¶1concurring.
¶2I concur in the result reached by the majority because I believe it is a fair resolur tion of this appeal where the parties have relied upon former decisions of this Court. In the future I would follow the reasoning in Presiding Judge Onion’s dissenting opinion because I do not believe that testimony in another proceeding is the proper subject of judicial knowledge.
¶3I would suggest a procedure that would avoid the problems raised in this appeal. When a pending motion to revoke probation alleges as a ground for revocation an offense and that offense is also alleged in an indictment, the court should announce prior to trial on the indictment that it will at the same time consider that evidence on the ground for revocation in the motion to revoke. See for example, Rodriquez v. State, 552 S.W.2d 451 (Tex.Cr.App.1977), in which the procedure suggested was used.
¶4dissenting.
¶5The majority still follows the rule in Barrientez v. State, 500 S.W.2d 474 (Tex.Cr.App.1973). In that case this Court held that a trial judge in a revocation of probation hearing may take judicial notice of testimony offered at a prior trial over which the same trial judge presided. It would be an illogical and futile act to require witnesses to appear before a judge during the revocation hearing when the *738same judge had already heard their testimony, while they were subject to cross-examination, on the same fact issue.
¶6A majority abates the appeal because there is no statement of facts of the trial where the same judge heard the evidence and considered it in the present case to revoke probation. Appellant did not ask that a transcription of that evidence be typed and included in the record. That burden is on him. The case is that simple.
¶7Article 40.09, Sections 2 and 5, V.A.C. C.P., provide:
“2. Each party may file with the clerk a written designation specifying matter for inclusion in the record. The failure of the clerk to include designated matter will not be ground for complaint on appeal if the designation specifying such matter be not filed with the clerk within sixty days after notice of appeal is given.
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“5. A party desiring to have included in the record a transcription of notes of the reporter shall have the responsibility of obtaining such transcription and furnishing same to the clerk in duplicate in time for inclusion in the record and the defendant shall pay therefor. The court will order the reporter to make such transcription without charge to defendant if the court finds, after hearing in response to affidavit by defendant that he is unable to pay or give security therefor. Upon certificate of the court that this service has been rendered, payment therefor shall be made from the general funds by the county in which the offense is alleged to have been committed in a sum to be set by the trial judge. The court reporter shall report any portion of the proceedings requested by either party or directed by the court.”
¶8The dissent by the Presiding Judge, who would reverse, constructs a straw man by stating that we must have a means to review the sufficiency of the judicially noticed evidence, and then knocks it down by reasoning that it surely cannot be the defendant’s burden to get such evidence in the record. Why not? He could%follow Article 40.09 and request it as has been provided for by the Legislature. It has always been the rule that an appellant must see that a record is prepared on appeal so that the sufficiency of the evidence may be reviewed.
¶9The burden is on the party desiring a transcription of the court reporter’s notes of the evidence adduced at trial and to furnish the transcription to the clerk for inclusion in the record. Article 40.09, Section 5, supra. See Ex parte Denson, 165 Tex.Cr.R. 420, 307 S.W.2d 952 (1957). Moreover, no amount of judicial embroidery can obscure this Court’s long-standing rule that questions regarding the sufficiency of the evidence are not presented for review where the appellate record contains no statement of facts. See, e. g., Hankins v. State, 163 Tex.Cr.R. 553, 294 S.W.2d 850 (1956); Williams v. State, 164 Tex.Cr.R. 138, 297 S.W.2d 169 (1957); Cooper v. State, 365 S.W.2d 793 (Tex.Cr.App.1963); Pizzitola v. State, 374 S.W.2d 446 (Tex.Cr.App.1963); Sullivan v. State, 377 S.W.2d 952 (Tex.Cr.App.1964); Price v. State, 378 S.W.2d 312 (Tex.Cr.App.1964); Beavers v. State, 378 S.W.2d 329 (Tex.Cr.App.1964); Slade v. State, 400 S.W.2d 570 (Tex.Cr.App.1966); Herbort v. State, 422 S.W.2d 456 (Tex.Cr.App.1967); Daughtrey v. State, 544 S.W.2d 158 (Tex.Cr.App.1976).
¶10Appellant was not an indigent and was apparently represented by retained counsel at trial and is represented by retained counsel on appeal. He should have asked for and paid for a transcription of the court reporter’s notes and furnished the transcription to the clerk for inclusion in the record. If the record of the prior trial had been typed before the revocation proceeding, would the majority require the court to see that it was included in the record without a request under the statute?
¶11In the absence of a complete transcription of the court reporter’s notes of the prior trial, the question of the sufficiency of *739the evidence to support the revocation order cannot be reviewed and the judgment should be affirmed. See and cf. Goodings v. State, 500 S.W.2d 173 (Tex.Cr.App.1973), and Daughtrey v. State, supra. That the absent statement of facts was recorded in a prior trial, and not in the revocation hearing, does not require a different result because appellant knew the sole basis for the revocation of probation was the testimony of the prior trial. This case is like any other case where the sufficiency of the evidence is attacked but there has been no request for the evidence to be included in the record.
¶12In East v. State, 420 S.W.2d 414 (Tex.Cr.App.1967), defendant was convicted of murder without malice. He filed a motion for new trial alleging jury misconduct. The evidence adduced at the hearing was not included in the record on appeal because he failed to file with the clerk a written designation specifying that evidence for inclusion in the record as required by Article 40.09, Section 2, supra.
¶13On appeal, defendant contended that the trial court erred in refusing permission to file additional transcript relating to the hearing on the motion for new trial. This Court rejected that contention because of the failure to designate the evidence contained in the transcript and refused to consider the contention regarding the motion for new trial because nothing was presented for review. The judgment was affirmed.
¶14In Hammond v. State, 465 S.W.2d 748 (Tex.Cr.App.1971), defendant was convicted of felony theft. He contended on appeal that the trial court erred in failing to grant his motion for inclusion in the record of the transcript of evidence of a prior trial in which he was convicted for murder without malice. We rejected the contention and affirmed the judgment because defendant did not designate the transcript of the prior trial for inclusion in the record and because no attempt was made to show the relevancy of such transcription. It appears, however, that the failure to comply with Article 40.-09, Section 2, supra, was sufficient in itself to require affirmance.
¶15In the instant case appellant made no effort to incorporate the testimony of the prior proceeding into the record. In this connection, if the court reporter’s notes from that trial were not available because they had been lost or destroyed or had never been transcribed, then it was incumbent upon appellant to show the reason for the absence of the statement of facts by securing an affidavit from the reporter. Upon a showing that the reporter’s notes were requested and were unavailable we would be compelled to reverse the judgment revoking probation. Cf. Ex parte Coleman, 487 S.W.2d 119 (Tex.Cr.App.1972). No such showing was made by appellant in this case.
¶16Tn Ex parte Henderson, 565 S.W.2d 50 (Tex.Cr.App.1978), and Ex parte Sims, 565 S.W.2d 45 (Tex.Cr.App.1978) (opinion on motion for rehearing), we held that a decision in a habeas corpus hearing must be affirmed when the record on appeal contains no statement of facts. We should do no less in the instant case and adhere to the well-established rule that the judgment must be affirmed on direct appeal when defendant evades his statutorily imposed responsibility to obtain and pay for a transcription of the court reporter’s notes and to furnish the transcription to the clerk for inclusion in the record. The question regarding the sufficiency of the evidence is not presented for review.
¶17It would be useless to abate the appeal so that the evidence introduced at the prior trial could be prepared because appellant did not designate that this evidence be included in the record. Under East v. State, supra, the trial court is not required to have such evidence included in the record. See Dart v. State, 515 S.W.2d 119 (Tex.Cr.App.1974), a later case on the subject containing a well-reasoned opinion by Judge Tom Davis.
¶18The majority should require appellant to pay for the record in accordance with Article 40.09, supra.
¶19No error is shown. The judgment should be affirmed.