John T. Floyd

Prosecutorial Overreach Leads to 20 Month Sentence for Shoplifter

In October 2013 Terri Regina Lang was shopping at an HEB store in Burnet County, Texas. She was observed by a store employee taking unpaid-for-items and placing them in a reusable shopping bag tied to her cart. When Lang went through the checkout lane, she did not place the reusable bag on the conveyor for price scanning of the items in it. The employee and her manager let Lang leave the store before they stopped and questioned her about the bag containing the unpaid-for-items. The value of those was $565.29.

 

HEB personnel ultimately called the police who arrived and arrested Lang following a preliminary investigation.

 

20 Months in Jail for Shoplifting

 

Normally a single individual arrested for “shoplifting” would be charged with misdemeanor theft pursuant to Texas Penal Code § 31.03. Lang, however, was charged with organized retail theft under Texas Penal Code § 31.16(b)(1), (c)(3)—a higher grade offense. A jury convicted her of this state jail felony and a district court judge sentenced her to 20 months in jail.

 

Lang appealed her conviction. She raised the issue that ordinary shoplifting by a single individual and without the cooperation of others does not as a matter of law amount to organized retail theft.

 

In an unpublished May 5, 2017 decision, the Third District Court of Appeals in Austin rejected this argument. The appeals court stated that a person commits organized retail theft under § 31.16(b)(1), (b)(2) if he or 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 appeals court extrapolated from this statutory language to arrive at the conclusion that the statute “has no explicit language regarding acting with others;” therefore, “[n]othing in the statutory language requires that the person committing the offense work with others when engaging in the prohibited behavior.”

 

Lang sought, and secured, discretionary review in the Texas Court of Criminal Appeals (CCA).

 

Texas Court of Criminal Appeals Reverses Conviction

 

On November 21, 2018, the CCA reversed the Third District’s decision. The CCA forcefully concluded:

 

“Considering [the] clear legislative history in conjunction with the ambiguous statutory language [§ 31.16(b)(1), (b)(2)], we conclude that it supports the view that the organized retail theft statute was not intended to apply to the conduct of an ordinary shoplifter acting alone. The legislative history indicates that the crime of organized retail theft was intended to be distinct from ‘petty shoplifting’ and that the statute was enacted for the purpose of targeting professional theft rings involved in the large-scale theft, transfer, repackaging, and reselling of stolen retail merchandise. Frequently, the targeted activity would involve coordinated effort by multiple individuals. Nothing about the legislative history signals that this statute was intended to broadly apply to all people who commit ordinary shoplifting of retail merchandise. Accordingly, we conclude that the proper interpretation of the statutory phrase ‘intentionally conducts, promotes, or facilitates an activity in which the person receives, possesses, conceals, stores, barters, sells, or disposes of stolen retail merchandise,’ requires proof of conducting, promoting, or facilitating some activity distinct from the mere activity inherent in the ordinary shoplifting of retail items by a single actor.

 

“In view of these considerations, we hold that the court of appeals erred by concluding that the organized retail theft statute plainly permits appellant’s conviction under these circumstances. Based on the foregoing analysis, we conclude that appellant’s conduct in stealing items from HEB and then attempting to leave the store with those items does not establish that she intentionally conducted, promoted, or facilitated an activity in which she received, possessed, concealed, stored, bartered, sold, or disposed of stolen retail merchandise. As we have explained above, the statute requires proof of some activity undertaken with respect to stolen retail merchandise that goes beyond the conduct inherent in ordinary shoplifting. The record here fails to include any such proof. We hold that the evidence is insufficient to support appellant’s conviction for organized retail theft, and we therefore sustain her second and third grounds for review challenging the court of appeals’ sufficiency analysis.”

 

Statute Requires Proof of Some Activity Beyond Ordinary Shoplifting

 

The CCA remanded Lang’s case back to the Third District to determine whether the organized retail theft verdict should be reformed to allow a conviction for the lesser included offense of simple (shoplifting) theft. If not, the charge must be dismissed by the court.

 

The Lang case reflects precisely why states have a higher court of criminal appeals to review decisions from intermediate courts of appeals. The Third District Court of Appeals ruled that Lang’s conduct unequivocally amounted to organized retail theft while another district may well have ruled that her conduct was simple shoplifting theft.

 

There is no ambiguity now. The CCA has spoken. If another misinformed district attorney does not know how to distinguish simple shoplifting from organized retail theft, all he or she must do is consult with the CCA’s decision in the Lang case.