ASHBY v. STATE

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 provided 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.

W. C. DAVIS, Judge.

Appeal is taken from a conviction for theft over $20.00 but less than $200.00. Appellant was found guilty in a trial before the court and punishment was assessed at 3 days and a fine of $300.00.

Sherry Locklin testified that on January 20, 1977, she was employed at a Kroger Family Center store in Temple. About 3:30 p. m., appellant approached the courtesy booth in which Locklin was working. Locklin stated that appellant was pushing a shopping cart which contained a radio, television set and vacuum cleaner. Appellant told Locklin that she had purchased the items earlier in the day, but was now returning the merchandise for a refund. Although appellant produced a receipt for a vacuum cleaner, radio and television set which had been purchased from Kroger's, Locklin refused to refund the purchase price of these items.

Kathy Black testified that she was a cashier at Kroger's. Approximately four hours before appellant attempted to obtain a refund, Black had sold a vacuum cleaner, television set and radio to Linda Ellis. Black stated that the vacuum cleaner sold to Ellis was the only vacuum cleaner which had been purchased in the store that day. Black testified that the vacuum cleaner upon which appellant sought a refund was not the same unit which had been sold to Ellis.

Michael Barron also worked at Kroger's. Barron stated that on the morning of the offense, there had been two vacuum cleaners on the shelf at the store. Barron testified that he saw appellant pushing a shopping cart which contained a vacuum cleaner. After seeing appellant he noticed that the shelf did not contain any vacuum cleaners.

Leland Travis testified that he was the manager of the Kroger store in Temple. As manager, Travis was in charge of all the merchandise in the store. Travis explained that the store was a self-service type in which customers would take items off the shelf and bring those items to the cashiers to be purchased. Likewise, customers were allowed to walk around display areas of the store with unpurchased merchandise which had been taken off the shelf. However, with regard to a customer's action in possessing and claiming a refund for unpurchased items, Travis testified as follows:

"Q. Would you refund on an item if a person said, 'These are yours, but I want you to give me money for them anyway'?

"A. Would I do that?

"Q. Yes.

"A. No.

"Q. So you have to establish proof of ownership first?

"A. Yes."

Following her attempt to obtain a refund, Travis determined that the vacuum cleaner had not been purchased from the store as appellant had informed Locklin. Appellant was then detained at the store and arrested by Officer Pete Munoz of the Temple Police Department.

In her sole ground of error, appellant challenges the sufficiency of the evidence. She maintains that the State failed to prove a lack of consent as alleged. The information herein alleges that on January 20, 1977, appellant:

"did then and there with intent to deprive the owner, Leland Travis, of property, namely 1 vacuum cleaner of the value of $99.95, unlawfully appropriate the property without the owner's effective consent."

Appellant contends that when the owner of stolen property testifies at trial, a lack of consent must be proven by way of direct evidence. She points to the fact that Travis did not testify that the vacuum cleaner was taken without his "effective consent." In support of her contention concerning the necessity of direct evidence, appellant relies on Stallworth v. State, 167 Tex.Crim. R., 316 S.W.2d 417; Mitchell v. State, 166 Tex.Crim. R., 313 S.W.2d 286; Mitchell v. State, 117 Tex.Crim. R., 38 S.W.2d 331. We note that the cases upon which appellant relies were expressly overruled by this Court in Taylor v. State, Tex.Cr.App., 508 S.W.2d 393 when it was held:

". . . We hold that proof of lack of consent to the entry and taking of personal property in prosecutions for burglary with intent to commit theft or theft may be made by circumstantial evidence the same as any other issue in a criminal case may be proved by circumstantial evidence. Cases holding to the contrary are overruled."

On original submission, it was found that the evidence was insufficient to support appellant's conviction. The majority opinion rejected the State's contention that one who enters a 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. The opinion concluded that appellant's acts did not constitute unlawful appropriation and that the evidence would merely support a charge of attempted theft. In a concurring opinion, it was noted that any deception employed by appellant occurred after delivery of the property and would not meet the statutory definition of deception as contained in V.T.C.A. Penal Code, Sec. 31.01(2).

In its motion for rehearing, the State contends that appellant's actions within the store constituted the offense of theft. While the evidence may have proven an attempted theft of the refund money from Locklin, they nevertheless maintain that the evidence was sufficient to prove theft of the vacuum cleaner as alleged in the information.

V.T.C.A. Penal Code, Sec. 31.03(a) and (b)(1) provide as follows:

"(a) A person commits an offense if he unlawfully appropriates property with intent to deprive the owner of property.

"(b) Appropriation of property is unlawful if:

"(1) it is without the owner's effective consent;"

The critical issue in this case is whether the State proved that appellant took the vacuum cleaner from the shelf without Travis' effective consent. Sec. 31.01(4)(A) provides that an owner's consent to appropriation of property is not effective if such consent was induced by deception. With regard to consent which has been induced by deception, the Practice Commentary to Sec. 31.03 states as follows:

"The definition of 'effective consent' in Section 31.01(4) provides that the victim's consent is vitiated if it is 'induced by deception,' a term defined in Section 31.01(2). As in the prior law of swindling and theft by false pretext, the victim's consent must result from his reliance on the deception when he would not have consented if he knew the truth, cf. Thornton v. State, 352 S.W.2d 742 ((Tex.) Cr.App. 1962); Nickson v. State, 180 S.W.2d 161 ((Tex.) Cr.App. 1944). . ..

"Conduct that constitutes deception and therefore vitiates consent is defined broadly in Section 31.01(2), because, if the actor intentionally deceives with intent to induce consent, any successful method should be covered. Despite the breadth of the conduct defined as deceptive, however, the definition, with one narrow exception, requires a material deception-one 'likely to affect the judgment of another in the transaction'-and imposes no affirmative duty to disclose. . . .

"The definition focuses on the most frequent form of deception, a false 'impression' intentionally created, rather than any particular misrepresentation. Thus an actor may deceive by disclosing selected truths and omitting others, without a

single lie; he may also deceive by his conduct as well as by words, and by reinforcing preexisting misconceptions as well as by creating them. . . ." (Searcy and Patterson, Practice Commentary, 3 Tex.Penal Code Ann., 418.)

Travis' testimony established that a customer had consent to remove and temporarily possess an item from the shelf of the store. Such consent was necessary in order to effectuate the eventual purchase of the item by the customer from a cashier. This consent was shown to extend only to those customers who were legitimately on the premises and honestly contemplating the purchase of merchandise.

Appellant was shown to have removed the vacuum cleaner from the shelf and placed it into a shopping cart. These actions constituted appropriation of the property by means of exercising control over it. See, Sec. 31.01(5)(B). Although she had the appearance of a legitimate customer who would have had consent to temporarily possess the item in order to purchase it, the evidence shows that she removed the item from the shelf with the intent of claiming ownership for an item which she had not purchased.

We find that the evidence shows that Travis' consent to appellant's possession of the vacuum cleaner was induced by deception. By her conduct in appearing to be a legitimate customer, appellant created a false impression of fact concerning her intentions with regard to the vacuum cleaner. This false impression in turn affected Travis' judgment in giving consent to the removal of the item from the shelf of the store. Travis stated that he would not authorize a refund for an item which had not been purchased. Lastly, we find the evidence sufficient to prove that appellant intended to deprive Travis of the property. As noted above, appellant offered to return the vacuum cleaner only upon payment by Locklin.

In Williams v. State, Tex.Cr.App., 591 S.W.2d 873, we found the evidence sufficient to prove that a dress was taken without the effective consent of the owner. Although the alleged owner of the dress did not testify, lack of consent was proven by means of circumstantial evidence. It was stated:

"It is a completely unreasonable hypothesis that a person who had the consent of the owner of a store to take a dress would hide it under his coat after removing it from a rack and depart from the store with it almost completely concealed under his clothing." Williams v. State, supra at 876.

In the instant case, it is a completely unreasonable hypothesis that appellant had Travis' consent to remove an item from the shelf with the apparent intent of purchasing it, pretend to have purchased it earlier in the day and seek a refund. We find that the evidence excludes every reasonable hypothesis except for that of appellant's guilt in taking the vacuum cleaner without the effective consent of the owner.

The State's motion for rehearing is granted and the judgment is affirmed.