
    Hugh Kerr WADDELL, Appellant, v. The STATE of Texas, Appellee.
    No. A14-82-400CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    April 20, 1983.
    Jim Schweitzer, Galveston, for appellant. Wayne Johnson, III, Galveston, for appel-lee.
    J. CURTISS BROWN, C.J., and DRAUGHN and ELLIS, JJ.
   OPINION

ELLIS, Justice.

ON MOTION FOR REHEARING

In his Motion for Rehearing, appellant argues that the court erred in concluding that Tex. Parks & Wildlife Code Ann. § 76.112 (Vernon 1976) was not void for vagueness.

The court reaffirms the findings and holding on original submission in that regard. However, we notice, in light of our findings on original submission, the evidence presented at trial was insufficient to support appellant’s conviction.

This Court determined that Section 76.-112 provides that an individual may not take or possess a cargo of oysters of which more than five percent of the total number of oysters are between three-fourth inch and three inches. In so construing Sec. 76.112, we hold that the State failed to present sufficient evidence to support the conviction of appellant. One game warden testified at trial that he was taught to take “only five percent of the sacks, not of the entire cargo.” He also testified that there were a number of unsacked oysters on board which were not included in the count. The testimony clearly shows the State failed to establish that the game wardens chose a random sample of five percent of the total number of oysters in accordance with the provisions of § 76.112.

We reverse and remand with instructions to the trial court to enter an acquittal in favor of appellant as a matter of law.  