#### Vivian CARDONA, Appellant, v. The STATE of Texas, Appellee.

No. 27203.

Court of Criminal Appeals of Texas.

Dec. 1, 1954.

*74Clyde Vinson, San Angelo, for appellant. *I'l 'i*!;.\,r !. ' . -. .'

.., Wpgl.ey, Dice, State’s Atty., Austin, for '.the,Strife.. • ,- ■ ..' , ' ■ "

DAVIDSON, Commissioner.

,;Tjhe offense fpr which appellant stands convicted is the wilful neglect and refusal to provide for the support of his three children, each under the age'.of .sixteen¡years. The punishment was assessed at thirty days’ confinement'- in jaili -

The .indictment, substantially fol- / lowed ■ that, set out in Willson’s Criminal ■fF.orm'No. 277. -,It;was not necessary that the indictment allege that the children were in destitute and necessitous circumstances. Lawsóñ:'v.-' State, 114 Tex.CnR. 145, .‘25 . S.W.2d 843. ; ■

' The offense ■ was alleged to have beén committed on or about March 1, 1954. The indictment- was filed April 27; 1954.

The ■ state was authorized thereunder to convict- ppon facts showing1 the wil•ful neglect and refusal on the part of the appellant to support- his-Three -children- at any time prior to the last date above mentioned and within the period of limitation.

Wilfulness being an essential element of the offense, the state was required to show, among other things, that the neglect arid failure to support was intentional and with- set purpose and design. Proof, . merely, of the failure to support is not suf- • ficient. Glazener v. State, 117 Tex.Cr.R. 605, 36 S.W.2d 752. If a parent is unable to support his children, his failure to do so cannot be said to be wilful. Otto v. State, 98 Tex.Cr.R. 549, 266. S.W. 787; O’Briant v. State, 113 Tex.Cr.R. 327, 21 S.W.2d 520.

It is under the rules of law stated that appellant insists that the facts are insufficient to support the conviction — that is, that there is'no sufficient evidence’to show wilfulness or that he was able, to, support his children.

• Appellant arid his wife were'.'Separated in September prior . to the .date .-of the alleged offense.- '

-. -The. wife, testified that from-the time of their-Reparation until the time of trial appellant had -contributed to-hgr approximately $Ü0 for the support of their, children. Witness made no effort to testify that appellant: hád or-'had not been' employed or •! what-his -income was or., as-to his-physical condition during the period.:mentioned,

,lBy the married sister'of ’appellant, the-state sought to supply that p'roófi However, 'the testimony of the witness falls far short of 'doing so, for she was unable to testify as to appellant’s steady employment ,0r the amount of money he had earned or received during, such time. ’. ’ On the -contrary, she'tésti’fied that'ábotít three months prior to the time of trial appellant' was sick and that, from the middle of December through January the company by ’ which appellant was employed closed down.

From the testimony-of this "witness, as well as the-state's case as a whole, it cannot be reasonably ' said that the amount which appellant contributed to the support of-his children .during the-period of time *75mentioned was not commensurate with hi's earnings over the same period of time. Nor is there proof that his failure to contribute to.the support of his children was the result of his wilful and deliberate refusal to work or obtain employment. .

In order to here convict, there must be some testimony that the accused was so situated that he could have contributed more to the support of his children than he did. Glazena v. State, supra.

We cannot bring ourselves to the conclusion that the state’s proof meets the requirements of the law and that it is sufficient to support the conviction.

Accordingly, the judgment is reversed and the cause is remanded. • .

Opinion approved by the Court