PD-0423-23 10/25/2023
1. “Did the 10th COA error (sic) in holding the evidence legally sufficient because ‘[Petitioner] jumped out the vehicle and attempted to connect the brake lines and lights, constituting an activity in which he possessed stolen cargo?’”
2. “Did the 10th COA misconstrue section 31.18(b)(1) of the Penal Code, when the lower court read and applied ‘an activity’ in isolation; and thus, failed to read the term in the context of the entire statute?”
3. “What type of ‘activity’ would suffice to satisfy the statute’s requirements?”
Joe was convicted of cargo theft under Tex. Penal Code § 31.18(b)(1). “A person commits an offense if the person: (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.” He drove a semi-truck into the lot of a mattress manufacturer and backed it under a trailer containing mattresses. His truck’s fifth-wheel hitch automatically connected the truck to the trailer. Joe was interrupted by a company employee before he could complete manually hooking up the brake lines or electrical lines, or raising the jacks of the trailer.
Joe challenged the evidence supporting both the “cargo” and “possess” elements. The court of appeals affirmed. Under review the first time, the Court of Criminal Appeals held that the mattresses in the trailer were “cargo” as that term is defined in Section 31.18(a)(1). It remanded for consideration of whether Joe “conducted an activity in which he possessed stolen cargo.” That is, did he do something other than steal it? The court of appeals again affirmed. It distinguished this statute from organized retail theft, a similarly worded statute that the Court of Criminal Appeals held in Lang v. State, 561 S.W.3d 174 (Tex. Crim. App. 2018), requires some activity in addition to the theft that suggests cooperation with a larger “ring.” See Tex. Penal Code § 31.16(a) (“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[.]”). The lower court found no ambiguity and distinguished the two statutes based on the fact that, when the cargo theft statute is read as a whole, interpreting the applicable section to not apply to individual thieves would be absurd. The court of appeals also held that a rational jury could conclude Joe’s continued possession as he tried to complete hooking up the trailer satisfied the “activity” requirement.
Joe again challenges the court of appeals’s construction of the statute. Relying on Lang, Joe argues that the statute is ambiguous and the legislative history does not support the court of appeals’s holding. He further argues that interpreting this statute to cover what is essentially just a theft would render the theft statute redundant where “cargo” is involved. Finally, he argues that if his attempt to complete the hookup constituted the exercise of control that rendered the cargo “stolen,” that activity necessarily occurred before it was stolen and therefore cannot constitute an activity done after theft.
