dissenting.
The chickens hatched by Barrientez v. State, 500 S.W.2d 474 (Tex.Cr.App.1973), are coming home to roost. Instead of putting an end to the mounting problems created by Barrientez and its progeny by overruling Barrientez, the majority warmly embraces this erroneous rule, and in an apologia, seeks to shore up the rule in the light of the circumstances of the instant case. It abates the appeal to allow the State to supplement the record by including the testimony from a prior trial record of which the trial judge took “judicial notice” in this revocation proceeding but which was never included in the record in the first place. The State is thus allowed to re-open its case and to correct its mistake by abatement of appeal.
On October 16,1975 the appellant entered a plea of guilty before the court, after waiving trial by jury, to the offense of burglary of a habitation. His punishment was assessed at six (6) years’ imprisonment, but the imposition of the sentence was suspended and he was placed on probation. Among the probationary conditions imposed was the requirement that appellant “(a) Commit no offense against the laws of this or any other state or the United States.”
On January 27, 1976 the State filed a motion to revoke probation alleging “on or about the 25th day of January, 1976, in Dallas County, Texas, Rickey Lee Bradley did then and there intentionally and knowingly cause the death of an individual, Dwaine Barnes, by hitting him in the head with a hammer.”
On September 2, 1976 a hearing was conducted on said revocation motion, to which the appellant pled “untrue.” The court then announced the burden was upon the State and authorized it to proceed. The record then reflects:
“MR. DAVIS (Assistant District Attorney): Your Honor, at this time the State would ask the Court to take judicial notice and knowledge of testimony heard by the Court in Cause No. F-76 — 1545—NJ, The State of Texas versus Rickey Lee Bradley, wherein the Defendant was charged with murder, which testimony the Court heard on July 6th, 1976, in this same court, which trial was a jury trial, which trial resulted in a hung jury.
*734“MR. SUMNER: Your Honor, I object to the Court taking judicial notice and ask that the State put on its ease in order to prove up the grounds to revoke his probation.
“THE COURT: On what grounds do you object to my taking notice?
MR. SUMNER: I would think this isn’t a matter the Court could take judicial notice of.
“THE COURT: I’m going to overrule your objection. I recall the trial and I recall the testimony. I want the record to show this is testimony that was heard in this court by this Judge and I want the record to further show that the Defendant was present at the time that the testimony was given, that he was represented by counsel at the time the testimony was given, and further that his right to confrontation and cross-examination of witnesses were reserved during that trial. For those reasons, I will take judicial notice of the proceedings in this court, which I think the law permits me to do. Do you rest?
“MR. DAVIS: The State rests.
“MR. SUMNER: The Defense rests, Your Honor.”
Both sides then closed and the court, without more, revoked probation. Sentence was imposed and notice of appeal was given.
The appellate record as prepared contained no testimony from the said Cause No. F-76-1545-NJ or other records and there is nothing showing what testimony the trial judge took “judicial notice” of, whether the deceased in said cause was the same deceased as alleged in the revocation motion or whether the offense occurred during the probation period.
After appellant filed his appellate brief in the trial court in accordance with Article 40.09, V.A.C.C.P., the trial judge conducted a hearing on September 9, 19771 to supplement the record, over the objection of appellant, to show that the defense attorney in said Cause No. F-76-1545-NJ was the same attorney for the appellant at the revocation proceedings. The docket sheet from Cause No. F-76-1545-NJ was introduced. It noted Steve Sumner as defense counsel, who was also counsel at the revocation hearing.
In three related grounds of error appellant urges that the trial judge improperly took judicial notice of the facts upon which the probation was revoked, that the evidence was insufficient to justify revocation, and that even if Barrientez v. State, 500 S.W.2d 474 (Tex.Cr.App.1973), is applicable, its requirements were not here met since there was no proper showing that the defense counsel were the same at the prior trial and at the revocation hearing.
In Barrientez v. State, supra, the majority extended the rule of judicial notice by permitting a trial judge in a revocation of probation hearing to take judicial notice of testimony offered at a prior trial over which the same trial judge presided.
The rule adopted in Barrientez was contrary to the long standing holdings that a trial judge may take judicial notice of its previous orders, records, et.c., but he cannot take judicial notice of testimony heard before him on another trial and enter independent judgment thereon. Scott v. Clark, 38 S.W.2d 382 (Tex.Civ.App.—Austin, 1931); Grayson v. Rodermund, 135 S.W.2d 178 (Tex.Civ.App.—Austin, 1939); Entrekin v. Entrekin, 398 S.W.2d 139 (Tex.Civ.App.—Houston, 1966); Ex parte Turner, 478 S.W.2d 256 (Tex.Civ.App.—Houston [1st Dist.], 1972), no writ history.
“ . . . [i]t is well settled that the scope of the exercise of the function of judicial notice is not coextensive with the personal knowledge of the individual judge . . . The judge may personally know a fact of which he cannot take judicial notice ... If the judge has personal knowledge of a fact not judicially known the proper way to make use of it is for him to take the stand as a witness and testify to what he knows . . .” *735Texas 'Practice, 1 McCormick & Ray, 2nd Ed., Evidence, § 152, p. 1972. See also Jackson v. State, 70 Tex.Cr.R. 582, 157 S.W. 1196 (1913); Lerma v. State, 81 Tex.Cr.R. 109, 194 S.W. 167 (Tex.Cr.App.1917).
Without discussing these holdings or the rule of judicial notice in general, the majority in Barrientez simply stated:
“Certainly, Judge Walker could take judicial notice of the evidence introduced in that prior proceeding. Are we to pretend that this judge was not present at the murder trial, and force the State to reproduce the same witnesses? We think not. Such a requirement would place an unreasonable burden upon the State.”
Of course, the question in Barrientez was not whether Judge Walker was present at the earlier murder trial, but whether he could properly take judicial notice of the testimony in such prior trial. And surely the rules of evidence should not be changed simply because the State must shoulder the obligation imposed on it by law.2
“Judicial knowledge is that which is so notoriously and indisputably known that everybody, including the court, knows it. And if a fact is judicially noticed, it need not be pleaded or proved.” 23 Tex. Jur.2d, Evidence, § 10, p. 27.
The majority acknowledges that the theory of allowing judicial notice of a fact is that the fact “is so easily determinable with certainty from sources considered reliable, it would not be good sense to require formal proof,” 1 McCormick and Ray, Texas Law of Evidence, 2nd Ed., § 151, but requires proof of the prior testimony of which the judge took “judicial notice” in the instant case. The basic purpose of judicial notice is to dispense with formal proof. Thus, the basic flaw in the reasoning m Barrientez is exposed like a raw nerve.
It is interesting, very interesting, to note that in Barrientez and Green v. State, 528 S.W.2d 617 (Tex.Cr.App.1975), re-affirming the Barrientez rule, the testimony of the prior trials which were “judicially noticed” were not in the appellate records of those cases, and yet those cases were affirmed, putting foundation under the so-called Bar-rientez rule. Today, however, the instant case is abated because of a defect in the appellate record, “ . . . the absence of the testimony of which the court took judicial notice.” If it is a defect in the instant case, and certainly it is, then it was a defect in the Barrientez and Green records. How this court was able to pass on the sufficiency of the evidence to sustain the revocations in Barrientez and Green, and is not able to do so in the instant case, is not answered by the majority. There is only one plausible explanation which the majority has yet to acknowledge or mention. The prior trials in Barrientez and Green resulted in convictions and appeals were taken therefrom and the appellate records in those cases were in this court and available when the appeals from the probation revocations were being considered. While the majority does not admit it,3 it is obvious the majority looked to these records in determining the sufficiency of the evidence to justify the revocations, although it is not proper for this court to look to another appellate record to supply any deficiency in the proof of another case under consideration on appeal. See 1 McCormick and Ray, Texas Law of Evidence, § 186, p. 207 (2nd Ed., 1956); Cain v. State, 468 S.W.2d 856, 861 (Tex.Cr.App.1971). How else could there have been a determination of the *736sufficiency of the evidence to sustain the revocations in Barrientez and Green ?
The majority opinion talks of “the defect to be avoided” and the obligation of the State to have the record reflect the facts judicially noticed by the trial court, but does this obligation vary from case to case depending upon whether an appeal is taken from the prior conviction whose testimony is judicially noticed? The bench and bar are left to wonder. The majority opinion avoids the subject.
There are other problems with the Bar-rientez rule. Suppose upon an abatement of an appeal or even at the time of the revocation hearing it is discovered that the court reporter has lost or destroyed his notes from the prior trial and there is no way to reproduce a transcription of such notes. What happens then with regard to the “judicial notice”? Is the “judicial notice” of the facts so easily determinable with certainty from sources considered reliable still valid? Does the abatement then become a reversal upon such showing?
While Barrientez did not make plain whether defense counsel should also be the same at both the prior trial and the revocation hearing for the extension of the rule to apply, later cases have made clear that counsel should be the same. Stephenson v. State, 500 S.W.2d 855 (Tex.Cr.App.1973); O’Hern v. State, 527 S.W.2d 568 (Tex.Cr.App.1975) (Concurring Opinion); Green v. State, supra (Concurring Opinion). Under any circumstances, the defense counsel was the same at both hearings in Barrientez, Stephenson, O’Hern and Green. It is observed that Judge Roberts, the author of the Barrientez opinion, concurred in Green with the following comments:
“I concur in the result reached in this case. Although it does not appear from the record that counsel at the revocation hearing was the same as counsel at the trial of the aggravated robbery charge, such fact was admitted by the parties at oral argument. The requirements of Barrientez v. State, 500 S.W.2d 474 (Tex.Cr.App.1973), for the introduction of this testimony are thus satisfied.”
Such concurring opinion was necessary because the majority opinion in Green simply ignored the question of whether the same counsel was involved in applying the Barrientez rule.
All of this raises the question of just how valid a rule of “judicial notice” is that depends upon the lawyers for the defendant being the same at the prior trial and at the revocation hearing. Yet it is so well established as not to require the citation of authority that a defendant is entitled to counsel and the effective assistance of counsel at a hearing on the revocation of probation.4 How can such counsel be effective if he was not the same counsel at the prior trial, or how can he properly object to the matters of which the court is taking “judicial notice,” but of which he is completely ignorant? This is just another problem with the Barrientez rule.
The majority suggests that for “judicial notice of facts as here considered” the complete record of the prior trial should be completely incorporated in the appellate record as was done in O’Hern v. State, supra,5 or by reading into the record selected excerpts from the prior testimony “judicially noticed” as was done in Stephenson v. State, supra. In doing so, the majority *737neither considers nor explains Article 39.01, V.A.C.C.P., and the predicate it requires for admission of testimony of a prior hearing. In Carver v. State, 510 S.W.2d 349 (Tex.Cr.App.1974), cert. denied 419 U.S. 841, 95 S.Ct. 71, 42 L.Ed.2d 68, it was held that for prior testimony given by a witness at a former trial or hearing to be admissible at a subsequent trial it must be shown that the witness’ prior testimony was given under oath, that it was competent, that the accused was present and had adequate opportunity to cross-examine through counsel and that the accused was the defendant at the former trial or hearing upon the same charge, and that such predicate must be clearly and satisfactorily established before the prior testimony can be reproduced. See also Forbes v. State, 513 S.W.2d 72 (Tex.Cr.App.1974); Whitehead v. State, 450 S.W.2d 72 (Tex.Cr.App.1968).
The majority seems to justify its position “in light of the special considerations surrounding . . . revocation proceedings.” Although it is acknowledged that a probationer is entitled to due process in revocation proceedings,6 attention is called to the fact that the State’s burden of proof is by a preponderance of evidence, Scamardo v. State, 517 S.W.2d 293 (Tex.Cr.App.1974),7 that the relationship between the probationer and the court is contractual in nature,8 and that evidentiary requirements are not to be strictly enforced, etc. This is a further extension of the “anything goes” approach by the majority to revocation proceedings, further eroding the due process requirements applicable to such proceedings. The attitude is that if it is a revocation proceeding, who cares. See, e. g., the dissents in Casarez v. State, 468 S.W.2d 412, 414 (Tex.Cr.App.1971); Barnes v. State, 467 5.W.2d 437, 441 (Tex.Cr.App.1971). See also the dissent in Barrientez at p. 478.
The majority recognizes in part the weakness of its position when it states:
“In abating this case we neither encourage nor suggest that the State in future cases of a similar posture should allow submission of the appeal without identification of the facts judicially noticed, with the expectation that an abatement may be ordered to allow perfection of the record. The number of abate-ments by this Court is already a considerable burden on the criminal justice system .. . .”
The majority admits that the State can take advantage of today’s ruling. So if the State feels no appeal will be taken, it will take advantage of the Barrientez rule, and if perhaps, an appeal is taken, the State will relax because it knows an abatement will result. The State will continue its present practices despite the majority’s other suggestions.
Why doesn’t this court face up to the problem, and recognize that the Barrientez rule as to “judicial notice” was ill-conceived and should be overruled. It creates more problems than it solves. Barrientez and its progeny should be overruled.
For the reasons stated, I dissent.
. The seven page transcription of the court reporter’s notes from the September 2, 1976 revocation hearing was not filed until June 20, 1977.
. The rule established in Barrientez was apparently designed to apply only to the revocation of probation proceedings. At least it has only been so applied, and today’s majority lends support to such theory.
. The majority opinions in both Barrientez and Green are silent as to the appellate records in the other cases. The dissenting opinion in Barrientez noted at p. 477 that the earlier murder conviction had been affirmed in Barrientez v. State, 487 S.W.2d 97 (Tex.Cr.App.1972). In Green none of the opinions mention the earlier conviction, but an examination of our records shows there was pending in this court at the time an appeal from an aggravated robbery conviction [see Green v. State, Tex.Cr.App., 531 S.W.2d 350] which was disposed of in a per curiam opinion on January 7, 1976.
. However, see Article 42.12, V.A.C.C.P.; Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967); McConnell v. Rhay, 393 U.S. 2, 89 S.Ct. 32, 21 L.Ed.2d 2 (1968); Crawford v. State, 435 S.W.2d 148 (Tex.Cr.App.1968); Ex parte McDonald, 469 S.W.2d 173 (Tex.Cr.App.1971); Ex parte Fletcher, 442 S.W.2d 705 (Tex.Cr.App.1969); Ex parte Fuller, 435 S.W.2d 515 (Tex.Cr.App.1969); Ex parte Buffington, 439 S.W.2d 345 (Tex.Cr.App.1969); Ex parte Bird, 457 S.W.2d 559 (Tex.Cr.App.1970).
. In O’Hern the State, without objection, offered the record of the previous trial as evidence and the transcription of the court reporter’s notes of the previous trial was incorporated into the record of the hearing on the motion to revoke probation and came forward as part of the record on appeal from the revocation. Thus, O’Hem is in a slightly different posture than the other case. This writer concurred in O’Hem because of the failure to object and because the situation was more alike to a stipulation of evidence than “judicial notice.”
. See Campbell v. State, 456 S.W.2d 918 (Tex.Cr.App.1970); Whisenant v. State, 557 S.W.2d 102 (Tex.Cr.App.1977); Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967); McConnell v. Rhay, 393 U.S. 2, 89 S.Ct. 32, 21 L.Ed.2d 2 (1968).
. See this writer’s dissenting opinion: in Scamardo and the earlier dissent in Kelly v. State, 483 S.W.2d 467, 473 (Tex.Cr.App.1972), arguing that the proper burden of proof should be beyond a reasonable doubt where an individual's liberty is at stake.
. No opinion has ever considered whether such is true where the jury recommends probation and the judge must grant probation. Of course, a jury recommendation is not here involved.