Theft

Byrd v. State

In Byrd, the state charged appellant with theft of certain property from owner “Mike Morales.” At trial, however, the State did not prove, in any way whatsoever, that the property belonged to Mike Morales. The overwhelming proof showed that the property, in fact, belonged to Walmart. On appeal, appellant argued the the evidence was insufficient because the State did not prove that the property belonged to Mike Morales. The 4th Court disagreed, holding that the name of the owner was not required, as it was simply a variance of proof.

This week, the Texas Court of Criminal Appeals reversed the decision of the Court of Appeals. In a unanimous opinion written by Judge Cochran, the CCA held that:

Although the name of the owner is not a substantive element of theft, the State is required to prove, beyond a reasonable doubt, that the person (or entity) alleged in the indictment is the owner is the same person (or entity) – regardless of the name – as shown by the evidence.

The CCA explained that a conviction would still stand if an indictment alleged an incorrect name, such as Buddy Smith, when the proof at trial revealed that the victim’s name was, in fact, John Smith (Buddy was simply a nickname). In that instance, there would be sufficient evidence showing that the person alleged in the indictment is the same person from whom the property was stolen.

In this case:

Not only did the State fail to offer any evidence that "Mike Morales" - the person alleged in the theft indictment - has any ownership interest in or relationship to the property appellant shoplifted, but the jury, without any apparent concern the missing "Mile Morales," convicted her nevertheless.  According to the State, the "only explanation for this exceptional circumstance seems to be that it was so clear to all the parties involved - and possibly to the jury as well - that the real victim (both alleged and proven) was Wal-Mart that the discrepancy seemed not to matter."  An alternate, less generous explanation, is that everyone was asleep at the wheel.

As a rule for future Walmart theft cases (and all theft cases), the majority opinion states:

The parties, the court, and the jury must know the identity of the owner [of the stolen property] regardless of how the State names him.

It is worth noting that the CCA did not foreclose the option of the State reindicting the appellant for theft from “Walmart,” as jeopardy has not attached to that specific offense. But as far as theft from Mike Morales goes, the appellant stands acquitted.

After being convicted of aiding and abetting mail fraud and aggravated identity theft, Lonnie Oliver Jr., challenged his convictions on appeal, arguing that federal agents conducted an illegal search of the contents of a cardboard box that his girlfriend provided to them and that his statements to police officers were involuntary.

See the full opinion in United States v. Oliver  (5th Circuit, 2011)

Mr. Oliver left an unsecured cardboard box, which contained ample evidence of his identity theft operation, in the dining room of his girlfriend's apartment. When agents interviewed his girlfriend, she gave them the box, but did not tell them she had already examined its contents.

Does a person have a Reasonable Expectation of Privacy in the contents of a box that was not kept private from his girlfriend?

The court held that the girlfriend’s prior search of the box destroyed Appellant’s reasonable expectation of privacy in it, and rendered the subsequent warrantless police search permissible under the Fourth Amendment. The court stated that the girlfriend’s search made the agents’ warrantless search permissible, regardless of whether the agents knew about it. The court cautioned that his holding was limited to the unique facts of this case and was not intended to expand significantly the scope of the private search doctrine.

Does a waiver of Miranda Right to remain silent need to be in writing?

Appellant also argued that incriminating statements he made to the agents during his custodial interrogation should have been suppressed, claiming that he had not waived his Miranda rights. After agents arrested Appellant, they advised him of his Miranda rights and provided him two forms. Appellant signed the first form acknowledging that he understood his rights, but he refused to sign the second form waiving those rights. Nevertheless, Appellant told the agents that he wished to answer their questions and he confessed to his role in a mail fraud and identity theft scheme.

The Court explained that suspect may waive his Miranda rights if the waiver is made voluntarily, knowingly and intelligently. The mere refusal to sign a written Miranda waiver does not automatically make subsequent statements by a defendant inadmissible. The court held that the circumstances surrounding Appellant’s arrest and interview established that Appellant’s waiver was voluntary, even though he refused to sign the wavier form. Specifically: (1) agents provided Appellant with a copy of the Miranda warning waiver form and read it aloud to him as he followed along, (2) Appellant expressly told the agents that although he would not sign the Miranda waiver form, he would discuss the fraud scheme, (3) Appellant never requested an attorney, (4) Appellant was articulate, coherent and not under the influence of alcohol or drugs, and appeared to understand what was going on, (5) Appellant clearly understood his rights since he signed the first form that acknowledged this, and he had extensive experience with the criminal justice system, and (6) Appellant was not coerced in any way during the interview.

Allen walks into Walmart, picks out a nice computer and matching desk, loads both into a shopping cart and proceeds to the exit. Of course, before he can make it out of the store, the infamous receipt-checker stops him at the door. Allen shows a fake Walmart “receipt.” Unfortunately for Allen, the receipt-checker isn’t as dumb as he was hoping. The receipt checker quickly identifies the receipt as a phony and Allen is detained while police are called.

These are the general facts of Shipp v. State, a Texas Court of Criminal Appeals case released last week and designated for publication. In Shipp, the appellant was tried and convicted of the state jail felony offense of Forgery of a Commercial Instrument. With his enhancements, punishment was assessed at 20 years in TDCJ-ID.

Is a Walmart receipt a "Commercial Instrument" under Texas' Forgery laws?

Shipp argued on appeal that the phony receipt didn’t qualify as a “commercial instrument” under 32.21(d) of the Penal Code. The 6th District Court of Appeals (Texarkana) agreed, holding:

There was no testimony provided here to demonstrate that a receipt issued by this Wal-Mart store is anything more than the memorialization of a past transaction, as opposed to other kinds of things granting or ceding future benefits or rights listed in Section 32.21(d).

The 6th Court of Appeals used the statutory construction doctrine of Ejusdem generis (you can read the opinion for more, but simply put, when general words in a statute follow specific words, courts should look to the specific words for meaning) to arrive at its conclusion that the legislature did not intend to include such items as a Walmart receipt in the statute .

The CCA, on the other hand, declined to use the doctrine here because of the wide range of writings set out in 32.21(d).  Instead, the CCA looked to the legislative history behind 32.21(d) and held that this degree of forgery (state jail felony) was meant to include “documents of commerce.”  The CCA did not define “other commercial instrument” but nevertheless concluded that a store receipt falls within the definition of “documents of commerce.” Adressing Ejusdem generis the CCA states:

To invoke the rule of ejusdem generis to exclude such a patent example of a ‘commercial instrument’ would serve to defeat rather than effectuate the intent of the Legislature…

Dissenting, Presiding Judge Keller joined by Judge Johnson agree with the Court of Appeals’ use of Ejusdem generis stating:

the phrase ‘or other commercial instrument’ must also refer to a document that creates or discharges an economic obligation or that transfers property.

Presiding Judge Keller points out that a receipt has consistently been considered a “document” for purposes of the forgery statute (citing all the way back to 1884 – wow!) but is not an “other commercial instrument” for purposes of making it a state jail felony level. Thus, in her opinion, Shipp should have been prosecuted for a misdemeanor offense.

I would never have imagined a Walmart receipt being a “commercial instrument,” but apparently it is, so says the Court.