Comment

Statutory Basis. The Texas Penal Code provides that “it is no defense to prosecution under this chapter that the actor has an interest in the property or service stolen if another person has the right of exclusive possession of the property.” Tex. Penal Code § 31.10. 

It could be implied from this provision that it is a defense to the offense of theft that the actor has an interest in the property or service stolen if another person did not have the right of exclusive possession of the property. See Bryant v. State, 627 S.W.2d 180, 183 (Tex. Crim. App. 1982) (court refused to use section 31.10 against defendant because uncontroverted testimony showed that in contracting business, contractor had right and duty to care and control materials used in construction job; evidence was insufficient to show contractor’s intent to deprive and that other party was owner of materials). In Thomas v. State, the court of criminal appeals referred to a “defense” of “joint title or joint possession,” but the court also noted that such a “defense” might be ineffective precisely because of the language in section 31.10. Thomas v. State, 621 S.W.2d 158, 163–64 (Tex. Crim. App. 1981). An examination of more recent cases suggests that there is no “defense” of “joint title or joint possession.”

Theft is an offense committed against an “owner,” as a defendant who has committed theft must act with the intent to deprive the owner of the property stolen. Tex. Penal Code § 31.03(a). The Texas Penal Code specifically defines the word owner as a person who (1) has title to the property, (2) possession of the property, or (3) a greater right to possession of the property than the actor. Morgan v. State, 501 S.W.3d 84, 91 (Tex. Crim. App. 2016) (citing Tex. Penal Code § 1.07(a)(35)(A)). This third theory of “ownership” clearly applies to those persons with joint interest in property. Morgan, 501 S.W.3d at 91 n.29 (citing Compton v. State, 607 S.W.2d 246, 251 (Tex. Crim. App. 1980); Tex. Penal Code § 31.10). Cf. Alexander v. State, 753 S.W.2d 390, 391–93 (Tex. Crim. App. 1988) (“greater right to possession” theory of “ownership” does not apply only to cases where both owner and defendant had a joint interest in property or in cases involving corporate ownership; the “greater right to possession” theory of “ownership” applies to all offenses and factual settings).

Situations in which a joint ownership defense could be raised would most often be dealt with by the jury deciding whether—as an alleged “owner”—the complaining witness in a theft prosecution had a greater right to possession of the property than did the defendant. See Compton, 607 S.W.2d at 250–51 (by adding greater right to possession theory of ownership to the Penal Code, “it is clear that the Legislature intended to expand the class of individuals to be protected from theft”); Johnson v. State, 747 S.W.2d 451, 456 (Tex. App.—Houston [14th Dist.] 1988, pet. ref’d) (superintendent had greater right to possession of school district property than did defendant, who was assistant superintendent).

More recent decisions have repeatedly emphasized that the legislature has given the term owner an expansive meaning, including anyone having a possessory interest in the property through title, possession, whether lawful or not, or a greater right to possession of the property than the defendant. Deutsch v. State, 566 S.W.3d 332, 341–42 (Tex. App.—Houston [14th Dist.] 2018, no pet.) (citing Garza v. State, 344 S.W.3d 409, 413 (Tex. Crim. App. 2011); Sowders v. State, 693 S.W.2d 448, 451 (Tex. Crim. App. 1985) (all that state had to prove was that alleged owner had greater right to possession than defendant); Campos v. State, 317 S.W.3d 768, 776 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d) (“An owner need not be an exclusive owner or in actual possession of the property.”)).

In Thumann v. State, the defendant claimed that the trial judge erred by refusing his requested jury instruction on the defense of ownership. The requested instruction would have told the jury that if it found the existence of a partnership that included the defendant, then the defendant was an owner of the property that was alleged to have been stolen, which would have negated the consent element of the theft offense. The court of appeals rejected the defendant’s claim, noting that a defendant is not entitled to a jury instruction on a defensive theory that does nothing more than negate an element of the charged offense. Thumann v. State, 62 S.W.3d 248, 252 (Tex. App.—Houston [1st Dist.] 2001, no pet.) (citing Sanders v. State, 707 S.W.2d 78, 80 (Tex. Crim. App. 1986); Weaver v. State, 722 S.W.2d 143, 148 (Tex. App.—Houston [1st Dist.] 1986, no pet.)).

Based on this authority, the Committee concluded that there is no defense of joint possession to an offense under chapter 31 of the Texas Penal Code. Therefore, the jury should not be instructed on such a defense.