dissenting.
The indictment in this case, its material parts quoted in the opinion of the Court, awkwardly alleges an offense of theft of the described paper. The underlying undisputed facts, however, do not show a theft of paper in any commonly accepted sense and, accordingly, terms of the indictment and the statute from which it is drawn have been stretched and strained into notions that, realistically, are untenable.
The opinion for the Court states, “In essence, appellants were accused of stealing paper from the State, and then selling it back to the State in the form of completed printing jobs.” Not even the State, through its prosecuting attorneys, distilled that essence from either the indictment or the facts.
In his opening statement to the jury panel the chief prosecutor told the jury that the ultimate facts the State would prove were that Martinez ordered Senate paper, already purchased, be supplied to a printing company for its use in doing the job as a subcontractor for Stoner, for which Stoner subsequently billed the State of Texas for both the printing cost and the cost of paper —“and therein lie the charges of this case.” In final argument the assistant prosecuting attorney concluded by telling the jury, “If you believe the State paid twice for that paper, then it is guilty; if you don’t think they did or if you don’t believe we have proved it to you beyond a reasonable doubt, they are not guilty.” In his concluding summation, the chief prosecutor reiterated the theme that Stoner, through her sole proprietorship, used State paper that had *756been paid for and then charged for the paper on subsequent printing contracts.1
The fundamental reason the theory alleged in the indictment is not supported by the facts, but is at variance with them, is that, simply stated, the paper purchased from the distributor moved from that location to the printer and, with the printed material on it, was then delivered to the Senate reproduction room, or printshop, to be used for the purpose ordered, printed and delivered. At all times, from its purchase until delivered to the Senator, the paper was in the care, custody, control and management of Martinez. Indeed, that is precisely what the indictment alleged and the State proved.
The fallacy in the theory of the indictment and the formulation by the Court is that the unique status and capacity of Martinez as supervisor of the reproduction room, or printshop, of the Texas Senate is ignored. in finding that the paper was obtained and controlled “without the owner’s effective consent.” It is true that upon paying for the paper, the State “owned” it, but acquisition, control and disposition of the paper were all at the instance of Martinez acting within the scope of his authority. Indeed, in its brief the State correctly asserts, “The evidence clearly shows that appellant Martinez ordered the paper under his authorization as an agent of the State of Texas” and, further, “Martinez then ordered the paper being stored at Lone Star Paper Company to be delivered to Whitley for the printing of the newsletter.” Thus, in his capacity as agent for the State, Martinez at once obtained and exercised control over the paper and gave effective consent of the State to do what was done with it.
As I see it, the deception that precluded effective consent of a person legally authorized to act for the owner really occurred when Stoner claimed and received payment for the printing job in an amount that included cost of the paper which she, contrary to the specifications for and contract to do the job, had not supplied. It is a case, as the State asserted and argued persistently to the jury, of paying twice for the same paper. The theft was of money, the proceeds of the warrant issued by the State to Stoner for the printing job, in an amount that represented cost of the paper.
Accordingly, for the fatal variance between indictment and proof, I would reverse the judgment of conviction and remand the cause.
. The shorthand rendition of the facts followed his somewhat expanded outline of them as follows:
“Basically what happened is that . the State of Texas got charged twice for several thousand dollars worth of paper. What happened was that A.M.P. Graphic Arts submitted some bids on some contracts, about six of them, in which A.M.P. Graphics was paid by the State of Texas to both print and supply the paper. However, A.M.P. Graphics was paid for that, for both the printing and the paper. What we later found out happened was that the paper that was supplied to the State and the State paid A.M.P. Graphics for was State paper already; it had already been purchased by the State . . . and paid for by the Senate. . .”