In her dissent, Justice Simmons did not mince words:
Although this misdemeanor case seems small, the ramification of the majority opinion is large. In this case the jury was charged to find the defendant guilty if the State proved, beyond a reasonable doubt, that Lavonne Byrd:
“with the intent to deprive the owner, Mike Morales, of property, . . . did unlawfully, without the effective consent of the owner, Mike Morales, appropriate said property by acquiring and otherwise exercising control over said property . . .
Without any evidence in the record identifying Mike Morales or linking Mike Morales to the property at issue, the jury returned a guilty verdict. This is an astonishing result. T he consequence of the majority opinion is to permit the conviction of a defendant for theft without regard to the identity of the owner. I must respectfully dissent because I believe the case reflects a failure of proof rather than a variance. But even if the case is analyzed under variance parameters, the variance is material. The majority opinion reaches its conclusion that the variance is immaterial by misinterpreting the Court of Criminal Appeals’ opinion in Bailey v. State, 87 S.W.3d 122 (Tex. Crim. App. 2002). In no recorded case has a court ever held a defendant guilty of theft absent proof of ownership as alleged and charged. There are plenty of cases to the contrary pointing out that failure to establish ownership in the person or entity alleged as owner results in a failure of proof. But whether the error in this case is characterized as a material variance or a failure of proof, the case should be reversed.
