Worst Case Scenario for Theft Under $50 in Texas

Oooooops. I got this one wrong in my last post. Here’s the incorrect part:

Worst case scenario for stealing merchandise under $10 -- Usually the answer would be a Class C misdemeanor, up to a $500 fine and no jail time possible, but… Enhanced with two prior thefts in Texas? State Jail felony, up to two years and a ten thousand dollar fine. Enhance that with two non-theft pen trips, three strikes you’re out, 25 to Life. (If you think I’m exaggerating, ask Leandro Andrade about his $153 theft. You did ask for worst case scenario, right?)

I’m cringing simply from reposting that; it’s just wrong, wrong, wrong. Houston defense lawyer Mark Bennett emailed me a few hours after the post went up:

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Theft in Texas: One Pet = Nine Cows = Ninety Nine Goats

The Texas Penal Code has a “value ladder” for theft. Get yourself accused of stealing:

  • Less than $50   = Class C Misdemeanor – max $500 fine
  • $50 < $500         = Class B Misdemeanor – max 6 months in jail
  • $500 < $1500    = Class A Misdemeanor – max 1 year in jail (but see)

Et cetera, et cetera. Theft of $1500 up to $20,000 is a State Jail Felony and it just keeps on going up and up from there. This makes some sense. After all, stealing a nickel from me somehow seems less egregious than ripping me off for a whole lot of money.

But the Texas Legislature meets every two years, and there’s nothing better for your re-election campaign eighteen months after the session ends than going back home and telling your constituents that you got “Tough on Crime”. So let’s tweak those criminal laws, shall we?

What if someone steals a [Gasp! Fill-in-the-Blank… but it’s not really valued as much as it should be!] and only gets punished as if they stole something with an equivalent monetary value? Why they’d be getting away with something, and goodness knows you Don’t Mess With Texas.

So throughout the years, several extra important things have been super-criminalized in Texas. The prosecutor won’t need to prove the value of the property stolen: if you stole it, extra punishment will come.

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Andy Rooney Asks a Law School Exam Question

Given the state of the economy, it’s no surprise that everyone’s favorite curmudgeon Andy Rooney chose to speak about “thriftiness” last night. To be more like Andy you can:

  • Make your own coffee at work, and save $1.50
  • Ride the bus to the Giants home games costing $4.40 both ways, saving yourself the $8 fee for the Lincoln Tunnel, and $20 stadium parking
  • Shine your own shoes (savings undisclosed, or at least not jotted down in my notes)
  • Wear your shirts two or three times instead of taking them back to the laundry after only one use

I was particularly intrigued by his idea that since he wants to use 89 octane gas, he can save himself ten cents a gallon by filling up halfway with 87 and the other half with 91. It won’t help me any, because right or wrong I assume the higher octanes are all rip-offs, but corporate scams – like charging you more for the “middle-rated” gas unless you do the math and go half lowest, half highest – are always amusing when exposed. Well, amusing, depressing, whatever…

 

But then Andy’s final money-saving tip doubles as a challenge to 1Ls about to start cramming for their criminal law finals this December:

 

When I go to a good restaurant here in New York for dinner I often slip a roll in my pocket for breakfast the next morning.

 

Taking a roll at a restaurant, that's not stealing, is it?

 

Well, is it? Full credit available only for those that use both the Texas (or insert your state here) and Model Penal Codes as starting points for their essay…

 

[Update: I just found the embed for the video clip, here 'tis:]

 

 

More On Unintentional Shoplifting

So the day I post my own story about Absentmindedness vs. Shoplifting, Bad Court Thingy alerts me in the comments section to the story of a man who paid for $150+ worth of groceries, forgot the $4 worth of soda under the cart, and was of course arrested:

Have you ever accidentally forgot to pay for some heavy item that you stowed under you shopping cart? We have, too! Unlike one Cleveland man, however, we did not go to jail for it.

[Name Removed] has a long receipt showing the $157.20 worth of two grocery carts full of groceries that he bought at a Brooklyn supermarket Saturday night. After going through the self checkout, the man said he forgot a $4 case of pop under the cart.

A police officer working security at the store asked to see his receipt.

"I went looking for the receipt, the pop wasn't on it and they decided to have me arrested," he said.

[Name Removed] was arrested on a petty theft charge.

As usual, where commenting is allowed, morons prove they have access to the internet as well as the rest of us. (Or are ‘we’ in the minority?) A sampling:

Well, the article makes it seem as though he intended to pay. We're not getting both sides of the story, really.

Let’s see, the rest of the story – since we must always be fair and balanced – is what? “I’m the rent a cop and I can read his mind. I know this was not mistake?” another comment:

Actually that is one of the best ways to shoplift because most people don't suspect it and if caught give you the benefit of the doubt. Trust me I've seen it numerous times working retail.

I think we can file that under mind reading again. You’ve “seen it work”? Meaning no one has ever forgotten an item and walked past the door?

In Texas – or at least in Austin - most of the time when shoplifting under $50 is suspected, the person will be issued a citation. But not here. This lead to an arrest. Here’s a letter written by his wife about the aftermath of the arrest:

We are both shamed and embarrassed at what happened but it is a mistake made by a lot of us every day…after all, we are only human and our lives are busy ones because we have 3 kids, 2 of whom are disabled.

My daughter has Down Syndrome and my youngest son has mental issues. I am disabled myself…so my husband has a lot of daily responsibilities that most men would run from…but he loves me enough to stay and take care of all of us plus work as a home health care aid.

My husband is currently out on bond to the tune of $150.00…none of that will we see back. We lost groceries because they sat in the car for several hours while he was shackled to a bench at Brooklyn jail.

You see, I am disabled and do not drive so I had no way to get my groceries home. If he loses his job, we don’t know what we will do…see even if he is found innocent…the original charge will still remain on his record. So who wants a guy with a petty theft charge for a home health care aid?

Sounds like a worthy pro bono cause for some New York defense lawyer out there…

My Own Personal Shoplifting Experience

If you are the clerk at the 7/11 around the corner from my home or my office, then you probably know me. Sometimes that convenience store price premium is worth not fighting the lines at HEB. Bottom line? If you’re the one behind the register, you probably recognize me.

Coffee in the morning, fountain drinks in the afternoon. My legal assistant now keeps me well stocked on Folgers and Cokes and Mountain Dews, but she wasn’t always around – and that’s only #168 on the list of ‘why I appreciate her’. But as usual, I digress.

So, I used to go to the closest Stop-N-Rob on a regular basis, and that sets the scene for the rest of this story.

One day, while preparing for eating lunch by myself, I stopped by the 7/11. I was planning on perusing the magazine counter, so I would have something to do while lunching alone.

Probably out of habit, I went and filled up a monster fountain drink. I’ve always been a sucker for that “Yes, it’s twice as much as you need, but it’s only 20 cents more” marketing. Then over to the magazine rack, to see what there was to offer.

Ever notice that there’s really not much worth reading or that catches your fancy in those magazines? Why do they only stock People, and Star, and Monster Truck Madness Review? 

Maybe the Economist. Or Consumer Reports, but no, those are unavailable. And they cost 5 to 6 dollars? I don’t need any of these.

So I walked out to the car.

And as I started to put my keys in the door, I had a mini-heart attack.

I had just deliberately and obviously walked in, filled up a soda, and walked out without paying.

Now, here’s why my story – thankfully for my sake – diverges from some of my potential clients.

No one had seen me. Barney Fife hadn’t just parked his patrol vehicle. I ran back in immediately, stood in line, and even the clerk didn’t say anything.

He hadn’t noticed.

But…

I had walked out the door without paying. If I had been not just absent minded, but unlucky as well, my bar card could have been at stake.

Worst case realistic scenario, I would have been ticketed, not even arrested for Class C Theft. But what then? Take the ‘deferred disposition’ and get the hell out of Dodge with my ‘guaranteed’ dismissal? Expunge the whole thing. Forget about it.

Or roll the dice at jury trial, and hope my side of the story held up? Risking a conviction for theft – a crime of moral turpitude, and a conviction that could cost me my livelihood.

I think about that scenario often – when I tell my clients the “Do X, Y and Z and get your case dismissed” offer. Is that a good deal or not, when you are factually innocent, but the potential testimony at trial could get you convicted?

More on several related topics soon.

"Just" Pleading Guilty to Class C Theft in Texas

Question:  I recently received a citation with a violation of "theft under $50'.

The police officer advised me to go to court and appear before the judge and pay the fine.  However I am not sure if I pay my fine, will my background check always reveal this offense?

How can I go about getting this erased from my records? Should I plead Not Guilty?

Answer: I feel obligated to mention that the police officer should not be giving advice of this sort to people he writes citations (or anyone else for that matter). Nothing will come of that though, so on to your real questions…

Should I plead ‘Not Guilty’? Absolutely. “Just” paying the fine, as the officer advised you, is a plea of guilty or no contest, and will result in a permanent criminal conviction for theft on your record forever.

A conviction for theft is a ‘crime involving moral turpitude’…meaning basically that you are being convicted of something that labels you as either (1) a bad person or (2) a person who did a bad thing, depending on who is doing the defining. (I, however, am a criminal defense attorney, and not one given to making moral judgments about other people, so you’re going to have to try a lot harder than Class C Theft to offend me.)

If you enter a plea of Not Guilty, however, you will probably be given the opportunity to enter into a deferred disposition, jump through some hoops, and get the case dismissed. Successful completion of a Class C deferred will then entitle you to expunge the offense from your record - although, recent caselaw indicates that you may have to wait 2 years to do so. Still, no conviction, and an expunction in two years is better than a theft conviction on your record for life.

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Theft or Attempted Theft (or Not Guilty) ?

Question (from an email): Can a person be charged with theft (class b misdemeanor) if merchandise was not found on a person? Or is this considered attempted theft? If so what is the difference and maximum punishment for each?

Reply: Can you give me more details?  (What happened exactly?)

Maybe I can give you a better answer that way...

More Details: (A theft from a place of employment.) actual merchandise was not found on this person, merchandise was found in trash in the back of store and person was going out the front door when this person was arrested and charged with theft. Would this be theft or attempted theft?

So could this person be tried for theft or would the charge have to be reduced to attempted theft?

Answer: Like most interesting questions this one has several layers to it.

First and I don't mean to be hyper-technical, but then again I am a lawyer...

Can they charge the person with theft?  Well, not to split hairs, but 'they,' meaning the state, can charge someone with just about anything.  The next 2 questions then deal with (a) what can they prove, and (b) is the evidence legally/factually sufficient?

What can the State prove based on these facts?

The definition of theft is, essentially, unlawfully appropriating property without the owner’s consent. Is taking merchandise off a shelf and sticking it in the trash proof of “intent to permanently deprive the owner of the property”?

Off the top of my head, I’m going to say that this would be very difficult for the State to prove at trial beyond a reasonable doubt.

As for attempted theft? I think they would have to show that the defendant intended to come back at a later time, or had some accomplice lined up in the wings to take it out of the trash and actually leave the premises with it.

Finally, as to legal sufficiency of the evidence… I would have no problem getting up and arguing to a judge for a directed verdict of not guilty on these facts. Whether it would be granted, or whether an appellate court would overturn a potential guilty verdict on appeal, would have to be determined on a case by case, very fact specific, testimony dependent analysis.

But, generally speaking, shoplifting is going to be very hard to prove and/or factually insufficient if the person doesn’t leave the store, or pass the point of sale without paying.

All in all, given your hypothetical, I think it’s a pretty weak case for the State.  (And if this is not really a hypothetical, tell ‘the person’ to get a lawyer ASAP. Case could even be a negotiated dismissal without the need for a jury trial.)

I’ll get to the penalty range differences in a future post.  The short answer is that an attempted Class B offense is a Class C (traffic ticket level) offense.