Commons v. State

575 S.W.2d 518

Opinions

OPINION

ONION, Presiding Judge.

This is an appeal from a conviction of the misdemeanor offense of fraudulently substituting price tags in violation of V.T.C.A., Penal Code, § 32.47. The jury assessed punishment at a probated fine of $50.00.

The record reflects that appellant, while shopping in a Skaggs-Albertson store in Dallas County, removed a $1.79 price tag from a box containing liquid Tylenol and substituted therefor a $.99 price tag which she had taken from a box of Tylenol tablets. When she checked out at the cashier’s stand, she was charged $.99 for the liquid Tylenol. A Dallas police officer, Murray Jackson, who was working as a security officer in his off-duty hours for this Skaggs-Albertson store, observed appellant substitute the price tags, kept her under surveillance until she checked out of the store, and then apprehended her.

The relevant portion of the information upon which appellant was tried follows:

“. . . did unlawfully then and there knowingly and intentionally with intent to injure, defraud and harm, another, Murray Jackson, remove and substitute a writing, to wit: price tag, which was not a governmental record.”

It is apparent that when price tags are switched on merchandise, as was the case here, it is the owner of the merchandise who is injured, defrauded and harmed be cause it is the owner who stands to receive less for his goods as a result of the fraudulent act.

Here the information alleges that appellant substituted the price tags with the intent to injure, defraud and harm Murray Jackson, the security officer of the store; yet there is no evidence that he was the owner of the merchandise or the person who exercised care, control and custody thereof. See Article 21.08, V.A.C.C.P.; Eaton v. State, 533 S.W.2d 33 (Tex.Cr.App.1976); Roberts v. State, 513 S.W.2d 870 (Tex.Cr.App.1974); Harriford v. State, 487 S.W.2d 351 (Tex.Cr.App.1972); Castillo v. State, 469 S.W.2d 572 (Tex.Cr.App.1971).

Under these circumstances, we agree with appellant’s contention that there was a fatal variance in the allegations in the information and the evidence introduced.

The judgment is reversed and the cause remanded.