Theft

Jury unanimity is required in every jury trial, whether it be felony or misdemeanor. This means that the jury must unanimously agree that the State has proven or failed to prove all elements of an offense beyond a reasonable doubt. If a jury cannot reach a unanimous verdict of guilty or not guilty, then the judge will declare a mistrial. With some offenses, however, it can be a little unclear as to what jury unanimity actually requires. This is specifically so with aggregated theft cases.

What Is Aggregate Theft?

Aggregate theft is an offense where two or more thefts were committed “pursuant to one scheme or continuing course of conduct” and the amounts combined determine the grade of the offense. Tex. Penal Code §31.09. Under Section 31.09, aggregate theft may be and often is considered as one offense. Even though it is considered one offense, each individual underlying theft act (where the amounts are aggregated) is considered an element. The Court of Criminal Appeals of Texas has held that for evidence to be sufficient the state must prove beyond a reasonable doubt that the defendant unlawfully appropriated “enough property to meet the aggregated value alleged.” The state is not required to prove each underlying appropriation. However, the Court, until recently has left one question unanswered: Does the jury have to unanimously agree on all underlying theft transactions?  Meaning, if the defendant is alleged to have committed 10 separate theft acts (pursuant to a common scheme), do the jury have to agree on each, or some, or none?

Kent v. State—What is the Jury Unanimity requirement in Aggregate Theft cases?

Until recently there had been no holding by the Court of Criminal Appeals of Texas on whether jurors are required to unanimously agree on each underlying transaction that is used to comprise an aggregated theft charge. In Kent v. State the Court finally addressed this exact question.

See the full CCA opinion in Kent..

Kent was a mortgage broker indicted for theft from four complainants in an amount exceeding $200,000. The thefts were alleged to have occurred over a period of time and pursuant to one scheme or continuing course of conduct. At trial, the defense requested a paragraph in the jury instructions that outlined each individual theft allegation and called for a unanimous verdict on each. The trial judge denied the defense request to include this paragraph.  The jury found Kent guilty of aggregate theft. On appeal, the Kent complained that the trial judge erred by refusing to include his requested paragraph in the jury instructions.  The appellate court reversed and remanded the case for a new trial, holding that the jury should have been instructed that they must unanimously agree beyond a reasonable doubt on each underlying transaction used to comprise an aggregate theft charge.

The State appealed to the Court of Criminal Appeals of Texas to determine whether this was correct. Reversing the lower courts holding, the CCA held that for an aggregated-theft case,

unanimity requires that the jurors agree that the threshold amount has been reached and that all the elements are proven for each specific instance of theft that the individual juror believes to have occurred. Every instance of theft need not be unanimously agreed upon by the jury.

In other words, it is only required that the jurors unanimously agree that two or more thefts pursuant to a common scheme, when combined, exceeded the threshold amount beyond a reasonable doubt, not that they unanimously agree on exactly which thefts were comprised to reach that amount.

Takeaway: When facing aggregated theft charges it is important to know that the jury does not have to unanimously agree that each underlying theft alleged in the indictment has been proven beyond a reasonable doubt. Bottom line, it’s the aggregated amount that matters. This is only a brief explanation of how the jury unanimity requirement plays a role in a case and if you should have any more questions contact our Fort Worth criminal defense team.

Craigslist-Related Crimes | New Crimes in the Digital Age

Gone are the days of flipping through your local newspaper’s classified section and circling your favorite ads. These days, Craigslist is the new classifieds of Fort Worth and Dallas. It is the one stop shop source to find a new car, truck, job, furniture, garage sale, or even a love interest. With the rise of Craigslist (and other online forums), there has also been an increase in criminal activity ranging from online scams to fraud and theft. Police stings based on advertisements from Craigslist are also common. Police have seen such a meteoric rise in these “Craigslist related crimes”, that many departments have established “safe exchange locations where transactions can occur under the watchful eye of local law enforcement.

Whenever people meet to engage in a transaction, crime can occur. These crimes can take place anywhere, whether you are in an urban or rural area, in the parking lot of the local shopping center, or even on your own front porch. Craigslist is easily accessible, and is increasingly used to create opportunities for one party to take advantage of another. It is essential to be vigilant whenever meeting up with anyone from the Internet.

Craigslist Criminal Investigations | Fort Worth, Texas

With the advent of Craigslist, law enforcement agencies have seen a few specific areas of criminal activity increase rapidly. These investigations into alleged crimes often facilitated by Craigslist include:

• Craigslist Robbery: Increasingly, people will post ads on craigslist looking to buy or sell an expensive item, such as a cell phone, and when the other party arrives take either the item or the money by force. Avoid being a target by meeting buyers or sellers at a “safe exchange” location set up by the police department.
• Craigslist Prostitution: Craigslist is full of ads looking for love, and both men and woman can get caught up in activity they may not have even realized was criminal until too late. Craigslist is used to source potential targets, and can result in charges from soliciting sex with a minor to soliciting sex for pay. Police departments are increasingly using Craigslist to set up sting operations to catch people trying to engage in prostitution.
• Craigslist Drug Charges: Police are seeing an increase in advertisements for illegal drugs posted on Craigslist using code words. Engaging in a dialogue with someone posting one of these ads could lead police to believe you are involved in drug dealing or drug trafficking through ads placed on Craigslist.

Defending Craigslist-Related Criminal Cases

Defense of Craigslist-related criminal charges can be a very complex proposition, requiring legal counsel experienced in these types of matters and the technology it involves. Forensic Computer Specialists and other experts may be necessary to the investigation and protecting your constitutional rights. Seek counsel from experienced criminal defense attorneys at Barnett Howard & Williams PLLC, former prosecutors with an in-depth understanding of the criminal justice system and its applications in today’s Internet-oriented society.

Contact Our Fort Worth Craigslist Crimes Defense Attorneys Today!

At Barnett Howard & Williams PLLC, our attorneys understand how to investigate and defend against complex computer-related criminal charges, including Craigslist-related charges. To schedule a free consultation, contact us at our offices in Fort Worth, Texas, at 817-993-9249.

What is a Bait Car?

A Bait Car is vehicle owned by the police department and equipped with GPS devices and cameras. But, the car looks like any regular car on the street. The police typically place something valuable inside the Bait Car, such as a paint spray rig, and then they park the car (with the keys inside) on the side of the street in a low-income part of town. If someone tries to steal the bait car or the valuables inside, the GPS is triggered, the camera is activated, and the police are alerted. In most cases, the person does not get very far before a patrol car arrives to arrest them for theft.

What is Backpage?

I doubt I can fully explain what Backpage is or how it is used, but in the cases that we see, Backpage is a website (akin to Craigslist) where escorts and ladies of the night advertise their services. Potential Johns can browse the Backpage website to arrange an interlude of momentary love. The police have been using Backpage and arranging for a female officer to meet men at a local motel room posing as a prostitute. With backup officers waiting in the bathroom, the John is arrested for Solicitation of a Prostitute when they arrive to meet the woman/officer they contacted on Backpage.

Is it Entrapment for the Police to Use a Bait Car or to Advertise on Backpage?

We get this question in every Bait Car or Backpage case. To answer the question, we typically explain that fairness and equity are not the same as the legal defense of entrapment. Just because the police conduct doesn’t seem fair or because we think the police are “creating the crimes,” does not mean that it is entrapment.

Section 8.06 of the Texas Penal Code defines the affirmative defense of Entrapment:

“It is a defense to prosecution that the actor engaged in the conduct charged because he was induced to do so by a law enforcement agent using persuasion or other means likely to cause persons to commit the offense."

The Penal Code goes on to explain that: “Conduct merely affording a person an opportunity to commit an offense does not constitute entrapment.”

Therein lies the rub. By using a Bait Car and by advertising escort services on Backpage, the Fort Worth police are “merely affording a person an opportunity to commit an offense,” so under the law, entrapment would not apply to these situations. Don’t get me wrong, we hate Bait Cars and Backpage. We wish the police would use their time and resources toward real crimes, rather than “creating opportunities” for people to commit crimes. Why in the world would we want to create opportunities for people to commit crimes in the first place? That is similar to setting up a keg right outside the AA meeting with a sign for free beer.

Whether we like it or not, entrapment does not apply as an affirmative defense in these cases. Regardless, our attorneys still fight hard to get bait car and Backpage cases dismissed, reduced, or mitigated any way we can. Anecdotally, we’ve seen that a lot of prosecutors don’t like these cases any more than we do. Hopefully, we will see bait cars and Backpage go away soon, but until then, know that Entrapment won’t help you if you choose the wrong car or the wrong escort.

Felony Murder Conviction is Affirmed on Appeal

Gardner v. State (14th Court of Appeals, Houston 2015)

Herbert Gardner and his ex-girlfriend dated for four years and lived together in his ex-girlfriend’s home. When the couple broke up on November 2, 2012, Gardner moved into a hotel. On December 23, 2012, his ex-girlfriend was found murdered in her home and Gardner was found nearby, badly injured. On the way to the hospital Gardner stated to the police officer, “I should not have shot her.” A jury found Gardner guilty of an elevated charge of capital murder, and the trial court sentenced him to mandatory life in prison.

Gardner appealed to the Court of Appeals, arguing (1) that the evidence was insufficient to prove that he murdered his ex-girlfriend in the course of committing a burglary, an aggravating factor that elevates a murder charge to a capital offense with a heavier punishment; and (2) that the evidence was insufficient to prove that when he entered his ex-girlfriend’s home, he committed or intended to commit a felony, theft, or assault, which also carries a heavier punishment in Texas. The Court of Appeals disagreed with both of Gardner’s arguments, affirming his conviction.

First, the language of the statute under which Gardner was convicted states, “A person commits burglary if, without the effective consent of the owner, he: (1) enters a building or habitation with intent to commit a felony, theft or an assault, or, (2) enters a building or habitation and commits or attempts to commit a felony, theft or an assault.”

Gardner argued that he had an equal right to possession of the property and could not be found to have entered without his ex-girlfriend’s consent because he had lived in the home for four years, that the neighbors saw him in the home on a regular basis, and that he used the residence as home address on his driver’s license. The State argued that Gardner lost his right to possession before the murder because he moved into a hotel, his name was not on the property deed, that the front window of the home was broken and blood-stained with Gardner’s blood, that his vehicle registration reflected a different address, and that there were not any items that suggested a male was living in her home at the time of the murder.

In assessing the sufficiency of evidence, the Court of Appeals must view all evidence in the light most favorable to the verdict to determine whether the trial court could have found the elements of the offense beyond a reasonable doubt. Here, the Court of Appeals agreed with the State, that there was indeed sufficient evidence for a rational jury to conclude that Gardner no longer lived with his ex-girlfriend and no longer had consent to enter the home at the time of the murder. Because the evidence was sufficient to prove the unlawful entry element of burglary, the Court of Appeals overruled Gardner’s first argument.

Second, the language of the statute under which Gardner was convicted states, “A person commits capital murder if he intentionally or knowingly causes an individual’s death while in the course of committing or attempting to commit burglary.” Gardner argued that the State wrongly used his murder to establish the murder requirement for capital murder and to establish the felony component of the underlying burglary. The State argued that the Court of Criminal Appeals—the court of last resort for criminal matters in Texas— has held in several cases that a murder occurring after a break-in can indeed serve as both the basis for the murder charge and the underlying felony required for burglary.

Under the legal doctrine of Stare Decisis, courts must follow the precedent established by the higher court from cases the higher court has heard from previous years. In criminal appeals, these prior cases serve as an example for lower courts to follow when making decisions about upholding or overturning convictions. Here, the Court of Appeals overruled Gardner’s second argument because the court is bound to follow precedent set forth by the Court of Criminal Appeals. The State could use Gardner’s murder to establish the murder requirement for capital murder and to establish the felony component of the underlying burglary in order to elevate the murder to capital murder, which incurs a higher penalty in Texas.

In criminal appeals, the court is primarily responsible for ensuring that proper form and procedures are followed in the trial courts, rather than determining the facts of the case. The trial court is tasked with determining and recording the facts of the case, to be used later on appeal if necessary.

A criminal defense attorney in Fort Worth will understand the subtle nuances of the statutory language found in the Texas Code of Criminal Procedure and in legal doctrines, such as Stare Decisis. As you can see from the case above, statutory language and legal doctrine have a direct impact on establishing the elements of a crime, elements that may determine the severity of the penalty in the punishment phase of a trial. This essay does not replace legal counsel or advice.

Free Consultation with a Dedicated Team of Fort Worth Criminal Defense Attorneys

Barnett Howard & Williams PLLC is a proven and dedicated criminal defense law firm. With offices in Fort Worth, Keller, and Grapevine, our attorneys stand ready to defend your liberty and your future. Call our office at (817) 993-9249 to arrange a Free consultation of your criminal case today. Do not wait until it is too late.

Obscure Texas Laws | Fort Worth Criminal Defense Attorneys

No, I'm not talking about a Good Samaritan Law, but Texas does have some obscure laws on the books that you might not suspect.  We are hoping to bring some of them to your attention.  For the first obscure Texas law, we look to one of the most successful television shows in history.

For all of the Seinfeld fans out there, you probably remember the episode where Kramer tries to entice Jerry to have cable illegally installed by two Russians.  Well, Jerry's actions would be a Class C misdemeanor Theft offense here in Texas punishable by a fine up to $500.

Section 31.12 - Theft of or Tampering With Multichannel Video or Information

Under this law:

[a] person commits an offense if, without the authorization of the multichannel video or information services provider, the person intentionally or knowingly makes or maintains a connection, whether physically, electrically, electronically, or inductively, to a television set, videotape recorder, or other receiver attached to a multichannel video or information system.

Based on his actions (or inability to stop Kramer), Jerry could be arrested and issued a Class C criminal citation.  Like all penal statutes, there is much more to it than that.  If you're curious about whether you may have violated this one in the past (long before the statute of limitations ran out, of course), see the full text of the Texas Theft Statute and look for Section 31.12.

Contact Fort Worth Theft Attorneys

If you or a loved one are charged with any theft offense in Texas, don't call Jacky Chiles.  Contact the experienced (and non-fictional) criminal defense attorneys at Barnett Howard & Williams PLLC by calling (817) 993-9249.