TDCAA    TDCAA Community  Hop To Forum Categories  Criminal    Theft of Service?
Go
New
Find
Notify
Tools
Reply
  
Theft of Service? Login/Join 
Member
posted
This case has not been presented to a grand jury. Is it possible to make a decent criminal case out of this fact scenario?

Victim is a building contractor who does no residential work. He is rebuilding a restaurant, and agrees to help employee of restaurant who has had her house burn down, by rebuilding the home at a cheap rate. He gives her invoices, but gets nothing in writing from her. There is no written contract. The homeowner refuses to pay, saying that she does not approve of the work that he did. The victim alleges that she cashed her insurance check and bought her son a car. Victim learns that homeowner has used a fake name and is not really the homeowner, although living in the home. Police talk to the person who has the house in her name with victim's son's name also on the house. Police do not talk to son of the person whom the victim thought owned the home. The person who allowed her name to be used on the house says that "homeowner" has terrible credit, and that she was duped into helping this lady by the same person who got victim to help fix the house. This person says that she saw the alleged "homeowner" cash the insurance checks. Although the victim hired a lawyer, it is unclear what he hired the lawyer for. The civil statute of limitations has run, and all he did was send a demand letter (that was ignored). If the alleged "homeowner" can successfully argue that the work could not be completed within one year, the agreement requires a writing under the Texas statute of frauds. How would I prove that the "homeowner" ever had the intent to steal (besides any circumstantial evidence), if it is all oral, and she consistently says that she did not like how the work was done but got no relief? Victim disputes this claim. These are civil issues, but it appears, if the victim is correct, to be a scam. Victim has patiently waited through a slow police investigation, and now wants action against the alleged homeowner. Should this simply have been in civil court before the SOL ran?

[This message was edited by Andrew on 12-07-04 at .]
 
Posts: 18 | Location: Galveston | Registered: August 09, 2004Reply With QuoteReport This Post
Member
posted Hide Post
Let me try to pose this question a different way. When there is a case that looks like a civil suit, but involves a public interest where there is a person who is an innocent victim and not merely trying to use the criminal justice system in a civil sense, but also, you are probably headed for a quagmire, what is a good course of action? The police officer says that the victim is patient, reasonable and intelligent. I don't want to drag him through a mess (especially after a slow investigation), but do think the other party should be held accountable.

[This message was edited by Andrew on 12-07-04 at .]
 
Posts: 18 | Location: Galveston | Registered: August 09, 2004Reply With QuoteReport This Post
Member
posted Hide Post
Many crimes, and all thefts, give rise to both civil and criminal liability. Therefore, the fact that a victim may have had a civil remedy does not make criminal prosecution less appropriate.

I don't have enough facts in your case to have a judgement on whether to prosecute or not. I would want to know what the defendant's specific complaints are about the workmanship that was done. The defendant should be willing (more than willing) to show your detective what the contractor did wrong. He should take photos, and get a detailed statement from the defendant. If the defendant refuses to cooperate with your cop, then I would consider that a strong indication that the defendant's claims are not in good faith.

If the def. will not cooperate with the cop, I'd ask the contractor to call the defendant, and ask to go over the property and have the defendant show him what is considered substandard. Perhaps the contractor can engage the defendant in conversation long enough for him to restate what their agreement was. If this phone conversation is recorded, and if the defendant agrees with what the contractor says was their agreement, but simply claims that the work was substandard, you will have stout evidence at trial as to what the agreement was. If the defendant refuses, his refusal can be used by you at trial to show that the defendant simply ripped off the contractor.

I would ask the contractor to make inquiries with other contractors to see if this def. has pulled this stunt before. You might find some Rule 404(b) evidence that way.

Finally, I would subpoena the defendant to come to the grand jury, and to bring with her all of her records concerning the work on this house. I also would require her to bring with her her bank statements for the time the work was to be completed, or statements from any source that she was going to draw on to pay for the work. It may be that she never had anywhere enough money to pay for the work she contracted for. On the other hand, many times people like this will suddenly come up the with bucks to pay for what they ordered, when they are required to come to a grand jury and explain themselves. And that might solve most of your problem.
 
Posts: 685 | Location: Beeville, Texas, U.S.A. | Registered: March 22, 2001Reply With QuoteReport This Post
  Powered by Social Strata  
 

TDCAA    TDCAA Community  Hop To Forum Categories  Criminal    Theft of Service?

© TDCAA, 2001. All Rights Reserved.