Opinion
[169 TEXCRIM 501] Magus F. Smith, McAllen, for appellant.
R. L. Lattimore, Crim. Dist. Atty., Oscar B. McInnis, First Asst. Crim. Dist. Atty., Edinburg, Leon Douglas, State's Atty., Austin, Jim Bates, Edinburg, of counsel, for the State.
WOODLEY, Judge.
The offense is felony theft; the punishment, 2 years.
The indictment alleged that appellant stole 'one dress of the value of $17.95 and two dresses of the value of $19.95 each.'
Appellant, the wife of Guadalupe Alaniz, her sister Rafaela Zavala Lazo, her sister-in-law Francisca and her baby girl, and appellant's daughter Elecia, went from McAllen to Edinburg in an automobile belonging to appellant and her husband. Rafaela drove, she being the only one of the group who knew how to drive. During the noon hour, according to the testimony of the only clerk in the department at the time, the four women were in the Terry Ferris Store trying on dresses. The clerk did not see them leave.
Two coats were missed and the police were called, and shortly thereafter the women were arrested.
The automobile was located and several paper bags with new clothes in them were found in the trunk of the car, which was [169 TEXCRIM 502] locked. The clothes were identified as belonging to the Terry Ferris Store. These clothes were introduced in evidence and the inventory made by Mr. Nelson, the store manager, with the description and retail value of each item, was read to the jury by him.
Among the many items of clothing were three dresses of the value set out in the indictment.
The State called as a witness appellant's sister, Rafaela Zavala Lazo, who testified that while in the store Francisca put some dresses in a bag and gave her some, and they took them from the Terry Ferris Store and put them in the automobile.
Rafaela further testified that appellant 'was over somewhere else with her daughter' when she and Francisca were getting the clothes and 'didn't know anything about those clothes being in the car until after the police found them there.'
The record does not show that the dresses described in the indictment and identified by Mr. Nelson were other than some of the dresses referred to by Rafaela.
There was no testimony showing that appellant took any dresses from the store or put any dresses in her automobile.
In view of the testimony of its witness Fafaela Zavala Lazo, the State is in no position to say that the finding of the dresses in appellant's automobile showed her to be in possession of recently stolen property.
The evidence is deemed insufficient to sustain the conviction.
The judgment is reversed and the cause remanded.