Driving an automobile while intoxicated is the offense; the punishment, a fine of $100.
Whether appellant was the driver of the automobile, as alleged, was the disputed issue before the jury.
A statement of the facts is not deemed called for in the light of the following bill of exceptions which is approved without qualification, viz.:
“Be it remembered that upon the trial of the above entitled and numbered cause, the defendant moved the court for an instructed verdict of ‘Not Guilty’, and the court refused same and submitted the case to the jury. The jury found the de*80 fendant ‘Guilty’ of the offense of driving while intoxicated upon a public highway, and assessed his penalty as $100.00 fine. The court erred in overruling the defendant’s motion of ‘Not Guilty’, because the evidence on the part of the State is insufficient to convict the defendant as charged, to which the defendant duly and timely excepted and tenders this Bill of Exception No. 2, which is approved by the Court and ordered filed.”
In approving this bill of exception the trial court certifies as a fact tht he erred in overruling the motion for new trial, because the evidence was insufficient to convict the appellant. The approval of this bill of exception constitutes a certification by the trial court that the facts do not sustain the conviction.
We are bound by the record as made and certified to us, and have no authority to disregard this certificate of error. Cooper v. State, 113 Tex. Cr. R. 569, 24 S. W. 2d 427 Jeters v. State, 127 Tex. Cr. R. 444, 77 S. W. 2d 231; Rehm v. State,, 128 Tex. Cr. R. 59, 78 S. W. 2d 983; Hart v. State,, 135 Tex. Cr. 565, 122 S. W. 2d 193; Gomez v. State, 144 Tex. Cr. R. 219, 162 S. W. 2d 428.
The judgment is reversed and the cause is remanded.
Opinion approved by the court.