## IN THE COURT OF CRIMINA L A PPEA LS OF TEXA S
NOS. PD-0055-23 & PD-0056-23

Z IMBABWE RAYMOND JOHNSON, Appellant

v. THE STATE OF TEX AS ON STATE’S PETITIONS FOR DISCRETIONARY REVIEW

FROM THE SIX TH COURT OF APPEALS

BOWIE COUNTY

K E L L E R 

### , P.J., delivered the o p i n i on of t he Court in w h ich H E R V E Y 

### , R I C H A R D S O N 

### , Y E A R Y 

### , K E E L 

### , S L A U G H T E R 

### and M C 

### C L U R E 

### , JJ., joined. N E W E L L 

### , J., filed a dissenting opinion in w hich W A L K E R 

### , J ., joined.

OP INION Appellant damag e d property in a car accident. He was convicted of failure to perform a duty to provide information after the accident, and he was ordered to pay restitution to the owners of the property he damag e d. T he question is whether restitution may be ordered for an offense that did not itself c ause the damag e. W e conclude that restitution may not be ordered under those circumstances.JOHNSON — 2 I. BACK G ROUND W h ile driving in B owie County , Appellant collided w ith a utility p o le and an antique truck. He continued to drive down the r oad, for a over a thousand feet, until his vehicle became incapable of driving farther. T he police soon arrived, and A ppellant g ave them his identification information, but he had no insurance. He was c harg ed with the failure to comply with a duty , after striking a fix ture, to take reasonable steps to impart certain information to the owner or person in charg e of the fix ture. 1 He was a l s o c h a r ged with the f ailure to comply with a duty , a fter b eing involved in an accident causing damag e to a vehicle, to stop and g ive information to the owner of the vehicle. 2 The jury found him g u ilty of the lesser-included offenses of attempt to commit those offenses. The jury assessed a punishment of a $200 fine for each offense. The trial judg e then imposed restitution of $200 for the utility -pole offense and $10,000 for the vehicle offense. On appeal, o ne of Ap p e l lant’s complaints w as that the award of restitution was improper because the offenses for which he was convicted did not cause the damag e to the pole and truck. The court of appeals ag

reed. 3 I n doing so, it relied in part on our prior decision in Hanna v. State , 4 the lang uag e of Code of Criminal Procedure article 42.037(k), a nd Baile y v . State , 5 a case from the F ourteenth Court of Appeals in Houston. 6 The court of appeals c ited cases from the Corpus Christi

1 T E X
. T R

A N S P
. C O D E § 550.025(a)(1).

2 Id. §§ 550.022(a), 550.023.

3 Johnson v. State , 659 S.W

. 3d 473, 474-76 (Tex

. App.—Tex arkana 2022).

4 426 S.W .3d 87 (Tex . Crim. App. 2014).

5 171 S.W .3d 639 (Tex . App.—Houston [ 14th Dist.] 2005, no pet.).

6 Johnson , 659 S.W

. 3d at 475-76.JOHNSON — 3

and A ustin courts of appeals a s holding t o t h e contrary but declined to follow those cases. 7 Consequently , the court of appeals deleted the restitution awards. 8 II. ANALYSIS Article 4 2.037, the statute permitting restitution to be impo sed as a judg ment oblig ation, contains numerous references to the offense causing the damag e: (b)(1) If the offense results in damage to or loss or destruction of property of a victim of the offense, the court may order the defendant:

* * * (2) If the offense re s u l ts in personal injury to a victim , the court may o rder the defendant to make restitution to: (A) the victim for any ex penses incurred by the victim as a result of the offense ; or * * * (c) The court, in d etermining wheth e r t o order restitution and the amount of restitution, shall consider: (1) the amount of the loss sustained b y any v ictim and the amou n t p a i d to or on behalf of the v ictim by the compensation to v ictims of c rime f u nd as a result of the offense ; and (2) other factors the court deems appropriate. * * * (k) The court shall resolve any dispute r elating to the proper amount or ty pe of restitution. The standard of proof is a preponderance of the evidence. T h e burden of demonstrating the amount of the loss sustained by a victim as a result of the offense is on the prosecuting attorney
. T h e b u rden o f demonstrating the financial resources o f the d efendant and the financial needs of the def e n d a n t and the defendant’s depen d ents is on the d efendant. The burden of demonstrating other

7 See id. a t 4 76 (discussing In re C.T. , 43 S.W .3d 600 (Tex

. App.—Corpus Christi 2001, no pet.), and Lerma v. State , 758 S.W .2d 383, 384 (Tex . App.—Austin 1988, no pet.)).

8 Id. at 477.JOHNSON — 4

matters as the court deems appr opriate is on the party desig nated by the court as justice requires. 9 This statute also refers to the Crime Victims’ Compensation F und, established under Chapter 56B of the Code of Criminal Procedure. 1 0 An a pplication for c o m p e n s a t i o n from the fund requires, among other thing s, “a description of the nature a nd circumstances of the criminall y injurious conduct. ” 1 1 The import of a ll of these provisions is that the criminal offense for w hich the defendant is convicted must be the c ause of the damag e for which restitution is awarded. That is c onsistent with what this Court said in Hanna

. The issue in Hanna was whether restitution could b e ordered in a driving while intox icated case even though t h e o f f e n se of DW I d oes not require a victim and no victim had b e e n n am e d i n t h e indictment. 1 2 We held that it could. 1 3 B u t we went on to say that restitution was improper in that ca s e b e c ause there w as no evidence to show that the offense (Hanna’s intox icated driving ) caused the damag e . 1 4 I n Lerma , the Austin court of appeals held that restitution could be imposed as a condition of probation for the offense of failure to stop and r ender aid because the defendant’s involv e m ent

9 T E X
. C O D E C R

I M
. P R O C
. art. 42.037(b), (c), (k) (emphasis added).

1 0 See id. art. 42.037(a).

1 1 Id. art. 56B .051(b)(2) (emphasis added).

1 2 426 S.W .3d at 93-97.

1 3 Id.

1 4 I d

. a t 97-98 (“[ B ] u t there is no evidence—and certainly not proof that satisfies the preponderance o f the evidence standard—to show that the offense (appellant’s intox icated driving ) caused the damag e to the utility pole.”) (emphasis in orig inal).JOHNSON — 5

in an accident r esulting in injury o r death w a s a n element o f t h e o ffense. 1 5 The court held that restitution could b e imposed b ecause there was “a real a nd essential connection between the injuries suffered by the victim a

nd [ the defendant’s] f

ailure to stop and r ender a id” a nd that this connection

was the fact that “had there b een no injuries, [ the defendant’s] failure to stop would not have been

a c rime.” 1 6 I n C.T. , the Corpus Christi court of A ppeals followed Lerma in a juvenile adjudication case, concluding that its reasoning was persuasive. 1 7 W e find Lerma and C.T. to be disting uishable from the p resent c ase and from Hanna

. Here and in Hanna , restitution was imposed as a judg ment oblig a tion in a criminal case, not as a condition of p robation. 1 8 I t is at least a r g u able that a trial c ourt h as g r eater discretion in considering restitution

as a condition of probation, 1 9 as happened in Lerma . And it is also at least arg uable that juvenileadjudication p r oceeding s afford g reater discretion to impose r e s t i t u t i o n than that afforded in criminal proceeding s. The State criticiz es C.T. , and by ex tension Lerma , as formulating a standard that is too vag ue to be workable. T he State a l s o criticiz es Bailey as not affording enoug h victims with r e lief. The State claims that Hanna adequately balanced the interests involved and then c laims that the present

case meets the causation standard in Hanna. The State claims that causation is shown because the

1 5 758 S.W .2d at 384.

1 6 Id.

1 7 43 S.W .3d at 602-03.

1 8 See Hanna , 426 S.W .3d at 89; Johnson , 659 S.W .3d at 474.

1 9 See T E X
. C O D E O F C R I M
. P R O C
. art. 4 2A.301(a) (“The judg e may impose any reasonable c o n d i t ion that is not d

uplicative of another condition and that is d e sig ned to protect o r restor e t h e community , protect or restore the victim, or punish, rehabilitate, or reform the defendant.”).JOHNSON — 6

evidence at trial showed that Appellant caused the damag e to the u tility pole and the truck and that this was a result o f a nex us between the accident a nd the criminal offense. B ut even assuming the State’s reasoning requires more than required b y Lerma and C.T. , i t s t i l l f a lls short of what is required by Article 42.037. I t is n ot enoug h to show that the defendant caused the d amag e; the State must show that the offense for which the defendant was convicted caused the damag e. A nd there is no evidence of that in this case. W e do n ot mean to sug g est that restitution would never be available for an offense involving

a duty to g ive information or render aid after an accident. I f a person’s failure to g ive information

or r ender aid caused damag e—for e x ample, by delay ing medical h elp that r e s u l ts in making a victim’s injuries worse—then that could be a basis for a warding restitution. B ut there is no evidence that A ppellant’s attempted failure to comply with his duties o f g iving information caused any of the damag e in this case. The State also sug g ests that limiting restitution mig ht motivate the State to overcharg e just to obtain restitution. That concern c annot dictate our resolution of the issue h e r e . W e affirm the judg ment of the court of appeals. Delivered: December 20, 2023 Publish