Jones v. State, 38016

• Decision Date: 31 March 1965
• Docket Number: No. 38016,38016
• Parties: Algie Legrand JONES, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 478

389 S.W.2d 478

Algie Legrand JONES, Appellant, v. The STATE of Texas, Appellee.

No. 38016.

Court of Criminal Appeals of Texas.

March 31, 1965.

Rehearing Denied May 12, 1965.

Ronald R. Waldie, Dallas, for appellant.

Henry Wade, Dist. Atty., Ross Teter, John Stauffer and W. John Allison, Jr., Asst. Dist. Attys., Dallas, and Leon B. Douglas, State's Atty., Austin, for the State.

WOODLEY, Judge.

The offense is drunk driving; the punishment, 30 days in jail and fine of $100.

The undisputed evidence shows that appellant drove a Chevrolet automobile into the rear of a Ford automobile that was stopped at a street intersection in Irving, Dallas County, about 10:30 P.M. He was the sole occupant of the Chevrolet in which were a six pack, several empty cans and one partially empty can of beer.

Appellant was thrown against the steering wheel and received a cut underneath his chin and other injuries.

At his request he was taken to Methodist Hospital where his injuries were treated and then to Parkland Hospital where a blood specimen was drawn at 3:05 A.M Police Officer Andrews, who investigated the collision and made the arrest, testified that he noted a strong smell of alcohol on appellant's breath when he was checking him for injuries at the scene; that his eyes were very bloodshot and his speech barely audible, and that from his observation of him and his experience in observing intoxicated persons he formed the opinion that appellant was intoxicated.

William D. Yates, who witnessed the collision and was the first to reach appellant, testified that he was gasping for breath and he could tell that he had been drinking something, but how much or what he did not know and he formed no opinion as to whether he was intoxicated.

Testifying in his own behalf, appellant admitted having consumed two beers at the place where he purchased two six packs and that he drank one can and opened another out of one of the six packs. He denied that he was intoxicated.

All of the grounds upon which reversal is sought relate in some way to the examination of Dr. Morton F. Mason and his testimony to the effect that an analysis of the blood sample taken from appellant at 3:05 A.M. showed an alcohol content of 0.134 percent which he testified would have been at least 0.03 percent higher at 10:30 P.M., assuming that no alcohol had been consumed since that time; and Dr. Mason's testimony to the effect that all persons having 0.134 percent of alcohol in their blood would be under the influence of alcohol and would not have the normal use of their mental and physicial faculties; and his further testimony to the effect that in his opinion any individual who attains a blood-alcohol concentration as high as 0.10 percent will become under the influence of alcohol.

Appellant first complains that Dr. Mason should not have been allowed to testify to a variance in a blood specimen between 10:30 P.M. and 3:05 A.M., the contention being that he was not shown to be qualified as a medical expert.

While Dr. Mason is not a physician or a medical...