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LANG, TERRI REGINA

PD-1124-19 03/11/2020

“Is reformation unauthorized unless the State pled all the elements and statutorily required notice allegations of the lesser-included offense?”

Lang’s conviction for organized retail theft, Tex. Penal Code § 31.16(b), was reversed by the Court of Criminal Appeals with instructions to consider whether it could be reformed to a theft Lang conceded she committed. Lang v. State, 561 S.W.3d 174, 184 (Tex. Crim. App. 2018).  The court of appeals said “no.” Although one cannot commit organized retail theft without acquiring or otherwise exercising control over property with the intent to deprive the owner of property—the elements of theft—it held theft is not a lesser in this case because the indictment failed to allege the owner’s name or information from which it could be deduced.

The State’s petition raises related points. First, owner identity is a statutory pleading requirement, not an element of theft. It need not be pled unless the defendant complains.  Second, the State is not required to allege all the substantive elements of an offense that is subsumed by the charged offense, even if the defendant complains.  Why, then, would the test for lesser-included offenses set out in Hall v. State, 225 S.W.3d 524 (Tex. Crim. App. 2007), require that the charging instrument include such information? Is it because the owner and description of property, neither of which are elements, are part of theft’s gravamen?  The State concludes by arguing that the interests served by Hall’s first prong are served if the statutory elements of the lesser offense are subsumed by the charging instrument and the defendant, like Lang, raised no notice complaint.

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