Ballinger v. State

Decision Date14 June 1972
Docket NumberNos. 45065,45059,s. 45065
Citation481 S.W.2d 421
PartiesBessie Jean BALLINGER, Appellant, v. The STATE of Texas, Appellee. Rada Maxine SPEER, Appellant, v. The STATE of Texas, Appellee.
CourtTexas Court of Criminal Appeals

Emmett Colvin, Jr., Dallas, for appellants.

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



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...

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7 cases
  • O'Donald v. State
    • United States
    • Texas Court of Criminal Appeals
    • April 4, 1973
    ...alleged to have been stolen. By statute, a fraudulent taking must be shown. Article 1410, Vernon's Ann.P.C.; cf., Ballinger v. State, 481 S.W.2d 421 (Tex.Crim.App.1972); Martin v. State, 95 Tex.Cr.R. 401, 254 S.W. 971 1 Hudgins testified he stayed in the pickup truck that morning and did no......
  • Wilson v. State, 51373
    • United States
    • Texas Court of Criminal Appeals
    • May 12, 1976
    ...the theft of property not alleged in the indictment to have been stolen. Cornado v. State, Tex.Cr.App., 508 S.W.2d 373; Ballinger v. State, Tex.Cr.App., 481 S.W.2d 421. The indictment in the instant case alleged theft of a camera only, not any case or accessories. Because the evidence showe......
  • In the Matter of D.L., No. 12-06-00431-CV (Tex. App. 7/31/2007)
    • United States
    • Texas Court of Appeals
    • July 31, 2007
    ...the cost to replace other items that might have been stolen along with the item alleged to have been stolen. See Ballinger v. State, 481 S.W.2d 421, 422 (Tex. Crim. App. 1972).3 We need not resolve this issue, however, because the jury was entitled to rely on Carrell's statement that direct......
  • York v. State
    • United States
    • Texas Court of Appeals
    • December 17, 1986
    ...not alleged in the indictment to have been stolen. Coronado v. State, 508 S.W.2d 373, 374 (Tex.Crim.App.1974); Ballinger v. State, 481 S.W.2d 421, 422 (Tex.Crim.App.1972). When the only evidence as to value includes the value of items not alleged to have been stolen, there is in effect no e......
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