concurring.
I concur with the majority holding that the conviction must be reversed, but believe that it should be understood that the order of acquittal was without prejudice to any lesser included offense raised by the evidence.
The appellant testified that he stole some shrubs from Beckham on April 26,1980, and the six identifiable shrubs were later found in appellant’s garage. Thus, although the evidence is insufficient to sustain the conviction for felony theft, the defendant may be retried for the lesser included offense of theft of property valued under $200. See Flanagan v. State, No. 60,580,-S.W.2d-(Tex.Cr.App. December 22, 1982) (attempted murder, may be retried for any lesser included offense of attempted of murder); Black v. State, 637 S.W.2d 923 (Tex.Cr.App.1982) (aggravated robbery, may be retried for robbery); Ex parte Harris, 600 S.W.2d 791 (Tex.Cr.App.1980) (en banc) (on rehearing) (aggravated robbery, may be retried for robbery). Rogers v. State, 575 S.W.2d 555 (Tex.Cr.App.1979) (aggravated rape, may be retried for rape); Moss v. State, 574 S.W.2d 542 (Tex.Cr.App.1978) (burglary of a habitation, may be retried for burglary of a building). Cruz v. State, 629 S.W.2d 852 (Tex.App.—Corpus Christi, 1982) (capital murder, may be retried for murder).