Ashby v. State

• Decision Date: 16 May 1979
• Docket Number: No. 3,No. 57973,57973,3
• Citation: 604 S.W.2d 897
• Parties: Betty ASHBY a/k/a Betty Clough, Appellant, v. The STATE of Texas, Appellee
• Court: Texas Court of Criminal Appeals

Page 897

604 S.W.2d 897

Betty ASHBY a/k/a Betty Clough, Appellant, v. The STATE of Texas, Appellee.

No. 57973.

Court of Criminal Appeals of Texas, Panel No. 3.

May 16, 1979.

On Rehearing Oct. 1, 1980.

Rehearing Denied Oct. 29, 1980.

James H. Kreimeyer, Belton, for appellant.

Pat J. Ridley, County Atty. and Tim Rudolph, Asst. County Atty., Belton, Robert Huttash, State's Atty., Austin, for the State.

Before ODOM, PHILLIPS and W. C. DAVIS, JJ.

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 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.

ODOM, Judge, concurring.

The only ground of error in this case attacks the sufficiency of the evidence to show lack of consent. The charge is theft of a vacuum cleaner. The store manager was never asked if he gave consent to take the vacuum cleaner. The State's whole theory on appeal is that the manager did give consent, but that it was not effective consent because it was induced by deception. What the State overlooks is that deception is defined in V.T.C.A., Penal Code Sec. 31.01(2), and there is no evidence in the record of any deception by appellant that would meet that statutory definition. One requirement for deception is that it must be before delivery of the property. See, Cortez v. State, 582 S.W.2d 119 (1979). Here the appellant took the vacuum cleaner in her shopping cart to the service desk for a refund. The deception was in the attempted theft of the refund money, not the taking of the vacuum cleaner.

I concur in the disposition of this case.

W. C. DAVIS, Judge, dissenting.

I dissent to this disposition of appellant's ground of error. Appellant was charged with the unlawful appropriation of the vacuum cleaner. She was not charged with the attempted theft of the refund money. When she put the vacuum cleaner in her shopping cart, took it to the courtesy booth, presented a receipt for the item, and claimed to have purchased it earlier, this was sufficient to constitute the unlawful appropriation. Appellant had exercised control over the property. It was not necessary, as the opinion by Judge Phillips implies, for her to have left the store with the item in order to constitute an appropriation of the item. While the complainant testified that it was not unusual for shoppers to place items in their shopping carts and walk around with them, this is not all that appellant did. Further, this cannot be construed as consent for shoppers to take items to the courtesy booth and claim to have purchased them earlier and demand the purchase price back.

The record reflects that the prosecutor asked the complainant:

"Q. (Prosecutor): 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. (Complainant): Would I do that?

"Q. Yes.

"A. No.

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

"A. Yes."

This testimony of the complainant should be sufficient to establish that appellant's act in appropriating the property, claiming to have paid for it earlier, and demanding a refund, was done without the effective consent of the owner. The act which constituted the offense herein was appellant's exercise of control over the vacuum cleaner with the representation as to ownership which she made at the courtesy booth. The evidence should be sufficient to prove that she committed theft.

I dissent.

Before the court en banc.

OPINION ON STATE'S MOTION FOR REHEARING

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, appel...