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Chapter 31

Charges

Chapter 31

Theft

31.7  Instruction—Aggregated Theft

LAW SPECIFIC TO THIS CASE

The state accuses the defendant of having committed the offense of theft.

Relevant Statutes

A person commits the offense of theft if the person commits multiple thefts pursuant to one scheme or continuing course of conduct, whether from the same or several sources, and the aggregated value of the property appropriated in those thefts exceeds $[amount].

A person commits the offense of theft if the person unlawfully appropriates property with intent to deprive the owner of the property.

Definitions

Appropriate Property

A person appropriates property if the person—

  1. acquires the property; or
  2. otherwise exercises control over the property; or
  3. brings about a transfer or purported transfer of title or any other nonpossessory interest in the property, whether that transfer or purported transfer is to the defendant or another.

Owner

“Owner” means a person who has—

  1. title to the property; or
  2. possession of the property, whether lawful or not; or
  3. a greater right to possession of the property than the defendant.

Possession

“Possession” means actual care, custody, control, or management.

Intent to Deprive of Property

A person has the intent to deprive another of property if the person has the conscious objective or desire to—

  1. withhold the property from the owner permanently; or
  2. withhold the property from the owner for so extended a period of time that a major portion of the value or enjoyment of the property is lost to the owner; or
  3. restore the property only on payment of reward or other compensation; or
  4. dispose of the property in a manner that makes recovery of the property by the owner unlikely.

Property

“Property” means—

  1. [tangible/intangible] personal property [including anything severed from land]; or
  2. real property; or
  3. a document, including money, that represents or embodies anything of value.

Unlawful Appropriation

Appropriation of property is unlawful if—

  1. it is without the consent of [the owner/a person legally authorized to act for the owner]; or
  2. it is with such consent but that consent is ineffective.

Consent Rendered Ineffective by Deception

Consent to the appropriation of property is rendered ineffective if the defendant engaged in deception and by this deception induced that consent. The defendant engaged in deception if—

[Include only those means of deception supported by the evidence.]

  1. the defendant created or confirmed by words or conduct a false impression of law or fact that was likely to affect the judgment of another in the transaction and the defendant did not believe this impression of law or fact to be true; or
  2. the defendant failed to correct a false impression of law or fact that was likely to affect the judgment of another in the transaction, the defendant previously created or confirmed this false impression, and the defendant did not believe this impression of law or fact to be true; or
  3. the defendant prevented another from acquiring information likely to affect that person’s judgment in the transaction; or
  4. the defendant promised performance that was likely to affect the judgment of another in the transaction and the defendant either did not intend to perform or knew that he would not perform; or
  5. the defendant sold or otherwise transferred or encumbered property without disclosing a lien, security interest, adverse claim, or other legal impediment to the enjoyment of the property, whether the lien, security interest, claim, or impediment was or was not valid or was or was not a matter of official record.

Intent That Promise Not Be Performed

A person does not intend to perform a promise if the person does not have the conscious objective or desire to perform the promise.

Knowledge That Promise Would Not Be Performed

A person knows he will not perform a promise if he is reasonably certain that he will not perform the promise.

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.

Consent Rendered Ineffective by Coercion

Consent to the appropriation of property is rendered ineffective if the defendant engaged in coercion and by this coercion induced that consent. The defendant engaged in coercion if the defendant threatened—

[Include only those types of coercion supported by the evidence.]

  1. to commit an offense; or
  2. to inflict bodily injury in the future on the person threatened or another; or
  3. to accuse a person of any offense; or
  4. to expose a person to hatred, contempt, or ridicule; or
  5. to harm the credit or business repute of any person; or
  6. to take or withhold action as a public servant, or to cause a public servant to take or withhold action.

A threat can be communicated in any manner.

Value of Property

The value of property is the fair market value at the time of the appropriation.

Application of Law to Facts

You must determine whether the state has proved, beyond a reasonable doubt, five elements. The elements are that—

  1. the defendant, in [county] County, Texas, on or about [date] through [date], appropriated property as follows:

    Date of Appropriation Property Appropriated Owner of Property Value of Property
    [date] [property description] [name] $[amount]
    [date] [property description] [name] $[amount]
    [Repeat as needed.]
  2. the appropriations were pursuant to one scheme or continuing course of conduct; and
  3. the appropriations were unlawful; and
  4. the defendant intended to deprive the [owner/owners] of the property; and
  5. the value of the property appropriated exceeded $[amount].

You must all agree on elements 1, 2, 3, 4, and 5 listed above, but you do not have to agree on the specific appropriations listed in element 1 above as long as you all agree that the state has proved enough of the listed appropriations that the aggregated value of the property proved to have been appropriated meets the amount required by element 5.

If you all agree the state has failed to prove, beyond a reasonable doubt, one or more of elements 1, 2, 3, 4, and 5 listed above, you must find the defendant “not guilty.”

If you all agree the state has proved, beyond a reasonable doubt, each of the five elements listed above, you must find the defendant “guilty.”

[Insert any other instructions raised by the evidence. Then continue with the verdict form found in CPJC 2.1, the general charge.]

Comment

Aggregated theft is prohibited by and defined in Tex. Penal Code § 31.09. The definitions of culpable mental states are derived from Tex. Penal Code § 6.03. The definition of “appropriate” is from Tex. Penal Code § 31.01(4). The definition of “deprive” is from Tex. Penal Code § 31.01(2). The definition of “property” is from Tex. Penal Code § 31.01(5). The definition of “deception” is from Tex. Penal Code § 31.01(1). The definition of “value of property” is from Tex. Penal Code § 31.08(a)(1). The definition of “owner” is from Tex. Penal Code § 1.07(a)(35). The definition of “possession” is from Tex. Penal Code § 1.07(a)(39). The definition of “effective consent” is from Tex. Penal Code § 31.01(3). The definition of “coercion” is from Tex. Penal Code § 1.07(a)(9).

Separate Offense. Tex. Penal Code § 31.09 creates an offense separate from the individual thefts that are aggregated to constitute this offense. See Long v. State, 525 S.W.3d 351, 360 (Tex. App.—Houston [14th Dist.] 2017, pet. ref’d); Martinez v. State, 527 S.W.3d 310, 321 (Tex. App.—Corpus Christi–Edinburg 2017, pet. ref’d). In a prosecution under section 31.09, the definition of theft as set out in Tex. Penal Code § 31.03 is obviously essential. Nevertheless, the instructions should be clear that the charged offense is aggregated theft as defined in section 31.09.

Instructions should be in terms of aggregated theft under section 31.09 only if the charging instrument alleges that the individual thefts were committed pursuant to one scheme or continuing course of conduct. Thomason v. State, 892 S.W.2d 8, 12 (Tex. Crim. App. 1994).

When the state has explicitly alleged several thefts as constituting the charged aggregated theft, it need not prove all those thefts. This is the case even if the allegations do not detail specific values of the items of property that are the subjects of each individual theft. The state must, however, prove thefts of property of sufficient values to meet the amount specified in the charging instrument. Lehman v. State, 792 S.W.2d 82 (Tex. Crim. App. 1990) (overruling prior cases).

After Lehman, the court of criminal appeals made clear that the individual thefts aggregated to form the charged aggregated theft need not be alleged in the charging instrument. The defendant is nevertheless entitled to notice regarding those individual thefts. State v. Moff, 154 S.W.3d 599 (Tex. Crim. App. 2004); Kellar v. State, 108 S.W.3d 311 (Tex. Crim. App. 2003). This somewhat complicates the task of formulating the jury instructions, because it may be necessary or at least appropriate to incorporate into those instructions specific claims by the state—that is, specific claims concerning the individual aggregated thefts—that are not reflected in the charging instrument. The application of law to facts unit of the instructions, in other words, might not be sufficient if it merely tracks the charging instrument.

The Committee’s instructions provide for the specific description of the individual thefts by date, property involved, owner, and value. In some situations, other approaches may be preferable. For example, all the claimed thefts may involve property of the same sort and owned by the same person, in which case the better approach might be not to specify either the property or the owner.

Of course, only those individual thefts supported by the evidence should be listed and thus submitted. A claimed individual theft should be submitted, in other words, only if the trial judge determines that the record contains evidence from which a reasonable jury could conclude that all elements of theft are proved beyond a reasonable doubt regarding that claimed theft.

Limitations and Venue. In some unusual cases, accommodation will have to be made in the instructions for specific aspects of limitations and venue law as that law applies to aggregated theft. Venue lies in any county in which any of the thefts to be aggregated was committed:

The general venue provision of Article 13.18 provides that if “venue is not specifically stated, the proper county for the prosecution of offenses is that in which the offense was committed.” When several thefts are aggregated into a single offense under Section 31.09, the proper county for prosecution under the “plain” language of Article 13.18 is any county in which the individual thefts or any element thereof occurred.

State v. Weaver, 982 S.W.2d 892, 893 (Tex. Crim. App. 1998).

Regarding limitations, the court of criminal appeals has explained:

Article 12.01(4)(A) of the Texas Code of Criminal Procedure provides a five-year limitations period for theft (and aggregated theft). And the limitations period for aggregated theft begins to run on the date of the last theft, i.e., the end date of the “scheme or continuing course of conduct” in question. Graves v. State, 795 S.W.2d 185, 186 (Tex. Crim. App. 1990).

Tita v. State, 267 S.W.3d 33, 35 n.1 (Tex. Crim. App. 2008). See also Villarreal v. State, 504 S.W.3d 494, 513 (Tex. App.—Corpus Christi–Edinburg 2016, pet. ref’d); Anderson v. State, 322 S.W.3d 401, 408 (Tex. App.—Houston [14th Dist.] 2010, pet. ref’d).

Defining “Scheme or Continuing Course of Conduct.” One case has held that jury instructions should not contain definitions of the critical terms of section 31.09: “pursuant to one scheme or continuing course of conduct.” Sendejo v. State, 676 S.W.2d 454, 456 (Tex. App.—Fort Worth 1984, no pet.) (“[N]either ‘scheme’ nor ‘pursuant to a continuing course of conduct’ need be defined by the trial court. These are terms of common understanding.”). See Battles v. State, 45 S.W.3d 694, 703 (Tex. App.—Tyler 2001, no pet.) (following Sendejo). The Committee concluded that Sendejo was correct. Further, any definition would likely be a prohibited comment on the evidence.

Unanimity. In Kent v. State, the court of criminal appeals reaffirmed that each individual theft is an element of the aggregated theft described by section 31.09. The court also noted that when a defendant is charged with theft in an aggregated amount pursuant to one scheme or continuing course of conduct, the state does not have to prove each individual appropriation. The evidence will be sufficient if the state proves that the defendant illegally appropriated enough property to meet the aggregated value alleged. Kent v. State, 483 S.W.3d 557, 561 (Tex. Crim. App. 2016).

The court of criminal appeals consequently held that unanimity on individual thefts is not required:

[U]nanimity 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.

Kent, 483 S.W.3d at 562. As long as the jury unanimously agrees that the proven thefts that comprise the elements of aggregated theft exceed the threshold value amount and the thefts are proven beyond a reasonable doubt, regardless of which individual transactions each juror believes to have occurred, the aggregated theft is proved. Kent, 483 S.W.3d at 562; Long, 525 S.W.3d at 360.

Therefore, the instruction does not require jury unanimity on the state’s proof that each theft counted towards whether the required total amount has been established.

Circumstantial Evidence. In Long v. State, the court of appeals approved of charging jurors in accordance with article 38.39 of the Texas Code of Criminal Procedure, which provides:

In trials involving an allegation of a continuing scheme of fraud or alleged to have been committed against a large class of victims in an aggregate amount or value, it need not be proved by direct evidence that each alleged victim did not consent or did not effectively consent to the transaction in question. It shall be sufficient if the lack of consent or effective consent to a particular transaction or transactions is proven by either direct or circumstantial evidence.

Long, 525 S.W.3d at 364–65 (citing Tex. Code Crim. Proc. art. 38.39). This language, directly from the wording of the statute, was what the trial court instructed the jurors. The court of appeals noted that this instruction did not eliminate or otherwise decrease the state’s burden to prove lack of consent or effective consent, whether by direct or circumstantial evidence, as to “each alleged victim” for each particular transaction in order to reach the aggregate amount at issue. The court also held that the jury instruction did not constitute an improper comment on the weight of the evidence. Long, 525 S.W.3d at 365.

The Committee was concerned about the necessity of giving such an instruction for several reasons. First, the statute does not require a jury instruction or even suggest that such a jury instruction is necessary. Second, the jury instruction approved in Long, while a correct statement of the law, may not be a sufficient guide to jurors since, for example, the instruction does not tell the jurors what constitutes “circumstantial evidence.” Prevailing case law has not authorized an explanation as to what constitutes circumstantial evidence. Cf. Hankins v. State, 646 S.W.2d 191, 197–99 (Tex. Crim. App. 1983) (opinion on rehearing) (holding that circumstantial evidence charge is no longer necessary). The court of criminal appeals has explained the difference between direct evidence and circumstantial evidence as follows: “Direct evidence directly demonstrates the ultimate fact to be proven, whereas circumstantial evidence is direct proof of a secondary fact which, by logical inference, demonstrates the ultimate fact to be proven.” Taylor v. State, 684 S.W.2d 682, 684 (Tex. Crim. App. 1984) (en banc).

Third, at least since 1974, it has been the law that a theft victim’s lack of consent can be proven by circumstantial evidence—whether in an aggregated theft case or otherwise. As noted by the court of appeals in Long, the law at one time required lack of consent to be proven by direct testimonial evidence of the victim unless that evidence was not available. Since 1974, the state has been allowed to prove an owner’s lack of consent by either direct or circumstantial evidence. Long, 525 S.W.3d at 364 (citing Hathorn v. State, 848 S.W.2d 101, 107 (Tex. Crim. App. 1992); Taylor v. State, 508 S.W.2d 393, 394–97 (Tex. Crim. App. 1974)). These holdings were not issued in connection with jury charge challenges, but had always been made in connection with a review of the sufficiency of the evidence. See Briscoe v. State, 542 S.W.3d 100, 107 (Tex. App.—Texarkana 2018, pet. ref’d); Alex v. State, 483 S.W.3d 226, 229 (Tex. App.—Texarkana 2016, pet. ref’d).

Consequently, the Committee did not believe that it was necessary to instruct the jury on the availability of circumstantial evidence to prove a victim’s lack of consent. Nevertheless, if the court and the parties wished to give such an instruction, the following language could be appropriate:

The state need not prove by direct evidence that each alleged victim in this case did not consent or did not effectively consent to the transaction in question. The state can prove the lack of consent or effective consent to a particular transaction or transactions by circumstantial evidence, as well as direct evidence. Direct evidence directly demonstrates the ultimate fact to be proven, whereas circumstantial evidence is direct proof of a secondary fact which, by logical inference, demonstrates the ultimate fact to be proven.