Can I See Your Receipt?

So, Allen walks into Wal-Mart, 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 Wal-Mart “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. He 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 Wal-Mart 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 Wal-Mart receipt being a “commercial instrument,” but apparently it is, so says the Court.

Beware of the Last-Minute Enhancement!

If your client has a prior conviction, it is more likely than not that the State will attempt to “enhance” the current case if it can.  Typically the State will plead the enhancement provision in the indictment, so that your client is on notice of the possibility that his sentence (if he is ultimately convicted) may be enhanced to a higher level crime.  But what if the jury convicts your client of the lesser-included offense, such that the particular enhancement doesn’t logically apply?  Can the State still seek to enhance the LIO conviction?

The Texas Court of Criminal Appeals recent decision in Pelache v. State indicates that, YES, the State can enhance the LIO conviction with other qualifying convictions (even if it didn’t notify your client in the indictment!).  I’m not going to get into the specifics of enhancements in this post.  You can read the case if you want a high level of detail.  I’m here with the highlights.  

In Pelache, the defendant was charged with the 2^nd degree felony offense of robbery.  In the indictment, the State included an enhancement count alleging that he had been previously convicted of an aggravated robbery.  Thus, if appellant was convicted on the current robbery charge, his sentence could be increased to the range of a 1^st degree felony.  Knowing this, the defendant refused a plea deal and proceeded to trial where he was convicted of the LIO of theft from a person (a state-jail felony).  Because he was convicted of the LIO, the enhancement count that the State included in the indictment did not apply.

However, after the trial concluded and less than a week before the sentencing hearing, the State filed a notice with the Court, indicating that it was seeking to enhance the state-jail felony conviction with two other felony convictions.  The defendant objected to the last-minute enhancement notice, arguing that it violated his right to due process.  The State pointed out that the notice of the enhancement need only be given “prior to sentencing” and the trial court allowed the sentenced to be enhanced to a 2^nd degree felony.  The trial judge then sentenced the defendant to 20 years, the upper end of the enhanced range (2 to 20).

On appeal, the 13^th District Court of Appeals (Corpus Christie) held that the defendant’s federal due process rights were violated by the late notice of the State’s intent to enhance the conviction.  That would be a short-lived victory for the defendant.  Last week the CCA, on State’s petition, reversed the decision of the 13^th Court, holding:

[W]hen a defendant has no defense to the enhancement allegation and has not suggested the need for a continuance in order to prepare one, notice given at the beginning of the punishment phase satisfies the federal constitution…We also note that the applicable statutes did inform appellant, before he rejected the State’s plea-bargain offer and before jeopardy attached to the robbery offense, that he was subject to sentence enhancement with any other prior convictions under section 12.35(c)(2)(A) and under section 12.42(a)(3) in the event that he was convicted of the lesser-included, state-jail felony offense of theft from a person.

Judge Meyers dissented without opinion.

Takeaway:  The State can seek enhancements at any time prior to sentencing.  Enhancements may apply to the charges offense or the LIOs.  Advise your clients accordingly.