ON REHEARING EN BANC ON COURT’S OWN MOTION
CANTU, Justice.The instant case presents a novel question requiring the attention of the entire court. Rehearing en banc is granted on the Court’s own motion.
The facts as stated in the panel opinion are correct and will not be repeated. Likewise, the disposition of appellant’s point of error complaining of admission of an extraneous offense is correctly addressed and will not be disturbed.
Appellant’s remaining points of error are the subject matter of sharp disagreement between members of the Court. Because the upholding of these points of error call for the entry of a judgment of acquittal we quote these points of error in their entirety.
The trial court erred in permitting the State, over defendant’s objection, to attempt proof of the value of the 65 cartons of cigarettes alleged as stolen in the indictment by proving the aggregate value of the owner’s sale price for 650 individual packages of cigarettes if sold one at a time.
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There is a material variance between the allegations of the indictment as to the value of the stolen property described therein and the proof offered by the State in effort to prove such value.
The trial court erred in denying defendant’s motion for a directed verdict of not guilty at the close of the testimony and after the State had rested for the reason that the State failed to prove by competent evidence that the property described in the indictment had a value of $750.00 or more.
The indictment in pertinent part alleged: ... on or about the 28th day of June, A.D., 1985, MELVIN L. HALL with intent to deprive the owner, namely: KAREN BROWN, of property, namely: SIXTY-FIVE (65) CARTONS OF CIGARETTES, did unlawfully appropriate said property by acquiring and otherwise exercising control over said property, said property being other than real property which had AN AGGREGATE VALUE of Seven Hundred and Fifty Dollars ($750.00) or more but less than Twenty Thousand Dollars ($20,000.00), ...
The indictment thus alleged a third degree felony. See TEX.PENAL CODE ANN. § 31.03(e)(4)(A) (Vernon Supp.1987).
During the case in chief the State was permitted, over repeated timely objection, to offer proof of the value of the 65 cartons of cigarettes described in the indictment by allowing the State’s witness to testify as to the sale price of a single package of cigarettes when sold one at a time. The witness was then permitted, over continued objection, to testify that the unit price of $1.33 for a single package would aggregate to a value of $865.50 when multiplied by 650, the number of single packages in 65 full cartons.
Appellant had previously filed and urged his motion in limine seeking to prevent just such manner of proving aggregate value.
Only two witnesses testified, both for the State, on the subject matter of the theft. Each testified as to a specified number of cartons taken and recovered following the theft.
Neither witness testified that a particular number of packages had been taken or that each carton was complete with ten packages each. Thus there is no evidence of the actual number of packages taken. On the other hand all references are to the taking of cartons and presumably each was full when taken.
*11The panel opinion recognized that the allegation in the indictment making reference to 65 cartons of cigarettes being stolen was an allegation describing the quantity of items stolen. It further recognized that the State was bound to make such proof but erroneously concluded that the State met this burden. In doing so the panel alluded to the lack of a rule of law that requires the State to offer its proof of value in the same corresponding unit as that used in the indictment to describe the items stolen.
It is elementary criminal law that allegations descriptive of the thing stolen must be proved as alleged and any material variance between the pleading and the proof is fatal. This rule is applicable even though the indictment may describe the property with unnecessary particularity, and no part of the description, whether necessary or unnecessary can be rejected as surplusage. Flippin v. State, 134 Tex.Cr.R. 352, 115 S.W.2d 665 (1937).
The State sought to indict for the theft of cartons and not packages. The State’s proof supports theft of cartons and not packages. The only proof of packages was, as pointed out supra, proof that a carton contains ten packages. Nor was there an attempt to show that 650 packages were taken. Although we agree that evidence of the number of packaged contained in a carton is relevant to prove that full cartons were taken, we cannot agree that proof of value of individual packages is pertinent to a showing of value of sixty-five cartons.
Such a rule, we believe will play havoc with theft indictments if the State is allowed to offer proof of the value of components rather then value of the unit item alleged to have been taken. The accused should be able to rely upon the State to prove the allegation as made and not as the State intended to allege.
Suppose the evidence showed that the complainant regularly sold individual cigarettes at 25 cents each. Would the State be justified in proving the value of 65 cartons through proof that 13,000 cigarettes were taken each having a value of 25 cents for an aggregate total of $3,250.00? We think not.
The rule on market value is as recognized by the panel opinion. Fair market value is the amount of money the property in question would sell for in cash, given a reasonable time for selling it. TEX.PENAL CODE ANN. § 31.08(a)(1) (Vernon 1974). However, we believe the property in question to be 65 cartons of cigarettes and not 650 packages. The property in question was determined by the State through indictment. To now change the in question portion over repeated objection seems highly prejudicial. Not even the recently amended TEX.CODE CRIM.PROC. ANN. art. 28.10 (Vernon Pamp.1986) goes so far as to permit trial by surprise.
The panel opinion placed great reliance upon the manner in which the cigarettes were marketed. We fail to see the relevance of such distinction. It would be just as correct to observe that the cigarettes were marketed for sale in cartons. In fact the evidence showed that cartons were sold at a price of $8.79 each. We believe that it is not the intended use that should be controlling but rather the use which the State alleges and undertakes to prove. Given that the State made its election, it should have to live with the consequences of that election. A felony theft conviction cannot be sustained under § 31.03(e)(4)(A) unless the value of the items alleged in the indictment are proved to be $750.00. Cf. Ballinger v. State, 481 S.W.2d 731 (Tex.Crim.App.1972). We sustain appellant’s challenges upon variance and order an acquittal of felony theft.
The cause is remanded to the trial court to enter an order of acquittal as to felony theft.
DIAL, J., dissents without opinion.