Lang, Terri Regina, 561 S.W.3d 174

Background

In Oct. 2013 Terri Lang was observed concealing unpaid items in reusable bags at an HEB, paid for some items, then attempted to leave with unpaid merchandise worth $565.59. Paid items totaled $262.17.
Lang was indicted and convicted by a jury for state-jail felony organized retail theft under Tex. Penal Code § 31.16(b)(1) (value $500–<$1,500); sentence: 20 months in state jail.
On direct appeal Lang argued the statute does not reach ordinary shoplifting by a solitary actor and that such a construction would be absurd; the court of appeals upheld the conviction, reading the statute as covering possession of recently stolen merchandise.
This Court granted review to address whether the statute permits conviction for ordinary shoplifting by a single actor and whether legislative history may be considered.
The Court found the statutory language ambiguous, reviewed extensive legislative history showing the statute targeted organized theft rings and post‑theft resale, and concluded the statute was not intended to cover ordinary shoplifting by a lone actor.
Because the record showed only solitary shoplifting, the Court held the evidence insufficient to support the organized retail theft conviction and reversed and remanded to allow the court of appeals to consider reformation to any lesser included offense.

Issues

Issue	Plaintiff's Argument (Lang)	Defendant's Argument (State)	Held
Whether § 31.16(b) permits conviction for ordinary shoplifting by a solitary actor	§31.16 targets group/organized activity and post‑theft transfer; does not apply to lone shoplifter	Statutory text plainly covers any conduct that “conducts, promotes, or facilitates an activity” involving possession of stolen retail merchandise, including a shoplifter leaving the store	The statute is ambiguous; legislative history shows it targets organized, post‑theft schemes, not ordinary solitary shoplifting; conviction reversed for insufficiency
Whether courts should consult legislative history despite a plain‑text reading	Legislative history shows Legislature intended to target professional rings and post‑theft activity; courts may consult history	Court of appeals: language is plain, so extra‑textual sources unnecessary	This Court declined to revisit its precedent on when to consult legislative history because ambiguity warranted consulting it here
Whether the phrase “stolen retail merchandise” means post‑theft activity only	The phrase and statute structure indicate the statute addresses activity after theft (receipt, concealment, resale) distinct from the theft itself	The State: a person who has committed theft necessarily ‘‘possesses’’ stolen merchandise and thus falls within §31.16(b)	Court: statutory terms reasonably admit both readings; legislative history supports the narrower, post‑theft/organized‑ring reading
Remedy when greater‑offense conviction is unsupported but lesser offense is shown	If evidence supports a lesser included offense (theft), appellate court should consider reforming judgment before acquittal	State urged affirmance of organized retail theft conviction	Court remanded to court of appeals to consider reformation to a lesser included offense (declined to decide reformation itself)

Key Cases Cited

Jackson v. Virginia, 443 U.S. 307 (review of sufficiency of the evidence standard)
Cary v. State, 507 S.W.3d 750 (Tex. Crim. App.) (application of Jackson standard)
Boykin v. State, 818 S.W.2d 782 (Tex. Crim. App.) (principles on consulting legislative history and plain meaning)
Delay v. State, 465 S.W.3d 232 (Tex. Crim. App.) (construing penal provisions in sufficiency review)
Bryant v. State, 391 S.W.3d 86 (Tex. Crim. App.) (when statute is ambiguous)
Baird v. State, 398 S.W.3d 220 (Tex. Crim. App.) (statutory ambiguity standard)
State v. Neesley, 239 S.W.3d 780 (Tex. Crim. App.) (unambiguous statute permits only one reasonable understanding)
Hardy v. State, 963 S.W.2d 516 (Tex. Crim. App.) (presumption every word in statute has purpose)
Yazdchi v. State, 428 S.W.3d 831 (Tex. Crim. App.) (context and common usage in statutory construction)
Clinton v. State, 354 S.W.3d 795 (Tex. Crim. App.) (use of dictionaries to determine statutory meaning)
Arteaga v. State, 521 S.W.3d 329 (Tex. Crim. App.) (extra‑textual factors listed in Tex. Gov’t Code § 311.023)
Ramos v. State, 303 S.W.3d 302 (Tex. Crim. App.) (statutory construction reviewed de novo)
Thornton v. State, 425 S.W.3d 289 (Tex. Crim. App.) (reformation to lesser included offense when appropriate)