They Got the “Owner” Wrong on the Indictment

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.rosenthalwadas.com

A question I get from time to time in theft cases is the “owner” of the property as alleged by the prosecution is not really the owner at all.  Sometimes it is someone whose name the accused doesn’t recognize at all

So Who Is the Person They’re Saying is the Owner?

It is often a loss prevention officer of the store or often an office holder if the ‘victim’ of the theft is a company or organization of some type.

Tex.Code.Crim.P. 1.07(35) defines an owner as a person who has title to the property, possession of the property, whether lawful or not, or a greater right to possession of the property than the actor.

When the perpetrator is attaining property in an unauthorized manner — they have no interest in the property therefore any other person even with minimal control of the property can be considered an “owner.”

Does it Really Matter Who the State Lists as the Owner?

Not usually.  Take most shoplifting cases — the “owner” of the property is typically listed as a loss prevention person or in some instances even the store itself.  It often isn’t contested.

But Here’s Where This Issue Can Get Weird:

Let’s say the person listed as the owner of the property in the indictment (or information in a misdemeanor) normally has less interest in the property than the accused.  For instance, the treasurer of an organization is accused of theft and a regular member is listed as the owner (but was perhaps the informant).

In that instance, the prosecution would argue the treasurer was stealing – so therefore they have no interest in the money stolen whereas the regular member has minimal interest — but still more than the stealing treasurer.  But the counter-argument is Treasurer is presumed innocent as a matter of law, so what you get are “chicken & egg” arguments on either side.

Just a legal pit I’ve fallen into several times over the years!

*Jeremy Rosenthal is an Attorney Licensed in Texas.  He is Board Certified in Criminal Law by the Texas Board of Legal Specialization and is a 2019 Super Lawyer as designated by Thomson Reuters.

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