Thomas v. State , 172 Tex. Crim. 569 ( 1962 )

DICE, Judge.

The conviction is for driving while intoxicated; the punishment, three days in jail and a fine of $50.

Trial was before the court without the intervention of a jury.

Motion was made by appellant to dismiss the information on the ground that no complaint was in existence when the information was presented, which motion was by the court overruled.

The record reflects that the information was presented on December 28, 1961, and that the complaint upon which it was purported to be based was not sworn to until the following day.

It follows that the information was not presented upon a complaint then in existence and is therefore invalid. Art. 415, V.A.C.C.P.; Baker v. State, 159 Texas Cr. Rep. 491, 265 S.W. 2d 600; and Billingslea v. State, 160 Texas Cr. Rep. 244, 268 S.W. 2d 668.

The judgment is reversed and the cause is remanded.

Opinion approved by the Court.