ARCHER COUNTY (KFDX/KJTL) — Defense attorney Mark Barber‘s arrest Sunday for DWI with a child passenger under 15 years old leads to a second mistrial in the Joshua Fulbright murder trial.

The arrest came the day before testimony was to resume in Montague County.

According to an affidavit, two Archer County deputies say they were on patrol about 4:15 p.m. Sunday on Highway 79 near Davis Road when a northbound black Chevrolet pickup crossed over the center line toward them.

The deputy driving slowed and went on the shoulder and said he observed the truck in his rearview mirror cross the center line, causing a southbound vehicle to drive onto the shoulder to avoid the truck.

The deputy made a u-turn to go after the pickup and turned on his dash cam. He said the pickup was following close behind another vehicle in front of it.

He said he again observed the pickup cross over the white line then move back inside the lane, and as they approached the river bridge curves, it veered over the center yellow line and came back inside the line.

He caught up and turned on his overhead lights and made a traffic stop in front of the Lazy C Ranch.

As he approached the driver, he said the driver was digging through the center console, and he saw a minor female also sitting in the front seat. When told why he was being stopped, he said the driver, identified later as Barber, told him the reason he had crossed the yellow and white lines was because he had been texting.

He said Barber never made any real eye-to-eye contact and kept digging in the console and said he could not find his driver’s license. The deputy said he tried to look at Barber’s eyes, but Barber put on a pair of sunglasses.

The deputy asked for another unit to assist and two more deputies and a sergeant responded to the scene.

A deputy then began giving the standard field sobriety test and said Barber failed the Horizontal Gaze Nystagmus (HGN) eye test and the walk and turn test.

He was then shown how to do the one-legged stand and said Barber used his arms to balance and then stopped, saying he was 60 years old and couldn’t complete it, and would not continue the tests.

Deputies then handcuffed Barber and told him he was under arrest for DWI and Barber asked if it was for alcohol or drugs. When told again he was under arrest for DWI, a deputy said Barber said “let’s go draw blood.”

The deputy said Barber said he had had nothing to drink in three weeks and had not taken any prescription medication or drugs.

The girl in the truck called someone to come pick her up.

Blood was drawn in the Archer County Jail booking area and sent to the DPS lab.