When Does Failing to Deliver a Product or Service Constitute Theft?

November 30th, 2018 by Tad Nelson in Theft

People often associate theft with armed robbery, such as holding up a bank at gunpoint. But many more kinds of theft fall within the category of white collar crimes. After all, fraud is a form of theft. If you accept money from someone in exchange for a service, and you intentionally fail to provide that service but keep the money, you have for all intents and purposes wrongfully taken property from another.

CCA Reinstates Conviction of Ex-Mortuary Operator Accused of Taking Money But Not Performing Cremations

Texas law more precisely defines theft as the “unlawful appropriation of property without the effective consent of the owner with the intent to deprive the owner of property.” The phrase “effective consent” is critical. In the context of a transaction for goods or services, the buyer voluntarily gives her property–money–to the seller. But this consent is conditioned on the seller providing the promised goods or services in return.

The Texas Court of Criminal Appeals recently elaborated on these principles in a case, Johnson v. State, that involved a most unusual–and disturbing–case of theft by deception. The defendant in this case ostensibly ran a mortuary, which was owned by his wife. But in fact, the “mortuary” did not own a crematory and sub-contracted its jobs to third-party providers.

When the defendant’s mortuary fell behind on its rental payments, the landlord visited the property and discovered “a number of decomposing bodies inside the building.” The local medical examiner later identified a total of eight bodies, some of which belonged to individuals who passed away more than six months earlier. The examiner also found a number of boxes that presently or previously contained cremated remains.

Prosecutors charged the defendant with two counts of theft. The first was tied to a single transaction. A woman paid the defendant’s mortuary $1,500 to cremate a relative. The defendant’s wife cashed the check, but the body was never cremated–indeed, it was one of the eight found by the landlord. The second charge was for “aggregate theft” and involved at least three more people who paid for cremations that the defendant never performed.

Although a jury convicted the defendant on both counts, an intermediate appeals court held there was insufficient evidence to support the conviction. The Court of Appeals disagreed with the intermediate court, however, and returned the case to the lower court for consideration of other issues.

With respect to the first count, the intermediate court held that since the customer who paid the $1,500 for cremation services only did so eight days before the landlord’s discovery, it was conceivable the defendant still intended to carry out the cremation. The problem with this argument, according to the Court of Criminal Appeals, was that when the defendant accepted the money it was legally impossible for him to carry out any cremations as he did not have a “funeral director in charge,” as required by Texas law.

As for the second count, the intermediate appeals court said there was evidence the defendant performed part of the services paid-for–he performed funeral services but not the cremations–once again demonstrating a lack of intent to commit theft. The Court of Criminal Appeals said this “ignored evidence” of the defendant’s history of deceiving customers. For instance, one of the defendant’s customers paid for the cremation of his mother–but the defendant returned remains of another body instead.

Contact Houston Attorney Tad Nelson If You Are Facing Theft or Fraud Charges

Not every case of failing to meet a contractual obligation constitutes theft or fraud. That is why you need to work with an experienced Houston white collar criminal defense attorney if you are under investigation for any such offense. Contact the Law Offices of Tad Nelson & Associates in Galveston, League City, or Houston today if you need immediate advice or assistance.

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