Collin County Theft Defense Lawyer
Theft in Texas is taking, or appropriating, someone’s property with the intent to deprive its true owner of his or her property. According to Section 31.03 of the Texas Penal Code, such appropriation occurs when one of three things happens:
- the owner does not consent to the appropriation,
- the property is stolen and the actor appropriates the property knowing it was stolen by another, or
- when a law enforcement officer purports that property is stolen, and the suspect takes the property believing it to be stolen.
Theft comes in many shapes and sizes, as discussed below, and an important thing to note is that you do not have to have actually stolen the property to be guilty of theft. Under the Texas Criminal Code, an accused may be guilty of theft simply by taking property that he or she knows to be stolen.
In Collin County, Texas there are often ways to get the charges reduced or get you into a diversion program that would ultimately result in a dismissal. Both of these things could potentially lead to an expunction, which is incredibly powerful and requires under Chapter 55 of the Texas Code of Criminal Procedure all agencies with any information regarding your arrest destroy them. Once the charge is expunged, you may deny being convicted, pleading guilty, or even being arrested.
Although expunction is a powerful tool and is sometimes available in theft cases, theft is a crime of moral turpitude, and it is important that you understand this in the event that your case cannot be expunged. Many professional licensing associations (for doctors, lawyers, accountants, teachers, etc.) will ask you if you have ever been charged with a crime of moral turpitude, and if you have a theft on your record, the answer to that question, unfortunately is yes.
For these reasons, you must hire a Collin County theft attorney who understands how to investigate and diagnose your case so that expunction (removing the crime from your record) may be possible for you.
Types of Theft
In Texas, robbery and aggravated robbery are two separate offenses carrying different punishments. The difference between facing up to 99 years in prison or as little as two years in prison may come down to whether there was a mere display of a deadly weapon.
To prove a Robbery, the State must prove beyond a reasonable doubt that the defendant:
- was in the course of committing a theft,
- intentionally, knowingly or recklessly causes, threatens or places another in fear of bodily injury or death,
- for the purpose or with the intent to maintain control of the property.
For purposes of Robbery or Aggravated Robbery, bodily injury is defined as “physical pain, illness, or any impairment of physical condition.” Robbery is a Second-Degree Felony with a range of punishment from 2 years up to 20 years confinement and a fine up to $10,000.
Robbery becomes Aggravated Robbery if the state alleges and can prove beyond a reasonable doubt that the defendant did any of the following in addition to committing Robbery:
- causes serious bodily injury to another,
- uses or exhibits a deadly weapon, or
- causes bodily injury or threatens or places another in fear of imminent bodily injury or death and that person is 65 years or older or disabled.
Serious bodily injury is defined as “bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.” Aggravated Robbery is a First Degree Felony with a range of punishment from 5 years up to 99 years or life confinement and up to a $10,000 fine.
Aggravated Robbery is also classified as a 3(g) offense (an offense falling within the purview of Texas Code of Criminal Procedure Article 42.12 Sec. 3(g)). These types of offenses are those which our legislature have identified as the most serious of criminal offenses. Individuals charged with a 3(g) offense may not receive regular probation from a judge and are not eligible for parole until at least one half of the original sentence has been served.
The value of competent and aggressive legal representation when charged with a 3(g) offense such as Aggravated Robbery cannot be overstated. Whether you are a person charged with Aggravated Robbery or a someone seeking legal assistance on behalf of a close friend or family member who is in jail awaiting prosecution, contact our office to schedule a consultation with an attorney or a jail consultation.
Burglary of an Automobile
Burglary of an Automobile (also referred to as burglary of a motor vehicle) falls under its own section of the Texas Penal Code, Sec. 30.04, but is quite similar to other burglaries. To charge and convict a person of Burglary of an Automobile, the State must prove:
- knowing or intentional breaking or entry into,
- any part of a vehicle, with
- the intent to commit any felony or a theft.
Entry includes physically placing any part of the body or object connected with the body inside a vehicle.
Most Burglary of an Automobile cases will be classified as a Class A Misdemeanor with a range of punishment of up to 1 year in county jail and up to a $4,000 fine. However, the range of punishment can be modified under several scenarios. With one prior conviction for the same offense, the minimum term of confinement is enhanced to six months. The offense can also be enhanced to a State Jail Felony with two prior convictions for the same offense. One feature which makes Burglary of an Automobile unique is that, by statute, any previous case resolved with deferred adjudication probation can be treated as a conviction for enhancement purposes.
Many Burglary of an Automobile cases depend upon circumstantial evidence. For instance, it is not uncommon for a Burglary of an Automobile case to be based upon pawn tickets which were traced back to the defendant. Circumstantial evidence is legally sufficient evidence for a jury to convict a defendant. However, many circumstantial cases leave room to mount a successful defense.
Even when a case fails to present viable legal or factual defenses, favorable outcomes can still be attained through strategic legal representation and negotiation. Contact our office today to discuss how to begin approaching your Burglary of an Automobile case.
Burglary of a Building
Burglary of a building is the same crime as burglary of a home as far as the elements involved; however, the punishment for burglary of a building is less than that of burglary of a home. Entering, or remaining in, a building without consent of the owner and with the intent to commit a felony, theft, or assault is burglary. Again, these other offenses need not be committed; there must simply be the intent to commit one of them.
Burglary of a building applies to any building that is not a “habitation” as defined in the burglary of a home section. Burglary of a building is a state jail felony, punishable by 180 days up to 2 years in state jail and a fine of up to $10,000.
Burglary of a Buisiness
Like Burglary of a Home/Habitation, Burglary of a Business (also known as Burglary of a Building) falls within the scope of the general Burglary statute under Texas Penal Code Sec. 30.02. To prove Burglary of a Business, the State must prove beyond a reasonable doubt:
- knowing and intentional entry or concealment
- into a building other than a habitation
- without the effective consent of the owner
- with the specific intent or attempt to commit a felony, a theft or an assault.
Burglary of a Business or Burglary of a Building is a State Jail Felony with a range of punishment of 180 days to 2 years in a State Jail and a fine up to $10,000.
Like Burglary of a Habitation, the State is not required to prove a physical act of breaking a window or door, nor the completion of a crime which the defendant intended to commit once entry was gained. Sometimes disputed cases focus upon whether the entry was a mere Criminal Trespass due to the absence intent to commit a felony, theft or assault at the time entry was achieved. Other defenses could include issues such as consent to enter, misidentification or ownership of the building.
Credit or Debit Card Fraud
Texas Penal Code Sec. 32.31 outlines 12 different acts which qualify as Credit or Debit Card Fraud. To paraphrase the statute, the State may prosecute as Credit or Debit Card Fraud the following scenarios:
- fraudulent use of an expired or cancelled card to obtain a benefit
- fraudulent use of another’s card without that person’s permission to obtain a benefit
- receiving a benefit from the fraudulent use of a card, use of a fictitious credit card with intent to obtain a benefit
- knowingly receiving a benefit from the fraudulent use of a card
- stealing or knowingly receiving a stolen credit card
- purchasing a card from someone other than the owner
- selling another’s credit card
- inducing another to use a card for a purchase he or she cannot afford
- possession of a card without the owner’s consent and with the intent to use it
- possession of two or more incomplete credit cards with intent to complete them and without the card-issuer’s permission
- accepting a card for purchase of goods or services with knowledge that it’s use was fraudulent
- accepting a card for purchase of goods or services and fraudulently failing to furnish purchased goods or services
Credit or Debit Card Abuse is s State Jail Felony with a range of punishment from 180 days to 2 years in state jail and a fine up to $10,000. Credit or Debit Card Abuse can be enhanced to a Third-Degree Felony if it is shown that the offense was committed against an individual 65 years of age or older.
Credit or Debit Card Abuse cases sometimes involve investigations which take place over the course of several months. During the investigation, law enforcement may encourage suspects to waive important rights or make detrimental statements. Whether you have been contacted by a detective to discuss a potential credit or debit card abuse or you have a pending case, it is important that you contact an attorney immediately.
Forgery is defined by Texas Penal Code Sec. 32.31 as altering, making, completing, executing or authenticating a writing for any of the following purposes:
- to appear to be the act of another who did not authorize such act
- to appear to be executed at a time or place or in a numbered sequence other than was in fact the case, or
- to be a copy of an original when no such original existed.
Forgery also includes utilizing or possessing forged writings under certain circumstances. For forgery to constitute a crime, it must be done with the intent to defraud or harm another.
A forgery is classified as a State Jail Felony when the writing forged is a will, codicil, deed, and certain financial or commercial instruments. A forgery is classified as a third-degree felony when it is done to replicate money, securities, postage, or certain documents or licenses issued by the government. A forgery charge can be enhanced by one offense level if it is shown that the offense was committed against an individual 65 years of age or older.
A forgery charge can be fact intensive, especially when considering all the caveats involved in properly classifying the level of offense. Sometimes the strength of a forgery case will depend upon the existence and content of statements made by a defendant to a detective investigating a potential forgery case.
Forging or Altering a Prescription
Section 481.129 of the Texas Health & Safety Code covers prescription fraud and criminalizes possessing or using a prescription with a forged signature, a prescription belonging to another person, a prescription bearing a false, suspended, or fictitious registration number. It also makes it illegal to phone in a prescription fraudulently or to obtain a controlled substance through fraud or misrepresentation.
Penalties for prescription fraud range from Class A Misdemeanor to a Second-Degree felony depending on the circumstances and the type of drug sought. At Rosenthal Barbieri we defend prescription fraud cases aggressively by requiring proof:
- the prescription, if any, otherwise meets the legal definition of a prescription referenced by the code
- the person who possessed or phoned in the invalid prescription is indeed the correct person
- challenging whether the prescription is forged in the first place; and
- challenging the entire circumstance could not have been explained by a mistake, miscommunication, or other explanation.
Defending prescription fraud cases requires aggressive representation by an attorney who is available 24/7 for such emergency counseling.
Grand Theft Auto
There is no specific section in the Texas Penal Code that sets forth a definition or range of punishment for “grand theft auto”, though that is a common term. Theft of a vehicle is treated the same as theft of any other property. Depending on the value of the car, the degree of the charge can range from a Class B Misdemeanor (for a car value at or below $500) to a first-degree felony (for a vehicle valued at $200,000 or higher).
If the state has a weaker case, and cannot prove that the accused intended to steal the vehicle, they may instead decide to charge him or her with unauthorized use of a vehicle, which is a state jail felony, as explained above. Your attorney must understand the importance of the value of the car as it relates to your case. For example, if you are charged with unauthorized use of a motor vehicle, but the vehicle was only worth $1,000, a theft charge may be something that ultimately carries less punishment, although it may sound worse.
Burglary under the Texas Penal Code occurs when someone, without consent of the owner, enters or remains in a building not open to the public with intent to commit a felony, theft, or assault.
Committing burglary in a “habitation” (essentially any building that is designed to accommodate people staying overnight) carries heavier penalties than burglary committed in other buildings. If the burglary occurs in a home and the felony intended is anything other than theft, the burglary is a first-degree felony.
Importantly, it is irrelevant whether or not the accompanying theft, assault, or other felony actually occurs. All that matters for a burglary charge is that one of those is intended. Additionally, no “breaking” is required. Burglary may occur by crawling through an open window or even walking through an unlocked door.
If the burglary takes place in a home and the accompanying intended actions constitute either a misdemeanor (i.e., assault) or felony theft, the burglary is considered a second-degree felony. First-degree felony punishment ranges from 5-99 years in prison and a fine of up to $10,000. A second-degree felony is punishable by 2-20 years in prison and a fine up to $10,000.
Unfortunately, the root of a burglary is often drug or other addictions or habits that the accused is trying to support, and it is important to get those issues treated and/or addressed as well as any criminal charges.
Shoplifting is the most commonly charged form of theft, it is typically a Misdemeanor offense characterized as Class C Theft (Theft Under $100), Class B Theft (Theft $100 – $750), and Class A Theft (Theft $750 – $2,500). To prosecute and convict a person for Shoplifting the State must prove the following:
- unlawful taking
- of property of a specified value
- with intent to deprive the owner of the property.
Usually, the most important element of a Shoplifting offense is intent. A person must act with intent to deprive the store of their property. Showing that a defendant was reckless, negligent or that their head was in the clouds when they walked out of a store with unpaid-for merchandise will not cut it. An accident does not qualify as Shoplifting.
Whether the scenario is purely accidental one or simply an uncharacteristic moment of poor judgment, when a person is arrested for Shoplifting, it will appear as Theft on a criminal history. Theft is considered a crime of moral turpitude and can seriously impact a person’s ability to obtain or retain employment. This highlights the importance of seeking an attorney who will work to have charges reduced or expunged and possibly pursue options like Pre-Trial Diversion which is specifically tailored to individuals with a clean record seeking to keep it that way.
Tag Changing under Texas Penal Code Section 32.47, also known as Fraudulent Destruction, Removal or Concealment of Writing is most commonly a hybrid of Theft or Shoplifting. To charge and convict a person with Fraudulent Destruction, Removal or Concealment of Writing, the State must prove:
- destruction, removal, concealment or alteration, substitution or impairment of a writing
- with the intent to harm or defraud another.
Although this offense applies to a wide variety of scenarios, the most common is when the State has alleged that a person changed tags on merchandise prior to making a purchase.
Tag Changing is a Class A Misdemeanor with a range of punishment from 0 days up to 1 year in jail and a fine up to $4,000. Tag Changing is also considered a crime of moral turpitude and can leave a serious blemish in a person’s criminal history.
Theft by Check
Theft by check occurs when someone commits a theft with a check as the main tool of the offense. Writing a hot check, alone, is not enough to prove such a theft.
The two main questions in most theft by check cases are:
- The identity of the person who wrote the check
- Whether that person knew the check they were writing was worthless
The prosecution must prove the defendant is the person who wrote the check and this can be extremely difficult despite whose name appears to have signed the check. Also, the prosecution must prove the Defendant intended to steal. Most jurors wouldn’t agree that someone who might have a low bank account is a thief.
There is very little reason to back down from a theft by check charge. The consequences are too great and the cases are too difficult to prosecute successfully.
Theft of Services
There are several acts under Penal Code Sec. 31.04 which constitute a Theft of Service. To charge and convict a person of Theft of Service, the State must prove that an individual acted with intent to avoid payment for service and one of the following scenarios:
- use of deception, threat or false token to intentionally or knowingly secure services
- diverting the benefit of to an individual not entitled to the benefit of those services
- holding rental property beyond the expiration of the rental period without the consent of the owner, or
- intentionally or knowingly securing performance of services by agreeing to provide compensation and subsequently failing to pay in full after the service is rendered and payment is requested.
Theft of Service ranges from Class C Misdemeanor to First-Degree Felony. The level of offense depends on the value of the service alleged to have been stolen. Theft of Service becomes a Class B Misdemeanor (0-180 days in jail and a fine up to $2,000) at a value of $20 and a Felony (punishment ranges starting at a minimum of 180 days incarceration) at a value of $1,500.
Theft of Service is commonly misunderstood as merely the act of not paying for a service. It is not uncommon for people secure a service with the intent to pay and upon completion of that service no longer have the ability to do so. This is not necessarily Theft of Service.
Unauthorized Use of a Motor Vehicle
Unauthorized use of a motor vehicle is a state jail felony that occurs when a person “intentionally or knowingly operates another’s boat, airplane, or motor-propelled vehicle without the effective consent of the owner.”
Even if someone was not “stealing”, per se, a vehicle, he could still be on the hook for this crime if he did not have permission to operate the vehicle from the owner of the vehicle to operate it.
The punishment range for unauthorized use of a vehicle is 180 days to 2 years in state jail and a fine of up to $10,000.