Fuller v. State

In the indictment it is charged that

"* * * there was then and there a legal complaint pending in Justice Court, Precinct No. 6, Callahan County, Texas, charging Bud Dilliard with an offense of the grade of felony."

It is further charged in substance that Dilliard gave the appellant fifty dollars in consideration of which he promised to bring about the dismissal of the cases pending against Dilliard and secure his release from his appearance bond.

The court instructed the jury in accord with the indictment, namely, that if they believed that there was pending in the Justice Court, Precinct No. 6, Callahan County, a complaint charging Bud Dilliard with an offense of the grade of felony and that Dilliard was under bond for the appearance before the District Court of Callahan County to await the action of the grand jury, etc. In our examination of the record, we have failed to discover any proof that there was filed in the Justice *Page 640 Court, Precinct No. 6, of Callahan County, the complaint charged in the indictment. The only testimony on the subject is that there was a complaint filed against Dilliard in the justice court at "Cross Plains, Texas." Touching the county or precinct in which Cross Plains is situated, the record is silent. There is no testimony, and this court has no judicial knowledge of the county or precinct in which Cross Plains is located. The state having failed to prove the fact essential to the conviction, the judgment must be reversed. Cases in point are: Lerma v. State, 194 S.W. 167; Fields v. State,24 S.W. 407; Latham v. State, 19 Tex.Crim. App. 305; Vivian v. State, 16 Tex.Crim. App. 262; Cain v. State, 25 S.W. 1119.

For the reason stated, the motion for rehearing is granted, the affirmance is set aside, the judgment of the trial court is reversed and the cause remanded.

Reversed and remanded.