state jail felony

Theft of Property: the truth on shoplifting

Theft of Property (ie “Shoplifiting”):  Some Issues to Keep in Mind


I defend many, many people accused of theft of property, what we casually call “shoplifting”.


I see some common themes in these cases that I will try to address here.


You are really gambling when you attempt to shoplift out of a big store.  Walmart, Target, HEB, and department stores all take loss prevention very seriously and spend a great deal of money on technology and staff to try to stop shoplifting.  They may not get you every single time but they might and if you make a habit out of it you will get caught. 


There are security cameras all over the big stores.  They may be being monitored from somewhere else in the store.  There are people in the aisles in plain clothes that work for the stores that are watching people.  Unfortunately, if you are a person of color they are probably watching you with more suspicion.  It is not fair, but you need to be aware of it. 


If they see you conceal items, they aren’t going to stop you at first.  You may get some confidence and feel like no one knows.  However, the reason they aren’t doing anything to you is because it is not illegal to conceal items in the store.  You haven’t broken the law yet so there’s no reason for them to stop you or get your attention.  It is not illegal until you walk past “all points of sale” and attempt to leave with the concealed items.  That’s when you’ve broken the law and if they know you have items that you have not payed for, loss prevention officers will make an attempt to detain you.


Yes, it is legal for them to detain you.  They can detain you to prevent the theft of items even if they aren’t peace officers.  Any private citizen can use force in Texas to stop a theft of property. They can use force to detain you.  Do not fight them.  Do not use force to try to get past them.  If you do, you can be charged with assault, or worse, robbery.  It’s not worth it.


They will detain you until the police arrive.  All the big chains always pursue charges against you for theft.  Some of the little ones may let you go if they recover the property but they don’t have to do so.  And yes, even if they get the property back you can still be charged with theft if you attempted to leave the store with the items. 


If the items are under $100 when they ring them up at the register, they will charge you with a Class C misdemeanor theft, write you a ticket with a court date – that you should not blow off – and let you go.  If it’s above $100 but below $500, it’s a Class B misdemeanor.  The police have the option of arresting you and taking you to jail, but the officer may also write you a Class B cite and release.  This is not a Class C ticket.  This is a citation to return to court to bond out on a personal bond on a Class B misdemeanor with a court date in County Court.  Do not blow this off or you will also be charged with a Class A misdemeanor of Failure to Appear/Bail Jumping.  If you get charged with both the theft and the FTA, when you get arrested you will have to bond out on both and it complicates the entire process and costs you more money. 


Shoplifting is a bad idea.  This is a crime of poverty but it’s not usual to see people stealing food and necessary items.  Sunglasses seem to be a very commonly shoplifted item, along with makeup, underwear, and other small items.  DVDs and small electronics are also common and can run in value up to a resulting Class A misdemeanor or state jail felony charge.


Be very careful:  a theft, even in the Class B range, with three or more convictions prior to the date of arrest can result in you being indicted on a state jail felony theft.  The punishment range on a state jail felony is six months up to two years in the state jail.


Call me today if you are charged with theft of property. 

What is 12.44(b)?

What is a 12.44(b)?


Texas Penal Code 12.44(b) reads: “At the request of the prosecuting attorney, the court may authorize the prosecuting attorney to prosecute a state jail felony as a Class A misdemeanor.”


What does this mean?  It means that if you are charged with a state jail felony, the state can move to reduce it to a Class A misdemeanor and punish the crime like a Class A misdemeanor, which means you could be punished by up to a year in jail, or probation, or a deferred adjudication probation. 


This means that your record should reflect that you did not plead guilty to a felony but instead pled to a misdemeanor offense.  This could be like an “attempted” possession of controlled substance less than a gram – which is a Class A misdemeanor. 


It also means that if you are placed on probation and the state moves to revoke your probation, your potential jail time is only up to a year in the county jail. 


It also means that if you are successful on a deferred adjudication, you are automatically eligible for a non-disclosure after your successful release from deferred probation.


Potential problems may include: 


The misdemeanor is not usually refiled as a new case.  You are punished under the old cause number, and if the clerk does not code the reduction right it may look like, on your record, you pled to a felony.  Your defense attorney should do everything s/he can to amend the information, especially if you have immigration concerns, to reflect the misdemeanor allegation.


The state has to agree to 12.44(b).  If you are charged with a state jail felony and believe you should receive a 12.44(b), call me today to talk about the possibilities. 







What is 12.44(a)?

What is Section 12.44?: A Two Part Series

This is a two part series on Texas Penal Code Section 12.44. As 12.44 is itself divided into two parts – (a) and (b) - I will discuss (a) in this article and (b) next week.

Here is the actual statute:

Sec. 12.44. REDUCTION OF STATE JAIL FELONY PUNISHMENT TO MISDEMEANOR PUNISHMENT. (a) A court may punish a defendant who is convicted of a state jail felony by imposing the confinement permissible as punishment for a Class A misdemeanor if, after considering the gravity and circumstances of the felony committed and the history, character, and rehabilitative needs of the defendant, the court finds that such punishment would best serve the ends of justice.

What does this mean?

This means that if you are charged originally with a state jail felony, in which the punishment is a minimum of six months in the state jail institution with a maximum of up to two years in the state jail, you can plead to and be convicted of that state jail felony and yet be allowed to be punished with time in the county of jurisdiction’s jail instead of the state jail.

It also means the state could move to reduce a higher level felony to a state jail and then punish it with time in the county jail, but that is more rare. The more serious the felony is and the more it involves violence the less likely it is that the charge will be reduced to a state jail felony anyway, and to be punished under 12.44(a) you have to be convicted of a state jail felony.

What do you need to know?

YOU WILL STILL HAVE A FELONY CONVICTION ON YOUR RECORD. Although under 12.44(a) you will be punished as if it’s a misdemeanor, you are still being convicted of a state jail felony and your record will reflect that.

YOU ARE NOT ENTITLED TO A 12.44(A). Even if you are originally charged with a state jail felony and have never been charged with a felony before, you are not entitled to a 12.44(a). Its not like an “everyone gets one 12.44(a)” type thing.

Under 12.44(a) you may be offered “back time” – ie time served—using the time you were in the jail when you were arrested. However, you may be asked to do more time. The range of punishment under 12.44(a) is the same as a Class A – up to one year.

It is common in Travis County for possession of controlled substance less than 1 gram and third time thefts of under $1500 to be punished by 12.44(a). But you shouldn’t count on it. Every case is different and every prosecutor is different. Every judge is different.

Also, 12.44(a) may sound like a good deal – no time in the state jail and no probation always sounds good, especially if you are already incarcerated and are being offered time served under 12.44(a). However, if you have no felony convictions, it may be more wise to hold out for a real misdemeanor conviction or a straight dismissal in order to preserve your record.

I’m always willing to talk to people charged with felonies about the possibility of a 12.44 (a) or even better.