Joe, Daryl ( 2022 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-0268-21
DARYL JOE, Appellant
v.
THE STATE OF TEXAS
ON APPELLANT=S PETITION FOR DISCRETIONARY REVIEW
FROM THE TENTH COURT OF APPEALS
NAVARRO COUNTY
KEEL, J., delivered the opinion of the Court, in which KELLER, P.J.,
and RICHARDSON, YEARY, NEWELL, SLAUGHTER, and MCCLURE, JJ., joined.
WALKER, J., filed a dissenting opinion. HERVEY, J., concurred.
OPINION
Appellant was charged with and convicted of cargo theft. Tex. Penal Code §
31.18. He challenges the legal sufficiency of the evidence to support his conviction.
He argues that the goods were not cargo, he was never in possession of the goods, and
even if he possessed the goods, he did not conduct an activity in which he possessed
stolen cargo. We conclude that the goods were cargo, and Appellant possessed the
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goods. We remand the case to the court of appeals for consideration of whether
Appellant conducted an activity in which he possessed stolen cargo.
I. Background
The goods at issue are mattresses and box springs made by Corsicana Bedding.
Corsicana Bedding has loading docks at its factory and a shipping yard within its gated
grounds. 1 Mattresses and box springs are loaded into trailers at the loading docks.
When the trailers are full, they are sealed with the necessary paperwork inside and moved
to the shipping yard where they await transport to their intended destinations by third-
party truckers who unseal the trailers to check their contents and paperwork.
Corsicana Bedding used JB Hunt trucking company as its third-party, in-house
carrier. Around 60 JB Hunt driver employees regularly drove for Corsicana Bedding
and had gate codes for the shipping yard. During peak times, JB Hunt contracted with
10-15 outside carriers to ship Corsicana Bedding’s goods. Only JB Hunt trucks were
authorized to take JB Hunt trailers, and only JB Hunt drivers were authorized to pick up
trailers without first checking in with Corsicana Bedding shipping personnel. Drivers
for outside carriers received gate codes from their dispatchers and were required to check
in at the loading dock to confirm the pick-up number and destination for the load.
1 Several exhibits, including photos of the facility and videos of the entrance gate, were admitted
for demonstrative purposes only and thus were not included in the appellate record. We note for
future cases that such exhibits may aid a legal sufficiency evaluation.
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When Appellant arrived at Corsicana Bedding, he was driving a blue Volvo semi-
truck with no license plate and with cardboard covering the trucking company
information. He entered the shipping yard without using a gate code when the gate
opened for another truck. Without checking in with shipping yard personnel, Appellant
backed his truck under a loaded JB Hunt trailer, causing it to automatically connect to his
truck. The next steps for hooking up the trailer were to manually connect lines for
brakes and lights and raise the jacks. Appellant had not yet taken these steps when he
was approached by Corsicana Bedding employees.
The shipping yard supervisor, Juan Carlos Perez, was suspicious because
Appellant was not driving a JB Hunt truck but was in the process of hooking up to a JB
Hunt trailer. Perez also found it suspicious that the company information on the side of
the truck was covered. Perez took photos of Appellant while he was out of the truck to
connect the lines for the air brakes and the lights.
The plant manager, Raphael Lemus, asked Appellant where he was taking the
load. Appellant did not have paperwork or know the intended destination for the trailer.
He showed Lemus a number he had written on his hand that was supposed to be the
trailer number for the load he was sent to pick up. Appellant called his dispatcher and
gave the phone to Lemus, but there was a bad connection, and Lemus could get no
information from the dispatcher. Lemus had someone call the police. Appellant left the
shipping yard without the trailer and went to a nearby gas station where he was later
arrested.
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Appellant told the police 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. Cliff had covered the information on the side of the truck and told Appellant to
remove the expired temporary tag that had been displayed in the truck’s window. Police
found the temporary tag registered to Clifford Lewis inside the truck. An investigator
with the district attorney’s office testified that he believed Lewis was involved in the
incident, but there was not enough evidence to arrest him.
Lewis refused to testify at Appellant’s trial, but his interview with the investigator
was played for the jury. In the interview Lewis denied any involvement in the incident
at Corsicana Bedding. He told the investigator the truck was owned by his friend,
Harley, who allowed Appellant to live in the truck. Lewis said “Stephen” hired
Appellant to pick up the load. According to Lewis it was “supposed to be a legit load”
and Appellant had a pick-up number, but something was not right with the number when
Appellant arrived to pick up the load.
The jury charge included an instruction on the lesser offense of attempted cargo
theft. The jury found Appellant guilty of cargo theft, and the court assessed a sentence
of 37 years.
II. Relevant Statutes
A person commits cargo theft if he “knowingly or intentionally conducts,
promotes, or facilitates an activity in which he receives, possesses, conceals, stores,
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barters, sells, abandons, or disposes of” stolen cargo or cargo explicitly represented to
him as being stolen cargo. Tex. Penal Code § 31.18(b)(1)(A)-(B). “Cargo” means
goods, as defined by Section 7.102, Business and Commerce Code, that
constitute, wholly or partly, a commercial shipment of freight moving in
commerce. A shipment is considered to be moving in commerce if the
shipment is located at any point between the point of origin and the final
point of destination regardless of any temporary stop that is made for the
purpose of transshipment or otherwise.
Id. at § 31.18(a)(1). A person commits theft if he unlawfully appropriates property with
intent to deprive the owner of property. Id. at § 31.03(a). “Appropriate” means “to
acquire or otherwise exercise control over property.” Id. at § 31.01(4)(B). A person
commits attempted theft if, with specific intent to commit theft, “he does an act
amounting to more than mere preparation that tends but fails to effect the commission of
the offense intended.” Id. at § 15.01(a).
III. Court of Appeals
The court of appeals affirmed Appellant’s conviction. Joe v. State, 620 S.W.3d
834, 838 (Tex. App.—Waco 2021). It concluded that the goods were cargo and were
“moving in commerce” because a bill of lading had been issued which transferred
possession of the goods from the manufacturer to the carrier. Id. at 836-37. The fact
that the goods were still in the shipping yard did not matter because that was merely a
temporary stop. Id. at 837.
As for possession of the goods, the court of appeals found it irrelevant that
Appellant could not have moved the trailer without having hooked up the brake lines or
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raised the lifts. Id. at 837-38. The court of appeals looked to the general theft statute
and reasoned that asportation—the act of carrying away or removing property—is not an
element of theft, so Appellant’s inability to move the cargo was irrelevant. Id. The
court said Appellant engaged in conduct, i.e., hooking up the trailer to his truck, that
demonstrated possession of the goods. Id. at 838.
The dissent questioned whether Appellant was actually hooked up to the trailer as
he had taken only the first step in the multi-step process required for the hook up. Id.(Gray, J., dissenting). According to the dissent, this was an attempt to steal the cargo,
but Appellant never took possession. Id. at 838-39. The dissent also disagreed with the
majority’s focus on the bill of lading to determine whether the goods were “moving in
commerce.” Id. at 839. The dissent would have focused instead on the physical
location of the goods. Id. Goods are not yet moving in commerce if they are still at
their point of origin. Id. But the goods had left their point of origin when they moved
from the loading dock to the shipping yard even if the shipping yard was within the
perimeter of the manufacturing facility and warehouse. Id. The dissent said the goods
were moving in commerce within the definition of the cargo-theft statute, but Appellant
never possessed the goods. Id.IV. Legal Sufficiency of the Evidence
In assessing the legal sufficiency of the evidence, we view the evidence in the
light most favorable to the verdict to determine whether any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt. Jackson v.
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Virginia, 443 U.S. 307, 319 (1979). The trier of fact is responsible for resolving
conflicts in the testimony, weighing the evidence, and drawing reasonable inferences
from basic facts to ultimate facts. Id.Appellant was found guilty of intentionally and knowingly conducting an activity
in which he possessed stolen cargo, namely, mattresses and box springs, by hooking up
the truck he was driving to the trailer that contained the cargo. If the jury were to
convict, it had to find that the goods were cargo, Appellant possessed the cargo, and
Appellant conducted an activity in which he possessed stolen cargo.
IV. A. Were the Mattresses “Cargo”?
“Cargo” means goods that constitute “a commercial shipment of freight moving in
commerce.” Tex. Penal Code § 31.18(a)(1). A shipment is “moving in commerce if [it]
is located at any point between the point of origin and the final point of destination
regardless of any temporary stop that is made for the purpose of transshipment or
otherwise.” Id.
Appellant argues that the mattresses were not cargo because, as a matter of law,
they were never moving in commerce. He maintains that they never left their point of
origin at Corsicana Bedding and that differentiating between its loading dock and its
shipping yard stretches the meaning of “point of origin.” He cites internet definitions of
“point of origin” that suggest that the shipping yard was part of the point of origin, e.g.,
“the location at which a shipment is received by a transportation line from the shipper.”
Appellant’s Br. p. 13 (citing point of origin definition, USLEGAL.COM,
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https://definitions.uslegal.com/p/point-of-origin (last visited June 2, 2022)). But he does
not argue that “point of origin” has acquired a technical or particular meaning whose
usage would be required by the Code Construction Act. See Tex. Gov’t Code §
311.011(b) (“Words and phrases that have acquired a technical or particular meaning,
whether by legislative definition or otherwise, shall be construed accordingly.”). And
we find no evidence that “point of origin” has acquired such a meaning.
The phrase does not appear in Black’s Law Dictionary. The United States
Supreme Court has deemed it not to be technical. W.P. Brown & Sons Lumber Co. v.
Louisville & N.R. Co., 299 U.S. 393, 397 (1937) (declaring railroad tariff formulas that
depended on “through rates” that were “in effect from point of origin to destination” to be
“not technical” but “clear”). And it has no common-law history suggesting a technical
meaning. See Medford v. State, 13 S.W.3d 769, 772 (Tex. Crim. App. 2000)
(concluding that “arrest” had acquired a technical meaning because it had a long,
established history in the common law); cf. Green v. State, 476 S.W.3d 440, 445 (Tex.
Crim. App. 2015) (concluding that the terms “penetration” and “female sexual organ” are
common terms that have not acquired a technical meaning). Consequently, the phrase
“shall be read in context and construed according to the rules of grammar and common
usage.” Tex. Gov’t Code § 311.011(a).
In common usage “point of origin” means the place where something comes from
or originates. See, e.g., point of origin definition, MERRIAM-WEBSTER.COM,
http://merriam-webster.com/dictionary/pointoforigin (last visited May 5, 2022). The
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context of the phrase includes the statute’s discounting of “any temporary stop[.]” Tex.
Penal Code § 31.18(a)(1). So the issue is whether the evidence was legally sufficient to
show that the trailer was between the place where it originated or came from and its final
destination, regardless of any temporary stop it made.
The evidence showed that the loaded trailer had been shuttled via a “yard truck”
from the factory to the shipping yard. A rational jury could find from that evidence that
the shipment originated or came from the factory, and the loaded trailer made a
temporary stop at the shipping yard. Neither the proximity of the shipping yard to the
factory nor Corsicana Bedding’s ownership of both facilities defeated as a matter of law
the factory’s status as the point of origin. Thus, the evidence was legally sufficient to
support the jury’s finding that the mattresses and box springs were moving in commerce
and therefore were cargo.
IV. B. Could a Rational Jury Find that Appellant Possessed the Mattresses?
The jury found Appellant guilty of conducting an activity in which he possessed
stolen mattresses by “hooking up” his truck to the trailer that contained the mattresses.
Appellant argues that no rational jury could so find because backing the truck under the
trailer did not amount to “hooking up” the trailer, the trailer could not move without the
brake lines having been connected and the lifts having been raised, the trailer never left
the shipping yard, and Corsicana Bedding always had control over the trailer and its
contents. These arguments fail because a rational jury could have concluded that he
hooked up when he backed the truck under the trailer, and in doing so he exercised
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control over the trailer and its contents. Furthermore, possession of property does not
depend on exclusive control of it or its removal from one location to another.
“‘Possession’ means actual care, custody, control, or management.” Tex. Penal
Code § 1.07(a)(39). “Control” is not legally defined. Thus, the jury was free to give it
“any meaning which is acceptable in common parlance.” See Kirsch v. State, 357
S.W.3d 645, 650 (Tex. Crim. App. 2012) (quoting Denton v. State, 911 S.W.2d 388, 390
(Tex. Crim. App. 1995)). The jury was also permitted to draw reasonable inferences
from the evidence. Hooper v. State, 214 S.W.3d 9, 16 (Tex. Crim. App. 2007) (an
inference is a conclusion reached by considering other facts and deducing a logical
consequence from them). The reasonableness of a jury’s inferences depends on the
combined and cumulative force of all the evidence viewed in the light most favorable to
the verdict. Id. at 16-17.
Exercising control over property does not depend on removing it from a place.
See State v. Ford, 537 S.W.3d 19, 24 (Tex. Crim. App. 2017) (upholding probable cause
to arrest for theft where defendant exercised control over property by placing it in her
purse even while still in the store); Hill v. State, 633 S.W.2d 520, 521 (Tex. Crim. App.
1981) (orig. op.) (holding that an exercise of control over property does not require its
removal from premises). Nor does it depend on exclusive control. See De la Torre v.
State, 583 S.W.3d 613, 619 (Tex. Crim. App. 2019) (recognizing “concept of joint
possession”).
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The evidence shows that Appellant backed the truck underneath the trailer, which
automatically connected the two. He was out of the truck trying to connect the brake
lines and lights when Perez showed up and started taking photos of him. Lemus testified
that the truck was connected to the trailer because it was backed underneath the trailer,
and a driver who completes that step has control over the trailer. Looking at this
evidence in the light most favorable to the verdict, a rational jury could conclude that
Appellant exercised control over the trailer and its contents. Appellant’s failure to finish
hooking up the trailer or to remove it from the shipping yard did not compel the jury to
find he did not exercise control over the trailer.
IV. C. Did Appellant conduct an activity in which he possessed stolen cargo?
Property is “stolen” at the moment it is acquired by theft. Stewart v. State, 44
S.W.3d 582, 587 (Tex. Crim. App. 2001). Appellant argues that even if he possessed the
mattresses, making them stolen cargo, any activity he is alleged to have conducted
occurred before the cargo became stolen. He says the cargo theft statute was not
intended to reach his conduct, and the evidence did not establish a violation of the statute.
He relies on Lang v. State, 561 S.W.3d 174 (Tex. Crim. App. 2018), and its interpretation
of the organized-retail-theft statute. Although this issue was raised on appeal, the court
of appeals failed to address whether Appellant conducted an activity in which he
possessed stolen cargo, so we remand the case to it to consider this issue.
V. Conclusion
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The mattresses were cargo, and Appellant possessed them, but the cargo-theft
statute requires an additional element that the court of appeals failed to address. We
remand the case to the court of appeals for consideration of whether Appellant conducted
an activity in which he possessed stolen cargo.
Delivered: June 22, 2022
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