(dissenting).
This case is almost Barrientez v. State, 500 S.W.2d 474 (Tex.Cr.App.1973), all over again. The question presented is whether in a probation revocation proceeding a trial judge, over objection, may take judicial notice given in a prior trial and use the same as the basis of the revocation where such testimony is not in any way incorporated in the record.
In Barrientez the majority held that the court could take such judicial notice where the trial judge was the same and where the probationer was represented at the prior trial and the revocation hearing by the same attorney. To such improper and erroneous use of judicial notice this writer dissented. See Barrientez v. State, supra, dissenting opinion.
In the instant case the appellant was identified as the person on probation. Then, relying upon Barrientez, the State offered by inference all of the evidence heard in Cause No. 209070 where the State concluded that the appellant was found guilty of aggravated robbery and assessed a punishment of fifty (50) years. There was no sworn testimony identifying this appellant as the accused in such trial, no showing as to when such trial took place, or any showing that the offense there involved occurred while the appellant was on probation. Further, no predicate was laid in compliance with Article 39.01, Vernon’s Ann.C.C.P., so as to authorize the use of testimony from the prior case, and no transcription of the court reporter’s notes or *620any other part of the prior record appears in this appellate record. There is no way that this court can, from this record, pass upon the sufficiency of the evidence and any abuse of discretion. For the same reasons set forth in the dissenting opinions in Barrientez v. State, supra, and Stephenson v. State, 500 S.W.2d 855 (Tex.Cr.App.1973), I dissent to the affirmance of this conviction. Further, I would point out again that the Barrientez decision turned upon the fact that the judge was the same and the defense lawyer was the same. In today’s opinion, the majority refers to the fact only that the same judge presided at both the prior trial and the revocation hearing. I hope that the majority is not attempting to extend the rule of Barrientez in a case where the record reflects that the judge and the defense counsel were the same at both proceedings.
For the reasons stated, I dissent.