dissenting.
I dissent. While I agree with the majority’s disposition of points of error three and ten that the admission of the uncertified *544pen packets was error, I would also sustain appellant’s seventh point of error.
The majority holds that it was not error for the trial court to admit the hearsay testimony that the Dallas County Residential Center was a penal institution. I disagree. Hearsay is hearsay. In its hopscotch efforts to find the testimony admissible, the majority fabricates a basis for the evidentiary leap the State failed to make at trial. I cannot agree.
DEFINITIONS
We must first return to the elements of this offense. The first essential element of any escape offense under section 38.07 is that the defendant was in custody. Tex.Penal Code Ann. § 38.07 (Vernon 1989). Felony escape additionally requires the State to allege and prove at least one of the two prongs of subdivision (c): (1) that the defendant escaped from custody when under arrest for, charged with, or under conviction for a felony offense; or (2) that he escaped from a penal institution after being arrested for, charged with, or under conviction for any offense. The allegation and proof of either one of the two prongs are sufficient to sustain a conviction for the offense of third-degree felony escape. McWilliams v. State, 782 S.W.2d 871, 874 (Tex.Crim.App.1990).
A penal institution is “a place designated by law for confinement of persons arrested for, charged with, or convicted of an offense.” TexPenal Code Ann. § 1.07(a)(26) (Vernon 1974).
The State must first prove that Roy was in custody. It did prove that Roy had been confined in a halfway house. I agree this was sufficient to prove the custody element of the offense. The State then had to prove at least one of the two prongs of subdivision (c). I agree with the majority that the State failed to prove subdivision (1) because the pen packets evidencing Roy’s felony convictions were not properly certified. So the State had to prove subdivision (2), that Roy had been confined in a penal institution, before it could convict Roy of felony escape. The State did prove Roy’s confinement in a halfway house. But it also had to prove that the halfway house where Roy was confined was a place designated by law for the confinement of persons arrested for, charged with, or convicted of an offense.
TRIAL ERROR
We now turn to Roy’s argument. In his seventh point of error, Roy contends the trial court erred in overruling his hearsay objection to testimony by the Texas Board of Pardons and Paroles’ employee Smith that the Dallas County Residential Center was a penal institution. See Tex.R.Crim. Evid. 801(d). I agree. None of the four rationales advanced by the majority to render the testimony admissible withstands careful scrutiny.
1. Appellant Preserved His Hearsay Objection
The majority initially contends that appellant’s hearsay objection came too late. It rests its reasoning on two foundations. The majority first concludes that the appellant’s objection was too late because the question was asked and answered, citing Guzman v. State, 521 S.W.2d 267, 269 (Tex.Crim.App.1975). The exchange quoted by the majority occurred outside the presence of the jury during a voir dire conducted by the State to establish a basis for offering the testimony a second time. Earlier in the State’s direct examination of Smith, the State had asked him whether the Dallas County Residential Center was a penal institution. Defense counsel had immediately objected on hearsay grounds. The court had overruled the objection and permitted the witness to answer that the facility was a penal institution. The voir dire testimony cited by the majority came later. Later still, the State asked Smith the same question again, this time in the jury’s presence. For yet a third time, the court overruled defense counsel’s timely hearsay objection and permitted the witness to answer. What more would the majority have counsel do to preserve the objection?
The majority also reasons that Smith had earlier testified to all of the operational *545elements of the definition of a penal institution, so that appellant’s objection to the “magic words” was ineffective. All of the testimony cited by the majority as proof of the operational elements of the definition is proof only of Roy’s confinement in a halfway house. Roy did not object to the testimony of the witness that the halfway house was Roy’s assigned unit of confinement. His hearsay objection was to Smith’s testimony that the halfway house is a penal institution.
2. Judicial Notice Cannot Provide the Missing Evidence
The majority next argues that the admission of the hearsay testimony is harmless since the trial court could have taken judicial notice of the status of the Center as a penal institution. The majority searches for appellate solace on grounds the State overlooked at trial. To do so it relies on McWilliams v. State, 719 S.W.2d 380 (Tex. App.—Houston [1st Dist.] 1986), rev’d on other grounds, 782 S.W.2d 871 (Tex.Crim.App.1990), and Legg v. State, 594 S.W.2d 429 (Tex.Crim.App.1980). Par from supporting the majority’s position, these two cases demonstrate that the foundation with which it seeks to buttress its conclusion is illusory.
Both Legg and McWilliams identify two proofs which the State must present at trial before a court may conclude that a facility has been designated as a penal institution: (1) the facility is one authorized by law; and (2) facilities so authorized are places designated for the confinement of persons arrested for, charged with, or convicted of offenses. Legg had been confined in the Taylor County Jail. The Legg court took judicial notice of two statutes as proof of the two premises in order to conclude that Legg had been confined in a penal institution. First, the Legg court took judicial notice of article 5115: “[t]he Commissioners Court shall provide safe and suitable jails for the respective coun-ties_” Tex.Rev.Civ.Stat.Ann. art. 5115 (Vernon 1964). That statute alone was not enough, however; the fact that the statute authorized the Commissioners Court to provide jails did not necessarily mean that the Taylor County Jail was a penal institution. To reach that conclusion the Legg court had to judicially notice a second statute. That statute defined county jails as “any jail, lockup, or other facility that is operated by or for a county for the confinement of persons accused or convicted of an offense.” Tex.Rev.Civ.Stat.Aíin. art. 5115.1, § 2(3) (Vernon 1964). The Legg court thus judicially noticed both proofs: (1) county jails were authorized by article 5115; and (2) county jails are penal institutions pursuant to article 5115.1. It could therefore conclude, upon proof that Legg had been confined in the Taylor County Jail, that Legg had been confined in a penal institution.
Similarly, McWilliams had been confined in a halfway house. Article 6166x-4 equates to the provisions of article 5115 in Legg: the Texas Department of Corrections and the Board of Pardons and Paroles may by law jointly designate halfway houses, just as County Commissioners may establish county jails. However, there is no provision in article 6166x-4 which equates to article 5115.1. The statute does not define halfway houses as places for the confinement of persons arrested for, charged with, or convicted of offenses. Article 6166x-4 therefore did not provide the second proof, i.e., that halfway houses are places designated for the confinement of persons arrested for, charged with, or convicted of offenses.
Therefore, the McWilliams court took judicial notice of article 6166x-4 as proof that halfway houses are authorized by law. It then relied on the testimony of a Texas Department of Corrections officer as proof of what the Legg court had found was proved by article 5115.1: that halfway houses are designated by the Texas Department of Corrections as places for the confinement of persons arrested, or charged with, or convicted of offenses. McWilliams, 719 S.W.2d at 383. Instead of judicially noticing both proofs as the Legg court had, the McWilliams court took judicial notice of the first proof: (1) that the facility where McWilliams was confined was a duly-designated halfway house, and *546admitted testimonial evidence of the second proof: (2) that the Texas Department of Corrections had designated halfway houses as places for the confinement of persons arrested for, charged with, or convicted of offenses. Thus, the McWilliams court could also conclude that McWilliams had been confined in a penal institution. It is important to note that the judicial notice of article 6166x-4 alone did not provide the necessary evidence in McWilliams that the halfway house was a penal institution. The statute only provided half of the proof. The balance of the proof was provided by an employee of the Texas Department of Corrections. Thus, neither Legg nor McWilliams countenance the leap the majority seeks to make today.
3. Smith’s Statement was Hearsay
The majority next seeks to equate Smith’s testimony with the testimony of the Texas Department of Corrections employee in McWilliams. At the time appellant left the Center, designation of a facility as a penal institution was a function of the Texas Department of Corrections. Tex. Rev.Civ.Stat.Ann. art. 6166g (Vernon 1970), repealed by Act of May 26,1989, 71st Leg., R.S., ch. 212, § 3.03, 1989 Tex.Gen.Laws 918, 968-69. Legislation passed at the same session as the repeal of article 6166g created an umbrella agency under which both the Board of Pardons and Paroles and the Texas Department of Corrections now function. Act of June 15, 1989, 71st Leg., R.S., ch. 785, §§ 1.19(a) and 1.20(a)(2), 1989 Tex.Gen.Laws 3471, 3475. However, prior to that legislation the two entities operated independently. An employee of one was not an employee of the other. While article 6166x-4 provided that the entities functioned jointly in assigning prisoners to halfway houses, it did not confer any authority on the Board of Pardons and Paroles to designate a halfway house as a penal institution. That authority remained with the Texas Department of Corrections.
Smith testified he was an employee of the Board of Pardons and Paroles. He was not an employee of the Texas Department of Corrections. The State offered his testimony to prove the truth of the matter asserted, i.e., to prove that the Center was a penal institution. Under rule 801 of the Texas Rules of Criminal Evidence, the de-clarant of the statement “the facility was a penal institution” is the Texas Department of Corrections, the only entity authorized by statute at the time to designate penal institutions. Tex.R.CRIM.Evid. 801.
Had the State offered the evidence through a representative of the Texas Department of Corrections, the assertion would not have been hearsay. However, an employee of the Texas Board of Pardons and Paroles, no matter how much contact he may have had with the Texas Department of Corrections in the performance of his duties at the Center, could only have acquired his knowledge of the designation through hearsay. The assertion is hornbook hearsay: “[Ejvidence as to the purport of ‘information received’ by the witness, ... offered as proof of the facts asserted out of court, are properly classified as hearsay.” McCoRmick on Evidence § 249 at 735 (Cleary Rev., 3rd Ed.1984). The Texas Court of Criminal Appeals has stated the rule:
[Wjhere there is an inescapable conclusion that a piece of evidence is being offered to prove statements made outside the courtroom, a party may not circumvent the hearsay prohibition through artful questioning designed to elicit hearsay indirectly. In short, “statement” as defined in Tex.R.Civ.Evid. 801(a) (now see Tex.R.Crim.Evid. 801(a)) necessarily includes proof of the statement whether the proof is direct or indirect.
Schaffer v. State, 777 S.W.2d 111, 114 (Tex.Crim.App.1989) (emphasis in original). The hearsay, as always, is enlightening— but inadmissible nonetheless.
The analysis performed at length by the majority shows only the witness’s personal knowledge of the fact of appellant’s custody, the first essential element of an escape offense, not the legal status of the facility as a penal institution. See Tex.R.CRIM.Evid. 602. The State did not demonstrate Smith’s personal knowledge of the status of the Center as a penal institution.
*547Moreover, the State could not prove that halfway houses are places designated for the confinement of persons arrested for, charged with, or convicted of an offense through Smith or any employee of the Board of Pardons and Paroles, without first proving that the testimony could come in under a statute or some relevant exception to the hearsay rule. The statement was hearsay. Hearsay is inadmissible except as provided by statute or the rules of evidence. Tex.R.CRIM.Evid. 802. A defendant preserves error by raising a hearsay objection.
4. The Burden Did Not Shift To Roy
The most troublesome aspect of the majority’s analysis is its assertion that the trial court’s adverse ruling somehow shifted the burden to Roy to demonstrate that Smith’s statement was hearsay in order to preserve the error. The burden is on the State to prove a hearsay statement’s admissibility, not on the defendant to prove it is inadmissible. Hearsay is already inadmissible. Nothing more was required of appellant to preserve the trial court’s error for review. See Long v. State, 800 S.W.2d 545, 548 (Tex.Crim.App.1990). The State could have proved up the assertion through a business records hearsay exception under rule 803 of the Texas Rules of Criminal Evidence, but it was not required to do so since the trial court ruled in its favor on appellant’s hearsay objection. See Tex. R.CRIM.Evid. 803(8). The trial court erred by allowing the statement into evidence.
Further, to make the evidentiary leap that proof of custody in a halfway house equates to proof of custody in a penal institution, the majority ignores the meaning of the internal enhancement provided by section 38.07. The statute recognizes that an escape may occur from a variety of custodial situations. A suspect may be in custody on the street somewhere, in the back of a squad car, even in the suspect’s own home; essentially anywhere. However, the place a suspect escapes from enhances the violation to a felony only if the place is a penal institution.
The majority indulges in a commonplace but dangerous analytical error. The majority insists that because the State proved Roy was confined in a halfway house, it proved he was confined in a penal institution. Proof that appellant was in custody in a halfway house is no more proof that he was confined in a penal institution than proof that he was in custody in the back seat of a squad car would be. The majority’s reasoning is akin to the childhood example used to demonstrate the nonsense created by a false syllogism: “All kangaroos are animals. Kangaroos hop. Therefore all animals hop.” The majority has constructed an equally-fallacious syllogism: “Prisoners are confined in penal institutions. Article 6166x-4 authorizes confinement of prisoners in halfway houses. Therefore Roy was confined in a penal institution.” The logical error the majority commits is to conclude that because a suspect may be legally confined in a halfway house, halfway houses are penal institutions. This flawed logic transforms a premise which the State must prove into the conclusion itself.
HARMFUL ERROR
Once again, the State had to prove either of the two prongs of felony escape. Despite the majority’s conclusion that the trial court’s error in admitting the uncertified pen packets was harmful, only when the State fails to prove either prong do the trial errors become harmful. If the State had proved one prong, as the majority concluded, error in admission of evidence to prove the other prong is harmless. Because my disposition of points three and seven mean the State failed to properly prove either prong of felony escape, the errors in both are therefore harmful. I would reverse and remand.
Because points three, seven, and ten are dispositive of the appeal, I would not deem it necessary to discuss appellant’s remaining points of error. I would reverse and remand for a new trial on guilt/innocence instead of only on punishment.