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S. Huband, Esq.
S. Huband, Esq., Attorney
Category: Criminal Law
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I have a neighbor who was order to vacate his rental property.

Customer Question

I have a neighbor who was order to vacate his rental property. After not seeing any activity for a week, my son who is 15yr. my husband and another neighbor boy 15yr. removed some items from the property. The following day the police was notitified of the theft. The police read everyones right including myself, because I went into the house to run out the kids. The day the police came, early that morning I was out with my daughter, son, and my oldest nephew when I got the call to come home. The police was there, I was not allowed to inter my own house, while the rest of the family was question. After the kids and my husband told the police everything, and evething was returned in the same condition they got it in. So what happens next???
Submitted: 1 year ago.
Category: Criminal Law
Expert:  S. Huband, Esq. replied 1 year ago.

Thank you for the opportunity to assist you!

Your question: So what happens next???

What happens next largely depends on the police and the local prosecutor(s). Police and prosecutors have discretion whether or not to charge or arrest for a crime. This means that, even when a police officer or prosecutor believes they have probable cause to arrest or charge with a crime, they do not HAVE to arrest and/or prosecute if they do not wish to pursue the case.

It sounds like you and/or your family members have not been charged with a crime at this point. (Based on the facts as you stated them, I do not believe that YOU yourself could be charged with a crime, even if you had knowledge of what your husband and son had done.)

I can think of two crimes that those who actually took the property (your husband, your son, and the neighbor boy) could be charged with: the crimes of larceny and conspiracy to commit larceny.

Larceny: Larceny (and wrongful appropriation) in Texas:

§ 432.160. LARCENY AND WRONGFUL APPROPRIATION. (a) A person subject to this chapter who wrongfully takes, obtains, or withholds, by any means, from the possession of the owner or any other person any money, personal property, or article of value of any kind:

(1) with intent permanently to deprive or defraud another person of the use and benefit of property, or to appropriate it to his own use or the use of any person other than the owner, steals that property and is guilty of larceny; or
(2) with intent temporarily to deprive or defraud another person of the use and benefit of property or to appropriate it to his own use or the use of any person other than the owner, is guilty of wrongful appropriation
.

So, for larceny, this statute requires "taking" (i.e. movement of property) of personal property (any property that is movable) which property belongs to another person (i.e. your former neighbor) with the intent to permanently deprive (i.e. to keep) the rightful owner (former neighbor) of his or her property.

(For the wrongful appropriation statute, this has the same meaning except that the intent is to temporarily keep the property instead of permanently. This section of the statute probably covers other types of situations where, for example, a person borrows personal property of another person, with the intent to return it, without the owner's permission. I doubt this applies to your situation.)

The criminal intent for larceny is determined at the time the property was taken. Many times, people think that although they took someone's property but later returned it, that will somehow "undo" the possibility of being charged with a crime. It does not. It certainly HELPS that your neighbor got their property back, but whether or not a crime was committed is determined at the time of the taking. Unfortunately, it is not helpful that the property might not have been returned to the neighbor BUT FOR the police coming by and intervening.

The punishment for larceny depends on the value of the property taken:
Value of more than $200,000: 1st degree felony, 5 to 99 years
Value of $100,00 or more but less than $200,000: 2nd degree felony, 2 to 20 years
Value of $20,000 or more but less than $100,00: 3rd degree felony, 2 to 10 years
Value of $1,500 or more but less than $20,000: state jail felony, 6 months to 2 years
Value of $500 or more but less than $1,500: Class A misdemeanor, up to 12 months
Value of $20 or more but less than $500: Class B misdemeanor, up to 6 months
Value of less than $20: Class C misdemeanor, up to $500 fine

You already correctly pointed out a possible defense in this case if someone is charged: that the neighbor had abandoned their interest in the property. In order to commit larceny or wrongful appropriation, a person has to take property that still belongs to someone else. The legal issue is whether or not the true owner of the property has abandoned his or her interest in the property. If so, then the property taken does not technically belong to anyone, and someone (like your husband and the boys) can assume possession and ownership of the property legally.

Consider the following two scenarios:
Scenario 1. Let's say I am sitting at the library and I am writing some notes in a notebook. I get up to use the restroom and leave my pen and notebook on the table. While I am gone, another person comes by, sees my pen and notebook, and takes them. Is the person who took my pen and notebook guilty of larceny? Maybe, if I did not abandon my property interest in the pen and notebook. In other words, if I, as the true owner, intended to come back and resume writing in my notebook, then a larceny has taken place.

Scenario 2. What if I finish writing in my notebook at the library, and when I get up to leave I toss the pen into the trashcan on the way out the door? It appears I have abandoned my property interest in the pen. After I abandon my property interest in the pen, it doesn't belong to me any more, so I suppose anyone could pick it up and take ownership of the pen.

The question in your case is whether or not your husband's situation is more like scenario one or scenario two? Obviously, if your husband and son were charged with a crime, they would argue that they each believed the owner had abandoned his or her property interest. This may or may not work as a defense; it largely depends on the particular facts of any given case.

Conspiracy: Conspiracy is an agreement made between two or more people to commit a crime. The "agreement" does not have to be explicit; it can be inferred by people's actions. A conspiracy in Texas must be an agreement to commit a felony; it does not apply to a misdemeanor. Thus, in order to be charged with and/or be convicted of conspiracy to commit larceny, the value of the property taken must be $1,500.00 or more.

§ 15.02. CRIMINAL CONSPIRACY. (a) A person commits criminal conspiracy if, with intent that a felony be committed:

(1) he agrees with one or more persons that they or one or more of them engage in conduct that would constitute the offense; and
(2) he or one or more of them performs an overt act in pursuance of the agreement.
(b) An agreement constituting a conspiracy may be inferred from acts of the parties.

(d) An offense under this section is one category lower than the most serious felony that is the object of the conspiracy, and if the most serious felony that is the object of the conspiracy is a state jail felony, the offense is a Class A misdemeanor.


So, if the prosecutor can prove that your husband, son and/or neighbor boy agreed, either explicitly or by their actions, to commit the crime of larceny, and the value of the property taken is at least $1,500, it is possible some or all could be convicted of conspiracy to commit larceny.

Finally, there are certain limitations on defenses to conspiracy in Texas, which are complex and not relevant here to our basic discussion of possible crimes. If this crime is charged, a Texas attorney should discuss these with your husband, son, etc.

What to do now?
If someone gets charged with a crime, he or she is entitled to representation by an attorney under most circumstances where the possible punishment is more than 6 months in jail. Thus, whoever is charged can hire his or her own attorney of choice, or if the person charged cannot afford an attorney, the court should appoint one upon request if the person qualifies for appointed representation.

I don't know what, if anything, you, your husband, or your son could do or not do (other than no more talking to the police, please!!!) to avoid getting charged with either or both of the crimes I discussed above. As I said earlier, it depends on the choice to prosecute, if made, by the police and/or the prosecutor.

Thank you for the opportunity to assist you. If you find my response helpful, please rate it positively so that I can receive credit for my work. I wish you and your family the very best with this situation.

Good luck!

Expert:  S. Huband, Esq. replied 1 year ago.
Hello again!

I am writing to follow up with you to see how everything is going. Did my response to you help? I sure hope so! If so, please rate my response to your question positively so that I can receive credit for my work. Otherwise, please let me know how else I might be able to help you.

Thank you again for the opportunity to assist you. I wish you the very best with this matter!
Shuband
Expert:  S. Huband, Esq. replied 1 year ago.
Hello Michelle!

I am writing to follow up with you to see how everything is going. Did my response to you help? I sure hope so! If so, please rate my response to your question positively. Otherwise, please let me know how else I might be able to help you.

Thank you again for the opportunity to assist you. I wish you the very best with this matter!
Shuband
Expert:  S. Huband, Esq. replied 1 year ago.
Hello again!

I noticed that you were recently logged in to the justanswer.com site but you have not accepted or rated the answer I gave. Please let me know if there is any other information you need from me, or what else I can do to ensure that you are a fully satisfied customer. My goal is to give excellent service.

Thank you for the opportunity to assist you, and thank you for using justanswer.com!

Shuband

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