## In The Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06

- 22

- 00027

- CR

ZIMBABWE RAYMOND JOHNSON , Appellant

V. THE STATE OF TEXAS , Appellee

On Appeal from the County Court at Law

Bowie County, Texas Trial Court No. 21M0630

- CCL

Before Morriss, C.J., Stevens and van Cleef , JJ.

Opinion by Justice Stevens2 

### O P I N I O N
While driving in Bowie County, Zimbabwe Raymond Johnson collided with a Southwest Electric Power Company (SWEPCO) utility pole and an antique truck. Johns on was charged with the misdemeanor offenses of failing to perform his statutory duty on striking a structure, fixture, or highway landscaping involving damages greater than or equal to $ 200 .00 1 and failure to perform his statutory duty when being involved i n an accident involving more than $200 .00 in damages to a vehicle. 2 The jury found Johnson guilty of attempted failure to perform his statutory duty on striking a structure and attempted failure to perform his statutory duty when being involved in an ac ci dent involving damage to a vehicle 3 . The jury assessed a $200 .00 fine in each case. In addition to the fines, t he trial court ordered restitution in the amo unt of $200 .00 for damage to the pole and $10,000 .00 for damage to the truck. Johnson appeals from his conviction for attempt ed failure to perform his statutory duty

on striking a structure. 4 Johnson contends that (1) the evidence was legally insufficient to prove the value of the utility pole , (2) the trial court erred in ordering restitution b ec ause the damage to the utility pole was not a direct result of the crime for which he was convicted , and (3) the trial court erred by assessing a $200 .00 concurrent fine.

1 T EX
. T RA NSP
. C ODE A NN
. § 550.025(b)(2)

2 T EX
. T RANSP
. C ODE A NN
. § 550.022 (c) (2)

.
3 T EX
. T RA NSP
. C ODE A NN
. § 542. 3 03(a) (“ A person who attempts to commit or conspir es to commit an act declared by this s ubtitle to be an offens e is g uilty of the of fense .”)

.
4 Johnson appeals from his conviction for attempted accident involving a vehicle in our c ause number 06

- 2 2

- 00 028

- CR.3

Because we find that the offense for which Johnson was convict ed was not the pr o x im ate and “ but for ” cause of the damage to the utility pole, we modify the trial court ’ s judgment by deleting the award of $200.00 in restitu tion. As modified, we affirm the trial court ’ s judgment because (1) there was legally sufficient evi dence for the ju ry to conclude that the utility pole suffered $200 .00 or more in damages , and (2) the trial court did not err in assessing a $200 .00

concurren t fine

. I. Factual and Procedural Background On April 1, 2021, Tabitha Ray was in her backyard w hen she hear d a “ big crash. ” She went into her front yard and saw that a maroon car had collided with her husband , Tommy ’ s , truck. The truck was an antique, yellow , 1954 Chevrolet in “ very rare ” condition ; that was her husband ’ s “ baby. ” The car back ed up, “ trying to n av igate around ” the truck, but one of the front wheels was damaged , “ so [the driver] couldn ’ t steer it very well ” and the car hit the truck again. She testified that the car then drove down the street, and she though t the car was t rying to le a ve the scene , but it finally came to a stop. The driver of the car got out, started speaking with some

o f Ray ’ s neighbors, and remained on the scene until the police arrived. Ray called law enforcem ent and took photographs of the car a nd the ut ility pole

. T h e photo gr aph s were admitted into evidence and published to the jury. Ray testified that the driver, later identified as Johnson, never tried to speak to her about the colli sion or provide her with his insurance information

. Alan a Dixon, one of Ray ’ s neighbors , testified t hat , on April 1, 2021, the lights in her home went off , and her daughter told her that a “ man hit the pole

. ” Dixon then went outside to4

see what had happened. When she got outside, she saw a “ young man in a car, and h e was tryin g to leave th e s c ene. ” She saw a “ telephone pol e in half across the st reet. ” She identified Johnson as the young man she saw “ hit a car and a telephone pole in fro nt of the Rays ’ house. ” Dixon
test ified that Jo hnson “

just drove off

” to the end of th e street w here h e s topped at the stop sign. Johnson was havi ng trou ble controlling the car because “ [o]ne of his tires was not moving. ” Although she admitted that Johnson was still at the end of the road when the police arrived, she believed th at Johnson was t ryin g to le av e the scene and that the only reason Johnson di d not

a ctually leave the area was because his car was too badly damaged. Carmine Smith was at the home of Ray ’ s neighbor at the time of the coll i sion. Smith testified that he was in side when he he a rd a s ou nd “ like a transformer had exploded. ” Dixon ’ s daughter came inside and said that “ some one just hit the pole, ” and Smith ran outside “ to see if someone was okay. ” He saw Johnson trying to move t he car away from the yello w truck, but it was moving slo wly b ecause “ only one wheel was movi ng. ” After he h ad hit the telephone pole and the truck, Johnson was “ trying to drive off, ” but he stopped the car down the street. Rusty Hill, a police officer w ith the New Boston P o lice Department, was called to the

sce ne of the colli sion. When he arrived, he saw Joh nson ’ s maroon car “ hal f way in the road at an intersection with ball joi nts broken in the front and a telephone pole that had been hit. ” The car

wa s stopped “ [o] v er a thousand feet ” from the scene of the col li sion. Hill did not take photographs of the veh icles or the accident scene, but a recording from Hill ’ s body camera was admitted into evidence and played for the jury. Hill spoke with John son, w ho inf o rmed him that he had been “ involved in a wreck. ” Hi ll testified that , from the position of Johnson ’ s car in5

relation to the damaged pole, “ [y]ou could tell he was trying to leave the scene. ” Hill observed that Johnson was “ on th e phone with someb o dy trying to get out of there. ” John son had not spoken to Ra y or left his insurance information. By two s eparate information s , Johnson was charged with failing to perform his statutory duty ( 1) on striking structure, fixture, or highway landscaping (duty on str iking struct u re) and (2) after an ac c ident involving damage to a vehicle. The first charge a lle ged that Johnson did then and there: having been the op erator of a vehicle involved in a n accident resulting only in damage of $200 or more to a structure adjacent to a high way or a fix t ure legall y on or adjacent to a highw ay, to wit : A Sw epco electric po le, intentionally or knowingly fail to take reasonable steps to locate or notify the owne r or person in charge of the property of the accident or the defendant ’ s name or add ress or the r egistratio n number of the vehicle the defendant was dr iving. The s eco nd charge alleged that Johnson did then and there: inte ntionally and knowing ly drive a vehicle that became involved in an accident resulting in damage to a veh icle, and th e defendant did thereaft e r, knowing the a ccident had oc curred, intentionally or k nowi ngly fail to give his name or address or registration number of the vehicle the defendant was driving or the name of the defendant ’ s motor vehicle liability in surer to Tom m y Ray, who was the driv e r of or an occup ant of or a pe rson attending the vehicle col lided with, and the damage to the vehicle collided wit h resulted in a pecun iary l oss of $200 or more. The jury found Johnson not guilty of faili ng to perfor m his statutory duty on striking a
st r ucture and fail i ng to perfo rm his statutory duty when be ing involv ed in a n accident with more than $200 .00 in damage s t o a vehicle . Instead, the jury found him guilty of attempted failure to perform h is statutory duty on striking a fixture and a ttempted failure to pe rfor m his statu tory duty when bein g involved in a n accident involving more than $200 .00 in damage s to a vehi cle

. Both the State and Johnson rested wi thout presen t ing evidence in the sentencing phase of the6

trial. The jury assessed J ohnson a $200 .00 fine in e ach case. After discha rging t he jury, the

c ourt, in addition to the fines assessed by the ju ry, imposed restitution in the amount of $200 .00 payable to S WEPCO. John s on filed a motion for a new trial on punishment, requesting t h at the court remove the re s titution to SWEPCO, but the trial cou rt deni ed the motion.
II. Legally Sufficient Evidence Supporte d the Conviction In his first point of error, Johns on argues th a t the evidence is legally insufficient to support the jury ’ s verd i ct because there was n o evidence to pr ove damages of $2 00.00 or more to the pole

.

“ In evaluating legal sufficiency, we review all the evid ence in the light most favorabl e to the tri a l court ’ s judgment to dete r mine whether any rational jury could have found the essentia l el ement s of the offens e beyond a reasonable doubt. ” Wi lliamson v. State , 589 S.W.3d 292, 297 (Tex. A pp.

— Texarkana 2019 , pet . ref ’ d) (citing Brooks v. Stat e , 323 S.W.3 d 893, 912 (Tex. Crim. App

. 2010) (plur ality op.) ; Jackson v. Virginia , 443 U.S. 307, 319 (1 979) ; Hartsf ield v.
State , 305 S.W.3d 859, 863 (Tex. App.

— Texarkana 2010, pet. ref ’ d ) ). “ Our rigor ous [ legal sufficiency ] review focuses o n the quality of the evid e nce presented. ” Id. (cit i ng Brooks , 323 S.W.3d at 917

– 18 (Cochran, J., concurring ) ). “ We exam ine legal suffi ciency under the direction of the Brooks opinion, while giving deference to the responsibility of the jury ‘ to fairly re solve conflicts in testim o ny, to weigh the evidence , and to draw reasonable inferences from basic facts to ultimate f

acts

. ’ ” Id. ( quoti ng Hooper v. State , 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) ( citing Jackson , 443 U.S. at 318

– 19; Clayton v. State , 235 S.W.3d 772, 778 (Tex. Crim

. Ap p. 2007 ) ).7

“ Legal suff

i ciency of the evidence is measured by the elements of the offense as defined by a hy pothetically correct jury charge. ” Id. at 298 (quoting Malik v. State , 953 S.W. 2d 234, 240 (Tex. Crim. App. 1997) )

. “ The ‘ hypothetically correc t ’ jury cha rge is ‘ one tha t accurately sets out the law, is authorized by the indictment, do es n ot unnecessaril y increase the State ’ s burden of proof or unnecessarily restrict the State ’ s the ories of liability, and adequately desc ribes the particular offen s e for whic h the defendant was tried. ’ ” Id

. (quoting Malik , 953 S.W.2d at 240 )

. Section 550 .025 (a) requires mo to rists : involved in an accident resulting only in damage to a structure

. . . o r a fixture or landsca p ing legally on or adjac ent to a highway shal l : (1) tak e reaso n able steps to locate and notify the owner or person in charge of the prop er ty of the accid ent and of the operator ’ s name an d address and the registration number of the vehi cle the operator was driving; and (2) if req uested and available , show the operato r ’ s driver ’ s license to the owner or person in charge of the property.
T E X
. T RANSP
. C ODE A NN
. § 550. 025(a). If the damage to all structures is $200 .00 or more , a violation of Sec tion 550.025 is a Class B misdemeanor, but if the damage i s less than $200 .0 0 , failure to fulfill one ’ s reporting duties is a Class C misdemeanor. T E X
. T RANSP
. C ODE A NN
. § 550.025 (b)

. The amount of damages invol v ed forms the basis of punishment as sessed.
E lomary v. State , 796 S.W.2d 191, 192

– 93 (Tex. Cri m. App. 1990) ; Jones v. S tate , 377 S.W.2d 205, 206 (Tex. Crim. App. 1964); In re M.C.L. , 110 S.W.3 d 591, 594 (Tex. App.

— Austin 200 3,8

no pet.). Here , Johnson was charged with a Class B misdemeanor violat ion and was found guilty of attempt ing to commi t that Class B violation. 5
T here is no direct evidence in the record that there were damages of $200. 00 or more to the pole

. Even so, there is authori ty indicating that , under certain circumstances, a jur y can use its common knowledge to determine whether t he amount of da mages meets or exceeds a certain thresh old

. In Nixon v. State , Nixon crashed his truc k into his estr anged wife ’ s house and was convic ted of criminal mischief causing more than $ 750 .00 in damages

. Nixon v. State , 937
S.W

. 2d 610, 612

– 13 (Tex

. A pp.

— Houston [1st Dist.] 1996, no pet.) (en banc)

. T he State introduced numerous photographs showi ng the truck in side the den, large pieces of she et rock ripped from the walls, damaged furniture and a ccessories , as well as damage to t he kitchen and bath roo m . Id. at 6 12

– 13. Sev eral officers testified that the amount of damage caused by the defendant w as extensive. Id. at 613. Even though e xpert t estimony is ordin a ril y necessary to establish the pecu niary loss to damaged property, 6 t he c ourt of a ppea ls concluded that the testimony abou t the extensive natu re of the damage to the house coupled with the photographs
pro vided sufficient evidence from wh ich the jurors could find, based on “ common knowledge, ” that the amount of pecuniary lo s s was more than $ 750 .00

. Id

. at 612

. I n Edwards v. S tate , Edwards was co nvicted of Class B criminal mischief after he k icked down Cren shaw ’ s door. Edwards v. State , N o. 01

- 20

- 00064

- CR, 2020 WL 6435769, at *1 (Tex.

5 A p erson is guilty of criminal attempt if , “ with specific intent to commit an offe nse, he do es an act amoun ti ng t o more than mere preparation that tends but fails to e ffect t h e commission of the offense intended. ” Se e T EX
. P ENAL C ODE A NN
. § 15.01.

6 E lomar y v. State , 796 S.W.2d 191, 193 (Tex. Crim

. App. 1990).9

App.

— H ouston [1 st Dist.] Nov

. 3, 2020 , n o pet. ) ( mem. op. , not designated for publication)

. 7
The evidence regard ing the pecuniary l oss consisted of testimony t hat the dam age was

“ significant ” and “ numerous p hotographs ” showing “ the space where the front door us ed to be with the hin ges ripped f

r om the wall, t he door frame bent and pulled several inches away from the wall, and the wall inside the apartment cracked along the door frame. ” Id. at * 5. On appeal,
E dwards argued that there was legally insufficient evidence t hat he caused more th an $10 0 .00 in damages. T he c ourt of a ppeals , citing Nixon , upheld Edwards ’ s convictio n finding that the photographs , combined with the testim ony , were sufficient evidence fo r jurors to determine,

“ based on their common knowledge, ” that i t would cost more th a n $ 100 .00 to repair the d oor . Id. at * 5

– 6. Th e state of the evidence in this case is similar to that of Nixon and Edwards

. Although the re was no evidence regarding the cost to repair or replace the pole , p hotographs of the broken
po le were admitted in t o evide nce . Ray also test ifi ed that the pole was “ completely separated, ” broken “ in ha lf , ” leaving the “ t op part

. . . just kind of hangin g from the wires

. ” As in Nixon a nd Edwards , this was sufficient evidence f r om which a rational j ury co uld employ i t s c ommon knowledge to reasonably conclude th at there was damage of $200.00 or more to the pole

. Accordingly, we overrule Joh nson ’ s first po int of error.

7 Although unpublished cases ha ve no precedential va lu e , we may take guidance from them “ as an aid in developing rea s oning that may be employed.” Carrillo v. State , 98 S.W.3d 789, 794 (Tex. App.

— Amarillo 2003, pet. ref ’ d)

.10

II I . The Trial Co urt Erred in Awarding Restitution
In his second point of error, Joh nson argu es that th e t rial court erred in ordering restitution b ecause the State failed to show that the damage to the pole was a direct resu lt of the crime for which he was convicted

. 8

“ We review challenges to restitution orders under an abuse of discreti on standard

. ”
O ’ Ne al v. State , 426 S.W.3d 242, 246 (Tex. App.

— T exarkana 2013, no pet.); Cartwright v.
State , 605 S.W.2d 287, 288

– 89 (Tex. Cr im. App. [Panel Op.] 1980). A trial court abuse s its discretion when it acts without re f erence to any guiding rule s or principles or acts arbitraril y or unreasonably, or when its decision is so clearly wrong that it lies outside the zone of reasonable dis agreement. See Gonzalez v. State , 117 S.W.3d 83 1, 839 (Tex. Crim. App. 2003 ). “ An abus e of discretion by the trial court in se tti ng the amount of restit ution will implicate due

- p rocess considerations. ” Campbell v. State , 5 S.W.3d 693, 696 (Tex. Cri m. Ap p. 1999). Resti tution is a form of punishment, b ut it is also a crime victim ’ s sta tutory right. T EX
. C ODE C RIM
. P RO C
. A NN
. ar t. 42.037 ( Supp.)

. “ A broad interpretation of the res titutio n statutes provides judges with ‘ greater discretion in effectuat ing o pportunities fo r rehabilitating criminals, deter ring future harms, and efficiently compe n sating victims. ’ ” Lemos v. State , 27 S. W.3d 42, 45 (Tex. App.

— San Antonio 2000, pe t. ref ’ d ) (quoting Neil D. Okazkai, Note & Comment, People v. Sexton : Insuring an A bsurd Resul t Th rough Inflexible Interpretation

– T he Court of Appeal Denies Criminal Resti t ution To a Victim ’ s Ins uran ce Company , 3 1 L OY
. L.A. L. R EV
.

8 The State cont ends that Johnson failed to preserve this issue b ec ause he failed to ra i se it at tria l

. “Challenges to re stitution orders must be ra i sed in the trial court t o preserve them fo r app ellate review , ” Garcia v. St ate , No. PD

0025

- 21, 2022 WL 610983, at *3 (Tex . Crim. App. Mar. 2, 2022) , when there i s an opport unity to do so, such as when a trial court “order[s] re stitution at the sentencing hea ring , ” i d

. at *3

. Johnson preserved this issue for our review because he r aised it in his motion for a new trial on p unishment

.11

297, 321 (1997)). That said , t he amount of restitution must be just , it must have a factual basis in the r ecord , and it m ay be ordered only to a victim of an offense for which the defendant i s charged. Campbell , 5 S.W.3d at 696

– 97

. Moreover, as the Texas Cour t of Criminal Appeals h as consistently held, “ there must be a causal connectio n between the criminal offense and the recipient of restitution. ” Hann a v. State , 426 S.W.3d 87, 93 (Tex. C rim. App . 2014).
Here , Johnso n was convicted of attempting to leave the scene of an acciden t without fulfilling his statutory duties to report it. See T EX
. T RANSP
. C ODE A NN
. § 550.025 (a). Thus, t he issue is whether that offense caused the property dam a ge to th e utility pole. For th e same reasons stated in our opinion in cause number 06

- 22

- 00028

- CR, we find that the State failed to show in this case that Johnson ’ s offen se, a ttempting to leave the scene of the collisi on without fulfilling his st atutory d uties after having been involved in a vehicle collision, ca used the damage to the utility pole. As a r esult, we sustain Johnson ’ s second point of error, reverse the trial cour t ’ s order of restitution, and delete the as sessment of $200 .0 0 in restitut ion f

r om the judgment. IV. We May Not De lete the Concurrent Fin e s f rom the Judgment
T he jury assessed a $200 .00 fine for eac h of Johnson ’ s two convictions. Accordingly, the judgm ent in thi s case assesse d a $200 .00 fine , a s does the judgment for attempted ac c ident involving damage to a vehi cle

. The judgments note th at the sentences assessed are to be served
concurrent ly, but t he trial court did not specifically order the fine s in each case to run concurrently

. In his fina l point of error, Johnson argues tha t th is Court should delete one of th e two $200 .00 fines beca use the fines are be served concurrently.12

The Texas Pe nal Co de requires sentences for offenses arising out of the s ame crimin al episode that are prosecuted in a single criminal action to be serv e d concurrently. T EX
. P ENAL C ODE
. A NN
. § 3.03(a) (Supp.)

. The concurrent sentence provision in S ection 3.03 applies to t he entire sentence, including fines. See State v. Croo k , 248 S.W .3d 172, 177 (Tex. Crim. App.
200 8)

. W here multiple fines are assess e d in a same

- criminal

- episode pr ose cution and they are order ed to be discharged concurrently, they discharge in the same m an ner as concurrent terms of confinement

— the defen dant pays the g reatest amount of the fine but re ceives credit for satisfying all of t he m ultiple concurrent fines. See i d. However, each judgment must include the fine actually imposed, and the c ourts of a ppeal s may not delete a lawfully assessed concurr ent fine f rom a trial court ’ s judgment in order to protect against possible improp e r stack ing of fines. 9
A n sastassov v. Stat e , No. PD

- 0848

- 20, 2022 WL 5054846 , at * 3 (Tex. Crim. App. Oct

. 5, 2022 ) (abrogating c ases deleting concurren t fines). Therefore, we overrule Joh nso n ’ s third point of

error .

9 “ If defendants are being improperly su bjected to cons ecuti v e fine s in conflict w i th t he trial court ’ s judgments in a given case, the proper course is to pursue relief through a writ of habeas corpu s. ” Anastassov v. State , 2022 WL 5054846, at *6

.13

V. Conclu sion We modify the judgment by deleting the award of $200 .00 in restitution . A s modified,

we affirm th e trial court ’ s judgment

.

Scott E. Stevens Justice
Date Submitt ed : November 9, 20 22 Date Decided : D e c ember 22 , 2022 Publish