Barker v. State
| Decision Date | 06 April 1960 |
| Docket Number | No. 31805,31805 |
| Citation | 334 S.W.2d 182,169 Tex.Crim. 277 |
| Parties | S. B. BARKER, Appellant, v. STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Sanders & Stanford, by C. L. Stanford, Canton, for appellant.
Ralph Prince, Dist. Atty., Longview, and Leon B. Douglas, State's Atty., Austin, for the State.
The offense is operating a motor vehicle upon a public road while intoxicated, second offense; the punishment, 5 months in jail and a fine of $100.
Highway Patrolman Durrough testified that appellant 'was driving all over the road and running cars off the road' when he observed the car, pursued and stopped it and, after observing appellant and concluding that he was intoxicated, placed him in the patrol car and took him to the Gladewater Police Station.
Patrolman Durrough testified that at his request, and in his presence, a blood specimen was taken from appellant by a nurse at the Leake Hospital in Gladewater.
The blood was placed in a container prepared for the purpose and mailed to the laboratory of the Texas Department of Public Safety in Dallas.
George E. Browne, chemist and toxicologist, testified that he examined the contents of the container and found that the blood 'contained an alcoholic content of zero point two seven (0.27), that's milligrams per cubic centimeter of blood.'
Having testified to his experience and training and his qualifications in regard to the matter, the witness Browne testified that all persons are intoxicated when the alcoholic content of their blood reaches the level of zero point one five (0.15), and that in his opinion the person from whom the specimen was taken was intoxicated.
Appellant was identified as the person tried in the misdemeanor conviction alleged in the indictment, and certified copies of the judgment, complaint and information were introduced.
Appellant did not testify and no evidence was offered in his behalf on the question of his state of sobriety at the time of his arrest.
Reversal is sought upon two grounds.
He first complains that his motion to quash the indictment should have been sustained, the ground being that the misdemeanor conviction pleaded therein could not be used for the reason that the original judgment signed by the judge who presided at the trial provided for a probated jail term.
The certified copy of the judgment introduced by the state was regular in form and showed a conviction in the County Court with punishment assessed at 3 days in jail and a fine of $50.
Appellant called the clerk of said County Court, and proved by him that the judgment signed for entry by the County Judge contained an additional paragraph ordering that the three days confinement in jail be 'commuted to a probation...
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Olson v. State
...the results of the blood test, it has been held that the blood test is admissible where there is no objection. Barker v. State, 169 Tex.Cr.R. 277, 334 S.W.2d 182 (Tex.Cr.App.1960); Trotter v. State, 471 S.W.2d 822 (Tex.Cr.App.1971) (evidence of refusal to the blood test not error where no o......
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Rhodes v. State
...no fine was authorized.22 We held that the trial court was empowered to reform the judgment by deleting the unauthorized fine.23 In Barker v. State, the defendant did what appellant did here: he challenged a prior conviction used for enhancement purposes at the trial of a new offense.24 He ......
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Bowles v. State
...be collaterally attacked. Hughes v. State, Tex.Cr.App., 493 S.W.2d 166; Briones v. State, Tex.Cr.App., 473 S.W.2d 39; Barker v. State, 169 Tex.Cr. 277, 334 S.W.2d 182; Ex parte King, 156 Tex.Cr. 231, 240 S.W.2d 777; Lenore v. State, 137 Tex.Cr. 417, 129 S.W.2d Since the sentence was not voi......
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Rhodes v. State, 56119
...which may be reformed on appeal or by nunc pro tunc entry is not void, and may not be collaterally attacked. Barker v. State, 169 Tex.Cr.R. 277, 334 S.W.2d 182; Ex parte King, The indictment in the instant case charged appellant with the offense of theft of corporeal personal property of th......
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Punishment phase
...(improper cumulation order); Ex parte Johnson, 697 S.W.2d 605 (Tex. Crim. App. 1985) (deletion of an unauthorized fine); Barker v. State, 334 S.W.2d 182 (1960) (unauthorized suspension of sentence). Where a defendant accepts the benefit of a lenity in a judgment (here release from the penit......
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Punishment Phase
...(improper cumulation order); Ex parte Johnson, 697 S.W.2d 605 (Tex. Crim. App. 1985) (deletion of an unauthorized fine); Barker v. State, 334 S.W.2d 182 (1960) (unauthorized suspension of sentence). §20:21.8.1 AttackingVoid Prior Convictions A defect which renders a sentence void may be rai......
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Punishment Phase
...(improper cumulation order); Ex parte Johnson, 697 S.W.2d 605 (Tex. Crim. App. 1985) (deletion of an unauthorized fine); Barker v. State, 334 S.W.2d 182 (1960) (unauthorized suspension of sentence). Where a defendant accepts the benefit of a lenity in a judgment (here release from the penit......
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Punishment Phase
...(improper cumulation order); Ex parte Johnson, 697 S.W.2d 605 (Tex. Crim. App. 1985) (deletion of an unauthorized fine); Barker v. State, 334 S.W.2d 182 (1960) (unauthorized suspension of sentence). §20:21.8.1 AttackingVoid Prior Convictions A defect which renders a sentence void may be rai......