# Is It Theft If You Thought You Had Consent? | TadLaw

[Theft](https://tadlaw.com/houston-tx/felony-charge-lawyer/) is defined under [Texas law](https://statutes.capitol.texas.gov/Docs/PE/htm/PE.31.htm/) as the crime of unlawfully appropriating property “with intent to deprive the owner” of said property. Put another way, theft is when you take someone else’s property without their consent. Of course, there are cases where a person mistakenly believes they had consent. If so, they can argue “[mistake of fact](https://statutes.capitol.texas.gov/docs/PE/htm/PE.8.htm/)” as an affirmative defense to a criminal theft charge.

## Court Rejects “Mistake of Fact” Based on Neighbor’s Consent

But a judge or jury will only accept a “mistake of fact” defense if the defendant held a reasonable, if ultimately incorrect, belief that he or she had the owner’s “effective consent.” Among other things, this means the consent must come directly from the owner or someone “legally authorized to” act on their behalf. A defendant cannot rely on a mistake of fact if they knowingly obtained permission from someone who did not have the owner’s authorization.

For example, a [Texas appeals court recently rejected a mistake of fact defense](https://scholar.google.com/scholar_case?case=1619627520716594763&hl=en&as_sdt=6,31) in a theft case involving some copper tubing and air conditioner parts taken from a derelict home site in Fall County. The home itself had been partially destroyed in a fire a few months earlier.

The owner was no longer residing on the property. He had entered into a contract to sell the property to his neighbor, but he was still the owner. He also posted clear “no trespassing” signs on his land.

On the day in question, the neighbor observed two men “working on the air conditioner” outside the owner’s property. One of the men was the defendant. The other man spoke to the neighbor. She informed him that she had a “contract on the property” but was not the current owner. She later testified that she was afraid of the men, and so she told them to “take what you want” from the air conditioner. The neighbor later called her husband, who in turn contacted the police.

The police arrested the defendant and his partner and charged both with theft. At trial, the defendant argued “mistake of fact,” stating they had permission from the neighbor, who they believed was a “special owner” who could act on the actual owner’s behalf. The jury rejected this defense and found the defendant guilty.

A state appeals court upheld the conviction. At trial, the neighbor testified that she had never had permission from the owner to act on his behalf. And the appeals court said there was nothing in Texas law “that would automatically provide an individual who has signed a contract for the purchase of real property with the right to possess or control the property before title has passed.”

## Have You Been Charged With Theft?

The defendant in the case above received a sentence of two years in jail. This emphasizes the serious consequences of a theft conviction, even if it involves something like taking materials from a seemingly abandoned property. If you have been charged with theft, robbery, or [burglary](https://tadlaw.com/houston-tx/burglary-lawyer/) and need assistance from an experienced Houston criminal defense attorney, [contact](https://tadlaw.com/contact-us/) the Law Offices of Tad Nelson & Associates today.

Call or text [(281) 280-0100](tel:+12812800100) or fill out our [Free Case Evaluation Form](https://tadlaw.com/contact-us/) to get started

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Source: https://tadlaw.com/blog/is-it-theft-if-you-thought-you-had-consent/