Miller v. State

341 S.W.2d 440, 170 Tex. Crim. 406, 1960 Tex. Crim. App. LEXIS 2236

• Court: Court of Criminal Appeals of Texas
• Decided: November 23, 1960
• Docket: 32468
• Status: Published

Opinions

WOODLEY, Judge.

The offense is driving a motor vehicle upon a public highway while intoxicated; the punishment, 3 days in jail and a fine of $50.

The evidence relied on by the state was to the effect that appellant drove an automobile down a Houston street, hit the curb and then collided with a station wagon parked across the street.

Two police officers described appellant’s appearance and demeanor and expressed the opinion that he was intoxicated. A third officer gave similar evidence, except that he testified that appellant “was very intoxicated or something awful was wrong with him.”

The testimony of these officers included evidence that appellant’s speech was affected; that his face was flushed; that his eyes were glassy; that he staggered; and there was the smell of alcohol on his breath.

There was also testimony that appellant had to be helped into the police car and that he was trying to crawl over the back seat and it was necessary to place handcuffs on him to subdue him in the back seat of the police car.

On cross-examination of the first officer, who testified that appellant was intoxicated, it was brought out that a blood test had been taken.

The second officer who testified that appellant was intoxicated, who was present when the blood sample was taken, testified on cross-examination that irrespective of what the blood test showed, from what he saw at the scene he would still say that the defendant was intoxicated.

The blood sample traced to Floyd McDonald, whose qualifications as a chemist and toxicologist were stipulated. He testified that the blood was tested to determine its alcoholic content, which he found to be .04 percent. Over objection, Mr. McDonald was permitted to testify that another test showed “a blood analysis of 4.99 milligram % of phenobarbital in the body per 100 milliliters of blood.”

Mr. McDonald further testified that phenobarbital would have a very strong effect as to tolerance with alcohol * * * would lower it tremendously, and that a concentration of phenobarbital 4,9% would so lower tolerance in any person that .04 per cent alcohol would produce intoxication.

The trial judge limited Mr. McDonald’s testimony as to phenobarbital to the purpose of showing the change, if any, in a person’s tolerance for alcohol.

The contention that the evidence is insufficient to show intoxication is predicated upon the theory that the amount of alcohol in the blood showed sobriety as a matter of law.

We have not yet progressed to the point where the alcoholic content of the blood shows either intoxication or sobriety as a matter of law. We are aware of no decision by this court which may be construed as so holding and the legislature has not yet enacted a statute making proof of a certain amount of alcohol in the blood even prima facie evidence of intoxication or sobriety.

The case of Kessler v. State, 136 Tex. Cr. R. 340,125 S.W. 2d 308, is here controlling. There we said that a person who gets himself in the condition whereby he may become intoxicated from a lesser quantity of whisky than it would ordinarily take to produce intoxication, is nevertheless intoxicated from the use of whisky.

The judgment is affirmed.