Opinion
No. 43806.
February 3, 1971.
Appeal from the County Court at Law of Smith County, Milton G. Mell, J.
Weldon Holcomb, Tyler, for appellant.
Jim D. Vollers, State's Atty., Austin, for the State.
OPINION
This is an appeal from a judgment of conviction in County Court at Law of Smith County for the offense of unlawful sale of beer. The judgment was rendered upon a plea of guilty before the court to the information in Cause No. 22,644 and a fine of $275.00 was assessed.
The complaint and information in Cause No. 22,644 allege the offense of possession of beer for the purpose of sale, while the judgment and sentence show the offense of unlawful sale of beer in a dry area.
No grounds of error are set forth in a brief filed in the trial court as required by Article 40.09, Sec. 9, Vernon's Ann.C.C.P. However, the court will consider as unassigned error, pursuant to Article 40.09, Sec. 13, V.A.C.C.P., the fatal variance between the judgment and the information. Acosta v. State, Tex.Cr.App., 385 S.W.2d 394; Wright v. State, 168 Tex.Crim. R., 330 S.W.2d 618; Pond v. State, 116 Tex.Crim. 196, 32 S.W.2d 356.
The judgment is reversed and the cause is remanded.