¶1concurring.
¶2The 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.
¶3I concur in the disposition of this case.