Hello everyone,

I am working a case that can go enhanced theft however the subject has 1 theft conviction and some burglary convictions. Burglary and robbery are inherently theft by their very nature (obviously) however the enhanced SJF theft specifically states the following: "any grade of theft". Would a burglary conviction qualify as a "theft" for enhancement purposes? Or even a robbery suppose I had a robbery conviction along with the 1 theft conviction?

I guess to sum up my question, I know:

theft conv. + theft conv. = enhanced theft

**but does

theft conv. + robbery conv. = enhanced theft

**or

theft conv. + burglary conv. = enhanced theft

The reason I ask is because I have been told different things by different prosecutors. I wanted to know what different prosecutors from across the state know about this.

Thank you

(1) Absent caselaw saying otherwise (which I am too lazy to search for right now), I don't think burglary qualifies. They aren't even in the same chapters of the Penal Code. Is that logical? No. But what does logic have to do with the law?

(2) Ultimately, the only opinion that matters is the opinion of the prosecutor who has to prosecute the case. It's obvious by your query that your local prosecutor does not think the enhancement applies (or otherwise you wouldn't be asking the question). Showing him a case on point that supports your view may help change his mind, but absent that, trying to "go over his head" by seeking the speculative opinion of other prosecutors is probably counter-productive.

I believe it is well settled law that offenses like burglary and robbery are not "theft" for the purposes of enhancing a theft within the theft statute. See, e.g., Chambers, 732 S.W.2d 192 (burglary); Watson, 923 S.W.2d 829 (EOCA);Bruns, 22 S.W.3d 540 (Forgery).

[This message was edited by JohnR on 10-07-09 at .]

Without going into the specific facts of the underlying burglary conviction, there is no way to know if any theft was involved. Burglary may FREQUENTLY involve theft, but in a number of cases can involve NO theft whatsoever, as in an entry with the intent to commit sexual assault (or any other felony). Robbery may be a closer question, but typically is treated as a crime against persons unlike theft which is categorized as a property crime. However, since both burglary (at least of a habitation) and robbery are felonies (other than state jail felonies), you may have an opportunity to enhance the punishment of a new felony. If the current case is a misdemeanor theft, you are probably stuck; I am not aware of any authority to use burglary or robbery convictions to enhance a theft offense.

I'm with JohnR. Only 'theft' convictions can be used to enhance, despite the fact that many other offenses may include the basic notion of stealing, i.e. forgery, tampering with gov't records, unlawful use of ID info, etc.

Theft and DWI used to be pretty much identical in this sense. Over time, the legislature broadened the allowable enhancements available for DWIs (any offense relating to the operation of a vehicle, iirc), but they did not do this for the theft statute.