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Byrd v. State

In this theft case, the state alleged that appellant appropriated certain property from the owner, "Mike Morales," when it should have said "Wal-Mart." At trial, the state proved that Wal-Mart owned the property. Mike Morales was never mentioned. The jury charge tracked the allegations in the information, and the jury returned a verdict finding appellant guilty of theft of property from Mike Morales. Although the name of the owner is not a substantive element of theft, the state is required to prove, beyond a reasonable doubt, that the person alleged in the indictment as the owner is the same person as shown by the evidence. Relying on the principals set out in the Texas Court of Criminal Appeals triology Malik v. State (1997), Gollihar v. State (2001) and Fuller v. State (2002), the court finds the state failed to prove appellant stole any property from Mike Morales, whom it had alleged as the owner of the shoplifted items. Therefore, the state failed to prove the specific offense charged, and appellant is entitled to an acquittal of that specifically charged offense. Texas Court of Criminal Appeals, No. PD-0738-10, 03-30-2011

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OPINION

In this theft case, the State alleged that appellant appropriated certain property from the owner, “Mike Morales.” At trial, the State proved that Wal-Mart owned the property. Mike Morales was never mentioned. The jury charge tracked the allegations in the information, and the jury returned a verdict finding appellant guilty of theft of property from Mike Morales. Appellant claimed on appeal that the evidence was legally insufficient to support her conviction because the State had alleged the wrong owner. A sharply divided en banc court of appeals held that the discrepancy between the alleged owner and the proof at trial was an immaterial variance.*fn1 The three dissenting justices argued that this was an instance of the failure of proof and that appellant was entitled to an acquittal.*fn2 We granted appellant’s petition to resolve this difficult issue.*fn3 We conclude that, under the principles set out in our trilogy of Malik, Gollihar, and Fuller,*fn4 the State failed to prove its allegation that Mike Morales was the owner of the property appellant stole. Thus, the evidence is insufficient to support her conviction.

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