Under 31.03(e)(4)(D) can a prior conviction for theft of service (31.04) be used to enhance a new theft charge (31.03).

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

Anyone have an answer -- we have a motion to quash because one of the enhancements is a theft of service.

I don't see why not. The enhancement language says a prior conviction of "any grade of theft." Theft of services is in the same chapter and actually labeled "theft," so I don't know why it wouldn't be included. What's the defense argument?

I would (and I'm sure you are already planning to) make the argument that "any grade of theft" refers to anything in TPC Ch. 31, the entirety of which is entitled "Theft. The different offenses described are all just different ways thefts can be accomplished, but they are all still thefts. (Andrea's post was posted just as I finished mine - great minds!)

Here is a case, but read the caveats here closely:
Caveat: This case (1) has been vacated and remanded on the main issue of the case (State didn't give notice they were going to use priors during D's testimony even after D requested notice under 609); (2) is a little off point because it relates to 31.06 (theft by check, not theft of service), and (3) the part I am quoting appears to be dicta. However, this very compelling authority (insert tongue into cheek) does seem to indicate that theft by *check* is still a theft - not an entirely separate offense unrelated to 31.03 definition of theft. Geuder v. State, 76 S.W.3d 133 (Tex.App.--Houston [14th Dist.] 2002).

From the opinion:

quote:

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Section 31.06 of the Texas Penal Code, entitled "Presumption for Theft by Check," does not separately create a specific offense, but rather provides a statutory presumption of intent to deprive the owner of property under section 31.03 of the Texas Penal Code if the actor obtained property by passing a check when the issuer did not have sufficient funds in the bank. TEX. PEN. CODE ANN. 31.06(a) (Vernon Supp. 2000); Richie v. State, 721 S.W.2d 560, 562 (Tex. App.--Beaumont 1986, no writ). The presumption requires predicate evidence of insufficient funds on deposit as of the date of the issuance or passage of the check and failure on the part of the issuer to pay the holder in full within ten days after receiving notice of the bank's refusal to pay. TEX. PEN. CODE ANN. 31.06(a)(2) (Vernon Supp. 1999). 4 [*137] Section 31.06 thus does not establish a defense, but "merely provides an evidentiary presumption of intent to deprive which is ancillary to the general [**7] theft statute." Christiansen v. State, 575 S.W.2d 42, 45 (Tex. Crim. App. 1979).

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Thanks -- I could not find any cases that specifically included theft of service as an enhancement, so I wanted another viewpoint. The motion to quash relies on the idea that 31.03 apparently excluded 31.04.

It says "any grade of theft" not "any grade of theft in this section." Since the entire chapter, not just the section, is titled "theft," then I see no reason why theft of services shouldn't count.

At the beginning of subsection (e), they limit the classification system to "offense[s] under this section", so there's no reason why the Leg couldn't have done the same thing when classifying "any grade of theft" in (e)(4)(D), if that's what they meant. Failure to do so indicates the broader definition was intended.

Thanks -- that is what we thought -- for some reason I thought there was a case specifically adressing this issue -- but could not find. I think the cases that specifically exclude offenses in other chapters are also helpful in an argument for not excluding theft in chpater 31.

[This message was edited by pkdyer on 10-11-10 at .]