WOODLEY, Judge.
The offense is driving while intoxicated; the punishment, forty-five days in jail and a fine of $50.
It is undisputed that the appellant was driving an automobile upon a public highway at the time and place alleged.
Officer Huber of the Dallas Police Department, who saw appellant at the scene of a collision, and Officer Heath who saw [406]*406appellant at the city jail shortly after the collision, testified that they observed appellant’s actions and conduct and smelled the odor of alcohol on his breath, and expressed the opinion that he was intoxicated.
Officer A. D. Heath, Jr. testified, without objection, that upon arrival at the city jail he gave appellant intoximeter test No. 5475. He testified as to such test, in part:
“Q. Describe briefly what is necessary for you to do in order to administer the test. A. I take it according to the instructions. It comes from a paper carton we draw from the Crime Lab. Once the test is assembled by me it is administered by him blowing his breath in this balloon. When the balloon is full I take a color reading as the air passes over a chemical.
“Q. About what size did he blow this balloon to? A. About the size of a small basketball or volleyball * * * it is sort of hard to describe.
“Q. After he blew his breath in that did you allow the breath to pass through the chemical? A. Yes.
“Q. And after that * * *. A. I sealed the test up and turned it in to the Crime Laboratory.
“Q. And after you finished the test you sealed it? Av Yes, sir.
“Q. And what did you do with it? A. I took it to the Crime Laboratory.”
J. C. Day, Lieutenant in control of intoximeter tests, testified without objection:
“Q. Officer, calling your attention to the 28th day of January, 1957, I will ask you whether you had occasion to handle Intoximeter Test Number 5475? A. Yes, sir.
“Q. Where did you first see it on that date? A. It was returned to the laboratory box provided for that purpose at the Police Department Laboratory.
“Q. What did you do with that? A. I delivered it to Parkland Hospital in the custody of Dr. Mason.”
[407]*407Lt. Day further testified that he delivered this particular test to Officer Heath who picked it up and signed for it, and that was the last time he saw it until the next day; that he did not know who placed it in the box on January 27, and that he delivered it to Parkland Hospital on January 28.
Dr. Mason, toxicologist for the city and county of Dallas, testified as to his training, experience and qualifications as a chemist and with intoximeter tests, and testified:
“A. This instrument has been employed in this area for the past six or seven years, and a good many thousand instruments have been analyzed, the analysis of which has been under my supervision during that time.
“Q. Describe in laymen’s terms what the intoximeter test is. A. The intoximeter is an instrument which is employed to determine the concentration of alcohol in a subject’s blood by virtue of analyzing his breath for alcohol.
“The reason this can be done is that it is known that the alcoholic content of a subject’s breath is proportional to that of the breath circulating in the lungs at the time.
“The instrument itself, consists of a rubber ballon, into which a breath specimen is blown. The balloon is connected with a chemical train connected with two tubes connected with each other. The first contains magnesium percholate, and the breath passing through the balloon to this tube, all of the moisture in the breath is removed by the chemical.
“The dried de-alcoholized breath passing into the second tube, which contains a chemical called ascarite * * * this measures the carbon dioxide present in the breath specimen. This second tube is weighed before the instrument is used in the test, and again afterwards, and the difference in weight represents the quantity of carbon dioxide in the breath that passes through it * * *.
“Q. * * * Are you familiar with the intoximeter test given the defendant, Number 5475? A. Yes, sir.
“Q. When was the test delivered to you for analysis? A. On the 28th day of January, 1957.
“Q. From whom did you receive it? A. J. C. Day.
[408]*408' “Q. Where did you receive it? A-. It was delivered to me at my office in Parkland Memorial Hospital.
“Q. Was the outer container sealed, the case * * *. A. The case was sealed.
“Q. Was there any information on the label? A. Yes.
“Q. Would you tell the jury what that information was? A. May I refer to my notes * * *.
“MR. ELLIS: Yes.
“Q. (By Mr. Ellis) Those were kept under your care and supervision? A. Yes, they are the official records of Parkland Hospital. The slip that sealed the case had the following information on it, ‘Jose Trujillo, 3314 Cole, 33 seconds; E. D. Heath, R. D. Huber, 12-6-57, 11:00 P.M. Cedar Springs and Harwood, investigation DWI.’
“Q. Does your record reflect who made the mechanical analysis of the test? A. James Louis and Herbert Williams.
“Q. What part of the test did they perform? A. They performed the actual weighing of the ascarite tube and the magnesium percholate tube used * * * the calculation I myself prepared.
“Q. You made the final calculations? A. I did.”
This testimony having been given by Dr. Mason without objection, he was asked “What do your official records show this test to be?” Objection was made “because he testified that a man by the name of Williams and another man did the actual weighing and all of the mechanical analysis of this test and reported the results to him, therefore it would be hearsay” and added the objection:
“The defendant has a right to be confronted by the witnesses against him. This man has testified that these two men weighed these two things, did all of the actual mechanical testing, and reported the results to him and that he then made the calculation. We object to this witness testifying as to the opinion of these witnesses about the weighing and the analysis because it would be hearsay, and we have a right to be confronted by these witnesses.”
[409]*409Before the witness answered the question to which these objections were overruled, he was asked and answered over objection that it was a conclusion: “Was that analysis made under your direct control and supervision? A. Yes.”
Dr. Mason then testified without further objection:
“Q. (By Mr. Ellis) What do the official records show the result of the test to be? A. The results show the blood alcoholic concentration of the individual to be 0.173 per cent.
“Q.
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WOODLEY, Judge.
The offense is driving while intoxicated; the punishment, forty-five days in jail and a fine of $50.
It is undisputed that the appellant was driving an automobile upon a public highway at the time and place alleged.
Officer Huber of the Dallas Police Department, who saw appellant at the scene of a collision, and Officer Heath who saw [406]*406appellant at the city jail shortly after the collision, testified that they observed appellant’s actions and conduct and smelled the odor of alcohol on his breath, and expressed the opinion that he was intoxicated.
Officer A. D. Heath, Jr. testified, without objection, that upon arrival at the city jail he gave appellant intoximeter test No. 5475. He testified as to such test, in part:
“Q. Describe briefly what is necessary for you to do in order to administer the test. A. I take it according to the instructions. It comes from a paper carton we draw from the Crime Lab. Once the test is assembled by me it is administered by him blowing his breath in this balloon. When the balloon is full I take a color reading as the air passes over a chemical.
“Q. About what size did he blow this balloon to? A. About the size of a small basketball or volleyball * * * it is sort of hard to describe.
“Q. After he blew his breath in that did you allow the breath to pass through the chemical? A. Yes.
“Q. And after that * * *. A. I sealed the test up and turned it in to the Crime Laboratory.
“Q. And after you finished the test you sealed it? Av Yes, sir.
“Q. And what did you do with it? A. I took it to the Crime Laboratory.”
J. C. Day, Lieutenant in control of intoximeter tests, testified without objection:
“Q. Officer, calling your attention to the 28th day of January, 1957, I will ask you whether you had occasion to handle Intoximeter Test Number 5475? A. Yes, sir.
“Q. Where did you first see it on that date? A. It was returned to the laboratory box provided for that purpose at the Police Department Laboratory.
“Q. What did you do with that? A. I delivered it to Parkland Hospital in the custody of Dr. Mason.”
[407]*407Lt. Day further testified that he delivered this particular test to Officer Heath who picked it up and signed for it, and that was the last time he saw it until the next day; that he did not know who placed it in the box on January 27, and that he delivered it to Parkland Hospital on January 28.
Dr. Mason, toxicologist for the city and county of Dallas, testified as to his training, experience and qualifications as a chemist and with intoximeter tests, and testified:
“A. This instrument has been employed in this area for the past six or seven years, and a good many thousand instruments have been analyzed, the analysis of which has been under my supervision during that time.
“Q. Describe in laymen’s terms what the intoximeter test is. A. The intoximeter is an instrument which is employed to determine the concentration of alcohol in a subject’s blood by virtue of analyzing his breath for alcohol.
“The reason this can be done is that it is known that the alcoholic content of a subject’s breath is proportional to that of the breath circulating in the lungs at the time.
“The instrument itself, consists of a rubber ballon, into which a breath specimen is blown. The balloon is connected with a chemical train connected with two tubes connected with each other. The first contains magnesium percholate, and the breath passing through the balloon to this tube, all of the moisture in the breath is removed by the chemical.
“The dried de-alcoholized breath passing into the second tube, which contains a chemical called ascarite * * * this measures the carbon dioxide present in the breath specimen. This second tube is weighed before the instrument is used in the test, and again afterwards, and the difference in weight represents the quantity of carbon dioxide in the breath that passes through it * * *.
“Q. * * * Are you familiar with the intoximeter test given the defendant, Number 5475? A. Yes, sir.
“Q. When was the test delivered to you for analysis? A. On the 28th day of January, 1957.
“Q. From whom did you receive it? A. J. C. Day.
[408]*408' “Q. Where did you receive it? A-. It was delivered to me at my office in Parkland Memorial Hospital.
“Q. Was the outer container sealed, the case * * *. A. The case was sealed.
“Q. Was there any information on the label? A. Yes.
“Q. Would you tell the jury what that information was? A. May I refer to my notes * * *.
“MR. ELLIS: Yes.
“Q. (By Mr. Ellis) Those were kept under your care and supervision? A. Yes, they are the official records of Parkland Hospital. The slip that sealed the case had the following information on it, ‘Jose Trujillo, 3314 Cole, 33 seconds; E. D. Heath, R. D. Huber, 12-6-57, 11:00 P.M. Cedar Springs and Harwood, investigation DWI.’
“Q. Does your record reflect who made the mechanical analysis of the test? A. James Louis and Herbert Williams.
“Q. What part of the test did they perform? A. They performed the actual weighing of the ascarite tube and the magnesium percholate tube used * * * the calculation I myself prepared.
“Q. You made the final calculations? A. I did.”
This testimony having been given by Dr. Mason without objection, he was asked “What do your official records show this test to be?” Objection was made “because he testified that a man by the name of Williams and another man did the actual weighing and all of the mechanical analysis of this test and reported the results to him, therefore it would be hearsay” and added the objection:
“The defendant has a right to be confronted by the witnesses against him. This man has testified that these two men weighed these two things, did all of the actual mechanical testing, and reported the results to him and that he then made the calculation. We object to this witness testifying as to the opinion of these witnesses about the weighing and the analysis because it would be hearsay, and we have a right to be confronted by these witnesses.”
[409]*409Before the witness answered the question to which these objections were overruled, he was asked and answered over objection that it was a conclusion: “Was that analysis made under your direct control and supervision? A. Yes.”
Dr. Mason then testified without further objection:
“Q. (By Mr. Ellis) What do the official records show the result of the test to be? A. The results show the blood alcoholic concentration of the individual to be 0.173 per cent.
“Q. What proportion of adult person would be under the influence of intoxicating liquors if the blood alcoholic concentration of the individual was as much as 0.100? A. In my opinion, any individual with a concentration of 0.110 in the blood would be under influence of alcohol.
“The effect of alcohol varies, of course, in individuals; some would come under the influence at a lower figure but any individual would be at one-tenth per cent.
“Q. Is 0.173 a greater concentration than 0.100? A. Yes, 1.73 times as much.
“Q. Therefore, would the person with the blood concentration of this .173 * * * is that person under the influence of alcohol? A. Yes, sir.”
On cross-examination Dr. Mason testified that the ascarite tube was weighed originally when the instrument was prepared - for use by Herbert Williams; that he was in the laboratory, but did not recall seeing Williams weigh the tube. “I cannot see him weigh all of the individual tubes.”
He testified further that James Lewis “weighed the ascarite tube after the instrument was used and conducted a distillation of the ingredients;” that he was on the premises but “I cannot recall this particular test.” He readily admitted that “the analysis has to be conducted correctly of course.”
At the conclusion of Dr. Mason’s testimony appellant moved to strike it “as based on conclusions, because he testified that he did not see these two witnesses make the tests and therefore his opinion is based on hearsay. Under the Constitution we have a right to be confronted by their witnesses * * * we have had no opportunity to cross-examine them.”
[410]*410There is but one legal question presented: Was Dr. Mason’s testimony concerning the official records of Parkland Hospital showing the results of the analysis of the test admissible as against the objection that it was hearsay?
It is true that appellant denied that he consented to the taking of the test but this testimony was given after the witness Huber had testified without objection that it was taken, and after Dr. Mason had testified from the hospital records as to the result of the analysis of the test with no objection save that which raised the question stated; that is, whether Dr. Mason’s testimony was hearsay.
The question of whether appellant consented became immaterial after it was shown without objection that the test was made and showed intoxication. Dominguez v. State, 161 Texas Cr. Rep. 124, 275 S.W. 2d 677; Atkinson v. State, 157 Texas Cr. Rep. 556, 251 S.W. 2d 401.
It appears that the hospital records were admissible, and that' the very purpose of Article 3737e V.C.S. was to make it unnecessary that the state call every person who had a part in conducting the analysis and making the record at the time the analysis was made. Leonard v. State, 161 Texas Cr. Rep. 470, 278 S.W. 2d 313; Jackson v. State, 159 Texas Cr. Rep. 228, 262 S.W. 2d 499; Bryan v. State, 157 Texas Cr. Rep. 592, 252 S.W. 2d 184.
To reject the records as evidence would defeat proof by laboratory analysis, for as indicated in Dr. Mason’s testimony, it could not be expected that each chemist who had a part in the analysis could remember every tube he weighed and identify it by number.
Had Wililams been called to testify as to the weight of the ascarite tube prepared for test 5475, and had Lewis been called to testify as to its weight after breath had been passed through it, they no doubt could have testified only ,as did Dr. Mason; what the records made at the time showed. Art. 3737e V.C.S., by its terms, authorizes proof by the testimony of the entrant, custodian or other qualified witness, “even though he may not have personal knowledge as to the various items or contents of such memorandum or records,” and that “such lack of personal knowledge may be shown to affect the credibility of the memorandum or record, but shall not affect its admissibility.”
[411]*411There was ample evidence aside from the intoximeter test to prove appellant’s intoxication.
He admitted having consumed three beers, but denied that he was intoxicated.
He admitted that he had plead guilty to illegally possessing marihuana and was under a five year probated sentence for that offense.
Under the facts stated the jury resolved the issue against him; found that he was intoxicated on the occasion in question, and we find the evidence sufficient to sustain the conviction, and no reversible error.
The judgment is affirmed.