Theft Archives | Fort Worth Criminal Defense Attorneys and Personal Injury Lawyers

Dec 05

Top 5 Reasons for Arrests During the Christmas Holiday Season

By Brandon Barnett | Criminal Defense

Christmas Holiday Arrests Texas When you think about the Christmas season, you probably think about family time, presents, good food, and celebration. We think about those things too, but as criminal defense attorneys, we also think about the reasons that some of our clients get arrested during the holiday season. For this article, we took a look at the last 6 years of holiday season arrests (for clients that we represented) and compiled an (anecdotal) list of the top 5 reasons that folks get arrested during the Christmas/New Year’s season. Our goal is that this list will serve as a warning, so that your holiday season can be filled with the good stuff, rather than jail, bail, and calls to our office. Here goes:

5. Shoplifting

Many retailers slash their prices and offer steep discounts in the weeks leading up to Christmas and even bigger discounts after Christmas, but we have yet to see any retailer offer the “five finger discount” for their merchandise. Regardless, we see plenty of shoplifting cases during the Christmas season, making it our #5 reasons that people get arrested during Christmas. Depending on the regular price value of the item (not the discounted price), shoplifting theft charges can range from misdemeanors to felonies. Learn more about Theft law in Texas here.

4. Package Theft

In a similar vein to shoplifting, our #4 reason for holiday arrests is package theft. Many shoppers choose the convenience of online shopping and have their Christmas purchases delivered right to their front door. Some people see this as an easy target, following behind UPS or FedEx trucks to steal those would-be Christmas gifts from the front porch. However, with the increase in doorbell cameras, it is getting easier to catch the porch pirates in the act. Further, some law enforcement agencies have begun using dummy packages to bait thieves into getting caught. Package theft can range from a misdemeanor to a felony depending on what unknown treasure lay inside the brown box.

3. Airport Contraband (Guns and Drugs)

Going to visit grandma can require air travel for many families. This means that thousands more people than usual flood through DFW Airport between Thanksgiving and New Year’s. It matters not from where these travelers hail. From Maryland to Oregon to France, if a person is arrested at DFW Airport, their case will be filed in Tarrant County, Texas and they will have to travel back to DFW to attend court. During the holidays, we see a surge in airport arrests when people bring items into the airport that are not allowed. These mostly consist of:

- Airport Gun Charges; and
- Possession of a Controlled Substance (CBD oil, THC oil, marijuana, etc.).

Even if the state from which a traveler is coming has legalized marijuana and the state to which they are traveling has legalized marijuana, if they are caught possessing marijuana in the airport, they will be arrested and charged. The combination of airport gun arrests and airport drug arrests make these types of cases our #3 reason for holiday arrests.

2. Assault Family Violence

In the movie Christmas Vacation, Clark Griswold showed an enormous amount of restraint when his extended family pushed him to the limit (especially Cousin Eddie), but not everyone is blessed with such a cool head. Christmas time brings added stressors into the family environment that can sometimes lead to verbal or physical altercations between family members, so much so, that these arrests rank at #2 in our book. Depending on the nature of the assault, a domestic violence arrest can be charged as a misdemeanor or a felony. Learn more about Family Violence under Texas law.

1. Driving While Intoxicated

With all of the Christmas and New Year’s parties and the increase in No Refusal Weekends, it is not hard to guess that DWI arrests are #1 on our list. Driving While Intoxicated in Texas can range from a misdemeanor (if it is a first or second offense) to a felony (if there is a child in the car or if the person arrested has been convicted of DWI twice in the past). Our advice is to plan ahead and do not even take your car to a Christmas party when you plan to drink. Catch a ride from a friend or take an Uber or Lyft. That would be a lot cheaper than hiring an attorney and a lot less hassle too. Learn more about Texas DWI law here.

We Hope You Never Need Us, But We’re Here if Your Do.

We wish you a very merry Christmas and a happy New Year. As always, we hope you never need us to represent you or one of your loved ones for a criminal offense. This is even more true during the Christmas season. Hopefully this list will help you avoid trouble that looms during the holiday season. If you do happen to need us, we are only a phone call away at (817) 993-9249.

Dec 03

Organized Retail Theft: Does it Take Two to Tango? | Lang v. State (2018)

By Madeline Pricer Jones | Theft

Organized Retail Theft Lang The Court of Criminal Appeals recently handed down an opinion on the applicability of Texas’ organized retail theft statute. The issue facing the court was whether the statute defining the offense of organized retail theft permits a conviction for ordinary shoplifting by a single actor rather than requiring a group or collaborative effort.

CCA Opinion: Lang v. State (Tex. Crim. App. 2018)

The Facts—Defendant Stole Merchandise from HEB and Was Convicted Under Texas’ Organized Retail Theft Statue.

Defendant was shopping at HEB when an employee noticed her placing merchandise into reusable shopping bags. Some of the bags were inside of Defendant’s cart and one was tied to the side of her cart. The employee thought this behavior was unusual, so she kept an eye on Defendant. When Defendant went to check out, the employee observed her place all but one of the reusable bags onto the conveyor belt—leaving the bag that was tied to the side of the cart untouched. After paying, Defendant began to leave the store. Defendant was subsequently stopped by employees and questioned about the bag that was tied to her cart, which was full of unpaid merchandise. The unpaid items totaled $565.59, whereas the paid-for merchandise totaled only $262.17. At that time, the store called the police and Defendant was eventually arrested, charged, and convicted of organized retail theft.

Defendant appealed her conviction arguing that the evidence was legally insufficient to support her conviction. More specifically, Defendant claimed that the offense of “organized retail theft” could not be committed by a single actor because the statute requires group action or collaborative effort. The court of appeals rejected this argument for the reasons listed below.

Court of Appeals Affirms the Trial Court’s Decision—Claiming that Organized Retail Theft Does Not Require Multiple Actors.

In making their decision the court of appeals looked to the statute’s language, which provides that a person commits an offense if she “intentionally conducts, promotes, or facilitates an activity in which the person receives, possesses, conceals, stores, barters, sells, or disposes of: (1) stolen retail merchandise; or (2) merchandise explicitly represented to the person as being stolen retail merchandise.” The court contended that nowhere in the statutory language was there explicit terms requiring group behavior. As a result, the court held that the language was not ambiguous and used plain meaning to interpret the statue.

Using dictionary definitions, the court concluded that the statutory terms “conducts, promotes, or facilitates,” did not require multiple actors. The court also explained that reading those statutory terms in context, established that what is conducted, promoted, or facilitated is an “activity,” not another person. Thus, “leaving the store after stealing the retail merchandise” was sufficient activity to meet the elements required by the statute. Accordingly, the court of appeals upheld the defendant’s conviction and another appeal ensued.

Court of Criminal Appeals Reverses and Remands Case—Determining that Organized Retail Theft Requires Multiple Actors.

On appeal Defendant maintained that the offense of organized retail theft could not be committed by a single actor. She did not dispute the facts, rather, as a matter of law, she disputed whether the facts were adequate to establish the offense of organized retail theft. To evaluate this argument the Court of Criminal Appeals analyzed the statute’s language and compared it with the court of appeals’ analysis and Defendant’s argument. In doing so, the Court determined that the language could reasonably be interpreted in more than one way, and therefore, extra-textual sources, such as legislative history must be considered.

To make this determination the Court looked at the statute’s use of the past participle of steal (e.g., “stolen”). The court explained that use of “stolen” indicated that the “activity” covered by the statute takes place with respect to items that have already been stolen. Thus, the question then becomes “what type of ‘activity’ suffices to satisfy the statute’s requirements.” “Is it enough, as the court of appeals suggested, for a person to shoplift items of retail merchandise and then attempt to leave the store with the stolen items, thereby conducting an activity (leaving the store) in which the person possesses the retail merchandise she has just stolen?” Or, as Defendant suggested, does the statute require proof of some activity distinct from the type of conduct associated with shoplifting? In other words, “does the statute require proof of something more than the mere continued possession of the stolen retail merchandise during an attempt to leave the store?” Not immediately knowing the answer to these two reasonable interpretations, the Court decided it had to look to legislative history to help find the right answer.

After examining the statute’s legislative history, the Court found that the organized retail theft statute was intended to reach conduct distinct from that of ordinary shoplifting. To support its decision, the Court cited the statute’s bill analysis and a senate research report. Both pieces of legislative history similarly stated that organized retail theft is a highly organized criminal activity, dependent on multiple actors, and organized by a central figure. Further, the sources stated that organized retail theft is distinct from ordinary shoplifting in that it involves professional theft rings that move quickly across state lines in order to steal and move large amounts of merchandise—requirements that are clearly not present during ordinary shoplifting.

As such, when considering the legislative history in conjunction with the ambiguous statutory language, the Court concluded that it supports the notion that the organized retail theft statute was not intended to apply to the conduct of an ordinary shoplifter acting alone but rather to multiple actors involved in highly organized theft rings. Thus, the Court reversed and remanded the case.

Keller, P.J., filed a concurring opinion.

Yeary, J., filed a dissenting opinion.

Nov 30

stealing presents Christmas theft package

Don’t Be a Grinch: Punishments for Christmas Package Theft in Texas

By Luke Williams | Theft

stealing presents Christmas theft package Throughout the year, package thefts occur on a fairly regular basis. But, as Christmas draws near and package delivery increases, so too do the thefts. While packages left on doorsteps and out in the open may seem to be easy targets for thieves, the consequences of getting caught are rarely considered. Would-be porch pirates should certainly think through their intended capers as many houses are equipped with doorbell cameras these days that capture clear video of any movement at or near the doorway.

What Can Happen to Individuals Who Steal Packages?

Grinchy thieves can face stiff penalties for stealing packages. In Texas, theft is classified by the amount of property that is stolen. Depending on the amount of the items stolen, a person caught stealing packages can face anywhere from a Class C misdemeanor punishable by a fine of up to $500 up to a First Degree Felony facing 99 years or life in the penitentiary. The latter would require someone stealing an item worth more than $300,000. While this may be unlikely, a thief wouldn’t know what he or she is stealing until he opens up that box. In addition, if committed within the same criminal episode, the aggregate amount of the items stolen could increase the punishment ranges for the offense as well.

What Happens When Multiple Individuals Act as a Team to Steal Packages?

The consequences of people acting in a team to steal packages can increase the acts to the offense of Engaging in Organized Criminal Activity. In Texas, a person commits the offense of Engaging in Organized Criminal Activity if with the intent to establish, maintain, or participate in a combination or in the profits of a combination or as a member of a criminal street gang, the person commits or conspires to commit theft. Tex. Penal Code 71.02. This increases the punishment one category higher than the offense originally committed. Most often, these types of cases are filed as 3rd degree felonies which carry a range of punishment of between 2-10 years in prison and up to a $10,000 fine.

Punishments for package theft can be harsh. While a person may be stealing property worth only a few dollars, they may also be stealing property worth thousands. The potential punishment a person faces for package theft may not deter thieves but there are certain other things that citizens can do to prevent these acts from occurring.

How to Prevent Package Thefts

The primary means by which package thefts are being prevented are with the increasing use of video surveillance. Individuals looking to steal packages off of front porches are becoming more and more aware of doorbell cameras and other small home surveillance cameras. The increased media coverage of these incidents and the increased capture of thieves by way of theses surveillance methods is enhancing deterrent efforts. Amazon has also begun testing out a service that allows delivery drivers to leave packages inside your home.

Despite the fact that security cameras are gaining in popularity (and the media reports on a regular basis of people being caught because of them), package thefts have not been eliminated. There are still those individuals that choose to ignore the possibility of getting caught and the potential consequences. And, for those folks, maybe it would help to reflect on the words of The Grinch, “Maybe Christmas doesn’t come from a store. Maybe Christmas…perhaps…means a little bit more!”

But for those individuals who persist and ignore the warnings and advice – and reflections from the Grinch – the BHW phone line is always open – just don’t say we never told you so!

May 17

Is a Video of a Video Admissible in a Criminal Trial?

By Brandon Barnett | Evidence

Video Footage Evidence Fowler Technology has dramatically changed the landscape of criminal law procedure, and ultimately criminal convictions, in Texas. Updated DNA testing exonerates the wrongly-accused, while incriminating the guilty. Traffic cameras are commonplace on Main Street, clocking speeding motorists who are subject to fines and penalties—and bad feelings. Recently in Arkansas, recordings from Amazon’s Echo artificial intelligence device have been used by prosecutors as evidence in a murder trial. As digital evidence evolves rapidly, so must the evidentiary rules supporting admissibility. In this late-breaking case, the Texas Court of Criminal Appeals considers one man’s conviction for theft and burglary vis a vis the admissibility of “picture only” video footage.

State v. Fowler (Tex. Crim. App. 2018)

Fresh Tire Marks Lead to a Suspicious Dollar Store Receipt

Law enforcement was called to the scene of a burglary at a business in Royse City, Texas. Police discovered disarray; cut wires, mangled cables, and bolt cutters were seized as evidence, but no suspects were apprehended. One month later, police were called to investigate the same scene for another burglary. This time, ATV tracks led police to a nearby field where they found a receipt from the local Family Dollar store mere feet away from a stolen ATV. Even more curious were the items listed on the receipt, which included duct tape and utility knives. Police used the date, time stamp, and the address on the receipt to request video footage from inside the store. Employees at Family Dollar provided investigators with time and date-stamped footage that corresponded with the receipt found at the scene of the crime. Police recorded the incriminating footage on their body cameras, as recording from a VHS cassette proved time-consuming and clunky. Although the footage was non-audio “picture only,” it showed a suspect purchasing the items that were reflected on the receipt found at the crime scene. Further, the footage time and date stamps placed the individual inside of Family Dollar at a certain time, on a particular day.

Leveraging all of the information learned from the receipts, the fact that the ATV was stolen, and the video footage, law enforcement soon had a suspect—Jamel Fowler. Fowler was convicted of theft of property for stealing the ATV and was sentenced by a jury to two years imprisonment. Fowler appealed. On appeal, the court reversed the trial court’s conviction and sentencing, holding that “trial court committed reversible error by admitting an unauthenticated videotape exhibit into evidence.” The State of Texas appealed to the Court of Criminal Appeals to determine whether prosecutors may prove authenticity of video footage without the testimony of someone who either witnessed what the video depicts or is familiar with the functioning of the recording device. In other words, is the video of a video at Family Dollar admissible as evidence against Fowler? In order to answer that question, the CCA looked to Texas Rule of Evidence 901.

Texas Rule of Evidence 901 and the Authenticity Requirement

Texas Rule of Evidence 901 governs the authentication requirement for the admissibility of evidence. Typically, to satisfy the requirement of authenticating evidence, the person offering the evidence must produce items or data sufficient to support a finding that the item or data is what the proponent claims it is.

“Authenticity may be established with evidence of distinctive characteristics and the like, which include [t]he appearance, contents, substance, internal patterns, or other distinctive characteristics of the item, taken together with all the circumstances.”

TEX. R. EVID. 901(b)(4); see Druery v. State, 225 S.W.3d 491, 502 (Tex. Crim. App. 2007). Conclusive proof of authenticity before allowing admission of disputed evidence is not required.

Applying Rule 901 to a “Picture Only” Video of a Video

May the proponent of a video sufficiently prove its authenticity without the testimony of someone who either witnessed what the video depicts or is familiar with the functioning of the recording device? The Court answers that, yes, it is possible, given the facts.

Here, the Court acknowledged the argument of the defense in the appeal: “The court of appeals’s point is well-taken—the State could have done more [to prove up the evidence presented]. However, even though the most common way to authenticate a video is through the testimony of a witness with personal knowledge who observed the scene, that is not the only way.”

The Court reasoned that video recordings without audio are treated as photographs and are properly authenticated when it can be proven that the images accurately represent the scene in question and are relevant to a disputed issue. Huffman v. State, 746 S.W.2d 212, 222 (Tex. Crim. App. 1988). The Court stated that (1) the officer’s in-person request of the manager of the Family Dollar store to pull the surveillance video on a certain date at a certain time; (2) that the distinctive characteristic that there is a date and time stamp on the videotape; and (3) the fact that the date and time on the videotape correspond to the date and time on the receipt that was found within three feet of the ATV; (4) the fact that the videotape pulled by the manager reveals Fowler at the store on that date at that time purchasing the items listed on the receipt that was found near the stolen ATV, were enough, together, to authenticate the video. The video was sufficiently authenticated to be admissible into evidence. The evidence strongly pointed to Fowler and, accordingly, his conviction was upheld.

Sep 27

Can Police Arrest a Person for Shoplifting Before They Leave the Store?

By Shelby Sterling | Theft

Shoplifting Before Leaving the Store The Court of Criminal Appeals recently handed down a case regarding a police officer’s findings of reasonable suspicion and probable cause. The issue was whether an officer had probable cause to arrest a customer for theft from a store before she actually exited the store and when she claimed, after being confronted by the officer, that she was going to pay for the items shad had placed in her purse.

State v. Ford, Court of Criminal Appeals (2017)

The Facts—What Happened?

A Corpus Christi Police Department Officer responded to a report regarding a customer in a Dollar General Store concealing store merchandise in her purse and jacket. Upon arriving at the store, the responding officer met with the employee and was given a description of the customer.

The police officer approached a customer matching the employee’s description, identified later as Ford, and informed her that she had been seen concealing merchandise in her purse. Ford replied that she was not done shopping and had intended to pay for the items. However, the officer noticed that Ford had a shopping cart with store items that were not in her purse. The purse was covered by a jacket, which the officer picked up, and discovered that the purse was fully zipped up and full of merchandise. Upon removing the store items from her purse, the officer discovered six small baggies of methamphetamine and two pills.

The State charged Ford with theft over $50 and possession of controlled substances. Ford was subsequently indicted for possession of methamphetamine.

Defendant’s Motion to Suppress—The Trial Court Granted Defendant’s Motion and Determined No Reasonable Suspicion or Probable Cause

The drugs found on the defendant were discovered during a theft investigation. The defendant filed a motion to suppress the drugs. The trial court granted the motion to suppress.

At the suppression hearing, the trial court acknowledged that a theft could be complete without the physical removal of the property; however, the court also observed that the defendant never tried to leave the store with the merchandise and “was still shopping.” Further, the court determined that there was insufficient evidence that the defendant intended to steal the merchandise because she did not attempt to leave the store, she did not run or try to conceal anything when approached by the officer, and she stated that she intended to pay for the merchandise.

The trial court concluded that the “officer acted prematurely” in approaching the defendant and asking questions about the merchandise and that inferring an intent to steal was “too big a leap at [that] point.” The trail court questioned the reliability of the information provided during the suppression hearing as it all came from reports by the store employee and the police officer, both of whom were not at the suppression hearing to substantiate the information.

The Court of Appeals Agreed with the Defendant and the State—Holding that the Officer Had Reasonable Suspicion, but Not Probable Cause

On appeal, the State argued that the conversation between the police officer and the defendant was part of a consensual encounter and that the totality of the circumstances gave rise to probable cause to arrest the defendant.

The court of appeals rejected the State’s first claim that the conversation was part of a consensual encounter, but agreed with the State that the police officer had reasonable suspicion to stop the defendant to ask her questions. The court of appeals held that the trial court erred in concluding that the officer lacked reasonable suspicion to conduct a stop.

The court of appeals held that the trial court was within its discretion when it concluded that the State failed to meet its burden of proof establishing probable cause to arrest. This discretion was used when determining that the evidence used by the State was “questionable” with no one able to corroborate the information provided.

The Court of Criminal Appeals Reversed the COA Judgment and Determined that an Officer has Probable Cause to Arrest for Theft Even Before the Defendant Exits the Store

The Court of Criminal Appeals recognized that both the trial court and the court of appeals recognized that it was not necessary for the defendant to take the merchandise out of the store for her to commit theft. Nevertheless, both of the lower courts erred in concluding that the officer did not have probable cause to believe that the defendant intended to steal the items.

The court explained that the officer had knowledge of at least four undisputed facts supporting the idea that the defendant intended to steal: (1) the store employee reported that the defendant was concealing items in her purse; (2) the defendant admitted to the officer that she had concealed items in her purse; (3) the shopping cart had items from the store that were not in her purse; and (4) the defendant’s jacket was covering her purse. The fact that the defendant placed some items in her shopping cart but concealed others in her purse caused the arresting officer to believe the defendant was intending to steal the concealed items.

The court supported this argument by referring to Groomes v. United States, 155 A.2d 73, 75 (D.C. App. 1959), in which the District of Columbia Court of Appeals heard a case—similar to this one—and concluded that once items are removed from the shelf and concealed or put in a convenient place for removal, the elements of a taking and appropriation are satisfied. Further, the police officer could reasonably believe that the placement of the jacket on top of the bag was used to further conceal items.

The court also addressed the lower courts’ concern of reliability of the reports by the employee and the officer. The court notes that the employee’s report was then corroborated by the admission of the defendant, and further, that the employee served as a citizen informant who the officer could reasonably rely on as one of several factors for determining probable cause.

Here, the Court determined that the lower courts erred in concluding that the police officer lacked probable cause to arrest the defendant. Accordingly, the Court reversed the judgments of the courts below.

See Judge Walker’s Dissenting Opinion

May 17

Misapplication of Fiduciary Property Texas 32.45

Misapplication of Fiduciary Property in Texas | Texas Penal Code 32.45

By Brandon Barnett | White Collar

Misapplication of Fiduciary Property—What is it?

Misapplication of fiduciary property is a charge that is aimed at protecting beneficiaries of trusts, estates, receiverships and the like. Pursuant to Section 32.45 of the Texas Penal Code, a person commits the offense of misapplication of fiduciary property by intentionally, knowingly, or recklessly misapplying property he holds as a fiduciary in a manner that involves substantial risk of loss to the owner of the property. Tex. Penal Code Ann. § 32.45(b). “Substantial risk of loss” means a real possibility of loss. Casillas v. State, 733 S.W.2d 158, 163¬–64 (Tex. Crim. App. 1986). However, the possibility need not rise to the level of a substantial certainty (which is required for theft)—the risk of loss need only be more likely than not. Id.

Who is a “Fiduciary” Under Texas Law?

The penal code sets out four distinct groups that are considered fiduciaries pursuant to Section 32.45. These include:

A trustee, guardian, administrator, executor, conservator, and receiver;
An attorney in fact or agent appointed under a durable power of attorney;
An officer, manager, employee, or agent carrying on fiduciary functions on behalf of a fiduciary; or,
Any other person acting in a fiduciary capacity.

Id. at § 32.45(a)(1).

“Acting in a fiduciary capacity” is not defined in the penal code. However, the Texas Court of Criminal Appeals determined that because “fiduciary” has such a common meaning it should be construed according to its plain meaning. Berry v. State, 424 S.W.3d 579 (Tex. Crim. App. 2014).

The plain meaning of fiduciary means, “holding, held, or founded in trust or confidence.” More notably, a person who acts as a fiduciary is one “who has a duty, created by his own undertaking, to act primarily for another person’s benefit in matters connected with such undertaking.” Gonzalez v. State, 954 S.W.2d 98, 103 (Tex. App.—San Antonio 1997, no pet.). For example, courts have held that a person acts in a fiduciary capacity “when the business which he transacts, or the money or property which he handles, is not his or for his own benefit, but for the benefit of another person as to whom he stands in a relation implying and necessitating great confidence and trust on the one part and a high degree of good faith on the other part.” Gonzalez v. State, 954 S.W.2d 98, 103 (Tex. App.—San Antonio 1997, no writ).

Additionally, a person acting in a fiduciary capacity embraces any fiduciary, including a joint adventurer or partner. Coplin v. State, 585 S.W.2d 734 (Tex. Crim. App. 1979). This does not, however, include everyday business dealings. Berry, 424 S.W.3d at 584. The Court of Criminal appeals assume such transactions are entered into for a mutual benefit and, therefore, neither party is expected to act solely for the benefit of the other. Id.

What does it mean to “Misapply” Property?

The definition of “misapply” is fairly broad under the penal code. Pursuant to Section 32.45, a person who is a fiduciary misapplies property held as a fiduciary if the person deals property contrary to:

An agreement under which the fiduciary holds the property; or
A law prescribing the custody or disposition of the property.

Evidence that a defendant aided another person in misapplying property is sufficient, pursuant to the law of parties, to convict a defendant of misapplication of fiduciary property—even if the defendant did not personally handle the misapplied funds. Head v. State, 299 S.W.3d 414 (Tex. App.—Houston [14th Dist.] 2009, pet. ref’d). Furthermore, a defendant need not receive a benefit in order to misapply property. Talamantez v. State, 790 S.W.2d 33,37 (Tex. App.—San Antonio 1990, pet. Ref’d). Nor does it matter if a defendant donated the property to charity. Little v. State, 699 S.W.2d 316, 318 (Tex. App.—San Antonio 1985, no pet.).

Therefore, misapplication can occur by an omission or failure to act where a duty to act exists. Coleman v. State, 131 S.W.3d 303, 309-10 (Tex. App.—Corpus Christi 2004, pet. ref’d).

What does it take to Prove up an Agreement?

The government must prove the defendant knew of the agreement for misapplication to occur. Amaya v. State, 733 S.W.2d 168 (Tex. Crim. App. 1986). But, similar to “fiduciary,” Section 32.45 does not define “agreement.” Thus, the Court of Criminal Appeals construes agreement according to its plain meaning. Bynum v. State, 711 S.W.2d 321, 323 (Tex. App.—Amarillo 1986), aff’d, 767 S.W.2d 769 (Tex. Crim. App. 1989). To prove up an agreement, the State must be able to demonstrate a harmonious understanding or an arrangement, between two or more parties, as to a course of action. Id. Additionally, there is nothing in Section 32.45 that requires the agreement to be in writing or proved directly. Id.

Possible Defenses?

An effective defense to a charge of misapplication of fiduciary property is mistake of fact—otherwise negating the culpability required for the commission of the offense. Section 32.45 is designed to punish intentional, knowing or reckless misapplication of property. Thus, if it can be proved that the improper use or application of the property was the result of mere negligence, by mistake of fact, the statute will not apply. Other defense vary depending on the facts of the case.

What are the Penalties?

Texas has broad laws governing the use of property by a fiduciary. The charges can range from a Class C misdemeanor to a first-degree felony, based on the amount or value of property that is “misapplied.”

According to the Texas value ladder, an offense under this section is a:

Class C misdemeanor if the value of the property misapplied is less than $100;
Class B misdemeanor if the value of the property misapplied is $100 or more but less than $750;
Class A misdemeanor if the value of the property misapplied is $750 or more but less than $2,500;
State Jail Felony if the value of the property misapplied is $2,500 or more but less than $30,000;
Felony of the third degree if the value of the property misapplied is $30,000 or more but less than $150,000;
Felony of the second degree if the value of the property misapplied is $150,000 or more but less than $300,000; or
Felony of the first degree if the value of the property misapplied is $300,000 or more.

Id. at § 32.45(c).

Moreover, there is also an additional enhancement (to the next higher category) if it can be shown that the beneficiary was a person 65 years or older. § 32.45(d).

When Does Misapplication of Fiduciary Property Usually Occur?

This charge can arise in several different contexts. To name a few, misapplication of fiduciary property can occur:

When trustees misapply trust property;
When the holder of power of attorney makes a gift to herself;
When a business partner improperly diverts funds for personal use; or,
When an attorney misapplies a client’s funds.

These examples demonstrate that Section 32.45 covers many situations and may result in serious consequences. Thus, if you are under investigation or have been charged with the offense of misapplication of fiduciary property, it is necessary you seek help.

Misapplication of Fiduciary Property Defense Attorneys

Our criminal defense team handles Misapplication of Fiduciary Property cases in Tarrant County, Texas and surrounding areas. If you are under investigation for w financial crime or white collar offense, contact our firm today for a free case evaluation.

Sep 03

Challenging the Probable Cause Affidavit | Franks Hearing Requirements

By Brandon Barnett | Fraud

Problems with Probable Cause: Law Enforcement Allegedly Used Conflicting Third Party Statements as the basis for a Search Warrant

Probable Cause Affidavit Franks Hearing Evidence obtained by a valid search warrant can be used at trial. But what if the search warrant was based on information provided by a third party who later recants the information he provided? Further, what if law enforcement mischaracterized the evidence when presenting it to the magistrate in the application for the warrant? What legal remedy, if any, exists to support defendants who find themselves in this situation? The Fifth Circuit heard United States v. Minor in August, this article summarizes the Court’s surprising holding.

See the full text of the 5th Circuit’s decision in United States v. Minor (USCA 5th Cir. 2016)

US v. Minor – Rogue Bank Employee Hatches Identity Theft Scheme

Anthony Minor and his friend Katrina Thomas, a Fannie Mae employee, hatched a plan to steal the identities of numerous Fannie Mae clients with the intention of using the personal information to obtain entry into checking and savings accounts. Thomas created a list of client names and personal information while at work, and then provided Minor with the information. Minor was successful in using the data to steal money from those individuals’ bank accounts by contacting banks, pretending to be the individual, and transferring funds to Minor’s personal account.

During the time of these crimes, Minor was frequenting a hotel. Eventually, law enforcement began investigating Minor; the lead investigator assigned to the case was Albert Moore. In a warrant affidavit, Moore states that Will Crain, the director of security at the hotel, reported to law enforcement that he had seen Minor with expensive merchandise. That statement was used to establish probable cause for obtaining a search warrant. Law enforcement used the search warrant to search Minor’s dwellings, and the search rendered evidence of the crimes. Minor was arrested on numerous bank fraud charges.

Minor Goes to Trial on Federal Fraud Charges

At trial, a jury found Minor guilty of bank fraud, aiding and abetting bank fraud, conspiracy to commit bank fraud, using or trafficking in an unauthorized access device, aggravated identity theft, and aiding and abetting aggravated identity theft. Minor was sentenced to 192 months’ imprisonment, a sentence that incorporated a six-level enhancement, but was set well below the federal Sentencing Guidelines recommendation at the trial judge’s discretion.

Minor appealed to the Fifth Circuit Court of Appeals, arguing that the search warrant contained false information and that he is entitled to a Franks Hearing to establish the facts surrounding the statements used to support the finding of probable cause for the search warrant.

Minor Appeals to the Fifth Circuit Arguing Agents Lacked Probable Cause for Search Warrant

Minor appealed to the Fifth Circuit Court of Appeals, arguing:

that the trial court should have held a Franks Hearing to determine whether law enforcement improperly obtained a search warrant for his car,
that even if Minor’s case does not meet the requirement for a Franks Hearing, that an exception be carved out specifically for his case, and
that his sentence should not have included a six-level enhancement (more prison time).

Minor alleged that Crain, the hotel’s security guard, testified at trial that he did not see Minor carrying merchandise and therefore, law enforcement did not have probable cause to secure a search warrant.

Franks Hearing Requirements—A Supreme Court Precedent

In Franks v. Delaware, 438 U.S. 154 (1978), the Supreme Court held that

“where the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant’s request.”… [Further, if the] “allegation of perjury or reckless disregard is established by…a preponderance of the evidence…the search warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit.”

Id. at 155-56.

Federal Sentencing Guidelines for Bank Fraud Crimes

“U.S.S.G. § 2B1.1 (2014), provides that “if the defendant’s offense involved 250 or more victims, then § 2B1.1(b)(2)(C) requires the court to increase the defendant’s offense level by 6 levels. U.S.S.G. §2.B1.1(b)(2)(C).

The Fifth Circuit Weighs In; Holds that the Affiant’s statements were not “deliberately false or made with reckless disregard for the truth.”

The Fifth Circuit relied heavily on Supreme Court precedent with regard to the evidentiary appeal and deferred to the reasoning of the trial court with regard to sentencing.

As “Minor concedes that Agent Moore did not intentionally insert false information into the affidavit, or act with reckless disregard for the truth…and because Minor failed to make the requisite substantial preliminary showing, [Minor] is not entitled to a Franks hearing.” Secondly, “[Minor] asks us to hold that in a case where a law enforcement affiant is relying upon information….from other[s]…the challenger should not be required to meet the intentional or reckless requirement to proceed a Franks hearing.” Here, “Minor’s argument is meritless under any standard…[and he] has not cited any authority recognizing his proposed exception to Franks…we decline…to create a new exception to well-established Supreme Court precedent.

Further, the Fifth Circuit said, “we agree with the district court that Minor…actively employed the means of identification of over 250 victims in furtherance of their bank fraud scheme…with the object of unlawfully accessing those customers’ bank accounts without their consent.” Accordingly, the Fifth Circuit affirms the holding and sentence of the trial court.

May 05

Knock and Talk Interview Still a Lawful Way for Police to Enter a Premises

By Brandon Barnett | Theft

Police Knock and Talk Danhach 2016 “Knock, knock!”

“Who is there?”

“The police and the FBI, may we come in please?”

There is a knock at the door. You look out your peep hole and see law enforcement. Do you have to open your door? If you open your door, do you have to let them in? What if they don’t have a warrant, but ask nicely and start talking to you? If you give consent to law enforcement to enter your home, can evidence seized be used against you in court later on?

This article is a summary of United States v. Danhach, a case recently decided in the US Court of Appeals for the 5th Circuit.

Evidence is Seized After Police Politely Ask If They Can Come Inside.

The Houston Police Department and the FBI had been investigating Sameh Danhach and his business associate for possible involvement in organized retail theft. As part of the investigation, law enforcement began surveilling a warehouse that Danhach had been seen entering on multiple occasions and to which a car used in stealing over-the-counter drugs and expensive baby formula had been linked. After several weeks of surveillance, law enforcement approached the warehouse and knocked on the door. Danhach’s business associate permitted the officers to enter, as surveillance cameras rolled capturing the entire conversation.

The officers saw trash bags full of merchandise and other indicators of stolen goods out in the open. Citing this evidence in a probable cause affidavit, law enforcement obtained a search warrant and seized the evidence for trial. Danhach was charged with conspiracy to transport stolen goods in interstate commerce and also with aiding and abetting the interstate transportation of stolen OTC medication and baby formula, violations of 18 U.S.C. § 371 and 18 U.S.C. § 2314, among other charges.

At trial, the jury found Danhach guilty on all counts and the judge sentenced him to 151 months in prison and a three year term of supervised release. Danhach appealed.

The Knock and Talk Procedure, the Plain View Doctrine and Consent Collide.

Courts have recognized the “knock and talk” technique as “a reasonable investigative tool when officers seek to gain an occupant’s consent to search or when officers reasonably suspect criminal activity.” United States v. Jones, 239 F.3d 716, 720 (5th Cir. 2001); Kentucky v. King, 563 U.S. 452, 469 (2011). Evidence may be cited in support of a search warrant if (1) law enforcement entered the area where the item was located; (2) the item was in plain view; (3) the incriminating nature of the item was immediately apparent; and (4) law enforcement had a lawful right of access to the item.” United States v. Jackson, 569 F. 3d 236, 242 (5th Cir. 2010).

However, if for some reason the “plain view” doctrine does not stand up to the facts of a case, then “consent to enter” may be an alternative argument, but “the government must demonstrate that there was effective consent that was given voluntarily by a party with actual or apparent authority.” United States v. Scroggins, 599 F.3d 433, 440 (5th Cir. 2010).

The Big Issue Before the Fifth Circuit was Whether Officers Lawfully Entered and Remained Inside of Danhach’s Warehouse While Conducting a “Knock and Talk” Interview.

Here, the Fifth Circuit agreed with the district court and affirmed judgment and sentencing, holding that law enforcement permissibly used the knock and talk technique. The Court pointed out that video surveillance is consistent with law enforcement’s account that consent was obtained before entering. Even after law enforcement entered, Danhach’s business associate gave them permission to walk around the warehouse. The stolen goods were in plain view and were immediately apparent and indicative of criminal activity. Based on this series of events, “even if any evidence cited in the warrant…was not covered by the plain-view doctrine, the record supports the conclusion that the agents asked for and received consent for a full search of the warehouse.” Danhach did not offer any evidence to show that the consent was coerced in any manner, nor did he offer any evidence that the items seized were not in plain view.

Consent to Search + Items of Criminality in Plain View = Probable Cause to Obtain a Warrant

In sum, law enforcement may ask to enter a premises without a warrant and if consent is obtained from a person who is “in charge” or who looks to be “in charge,” then that consent is sufficient according to the Fifth Circuit, citing previous cases. Once lawfully inside a dwelling or premises, if law enforcement officers see, in plain view, objects that are linked or are seemingly linked to a crime, then those items may be the basis of a warrant to seize the items and to conduct an even more extensive search.

Mar 29

What is Jury Unanimity for Aggregate Theft Cases?

By Brandon Barnett | Jury Trial, Theft

Jury Unanimity Aggregate Theft Texas Jury unanimity is required in every jury trial, whether it be felony or misdemeanor. This means that the jury must unanimously agree that the State has proven or failed to prove all elements of an offense beyond a reasonable doubt. If a jury cannot reach a unanimous verdict of guilty or not guilty, then the judge will declare a mistrial. With some offenses, however, it can be a little unclear as to what jury unanimity actually requires. This is specifically so with aggregated theft cases.

What Is Aggregate Theft?

Aggregate theft is an offense where two or more thefts were committed “pursuant to one scheme or continuing course of conduct” and the amounts combined determine the grade of the offense. Tex. Penal Code §31.09. Under Section 31.09, aggregate theft may be and often is considered as one offense. Even though it is considered one offense, each individual underlying theft act (where the amounts are aggregated) is considered an element. The Court of Criminal Appeals of Texas has held that for evidence to be sufficient the state must prove beyond a reasonable doubt that the defendant unlawfully appropriated “enough property to meet the aggregated value alleged.” The state is not required to prove each underlying appropriation. However, the Court, until recently has left one question unanswered: Does the jury have to unanimously agree on all underlying theft transactions? Meaning, if the defendant is alleged to have committed 10 separate theft acts (pursuant to a common scheme), do the jury have to agree on each, or some, or none?

Kent v. State—What is the Jury Unanimity requirement in Aggregate Theft cases?

Until recently there had been no holding by the Court of Criminal Appeals of Texas on whether jurors are required to unanimously agree on each underlying transaction that is used to comprise an aggregated theft charge. In Kent v. State the Court finally addressed this exact question.

See the full CCA opinion in Kent..

Kent was a mortgage broker indicted for theft from four complainants in an amount exceeding $200,000. The thefts were alleged to have occurred over a period of time and pursuant to one scheme or continuing course of conduct. At trial, the defense requested a paragraph in the jury instructions that outlined each individual theft allegation and called for a unanimous verdict on each. The trial judge denied the defense request to include this paragraph. The jury found Kent guilty of aggregate theft. On appeal, the Kent complained that the trial judge erred by refusing to include his requested paragraph in the jury instructions. The appellate court reversed and remanded the case for a new trial, holding that the jury should have been instructed that they must unanimously agree beyond a reasonable doubt on each underlying transaction used to comprise an aggregate theft charge.

The State appealed to the Court of Criminal Appeals of Texas to determine whether this was correct. Reversing the lower courts holding, the CCA held that for an aggregated-theft case,

unanimity 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.

In other words, it is only required that the jurors unanimously agree that two or more thefts pursuant to a common scheme, when combined, exceeded the threshold amount beyond a reasonable doubt, not that they unanimously agree on exactly which thefts were comprised to reach that amount.

Takeaway: When facing aggregated theft charges it is important to know that the jury does not have to unanimously agree that each underlying theft alleged in the indictment has been proven beyond a reasonable doubt. Bottom line, it’s the aggregated amount that matters. This is only a brief explanation of how the jury unanimity requirement plays a role in a case and if you should have any more questions contact our Fort Worth criminal defense team.

Feb 29

Texas’ Online Crime Marketplace: Craigslist Crimes, Craigslist Stings, and Craigslist Thefts

By Brandon Barnett | Computer Crimes, Theft

Craigslist-Related Crimes | New Crimes in the Digital Age

Craigslist Crimes in Texas Gone are the days of flipping through your local newspaper’s classified section and circling your favorite ads. These days, Craigslist is the new classifieds of Fort Worth and Dallas. It is the one stop shop source to find a new car, truck, job, furniture, garage sale, or even a love interest. With the rise of Craigslist (and other online forums), there has also been an increase in criminal activity ranging from online scams to fraud and theft. Police stings based on advertisements from Craigslist are also common. Police have seen such a meteoric rise in these “Craigslist related crimes”, that many departments have established “safe exchange locations where transactions can occur under the watchful eye of local law enforcement.

Whenever people meet to engage in a transaction, crime can occur. These crimes can take place anywhere, whether you are in an urban or rural area, in the parking lot of the local shopping center, or even on your own front porch. Craigslist is easily accessible, and is increasingly used to create opportunities for one party to take advantage of another. It is essential to be vigilant whenever meeting up with anyone from the Internet.

Craigslist Criminal Investigations | Fort Worth, Texas

With the advent of Craigslist, law enforcement agencies have seen a few specific areas of criminal activity increase rapidly. These investigations into alleged crimes often facilitated by Craigslist include:

Craigslist Robbery: Increasingly, people will post ads on craigslist looking to buy or sell an expensive item, such as a cell phone, and when the other party arrives take either the item or the money by force. Avoid being a target by meeting buyers or sellers at a “safe exchange” location set up by the police department.
Craigslist Prostitution: Craigslist is full of ads looking for love, and both men and woman can get caught up in activity they may not have even realized was criminal until too late. Craigslist is used to source potential targets, and can result in charges from soliciting sex with a minor to soliciting sex for pay. Police departments are increasingly using Craigslist to set up sting operations to catch people trying to engage in prostitution.
Craigslist Drug Charges: Police are seeing an increase in advertisements for illegal drugs posted on Craigslist using code words. Engaging in a dialogue with someone posting one of these ads could lead police to believe you are involved in drug dealing or drug trafficking through ads placed on Craigslist.

Defending Craigslist-Related Criminal Cases

Defense of Craigslist-related criminal charges can be a very complex proposition, requiring legal counsel experienced in these types of matters and the technology it involves. Forensic Computer Specialists and other experts may be necessary to the investigation and protecting your constitutional rights. Seek counsel from experienced criminal defense attorneys at Barnett Howard & Williams PLLC, former prosecutors with an in-depth understanding of the criminal justice system and its applications in today’s Internet-oriented society.

Contact Our Fort Worth Craigslist Crimes Defense Attorneys Today!

At Barnett Howard & Williams PLLC, our attorneys understand how to investigate and defend against complex computer-related criminal charges, including Craigslist-related charges. To schedule a free consultation, contact us at our offices in Fort Worth, Texas, at 817-993-9249.

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