dissenting.
I respectfully dissent. The issue in this case is whether the evidence showed Love-lady was “in, on, or within 1,000 feet of any real property that is owned, rented, or leased to a school or school board.” Tex. Health & Safety Code Ann. § 481.134(d)(1) (Vernon Supp.2002). Neither the indictment nor the stipulation provides that element of the offense. The majority, without citation, holds a court can take judicial notice of the status of real property.3
The indictment stated, in pertinent part: "... committed the above offense in a place that [he] knew was within 300 feet of the premises of a school, to wit: Willis High School.... ” This is basically the language of Tex. Health & Safety Code Ann. § 481.134(b)(2) (Vernon Supp. 2002). However, section 481.134(c) does not apply to the offense committed by Lovelady: a violation of section 481.115(b). Section 481.134(d) enhances an offense under section 481.115(b) and section 481.134(d)(1) requires the offense to be committed “in, on, or within 1000 feet of any real property that is owned, rented or leased to a school or school board.”
Clearly the legislature intended to expand the physical location beyond “the premises of a school”, section 481.134(c)(1), to “any real property that is owned, rented or leased to a school or school board.” But, in doing so, they require the state to show more than simply situs, i.e. “premises”; they require the state to show the legal relationship of the property, i.e. owned, rented or leased.
The majority relies upon Trujillo v. State, 809 S.W.2d 593, 595-96 (Tex.App.San Antonio 1991, no .pet.Xquoting Gonzales v. State, 723 S.W.2d 746, 751 (Tex.Crim.App.1987)). Gonzales dealt with taking judicial notice that the City of San Antonio was an incorporated city. This is clearly different than taking judicial notice of the legal status of real property.4
The stipulation failed to contain an element of the offense and accordingly does not constitute a judicial confession sufficient to support Lovelady’s conviction. See Snyder v. State, 629 S.W.2d 930, 932 (Tex.Crim.App.1982), and Breaux v. State, 16 S.W.3d 854, 857 (Tex.App.-Houston [14th Dist.] 2000, pet. refd). The exception to this, some type of “catch-all” phrase that the defendant is guilty as alleged in the indictment or that the allegations in the indictment are true and correct, does not operate in the present case as the indictment also wholly omits the element in question. See Snyder, 629 S.W.2d at 932, and Breaux, 16 S.W.3d at 857.
Accordingly, Lovelady’s conviction can only be sustained through the judicial notice mechanism. I do not believe this mechanism is proper in this instance. The judgment of the trial court should be reversed and the cause remanded. See Breaux, 16 S.W.3d at 857 n. 3.
. I suppose the majority is taking judicial notice of the deed records of Montgomery County, Texas.
. Does this mean ownership does not have to be established either by testimony or other means or that deeds, deeds of trust, leases, liens, etc. no longer have to be introduced into evidence?