McElroy v. State , 154 Tex. Crim. 20 ( 1949 )

DAVIDSON, Judge.

The opinion heretofore rendered in this cause, of date October 26, 1949, is withdrawn, and the following substituted in lieu thereof:

The information described the automobile which appellant was alleged to have driven while intoxicated as a “1939 Model Ford. License # Texas BT 3028.” We have been unable to find that the state supported this allegation by proof.

The state was not under the burden of describing the automobile in such detail in order to charge the offense of driving an automobile while intoxicated but, having done so, was required to establish that allegation by the proof, as such detailing became descriptive of the motor vehicle which the state charged appellant was driving. Brunson v. State, 152 Texas Crim. Rep. 158, 211 S. W. 2d 755; Spencer v. State, 118 Tex. Cr. R. 336, 42 S. W. 2d 259; Vaught v. State, 145 Tex. Cr. R. 623, 171 S. W. 2d 128, and authorities there cited.

The appellant did not call attention, either originally or on motion for rehearing, to this variance. The failure to make the required proof is fundamental error and requires a reversal of the case.

The judgment of the trial court is now reversed and the cause remanded.

Opinion approved by the court.