JOE, DARYL v. the State of Texas

In the Court of Criminal
Appeals of Texas
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No. PD-0423-23
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DARYL JOE, Appellant

v.

THE STATE OF TEXAS

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On Appellant’s Petition for Discretionary Review
From the Tenth Court of Appeals
Navarro County
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YEARY, J., filed a dissenting opinion.

The Court says we are asked today to decide two questions.
Majority Opinion at 1. First, it says, we are asked to construe the scope
of the Cargo Theft statute (particularly as compared to the Organized
Retail Theft statute). Id. And second, it says that we must decide
whether the evidence in this case was sufficient to support Appellant’s
JOE – 2

conviction beyond a reasonable doubt (particularly with respect to the
element that the actor must “conduct[] . . . an activity in which [he] . . .
possesses . . . stolen cargo.” Id.; TEX. PENAL CODE § 31.18(b)(1)(A)).
Appellant argues, based on the Court’s Lang opinion, that,
because he was not shown to be part of a cargo theft ring, he has not
been shown to have violated the statute. Under the practically identical
language of the former Organized Retail Theft statute, 1 the Court
previously concluded that a lone shoplifter could not be convicted of that
offense. Lang v. State, 561 S.W.3d 174, 183 (Tex. Crim. App. 2018)
(“[T]he organized retail theft statute was not intended to apply to the
conduct of an ordinary shoplifter acting alone.”). And the Court seems
to agree somewhat, when it concludes that the Cargo Theft statute is
“not distinguishable from[,]” and must be read “in parity” with, the
former Organized Retail Theft statute. Majority Opinion at 2, 10, 11 &
13.
Even so, the Court concludes that the lone truckdriver in this case
could be prosecuted under the Cargo Theft statute—that the statute
“does extend to the type of conduct Appellant engaged in”—if only he
had done “an activity separate from the acts inherent in stealing the
cargo[.]” Id. at 13 (emphasis added). Does this mean that, unlike the
unaffiliated shoplifter, a truckdriver need not belong to a cargo theft
ring in order to commit cargo theft? It is not at all clear to me what the
Court would answer to this question, or even whether the Court is

1 See former TEX. PENAL CODE § 31.16(b)(1) (“A person commits an
offense if the person intentionally conducts . . . an activity in which the person
. . . possesses . . . stolen retail merchandise.”).
JOE – 3

actually construing the Cargo Theft statute consistently with its prior
construction of the Organized Retail Theft statute in Lang.
The Court chooses to remain in the hole it dug in its unfortunate
opinion in Lang, which interpreted our former Organized Retail Theft
statute differently from the meaning of that statute’s plain and
intelligible words—to not include or permit what it manifestly included
and permitted: the prosecution of a lone actor. Now, the Court digs the
hole deeper. But there is a way out. I would simply read the plain and
intelligible words of both the former Organized Retail Theft statute and
the Cargo Theft statute as they were written by our Legislature, and I
would not try to change the meaning of those words to better comport
with what the Court thinks the Legislature (collectively) might have
been thinking when it voted to approve those words.
Like Judge Keel, I believe that the evidence in this case is legally
sufficient to support Appellant’s conviction for cargo theft. Dissenting
Opinion of Judge Keel at 1 (arguing that Appellant “conducted an
activity in which he possessed the stolen cargo when he tried to hook up
the brake lines and lights”). And like the Court, I do believe that the
Cargo Theft statute itself must be construed in accordance with a proper
construction of the former Organized Retail Theft statute.
But I vehemently disagreed with the Court’s construction of the
Organized Retail Theft statute in Lang, articulating my own view in a
dissenting opinion. Lang, 561 S.W.3d at 188−91 (Yeary, J., dissenting).
I would not make the mistake of now importing the Court’s faulty
construction of the former Organized Retail Theft statute into the Cargo
Theft statute—if that is what the Court is really doing today.
JOE – 4

The Court’s decision in Lang was clearly erroneous. We should
abandon it as soon as possible before it further corrupts the
jurisprudence of our state. When we conclude that a prior decision of
this Court is leading us into a dark forest of confusion, we should turn
around immediately and not wait until we are lost and struggling to find
our way home. Recte Decide, I say!
Applying my own understanding of the plain import of the shared
statutory language, I believe that the evidence in this case was legally
sufficient. A rational jury could have determined that Appellant stole
the cargo—by exercising control over it without the owner’s consent 2—
when he backed his rig up to the trailer, causing it to attach. Indeed, we
so held when this case was before us on original submission. Joe v. State,
663 S.W.3d 728, 733−34 (Tex. Crim. App. 2022). That jury could then
have rationally concluded that he conducted a further activity—in which
he possessed what was by then “stolen cargo”—when he moved to hook
up the brake lines and lights. 3
Accordingly, I respectfully dissent.

FILED: November 20, 2025
PUBLISH

2 See TEX. PENAL CODE § 31.03(a) (“A person commits an offense if he

unlawfully appropriates property with intent to deprive the owner of
property.”); § (b)(1) (“Appropriation of property is unlawful if . . . it is without
the owner’s effective consent.”); § 31.014)(B) (“‘Appropriate’ means . . . to
acquire or otherwise exercise control over property other than real property.”).

3 See Lang, 561 S.W.3d at 191 (Yeary, J., dissenting) (“Under the plain

terms of the [former Organized Retail Theft] 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.”).