Brown v. State, 25316

• Decision Date: 30 May 1951
• Docket Number: No. 25316,25316
• Citation: 240 S.W.2d 310,156 Tex.Crim. 144
• Parties: BROWN v. STATE.
• Court: Texas Court of Criminal Appeals

Page 310

240 S.W.2d 310

156 Tex.Crim. 144

BROWN v.STATE.

No. 25316.

Court of Criminal Appeals of Texas.

May 30, 1951.

William C. McDonald, San Angelo, for appellant.

George P. Blackburn, State's Atty., of Austin, for the State.

WOODLEY, Commissioner.

The conviction is for driving a motor vehicle upon a public highway while intoxicated, the punishment having been assessed by the jury at a fine of $50.

Following his arrest, appellant was taken to a hospital where a blood specimen was taken from him.

The specimen was drawn by a nurse in the presence of W. A. Martin, a police officer, who testified that it was placed in a tube by the nurse and left at the hospital.

The nurse did not testify.

Dr. Hershberger, a physician and surgeon, testified that the blood specimen was called to his attention by Anne Evans, a laboratory technician in his employ, after it had been labeled with the name N. Brown and sealed with paraffin, and that he sent it to Austin for analysis.

Floyd E. McDonald, chemist for the Department of Public Safety, testified over objection that the specimen received by mail from Dr. Hershberger and labeled with the name of N Brown contained 3.6 milligrams of alcohol per cc.

Dr. Hershberger testified that 1.5 milligrams of alcohol per cc., or more, in the blood would render a person intoxicated.

The results of the blood test were admitted over the objections: (1) that it had not been shown that the specimen examined by the chemist was that taken from appellant; (2) that the specimen was taken from appellant without his voluntary consent and by coercion and persuasion; (3) that such specimen was taken without the warning required under the confession statute having been given and while appellant was in custody; and (4) that the admission of evidence as to the results of the test would be tantamount to compelling the accused to give evidence against himself.

We think that the first ground of objection must be sustained.The evidence...