
    Carrol F. Lyles v. State.
    No. 26,396.
    April 29, 1953.
    
      J. H. Starley, Pecos, for appellant.
    
      Wesley Dice, State’s Attorney, Austin, for the state.
   MORRISON, Judge.

The offense is driving while intoxicated; the punishment, a fine of $50.00.

Appellant moved the court to instruct the jury to return a verdict of “not guilty,” one ground being that the state had failed to prove that the offense was committed in Culberson County, Texas, as alleged in the complaint and information. This motion was overruled, and appellant reserved his exception. The question is properly before us for review. See Hodges v. State, 151 Tex. Cr. R. 511, 209 S. W. 2d 611.

There is no evidence found in the record showing that the offense was committed in Culberson County, Texas. Appellant testified that he did not, on the day in question, operate a motor vehicle upon Highway 80 in Culberson County, Texas, while under the influence of intoxicating liquor.

The issue having been raised in the trial court, we are not permitted to presume that venue was proven as provided in Article 847, C. C. P.

The judgment is reversed and the cause remanded.  