Chapter 31
Theft
31.1 Statutory Framework
Instructions Not Included. This chapter does not include instructions for two of the five kinds of theft distinguished above:
Theft by Exercising Control beyond the Scope of Consent Given. Situations involving embezzlement-type theft, as distinguished above, are often prosecuted not as theft but as misapplication of fiduciary property as prohibited by Tex. Penal Code § 32.45. In the Committee’s view this eliminates the need for a theft instruction addressing this situation. See chapter 32 for discussion and an instruction for misapplication of fiduciary property.
Theft by Receipt or Possession of Stolen Property. Tex. Penal Code § 31.03 provides for a statutorily distinguished method of committing theft that is, in effect, receiving or possessing stolen property. This is the receiving-stolen-property-type theft distinguished above.
Tex. Penal Code § 31.03(b) provides three ways in which the state can plead and prove that appropriation of property is unlawful. The first is the most commonly used and specifies that appropriation of property is unlawful if “it is without the owner’s effective consent.” Tex. Penal Code § 31.03(b)(1). In the second way, appropriation of property is unlawful if “the property is stolen and the actor appropriates the property knowing it was stolen by another.” Tex. Penal Code § 31.03(b)(2). This can be pleaded. See Jones v. State, 979 S.W.2d 652, 653 n.1 (Tex. Crim. App. 1998) (setting out such allegations). But a conviction for receipt or simple possession of stolen property can also be sought under a charging instrument alleging unlawful appropriation of property.
The court of criminal appeals has held that theft invoking section 31.03(b)(2) is “merely a subset” of theft under an allegation that the property was appropriated without the owner’s effective consent. Evidence that will support a conviction under a charging instrument invoking section 31.03(b)(2) will also support conviction under a charging instrument invoking only the more general provision in section 31.03(b)(1), that is, pleading that the appropriation was without the owner’s effective consent. Chavez v. State, 843 S.W.2d 586, 588 (Tex. Crim. App. 1992) (relying on McClain v. State, 687 S.W.2d 350 (Tex. Crim. App. 1985)).
Under Chavez, the state is disadvantaged by unnecessarily pleading a receipt or possession of stolen property case as invoking section 31.03(b)(2). A conviction for theft under section 31.03(b)(1) is supported by unexplained possession of recently stolen property. But a conviction under a charging instrument invoking section 31.03(b)(2) requires proof that the defendant appropriated the property knowing it was stolen. In such a case, evidence of the defendant’s unexplained possession of recently stolen property is not necessarily sufficient proof of the theft. Naranjo v. State, 217 S.W.3d 560, 571 (Tex. App.—San Antonio 2006, no pet.) (“When, as here, the State specifically pleads in the indictment that the accused committed theft by receiving property knowing it was stolen by another and this allegation is incorporated in the court’s charge, ‘unexplained possession of recently stolen property is not sufficient proof of theft.’ ”) (quoting Chavez, 843 S.W.2d at 588–89); Lackey v. State, 832 S.W.2d 162, 163–64 (Tex. App.—Houston [1st Dist.] 1992, no pet.) (defendant’s possession of stolen copier was insufficient to show that he knew that it was stolen).
Ultimately the state never has any reason to plead a receipt or possession of stolen property case other than as under the general theft provisions. Moreover, it always has some reason not to do so. Undoubtedly for this reason, appellate cases invoking section 31.03(b)(2) are rare.
Since there is seldom or never a satisfactory reason for a charging instrument to allege this sort of theft, the Committee did not attempt to draft an instruction for these situations.
Culpable Mental State. The Committee considered whether theft requires any culpable mental state in addition to the intent to deprive the owner of property. Most significant, perhaps, is whether in some or all situations the state must prove the defendant was aware that the appropriation of the property was unlawful, as, for example, by proving that the defendant was aware the owner had not consented.
Committee members were divided on the issue. The court of criminal appeals, in what is arguably dictum, has indicated that awareness is required. McClain, 687 S.W.2d at 354 (relying on Tex. Penal Code § 6.03(b)). The basis for this requirement of awareness would seem to be Tex. Penal Code § 6.02(b), which applies only “[i]f the definition of an offense does not prescribe a culpable mental state.” All ways of committing theft under section 31.03 require the intent to deprive the owner of the property.
Some awareness is required in certain situations in which the state’s theory of guilt invokes specific definitions of terms used in Tex. Penal Code § 31.03(a). If the state contends the appropriation was unlawful because the defendant engaged in deception to get consent, under Tex. Penal Code § 31.01(1)(E), for example, the definition of this kind of deception requires proof that the defendant did not intend to perform as promised or knew he would not so perform. Some members of the Committee thought this suggested the legislature did not intend an overlapping demand for proof of awareness that the appropriation was, in a general sense, unlawful.
A majority of the Committee concluded that theft requires no culpable mental state beyond intent to deprive, except when the state relies on a particular statutory provision that incorporates a mental element. In all other situations, however, the majority believed there is no basis in the Penal Code for requiring any culpable mental state other than the intent to deprive.
Theft Arising from a Contract. The court of criminal appeals has held that an accusation of theft in connection with a contract “requires proof of more than an intent to deprive the owner of property and subsequent appropriation of the property. In that circumstance, the state must prove that the appropriation was a result of a false pretext or fraud. Moreover, the evidence must show that the accused intended to deprive the owner of the property at the time that the property was taken.” Taylor v. State, 450 S.W.3d 528, 536 (Tex. Crim. App. 2014) (citing Wirth v. State, 361 S.W.3d 694, 697 (Tex. Crim. App. 2012)).
For example, a contractor may not be convicted of theft on the theory that he acquired a down payment from his customer by deception if there is no reason to doubt from the evidence that, at the time that money changed hands, the contractor had every expectation of fulfilling his contractual obligation. At the time of the down payment, the customer paid voluntarily, and the defendant neither intended nor knew he would not perform. Taylor, 450 S.W.3d at 536 (citing Phillips v. State, 640 S.W.2d 293, 294 (Tex. Crim. App. 1982) (relying on Tex. Penal Code § 31.01(2)(E) to hold that conviction could not stand when down payment was voluntarily given to defendant pursuant to a contractual agreement and there was insufficient evidence in record to show that money was obtained by deception); Peterson v. State, 645 S.W.2d 807, 811–12 (Tex. Crim. App. 1983) (same); Wilson v. State, 663 S.W.2d 834, 836–37 (Tex. Crim. App. 1984) (same)).
If no more than intent to deprive and appropriation are shown in a contract claim, nothing illegal has occurred, because “under the terms of the contracts, individuals typically have the right to deprive the owner of property, albeit in return for consideration.” Taylor, 450 S.W.3d at 536 (citing Baker v. State, 986 S.W.2d 271, 274 (Tex. App.—Texarkana 1998, pet. ref’d); Jacobs v. State, 230 S.W.3d 225, 230 (Tex. App.—Houston [14th Dist.] 2006, no pet.) (state must show that rational fact finder could have found that appellant did not intend to fulfill his obligation under agreement and his promise to perform was merely ruse to accomplish theft by deception)). See also McCurdy v. State, 550 S.W.3d 331, 337 (Tex. App.—Houston [14th Dist.] 2018, no pet.).
Furthermore, courts have held that if a contract has been partially or substantially performed, then intent to commit theft through criminal fraud or deception is typically not shown by the evidence. Taylor, 450 S.W.3d at 537 (citing Baker, 986 S.W.2d at 275; Ehrhardt v. State, 334 S.W.3d 849, 855 (Tex. App.—Texarkana 2011, pet. ref’d) (“The amount of work performed can negate any intent to deprive at the time of formation of the contract.”); Phares v. State, 301 S.W.3d 348, 352 (Tex. App.—Beaumont 2009, pet. ref’d) (when accused contractor in theft case performs many of the services contracted for, evidence fails to establish that appropriation of payment from customer at the outset of contract was unlawful in that it was without effective consent because of accused’s deception); Cox v. State, 658 S.W.2d 668, 670–71 (Tex. App.—Dallas 1983, pet. ref’d) (same)).
However, evidence that a contractor has performed partial or even substantial work on a contract does not always negate either the intent to deprive or the deception necessary to establish the unlawfulness of the initial appropriation. A contractor still may be convicted of theft if a rational fact finder could find that he never intended, even at the outset, to perform fully or satisfactorily on the contract and always had the requisite intent or knowledge to deceive his customer, thereby depriving him of the value of at least a substantial portion of the property thus unlawfully appropriated. Taylor, 450 S.W.3d at 537 (citing Merryman v. State, 391 S.W.3d 261, 272 (Tex. App.—San Antonio 2012, pet. ref’d) (evidence was legally sufficient to prove theft by deception when evidence showed series of transactions between defendant and customers with same pattern—promising to complete construction projects in short time-frame, demanding advance payments on tight weekly schedule regardless of job progress, beginning minimal amount of work, and then stopping and walking off job, leaving it unfinished after payment dispute arose and giving no refund of payments made)).
A contractor can also be found guilty of theft if, at some point after forming the contract, he formulates the requisite intent to deprive and appropriates additional property by deception; that is, he induces the customer to make further payment on the contract while he no longer intends to perform or at least knows that he will not. Taylor, 450 S.W.3d at 537 (citing Ehrhardt, 334 S.W.3d at 856 (“The requisite criminal intent can be formed after the formation of a contract. We emphasize, however, the deprivation of property cannot occur prior to the formation of the requisite intent.”); Higginbotham v. State, 356 S.W.3d 584, 588 (Tex. App.—Texarkana 2011, pet. ref’d) (same)). See also Martinez v. State, 527 S.W.3d 310, 321 (Tex. App.—Corpus Christi–Edinburg 2017, pet. ref’d).
All of these decisions involved challenges to the sufficiency of the evidence. None of them dealt with the jury charge, and none of them expressly holds that when a theft arises from a contract, the state is required to prove more than what is set forth within the theft statutes. To say that in a prosecution for theft based on a contract, the state is required to prove that the appropriation arose from false pretext or fraud is nothing more than saying that theft based on a contract is without the owner’s effective consent if it was induced by deception. The typical manner in which deception is involved in a prosecution for theft based on a contract is that set forth in section 31.01(1)(E)—“promising performance that is likely to affect the judgment of another in the transaction and that the actor does not intend to perform or knows will not be performed . . .” That provision makes clear “that failure to perform the promise in issue without other evidence of intent or knowledge is not sufficient proof that the actor did not intend to perform or knew that the promise would not be performed.” Tex. Penal Code § 31.01(1)(E) (emphasis added).
The instruction at CPJC 31.4 incorporates this requirement of section 31.01(1)(E):
Proof of Deceptive Promise to Perform
The defendant’s lack of intent to perform or knowledge that he would not perform a promised act cannot be proved simply by evidence that the defendant failed to perform. Other evidence of intent or knowledge is required.
With regard to the requirement from Taylor and its predecessors that the evidence must show that the accused intended to deprive the owner of the property at the time that the property was taken, this requirement is also found in theft cases in general. “Criminal liability depends upon a person’s culpable mental state at the time that the person performs some criminal act and is the convergence of the bad act and the guilty mind.” Daugherty v. State, 387 S.W.3d 654, 658–59 (Tex. Crim. App. 2013).
Therefore, notwithstanding the holding of Taylor and its predecessors, in cases in which a theft is alleged to have arisen from a contract, there is no need to alter the instruction set forth within CPJC 31.4.
Comment
Pleading Requirements. “The simplicity of the statutory elements of theft hides the complexity of the overall scheme.” Geick v. State, 349 S.W.3d 542, 546 (Tex. Crim. App. 2011).
The Texas theft statute, like many Penal Code provisions, combines in one offense what traditionally have been different crimes. See Tex. Penal Code § 31.02. As a result, the statute is—as Geick noted—relatively complex. Any set of instructions drafted to cover many or all of these crimes will inevitably contain a great deal of law that is inapplicable to a particular situation. Any and perhaps most theft prosecutions invoke only a few portions of the statute. The instructions ideally should give the jury only those portions invoked by the charging instrument and the evidence. This would require a number of different instructions for different types of cases.
Tex. Penal Code § 31.03 covers what are arguably five distinguishable situations. These are—
Pleading requirements to some extent create a continuing need to distinguish at least some of the different types of theft. The specificity with which theft must be pleaded was addressed in Geter v. State, 779 S.W.2d 403 (Tex. Crim. App. 1989). Geter stated:
[I]n a theft prosecution where the State relies upon a defendant’s act or omission to negate consent pursuant to § 31.01(4), the indictment must allege which of the statutory negatives vitiated consent, or the indictment will be subject to a timely motion to quash for lack of notice.
Geter, 779 S.W.2d at 407 (citing previous version of Tex. Penal Code § 31.01).
Geter apparently means that if a charging instrument alleges only that the appropriation was “unlawful” or that it was “without the owner’s effective consent” and the defendant moves to quash it, the state must specify its intent to rely on any theory that involves some act or omission by the accused rendering consent ineffective. As a practical matter, this seems to mean that on demand by the defense, charges in false-pr-etenses-type theft and extortion-type theft, distinguished above, must be pleaded.
Geick held that if the state pleads a theft committed by deception, it must prove that manner of committing theft. Geick, 349 S.W.3d at 547–48; see also Fernandez v. State, 479 S.W.3d 835, 838 (Tex. Crim. App. 2016). Proof of theft committed in another statutory way cannot support a conviction. Geick’s discussion might be read as assuming the state need not plead theft by deception. This was not at issue in the case, however, and neither the briefs nor the opinion even cited Geter. Geter and the need to plead theft by deception or coercion remain effective law.