Malone v. State

OPINION

ROBERTS, Judge.

The conviction is for the subsequent offense of driving while intoxicated; the punishment, five years.

This is an out-of-time appeal. The one question presented is whether or not there was a variance between the indictment and the proof as to the prior misdemeanor conviction alleged. The indictment reads as follows: (Emphasis added) :

“IN THE NAME AND BY THE AUTHORITY OF THE STATE OF TEXAS

The Grand Jurors, duly selected, organized, sworn and impaneled as such for the County of Smith, State of Texas at the January Term, 1968, of the 7th District Court for said County, a…