(concurring).
I concur in the results reached, but I would expressly point out that Article 1.15, Vernon’s Ann.C.C.P., has no application to stipulations entered in revocation of probation hearings. This was true before and after the 1971 amendment to such statute. (Acts 1971, 62nd Leg., ch. 996, sec. 1, p. 3028, eff. June 15, 1971).
At the hearing on the motion to revoke probation conducted on August 19, 1971, the appellant waived, in writing, the appearance, confrontation and cross examination of all witnesses against him, and, then, orally stipulated to the testimony of the court clerk as to the indictment, judgment, order of probation, motion to revoke, warrant and a show cause notice. Such stipulation was proper.
Further, while it is good practice to introduce such instruments, the trial court could also have taken judicial notice of the records of the court. Horman v. State, 423 S.W.2d 317 (Tex.Cr.App.1968).
I would once again caution trial judges against relying solely upon evidence of a conviction to reflect a violation of a probationary condition prohibiting the commission of a penal offense. There are many problems inherent therein. See Harris v. State, 169 Tex.Cr.R. 71, 331 S.W.2d 941 (1960); Mason v. State, 438 S.W.2d 556 (Tex.Cr.App.1969), and Jansson v. State, 473 S.W.2d 40 (Tex.Cr.App.1971).
In Jansson, this court pointed out that proof of a conviction not shown to be final will not support an order revoking probation for committing a penal offense. This is true whether the conviction is set aside or not.
In the instant case, the probation officer, who was not shown to be custodian of the court’s records or to have any personal knowledge of the alleged crime made the basis of the conviction, or of the conviction itself, testified that the appellant had been convicted in the 194th District Court in Cause No. C-71-3026-KM on July 23, 1971, for burglary and sentenced to 3 years. He testified the offense occurred during the period of probation. There was no other evidence as to the commission of a penal offense or any showing that the conviction was final.
Any error in relying upon such evidence alone was cured when the appellant took the witness stand and acknowledged he violated his probation and that he had been convicted of burglary in Judge Vance’s court.
This judicial confession is sufficient, standing alone, to justify the revocation.
I concur.