Opinion
10-18-00221-CR
02-17-2023
DARYL JOE, Appellant v. THE STATE OF TEXAS, Appellee
Do not publish
From the 13th District Court Navarro County, Texas Trial Court No. D37693-CR
Before Chief Justice Gray, Justice Johnson, and Justice Smith
ABATEMENT ORDER
PER CURIAM
Appellant, Daryl Joe, was convicted of cargo theft. See TEX. PENAL CODE ANN. § 31.18(b)(1), (c)(2). On original submission, Joe argued that the evidence was insufficient to support his conviction. See Joe v. State, 620 S.W.3d 834, 835 (Tex. App.-Waco 2021) ("Joe I"), remanded by Joe v. State, No. PD-0268-21, ___S.W.3d ___, 2022 Tex.Crim.App. LEXIS 417 (Tex. Crim. App. June 22, 2022) ("Joe II"). A majority of this Court concluded that the evidence is sufficient to support Joe's conviction. Id. at 838.
Thereafter, Joe filed a petition for discretionary review in the Court of Criminal Appeals. See, e.g., Joe II, 2022 Tex.Crim.App. LEXIS 417, at **1-14. After review, the Court of Criminal Appeals concluded that the mattresses involved in this case were cargo and that Joe possessed them. See id. at **13-14. Rather than reversing and vacating this Court's judgment, the Court of Criminal Appeals remanded the proceeding for this Court to consider whether Joe conducted an activity in which he possessed stolen cargo. See id. at **13-14.
On January 11, 2023, in response to the mandate from the Court of Criminal Appeals, we requested that the parties submit briefing on the issue of whether Joe conducted an activity in which he possessed stolen cargo. We ordered Joe to file his brief within thirty days of January 11, 2023. The State's brief is due thirty days after Joe files his brief. We also requested that the parties notify this Court within fourteen days of January 11, 2023, if they do not wish to file a new brief. Finally, we warned the parties that, if a new brief or letter notifying the Court that Joe will rely on the original brief is not timely filed, this proceeding would be abated to the trial court for a hearing to determine why no brief has been timely filed. Joe has not responded to our January 11, 2023 order.
We therefore abate this proceeding to the trial court to conduct a hearing to determine why no brief has been timely filed on behalf of Joe after remand by the Court of Criminal Appeals. The trial court shall conduct the hearing within twenty-one (21) days after the date of this order. The trial court clerk and court reporter shall file supplemental records within thirty-five (35) days after the date of this order.