Thomas v. State

Driving an automobile while intoxicated is the offense; the punishment, a fine of $50.00.

The conviction is predicated upon the count in the information charging that appellant, while intoxicated drove and operated an automobile upon U.S. Highway 287 in Moore County.

This allegation became descriptive of the offense charged and the State was required to establish, by proof, that averment. We have searched the statement of facts and nowhere do we find that the State met this burden.

Because of the failure to prove the descriptive averment, as alleged, the facts are insufficient to support the conviction. Spencer v. State, 118 Tex.Crim. R., 42 S.W.2d 259; Malone v. State, 135 Tex.Crim. R., 117 S.W.2d 779; Walker v. State, 136 Tex.Crim. R., 125 S.W.2d 571; Mercer v. State, 143 Tex.Crim. R., 157 S.W.2d 919; Vaught v. State,145 Tex. Crim. 623, 171 S.W.2d 128.

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

Opinion approved by the Court.