Is Burglary a ''Theft'' Offense ?
In Chambers v. State, 736 S.W.2d 192 (Tex. App.--Dallas 1987, no pet.), the Dallas Court of Appeals held that a burglary conviction does not constitute a conviction of "any grade of theft" for purposes of Section 31.03(e)(4)(D).
The Chambers court reasoned that since the elements of burglary do not include a completed theft, but merely "with intent to commit theft," burglary should not be deemed a "theft" offense. Id. at 195.
Using this same rationale in another case, the Court held that the elements of forgery do not include an intent to commit theft nor a completed theft. Shaw v. State, 794 S.W.2d 544, 545 (Tex. App.--Dallas 1990, no pet.).
Once again, the court reasoned that the differences between forgery and theft are even more distinct than the differences between burglary and theft.
Since the elements of forgery do not include a completed theft, the Court held that forgery should not be deemed a "theft" offense for purposes of Section 31.03(e)(4)(D). Id.
The Texarkana Court of Appeals has held that aggravated robbery is not a theft for purposes of Section 31.03(e)(4)(D). Coleman v. State, 947 S.W.2d 586, 587 (Tex. App.--Texarkana 1997, no pet.).
Another court has held that credit card abuse is not a "theft" within the meaning of the aforementioned section. Colquitt v. State, 650 S.W.2d 128, 129 (Tex. App.--Houston [14th Dist.] 1983, no pet.).
The term "grade of theft" has the following common legal meaning:
Graded offense. One for which offender is subject to a more severe penalty for a higher grade than for a lower grade of offense according to terms of statute; e.g., first degree murder, as opposed to second or third degree; aggravated as opposed to simple assault. Most state criminal statutes provide for degrees of crimes with corresponding differing punishments or sentences. BLACK'S LAW DICTIONARY 698 (6th ed. 1990).