Thе indictment in this case charged in a single count thе driving of an automobile upon a public highway while intoxicated, which is an offense of the gradе of a misdemeanor, under the provision of Art. 802, P. C. Thеre was the further allegation, in connectiоn therewith, that appellant, before the сommission of that offense, had been conviсted of an offense of the same charаcter. The two allegations, together, charged the felony offense of driving an automobile while intoxicated, as denounced by Art. 802b, P. C.
The cаse came on for trial in the criminal district court of Harris County and, upon the trial thereof, the state did not establish the allegation of a prior conviction. The trial court submitted to the jury only thе primary or misdemeanor offense chargеd in the indictment. The jury convicted of that offensе and assessed appellant’s punishment at сonfinement in jail for thirty days.
It is insisted that when the state failed to establish the allegation of prior сonviction, the trial court lost jurisdiction of the сase and was authorized to do nothing moré than to transfer the case to the county court at law of Harris County, the court having jurisdiction over the misdemeanor offense of drunk driving.
It is insisted that the judgment is sustainable for either of two reasons, which arе: (a) The criminal district court of Harris County has jurisdiction of misdemeanors, and (b) the misdemeanor offense of drunk driving was an offense included within the allegаtion of the indictment.
If either of these contеntions be correct, the judgment is valid.
Art. 694, C. C. P., authorizes a conviction for a lower offense which is inсluded within the offense that is the basis of the prosеcution.
In the case of Tomlin v. State,
“The rule appears to be that where the offense charged is not within the provisiоns of said Art. 695, C. C. P., in order to warrant a conviction for a lesser offense than that charged in an indiсtment, it is necessary that every constituent element of the lesser offense be alleged in thе indictment, and that there be no repugnancy between the constituent elements of the lessеr offense and those of the offense chаrged.”
We are constrained to conclude that the above rule is applicable and controlling, here, where the misdemeanor оffense of drunk driving is not only included within the allegations оf the indictment but is a constituent element of the felony offense charged, without which the felony offense does not exist.
The trial court was not without jurisdiction to render the judgment appealed from.
The judgment is affirmed.
Opinion approved by the court.