dissenting.
In 1980, before five of the present members of this Court, including this writer, were elected to this Court, an aggressive and assertive majority of this Court, without taking into consideration the fact that due process and due course of law must be satisfied in criminal trials, ruled in Frazier v. State, 600 S.W.2d 271 (Tex.Cr.App.1980), that unobjected to hearsay testimony has probative value in a revocation proceeding and could constitute sufficient evidence to support an order revoking probation. The only basis for this decision was apparently the fact that at least five judges of this Court became mesmerized by the following statement that Judge Odom made in the dissenting opinion that he filed in that cause, which dissenting opinion was ultimately adopted by the then aggressive and assertive majority of the Court as the majority opinion of this Court: “Texas and Georgia are the only two jurisdictions which have followed the rule that unobject-ed to hearsay testimony has no probative value and will not support a judgment.” (273). Because my research reveals that this statement is totally and absolutely unverified as a matter of law, Frazier, supra, has no foundation for its holding that unob-jected to hearsay testimony can be considered in judging the sufficiency of the evidence in a revocation of probation proceeding. It should be post haste expressly overruled.
In the dissenting opinion that Presiding Judge Onion filed in Frazier, supra, he exclaimed: “Batten down the hatches. The majority, with their disdain for precedent, stare decisis and revocation proceedings in particular, are headed for ‘greater’ things. They are only laying the foundation for extending the rule narrowly adopted today to all criminal trials. Let there be no mistake, and let the bench and bar beware of what is coming.” (275).
Wait no longer, Presiding Judge Onion and the members of the bench and bar of this State. Today, another aggressive and assertive majority of this Court, with its similar disdain for precedent, stare decisis, and just good old plain common horse sense, has concluded that in judging the sufficiency of the evidence in any criminal case, the rule that unobjected to hearsay evidence is without probative value, simply because of age, should be post haste dispatched to Davey Jones’ footlocker, where this Court stores its “old” but sound decisions after one of its temerarious bouts of geriatricide. Where is that Governor of Colorado who advocated that because old persons are no longer productive they should be killed? Maybe lurking somewhere in the corridors of this Court?
The present aggressive and assertive majority of this Court is so bold in its endeavors that it cannot even wait until September 1, 1986, when the Texas Rules of Criminal Evidence, which were conceived with*254out public debate, and behind closed doors, and later given birth without public debate, and behind closed doors, become effective. The aggressive and assertive majority thus induces labor today in order to give premature birth to a creature that only prosecuto-rially oriented persons, academicians, and law professors could love.
I am also compelled at this time to echo the comments that Presiding Judge Onion recently made in the dissenting opinion that he filed in Hypolite v. State, 647 S.W.2d 294, 296 (Tex.Cr.App.1983): “Another old and tested rule bites the dust so some judicial warriors can hang another scalp on their belts. See Hankins v. State, 646 S.W.2d 191 (Tex.Cr.App.1983) (abolition of the necessity to ever charge on the law of circumstantial evidence); Ex parte McWilliams, 634 S.W.2d 815 (Tex.Cr.App.1982) (opinion on State’s motion for rehearing) (abolition of the carving doctrine); Faulder v. Hill, 612 S.W.2d 512 (Tex.Cr.App.1981) (authorizing the right of the State to appeal in certain circumstances despite constitutional and statutory prohibitions).” In Hypolite, supra, a majority of this Court abolished the rule of law that a motion to dismiss the appeal had to be notarized.
I also believe that Judge Roberts, a former member of this Court, if he were still on the Court, would repeat today what he stated in the dissenting opinion that he filed in Butler v. State, 493 S.W.2d 190, 198 (Tex.Cr.App.1973), to which saying I subscribe: “I am not a slave to stare deci-sis as to adhere to holdings that are not reasonable or rational, simply because they are old ... But the fact that other jurisdictions have followed a different rule does not make our rule unreasonable.”
“To that great warrior (unobjected to hearsay testimony is without probative value in judging the sufficiency of the evidence) ... who has served us well, I can only say: Mortis momentum est ultimum vitae momentum.” Hankins v. State, 646 S.W.2d 191, 221 (Tex.Cr.App.1983) (Teague, J., dissenting opinion).
Ah, but today an aggressive and assertive majority of this Court causes Texas to now be able to keep up with the Joneses. What happened to the independent spirit that we Texans have so long held to be so dear? Apparently, G.T.H.
The majority opinion also tells us that it will demonstrate why the precedent for the rule that unobjected to hearsay testimony may be considered in judging the sufficiency of the evidence has no reasonable underpinnings, and we should not “bury our heads in the sand when such criticism (against the rule) is voiced.” Alas, although we are told that we are about to witness a demonstration, such demonstration, like the reasons the majority opinion gives why the rule is no longer viable, represents only an illusion. Where is that fellow from France who lighted up Houston’s skies not too long ago? Because the aggressive and assertive majority apparently does not understand the meaning of the words exhibition or demonstration, it should contact that fellow from France, because I believe he could teach them a thing or two about what an exhibition or demonstration really is.
In light of what he writes for the Court today, I find it rather interesting that Judge Campbell stated less than a year ago the following on behalf of this Court in Gardner v. State, 699 S.W.2d 831 (Tex.Cr.App.1985), in which opinion all but two judges of this Court joined, and those two concurred in the result:
The court of appeals ... applied our well established rule that:
‘Hearsay is without probative value, even if admitted without objection. (Citations omitted). It constitutes no evidence, and will not be considered in determining the sufficiency of the evidence.’ (Citations omitted).
In making this statement, Judge Campbell even directed our attention to Belverman v. State, 16 Tex. 131 (1856), a case that is now over 130 years old. In Belverman, supra, Justice Wheeler of the Texas Supreme Court, stated the following: “But mere hearsay is not only not the best, nor *255even secondary evidence; it is no evidence.” (132.) Apparently because it was such a well-known fact, he did not even cite any authority for the statement.
However, today is another day. Of course, as easily seen, supra, any case that is older than 100 years is always in jeopardy of being expressly overruled by an aggressive and assertive majority of this Court — simply because it is too old, or, as Presiding Judge Onion states, because the majority has the legal muscle to do that, and for no other reason.
In overruling the above long standing principle of law that has served this Court so well, that unobjected to hearsay testimony is without probative value in deciding the sufficiency of the evidence, Judge Campbell and the other members of this Court who join his opinion continue to perpetuate the following myth: “In fact, Texas (in criminal cases only) and Georgia are the only American jurisdictions that completely deny any probative value to hearsay in determining sufficiency of the evidence claims.” Authority for this statement is 79 A.L.RM 890.
I state that the statement is a myth. By this, I mean that I have read the cited annotation, but find that it does not support the statement that Judge Campbell makes. J.A. Bock, the author of the annotation, actually stated the following: “It appears to be the general rule, supported by the overwhelmining weight of authority, that where inadmissible hearsay evidence is admitted without objection, it may properly be considered in determining the facts, the only question being with regard to how much weight should be accorded.” (897-98). (My emphasis.) Thereafter, Bock lists citations from forty different states. However, if one will take the time and trouble to read all of the cases cited, or better yet, use West Law or Lexis, I believe that he will find, like my former and present staff members and I have found, that the figure is not forty, but only possibly thirty-five. Several times I have challenged representatives of the great State of Texas to present to me 48 citations from 48 different state supreme courts that will support the statement Judge Campbell makes, but to date I have found no takers.
The statement, “Texas and Georgia are the only two jurisdictions which have followed the rule that unobjected to hearsay testimony has no probative value and will not support a judgment,” probably comes to us from the law review article authored by a professor of law at St. Mary’s University, Hon. Thomas Black, “Hearsay Admitted Without Objection — A Defense of Its Probative Value,” 17 South Texas Law Journal 69 (1975), in which he made a plea to the Supreme Court of Texas for it to abolish the rule that unobjected to hearsay testimony was without probative value in judging the sufficiency of the evidence, which had long been a rule of law on the civil side of the docket. Therein, without citing the reader to any valid authorities, but citing the reader to only one citation, Black stated the following: “This restrictive attitude is shared only with Georgia.” (69).
Black and his followers succeeded in their pleas because effective September 1, 1983, the Supreme Court did abolish the rule on the civil side of the street.
I pause to point out that because our judicial brethern on the third floor might have goofed is no excuse for this Court to also goof.
Frazier v. State, 600 S.W.2d 271 (Tex.Cr.App.1979), 11 A.L.R4th 990 (1979), probably helped give the unverified statement a certain amount of appeal and momentum. However, but as the author of that annotation points out, even in a revocation of probation proceeding, unobjected to hearsay evidence is viewed with a great amount of caution and trepidation.
Of course, the kind of hearsay that is involved in this case, which is used to affirm the conviction of the appellant, should be viewed as being without probative value because it lacks the corroboration of an oath or affirmation.
Although it is easy to cant that “Inadmissible hearsay evidence, admitted with*256out objection, shall not be denied probative value merely because it is hearsay,” without more such fails to take into consideration such things as the fact that a criminal judicial proceeding is governed by principles of due process and due course of law; the right of confrontation that is guaranteed a defendant in a criminal trial; and the right to the effective assistance of counsel, etc.
Most of the critics of the rule that unob-jected to hearsay does not have probative value in judging the sufficiency of the evidence usually make their pitch, as Black did, see supra, along the lines that “It reduces litigation to a game”; “it promotes game playing.” I believe that such foolish thinking is predicated upon several erroneous beliefs, in particular, that all licensed attorneys relish a victory on appeal over a victory in the trial court. Only a person who lives and sleeps in a tree or in an academic ivory tower could believe this. This kind of postulation actually represents perverse thinking in the highest degree, academicism at best.
On October 27, 1983, the Port Worth Court of Appeals reversed the trial court’s judgment of conviction and ordered that a judgment of acquittal be entered on behalf of the appellant after it found that without the unobjected to hearsay evidence, the evidence was insufficient to sustain the conviction of the appellant. On April 4, 1984, this Court refused the petitions for discretionary review that had been filed by the District Attorney of Dallas County and Hon. Alfred Walker, Assistant State Prosecuting Attorney. However, on December 5, 1984, this Court granted the motion for rehearing that had been filed by Walker. In a multifarious ground for review, Walker again urged this Court to overrule the above rule. Because the ground for review is multifarious, I would do what this Court often does to defendants, and that is hold that because it is multifarious it is not subject to review. Furthermore, for the reasons expressed by Judge Clinton in the dissenting opinion that he has filed in this cause, I would put the improvidently granted stamp to the State’s motion for rehearing.
I join part of the dissenting opinion that Presiding Judge Onion has filed in this cause, in which he so eloquently states, inter alia, the following: “The majority now reverses the Court of Appeals and affirms the conviction. In doing so the majority finds it necessary to slip into the graveyard and exhume the rule discussed in Cruz, and then, with a flourish, rebury the rule with a funeral oratory that the black-hatted villain (meaning rule), so ‘inherently illogical,' is now dead and is being ‘deep sixed’ by an intelligent and enlightened majority far superior to those who applied the rule for over 130 years. All that is missing is the request ‘Please applaud’ ... Just why this case was chosen as a vehicle to again bury one rule and announce the birth of another dealing with hearsay ... is not made clear unless it was something that just appealed to the majority’s fancy, and it decided that it had the muscle to do it.”
The majority opinion states the following: “Since, as will presently be demonstrated, inadmissible hearsay does possess probative value, it should be considered in determining the sufficiency of the evidence.” (My emphasis.) I am still waiting for the demonstration because I cannot find it in the opinion. Other than referring the reader to Black’s law review article, quoting from some off-the-wall foreign court decisions, that only mimic the critics regurgitating what the critics have said, referring the reader to inapplicable areas of the law, such as extradition, and simply concluding “The time has come for this Court to acknowledge the lack of any rational underpinning for the special treatment of hearsay in sufficiency of the evidence cases,” Judge Campbell, on behalf of the aggressive and assertive majority of this Court, leaves the reader breathlessly waiting for the demonstration. Perhaps, however, the demonstration is only an illusion that Judge Campbell has created.
If the majority opinion is correct, the appellant should have a “gut” not only *257when he pursues his post-convietion application for writ of habeas corpus but also when he sues his trial lawyer for damages on the civil side of the street for malpractice.
To the overruling a rule of law that has served Texas criminal jurisprudence well for over 130 years, I respectfully dissent.