31.03(e)(4)(D) PC bumps a theft of less than $1500 to a SJF if the defendant has at least two prior convictions for "any grade of theft." I have a defendant with two priors for Organized Retail Theft, which is a different section (31.16 PC). Does a conviction for Organized Retail Theft count toward this enhancement? What about Theft of Service (31.04)? Theft of Trade Secrets (31.05)? Theft of cable TV (31.12)?
Because Chapter 31 is titled "Theft," I interpret "any grade of theft" to mean any offense that falls under chapter 31.
This has come up a few times on this board over the years. Here are the links so you can get other people's opinions on it from the past.
Theft of Service discussion, 2008
Theft by Check discussion, 2006
Theft of Service discussion, 2010
My opinion, for what it's worth, is that 31.03(e)(D)(4) only applies to offenses within 31.03 itself. The statute says "any grade of theft." It does not say "any kind of theft," or "any offense under this chapter," or "any offense with 'theft'" in the title. There is also not a separately numbered section that establishes enhancements for all offenses under Ch. 31. The legislature has illustrated in the DWI statutes and some others that when it means to allow different kinds of similarly situated crimes to be enhanced the same way, it says that specifically and tells you how to do it.
I've spent some real time today trying to track down a specific answer one way or another in case law, and all I can find is that the 3rd COA has said once in dicta that it thinks that 31.03(e)(D)(4) is only talking about offenses under 31.03 (that's Watson v. State, 923 S.W. 2d 829 (Tex. App. - Austin, 1996), and the 8th COA has determined that "grade" means degrees, like 1st, 2nd, or 3rd degree felony.
Neither one of those cases say that "any grade of theft" does not include other theft offenses under chapter 31. Again, I can't find any cases that resolve that question specifically.
Obviously, it's a topic upon which reasonable minds can disagree, and with the dearth of guidance from any appeals court, the way you charge it is up to your own personal discretion. Make an argument and make some law, and we will get a ruling at some point.
If anyone has case law that can sort this out more clearly, please feel free to post it here and we'll make this the repository for the issue going forward!
The problem seems to be that, given the uncertainty of the law, no defendant will agree to voluntarily accept the broad definition of "theft." And no prosecutor has yet decided to try a contested case on the issue (or perhaps appeal an adverse pretrial ruling by a court). Thus, hypotheses go untested in any forum that counts.
Jon, it seems reasonable to me to predict a court would recognize that organized retail theft is merely an aggravated form (grade) of theft under 31.03 and thus usable. Theft of service, including cable tv service, however, is not described in any way by 31.03, so that situation becomes more murky. If "theft" has the more limited meaning, one wonders why each of the other theft statutes do not include similar enhancement provisions. 31.03 was originally intended to consolidate many types of theft, so maybe the meaning of (e)(D)(4) should follow the familiar adage: a theft by any other name is still a theft. Then again, Ira Rosofsky reasonably observed: "Names have power. They are not like shirts you can change without changing you."
Could well be! Many people who are much smarter than I am have a different opinion on the interpretation.
I just wanted to get a thread with all of the theories going for future reference, since this is a popular and unsolved topic on this forum.
Gallaghan v. State 2011 WL 2739617 at *1-2 (Tex. App.¬—Texarkana July 15, 2011, pet. ref’d).
The court affirmed on a sufficiency claim, holding evidence that defendant had prior convictions for theft by check and theft of service sufficed to uphold judgment on enhanced theft.
It's a start.
Looking at the Gallaghan case, it looks like the defendant's sufficiency claim was in regards to the motion to revoke her probation for felony forgery. She plead "true" to the allegation that she shoplifted, but then later said she couldn't have her probation revoked without proof that she shoplifted.
The court said her plea of "true" to shoplifting was sufficient to revoke her probation, and apparently she also pleads true to having two prior thefts but I don't see anything about what kind of thefts those were. Am I missing something?
I think you and I are looking at different cases. No forgery here. (2011 WL 2739617)
This was an open plea to theft < $1500 with two priors, not a revocation.
And, yes, Appellant did plead true to the enhancements (TBC and TOS). However, improper enhancements would make Appellant's sentence illegal (unwaivable error). An appellate court may act on its own in the case of an illegal sentence, no matter the grounds of appeal presented. This court did not even hint at that issue - some evidence that this court endorses an "all thefts are theft" approach.
The court's laying out 31.03(e)(4)(D) followed by the text of the enhancements describing TBC and TOS followed by Appellant's testimony admitting to TBC and TOS seems to be further endorsement of the use of TBC and TOS as prior thefts.
Like I said, it is a start.
Sorry, John. I was actually looking at the companion case that was issued the same day on the revocation that stemmed from those thefts. Just so I can find this again in the future, yours is No. 06-10-00233-CR.
I think you're right that this is a good starting point if you want to charge a case this way and need some evidence that an appellate court has allowed it. Thanks for posting it here.
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