Daryl Joe v. State

• Court: Court of Appeals of Texas
• Decided: March 3, 2021
• Docket: 10-18-00221-CR
• Status: Published

Opinion

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

DISSENTING OPINION

Riddle me this: Where was the man when he jumped off the bridge? If you

respond, "he was on the bridge," I respond, "no, that is where he was before he jumped."

If you respond, "he was in the air," I respond "no, that is where he was after he jumped."

As applicable to the facts of this case, the riddle is even more complex. What is the point

at which Joe possessed the trailer and thus its cargo? This is a broader question than the

focus on simply being hooked up to the trailer. But it is easier to understand and analyze

it in the context, as the Court has, as to whether Joe was hooked up to the trailer.

At what point was Joe "hooked up" to the trailer? There is a multi-step process to

getting hooked-up to the trailer. The process involves the following steps: 1) fifth wheel positioned properly and the locking pin closed; 2) connection of air lines as necessary to

release the brakes; 3) connection of the electrical plug to have the required trailer lights;

and 4) some would also argue, lifting the legs/jack/levelers. I generally agree that before

being hooked-up, Joe could not have been in possession of the goods.

It is undisputed that Joe started the process of taking possession of the trailer and

thus its cargo. When he properly positioned the truck under the trailer, backed the truck

into place, and the locking pin on the truck automatically closed, he had completed the

first step described above. But did he yet have possession of the Cargo?

He did not. There is little doubt that he intended to but no doubt that he did not.

This is a classic case of attempting to steal the cargo. But failing to ever take

possession of the cargo, an attempt, is the only thing of which Joe is guilty. I would hold

that the evidence is insufficient for a rational jury to have held that Joe got to the stage of

possessing the cargo. He attempted but failed. It is still a crime, just not the one for which

he has been found guilty.

Joe, the State, and the Court also spend a fair amount of time on another element

of the offense. To be a violation of this specific statute, the goods must be moving in

commerce. To be moving in commerce the goods must have left the point of origin. The

reason this is even an issue is because the goods, mattresses, were manufactured in a

building located within a perimeter fence on the same property as where the trailer

containing the goods were parked. So, the legal question is whether the mattresses had

left the point of origin. The Court focuses on the ownership of the goods as determined

by the Business and Commerce Code and the completion of a bill of lading. The proper

analysis should not be connected to ownership or the completion of a bill of lading. Joe v. State Page 2 Rather, as the statute requires, the focus is on the physical location of the goods. If the

goods are still at the point of origin, they are not yet goods moving in commerce.

The trailer had been backed up to the warehouse/manufacturing plant. The

mattresses had been loaded on the trailer. There is an unanswered question of whether

the goods were at the point of origin while they were sitting in the trailer while the trailer

was still at the loading dock. But there can be no question that once the doors on the

trailer were closed and the trailer was moved from the loading dock to the shipping yard,

even if the shipping yard is within the perimeter fence that also surrounds the

manufacturing/warehouse facility, the goods had left the point of origin and were

moving in commerce within the definition in the statute. Even if the terms of the sale

were that Corsicana Bedding remained the owner until some other point in the physical

movement of the mattresses and the mattresses were not merely being stored in the

trailer, the mattresses had left their point of origin which was the loading dock of

Corsicana Bedding's manufacturing/warehouse facility.

Even though the mattresses were goods that had left the point of origin, they were

never possessed by Joe. Because Joe never possessed the mattresses his issue should be

sustained. Because the Court affirms his conviction, I respectfully dissent.

TOM GRAY Chief Justice

Dissenting opinion delivered and filed March 3, 2021 Publish

Joe v. State Page 3