Wheat v. State

356 S.W.2d 323 (1962)

Roy Rufus WHEAT, Appellant, v. The STATE of Texas, Appellee.

No. 34488.

Court of Criminal Appeals of Texas.

April 18, 1962.

Hattie E. Briscoe, San Antonio, for appellant.

Charles J. Lieck, Jr., Criminal Dist. Atty., Edward E. DeWees, Jr., Asst. Dist. Atty., San Antonio, and Leon B. Douglas, State's Atty., Austin, for the State.

BELCHER, Commissioner.

The appellant was convicted for operating a motor vehicle on a public highway while his operator's license was suspended; the punishment, thirty days in jail.

The complaint alleged that the offense was committed on or about the 4th day of May, 1961. The information based on the complaint alleged that the offense was committed on or about the 4th day of March, 1961.

It has been consistently held that a variance between the complaint and the information as to the date when the offense was committed is fatal to the validity of the information. Harrison v. State, Tex.Cr. App., 297 S.W.2d 823; Murphy v. State, 149 Tex.Cr.App. 269, 193 S.W.2d 820; Bayless v. State, 136 Tex.Cr.R. 1, 123 S.W.2d 354; McKinney v. State, Tex.Cr.App., 49 S.W. 376; 30 Tex.Jur.2d 551, Sec. 12; 1 Branch's Ann.P.C. 456, Sec. 455.

For the defect pointed out in the information, the judgment is reversed and the cause is remanded.

Opinion approved by the Court.