Terri Regina LANG, Appellant v. The STATE of Texas

NO. PD-0563-17

Court of Criminal Appeals of Texas.

Delivered: November 21, 2018

Alcala, J., delivered the opinion of the Court in which Keller, P.J., Keasler, Hervey, Richardson, Keel, and Walker, JJ., joined.

The issue in this case is whether the statute defining the offense of organized retail theft permits a conviction for ordinary shoplifting by a single actor. *See* TEX. PENAL CODE § 31.16(b). Terri Regina Lang, appellant, challenges the sufficiency of the evidence to support her conviction for that offense after she was caught attempting to steal items from a grocery store. On direct appeal, appellant contended that her conduct in engaging in ordinary shoplifting, by herself and without the cooperation of others, could not, as a matter of law, properly give rise to a conviction for organized retail theft. The court of appeals rejected her argument, concluding that the statutory language plainly permits a conviction under these circumstances. We granted appellant's petition for discretionary review to evaluate the court of appeals's analysis of her sufficiency challenge. We disagree with the court of appeals's conclusion that the organized retail theft statute plainly permits a conviction for this type of conduct, and we instead hold based on our analysis of the ambiguous statutory language, viewed in light of the statute's extensive legislative history, that this statute does not apply to the conduct of an ordinary shoplifter acting alone. Because the facts in this case show that appellant did not engage in any conduct beyond committing ordinary shoplifting by herself, we will vacate her conviction for organized retail theft. We reverse the judgment of the court of appeals and remand this case to that court for it to consider, in the first instance, whether the judgment should be reformed to any lesser included offense.1

**I. Background**

In October 2013, appellant was shopping at HEB when an employee observed her placing unpaid-for merchandise into reusable shopping bags in her cart. Appellant also placed items inside a reusable shopping bag that was tied to the right-hand side of her cart. Thinking this behavior unusual, the employee began observing appellant as she shopped for around one hour. Appellant eventually finished shopping and headed towards the checkout. As *177appellant went through the checkout, the employee observed appellant place the reusable bags from inside her cart on the conveyor belt so that the items inside could be scanned by the cashier. However, appellant did not do so with the bag that was tied to the side of her cart. After appellant paid for the items that had been inside her cart, she loaded the items back into the cart and headed towards the store's exit. Once appellant had exited the main doors, the employee and her manager stopped appellant and questioned her about the bag tied to the side of her cart, which was full of unpaid-for items. The store employees called the police, who arrived and eventually arrested appellant. Upon tallying up the value of the items found in appellant's possession, store employees determined that the value of the unpaid-for merchandise totaled $565.59 before tax, whereas the paid-for merchandise totaled $262.17.

Appellant was charged and tried by a jury for the state-jail felony offense of organized retail theft involving merchandise valued at $500 or more but less than $1,500. *See* TEX. PENAL CODE § 31.16(b)(1), (c)(3) (West 2014).2 After the jury convicted her, the trial court assessed her punishment at confinement for 20 months in a state-jail facility.

On direct appeal, appellant argued that the evidence was legally insufficient to support her conviction. Appellant presented two arguments in support of her position. First, she contended that the offense of organized retail theft cannot be committed by an ordinary shoplifter acting alone-rather, the statute requires group action or collaborative effort. Second, she contended that it would lead to absurd results to construe the statute to permit a conviction for every instance of ordinary shoplifting. The court of appeals rejected these arguments. *Lang v. State* , No. 03-15-00332-CR, 2017 WL 1833477 (Tex. App.-Austin May 5, 2017) (mem. op., not designated for publication).

The court of appeals began its analysis by construing the statutory language, which provides that a person commits an offense if she "intentionally conducts, promotes, or facilitates an activity in which the person receives, possesses, conceals, stores, barters, sells, or disposes of: (1) stolen retail merchandise; or (2) merchandise explicitly represented to the person as being stolen retail merchandise." TEX. PENAL CODE § 31.16(b)(1), (b)(2). In rejecting appellant's contention that the statute requires group action and thus cannot be violated by a person acting alone, the court of appeals observed that the statute "has no explicit language regarding acting with others." *Lang,*2017 WL 1833477, at *4. The court consulted dictionary definitions for the statutory terms "conducts, promotes, or facilitates," and it determined that the definitions for those terms "do not require (and are not limited to) collective behavior or group involvement." *Id.* Furthermore, viewing those statutory terms in context, the court observed that what is conducted, promoted, or facilitated is an "activity," not another person. *Id.* at *6. Thus, the court concluded, "Nothing in the statutory language requires that the person committing the offense work with others when engaging in the prohibited behavior." *Id.*

*178Regarding appellant's second contention-that the statute results in absurdity if construed to cover every act of ordinary shoplifting-the court of appeals also rejected that argument. With respect to this matter, appellant had contended that the statutory phrase referring to "stolen retail merchandise" suggests that the statute applies to a person whose criminal activity begins after a theft has already occurred; thus the statute addresses "post-theft activity, not a theft itself." In resolving this argument, the court of appeals observed that "stolen" is the past participle of "steal," which the Penal Code defines as "to acquire property or service by theft." *Id.* at *7 (citing TEX. PENAL CODE § 31.01(7) ). The offense of theft, in turn, requires proof that a person "unlawfully appropriates property with intent to deprive the owner of property." *Id.* (citing TEX. PENAL CODE § 31.03(a) ). Viewing these statutory requirements in conjunction with the language of the organized retail theft statute, the court of appeals reasoned that a person who commits theft by "unlawfully appropriat[ing] retail merchandise also 'possesses' stolen retail merchandise" within the meaning of the organized retail theft statute. *Id.* Thus, the court effectively held that a person who has committed theft of retail merchandise also necessarily commits the offense of organized retail theft. *Id.* Because the court of appeals concluded that the statutory language would permit only one reasonable understanding and thus was plain, it declined appellant's request that it consider extra-textual sources, including the statute's legislative history. *Id.*

Applying its understanding of the statutory requirements to the facts of appellant's case, the court of appeals upheld her conviction through the following reasoning:

> The evidence in this case demonstrated that appellant unlawfully appropriated retail merchandise from HEB when she concealed various items in the reusable shopping bag tied to her shopping cart and attempted to leave the store without paying for the items. After committing the theft, she possessed stolen retail merchandise as she tried to leave the store with the unlawfully appropriated items. This evidence was sufficient to support the jury's verdict convicting appellant of organized retail theft.

*Id.*

We granted three grounds in appellant's petition for discretionary review to evaluate the court of appeals's analysis of her sufficiency challenge.3

**II. Analysis**

In her petition for discretionary review, appellant challenges the court of appeals's analysis of the organized retail theft statute and its ultimate conclusion upholding *179her conviction. She asserts that the court of appeals erred by concluding that the statutory language is plain and by declining to consider the legislative history, which she asserts clearly shows that the statute was not intended to apply to the conduct of an ordinary shoplifter acting alone. She contends that, to the extent this Court's precedent governing statutory interpretation disallows a court from consulting extra-textual sources except in the event of ambiguity or an absurd result, this Court should overrule that precedent and permit consideration of extra-textual sources regardless of whether the statutory language is ambiguous or plain. She further asserts that, properly interpreting the language in the organized retail theft statute in light of the clear legislative history, the statute targets activities that occur after retail merchandise has already been stolen, rather than the act of theft itself, and that the statute requires proof of collective or group effort to support a conviction. In view of these requirements, she maintains that the evidence is insufficient to support her conviction when the evidence adduced at trial showed only that she committed ordinary shoplifting by herself.

We agree with appellant's position that the court of appeals erred by concluding that the statutory language is plain and by holding that resort to extra-textual sources is not warranted. In view of the ambiguous statutory language and the relevant legislative history, we conclude that the organized retail theft statute was not intended to target the conduct of ordinary shoplifters acting alone, such as appellant, and instead requires proof of some activity that is distinct from the act of theft itself. With respect to appellant's ground asking this Court to modify its rules of statutory interpretation, we will decline to consider that issue as it is unnecessary to the resolution of this case. After reviewing the applicable law, we explain each of these conclusions in turn below.

**A. Applicable Law**

Due process requires that the State prove, beyond a reasonable doubt, every element of the crime charged. *Jackson v. Virginia* , 443 U.S. 307, 318-19, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). In evaluating the legal sufficiency of the evidence to support a criminal conviction, a reviewing court must determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. *Id.* at 319, 99 S.Ct. 2781 ; *see also**Cary v. State,*507 S.W.3d 750, 757 (Tex. Crim. App. 2016).

Here, the parties do not dispute that the evidence, viewed in the light most favorable to the prosecution, shows that appellant stole items from HEB by placing them in her reusable shopping bag, failing to pay for those items in the checkout line, and then attempting to leave the store while still possessing the items. The dispute here centers on whether these facts, as a matter of law, are adequate to establish the offense of organized retail theft. To resolve this question, we must construe the organized retail theft statute to determine whether it properly reaches this type of conduct. *See**Delay v. State,*465 S.W.3d 232, 235 (Tex. Crim. App. 2014) (recognizing that sufficiency review sometimes "involves simply construing the reach of the applicable penal provision in order to decide whether the evidence, even when viewed in the light most favorable to conviction, actually establishes a violation of the law").

When interpreting statutes, we seek to effectuate the collective intent or purpose of the legislators who enacted the legislation.

*180*Boykin v. State* , 818 S.W.2d 782, 785 (Tex. Crim. App. 1991). We focus our attention on the literal text of the statute in question and "attempt to discern the fair, objective meaning of that text at the time of its enactment." *Id.* "[I]f the meaning of the statutory text, when read using the established canons of construction relating to such text, should have been plain to the legislators who voted on it, we ordinarily give effect to that plain meaning." *Id.* In interpreting the literal text of a statute, we must "presume that every word in a statute has been used for a purpose and that each word, phrase, clause, and sentence should be given effect if reasonably possible." *State v. Hardy* , 963 S.W.2d 516, 520 (Tex. Crim. App. 1997). We read words and phrases in context and construe them according to the rules of grammar and common usage. *Yazdchi v. State* , 428 S.W.3d 831, 837 (Tex. Crim. App. 2014). Courts may consult standard dictionaries in determining the fair, objective meaning of undefined statutory terms. *Clinton v. State* , 354 S.W.3d 795, 800 (Tex. Crim. App. 2011).

However, if a statute's language is ambiguous, or if application of the statute's plain meaning would lead to an absurd result that the Legislature could not possibly have intended, then a court may consider extra-textual factors. *Boykin* , 818 S.W.2d at 785-86. A statute is ambiguous when it "may be understood by reasonably well-informed persons in two or more different senses." *Bryant v. State* , 391 S.W.3d 86, 92 (Tex. Crim. App. 2012) ; *see also**Baird v. State* , 398 S.W.3d 220, 229 (Tex. Crim. App. 2013) (statute is ambiguous when the language it employs is "reasonably susceptible to more than one understanding"). On the other hand, a statute is unambiguous when it reasonably permits no more than one understanding. *State v. Neesley* , 239 S.W.3d 780, 783 (Tex. Crim. App. 2007). Extra-textual factors that we may consider include (1) the object sought to be attained by the Legislature; (2) the circumstances under which the statute was enacted; (3) the legislative history; (4) the common law or former statutory provisions, including laws on the same or similar subjects; (5) the consequences of a particular construction; (6) the administrative construction of the statute; and (7) the title or caption, preamble, and any emergency provision. TEX. GOV'T CODE § 311.023 ; *Arteaga v. State* , 521 S.W.3d 329, 334 (Tex. Crim. App. 2017). Statutory construction is a question of law that we review de novo. *Ramos v. State* , 303 S.W.3d 302, 306 (Tex. Crim. App. 2009).

**B. Analysis of Elements of Organized Retail Theft**

In pertinent part, the elements of the offense of organized retail theft are:

> (b) A person commits an offense if the person intentionally conducts, promotes, or facilitates an activity in which the person receives, possesses, conceals, stores, barters, sells, or disposes of:

> (1) stolen retail merchandise[.]

TEX. PENAL CODE § 31.16(b).4

Examining the statutory text as it would apply to these circumstances, we *181determine that it is susceptible of more than one reasonable interpretation, thereby rendering it ambiguous. The statutory language refers to an "activity" involving "stolen retail merchandise." *Id.* By its use of the past participle of steal (e.g., "stolen"), the statute indicates that whatever "activity" is covered takes place with respect to retail merchandise that has already been stolen. The question then arises as to what type of "activity" would suffice to satisfy the statute's requirements. Is it enough, as the court of appeals suggested, for a person to shoplift items of retail merchandise and then attempt to leave the store with the stolen items, thereby conducting an activity (leaving the store) in which the person possesses the retail merchandise she has just stolen? *See id.* ; *Lang* , 2017 WL 1833477, at *7. Or, on the other hand, as appellant suggests, does the entire statutory phrase, "intentionally conducts, promotes, or facilitates an activity in which the person receives, possesses, conceals, etc. ... stolen retail merchandise," indicate that the statute requires proof of some activity distinct from the conduct inherent in shoplifting itself-that is, does the statute require proof of something more than the mere continued possession of stolen retail merchandise during an attempt to leave the store following the simple act of shoplifting? An examination of the ordinary meanings of the statutory terms is unhelpful in resolving this dispute because the definitions for those terms might reasonably support either interpretation.5 Because both views of the statutory language are plausible ones, we must consult extra-textual considerations to discern the Legislature's intent for the meaning of the statute. *See**Boykin* , 818 S.W.2d at 785-86.

**C. Analysis of Extra-Textual Factors**

In evaluating ambiguous statutory language in light of extra-textual considerations, we may consider, among other matters, the object sought to be attained by the Legislature; the circumstances under which the statute was enacted; and the legislative history. *See* TEX. GOV'T CODE § 311.023 ; *Arteaga* , 521 S.W.3d at 334. Our analysis of the legislative history below encompasses all of these considerations and shows that this statute was not intended to criminalize every act of ordinary shoplifting, but was instead intended to target professional crime rings involved in the large-scale theft and reselling of stolen retail merchandise.

As of the time of its original enactment in 2007, the legislative history shows that the organized retail theft statute was intended to reach conduct distinct from that of an ordinary shoplifter acting alone. The *182House Criminal Jurisprudence Committee Bill Analysis for House Bill 3584 stated,

> Organized retail crime is distinct from petty shoplifting in that it involves professional theft rings that move quickly from community to community and across county lines to steal large amounts of merchandise. This criminal activity requires many thieves (boosters) organized by a central figure (fence) that pays the boosters pennies on the dollar, then repackages and resells the merchandise through alternate distribution channels to the general public.

Bill Analysis, House Criminal Jurisprudence Committee, H.B. 3584, 80th Leg., R.S. (2007). The corresponding Senate Research Center report similarly stated, "Organized retail theft is a highly organized criminal activity that depends on many thieves organized by a central 'fence' who collects the stolen merchandise and then resells it to the general public." Bill Analysis, Senate Research Center, H.B. 3584, 80th Leg., R.S. (2007). These sources suggest that the Legislature's primary concern in enacting the statute was on targeting organized retail theft crimes, as well as the post-theft transfer and reselling of retail goods by such groups, rather than a concern for the conduct of petty shoplifters acting alone.

Subsequent legislative history from the 2011 amendments to the statute also support this understanding of the legislative intent underlying the statute. The Senate Research Center bill analysis for the amendments echoed the original legislative intent by noting that organized retail crime "is the orchestrated scheme to convert stolen goods to cash. It can generally be described as professional burglars, boosters, cons, thieves, fences and resellers conspiring to steal and sell retail merchandise obtained from retail establishments by theft or deception." Senate Research Center, Bill Analysis, H.B. 2482, 82nd Leg., R.S. (2011). The bill analysis continued, "H.B. 2482 targets the patterns of these crimes committed by corrupt enterprises by allowing the major players and ring leaders to be held accountable. This bill makes it a crime to receive the stolen goods; intentionally conduct, promote, or facilitate the corrupt activity; or be employed by or associated with the enterprise by engaging in the activity." *Id.*

The legislative history suggests that the purpose of the 2011 amendments was not to ensnare the conduct of petty shoplifters, but was instead to "impose stronger punishment and penalties on these large-scale organized retail thefts because they lead to retail business losses and closings, the loss of jobs, and the loss of sales tax revenue, which in turn will have a devastating effect on Texas' economy." House Criminal Jurisprudence Committee Report (Substituted), C.S.H.B. 2482, 82nd Leg., R.S. (2011).

The legislative history from 2011 further reveals that the amendment's removal of the $1,500 minimum value threshold for this statute and the lowering of the overall value amounts that determine the range of punishment were intended to provide greater distinction between ordinary theft and organized retail theft. The House Research Organization noted that supporters of the legislation had made the following assertions:

> Creating misdemeanor charges for organized retail theft under $500 and lowering the value ladder on all felony charges would provide the stiffer penalties that are warranted for this crime. Prosecutors currently do not use the organized retail theft statute frequently because the penalties are the same as for general theft.

> The con artists who commit this crime are very aware of the current $1,500 *183threshold for organized retail theft and adroitly stay just beneath it, knowing that if they get caught they will get the equivalent of a traffic ticket and can keep stealing. These criminals consider this a low-risk and high-reward crime; they often steal $10,000 to $20,000 worth of merchandise in a single day. Making the penalties steeper would deter them from committing this serious crime....

House Research Organization, Bill Analysis, H.B. 2482, 82nd Leg., R.S. (2011).

Considering this clear legislative history in conjunction with the ambiguous statutory language described above, we conclude that it supports the view that the organized retail theft statute was not intended to apply to the conduct of an ordinary shoplifter acting alone. The legislative history indicates that the crime of organized retail theft was intended to be distinct from "petty shoplifting" and that the statute was enacted for the purpose of targeting professional theft rings involved in the large-scale theft, transfer, repackaging, and reselling of stolen retail merchandise. Frequently, the targeted activity would involve coordinated effort by multiple individuals.6 Nothing about the legislative history signals that this statute was intended to broadly apply to all people who commit ordinary shoplifting of retail merchandise. Accordingly, we conclude that the proper interpretation of the statutory phrase "intentionally conducts, promotes, or facilitates an activity in which the person receives, possesses, conceals, stores, barters, sells, or disposes of stolen retail merchandise," requires proof of conducting, promoting, or facilitating some activity distinct from the mere activity inherent in the ordinary shoplifting of retail items by a single actor. *See* TEX. PENAL CODE § 31.16(b)(1).

In view of these considerations, we hold that the court of appeals erred by concluding that the organized retail theft statute plainly permits appellant's conviction under these circumstances. Based on the foregoing analysis, we conclude that appellant's conduct in stealing items from HEB and then attempting to leave the store with those items does not establish that she intentionally conducted, promoted, or facilitated an activity in which she received, possessed, concealed, stored, bartered, sold, or disposed of stolen retail merchandise. *See id.* As we have explained above, the statute requires proof of some activity undertaken with respect to stolen retail merchandise that goes beyond the conduct inherent in ordinary shoplifting. The record here fails to include any such proof. We hold that the evidence is insufficient to support appellant's conviction for organized retail theft, and we therefore *184sustain her second and third grounds for review challenging the court of appeals's sufficiency analysis.

**D. Remaining Issues**

Having determined that the evidence is legally insufficient to support appellant's conviction, we need not reach her first ground in her petition for discretionary review. In that ground, appellant contends that this Court should abandon the rule that prohibits consideration of extra-textual sources except in the event of an ambiguity in the statutory language or an absurd result that the Legislature could not possibly have intended. *See**Boykin,*818 S.W.2d at 785. Given our resolution of the other grounds in appellant's favor, we find it unnecessary to revisit our precedent in this area at this juncture, and we will not consider appellant's arguments with respect to this issue.

The question remains of what remedy is proper under these circumstances. In this case, appellant has conceded that the evidence is sufficient to show that she committed conduct that would amount to theft. *See* TEX. PENAL CODE § 31.03(a). This Court has held that, when the evidence is deemed legally insufficient to support a person's conviction for a greater offense, but the analysis as to insufficiency raises the possibility that the record establishes the person is nevertheless guilty of some lesser-included offense, the appellate court should consider reforming the judgment to a lesser-included offense before rendering a judgment of acquittal. *See**Thornton v. State* , 425 S.W.3d 289, 299-300 (Tex. Crim. App. 2014). The parties have not briefed this issue in this Court, and we decline to address this question in the first instance. Accordingly, we remand the case to the court of appeals for it to consider this matter with the benefit of briefing from the parties.

**III. Conclusion**

Based on our conclusion that the evidence is legally insufficient to support appellant's conviction for the offense of organized retail theft, we reverse the judgment of the court of appeals upholding her conviction. We remand this case to the court of appeals for it to consider whether the judgment of conviction should be reformed to any lesser included offense.

Keller, P.J., filed a concurring opinion. Yeary, J., filed a dissenting opinion. Newell, J., concurred.

Keller, P.J., filed a concurring opinion.

A statute must be construed in accordance with the plain meaning of its text unless the text is ambiguous or the plain meaning would lead to absurd results that the legislature could not have possibly intended.1 The organized retail theft statute says:

> A person commits an offense if the person intentionally *conducts, promotes, or facilitates an activity in which the person* receives, possesses, conceals, stores, barters, sells, or disposes of ... stolen retail merchandise.2

Does the meaning of the statute change if the italicized language is removed? Although terms in a statute can sometimes overlap,3 rendering the main verbs in a statute meaningless is an absurd result that the legislature could not have possibly *185intended.4 But that is exactly what happens if this statute is applied to a mere shoplifter. It is suggested that Appellant was not a mere shoplifter because she left the store with the items she stole. But the whole point of theft is to "deprive the owner of property."5 One does not expect a person who steals property from a store to remain in the store indefinitely, so leaving the store is not a sufficiently distinct act from the initial theft.6

With these comments I join the Court's opinion.

***DISSENTING OPINION***

Yeary, J., filed a dissenting opinion.

We are called upon in this case to review a court of appeals' interpretation of a penal statute. Here, the question is whether the reach of the organized retail theft statute extends to Appellant's conduct. The court of appeals found that the language of the statute plainly did, and it declined to consult extra-textual factors to "construe" that which it believed needed no construction. I agree that the meaning of the statute is plain on its face-though I believe its plain meaning to be different in an important respect from the court of appeals' perception. Because I find the statutory language to be unambiguous, I disagree with this Court's resort today to extra-textual factors. And because I believe the statute on its face plainly extends to proscribe Appellant's conduct, I would ultimately affirm the court of appeals' judgment. Because the Court does not, I respectfully dissent.

**I. INTRODUCTION**

Appellant was convicted of the offense of organized retail theft, under Section 31.16(b)(1) of the Texas Penal Code. *See* TEX. PENAL CODE § 31.16(b) ("A person commits an offense if the person intentionally conducts, promotes, or facilitates an activity in which the person receives, possesses, conceals, stores, barters, sells, or disposes of ... stolen retail merchandise[.]"). On appeal, she challenged the legal sufficiency of the evidence to support her conviction, contending that the evidence at trial showed nothing more than that she was a solitary shoplifter, and not a member of an organized retail theft ring.

The court of appeals held that the plain language of Section 31.16(b)(1) reaches unaffiliated shoplifting offenders; and, because there was sufficient evidence to establish that Appellant came to possess stolen merchandise of the requisite value from a grocery store, the court of appeals held the evidence to be legally sufficient to support her conviction as a state-jail felon. *Lang v. State* , No. 03-15-00332-CR, 2017 WL 1833477, at *7 (Tex. App.-Austin May 5, 2017) (mem. op., not designated for publication). Finding the meaning of the statute to be plain, the court of appeals refused even to consider Appellant's proffered evidence of legislative history, which, she contended, supports the proposition that the Legislature did not intend the statute to duplicate the theft statute's *186coverage of the solitary shoplifter.1*See id.* ("[B]ecause we conclude that the statute is unambiguous and does not lead to absurd results, we need not, indeed may not, resort to extra-textual sources."). We granted Appellant's petition for discretionary review in order to address the court of appeals' methodology in interpreting the statute, as well as its ultimate conclusion regarding the scope of the statute. Although I do not agree with every particular of the court of appeals' analysis, I would nevertheless affirm its judgment.

**II. BACKGROUND**

Appellant entered an HEB in Marble Falls on October 2, 2013, with several reusable grocery bags. She spent more than an hour in the aisles of the store, placing merchandise into the reusable bags in her shopping cart. When she approached the check-out counter, she placed several of the reusable bags on the conveyer belt, but an additional reusable bag containing merchandise remained hanging from the side of her shopping cart-tied to the handle of the cart but on the side that was away from the cashier. Appellant never placed those items of merchandise on the conveyer belt. Once she had paid for the items that she *had* placed on the conveyer belt, she exited the store. She was stopped just outside the door, and the police were called. The unpaid-for items totaled over $500 in retail value.

Rather than charge her under the ordinary theft statute, the State indicted Appellant for the more particularized offense of organized retail theft, alleging that she "did intentionally conduct and promote and facilitate an activity in which [she] received and possessed and concealed and stored stolen retail merchandise," of an amount exceeding $500 in value. The jury convicted her of that offense, and the trial court assessed her punishment at twenty months' confinement in a state-jail facility and a fine of $1,060. *See* TEX. PENAL CODE § 31.06 (c)(3), as amended by Acts 2011, 82nd Leg., ch. 323, § 3, p. 942, eff. Sept. 1, 2011 (amending the statute to provide that retail theft of an amount of more than $500 but less than $1,500 constitutes a state-jail felony, susceptible to punishment of confinement in a state jail for not more than two years or less than 180 days, and a fine of up to $10,000, under TEX. PENAL CODE § 12.35(a) and (b) ).

On appeal, Appellant argued that the evidence was insufficient to prove that she had committed the offense of organized retail theft because there was no evidence to show that her actions were part of a larger criminal enterprise. She maintained both that: 1) the offense of organized retail theft requires evidence that Appellant was acting in concert with others as part of a larger group activity; and 2) the organized retail theft statute cannot reasonably be construed to reach the conduct of an ordinary shoplifter, even if she is acting with others. Relying on the literal language of the statute itself, as illuminated by the rules of grammar and standard dictionary definitions, the court of appeals held that the plain language of the organized retail theft statute belied Appellant's asserted construction. *Lang* , 2017 WL 1833477, at *3-7. Along the way, the court of appeals declined to consider the legislative history of the statute, observing that, "because we conclude that the statute is unambiguous and does not lead to absurd results, we *187need not, indeed may not, resort to extra-textual sources." *Id.* at *7. "Consequently," the court of appeals concluded, "we give effect to the plain meaning of the statute, which does not require proof that [A]ppellant committed this offense working with others and applies to the underlying theft [A]ppellant committed." *Id.*

In her petition for discretionary review, Appellant now argues that: 1) the literal language of the statute is ambiguous; 2) even if plain, the literal language of the statute leads to absurd results that the Legislature could not conceivably have intended, and; 3) even if the statutory language seems plain and sensible, Section 311.023 of the Code Construction Act (applicable to the Texas Penal Code via TEX. PENAL CODE § 1.05(b) ) would permit the court of appeals to consult extra-textual sources such as legislative history for help in discerning the legislative intent. She argues that *Boykin v. State* , 818 S.W.2d 782 (Tex. Crim. App. 1991), should be disavowed to the extent that it prohibits judicial reference to legislative history in the absence of ambiguity or absurdity in the statutory language. *See* TEX. GOV'T CODE § 311.023 (providing that "a court may consider among other matters" "legislative history" when construing a statute, "whether or not the statute is considered ambiguous on its face"). Especially when considering the legislative history, Appellant contends, it is clear that the Legislature did not intend for the organized retail theft statute to reach the conduct of an ordinary shoplifter-or, at least, not an ordinary *unaffiliated* shoplifter.

**III. *BOYKIN***

In *Boykin* , we emphasized the primacy of the literal language of the statute itself. We explained that "we necessarily focus our attention on the literal text of the statute in question and attempt to discern the fair, objective meaning of that text at the time of its enactment." 818 S.W.2d at 785. Just as the court of appeals discerned in this case, *Lang* , 2017 WL 1833477, at *7, *Boykin* absolutely prohibits courts from consulting extra-textual factors such as legislative history unless the literal language of the statute is ambiguous, or unless the plain language of the statute would lead to absurd results. *See*818 S.W.2d at 785-86 ("If the plain language of statute would lead to absurd results, or if the language is not plain but rather ambiguous, then *and only then* , out of absolute necessity, is it constitutionally permissible for a court to consider, in arriving at a sensible interpretation, such *extra* textual factors as executive or administrative interpretations of the statute or legislative history."). For courts to resort to examination of extra-textual considerations to justify their construction of statutes that are plain on their faces would only serve to invade the province of the Legislative Department. *Id.* at 786 n.4. The Texas Supreme Court is in accord with this methodology. *See**BankDirect Capital Finance v. Plasma Fab* , 519 S.W.3d 76, 84-85 (Tex. 2017) ("We must resist the interpretive free-for-all that can ensue when courts depart from the statutory text to mine extrinsic clues prone to contrivance. * * * If it is not necessary to depart, it is necessary not to depart.").

Appellant argues that, *Boykin* 's principles notwithstanding, even if we are unable to agree with her that the organized retail theft statute is ambiguous or absurd, we should still consider the legislative history. We are authorized to do so, she maintains, under Section 311.023(3) of the Code Construction Act, and she asserts that the legislative history will definitively establish that Section 31.16 was aimed at shoplifting collectives, and was simply not meant to duplicate the theft statute's coverage of unaffiliated shoplifters. But, I continue to *188believe that, if the literal language and structure of a statute render it of sufficient clarity that its proper construction cannot be reasonably doubted, it would improperly encroach upon the Legislative Department for this Court to engage in further construction of it. *See**Boykin* , 818 S.W.2d at 786 & n.4 ( *Boykin* 's method of statutory construction is "constitutionally and logically compelled[,]" and for courts to look for legislative meaning apart from statutory language that is unambiguous risks "courts ... assuming legislative authority"); TEX. CONST. art. II § 1 ("[N]o person, or collection of persons, being of one of these departments [of state government, namely, Legislative, Executive, and Judicial], shall exercise any power properly attached to either of the others[.]"). It is one thing for a court to construe the meaning of a statute when its language or structure leave genuine room for doubt. It is quite another thing to tinker with the objectively plain meaning of a statute with a view to improving it. The former falls within the proper domain of judges. The latter is the exclusive bailiwick of the Legislative Department.

In this case, I agree with the court of appeals that the language of the statute plainly permits prosecution of the solitary unaffiliated shoplifter who violates the terms of the statute and that, consistent with *Boykin* , resort to extra-textual sources would therefore be forbidden. To the extent that Section 311.023 nevertheless purports to authorize courts to do so, the statute itself is at risk of being declared an unconstitutional delegation of legislative authority to the courts. For this reason, I would decline Appellant's invitation to overrule that aspect of *Boykin* .

**IV. THE UNAFFILIATED SHOPLIFTER**

Under the literal language of Section 31.16(b)(1), it is an offense if:

> • a person

> • intentionally

> • conducts, promotes, or facilitates

> • an activity

> • in which the [same] person

> • receives, possesses, conceals, stores, barters, sells, or disposes of

> • retail merchandise

> • that is stolen.

The court of appeals held that this language plainly suffices to proscribe any act of shoplifting, whether committed by a single actor or one acting in concert with others. First, the court of appeals set out various dictionary definitions of the words "conducts, promotes," and "facilitates," and observed that, "[i]n looking at the definitions of these terms, although an individual's behavior *may* contribute toward a greater collective effort or a broader group objective, the requirement of collective action or group behavior is not inherent in the definitions." *Lang* , 2017 WL 1833477, at *4-5. It next observed that the statute does not explicitly mention that other persons must be involved; a single person may "conduct, promote, or facilitate an activity" in which she ultimately "possesses ... stolen retail merchandise."2

*189*Id.* at 5. The direct object of the transitive verbs "conducts, promotes, or facilitates," the court of appeals added, is the word "activity"-a "thing," *not* other actors. *Id.* at *6. From these premises, the court of appeals concluded: "Nothing in the statutory language requires that the person committing the offense work with others when engaging in the prohibited behavior." *Id.*

To this extent, I agree with the court of appeals. When the Legislature wishes to require the involvement of more than one person before it may be said that an offense has been committed, it well knows how to do so.3 Section 31.16(b) contains no such language. Moreover, some of the statutorily defined manners and means of perpetrating the offense of organized retail theft plainly contemplate circumstances involving conduct of a solitary shoplifter-regardless of whether the shoplifter is acting within or as part of a greater collective enterprise. A person commits the offense if she:

> • conducts

> • an activity

> • in which the [same] person *190• possesses

> • stolen

> • retail merchandise

Reduced to these particular manner and means of committing the offense, it becomes clear how a single, unaffiliated shoplifter may be guilty of the offense. A solitary person may "conduct" an activity in which she possesses retail merchandise that her own earlier conduct caused to be stolen. It is true that the verb "conduct" carries at least one connotation suggesting "management" or "direction."4 But, as the court of appeals rightly pointed out, what must be managed or directed, under the plain grammatical structure of the statute, is the "activity," not other people. *Id.* Nothing in the statute requires that the "activity" must be a collaborative effort involving more than one person.5 In this case, Appellant left the store with merchandise which she had already shoplifted,6 and that constituted activity in which she possessed stolen retail merchandise. The statute plainly requires nothing more for conviction.

Appellant argues that the statute does not contemplate proscribing the act of shoplifting itself, since it plainly contemplates criminalizing only "an activity in which" retail merchandise, already "stolen," is then "received, possessed," etc. Applicant's Brief on Discretionary Review at 36-39. I agree with this much of Appellant's argument. And it is upon this point that I believe a plain reading of the statute differs from the understanding that the court of appeals imposed upon it: The statute does not proscribe shoplifting *per se* . Instead, it proscribes the subsequent possession of already-stolen retail merchandise in the course of some further activity-here, at least, the shoplifter leaving the store.

I also think the statute was plainly meant to cover more than just the conduct of "fences."7 In my view, the affiliated "boosters"8 -the shoplifters who supply the fences-were also plainly meant to fall within the purview of the statute, inasmuch as they might, after committing a theft, "conduct an activity in which they possess [the] stolen retail merchandise" before turning it over to their fences.9

*191Indeed, it is hard to conceive of an "organized retail *theft* " statute in which the boosters would *not* be covered, at least to some extent.10 But, as the court of appeals held, and I also agree, nothing in the language of the statute plainly excludes *unaffiliated* shoplifters who come to possess stolen retail merchandise. *See**Lang* , 2017 WL 1833477, at *7 (holding that the statute "does not require proof that appellant committed this offense working with others"). Under the plain terms of the statute, an unaffiliated shoplifter may also commit organized retail theft by engaging in some further activity after the theft in which she possesses the already-stolen retail merchandise.

I do disagree with the court of appeals to the extent that it seems to have held that the statute may reasonably be read to criminalize the mere act of theft. To *that* extent, I believe that the court of appeals has misconstrued the plain import of the statute. Section 31.16(b)(1) explicitly requires the actor to possess retail merchandise that has *already* been "stolen." TEX. PENAL CODE § 31.16(b)(1). So it is not the "the simple act of shoplifting" (or theft) that is proscribed. I believe the statute is *only* reasonably susceptible to a reading that more than a simple theft is required. That much is unambiguous, and so resort to extra-textual factors on that account is not permitted.

Here, Appellant acquired or exercised control over the retail merchandise while still in the store, with the requisite intent to deprive the owner of it; thus, she had already committed the simple act of shoplifting before she ever left the store. *See**State v. Ford* , 537 S.W.3d 19, 24 (Tex. Crim. App. 2017) (citing *Hill v. State* , 633 S.W.2d 520, 521 (Tex. Crim. App. 1981) ) ("[A] customer of a store can exercise control over property with intent to deprive, even if the customer has not yet left the store with the property."). Then, when she exited the store, she "conduct[ed] ... an activity in which [she] ... possess[ed] ... [already] stolen retail merchandise." TEX. PENAL CODE § 31.16(b)(1). She violated the plain language of the statute. Moreover, as I have taken pains to demonstrate, there is no reasonable basis in the language of the statute to suppose that more than one individual must necessarily be involved in the proscribed "activity" before the statute can be violated-so long as that "activity" goes beyond "the simple act of shoplifting" or theft.

**V. THE COURT'S CONSTRUCTION OF THE STATUTE**

After consulting various bill analyses, however, the Court nevertheless comes to the conclusion that group activity is what the statute was meant to address. *See* Majority Opinion at 182-84 ("[T]he statute was enacted for the purpose of targeting professional theft rings involved in the large-scale theft, transfer, repackaging, and reselling of stolen retail merchandise."). I do not disagree that the statute plainly permits going beyond the conduct of an unaffiliated shoplifter-and was, indeed, obviously aimed primarily at the activity of fences and their affiliated boosters. But, as written, the statute is just as plainly not limited to such group activity.

*192Also, there is nothing inherently contradictory about a statute designed to reach both group activity and the activity of a lone actor. For example, a lone actor who first shoplifted retail merchandise and then later *fenced* it (*i.e.* , "conduct[ed] an activity in which [he] barter[ed], [sold], or dispose[d] of" it) would plainly be subject to prosecution under the statute. No group activity need be involved in this hypothetical. Why should group activity be necessary before a lone shoplifter can be prosecuted-so long as, as in this case, she further "conducts an activity in which [she] ... possesses ... stolen retail merchandise"?

In the final analysis, however, my dispute with the Court may ultimately boil down to nothing more than a basic disagreement about whether the act of leaving the store after having shoplifted the retail merchandise should suffice to prove that Appellant "conduct[ed] an activity in which [she] ... possesse[d] ... stolen retail merchandise." None of these statutory terms has acquired a special or technical acceptation.11 It seems to me that a rational juror could rationally apply the statutory language to convict Appellant on the facts of this case. *Cf.**Vernon v. State* , 841 S.W.2d 407, 409 (Tex. Crim. App. 1992) ("[W]hen determining the sufficiency of evidence to support a jury verdict, reviewing courts must not employ definitions of relevant statutory words which are different or more restrictive than the jurors themselves were legally entitled to use."); *Denton v. State* , 911 S.W.2d 388, 390 (Tex. Crim. App. 1995) (same). If the theft was completed before Appellant left the store, then how was leaving the store *not* an activity in which she possessed stolen retail merchandise? The Court wholly fails to address this question.

**VI. CONCLUSION**

As judges on a court of last resort, we cannot avoid resolving disputes about how statutory language can permissibly be implemented. We frequently find ourselves caught in the cross-fire between our unmistakable judicial obligation to interpret and apply the law and the equally inescapable constitutional prohibition against actually *making* law. When a statute is truly ambiguous, then of course we must construe it. But when it is plain, we absolutely may *not* . We must implement its plain language. For my part, I am more concerned with avoiding judicial legislation than I am with making sure that every statute is implemented in exactly the way *I think* some legislators hoped that it would be implemented. In my view, the language of the statute should ordinarily control, and we should err against declaring statutory language to be ambiguous except as a last resort. The statute at issue in this case is plain enough, as far as I am concerned, that we need not resort to extra-textual factors. In any event, nothing about the legislative history as set out in the Court's opinion is necessarily inconsistent with what I believe to be the plain import of the statute.

I would affirm the judgment of the court of appeals. Because the Court does not, I respectfully dissent.

1

*See**Thornton v. State,*425 S.W.3d 289, 299-300 (Tex. Crim. App. 2014).

2

The indictment alleged that appellant did "intentionally conduct and promote and facilitate an activity in which [she] received and possessed and concealed and stored stolen retail merchandise, to wit: groceries, herbal supplements, energy drinks, and animal treats, and the total value of the merchandise involved in the activity was greater than $500 but less than $1,500."

3

Appellant's three grounds for review state as follows:

> 1. May this Court adhere to a rule that refuses to allow the consideration of legislative history to interpret a statute unless the statute is ambiguous, when the Legislature states that legislative history may be considered whether or not a statute is ambiguous?

> a. Must *Boykin v. State* , 818 S.W.2d 782 (Tex. Crim. App. 1991) and its progeny be overruled to the extent they conflict with Texas Government Code Section 311.023, which Texas Penal Code Section 1.05(b) makes applicable to the Penal Code?

> 2. Does the organized retail theft statute admit of more than one reasonable interpretation with respect to whether the statute may be violated by a solitary actor committing ordinary shoplifting, and does consulting the plain language alone lead to absurd results that the legislature could not possibly have intended?

> 3. May a shoplifter violate the organized retail theft statute by committing ordinary shoplifting while acting alone?

4

The range of punishment for the offense is determined by the total value of the merchandise involved in the activity. Tex. Penal Code § 31.16(c). The statute further provides for an increased range of punishment if certain aggravating factors are present, including that the person "organized, supervised, financed, or managed one or more other persons engaged in an activity described by Subsection (b)," or tampered with a theft detector device or fire exit alarm or caused a fire exit alarm to sound during the commission of the offense. *Id.* § 31.16(d)(1), (d)(2). We note that, since the time of appellant's conduct in 2013, the Legislature has amended the organized retail theft statute once by altering the dollar amounts in subsection (c) that determine the level of the offense. *See**id.* § 31.16(c)(1) -(c)(7) (providing for offense level ranging from Class C misdemeanor to first-degree felony depending on total value of retail merchandise involved in the activity). Because the statutory amendments do not affect our analysis of appellant's sufficiency challenge, we cite to the current version of the statute.

5
> • Conducts: "to have the direction of; run, manage, direct"; "treat, handle, execute"; "to direct as a leader the performance or execution of"; Webster's New International Dictionary 474 (3d ed. 2002).

> • Promotes: "to contribute to the growth, enlargement, or prosperity of; further, encourage"; "to bring or help to bring into being, launch." *Id.* at 1815.

> • Facilitates: "to make easier or less difficult: [to] free from difficulty or impediment." *Id.* at 812.

> • Activity: "the quality or state of being active"; "an occupation, pursuit, or recreation in which a person is active." *Id.* at 22. "Active," in turn, may mean "engaged in an action or activity, participating"; "having practical operation or results; effective"; "marked by present operation, transaction, movement, or use." *Id.*

6

Appellant presents a number of arguments in her brief asserting that, in light of the legislative history, the statute should be construed to require proof of a collaborative or group effort. The court of appeals expressly rejected this argument, noting that the statute's language does not contain any such express requirement. *See**Lang* , 2017 WL 1833477, at *6. We conclude that we need not definitively resolve whether the statute would require proof of collaborative or group activity at this juncture because we can resolve appellant's complaint on the more straightforward basis that the statute does not cover ordinary shoplifting by a single actor. We leave for another day the more precise contours of what types of activities are covered by the statute, including whether the statute requires a showing of group effort. Contrary to the suggestion by the dissenting opinion, nothing in this opinion should be interpreted as holding that the statute requires proof of collaborative or group effort to support a conviction. We are not reaching that question and limit our holding today to concluding that the conduct of a solitary shoplifter who steals retail items and then attempts to leave the store with those items does not establish the offense of organized retail theft.

1

*Boykin v. State* , 818 S.W.2d 782, 785 (Tex. Crim. App. 1991).

2

Tex. Penal Code § 31.16(b)(1) (emphasis added).

3

*See**Clinton v. State* , 354 S.W.3d 795, 802 (Tex. Crim. App. 2011).

4

*See**Arteaga v. State* , 521 S.W.3d 329, 334 (Tex. Crim. App. 2017) ("We also presume that every word has been used for a purpose and that each word, phrase, clause, and sentence should be given effect if reasonably possible.").

5

Tex. Penal Code § 31.03(a).

6

Perhaps one could consume certain kinds of property inside a store, but it is absurd to think that criminal liability under this provision could turn on whether a person who steals a candy bar from a store eats it while still inside the store or eats it shortly after exiting.

1

There is no dispute that Appellant's conduct could have been prosecuted under Section 31.03 of the Penal Code -our generic theft statute. *See* Tex. Penal Code § 31.03(a) & (b)(1) ("A person commits an offense if he unlawfully appropriates property with intent to deprive the owner" where "[a]ppropriation of property is unlawful if ... it is without the owner's effective consent[.]").

2

Approximately one-third of the states have enacted a criminal statute for organized retail theft. The majority of those statutes *explicitly* require the defendant to have committed the offense in conjunction with another person or other persons in order to be convicted of organized retail theft. *See* Con. Gen. Stat. Ann. § 53-142k (West 2010) ("Any person who, for financial gain and in conjunction with one or more persons, commits larceny by shoplifting ... shall have committed the offense of organized retail theft."); Me. Rev. Stat. Ann. Tit. 17-A, § 363 (2015) ("A person is guilty of organized retail theft if the person commits 2 or more thefts of retail merchandise ... pursuant to a scheme or course of conduct engaged in by 2 or more persons ...."); Mass. Gen. Laws Ann. Ch. 266, § 30D (West 2015) ("A person commits an organized retail crime if the person, acting in concert with 2 or more persons ... steals, embezzles, or obtains by fraud ... retail merchandise ..."); Miss. Code Ann. § 97-43-3.1 (West 2014) ("It shall be unlawful for any person to conduct, organize, supervise, or manage ... an organized theft of fraud enterprise ... [defined as] any association of two or more persons who engage in the conduct ...."); N.H. Rev. Stat. Ann. § 637:10-c (2010) ("A person is guilty ... if he or she conspires with one or more persons to engage for profit in a scheme or course of conduct of theft ...."); N.C. Gen. Stat. Ann. § 14-86.6 (West 2017) ("A person is guilty ... if the person ... conspires with another person to commit theft of retail property ...."); Or. Rev. Stat. Ann. § 164.098 (West 2008) ("A person commits the crime of organized retail theft if, acting in concert with another person ...."); 18 PA. Stat. and Cons. Stat. Ann. § 3929.3 (West 2010) ("A person commits organized retail theft if the person organizes, coordinates, controls, supervises, finances, or manages any of the activities of an organized retail theft enterprise ... [defined as] a corporation, partnership, or any other type of association ...."); Tenn. Code Ann. § 39-14-113 (West 2017) ("A person commits the offense of organized retail crime when the person works with one or more persons to commit theft of any merchandise ...."); Wash. Rev. Code Ann. § 9A.56.350 (West 2017) ("A person is guilty of organized retail theft if he or she commits theft of property ... with an accomplice ...."); W. Va. Code Ann. § 61-3A-7 (West 2017) ("Any person who enters into a common scheme or plan with two or more other persons to violate the provisions of section one of the article ... shall be guilty of a felony ...."). But other states just as explicitly allow for a defendant to be guilty of organized retail theft even when acting alone. Ariz. Rev. Stat. Ann. § 13-1819 (2009) ("A person commits organized retail theft if the person acting alone or in conjunction with another person does ...."); Del. Code Ann. tit. 11, § 841B (West 2007) ("organized retail theft crimes committed by a person or group of persons ...."); Mich. Comp. Laws Ann. § 752.1084 (West 2013) ("A person is guilty of organized retail crime when that person, alone or in association with another person, does ...."); Nev. Rev. Stat. Ann. § 205.08345 (West 2013) (" 'organized retail theft' means committing, either alone or with any other persons, a series of thefts of retail merchandise ...."). One state has enacted an organized retail theft statute that, like ours, does not explicitly indicate whether the crime must be committed in conjunction with another person or persons to be considered organized retail theft. La. Stat. Ann. § 14:67.25 (2017) ("Organized retail theft is the intentional procuring, receiving, or concealing of stolen retail property with the intent to sell, deliver, or distribute that property.").

3

*See, e.g.* , Tex. Penal Code § 15.02(a)(2) (requiring the agreement of "one or more persons" to engage in a criminal conspiracy); Tex. Penal Code § 71.01(a) (defining "combination" to require "three or more persons" for purposes of the offense of engaging in organized criminal activity).

4

As relevant to the statute at hand, the verb "conduct" may mean: "**1 :** to bring by or as if by leading : Lead, Guide, Escort ... **2 b :** to have the direction of : run , manage , direct ". Webster's Third New International Dictionary of the English Language , at 474 (2002). But it may also mean: "**4 :** to behave or comport (oneself) : acquit ". *Id.*

5

That Section 31.16 is denominated "*organized* " retail theft-to the extent that suggests an organization of multiple persons-cannot affect our construction of the statute if the text is otherwise plain. *See**Baumgart v. State* , 512 S.W.3d 335, 339 (Tex. Crim. App. 2017) ("Although relevant as an extra-textual factor in construing the text of a statute when consideration of such factors are allowed, '[t]he heading of a title, subtitle, chapter, subchapter, or section does not limit or expand the meaning of a statute.' ") (quoting Tex. Gov't Code § 311.024, and citing *Ex parte Crouch* , 838 S.W.2d 252, 254-55 (Tex. Crim. App. 1992) ).

6

*See**State v. Ford* , 537 S.W.3d 19, 24 (Tex. Crim. App. 2017) (citing *Hill v. State* , 633 S.W.2d 520, 521 (Tex. Crim. App. 1981) ) ("[A] customer of a store can exercise control over property with intent to deprive, even if the customer has not yet left the store with the property.").

7

"Fence" is a slang term for "[o]ne who receives and sells stolen goods." Webster's II New College Dictionary 412 (1999).

8

"Booster" is a slang term for "shoplifter." Webster's II New College Dictionary 128 (1999).

9

Indeed, several of the punishment enhancement provisions of Section 31.16 are plainly aimed at the conduct of boosters, such as those based upon the activation (or deactivation) of a fire exit alarm or the deactivation of a retail theft detector. Tex. Penal Code § 31.16(d)(2).

10

Of all the statutes denominated "organized retail theft" that are identified *ante* in note 2, all but one-the Louisiana statute-explicitly proscribe the activity either of *both* fences *and* boosters (Connecticut, Delaware, Michigan, Mississippi, North Carolina, Oregon, Pennsylvania, Tennessee, Washington, and West Virginia), or of boosters *alone* (Arizona, Maine, Massachusetts, Nevada, and New Hampshire).

11

Unless a word has acquired a technical legal meaning, "definitions for terms that are not statutorily defined are not considered to be the 'applicable law' under [ Tex. Code Crim. Proc. art. 36.14 ], and it is thus generally impermissible for the trial court to define those terms in the jury instructions." *Green v. State* , 476 S.W.3d 440, 445 (Tex. Crim. App. 2015). Why, then, should we feel compelled to construe a limitation on the ordinary terms in the statute at this stage of the game that we would have disallowed in the jury charge?