McDonald v. State

This is an appeal from an order revoking probation followed by imposition of sentence for the original offense. The most serious problem that confronts us arises from a variation on the Barrientez -Brad-ley theme of a new form of judicial notice. That is, a trial court hearing a motion to revoke probation may judicially notice evidence admitted by the court in a prior trial of the primary offense to determine whether the motion is supported by a preponderance of the evidence-if the same trial judge presided over both proceedings and, perhaps, the accused was represented by the same counsel.

The case we now review is on a record that contains what Bradley ordered reproduced: the certified and approved transcription of the court reporter’s notes of testimony and other evidence at the former trial of the primary offense which, just like Bradley’s, was mistried due to a hung jury. We are thus able now to examine what the Court in Bradley could not and to date has not. And with this record we must address what most certainly is a question of first impression in the Barrientez-Bradley doctrine. The setting is accurately described by the trial court in the course of the revocation hearing and after overruling appellant’s objections to the prospective procedure:

“THE COURT: All right. The objection will be overruled.

Let the record show that this Court heretofore on September 11th and September 12th, 1978, presided over Case No. 18686 styled The State of Texas versus Teddy Joe McDonald wherein it was alleged that Mr. McDonald committed the offense of burglary of a habitation alleged to have been committed on the 8th day of May of 1978 and that a jury was impaneled; the evidence was heard by the jury and the Court.

That the Defendant was very ably represented by Mr. David Bass, a practicing attorney who is now present with the Defendant in this hearing.

And that the jury could not arrive at a verdict and after being out some three to four hours, reported that they were hopelessly deadlocked and could not reach a verdict by deliberating any longer, at this time this Court declared a mistrial; and that the case is now still pending.

Let the record further show that I was present at all times and heard all of the evidence that is now being introduced and am aware and acquainted with the testimony and have before me now my notes taken, as well as the docket sheet, reflecting all of the happenings.

And with that, an offer of all the entire testimony will be received by this Court over the objection of the Defendant; and he has his exception.

(Thereupon the entire testimony in Cause No. 18,686 styled State of Texas vs. Teddy Joe McDonald was marked State’s Exhibit No. 1 for identification and received in evidence and said Q & A Statement of Facts is included in this Record on Appeal on the pages as indicated in the index hereof.)”

Neither that statement by the trial court nor the record reveals precisely what it was that caused the jury to be “hopelessly deadlocked and could not reach a verdict by deliberating any longer,” but the parties practically agree that the problem was the credibility of the principal witness presented by the State. Thus, appellant contends that the case for the State “rested heavily upon the testimony of probationer Troy Marshall,” which he then proceeds to dissect and points to inconsistencies, fabrications and contradictions that rendered it “demonstrably unreliable and self-serving.” So much the State concedes for it says:

“As the Appellant’s brief points out, the witness Marshall was the subject of much impeachment during the course of the trial. This attack on his credibility no doubt played an important part in the jury’s failure to reach a verdict.”

But, the State hastens to add, “Nevertheless, at a probation revocation hearing it is the trial judge who is the sole trier of fact and must weigh the credibility of the witnesses.” Exactly, and therein we believe lies the slender constitutional issue that is nicely presented in this case through an unblinking application of the Barrientez-Bradley doctrine.

“(I)t is well established that revocation of probation hearings are a part of the criminal law process ‘where substantial rights of a criminal accused may be affected’ and to which federal constitutional standards are applicable,” Stephenson, supra, 500 S.W.2d at 858-859 (Dissenting opinion of Presiding Judge Onion).

Just as federal standards are, so also are the requisites and protections of the Constitution of the State of Texas applicable to probation revocation hearings. Though the hearing is not a trial in the constitutional sense, Bradley, supra, in Texas it clearly is held in the context of our criminal process, Campbell v. State, 456 S.W.2d 918, 921 (Tex.Cr.App.1970) and, implicating as it does substantial rights and serious deprivation of conditional liberty, Morrissey v. Brewer, 408 U.S. 471, 480, 92 S.Ct. 2593, 2599, 33 L.Ed.2d 484 (1972), Gagnon v. Scarpelli, 411 U.S. 778, 781-782, 93 S.Ct. 1756, 1759, 36 L.Ed.2d 656 (1973), the proceeding is constrained by the “due course” clause of Article I, § 19 of the Bill of Rights, if not by the “rights of accused” vouchsafed in Article I, § 10. The substantial interests here are as perceived in Gagnon v. Scarpelli, supra, 411 U.S. at 785, 93 S.Ct. at 1761:

“Both the probationer ... and the State have interests in the accurate finding of fact and the informed use of discretion — the probationer ... to insure that his liberty is not unjustifiably taken away and the State to make certain that it is neither unnecessarily interrupting a successful effort at rehabilitation nor imprudently prejudicing the safety of the community.”

Thus it is that Morrissey v. Brewer, supra, laid down “minimum requirements of due process” that were reaffirmed in Gagnon v. Scarpelli, supra, 411 U.S. at 786, 93 S.Ct. at 1762 to “serve as substantial protection against ill-considered revocation,” id., including “a written statement by the fact-finders as to the evidence relied on” and reasons for revoking probation.

In pronouncing its order of revocation the trial court stated:

“THE COURT: All right. It will be the order of the Court that the probationer Teddy Joe McDonald did violate the terms and conditions of his probation in that he did on the 8th day of May of 1978 in Lubbock County, Texas commit the offense of burglary as alleged in the Application to Revoke; the same being the burglary of the habitation of Paul McLaughlin. And that the probation was in effect and in force at the time of the commission of the offense.

The Court finds by a preponderance of the evidence as heard and reintroduced in this cause that he did commit the offense against the laws of this or any other state or the United States and therefore he has violated his probation and that the probation is hereby revoked, and the Defendant is hereby-judgment is hereby entered that the Defendant be committed to the Texas Department of Corrections for a period of 10 years and that the State have any and all costs for which let execution issue.”

Its written order reiterated in more formal terms substantially the oral pronouncement.

What is not revealed by these recitations or by anything else in the record is that which we find is the crucial question in the case: Having taken judicial notice of all the testimony and evidence adduced on the former trial, how did the trial court regard and treat the testimony of Troy Marshall, the principal witness for the State at trial, in finding by a preponderance of the evidence that appellant had in fact committed the offense charged in the motion to revoke?

Without an answer to the question, we do not know and cannot know whether the trial court accepted all or part of the testimony of Marshall or rejected it as unreliable and believed other evidence sufficient to make a preponderance. It will not do, as does the dissent, merely to say “it was for the trial judge independently to weigh the credibility of the witnesses.” As a reviewing Court addressing the central issue in this revocation matter-whether the trial court abused its discretion in making and entering the order that it did-we must know what weight, if any, was given to the trial testimony of Marshall.

Accordingly, on the thin issue that is critical to our review in this unique setting, we hold that a trial court which takes judicial notice of all testimony and other evidence admitted before a jury in a former trial of the primary offense that is mistried, because the jury deadlocked ostensibly over credibility of the principal witness presented by the State, is required by the Due Process and Due Course clauses to make specific findings concerning its acceptance or rejection of any testimony given by and credibility of the principal witness, and include them in its order revoking probation.

Therefore, because those findings were not made in this case, we cannot conclude that the order revoking probation is supported by a preponderance of competent evidence, and it is set aside and the cause remanded.

It is so ordered.

. Barrientez v. State, 500 S.W.2d 474 (Tex.Cr.App.1973).

. Bradley v. State, 564 S.W.2d 727 (Tex.Cr.App.1978).

.It was also orchestrated in 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 most recently in Cleland v. State, 572 S.W.2d 673 (Tex.Cr.App.1978).

.Cf. Barrientez, supra, in which that feature is not noted, with Stephenson, supra, in which it pointedly is; see O’Hern, supra, where sameness of counsel was spotted by Presiding Judge Onion; see Green, supra, where that factor is not alluded to by the majority; but, because admitted on oral argument to be true, persuaded concurring Judge Roberts that “requirements of Barrientez ... are thus satisfied;” and caused Presiding Judge Onion to despair in dissent that Barrientez was being extended to the situation where “the judge and defense counsel were the same at both proceedings,” 528 S.W.2d at 620. In Bradley, supra, the majority did not “waiver from our firm adherence” to Barrientez and, accordingly, did not mention defense counsel; Judge Dally concurred with a suggested procedure that would practically assure sameness; Presiding Judge Onion read cases following Barrientez to make clear that “counsel should be the same,” 564 S.W.2d at 736; Judge Douglas was satisfied the Court was still following Barrientez, 564 S.W.2d at 737; like Presiding Judge Onion, Judge Phillips would overrule Barrientez, 564 S.W.2d at 740. See also Cleland, supra, in which there being but a single proceeding counsel was necessarily the same.

. For the understandably curious we report that after the appeal in Bradley was abated for reproduction of testimony in Cause No. F -76 - 1545-NJ there was prepared and transmitted to the Clerk of this Court a record of the testimony in Cause No. F-76 1545 LJ. In a per cu-riam opinion delivered November 8, 1978, the Court again abated the appeal to obtain the testimony in the cause the trial court identified as the one being judicially noticed, 573 S.W.2d 30.

. Appellant objected to admission of the exhibit as a denial of effective cross examination and confrontation of witnesses and due process of law.

. Cited are the authoritative opinions in Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967); McConnell v. Rhay, Stiltner 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); Eiland v. State, 437 S.W.2d 551 (Tex.Cr.App.1969).

. Section 19 provides in pertinent part, “No citizen of this State shall be deprived of ... liberty ... except by due course of the law of the land.” Early on, agreeably with Mr. Cooley, the language was held to mean “the general law; a law which hears before it condemns, which proceeds upon inquiry and renders judgment only after trial,” Huntsman v. State, 12 Tex.App. 619 (1882). See also Bumguardner v. State, 147 Tex.Cr.R. 188, 179 S.W.2d 768, 770 (Tex.Cr.App.1944).

.In Wilcox v. State, 477 S.W.2d 900, 902 (Tex.Cr.App.1972) the Court was disadvantaged by failure of the trial court “to make findings as to basis of the revocation” and has since commended the practice of “reciting specific findings in orders revoking probation,” Guillory v. State, 487 S.W.2d 327, 330, n. 1 (Tex.Cr.App.1972), that it required in, e. g., Wozencraft v. State, 388 S.W.2d 426 (Tex.Cr.App.1965), after strongly suggesting it in McBee v. State, 166 Tex.Cr.R. 562, 316 S.W.2d 748 (1958). But then the Court has also blunted the thrust of its mandate by imposing on the appellant the necessity of making a request for “specific findings in the order revoking probation” before failure to make them becomes reversible error. See Clapper v. State, 562 S.W.2d 250, 251 (Tex.Cr.App.1978); Rodriguez v. State, 552 S.W.2d 451, 456 (Tex.Cr.App.1977); Lucero v. State, 502 S.W.2d 128, 130 (Tex.Cr.App.1973). Lucero, supra, both pointed to “the better practice” and viewed the failure to request findings but opted for neither, concluding, “Under the circumstances of this particular case, it would be difficult to say the appellant was misled,” 502 S.W.2d at 130. In short, the dictum has never been elevated to constitutional level. In the instant case, however, it is.

. “And it appearing to the Court, after a hearing was had and the testimony heard, that Defendant, TEDDY JOE McDONALD, had violated the conditions of said probation, to-wit:

(a) On or about the 8th day of May, A.D. 1978, in Lubbock County and State of Texas, and after having been heretofore placed on probation, Probationer did then and there without the effective consent of Paul McLaughlin, the owner thereof, enter a building not then and there open to the public, and that said building was then and there a habitation occupied by the said Paul McLaughlin, with intent to commit theft, to-wit: with intent then and there to appropriate property unlawfully from Paul McLaughlin, without the effective consent of Paul McLaughlin, the owner of said property, and with intent to deprive the said owner of said property.

And that such violations of the terms of said probation occurred within the probationary term as heretofore set out in this cause;

NOW, THEREFORE, IT IS ORDERED, ADJUDGED AND DECREED that the probation heretofore ordered, set out and granted to the Defendant, TEDDY JOE McDONALD, is in all things revoked..

. We understand the trial court noticed these matters through its use of notes and docket sheet entries personally made, as opposed to the transcription of the notes of the court reporter which apparently was not actually produced until some six weeks after probation had been revoked.

. Given the diversity of views expressed by other members of this panel what is stated in the accompanying text is not, of course, a “holding” by the Court. Furthermore, the “holding” assumes that the Barrientez-Bradley form of judicial notice remains viable-an assumption to which the writer has not yet committed but is willing to accept for purposes of this opinion.