(dissenting).
The repetition of offense statutes create no new offense but merely authorize increased punishment to be affixed to the subsequent conviction provided the prior convictions are alleged and proven. These provisions are reformatory in nature and must be strictly construed. Garcia v. State, 140 Tex.Cr.R. 340, 145 S.W.2d 180 (1940); Ex parte Davis, 412 S.W.2d 46 (Tex.Cr.App.1967).
It is well established that when prior convictions are alleged for enhancement the burden of proof at the trial is upon the State beyond a reasonable doubt as to those allegations.
In the instant case, the majority writes into Texas decisional law a broad and dangerous rule adding another example of “a bad case makes bad law.”
The majority holds that where the State fails to sufficiently prove at the penalty stage of the bifurcated trial (where the judge is the trier of the facts) that the accused is one and the same person so previously convicted as alleged in the indictment, the deficiencies in proof may be overcome by reference back to testimony offered at a preliminary sanity hearing before a jury (other than the trial jury) where the same judge presided. The majority persists in such holding despite the fact that it clearly would be inapplicable where the trial jury was the trier of the facts at the penalty stage of the trial and where, as in the instant case, the trial judge expressly stated, in writing, that he was basing his findings on other evidence without reference to testimony offered at another hearing.
The sole authority offered by the majority for its unique position is, “See and compare Branch v. State, 445 S.W.2d 756 (Tex.Cr.App.1969) and Bridges v. State, 468 S.W.2d 451 (Tex.Cr.App.1971).” Both of these decisions were written by this writer and do not involve the same fact situation or legal question presented, and are clearly distinguishable as shall be hereinafter noted.
Following the trial jury’s verdict at the guilty stage, the penalty stage of the trial was conducted before the trial judge in the instant case. Upon the enhancement portion of the indictment being read, the appellant entered a plea of “not guilty.”1 Thereafter, the State offered into evidence the “prison packets” concerning two convictions. Without calling any witnesses or *701laying any predicate, the State then simply offered a separate uncertified card “which is the fingerprint card that Marvin Horton testified from at the prior hearing also, which I am sure Mr. Jones has the same objection.” The appellant did object to the introduction of all of these exhibits on the ground that the State had failed to prove he was the person so previously convicted as alleged in the indictment. The objection was overruled and the exhibits admitted. Without offering other evidence, the State rested. The appellant offered no evidence. The court then imposed the punishment of life imprisonment under Article 63, supra.
There are many ways that proof that an accused is the same person so previously convicted as alleged can be supplied. See Brumfield v. State, 445 S.W.2d 732, 740 (Tex.Cr.App.1969). In the instant case, the State chose to supply it by certified copies of the judgments and sentences and records of the Texas Department of Corrections including fingerprints of the appellant. This procedure is acceptable provided it is supported by independent expert testimony identifying the included fingerprints as being identical with known prints of the accused. Vessels v. State, 432 S.W.2d 108, 117 (Tex.Cr.App.1968); 1 Branch’s Ann.P.C.2d ed. § 699, p. 684. Such procedure has been approved by this court since it complies with the provisions of Art. 3731a, Vernon’s Ann.Civ.St. See Broussard v. State, 363 S.W.2d 143 (Tex. Cr.App.1963); Spencer v. State, 164 Tex. Cr.R. 464, 300 S.W.2d 950 (1957); Vessels v. State, supra.
This procedure is frequently used by the prosecution to prove prior convictions alleged for enhancement under Arts. 62 and 63, supra, etc., as well as an accused’s “prior criminal record.” See Art. 37.07, Vernon’s Ann.C.C.P.; Denham v. State, 428 S.W.2d 814 (Tex.Cr.App.1968).
In the instant case, the prosecution offered the prison packets but did not offer the testimony of an expert witness that the fingerprints were identical with known prints of the appellant. An uncertified card, not admissible under Art. 3731a, supra, was offered as a card used by the witness Horton at a prior hearing. No one named Horton testified at any stage of the trial so reference was obviously to some other proceeding than the trial on the merits.
Vessels v. State, supra, made clear the mere introduction of the certified prison packet over timely objection that the same was not sufficient standing alone to identify the defendant as the person so previously convicted and was reversible error where the State made no effort to go further and show by independent testimony that the defendant was the identical person convicted under each of the judgments and sentences.
Cain v. State, 468 S.W.2d 856 (Tex.Cr.App.1971) also presented a problem somewhat similar to that in the case at bar. There, in attempting to prove up prior convictions before the jury as a part of Cain’s “prior criminal record” as authorized by Art. 37.07, supra, the State offered the certified prison packets, jury waivers, stipulations of evidence, all relating to the prior convictions. In addition, the State, without expert testimony, introduced Cain’s written motion to have the jury assess punishment in the case being tried so that the jury could compare his signature thereon with the signature on the jury waivers and written stipulations offered to prove prior convictions. The State relied upon the provisions of Art. 38.27, Vernon’s Ann.C.C.P. This court was not impressed and reversed saying
“ . . . where handwriting samples are introduced without expert testimony and the jury alone must make the comparison, and there is no other evidence to connect the appellant with the prior convictions, such identity has not been sufficiently established.” 468 S.W.2d at 859.
*702Cain would appear to control the proper disposition of the instant case and it can: not be distinguished by simply noting that the hearing on punishment was before the jury, not the judge, and the proof was offered to prove “prior criminal record” not convictions alleged in the indictment for enhancement.
In the instant case, the State had the burden of proof at the trial on the merits as to the allegations in the indictment concerning prior convictions. Clearly, the State did not discharge its burden at the trial on the merits. If the hearing on punishment had been conducted before the trial jury, then the evidence would have been insufficient and would call for a reversal. The State argues, however, that the trial judge was the trier of the facts at the hearing on punishment and that although there was no independent expert fingerprint testimony or other evidence to support the prison packets, the trial judge could have taken personal knowledge of the testimony of the expert witness offered at the separate sanity trial before another jury where the same judge presided.
The State calls attention to a portion of a transcription of the court reporter’s notes from a separate sanity hearing made a part of this record which reflects that a Marvin Horton testified at such hearing that a fingerprint card bearing known prints of the appellant were identical with fingerprints in certain prison packets.2 It appears to be the State’s position that the trial judge could have considered such testimony introduced for a limited purpose at the sanity hearing to supply the missing evidence at the hearing on punishment.
First of all, it would appear that the trial judge did not take into consideration any personal knowledge, for after the trial, he filed an instrument entitled “Findings of Fact and Conclusions”, in which he stated he based his decision only on the prison packets and the uncertified fingerprint card. This seemingly refutes the position taken by the State.
Second, it is also clear that a distinction must be made between judicial notice and personal knowledge of the judge.
“ . . . [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. . ” Texas Practice, 1 McCormick & Ray 2nd Ed. Evidence § 152, p. 172.
See also Jackson v. State, 70 Tex.Cr.R. 582, 157 S.W. 1196 (1913), and Lerma v. State, 81 Tex.Cr.R. 109, 194 S.W. 167 (1917).
Further, we note that in Scott v. Clark, 38 S.W.2d 382 (Tex.Civ.App. — Austin, 1931), it was held that while a court may take judicial notice of its own orders in a previous hearing between the same parties on the same subject, the court cannot take judicial notice of the testimony heard before him on another trial and enter independent judgment thereon.
The same result was reached in Grayson v. Rodermund, 135 S.W.2d 178 (Tex.Civ.App. — Austin, 1939), where the court held that it cannot take cognizance of evidence *703presented on trial of a former suit even between the same parties and render judgment in the instant case based thereon.
We know of no reason why this rule applied in civil cases is not equally applicable to criminal cases where a higher standard of proof prevails.
In Entrekin v. Entrekin, 398 S.W.2d 139 (Tex.Civ.App. — Houston, 1966), the court held that where evidence adduced at the hearing was not given by either party except in connection with modification of the order of child visitation rights and there was no evidence offered with respect to the divorce at the time of the trial on the merits, entry of judgment based on earlier testimony was held improper. The earlier hearing concerning child visitation rights produced evidence of a marital discord and the trial judge announced at that time he had heard all testimony he desired to hear in the case, and subsequently entered the divorce decree without other evidence.
In the instant case, much as in Entrekin, the evidence relied upon by appellee [State] was given at a preliminary hearing which was for the sole purpose of determining the sanity of the appellant. The evidence adduced at such hearing was not given by either party except in such connection and for such purpose. We conclude that the State cannot supply the deficiency in the evidence at the trial on the merits and, thus, sustain its burden of proof by attempting to rely upon testimony given under these circumstances by mere reference thereto on appeal.
In Branch v. State, 445 S.W.2d 756 (Tex.Cr.App.1969), the defendant, testifying at the guilt stage of the trial, admitted both prior convictions alleged. Still further, a stipulation was entered that the second prior conviction alleged was for an offense committed after the first alleged prior conviction became a final conviction. At the hearing on punishment before the jury, the State introduced the certified prison packets only. There, we held that “under these circumstances” evidence offered at the guilt stage of the trial on the merits before the same jury could be considered in determining the issues involved at the penalty stage of the trial. This court, of course, has previously held that any defect in the record proof of the alleged prior convictions is cured by the defendant’s testimony that he had been so formerly convicted. In the instant case, the appellant did not testify. Further, the evidence relied upon by the State was not offered at the trial on the merits, but was offered before a jury at a separate sanity hearing.
Bridges v. State, 468 S.W.2d 451 (Tex.Cr.App.1971), is also clearly distinguishable from the case at bar. Bridges involved an order of cumulation of sentences (to which no objection was addressed), not prior convictions alleged in the indictment for enhancement where the burden of proof was cast upon the State. There, the court found that the rule relied upon by Bridges (requiring proof of defendant’s identity as the person so previously convicted) had no application where the cumu-lated sentences were imposed during the same term of court by the same judge. In passing upon Bridges’ further contention that the rule should, however, be applied where cumulated sentences were imposed in different counties of the same judicial district, this court observed that a court may notice judicially its own records and proceedings. It did not state that a judge may take personal knowledge of testimony offered at some prior proceeding. In Bridges, there was no such testimony. Bridges is not authority for affirming the action taken in this case.
Even if the prosecutor in the instant case had gone further than he did and offered the testimony of witness Horton, over objection, it would not have been admissible in absence of a proper predicate as to the unavailability of the witness. See Article 39.01, Vernon’s Ann.C.C.P.; 1 Branch’s Ann.P.C.2d Ed. §§ 98 & 99, pp. 110-112; Cumpston v. State, 155 Tex.Cr.R. 385, 235 S.W.2d 446 (1951). Cf. White*704head v. State, 450 S.W.2d 72 (Tex.Cr.App.1969). Here the right of confrontation was clearly involved. See Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L. Ed.2d 923; Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255; Berger v. California, 393 U.S. 314, 89 S.Ct. 540, 21 L.Ed.2d 508. The majority sidesteps all of this.
For the reasons stated, I simply cannot agree with the majority’s conclusion that the “court could consider for the purpose of enhancement of penalty the evidence regarding the identity of the appellant as the person convicted of the former offenses, admitted on the preliminary trial.”
I do agree, however, with the majority that the State failed to prove that each succeeding conviction was subsequent both in point of time of the commission of the offense and the conviction therefor.
ODOM, J., joins in this dissent.. It lias been said that the more appropriate plea would be “untrue” or “true”, as the case may be. Davis v. State, 429 S.W.2d 895 (Tex.Cr.App.1968) ; Baker v. State, 437 S.W.2d 825, 828 (Tex.Cr. App.1969) (concurring opinion).
. This is really appellant’s first ground of error discussed in the majority’s opinion. He complains that at the separate sanity hearing, the State offered into evidence his prior convictions, over objection, for the limited purpose of showing that he had been convicted before and had never contended he was mentally incompetent to stand trial. He claims that such was done to prejudice him before the jury at such hearing and such evidence actually had no bearing on his present competency to stand trial. After his objection was overruled, there was no effort made to indicate to the appellant that this would be the only time he would be confronted by the witness or have an opportunity to cross examine him.