JOHNSON, ZIMBABWE RAYMOND v. the State of Texas

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NOS. PD-0055-23 & PD-0056-23

ZIMBABWE RAYMOND JOHNSON, Appellant

v.

THE STATE OF TEXAS

ON STATE’S PETITIONS FOR DISCRETIONARY REVIEW
FROM THE SIXTH COURT OF APPEALS
BOWIE COUNTY

KELLER, P.J., delivered the opinion of the Court in which HERVEY,
RICHARDSON, YEARY, KEEL, SLAUGHTER and MCCLURE, JJ., joined. NEWELL, J., filed
a dissenting opinion in which WALKER, J., joined.

OPINION

Appellant damaged 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 damaged. The question is whether restitution may be ordered for an offense that did not

itself cause the damage. We conclude that restitution may not be ordered under those circumstances.
JOHNSON — 2

I. BACKGROUND

While driving in Bowie County, Appellant collided with a utility pole and an antique truck.

He continued to drive down the road, for a over a thousand feet, until his vehicle became incapable

of driving farther. The police soon arrived, and Appellant gave them his identification information,

but he had no insurance. He was charged with the failure to comply with a duty, after striking a

fixture, to take reasonable steps to impart certain information to the owner or person in charge of the

fixture.1 He was also charged with the failure to comply with a duty, after being involved in an

accident causing damage to a vehicle, to stop and give information to the owner of the vehicle.2 The

jury found him guilty 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 judge then imposed restitution of

$200 for the utility-pole offense and $10,000 for the vehicle offense.

On appeal, one of Appellant’s complaints was that the award of restitution was improper

because the offenses for which he was convicted did not cause the damage to the pole and truck. The

court of appeals agreed.3 In doing so, it relied in part on our prior decision in Hanna v. State,4 the

language of Code of Criminal Procedure article 42.037(k), and Bailey v. State,5 a case from the

Fourteenth Court of Appeals in Houston.6 The court of appeals cited cases from the Corpus Christi

1
TEX. TRANSP. CODE § 550.025(a)(1).
2
Id. §§ 550.022(a), 550.023.
3
Johnson v. State, 659 S.W.3d 473, 474-76 (Tex. App.—Texarkana 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 Austin courts of appeals as holding to the contrary but declined to follow those cases.7

Consequently, the court of appeals deleted the restitution awards.8

II. ANALYSIS

Article 42.037, the statute permitting restitution to be imposed as a judgment obligation,

contains numerous references to the offense causing the damage:

(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 results in personal injury to a victim, the court may order the
defendant to make restitution to:

(A) the victim for any expenses incurred by the victim as a result of the offense; or

***

(c) The court, in determining whether to order restitution and the amount of
restitution, shall consider:

(1) the amount of the loss sustained by any victim and the amount paid to or on
behalf of the victim by the compensation to victims of crime fund as a result of the
offense; and

(2) other factors the court deems appropriate.

***

(k) The court shall resolve any dispute relating to the proper amount or type of
restitution. The standard of proof is a preponderance of the evidence. The burden
of demonstrating the amount of the loss sustained by a victim as a result of the
offense is on the prosecuting attorney. The burden of demonstrating the financial
resources of the defendant and the financial needs of the defendant and the
defendant’s dependents is on the defendant. The burden of demonstrating other

7
See id. at 476 (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 appropriate is on the party designated by the court as
justice requires.9

This statute also refers to the Crime Victims’ Compensation Fund, established under Chapter 56B

of the Code of Criminal Procedure.10 An application for compensation from the fund requires,

among other things, “a description of the nature and circumstances of the criminally injurious

conduct.”11

The import of all of these provisions is that the criminal offense for which the defendant is

convicted must be the cause of the damage for which restitution is awarded. That is consistent with

what this Court said in Hanna. The issue in Hanna was whether restitution could be ordered in a

driving while intoxicated case even though the offense of DWI does not require a victim and no

victim had been named in the indictment.12 We held that it could.13 But we went on to say that

restitution was improper in that case because there was no evidence to show that the offense

(Hanna’s intoxicated driving) caused the damage.14

In 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 render aid because the defendant’s involvement

9
TEX. CODE CRIM. PROC. art. 42.037(b), (c), (k) (emphasis added).
10
See id. art. 42.037(a).
11
Id. art. 56B.051(b)(2) (emphasis added).
12
426 S.W.3d at 93-97.
13
Id.
14
Id. at 97-98 (“[B]ut there is no evidence—and certainly not proof that satisfies the
preponderance of the evidence standard—to show that the offense (appellant’s intoxicated driving)
caused the damage to the utility pole.”) (emphasis in original).
JOHNSON — 5

in an accident resulting in injury or death was an element of the offense.15 The court held that

restitution could be imposed because there was “a real and essential connection between the injuries

suffered by the victim and [the defendant’s] failure to stop and render aid” and that this connection

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

a crime.”16 In C.T., the Corpus Christi court of Appeals followed Lerma in a juvenile adjudication

case, concluding that its reasoning was persuasive.17

We find Lerma and C.T. to be distinguishable from the present case and from Hanna. Here

and in Hanna, restitution was imposed as a judgment obligation in a criminal case, not as a condition

of probation.18 It is at least arguable that a trial court has greater discretion in considering restitution

as a condition of probation,19 as happened in Lerma. And it is also at least arguable that juvenile-

adjudication proceedings afford greater discretion to impose restitution than that afforded in criminal

proceedings.

The State criticizes C.T., and by extension Lerma, as formulating a standard that is too vague

to be workable. The State also criticizes Bailey as not affording enough victims with relief. The

State claims that Hanna adequately balanced the interests involved and then claims that the present

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

15
758 S.W.2d at 384.
16
Id.
17
43 S.W.3d at 602-03.
18
See Hanna, 426 S.W.3d at 89; Johnson, 659 S.W.3d at 474.
19
See TEX. CODE OF CRIM. PROC. art. 42A.301(a) (“The judge may impose any reasonable
condition that is not duplicative of another condition and that is designed to protect or restore the
community, protect or restore the victim, or punish, rehabilitate, or reform the defendant.”).
JOHNSON — 6

evidence at trial showed that Appellant caused the damage to the utility pole and the truck and that

this was a result of a nexus between the accident and the criminal offense. But even assuming the

State’s reasoning requires more than required by Lerma and C.T., it still falls short of what is

required by Article 42.037. It is not enough to show that the defendant caused the damage; the State

must show that the offense for which the defendant was convicted caused the damage. And there is

no evidence of that in this case.

We do not mean to suggest that restitution would never be available for an offense involving

a duty to give information or render aid after an accident. If a person’s failure to give information

or render aid caused damage—for example, by delaying medical help that results in making a

victim’s injuries worse—then that could be a basis for awarding restitution. But there is no evidence

that Appellant’s attempted failure to comply with his duties of giving information caused any of the

damage in this case.

The State also suggests that limiting restitution might motivate the State to overcharge just

to obtain restitution. That concern cannot dictate our resolution of the issue here. We affirm the

judgment of the court of appeals.

Delivered: December 20, 2023
Publish