Ray v. State, 32503
| Citation | 170 Tex.Crim. 640,343 S.W.2d 259 |
| Decision Date | 08 February 1961 |
| Docket Number | No. 32503,32503 |
| Parties | Jesse Enos RAY, Appellant, v. STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
[170 TEXCRIM 640] Thomas J. Cook, Dallas, for appellant.
Henry Wade, Criminal Dist. Atty., Roger Turner, Henry L. Gilliam, Edward Miller, Phil Burleson, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State's Atty., Austin, for the State.
Our prior opinion is withdrawn.
[170 TEXCRIM 641] The offense is driving a motor vehicle upon a public highway while intoxicated; the punishment 60 days in jail and a fine of $300.
The undisputed evidence shows that appellant was driving an automobile upon a public highway and was involved in a collision with another automobile.
The driver of the other car testified that he smelled 'the heavy odor of beer in the car' but that he could not conscientiously judge whether appellant was intoxicated.
Mrs. Haynes witnessed the collision and observed appellant sitting in the automobile he was driving. She testified that his eyes were rather glassy looking; that she had seen many intoxicated persons and that from seeing his eyes and how he sat in the car, and seeing him being helped into the ambulance later on, expressed the opinion that appellant was highly intoxicated.
Mrs. Hill witnessed the collision and testified that appellant, as he sat behind the wheel after the collision, His nose was bleeding. He kept saying 'Leave 'me alone'.'
Mrs. Hill testified that she had seen people that she knew were drunk before, and her opinion was that appellant 'was dead drunk.'
Thomas J. Hill, who also witnessed the accident, testified that it appeared to him that appellant had been drinking. 'He wasn't walking too good,' he might have been dazed.
Dr. Gibbons testified that on May 9, 1959, the day in question, he was Resident Physician in the Emergency Room at Parkland Memorial Hospital; that a book was kept in the Emergency Room showing the names of people who came in and other information regarding blood samples for alcohol test, which was an official record of the hospital.
From the entries he made in said record, Dr. Gibbons testified that he drew blood from Jesse E. Ray on May 9, 1959, with his permission; that boric acid was used to clean the arm rather than alcohol, and that he signed the record.
Dr. Martin Mason, Director of the Dallas City-County Criminal[170 TEXCRIM 642] Investigation Laboratory, a chemist for about 30 years who had tested and analyzed thousands of blood specimens to determine their alcohol content, testified that he took a blood sample from the lock box in the Emergency Laboratory at Parkland Hospital on Monday May 11th, 1959, about 9 a. m.; that the blood was in a test tube with a rubber stopper around which was a police department blood alcohol report form indicating that the blood was drawn by Dr. Gibbons in the hospital on May 9, 1959, at 6:55 p. m., from Jesse Enos Ray, in the presence of an officer; that an analysis of the blood showed an alcohol concentration of .209 per cent. He also testified that any individual attaining a concentration of alcohol in his blood as high as a tenth percent will become under the influence of alcohol.
On cross-examination he testified that the figure almost uniformly employed, above which prosecution occurs, and below which it may or may not occur, is .150.
Appellant, as a witness in his own behalf, gave his version of the collision and testified that he was not intoxicated. He testified that he went to the Silver Dollar Bar, which he owned at the time, after lunch and remained there until a few minutes after 5 p. m., and while there he and his wife drank three beers; that he and his wife were going home, accompanied by Odell Harris; that after the collision the car he was driving ended up against the curb; that he did not get out because his wife was 'hurt pretty bad' and his hand was 'busted open between my index finger and my thumb and I was bleeding at the nose'; that he told his wife 'we would just sit in the car until the ambulance came.'
Appellant further testified that he and his wife were taken to Parkland Hospital where she was laid on a stretcher in the Emergency Room; that later a policeman, nurse and doctor came up and 'asked me if I wanted to take a blood test * * * I said yes' * * * and that the doctor extracted blood from his left arm after washing it with what smelled like alcohol. He soon thereafter...
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...this Texas case cannot be properly evaluated without reviewing its analysis by the same judge in the subsequent case of Ray v. State, 1961, Tex.Cr.App., 343 S.W.2d 259. In the latter Ray case the court pointed out that the specimen in the Brown case was marked only by the initial 'N' and th......
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Gonzales v. State, 39873
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