June 24, 2022

Court of Criminal Appeals

Joe v. State

No. PD-0268-21          6/22/22


For purposes of the cargo theft statute (Penal Code §31.18), what is considered the “point of origin” of cargo that is moving in commerce?


The point of origin for movement is where movement begins. The Court rejected the defendant’s argument that two different locations within a factory’s premises should be considered the same point of origin. Instead, the Court concluded that 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.” The Court remanded the case to the court of appeals to consider another element required for cargo theft: whether the defendant conducted an activity in which he possessed stolen cargo. Read opinion.

Dissent (Walker, J.):

“The mattresses here were not yet ‘cargo’ within the meaning of the statute—the mattresses had not yet left their point of origin and were not yet a commercial shipment of freight moving in commerce. The evidence is insufficient to support cargo theft, and there is no need to have the court of appeals examine the ‘conducted an activity’ element of cargo theft. Cargo theft is done. What we should be remanding for is a determination of whether the conviction can be reformed to attempted cargo theft, regular theft, or attempted theft.” Read dissent.


The court decided the “moving in commerce” question in a way that should be very helpful to the State in future cases. The court also decided in the State’s favor that the defendant “possessed” the cargo when he backed his truck up to the trailer where the cargo was located and hooked them up together. That is as far as the defendant got. The resolution of both of these issues should be helpful to the State, but that should not be an indication that the State will necessarily prevail in this case on remand. In that regard, to commit the offense (at least in the context of this case), the defendant must “conduct an activity” in which he possesses stolen cargo. The defendant claims that he is not guilty for an additional reason to be decided on remand—any activity that he conducted happened before the cargo could be considered stolen. While it is not clear whether the defendant is construing the statute correctly, because this is the first appellate case that has construed the statute, the outcome is unclear.

Nawaz v. State

No. PD-0408-21          6/22/22


Does the Double Jeopardy Clause prohibit convictions for injury to a child both for causing serious bodily injury and causing serious mental deficiency, impairment, or injury?


No. In Stuhler v. State, 218 S.W.3d 706 (Tex. Crim. App. 2007), the Court concluded that Penal Code §22.04(a) is a result-of-conduct type of offense, meaning that the statute “is unconcerned with how the offense is committed, and it focuses instead on the various types of harm it seeks to avert.” While Stuhler’s holding addressed jury unanimity, it also controls on the Double Jeopardy issue. “The allowable units of prosecution in this case are determined by how many separate and discrete statutorily defined types of injurious results [the defendant’s] act or conduct caused. It does not matter how many acts or incidents of abuse it may have taken him to inflict those distinct statutorily defined injuries.” Read opinion.


This case involves two prosecutions under two separate subsections of the same statute. That is, there were two different types of injuries in this case—serious bodily injury and serious mental deficiency. Any reliance upon this decision in the future should be restricted to that situation—where there are two or more different types of injury. This decision does not clearly decide whether a defendant can be prosecuted more than once for an assaultive (result-oriented) offense when he causes more than one of the same type of injury during a single episode, such as punching in the face and kicking in the stomach. As noted in the majority opinion, the court has previously held that the “unit of prosecution” for an assaultive offense is the number of victims, but that was decided in the context of robbery. Several of the Court’s prior decisions suggest that the question of whether Double Jeopardy prevents prosecution of multiple injuries in the same incident is unresolved. See, e.g., Cooper v. State, 430 S.W.3d 426 (Tex. Crim. App. 2014); Garfias v. State, 424 S.W.3d 54 (Tex. Crim. App. 2014); Ex parte Denton, 399 S.W.3d 540 (Tex. Crim. App. 2013); Johnson v. State, 364 S.W.3d 292, 298 & n.45 (Tex. Crim. App. 2012).