MALONE v. STATE

No. 43708.

466 S.W.2d 310 (1971)

Robert Andrew MALONE, Appellant, v. The STATE of Texas, Appellee.

Court of Criminal Appeals of Texas.

April 27, 1971.


Attorney(s) appearing for the Case

Troy V. Smith, Tyler, for appellant.

Jim D. Vollers, State's Atty., Austin, for the 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...

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