Ashby v. State , 604 S.W.2d 897 ( 1979 )


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  • OPINION

    PHILLIPS, Judge.

    This is an appeal from a conviction for theft over $20.00. The penalty was assessed at three days’ imprisonment and a $300.00 fine.

    Appellant was charged by information with the unlawful appropriation of one vacuum cleaner of the value of $99.95 with the intent to deprive the owner thereof of that property and without the owner’s effective consent. Appellant, in a single ground of error, challenges the sufficiency of the evidence contending that the State failed to prove the lack of effective consent on the part of the owner. The State counters by arguing that any consent given was not effective because it was induced by deception. V.T.C.A., Penal Code, Section 31.-01(4)(A).

    The evidence shows that the appellant entered a Kroger Family Center store in Temple. She was seen pushing a cart from the rear of the store to the courtesy booth with several items including the vacuum cleaner alleged to have been stolen in the information. When she attempted to obtain a refund by presenting a receipt for the item, the manager of the store was called and an investigation followed which resulted in the denial of any refund to the appellant. Police officers were called and appellant was then arrested. Testimony established that the store involved was a self-service type store and the appellant never left the interior area of the store where shoppers were free to select items and place them in their respective shopping baskets.

    The State’s contention that lack of effective consent was shown, because of the intent to defraud on the part of the appellant is not supported by the evidence or in law. First, the consent shoppers had to take items from the shelves was not induced by the type of deception and coercion dealt with in Section 31.01(4)(A). The consent *898provided in such circumstances was the result of commercial convenience and not any particular deception or coercion on the part of the appellant. No authority is cited by the State for the novel proposition that one who enters the store with the fraudulent intent to unlawfully appropriate property has rendered the commercially provided consent of the store ineffective for purposes of our theft statute. V.T.C.A., Penal Code, Section 31.03. Rather, the facts provided in this record can only support a charge of attempted theft. See V.T.C.A., Penal Code, Section 15.01. Although we agree with the State that their witnesses do not have to articulate the magic words “effective consent” and the lack thereof, there must be some evidence in the record to support this essential element of the crime of theft. Reynolds v. State, Tex.Cr.App., 547 S.W.2d 590. The taking of the complainant’s property and placing it in the basket and taking it to the front of the store was not unlawful appropriation. The evidence is clearly insufficient to sustain this judgment of conviction.

    Accordingly, the judgment of conviction is reversed and reformed to reflect an acquittal. See Burks v. U. S., 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978). The cause is remanded for proceedings under Article 37.12, V.A.C. C.P.

Document Info

Docket Number: No. 57973

Citation Numbers: 604 S.W.2d 897

Judges: Clinton, Davis, Odom, Onion, Phillips, Roberts

Filed Date: 5/16/1979

Precedential Status: Precedential

Modified Date: 10/1/2021