Thomas Galen Massey v. The State of Texas--Appeal from County Court at Law No 1 of Brazos County

IN THE

TENTH COURT OF APPEALS

No. 10-91-203-CR

THOMAS GALEN MASSEY,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the County Court at Law

Brazos County, Texas

Trial Court # 297-91

O P I N I O N

Appellant was charged by information with and pleaded guilty, conditionally, to the offense of driving while intoxicated. Appellant announced to the court that he wished to appeal pretrial motions. The court found Appellant guilty and sentenced him to ninety days in jail, probated for one year, a $300 fine, court costs, forty hours community service restitution, alcohol education, and an alcohol evaluation to be made by the probation department. Appellant is appealing the denial of two pretrial motions made during a hearing prior to his guilty plea. He also claims that the court lacked jurisdiction because the complaint was fundamentally defective. We will reverse the judgment and remand for acquittal.

Appellant's first point on appeal asserts that the court erred in denying his motion to suppress evidence. At the pretrial hearing, Appellant claimed that his arrest on January 13, 1991, was without a warrant and that the evidence seized as a result of the arrest should be suppressed. It then became the State's burden to establish probable cause for the warrantless arrest. See Amores v. State, 816 S.W.2d 407, 413 (Tex. Crim. App. 1991); Brown v. State, 481 S.W.2d 106, 109 (Tex. Crim. App. 1972). The State's only evidence of probable cause was an affidavit of the arresting officer which was admitted over Appellant's objections that the statement constituted hearsay, was not properly authenticated, and was not self-authenticating under Rule 902 of the Texas Rules of Criminal Evidence. See Tex. R. Crim. Evid. 902. Appellant further objected that admission of the affidavit would violate his right to due process and his right to confront the witness. The arresting officer was unavailable to testify at the hearing, though the State had previously represented to counsel for Appellant that the officer would in fact be present to testify at the hearing. The State introduced no other probable cause evidence.

The court erred in admitting the officer's affidavit without a sponsoring witness and because the affidavit was not self-authenticating under Rule 902. See id. Because the State introduced no other evidence to show that probable cause existed for the warrantless arrest, we must sustain Appellant's first point.

Because of the disposition of point one, we do not reach Appellant's remaining points. We reverse the judgment and remand to the trial court with instructions to enter a judgment of acquittal.

PER CURIAM

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Reversed and acquittal ordered

Opinion delivered and filed November 18, 1992

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