What's in a Name?

Last year I wrote about Byrd v. State, a case out of the 4th District Court of Appeals (San Antonio). In Byrd, the state charged appellant with theft of certain property from owner “Mike Morales.” At trial, however, the State did not prove, in any way whatsoever, that the property belonged to Mike Morales. The overwhelming proof showed that the property, in fact, belonged to Wal-Mart. On appeal, appellant argued the the evidence was insufficient because the State did not prove that the property belonged to Mike Morales. The 4th Court disagreed, holding that the name of the owner was not required, as it was simply a variance of proof.

This week, the Texas Court of Criminal Appeals reversed the decision of the Court of Appeals. In a unanimous opinion written by Judge Cochran, the CCA held that:

Although the name of the owner is not a substantive element of theft, the State is required to prove, beyond a reasonable doubt, that the person (or entity) alleged in the indictment is the owner is the same person (or entity) – regardless of the name – as shown by the evidence.

The CCA explained that a conviction would still stand if an indictment alleged an incorrect name, such as Buddy Smith, when the proof at trial revealed that the victim’s name was, in fact, John Smith (Buddy was simply a nickname). In that instance, there would be sufficient evidence showing that the person alleged in the indictment is the same person from whom the property was stolen.

In this case:

Not only did the State fail to offer any evidence that "Mike Morales" - the person alleged in the theft indictment - has any ownership interest in or relationship to the property appellant shoplifted, but the jury, without any apparent concern the missing "Mile Morales," convicted her nevertheless.  According to the State, the "only explanation for this exceptional circumstance seems to be that it was so clear to all the parties involved - and possibly to the jury as well - that the real victim (both alleged and proven) was Wal-Mart that the discrepancy seemed not to matter."  An alternate, less generous explanation, is that everyone was asleep at the wheel.

As a rule for future theft cases, the majority opinion states:

The parties, the court, and the jury must know the identity of the owner [of the stolen property] regardless of how the State names him.

It is worth noting that the CCA did not foreclose the option of the State reindicting the appellant for theft from “Wal-Mart,” as jeopardy has not attached to that specific offense. But as far as theft from Mike Morales goes, the appellant stands acquitted.

One Need Not Be Present to Be Robbed

The Texas Court of Criminal Appeals released an opinion this month in a case where a man entered a convenience store brandishing a rifle. When the man looked around, however, he noticed that there wasn’t anyone in the store. The store clerk was in the back office watching the man on the security camera. When the clerk saw the man enter the store, he locked the office and called 911. Unable to open the cash register, the "robber" stole the clerk’s wallet and some money that was behind the counter. The "robber" never saw anyone inside the store.  Then he left.

The man was later charged with and convicted of Aggravated Robbery under Texas Penal Code Section 29.02, which provides in relevant part:

a person commits [robbery] if, in the course committing theft…and with intent to obtain or maintain control of the property, he intentionally or knowingly threatens or places another in fear of imminent bodily injury or harm.

Appellant argued that “because there was no evidence of interaction between him and [the victim], the evidence was legally insufficient to support a robbery conviction, and the conviction should be reformed to that of theft. Accordingly, the CCA was faced with a question of first impression in Texas: Does the Offense of Aggravated Robbery Require Interaction Between the Accused and the Purported Victim?

Appellant contested that he could not intentionally or knowingly place a person in fear, if that person was unknown to him. A unanimous CCA disagreed, explaining that

'knowingly' does not refer to the defendant’s knowledge of the actual results of his actions, but knowledge of what results his actions are reasonably certain to cause. Using this definition, robbery-by-placing-in-fear does not require that a defendant know that he actually places someone in fear, or know whom he actually places in fear. Rather, it requires that the defendant is aware that his conduct is reasonably certain to place someone in fear, and that someone is actually placed in fear.

In this case, because Appellant brandished the rifle in the convenience store, the CCA held that his culpable mental state was not negated by the fact that the victim did not happen to be in his presence. In sum, the CCA answered the question presented in the negative.

The offense of Aggravated Robbery does NOT require interaction between the accused and the purported victim.

Read the full CCA opinion in Howard v. State HERE.

Must the State Prove the Identity of the Victim in a Theft Case?

The 4th District Court of Appeal (San Antonio) delivered a sharply divided en banc opinion yesterday in Byrd v. State.  The issue in the case was whether, in a theft case, that State is required to prove the person named as owner in the charging instrument was the actual owner of the property?  In a 4-3 decision the majority held that because the owner’s name is not a statutory element of the offense of theft, the State need not prove the name of the property owner as charged.

In her dissent, Justice Simmons did not mince words:

Although this misdemeanor case seems small, the ramification of the majority opinion is large. In this case the jury was charged to find the defendant guilty if the State proved, beyond a reasonable doubt, that Lavonne Byrd:

“with the intent to deprive the owner, Mike Morales, of property, . . . did unlawfully, without the effective consent of the owner, Mike Morales, appropriate said property by acquiring and otherwise exercising control over said property . . .

Without any evidence in the record identifying Mike Morales or linking Mike Morales to the property at issue, the jury returned a guilty verdict.  This is an astonishing result. T he consequence of the majority opinion is to permit the conviction of a defendant for theft without regard to the identity of the owner.  I must respectfully dissent because I believe the case reflects a failure of proof rather than a variance. But even if the case is analyzed under variance parameters, the variance is material.  The majority opinion reaches its conclusion that the variance is immaterial by misinterpreting the Court of Criminal Appeals’ opinion in Bailey v. State, 87 S.W.3d 122 (Tex. Crim. App. 2002).  In no recorded case has a court ever held a defendant guilty of theft absent proof of ownership as alleged and charged.  There are plenty of cases to the contrary pointing out that failure to establish ownership in the person or entity alleged as owner results in a failure of proof.  But whether the error in this case is characterized as a material variance or a failure of proof, the case should be reversed.

Lawyers Convicted of Theft by Deception in Dramatic Sex Scandal

Many times while reading appellate case law, I find myself searching for that legal wrinkle that makes the case worth reading (or blawging about).  Sometimes, the significance of the appellate decision is more obvious.  Other times (like today), I read a case, the facts of which are just so darn compelling, I don't even pay attention to the legal arguments.  Here's a good one for you:

Wife finds out that husband is cheating on her and that he has been perusing an adult internet site.  Eager to "catch him in the act" she signs up for an online profile and describes herself as a sex-starved housewife, looking for the kind of pleasure that only a strong man can provide.  He never takes the bait, but several other gentlemen (all very prominent, well-to-do, gentlemen) cash-in on her offer (all on separate occasions and without knowledge of the others).  Husband gets wind of her indiscretions and confronts her at an Austin hotel on the very eve of one such encounter.  Rather than fight, or pursue a divorce, they hatch a plan.  (It's somewhat possible that this plan was hatched before she met the 4 gentlemen, but it isn't clear from the record).

Husband, a Texas lawyer, drafts Rule 202 petitions under the Texas Rules of Civil Procedure seeking testimony and evidence relevant to potential claims (bogus claims) against the 4 gentlemen and his wife.  Wife, also an attorney (not sure if she is licensed in TX), helps him by editing his drafts.  She then contacts each of the men, tells them that her husband found out about the affair and would like to speak with them.  Each ultimately agrees to meet with the husband and at the meeting he serves the Rule 202 petitions, along with a not-so-subtle letter "suggesting" that they pay him a large sum of money (checks payable to him or a sham charity).  Husband collects a total of $115,000 from the 4 gentlemen in exchange for letters of non-disclosure.  Husband and Wife magically reconcile their rocky relationship and use the money as a down-payment on a new $625,000 home.

It isn't clear how this ordeal was ultimately discovered, but Husband and Wife are eventually charged with Theft by Deception for the shakedowns.  Not sure of the final outcome of Husband's trial (please fill me in if you know), but Wife is convicted of 5 counts and awarded ten years' confinement for each count, to run concurrently (suspended and placed on 10 years community supervision).

Wow!  That is the stuff of soap operas!  If you want to find out more about this story and see if you know the attorneys involved (forgot to mention, one of the gentlemen callers was also a Texas attorney), see the opinion of the 4th District Court of Appeals (San Antonio) in Roberts v. State, 17 March 2010, HERE.