Theft of Service

January 23, 2011

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

texasdefensefirm.com

Theft of service is a criminal charge where the alleged victim accuses someone of stealing services instead of actual property.  An example may include where someone hires a contractor to build something that he never intends to pay for.  Also, it is a law used by rental companies to charge people with theft if they don’t return the rented property.  It is controlled by Texas Penal Code 31.04(a) and says in relevant part:

“A person commits theft of service if, with intent to avoid payment for service that he knows is provided only for compensation:

“(1)  he intentionally or knowingly secures performance of the service by deception, threat, or false token;

“(2)  having control over the disposition of services of another to which he is not entitled, he intentionally or knowingly diverts the other’s services to his own benefit or to the benefit of another not entitled to them;

“(3)  having control of personal property under a written rental agreement, he holds the property beyond the expiration of the rental period without the effective consent of the owner of the property, thereby depriving the owner of the property of its use in further rentals; or

“(4)  he intentionally or knowingly secures the performance of the service by agreeing to provide compensation and, after the service is rendered, fails to make payment after receiving notice demanding payment.

The punishment levels for theft of service are the same as for normal theft charges.  This is to say that the level of offense is governed by the dollar amount alleged to have been stolen.

Theft of service is generally much harder to prove than a normal theft charge.  This is because there often isn’t a clear distinction between a bad business deal and fraud.  The key is the “intent” element.  The state must prove beyond all reasonable doubt that the accused planned to steal the services all along.  This can be extremely difficult because often the motive for someone not paying a bill lacks criminal culpability.

The second part of the statute in 31.04 creates presumptions that the court can use to instruct the jury that a person is presumed to have stolen in certain circumstances.  An example of this is where an accused fails to make payment within 10 days of receiving notice from the victim to make payment.  The presumption, though, is rebuttable and the jury does not have to accept it as true.

Theft of service — like theft — is a very serious charge.  Though to criminalize a deal gone bad may seem easy to deal with — you should get a lawyer regardless!

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice. For legal advice about any specific situation you should contact an attorney directly.

 

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Posted by Jeremy Rosenthal, Esq.

Getting Letters Threatening to Sue You for Shoplifting?

September 6, 2010

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

texasdefensefirm.com

Retailers have made it a habit of sending letters threatening lawsuits under the Texas Theft Liability Act to people that were arrested in their store for the suspicion of shoplifting.  It is important to first understand that any civil action or demand is completely and wholly separate from your criminal case.  Their letter is no different than a private party trying to settle a lawsuit out of court.

People often have the mistaken idea that giving in and paying the money has a bearing on the criminal prosecution one way or another.  There is no connection between the cases… in fact, if the letter were to threaten criminal prosecution of any sort in exchange for a civil settlement — then the retailer could be prosecuted themselves for extortion!

The Texas Theft Liability Act is a civil statute which may allow for the companies to sue someone in civil court for money losses (Tex.Civ.Prac.&Rem.C. Chapter 134).  Section 134.003 says, “a person who commits theft is liable for the damages resulting from the theft.”  Section 134.005(a)(1) holds that the damages they could win in court are, “the amount of actual damages found by the trier of fact and, in addition to actual damages awarded by the trier of fact in a sum not to exceed $1,000.”

The problem the retailers usually have with being successful in this claim is that in shoplifting cases — the items alleged to have stolen are virtually always recovered.  Therefore, a retailer cannot honestly say they’ve suffered any damages “resulting from the theft.”  Some will argue that the fact they have to hire loss prevention personnel are damages… but they’re not damages that resulted from THE theft in question.

Finally, Section 134.005(b) states, “Each person who prevails in a suit under this chapter shall be awarded court costs and reasonable and necessary attorney fees.”  This can be interpreted to be a “loser pays” provision.  Meaning the store comes to court and loses — they pay for your lawyer.

If you’ve been arrested for shoplifting and you get a letter from a retailer — at the very least talk with a lawyer about your rights and whether it’s a good idea to pay their demand.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article should be considered legal advice.  For any legal advice about any specific situation you should directly consult an attorney licensed in your state.

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Posted by Jeremy Rosenthal, Esq.

Are There Depositions in a Criminal Case in Texas?

August 5, 2010

By Dallas and Collin County Criminal Defense Lawyer Jeremy F. Rosenthal

(972) 562-7549

texasdefensefirm.com

Knowledge is power.  A good criminal defense lawyer will want to know as much of the State’s case as conceivably possible.  Most of the time that will probably only be through the police reports, an independent investigation, or what witnesses will tell you voluntarily.  Depositions in civil cases are common but depositions in criminal cases in Texas courts are extremely rare.

Depositions serve two main functions; (1) discovery — or learning the facts of the case; and (2) to nail down a witness’ version of events for later impeachment.  Insurance companies and civil lawyers know all to well that not many people give identical versions of events on multiple occasions.  They get as many witness statements from the same witness as possible to exploit inconsistencies or weaknesses.

Texas Code of Criminal Procedure 39.02 allows a defendant to petition the Court for a deposition if the defendant can show “good reason” for needing the deposition.  It is such a rarity that most trial judges probably won’t see the utility in allowing a deposition of a police officer though.  In all likelihood, depositions in criminal cases are reserved for instances where a witness may not be available later for trial.  If anything, the law allows the prosecution just as much or more leeway with deposing a witness or an alleged victim.  Section 39.025 requires that if the alleged victim is over 60 years old or disabled then the deposition must be taken by the prosecution no later than 60 days after the deposition is requested.

All is not lost for the accused though.  There are a few different mechanisms that allow deposition-like examinations of a police officer prior to trial. An example is an Administrative Law Review (“ALR”) in a DWI case to determine whether a driver’s license should be suspended or denied.  Another example is what is known as an “examining trial” in felony cases to determine if the State has probable cause to hold someone in jail accused of a Felony prior to presentment to the Grand Jury.  These are both instances where an officer can be sworn-in under oath with a record that can be used later.  A good criminal defense lawyer knows how to seize these opportunities for discovery.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice.  For legal advice you should consult an attorney directly.

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Posted by Jeremy Rosenthal, Esq.

Recent Changes to Miranda Rights and How they can be Waived

August 3, 2010

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

texasdefensefirm.com

This Summer the U.S. Supreme Court has made a handful of rulings chipping away at Miranda rights.  Most notably, in Berghuis v. Thompkins the Court ruled that an accused must “unambiguously” invoke his right to remain silent to garner the protection of Miranda.

In Berghuis, the Court held that a Michigan man who was given Miranda warnings sat in silence for three hours while police were present peppering him with questions did not “unambiguously” assert his Miranda rights and therefore waived them when he finally cracked three hours later by admitting that he prayed for forgiveness for the shooting.

In Plain Language

To recap, Miranda rights are necessary because our system of justice is adversarial.  At some point, a neutral police investigation can change into a criminal prosecution which is anything but neutral.  The problem for defendants is that the police make this choice — and often won’t tell the accused.  This can give the police an extremely unfair advantage in pressuring statements and confessions out of criminal suspects.  An accused may give a statement or a confession thinking they’ll avoid criminal prosecution by coming clean — or may tell the police what he thinks they want to hear thinking it will persuade the police to drop the “investigation” when the truth of the situation is that the police are planning their court-room strategy.  In any event, an accused has a 5th Amendment right to remain silent and it’s conceivably triggered when the proceedings become adversarial (in Texas when the person is in custody.)

Everyday Practice

Unfortunately, many police officers are either oblivious to your rights or see your rights as merely an obstacle they can hurdle, slither-around, or something to which the can just give lip-service.  The facts of Berghuis are not uncommon with confessions in criminal cases.  Officers routinely play all sorts of different games when it is clear the suspect isn’t willing to cooperate.  Sometimes the officers can pressure the accused like a used-car salesman trying to make a sale or sometimes the officers can use law-enforcement techniques such as deception.  In any event, merely because someone remains silent or asks for a lawyer doesn’t automatically mean the questioning is necessarily over — even though that is what should happen.

The Rationale Behind Berghuis

Justice Kennedy writing for the 5-4 majority in Berghuis wrote, “If Thompkins wanted to remain silent, he could have said nothing in response to Helgert’s questions, or he could have unambiguously invoked his Miranda rights and ended the interrogation.  The fact that Thompkins made a statement about three hours after receiving a Miranda warning does not overcome the fact that he engaged in a course of conduct indicating waiver.”

I added the italics in the quote from Justice Kennedy above for the reason that it exposes, in my opinion, his lack of understanding of the every-day practice of criminal law and police tactics.  First of all, very rarely does an accused truly understand Miranda with the same depths as even the police-officers much less know how to “unambiguously” know how to assert them.  Often an accused may ask officers follow-up questions about Miranda or give a luke-warm or half-hearted response that they don’t want to answer questions.

Secondly… Justice Kennedy dangerously assumes the police would have ended the interrogation after the “unambiguous” assertion.

Finally, it allows the police to be the judges of what does or does not constitute an “unambiguous” assertion of Miranda rights by an accused.  As a guess, not many police officers that consistently undermine Miranda any-way will give the accused the benefit of the doubt if they just “sort of” invoke Miranda and the accused could be drilled until the police get what they’re after.

Is Miranda Dead?

No.  As with all Supreme Court rulings, only time will tell the true impact of Berghuis.  But make no mistake — police may interpret this ruling as a green-light to ignore people’s attempts at invoking their right to counsel.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice.  For legal advice for any specific situation you should directly consult an attorney.

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Posted by Jeremy Rosenthal, Esq.