
    J. B. Walker v. State
    No. 28,745.
    January 30, 1957.
    
      
      Martin & Shown, by James J. Shown, Houston, for appellant.
    
      Dan Walton, District Attorney, Eugene Brady and Thomas D. White, Assistants District Attorney, Houston, and Leon Douglas, State’s Attorney, Austin, for the state.
   WOODLEY, Judge.

The complaint and information alleged that appellant drove a motor vehicle upon a public highway in Harris County, Texas, while his Texas license as an operator was suspended. The offense charged is defined in Sec. 34 of Art. 6687b, V.A.C.S.

Appellant was found guilty and assessed a fine of $150.

That the motor vehicle be driven or operated upon a public highway is an essential element of the offense charged.

We agree with appellant’s contention that the state did not discharge the burden of proving this element of the offense and the evidence is therefore insufficient to sustain the conviction.

The testimony relied upon by the state to establish that appellant drove a motor vehicle upon a public highway is the testimony of C. E. Buckner wherein he identified appellant and testified that on July 20, 1956, he saw him in Houston, Harris County, Texas.

“Q. Where did you see this defendant? A. 2700 block Sauer.

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“Q. What was he doing when you saw him? A. I stopped him for no rear license plate on a pickup truck.

“Q. Was he operating the pickup truck when you saw him? A. He was. * * *

“Q. The defendant was driving a motor vehicle on July 20th when you saw him here in Harris County, Texas? A. Yes, sir.”

This is all of the testimony we find in the record relative to appellant’s operating a motor vehicle on or about July 20th, 1956.

The evidence does not show that the pickup truck was being driven on a street. Under the testimony quoted appellant could have been driving it on private property in the block mentioned, such as on a private driveway.

The judgment is reversed and the cause remanded.  