¶1OPINION
¶2ON MOTION FOR REHEARING
¶3In his Motion for Rehearing, appellant argues that the court erred in concluding *753that Tex. Parks & Wildlife Code Ann. § 76.112 (Vernon 1976) was not void for vagueness.
¶4The court reaffirms the findings and holding on original submission in that regard. However, we notice, in light of our findings on original submission, the evidence presented at trial was insufficient to support appellant’s conviction.
¶5This Court determined that Section 76.-112 provides that an individual may not take or possess a cargo of oysters of which more than five percent of the total number of oysters are between three-fourth inch and three inches. In so construing Sec. 76.112, we hold that the State failed to present sufficient evidence to support the conviction of appellant. One game warden testified at trial that he was taught to take “only five percent of the sacks, not of the entire cargo.” He also testified that there were a number of unsacked oysters on board which were not included in the count. The testimony clearly shows the State failed to establish that the game wardens chose a random sample of five percent of the total number of oysters in accordance with the provisions of § 76.112.
¶6We reverse and remand with instructions to the trial court to enter an acquittal in favor of appellant as a matter of law.