Being charged with shoplifting can be embarrassing and lead to potentially devastating professional consequences. There are few things as potentially damaging to a person’s job prospects than a conviction for shoplifting (known as theft in Texas) since that calls into question a person’s honesty and reliability. Fortunately, keeping a shoplifting conviction off of your record is possible.
The majority of shoplifting cases in Houston are filed as misdemeanors. The type of misdemeanor will depend on the value of the merchandise alleged to have been taken. Under $100 is a Class “C” misdemeanor, a Class “B” is $100 to $750 and a Class “A” is $750 to $2500.
As in all cases, your criminal defense attorney will first want to review the evidence and conduct his own investigation. In most shoplifting cases, the evidence will include witness statements, surveillance videos, and a police report. It is critical that your attorney obtain this evidence since the State may not be able to prove that you are guilty of theft if the evidence can help show that you did not intend to shoplift.
But what if the State can prove its shoplifting case against you? Fortunately, you still have options. One option might be a pre-trial diversion. In Houston, the Harris County District Attorney’s Office has a program known as the Retail Theft Diversion Program. This program is available to first-time shoplifting defendants who meet certain requirements.
First, the program is only open to retail theft defendants who are alleged to have shoplifted $100-750 worth of merchandise. The program is not open to anyone charged with employee theft or thefts against individuals. Next, a person cannot have any other criminal history as an adult. If you meet the requirements of this program, the application process is relatively simple and the program lasts as little as 90 days. If you complete the program’s requirements, your case will be dismissed and you will eventually be able to have your shoplifting case expunged. An expunction is the best possible result in a criminal case since it results in the destruction of all records relating to your theft case. It is important to remember that even though your case might be dismissed, it will still appear on a criminal history search until the expunction is complete.
In Houston, the Retail Theft Diversion program is a good option for many people charged with shoplifting although it is always better to obtain an outright dismissal. Certain pre-trial diversion programs sometimes limit your right to obtain an expunction or ask you to agree that the District Attorney’s Office can retain a record of the fact that you completed a pre-trial diversion. Although this may not matter in most cases, it is preferable to have records of your shoplifting arrest destroyed everywhere, including the District Attorney’s Office’s files. Although pre-trial diversion programs are a good option, I believe that a lawyer does a disservice to his or her clients if the plan at the beginning of the case is to enroll a client in a pre-trial diversion program. These programs should be seen as a fallback in a shoplifting case.
If you do not meet the requirements of the Retail Theft Diversion program, your criminal defense attorney may still be able to negotiate a dismissal of your case some other way. It is your criminal defense lawyer’s job to challenge the evidence aggressively and present the circumstances of your arrest as sympathetically as possible. Very often, it is possible to negotiate an informal dismissal of a theft case with payment of restitution, community service, or a donation to a non-profit organization like a food bank.
If a dismissal is not possible through the Retail Theft Diversion or pre-trial diversion, trial is always an option. At trial, it would be the State’s burden to prove that you intended to steal. Under the facts of many cases, this can be very difficult for the State, and an experienced criminal defense lawyer can help you secure an acquittal. Several years ago, I represented an older woman with no criminal history who was undergoing chemotherapy and accidentally walked out of the store with some items that were unpaid. Initially, the prosecutor did not believe that this was a mistake and claimed that my client stole the items intentionally. Because I trusted this particular prosecutor, I shared some information with him regarding some prescriptions my client had that have side effects that can lead to confusion (which was evident in my client’s behavior on the video). The case was dismissed, but even if it had not been, I would have felt confident in securing a “not guilty” verdict at trial, since under the facts of the case, it would have been very difficult for the prosecutor to prove intent and overcome the presumption of innocence.
One option in a shoplifting case that I am not fond of, but that is available, is deferred adjudication. Deferred adjudication is a type of probation that, if completed successfully, allows for your records to be “sealed” (also known as a “non disclosure”). Although not nearly as good as an expunction, getting your records sealed is the next best thing and prevents most private entities and employers from being able to see the shoplifting case. In most cases, after your non-disclosure is complete in your theft case, you will even be able to deny the existence of the arrest itself. Unfortunately, many government agencies will still be able to see the offense (and hold it against you). A deferred adjudication is also not helpful if you are not a United States Citizen. For this reason, a deferred adjudication is usually the last option in a theft case.
Over the years, I have come to see that the majority of shoplifting defendants are good people who briefly failed to exercise good judgment. The job of a criminal defense attorney is to ensure that a mistake does not follow a client around for life. If you are charged with shoplifting anywhere in the Greater Houston Area, Attorney Jose Ceja is an excellent choice. Jose Ceja is a former prosecutor who practices regularly in Harris, Montgomery, Fort Bend, Brazoria, Galveston, and Chambers Counties. Call today to schedule a free consultation.