Ballinger v. State

481 S.W.2d 421 (1972)

Bessie Jean BALLINGER, Appellant, v. The STATE of Texas, Appellee. Rada Maxine SPEER, Appellant, v. The STATE of Texas, Appellee.

Nos. 45065, 45059.

Court of Criminal Appeals of Texas.

June 14, 1972.

*422 Emmett Colvin, Jr., Dallas, for appellants.

Jim D. Vollers, State's Atty., Robert A. Huttash, Asst. State's Atty., Austin, for the State.

OPINION

MORRISON, Judge.

The offense is felony theft; the punishment, three (3) years for each defendant.

These cases were tried together and are consolidated on appeal.

Appellants' sole ground of error is that the evidence is insufficient to support the convictions.

The indictment alleged theft of "shirts and one coat, value of $140.00 and being of the total value of over $50.00."

Sylvia Hanzelka testified that while on duty at Myers Department Store, she saw both appellants "stuffing shirts in their purses" after which they fled with Manager Melvin Davis in pursuit. Manager Davis testified that he attempted to pursue the appellants but that they escaped. He stated over objection that after their departure he took an inventory of the area in the store where appellants had been observed and determined "[A] sport coat, two sweater sets, [and] Arrow shirts in packs were missing [at] a total value of $140.00." None of the property was recovered.

No proof was offered as to the value of the "two sweater sets."

It is axiomatic that a conviction cannot be had for property not alleged to be stolen. Clark v. State, Tex.Cr.App., 215 S.W.2d 184; Flippin v. State, 134 Tex.Cr. R. 352, 115 S.W.2d 665; Garrett v. State, 87 Tex.Cr.R. 12, 218 S.W. 1064; Poston v. State, 58 Tex.Cr.R. 583, 126 S.W. 1148. It is also fundamental that a felony theft conviction cannot be sustained unless the value of the items alleged in the indictment are proved to be over $50.00. McKnight v. State, Tex.Cr.App., 387 S.W.2d 662; Price v. State, 165 Tex.Cr.R. 326, 308 S.W.2d 47; Perales v. State, 165 Tex.Cr.R. 638, 310 S.W.2d 335; Isbell v. State, Tex.Cr. App., 437 S.W.2d 270, and Barnes v. State, Tex.Cr.App., 467 S.W.2d 437.

The proof in this case shows the aggregate value of the shirts, coat and sweater sets to be $140.00. There is no proof as to the value of the shirts and the coat.

In Howell v. State, 47 Tex.Cr.R. 252, 83 S.W. 185, this Court was faced with a similar situation. Therein we said:

"It will be seen from the statement of the prosecuting witness, part owner of the property alleged to have been stolen, in giving the value of the jewelry alleged to have been stolen, he included five rings, four watch charms, and five lockets, not charged in the indictment, and that all of these aggregated the sum of $75 or $80. This would not show that the property alleged in the indictment was of the value of $50."

Since the evidence is insufficient to support the convictions, the judgments are reversed and the causes are remanded.