ON STATE’S motion for rehearing.
MORROW, Presiding Judge.That there was a variance in the effort to prove the essential elements of the offense is not regarded as open to question. With the contention of State’s counsel that in the light of the record the variance was immaterial we are constrained to dissent. The appellant not only has the right to be advised by averment in the indictment as to the record of the former conviction against him but he also has the right to be guarded against the hazard of the use by the State of the subsequent occasion of a conviction that has theretofore been used to enhance the penalty. Hence, the time of the former conviction is a material matter which must be proved as alleged in the indictment. We think the case of Morman v. State, 75 S. W. (2d) 886, is correctly decided and that it supports the conclusion that the variance mentioned in the original opinion is fatal to the conviction.
The motion for rehearing is overruled.
Overruled.