Later courts went against this
Overruled on other grounds by Smith v. State, 1970 Tex. Crim. App. LEXIS 1366 (1970)
387 S.W.2d 396, 398 (Tex. Crim. App. 1965), overruled on other grounds by Smith v. State, 450 S.W.2d 618, 622
Distinguished
Distinguished by Kotlar v. State, 1986 Tex. App. LEXIS 12232 (1986)
Urban and McCaleb are distinguishable as both involve the introduction into evidence of the indictment of the ease presently under trial.
The opinion
ON STATE’S MOTION FOR REHEARING
MORRISON, Judge.
To sustain this conviction it was essential that the State offer proof for the jury’s consideration that the offenses occurred within a 12 months period next preceding the filing of the indictment.
The State has filed an extensive brief in which are cited a number of cases dealing with the construction of instruments and pleadings or a collateral attack thereupon, but not a single case in which the question of the sufficiency of the evidence was being discussed. So at most what went before the jury was a stamp on the back of the indictment. The indictment bears the name, “Mrs. Thornton, Clerk of Court”, as a witness, and yet she was not called. We should not be asked to affirm a conviction without proper proof of an integral element of the case when proof was available and not offered.
The State’s motion for rehearing is overruled.