
    John P. Willett v. State
    No. 26,698.
    June 22, 1955
    
      W. S. Foster, Waco, for appellant.
    
      Leon Douglas, State’s Attorney, Austin, for the state.
   WOODLEY, Judge.

The conviction is for driving a motor vehicle upon a public highway while intoxicated, the jury having assessed as punishment one year in jail and a fine of $250.00.

The statement of facts found in the record, which is agreed by counsel for the state and for appellant to be “a correct statement of all the facts given in evidence on the trial” and which is approved by the trial judge, requires that the cause be reversed for insufficiency of the evidence.

According' to this statement of facts the state offered no testimony to show that appellant was intoxicated. No witness testified that he was intoxicated or expressed his opinion on the subject.

The evidence shows that appellant complied with the request of the arresting officers and blew up a balloon for an intoximeter test, and that it was turned over to “authorities at the courthouse.” But there is no evidence to show that the intoximeter test which the state’s witness examined was that which the officers took from appellant.

Because the evidence is insufficient to sustain the conviction, we need not pass upon the bills of exception. We observe, however, that the bills are formal bills and were not separately filed in the trial court and included in the transcript, as required by law.

We also notice that in qualifying the bills of exception the trial court recites certain testimony which if given and included in the statement of facts might have supplied the evidence, the absence of which requires that the conviction be set aside.

The judgment is reversed and the cause is remanded.  