                                       NO. 07-02-0254-CR

                                 IN THE COURT OF APPEALS

                         FOR THE SEVENTH DISTRICT OF TEXAS

                                          AT AMARILLO

                                             PANEL E

                                       MAY 5, 2003
                             ______________________________

                                       TONY ROMO, JR.,

                                                              Appellant

                                                  v.

                                    THE STATE OF TEXAS,

                                                  Appellee
                          _________________________________

              FROM THE 364TH DISTRICT COURT OF LUBBOCK COUNTY;

              NO. 93-416,191; HON. BRADLEY UNDERWOOD, PRESIDING
                         _______________________________

                                  Memorandum Opinion
                            _______________________________

Before QUINN and REAVIS, JJ. and BOYD, S.J.1

       Appellant Tony Romo, Jr. appeals the revocation of his probation for the offense of

securing execution of a document by deception. Via two issues, he contends 1) the trial

court erred in failing to suppress his confession which allegedly was obtained in violation

of his “right to counsel . . . at every significant stage of a criminal proceeding after counsel



       1
       John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. Tex. Gov’t
Code Ann. §75.002(a)(1) (Vernon Supp. 2003).
ha[d] been appointed,” and 2) the trial court erred in taking judicial notice of the testimony

in another criminal proceeding involving him. We affirm the judgment.

                                    Background

       On November 30, 1993, appellant pled guilty to the offense of securing execution

of a document by deception for which he received eight years confinement. However, his

sentence was suspended, and he was placed on probation for eight years. On October

14, 1998, the probationary period was extended to November 29, 2003. In May 2000, the

State filed an application to revoke appellant’s probation which was amended on February

26, 2001, and again on May 1, 2001. An attorney was appointed on June 21, 2000, to

represent appellant on the application to revoke his probation.

       Meanwhile, several robberies had occurred in the Lubbock, Texas area for which

the police believed appellant to be responsible. On the basis of an outstanding warrant

for appellant arising from the application to revoke his probation, the police arrested

appellant and took him to the station. They gave him his Miranda warnings and began

questioning him about the robberies as opposed to matters encompassed in the pending

motion to revoke probation. During the interrogation, appellant voluntarily waived his right

to have counsel present and then admitted to committing various burglaries. The State

subsequently indicted him for one of those offenses in Cause No. 2001-436,194 which was

then used as a basis to revoke his probation. Appellant moved to suppress his confession




                                              2
contending it was in violation of his Sixth Amendment right to counsel, and that motion was

denied.2

                          Issue One - Suppression of Confession

        In his first issue, appellant claims error on the part of the trial court in its failure to

suppress his confession because he was denied his right to counsel. This is the same

issue addressed by this court in its prior opinion of Romo v. State, No. 07-02-0061-CR,

2003 Tex. App. LEXIS 1650 (Tex. App.--Amarillo Feb. 21, 2003, no pet. h.). We overrule

the issue for the reasons stated in that opinion.3

                                    Issue Two - Judicial Notice

        In his second issue, appellant contends that the trial court erred when it took judicial

notice of testimony presented in Cause No. 2001-436,194, a cause involving another

prosecution by the State against Romo over which the same judge presided. In short, the

trial court was allegedly barred from taking such notice because doing so violated the rules

prohibiting consideration of hearsay. We overrule the issue.

        According to the Texas Court of Criminal Appeals, a trial court may take judicial

notice of evidence admitted at a criminal trial involving the same defendant and over which

the same judge presided. Moreno v. State, 22 S.W.3d 482, 488 (Tex. Crim. App. 1999)

(holding a court may take judicial notice of the evidence at a criminal trial and revoke

probation even if the defendant was acquitted); Barrientez v. State, 500 S.W.2d 474, 475

        2
          The Sixth Amendment to the Constitution provides that “[i]n all criminal prosecutions, the accused
shall enjoy the right . . . to have the Assistance of Counsel for his defense.” U.S. Const. amend. VI.
        3
         That opinion refers to another of this court’s previous opinions styled Romo v. State, No. 07-02-
0151-CR, 2003 Tex. App. LEXIS 3 (Tex. App.--Amarillo Jan. 2, 2003, no pet. h.). It too addressed the issue
before us, and therein we also overruled it.

                                                     3
(Tex. Crim. App. 1973) (holding the trial court could take judicial notice of the evidence

introduced in a prior proceeding which was made the basis to revoke probation when the

judge was the same). This is true even though the accused objects on the basis of

hearsay and the purported denial of the right to confront the prior witnesses. Green v.

State, 528 S.W.2d 617, 618-19 (Tex. Crim. App. 1975). As previously mentioned, Cause

No. 2001-436,194 involved the same defendant, and the same judge presided over the

matter. Accordingly, the rules applicable to the admission of hearsay or the right to

confront one’s accusers did not prevent the trial court from taking judicial notice of the

evidence in question.

      Accordingly, the judgment is affirmed.



                                                Brian Quinn
                                                   Justice

Do not publish.




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