Brown v. State, 25316
| Court | Court of Appeals of Texas. Court of Criminal Appeals of Texas |
| Citation | 240 S.W.2d 310,156 Tex.Crim. 144 |
| Docket Number | No. 25316,25316 |
| Parties | BROWN v. STATE. |
| Decision Date | 30 May 1951 |
Page 310
v.
STATE.
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 [156 Tex.Crim. 145] 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
Page 311
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 shows that the specimen was taken by a nurse at the hospital, but thee is an absence of any legal proof that the specimen taken by the nurse was the same specimen which was forwarded by Dr. Hershberger to the Department of Public Safety at Austin. The doctor's testimony, excluding the hearsay statements offered over objection, is not sufficient to establish such fact.
[156 Tex.Crim. 146] The evidence shows that the blood which was taken from appellant was taken with...
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...urine specimen, 43 breath test, 44 or blood test. 45 Page 770 But Trammell's immediate antecedent was Brown v. State, 156 Tex.Cr.R. 144, 240 S.W.2d 310 (Tex.Cr.App.1951). Brown involved a prosecution for driving while intoxicated in which the defendant was arrested, taken to a hospital, and......
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