A local police department has arrested a suspect for theft. Running their history has yielded the result that while they have several pending theft cases, they do not have sufficient convictions of theft of property to enhance this theft to a State Jail Felony under 31.03(e)(4)(D). However, there are sufficient theft by check and theft of service convictions present to get the enhancement. The question is whether any of these theft by check and theft of service convictions can be used.

My thought is that any conviction under penal code 31.03, including theft by check, can be used to enhance this theft to a State Jail felony. However, theft of service, being a different section in the penal code, cannot be used for such enhancement.

Any thoughts or guidance to case law I may have missed would be appreciated.

I think you are safe in your interpretation of "any grade of theft." However, I point out, as I did in The Prosecutor many moons ago (January 2003), that there is no such offense as "theft by check." Probably in most all of those cases where a worthless check was given (the manner of deception), property was obtained as result, so it was actually theft of property.

It seems pretty clear that "theft" as used in 31.03(e)(4)(D) includes all of the types of theft spoken of in 31.02 (and thus would include thefts involving checks (as those were once known as theft by pretext or swindling by check). Whether it also includes theft of service appears to be an open question. From a policy standpoint, there is no need to distinguish "theft" based on what was obtained (especially theft under 31.04(a)(4)). But, there is a strong argument "theft" is defined in 31.03(a) and no other statute. One court, however, intimated even robbery might be a grade of theft. Because the prior convictions may be considered to be elements of the offense, I would be hesitant to include anything not clearly included, because the defendant might become entitled to an acquittal on the charged offense as a result.

Focus on: been previously convicted two or more times of any grade of theft;

Any grade of theft seems to indicate any level as established under the value ladder of 31.03.

31.04 has different elements, but shares the same word in it's title. Different elements = different crime.

But that's just an opinion.