
    Trinidad TORRES, Appellant, v. The STATE of Texas, Appellee.
    No. 36043.
    Court of Criminal Appeals of Texas.
    Nov. 13, 1963.
    George T. Thomas, Big Spring, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The offense is shoplifting (Art. 1436e Vernon’s Ann.P.C.); the punishment, 3 months in jail and a fine of $300.

The complaint and information alleged that the appellant, “while in a retail business establishment, to-wit: J. C. Penney Company, did then and there remove from its place a half slip, of the value of $3.98, that was displayed for sale with the intent to fraudulently take and to deprive the owner, to-wit: Paul Hathaway, of the value of the same and to appropriate the same to the use and benefit of the said Trinidad Torres.”

The complaint and information are deficient in that there is no allegation to the effect that the accused was legally in the Penney Company store as an invitee or licensee.

Art. 1436e V.A.P.C. was upheld as a special statute in Sullivan v. State, Tex.Cr.App., 354 S.W.2d 168.

One of the provisions of the shoplifting statute which distinguishes the offense therein defined from theft and embezzlement is that the accused be legally in the retail business establishment as an invitee or licensee. The statute does not apply to persons on the premises as employees nor does it apply to one who makes a burglarious entry into the establishment.

The complaint and information being insufficient to support a conviction for shoplifting, the trial court erred in overruling appellant s motion in arrest of judgment.

The judgment is reversed and prosecution under the present complaint and information is ordered dismissed.  