, see Article 42.12, V.A.C.C.P.; Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967); McConnell v. Rhay, 393 U.S. 2, 89 S.Ct. 32, 21 L.Ed.2d 2 (1968); Crawford v. State, 435 S.W.2d 148 (Tex.Cr.App.1968); Ex parte McDonald, 469 S.W.2d 173 (Tex.Cr.App.1971); Ex parte Fletcher, 442 S.W.2d 705 (Tex.Cr.App.1969); Ex parte Fuller, 435 S.W.2d 515 (Tex.Cr.App.1969); Ex parte Buffington, 439 S.W.2d 345 (Tex.Cr.App.1969); Ex parte Bird, 457 S.W.2d 559 (Tex.Cr.App.1970).

      . In O’Hern the State, without objection, offered the record of the previous trial as evidence and the transcription of the court reporter’s notes of the previous trial was incorporated into the record of the hearing on the motion to revoke probation and came forward as part of the record on appeal from the revocation. Thus, O’Hem is in a slightly different posture than the other case. This writer concurred in O’Hem because of the failure to object and because the situation was more alike to a stipulation of evidence than “judicial notice.”

      . See Campbell v. State, 456 S.W.2d 918 (Tex.Cr.App.1970); Whisenant v. State, 557 S.W.2d 102 (Tex.Cr.App.1977); Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967); McConnell v. Rhay, 393 U.S. 2, 89 S.Ct. 32, 21 L.Ed.2d 2 (1968).

      . See this writer’s dissenting opinion: in Scamardo and the earlier dissent in Kelly v. State, 483 S.W.2d 467, 473 (Tex.Cr.App.1972), arguing that the proper burden of proof should be beyond a reasonable doubt where an individual's liberty is at stake.

      . No opinion has ever considered whether such is true where the jury recommends probation and the judge must grant probation. Of course, a jury recommendation is not here involved.

      . In this regard, I disagree with the view expressed in the dissenting opinion by Presiding Judge Onion. I prefer to solely view the holding in Barrientez as being erroneously decided rather than assume also that the majority in that case improperly considered the record in another appellate case.

      . See Butler v. Eaton, 141 U.S. 240, 11 S.Ct. 985, 35 L.Ed. 713 (1891); Funk v. Commissioner of Internal Revenue, 163 F.2d 796 (3rd Cir. 1947); Fox v. Schaeffer, 131 Conn. 439, 41 A.2d 46 (1944). I recognize there are special circumstances where a trial court may be able to take judicial notice of certain proceedings in a prior case; however, such a situation is not present in the case at bar. See generally 29 Am.Jur.2d, Evidence, Sec. 59. It has been held that a court may take judicial notice of the record in a prior case when passing on a demurrer. Corliss v. Davidson and Case Lumber Company, 183 Okl. 618, 84 P.2d 7 (1938); Witzenburg v. State, 140 Neb. 171, 299 N.W. 533 (1941); Frank v. Wilson, 27 Del.Ch. 292, 32 A.2d 277 (Del.Sup.Ct.1943); Fleming v. Anderson, 187 Va. 788, 48 S.E.2d 269 (1948). Further, some courts consider divorce a special form of action and allow judicial notice of a prior relevant matrimonial action on the reasoning that the state is an interested party and has a duty to ascertain all the pertinent facts. See Commonwealth v. Branch, 175 Pa.Super. 373, 104 A.2d 183 (1954); similarly, see In Re Adoption of K., 417 S.W.2d 702 (Mo.App.1967). Cf. the following cases where the trial court did not take judicial notice of the contents of a prior proceeding. Hail v. State, 106 Tex.Cr.R. 511, 293 S.W. 831; Calloway v. State, 91 Tex.Cr.R. 502, 240 S.W. 553; McClure v. State, 100 Tex.Cr.R. 652, 273 S.W. 604; White v. State, 154 Tex.Cr.R. 498, 228 S.W.2d 183; Horman v. State, Tex.Cr.App., 423 S.W.2d 317; Hardison v. State, Tex.Cr.App., 450 S.W.2d 638.

      . In Alley v. State, 154 Tex.Cr.R. 145, 225 S.W.2d 970, the trial judge took judicial notice of prior proceedings involving the same defendant in assessing punishment. After quoting from the trial judge’s statement of facts, which were based on consideration of “judicial knowledge” of the substance of the prior proceedings, this Court stated: “It scarcely seems necessary to go further than set out the court’s own reasons for fixing the punishment in this case to demonstrate an error calling for a reversal of the judgment.”
      In State v. Shreve, 30 Utah 2d 100, 514 P.2d 216 (1973), that court stated:
      “It seems to be the law that a court will take judicial knowledge of its own records insofar as those records are a part of the matter before the court. However, records of other proceedings in the court cannot be judicially noticed and must be introduced in evidence in order to be considered in the pending case.”

      . In Knorp v. Thompson, 352 Mo. 44, 175 S.W.2d 889 (1943), that court stated:
      “[A] party should have the issues of fact of his case, or of his defense, decided, and the sufficiency of the evidence thereon reviewed, upon evidence lawfully introduced in the trial of his case, or defense, in the trial court. It is there that he has the opportunity to confront and cross-examine the witnesses who may testify against him and examine such documentary proof as may be introduced into evidence by the adverse party. It is only in the trial court that a party has an opportunity to rebut, impeach, or explain, if he can, such evidence as may be adverse to his cause. And a party may justly be required to introduce in the trial in the trial court the evidence upon which he depends to sustain his case, or defense, for there only the adverse party has the opportunity to confront the witnesses, examine the documentary proof and rebut, impeach, or explain such evidence as may appear adverse to him. It is not just that a court should, in deciding the issues of a case, consider evidence introduced in another and different case, and thus decide a case upon evidence which a party had been afforded no opportunity to refute.”

      . I recognize that a prior acquittal can be the basis of a revocation proceeding due to the lower standard of proof required in a probation revocation. Scamardo v. State, Tex.Cr.App., 517 S.W.2d 293; Russell v. State, Tex.Cr.App., 551 S.W.2d 710. The example is given to point out that grave due process questions might be raised if a trial court can revoke a defendant’s probation by simply taking “judicial notice” of a prior record without the introduction of any evidence by the State at the revocation hearing.


source: Caselaw Access Project

author: DALLY, Judge.

license: Public Domain

text:
    Charles Dennis EASLEY, Appellant, v. The STATE of Texas, Appellee.
    No. 56321.
    Court of Criminal Appeals of Texas, Panel No. 1.
    April 12, 1978.
    Rehearing En Banc Denied May 3, 1978.

      Gene Douglass, Wichita Palls, for appellant.
    Melvyn Carson Bruder, Sp. Prosecutor, Dallas, for the State.
    Before TOM G. DAVIS, DALLY and W. C. DAVIS, JJ.
   OPINION

DALLY, Judge.

This is an appeal from a conviction for the offense of murder under the former penal code. The appellant was indicted in Grayson County, but there was a change of venue to Collin County. A jury returned a death penalty verdict, the trial judge granted a new trial, and there was another change of venue to Victoria County. After a jury was impaneled in Victoria County the appellant’s jury waiver was accepted and approved; the court heard the evidence, entered a judgment of guilty, and sentenced the appellant to life imprisonment.

The appellant asserts that he was denied his constitutional rights to a speedy trial and against unreasonable searches and seizures. He also asserts that the evidence is insufficient to sustain the judgment.

The determination of whether appellant was denied a speedy trial is complicated because of the two changes of venue and the new trial which he was granted. Furthermore, during the same time period the appellant was tried twice for another murder; there were two jury trials and a change of venue; these trials resulted in the assessment of substantial punishment, but both judgments were reversed on appeal. See Easley v. State, 493 S.W.2d 199 (Tex.Cr.App.1973); and Easley v. State, 529 S.W.2d 522 (Tex.Cr.App.1975).

The right to a speedy trial is guaranteed by the Sixth Amendment to the Constitution of the United States as applied through the Fourteenth Amendment. Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967); Smith v. Hooey, 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607 (1969); Dickey v. Florida, 398 U.S. 30, 90 S.Ct. 1564, 26 L.Ed.2d 26 (1970); Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). The same right is assured by Art. I, Sec. 10 of the Texas Constitution, and Art. 1.05, V.A.C.C.P.

Whether an accused has been denied a speedy trial may be determined by a “balancing test” which was set out in Barker v. Wingo, supra. Each case requires consideration of the following factors, although they are not exclusive:

(1) the length of the delay;
(2) the reason for the delay;
(3) the defendant’s assertion of the right; and
(4) the prejudice to the defendant resulting from the delay.

See also Moore v. Arizona, 414 U.S. 25, 94 S.Ct. 188, 38 L.Ed.2d 183 (1973); Turner v. State, 545 S.W.2d 133 (Tex.Cr.App.1976); Wilkerson v. State, 510 S.W.2d 589 (Tex.Cr.App.1974); McKinney v. State, 491 S.W.2d 404 (Tex.Cr.App.1973).

There is no precise length of delay which irrefutably constitutes a violation of the right to a speedy trial in all cases. The length of the delay is measured from the time the defendant is formally accused or arrested. United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971); Dillingham v. United States, 423 U.S. 64, 96 S.Ct. 303, 46 L.Ed.2d 205 (1975). Five years elapsed from the time of the appellant’s arrest until the time of his trial; that is certainly sufficient to require the application of the balancing test of Barker v. Win-go, supra, and that time must be considered in determining appellant’s speedy trial claim.

We next consider the reasons for the delay; we are told that different weight should be assigned to different reasons. For example:

“A deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government [footnote omitted]. A more neutral reason such as negligence or overcrowded court should be weighted less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than the defendant. Finally, á valid reason, such as a missing witness, should serve to justify appropriate delay.” Barker v. Wingo, supra, 92 S.Ct. at 2192.

Donna Golish disappeared on September 10, and her body was found on September 11, 1969. The appellant was arrested on April 8, 1970. On April 16, 1970, he was indicted for the murder of Donna Golish, and on the same day also was indicted for the murder of Laurie Stevens, who had been killed on April 1, 1970. On May 25, 1970, appellant was granted a change of venue to Wichita County in the Stevens case; trial commenced on July 6, 1970, and the appellant was convicted. On September 2,1970, appellant was granted a change of venue to Collin County in the Golish case; trial commenced in March, 1971, and the appellant was convicted.

Appellant’s conviction for the murder of Laurie Stevens was reversed on March 14, 1973. On September 12, 1973, appellant was granted a new trial in the Golish case. On March 18, 1974, the second trial of appellant for the murder of Laurie Stevens commenced in Wichita County, and appellant again was convicted. On April 8,1975, appellant was granted a change of venue to Victoria County for his second trial for the murder of Donna Golish; trial commenced on April 21, 1975, and appellant again was convicted. This appeal is from that conviction.

On July 6, 1970, appellant filed a motion for a continuance in the first trial of the Stevens case, and the motion was overruled. On December 31, 1970, appellant filed a motion for a continuance in the first trial of the Golish case; the record does not reflect that the motion was ruled on by the court. On September 17, 1973, appellant filed a motion for a continuance in the second trial of the Stevens case, and the motion was granted.

It is apparent that the delay of which appellant complains was occasioned in substantial part by his two trials for the murder of Laurie Stevens and the pendency of his appeals from those convictions. That the appellant was being prosecuted on other charges constitutes a valid reason for the delay in bringing him to trial. See Black v. State, 505 S.W.2d 821 (Tex.Cr.App.1974); Turner v. Estelle, 515 F.2d 853 (5th Cir. 1975); United States v. Kress, 451 F.2d 576 (9th Cir. 1971); United States v. Holt, 145 U.S.App.D.C. 185, 448 F.2d 1108 (1971).

Appellant was charged with the separate murders of two young girls. Both cases were based on circumstantial evidence. Detailed scientific analysis of the evidence, including ballistics tests and neutron activation analysis, was required; some of the evidence was sent to Washington, D. C. for examination. Both the seriousness and the complexity of the charges are to be considered in evaluating a defendant’s speedy trial claim. Barker v. Wingo, 92 S.Ct. at 2192; see United States v. Bloom, 538 F.2d 704 (5th Cir. 1976), cert. denied, 429 U.S. 1074, 97 S.Ct. 814, 50 L.Ed.2d 792 (1977); United States v. Baumgarten, 517 F.2d 1020 (8th Cir. 1975), cert. denied, 423 U.S. 878, 96 S.Ct. 152, 46 L.Ed.2d 111 (1976).

The appellant first asserted his right to a speedy trial on July 21, 1976, more than a year after he was brought to trial. This is not a timely assertion of the right. See Thomas v. State, 530 S.W.2d 834 (Tex.Cr.App.1975); Archie v. State, 511 S.W.2d 942 (Tex.Cr.App.1974); McCarty v. State, 498 S.W.2d 212 (Tex.Cr.App.1973); Haas v. State, 498 S.W.2d 206 (Tex.Cr.App.1973). The right to a speedy trial applies to neither delays in sentencing, Ramos v. State, 486 S.W.2d 297 (Tex.Cr.App.1972), nor the appellate process. Colunga v. State, 527 S.W.2d 285 (Tex.Cr.App.1975); Zanders v. State, 515 S.W.2d 907 (Tex.Cr.App.1974).

It is generally said that there are three interests to be considered in determining prejudice to the defendant, which are as follow: (1) prevention of oppressive pretrial incarceration; (2) minimizing anxiety and concern of the accused; and (3) limiting the possibility that the defense will be impaired. Barker v. Wingo, supra; United States v. Ewell, 383 U.S. 116, 86 S.Ct. 773, 15 L.Ed.2d 627 (1966); Smith v. Hooey, supra; Klopfer v. North Carolina, supra; Turner v. State, supra; McKinney v. State, supra.

While it is true that appellant has been incarcerated for nearly eight years, his incarceration has been due to the prolonged nature of his four trials and three appeals, as well as the delay of which he now complains. Accordingly, whatever anxiety or concern he has experienced is not solely attributable to the delay in this case.

Appellant complains stringently that the memories of several witnesses for the State had dimmed greatly as a result of the time intervening between the date of the offense, the time of the first trial, and the time of the second trial. Appellant contends that “the most graphic example” of prejudice that he suffered due to a witness’ poor memory was the testimony of Texas Ranger Stuart Dowell, who testified concerning probable cause for the appellant’s arrest. Since the lawfulness of that arrest is not a material issue in the disposition of this appeal, we cannot say that appellant was prejudiced by Dowell’s loss of memory. See United States v. Avalos, 541 F.2d 1100 (5th Cir. 1976); United States v. Shepherd, 511 F.2d 119 (5th Cir. 1975). Appellant also argues that the memories of Blain England and Barry Keller, who testified that they saw appellant in the area where Donna Golish disappeared, were not so clear in regard to significant details as they had been at the former trial. The record, which contains their testimony from the first trial as well as their testimony at the recent trial, actually reflects that their later testimony was more detailed and less equivocal. Both witnesses were in the first grade at the time they observed the events, in the second grade at the time of the first trial, and in the sixth grade at the time of the second trial. It is not unreasonable to assume that they were able to testify more positively because they were more mature and were better able to express themselves. In any event, appellant had access to their previous testimony and used it in an attempt to discredit their testimony at the second trial. Under the circumstances of this case, any prejudice suffered by appellant due to witnesses’ dimmed memories was minimal. See Wilkerson v. State, supra; Tatum v. State, 505 S.W.2d 548 (Tex.Cr.App.1974); McCarty v. State, supra.

The appellant urges that the search of his Pontiac car was unreasonable, unlawful, and in violation of his constitutional rights, and that paint scraped from the oil pan of the car should not have been admitted in evidence. When the appellant was arrested on April 8, 1970, for the offense of theft, the arresting officers took possession of the Pontiac car which he was driving prior to his arrest. Paint subsequently was scraped from the oil pan of the car and was admitted in evidence.

The State has advanced several theories on which the search that resulted in paint being scraped from the oil pan of the appellant’s car may be upheld. The only theory which is tenable is that based upon the holding of Cardwell v. Lewis, 417 U.S. 583, 94 S.Ct. 2464, 41 L.Ed.2d 325 (1974). In that case, officers, with probable cause and without a search warrant, took paint scrapings from the fender of the accused’s impounded car; they also made comparisons between the tread on the car’s tires and the cast of a tire impression made at the scene of the crime. The Court observed that “insofar as Fourth Amendment protection extends to a motor vehicle, it is the right to privacy that is the touchstone of our inquiry.” 94 S.Ct. at 2470. After noting that nothing from the interior of the car had been searched or seized and introduced in evidence, the Court continued as follows:

“With the ‘search’ limited to the examination of the tire on the wheel and the taking of paint scrapings from the exteri- or of the vehicle left in the public parking lot, we fail to comprehend what expectation of privacy was infringed.
* ⅝ jfc * ‡ ‡
“Under circumstances such as these, where probable cause exists, a warrant-less examination of the exterior of a car is not unreasonable under the Fourth and Fourteenth Amendments.” 94 S.Ct. at 2470.

When the appellant was arrested, law enforcement officers knew that an automobile had likely been an instrument used in committing the murder of Donna Golish. She had been killed in a manner consistent with having been hit and dragged by an automobile, and a particle of paint had been found on her body. A man fitting the description of appellant, in an automobile matching the Pontiac’s appearance, was seen near where Donna Golish was last seen alive on the day she disappeared. The appellant was seen later on that same day diligently washing underneath the Pontiac. We hold that there was probable cause for obtaining the paint chip from the oil pan of the Pontiac car, and that the search and seizure of the paint chip from the exterior of the car in these circumstances was not unreasonable and was not a violation of appellant’s constitutional rights. Cardwell v. Lewis, supra; Vasquez v. State, 532 S.W.2d 338 (Tex.Cr.App.1976).

The appellant urges that the evidence is insufficient to prove the corpus delicti because it does not show that Donna Golish’s death was caused by criminal means. He also urges that if the corpus delicti was proved, there is insufficient evidence to show that he is the person guilty of the offense.

In Self v. State, 513 S.W.2d 832 (Tex.Cr.App.1974), the two elements of corpus de-licti in a murder case were said to be (1) the body of the deceased must be found and identified; and (2) the death of the deceased must be shown to have been caused by the criminal act of another. The third element which must be shown to sustain a murder conviction, but which is not properly a part of the corpus delicti, is that the accused must be shown to have been the guilty agent connected with the criminal act. The new penal code, which has omitted the requirement that the body be found before a prosecution for murder may be maintained and which contains other changes, may somewhat alter the first element of corpus delicti as set out in Self v. State, supra, but we need not consider that in this case, as the body of Donna Golish was found and identified. It is the other element of corpus delicti, that is that Donna Golish’s death was shown to have been caused by the criminal act of another, that requires a more careful analysis of the evidence.

Donna Golish’s body was found in a field near Gallagher Road and Oil Field Road. Roscoe Vernon Clinton, Jr., a member of the search team, discovered the body in “some real high grass” approximately eighteen feet from Oil Field Road. The body was clad in only a slip, which was pushed up underneath the deceased’s arms.

Billy W. Lambert, an officer in the Sherman Police Department, also participated in the search for Donna Golish. He found the deceased’s socks “hung on some bushes on the south side of Gallagher Road,” and her shoes in a grassy area twenty-five or thirty feet from Gallagher Road.

An autopsy by Dr. Charles Petty, chief medical examiner of Dallas County and director of the Criminal Investigation Laboratory of Dallas County, revealed the following injuries: tear of the left ear; pair of abrasions or rub marks on the majority of the face; fracture of the left tibia and fibula; deep lacerations extending the length of the front of the left thigh; series of rubbings of the skin on the extremities and trunk; fracture of the right side of the skull; fracture of the eighth rib on the right; fracture of the right femur and long bone on the right thigh; extensive tearing of the right lobe of the liver; torn fingernail on the right ring finger; minor hemorrhage in the back wall of the vagina; bruising of the heart; and fracture of the jaw on the right.

Petty testified that the pattern of injuries — including the amount of rubbing of the skin, the abrasions of both cheeks and the extremities, the pulling away of the skin and underlying tissue on the back of the right elbow, and the fracture of the lower leg bones — was similar to that seen in individuals who are struck or drug by an automobile or thrown from or have fallen from a moving vehicle. He also testified that the fracture of the skull and the hemorrhage inside the opening of the vagina were not compatible with an automobile accident, that the fracture of the skull and the underlying bruising of the brain were compatible with the deceased having been struck with something while the head was still and that the hemorrhage was compatible with the deceased’s vagina having been penetrated by the erect penis of an adult male. He also testified that the broken jaw was compatible with the deceased having been struck by the fist of an adult male.

Petty further testified that while it was possible that the deceased was thrown from or dragged by an automobile, it was unlikely that she was struck by an automobile, because “individuals who are upright and are struck by an automobile usually have a demonstrable point of impact where there is a significant injury,” and that the body of the deceased revealed no such point of impact. Petty also stated that, other than the injuries described, “the child was quite healthy and showed no evidence of any disease process.”

In summary, the evidence shows quite strongly that the death of Donna Golish was caused by criminal means. She was healthy and had attended school on the morning of the day that she disappeared, indicating that she did not die of natural causes. Her body was found clad in only a slip in high grass eighteen feet from the nearest road. Her shoes and socks were found some distance from the body, the socks hanging on a bush, and no other clothing was found. There was no demonstrable point of impact on the body to indicate that she was struck by an automobile, and the fracture of her skull and the hemorrhage inside her vagina were not compatible with an automobile accident. Thus, the evidence indicates that her death was not accidental. Dr. Petty testified that the fracture of the skull and bruising of the brain were compatible with the deceased having been struck with something while the head was still, that the hemorrhage inside her vagina was compatible with it having been penetrated by the erect penis of an adult male, and that her broken jaw was compatible with the deceased having been struck with the fist of an adult male. His testimony indicates that her injuries were intentionally inflicted.

We hold that the circumstantial evidence presented by the State was sufficient to establish the corpus delicti in this case. See Simpson v. State, 163 Tex.Cr.R. 385, 291 S.W.2d 341 (1956); Gragg v. State, 152 Tex.Cr.R. 386, 214 S.W.2d 292 (1948); Parks v. State, 124 Tex.Cr.R. 405, 63 S.W.2d 301 (1933).

We will now consider the sufficiency of the evidence to prove that the appellant was the person who inflicted the injuries which caused the death of Donna Golish; some repetition in the summary of the evidence is necessary.

The deceased, Donna Golish, was a seven-year-old first-grade student. She was last seen alive at about 12:00 noon on September 10, 1969, after she was dismissed from school. It was Donna’s habit to walk home from school through a public park. On September 10, when Donna did not reach home within twenty minutes after she was dismissed from school, as she usually did, her parents began to search for her and notified the police that she was missing. The next day an extensive search commenced in which citizens joined law enforcement officers; the deceased’s body was found at approximately 11:00 a. m. The body was discovered near Gallagher Road and Oil Field Road on the outskirts of the city by a citizen who was searching on horseback. The body, clad in only a slip, was in tall grass. The first law enforcement officer on the scene observed, removed, and preserved what appeared to be “a small piece of paint imbedded in the left heel in some oil that was on the heel.”

At noon on September 10, Craig Watson, a fourth-grade student, saw Donna Golish after she left the school grounds and was walking through the park following first-grade students Blain England and Barry Keller. Blain England testified that after he left the school grounds on September 10 he walked through the park with Barry Keller. In a low-lying area in the park, Blain saw a fairly old cream-colored car with a flag decal on a rear side window and an Astro baseball team decal on a vent window. Blain saw a young man with black hair sitting by himself in the car. The man, who was smoking a cigarette, was sitting sideways on the right front seat with his feet on the ground. The man spoke to the boys and said, “hello” or “hi,” and Blain replied “hi.” Blain testified that the appellant looked exactly like the man he saw in the car in the park except that the man’s sideburns were longer. Blain did not remember seeing Donna Golish walking home on September 10.

Barry Keller testified that after he left the school grounds on September 10 he saw Donna Golish walking behind him through the park. He also saw the cream-colored car in the park and saw in the car a heavy, college-aged man with black hair and sideburns. At the trial he testified that the appellant was the man he had seen in the car in the park on September 10.

Appellant lived with his parents and younger brother. The family had two cars, and the one that appellant usually drove was a beige, 1963 Pontiac Tempest. Adeline Green, the Easleys’ next-door neighbor, testified that the two cars usually were parked in the Easley front yard, and that on September 10,1969, the appellant’s Pontiac was not parked there between noon and 1:00 p. m. She also testified that on the afternoon of September 10, 1969, she saw appellant in his back yard washing his car using a high-pressure nozzle and that he was washing underneath the car very diligently. Mrs. Green testified that appellant washed his car “every day or more than once a day even,” but that he usually washed it in the front yard.

Grayson County Sheriff G. W. Blanton identified photographs of appellant’s car. He testified that a decal on one window was of an American flag and that something that “looks like a decal” was on one of the vent windows. One photograph also showed an indentation on the front bumper.

On April 8, 1970, the appellant was arrested, and law enforcement officers obtained possession of a Pontiac Tempest, the title of which was in the appellant’s name, and a 1968 red Chevrolet, the title of which was in the name of appellant’s brother, Jimmy. The officers obtained from the oil pan of the Pontiac paint chips and from the glove compartment of the Chevrolet a City of Sherman map. On the map, circled and labeled in handwriting, was an area near the elementary school which Donna Golish had attended, and there was a line drawn from that area to Gallagher Road, where the body of Donna Golish was found. Gallagher Road was not printed on the map but it had been drawn on the map with a pen. There is no evidence to show who made these marks on the map or when they were made.

Charles Michael Hoffman, a chemist and chief of the Forensic Laboratory of the United States Treasury Department, testified that by microscopic inspection, a chemical solvent test, and neutron activation analysis he had compared the paint particles removed from the heel of the deceased’s body with paint particles taken from the oil pan of the appellant’s car. Hoffman explained the neutron activation analysis technique and testified that in his opinion the paint particles came from the same batch of paint, because he found the elements of manganese, copper, samarium, sodium, chromium, cobalt, and antimony in the same concentration in both particles of paint. In his prior experience, Hoffman said he had never found two batches of paint that had the same trace elements in the same concentration even when he had analyzed batches of paint made by the same manufacturer using the same formula and the same source of raw materials.

Witness Emel F. Benson was an employee of the Grow Chemical Company, Pontiac Coatings Division, Pontiac, Michigan. He was the technical director of the coatings division and his main duties were to direct chemists and technicians in paint development and to maintain quality control of the paint used by the Pontiac Division of General Motors. He testified that eighty-two batches of from 500 to 600 gallons each of Bedford Blue paint were made for use on the oil pans and valve covers of Pontiac automobiles for 1963 and 1964. One batch of paint would be consumed in painting between 5,000 and 7,200 automobiles. Bed-ford Blue paint ingredients included manganese, copper, chromium, and cobalt. Sodium and samarium would be impurities if found in Bedford Blue paint. Benson thought it highly unlikely that the Bedford Blue paint his company made for Pontiac automobiles was used on other General Motors cars.

A conviction based on circumstantial evidence cannot be sustained if the circumstances do not exclude every other reasonable hypothesis except that of the guilt of the accused, and proof amounting to only a strong suspicion or mere probability is insufficient. Stogsdill v. State, 552 S.W.2d 481 (Tex.Cr.App.1977); Flores v. State, 551 S.W.2d 364 (Tex.Cr.App.1977); Easley v. State, 529 S.W.2d 522 (Tex.Cr.App.1975); Indo v. State, 502 S.W.2d 166 (Tex.Cr.App.1973). It is not necessary, however, that every fact point directly and independently to the guilt of the accused, and the cumulative force of all the incriminating circumstances may be sufficient to warrant a conclusion of guilt. Stogsdill v. State, supra; Flores v. State, supra.

Appellant was not seen in the company of the deceased nor near where the body of the deceased was found. The evidence which the State contends is sufficient to exclude every reasonable hypothesis but the guilt of appellant may be summarized as follows:

(1) The appellant’s automobile and the appellant were seen in the area where the deceased was last seen alive close to the time of the deceased’s disappearance, and the appellant was speaking in a friendly manner to children who did not know him.

(2) Some of the injuries suffered by the deceased were compatible with her having been struck or dragged by a car, and the paint chip found on the deceased’s body was chemically similar in all respects to the paint chip taken from the oil pan of appellant’s car. However, the probative force of this evidence is diminished somewhat by the fact that as many as 7,200 cars may have had oil pans painted with similar paint, and by the lack of evidence to prove that the oil pan from which the paint sample was taken was on appellant’s car at the time the deceased was killed.

(3) Appellant was seen washing the underneath part of his ear within hours after the deceased was last seen alive; however, it was not clearly established that the deceased was killed at a time previous to the time the appellant was seen washing his car.

(4) Appellant’s car was not parked in its usual place between noon and 1:00 p. m. on the day the deceased disappeared.

(5) The map found in the appellant’s brother’s car showed markings indicating both the area where the deceased was last seen alive and where her body was found.

We find the cumulative force of all the incriminating circumstances sufficient for the trial judge, as the finder of the facts in this case, to conclude as he did that the appellant was guilty beyond a reasonable doubt of the offense with which he was charged.

The judgment is affirmed.


author: ROBERTS, Judge.

text:
    Joe A. VILLELA, Appellant, v. The STATE of Texas, Appellee.
    Nos. 57158, 57159.
    Court of Criminal Appeals of Texas, Panel No. 3.
    April 12, 1978.
    Rehearing En Banc Denied May 10, 1978.
    Ray Stevens, Houston, for appellant.
    Carol S. Vance, Dist. Atty., Calvin A. Hartmann and Robert A. Moen, Asst. Dist. Attys., Houston, for the State.
    Before ROBERTS, PHILLIPS and VOL-LERS, JJ.
   OPINION

ROBERTS, Judge.

These are appeals from convictions for possession of heroin, a controlled substance. The appellant simultaneously pleaded guilty in each case and after a trial before the court, the trial judge assessed the appellant’s punishment in each case at five years’ confinement in the Texas Department of Corrections.

The appellant’s sole contention in each case is that after the appellant’s guilty pleas and the introduction of evidence in support of those pleas the trial judge failed to make findings of guilt and merely assessed the appellant’s punishment in each case. Thus, the appellant argues that the judgments are void as there was no oral adjudication of guilt by the trial judge in either case.

On September 10, 1976, the appellant waived trial by jury and entered pleas of guilty pursuant to Article 1.13, Vernon’s Ann.C.C.P. Article 1.15, Vernon’s Ann.C. C.P. The trial judge admonished the appellant, accepted the appellant’s pleas of guilty, and then heard the State’s evidence. At the close of the trial, the trial judge held the assessment of punishment in abeyance pending a presentence investigation by the probation office.

On October 29,1976, the trial judge heard evidence relevant to the appellant’s punishment. At the close of that hearing, the trial judge orally assessed the appellant’s punishment at five years in each case. At no time during either of the proceedings on September 10 or on October 29 did the trial judge expressly state that he found the appellant guilty of either offense. The appellant contends that the trial judge’s failure to orally enter adjudications of guilt renders the judgments void.

At the outset, we note that the written judgments contained in the records affirmatively state that the trial judge found the appellant guilty of both offenses on September 10, 1976, and that the appellant’s punishment in each case was assessed at five years on October 29, 1976. Also, the written sentences reflect that the appellant was formally sentenced on December 29, 1976. The written judgments and sentences contained in the record are in compliance with Articles 42.01 and 42.02, Vernon’s Ann.C.C.P.

The essential question, therefore, is whether the absence of an express oral pronouncement by the trial judge that he found the appellant guilty renders the written judgments void. We conclude that it does not. When the trial judge, after admonishing the appellant, accepting the appellant’s pleas, and hearing the State’s evidence, held the assessment of punishment in abeyance and ordered a presentence investigation, he necessarily implied that he had found the appellant guilty in each case. We hold that the trial judge’s action renders the written judgments sufficient as supported by the records.

Appellant’s contention is overruled.

The judgments are affirmed.

      . Vernon’s Ann.Civ.St., Article 4476-15, Section 4.04.

      . The State’s evidence consisted of the appellant’s judicial and extrajudicial confessions.

      .Apparently, the appellant is arguing that since the record is devoid of an oral adjudication of guilt, the written judgment is at variance with what actually occurred.