IN THE
TENTH COURT OF APPEALS
No. 10-18-00221-CR
DARYL JOE,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 13th District Court
Navarro County, Texas
Trial Court No. D37693-CR
MEMORANDUM OPINION ON REMAND
Appellant, Daryl Joe, was convicted of cargo theft. See TEX. PENAL CODE ANN. §
31.18(b)(1), (c)(2). On original submission, Joe argued that the evidence was insufficient
to support his conviction. See Joe v. State, 620 S.W.3d 834, 835 (Tex. App.—Waco 2021)
(“Joe I”), remanded by Joe v. State, No. PD-0268-21, ___ S.W.3d___, 2022 Tex. Crim. App.
LEXIS 417 (Tex. Crim. App. June 22, 2022) (“Joe II”) (publish). A majority of this Court
concluded that the evidence is sufficient to support Joe’s conviction. Id. at 838.
Thereafter, Joe filed a petition for discretionary review in the Court of Criminal
Appeals. See, e.g., Joe II, 2022 Tex. Crim. App. LEXIS 417, at **1-14. After review, the
Court of Criminal Appeals concluded that the mattresses involved in this case were cargo
and that Joe possessed them. See id. at **13-14. Rather than reversing and vacating this
Court’s judgment, the Court of Criminal Appeals remanded the proceeding for this Court
to consider whether Joe conducted an activity in which he possessed stolen cargo. See id.
at **13-14. In light of the Court of Criminal Appeals’s decision in Joe II, we requested
supplemental briefing from the parties. After review, we once again affirm Joe’s
conviction.
Analysis
Because the facts of this case have been recited in both prior opinions in this
proceeding, we will not repeat them again, except for those that are necessary to explain
our decision at this juncture. See Joe II, 2022 Tex. Crim. App. LEXIS 417, at **1-5; see also
Joe I, 620 S.W.3d at 836-38. As stated earlier, the Court of Criminal Appeals concluded
that the mattresses involved in this case were cargo and that Joe possessed them. See Joe
II, 2022 Tex. Crim. App. LEXIS 417, at **13-14. We have been directed to determine
whether Joe conducted an activity in which he possessed stolen cargo. See id. at **13-14.
Section 31.18(b)(1) of the Texas Penal Code provides that:
(b) A person commits an offense if the person:
Joe v. State Page 2
(1) knowingly or intentionally conducts, promotes, or facilitates an
activity in which the person receives, possesses, conceals, stores,
barters, sells, abandons, or disposes of:
(A) stolen cargo; or
(B) cargo explicitly represented to the person as being stolen
cargo . . . .
TEX. PENAL CODE ANN. § 31.18(b)(1). Moreover, a person commits the offense of theft if
he unlawfully appropriates property with intent to deprive the owner of the property.
Id. § 31.03(a). “Appropriate” means “to acquire or otherwise exercise control over
property.” Id. § 31.04(4)(B).
Property is “stolen” at the moment it is acquired by theft. See Stewart v. State, 44
S.W.3d 582, 587 (Tex. Crim. App. 2001); see also Joe II, 2022 Tex. Crim. App. LEXIS 417, at
*13. Here, the evidence established that when Joe backed his blue Volvo semi-truck
underneath the JB Hunt trailer, the trailer contained cargo—mattresses—as defined in
section 31.18(a)(1). See TEX. PENAL CODE ANN. § 31.18(a)(1); see also Joe I, 620 S.W.3d at
837. The Court of Criminal Appeals determined that Joe’s action at this point was
sufficient to show possession. See Joe II, 2022 Tex. Crim. App. LEXIS 417, at **12-13; see
also TEX. PENAL CODE ANN. § 1.07(a)(39) (defining “[p]ossession” as having “actual care,
custody, control, or management”). At the time he possessed the cargo, a rational jury
could conclude that he intended to exercise control over the cargo so as to deprive the
owner of the property. See TEX. PENAL CODE ANN. § 31.04(4)(B). Thus, Joe stole the cargo
at the time he backed the truck underneath the trailer. See Stewart, 44 S.W.3d at 587.
Joe v. State Page 3
Thereafter, Joe exited the truck and tried to connect the brake lines and lights when
Juan Carlos Perez, a warehouse supervisor for Corsicana Bedding, showed up and started
taking pictures. See Joe I, 620 S.W.3d at 837; see also Joe II, 2022 Tex. Crim. App. LEXIS 417,
at *12. Joe’s continued possession of the cargo while connecting the brake lines and lights
constitutes an activity in which he possessed stolen cargo, as defined in section
31.18(b)(1). See TEX. PENAL CODE ANN. § 31.18(b)(1). In other words, contrary to Joe’s
assertions, the activity alleged and proven by the State occurred after he stole the cargo.
Despite the foregoing, Joe contended on original submission and in the Court of
Criminal Appeals that even if he possessed stolen cargo, any activity the State alleged
that he conducted occurred before the cargo was stolen. Thus, Joe asserts that the cargo
theft statute was not intended to reach his conduct, and the evidence did not establish a
violation of the cargo theft statute. We disagree.
In arguing that the cargo theft statute does not reach his conduct, Joe relies
exclusively on the Court of Criminal Appeals’s interpretation of the organized retail theft
statute in Lang v. State, 561 S.W.3d 174 (Tex. Crim. App. 2018). The organized retail theft
statute provides, in pertinent part: “(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 ANN. § 31.16(a). In analyzing the organized retail
theft statute, the Court of Criminal Appeals noted that:
Joe v. State Page 4
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? . . . 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?
Lang, 561 S.W.3d at 181.
After concluding that the statute was ambiguous and reviewing legislative history,
the Lang Court determined that the organized retail theft statute “was not intended to
apply to the conduct of an ordinary shoplifter acting alone.” Id. at 183. Rather, “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.” Id.
“Nothing about the legislative history signals that this statute was intended to broadly
apply to all people who commit ordinary shoplifting of retail merchandise.” Id.
In the instant case, Joe advocates for an interpretation of the cargo theft statute that
is similar to the Lang Court’s interpretation of the organized retail theft statute. General
statutory construction rules require us to interpret a statute in accordance with its plain
meaning unless the language is ambiguous or the plain meaning leads to absurd results
Joe v. State Page 5
that the Legislature could not have intended. Wagner v. State, 539 S.W.3d 298, 306 (Tex.
Crim. App. 2018).
In determining plain meaning, we employ the rules of grammar and usage,
and we presume that every word in a statute has been used for a purpose
and that each word, clause, and sentence should be given effect if
reasonably possible. If a word or a phrase has acquired a technical or
particular meaning, we construe the word or phrase accordingly. If, after
using these tools of construction, the language of the statute is ambiguous,
we can resort to extratextual factors to determine the statute’s meaning.
Liverman v. State, 470 S.W.3d 831, 836 (Tex. Crim. App. 2015) (internal citations omitted).
A statute is ambiguous if it may be reasonably susceptible to more than one meaning.
Baird v. State, 398 S.W.3d 220, 229 (Tex. Crim. App. 2013).
We do not find the cargo theft statute to be ambiguous. 1 Unlike the organized
retail theft statute, the cargo theft statute here does not clearly delineate between cargo
theft and organized cargo theft. Moreover, based on a review of the plain language, the
1 Despite the fact that we conclude that the cargo theft statute is unambiguous and a court should
resort to extra-textual factors only when the statute is ambiguous, we note that the bill analysis provides
that the statute was designed to create a separate category of offense called cargo theft for “failure to deliver
cargo to its destination as contracted, or causing the seal to be broken on a vehicle containing cargo.” Senate
Comm. on Criminal Justice, Bill Analysis, Tex. S.B. 1828, 84th Leg., R.S. (2015), at
https://capitol.texas.gov/tlodocs/84R/analysis/html/SB01828S.htm. This appears to correspond with
section 31.18(b)(2) of the Texas Penal Code. See TEX. PENAL CODE ANN. § 31.18(b)(2). However, the bill
analysis also provides that “anyone who ‘conducts, promotes, or facilitates an activity’ involving the receipt,
possession, concealment, storage, sale, or abandonment of stolen cargo is guilty of the offense of cargo
theft.” Senate Comm. on Criminal Justice, Bill Analysis, Tex. S.B. 1828, 84th Leg., R.S. (2015), at
https://capitol.texas.gov/tlodocs/84R/analysis/html/SB01828S.htm. (emphasis added). This corresponds
with section 31.18(b)(1) of the Texas Penal Code and undermines Joe’s contention that section 31.18(b)(1)
of the Texas Penal Code “was designed to get the other actors—the bigger fish.” See TEX. PENAL CODE ANN.
§ 31.18(b)(1).
Joe v. State Page 6
cargo theft statute was intended to target individual drivers, as well as large theft rings.2
See TEX. PENAL CODE ANN. § 31.18(b). Joe asserts that section 31.18(b)(1) applies only to a
theft ring, whereas section 31.18(b)(2) applies only to drivers. See id. While we agree that
section 31.18(b)(2) applies only to drivers, the wording of section 31.18(b)(1) can apply to
any person, regardless of whether they are a driver. See id. If we were to accept Joe’s
interpretation of section 31.18(b)(2), it would lead to an absurd result because section
31.18(b)(2) only applies to drivers who are “lawfully contracted to transport a specific
cargo.” Id. § 31.18(b)(2); see Yazdchi v. State, 428 S.W.3d 831, 837-38 (Tex. Crim. App. 2014)
(“When statutory language is clear and unambiguous, we give effect to its plain meaning
unless to do so would lead to absurd consequences that the legislature could not have
possibly intended.”). If section 31.18(b)(1) only applies to theft rings, as Joe argues, and
if section 31.18(b)(2) only applies to drivers who are lawfully contracted to transport a
specific cargo, then a driver who is not lawfully contracted to transport a specific cargo
but simply drives into a shipping yard and steals cargo cannot be guilty of cargo theft,
but a driver who is lawfully contracted to transport specific cargo and takes the same
2 Interestingly, although Joe attempts to differentiate this incident from those involving “bigger
fish” or “sophisticated organized crime rings,” the record reflected that Joe told police that he had been
employed for four days as a driver for Holland Trucking Company and that a man named Cliff had paid
him cash to pick up the trailer at the shipping yard for Corsicana Bedding. See Joe v. State, No. PD-0268-21,
___ S.W.3d ___, 2022 Tex. Crim. App. LEXIS 417, at *4 (Tex. Crim. App. June 22, 2022). The temporary tag
inside the truck that Joe drove was registered to Clifford Lewis. Id. Lewis refused to testify, but in his
interview with police, Lewis indicated that the truck that was driven by Joe was owned by “Harley,” who
allowed Joe to live in the truck. Id. Additionally, Lewis told police that “Stephen” hired Joe to pick up the
load at the shipping yard for Corsicana Bedding. Id. In other words, the testimony suggested that Joe may
not have been acting alone.
Joe v. State Page 7
actions can be. See TEX. PENAL CODE ANN. § 31.18(b). This is an absurd result that
Legislature could not have possibly intended. See id.; see also Yazdchi, 428 S.W.3d at 837-
38. Instead, a proper construction of section 31.18(b)(1) must apply to any person,
regardless of whether they are a driver, and necessarily includes Joe’s actions in this case.
See TEX. PENAL CODE ANN. § 31.18(b)(1).
Additionally, we are not persuaded by Joe’s reliance on the tense of the word
“stolen” in section 31.18(b)(1)(A). See id. § 31.18(b)(1)(A) (referring to “stolen cargo”). As
mentioned earlier, the cargo was stolen at the same time Joe backed his truck underneath
the trailer. A rational jury could conclude that Joe’s continued possession of the cargo
while connecting the brake lines and the lights satisfied the activity requirement of
section 31.18(b)(1). See id. § 31.18(b)(1).
Viewing the evidence in the light most favorable to the jury’s verdict, a rational
factfinder could have found beyond a reasonable doubt that Joe committed the offense of
cargo theft. See id. § 31.18(b)(1); see also Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781,
61 L. Ed. 2d 560 (1979); Zuniga v. State, 551 S.W.3d 729, 732-33 (Tex. Crim. App. 2018).
Accordingly, we once again overrule Joe’s sole issue on appeal.
Conclusion
We affirm the judgment of the trial court.
Joe v. State Page 8
STEVE SMITH
Justice
Before Chief Justice Gray,
Justice Johnson,
and Justice Smith
(Chief Justice Gray dissenting)
Affirmed
Opinion delivered and filed June 7, 2023
Do not publish
[CRPM]
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