Hanna v. State

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-0876-13

DANA HANNA, Appellant

v.

THE STATE OF TEXAS

ON STATE’S PETITION FOR DISCRETIONARY REVIEW
FROM THE SEVENTH COURT OF APPEALS
LUBBOCK COUNTY

C OCHRAN, J., delivered the opinion of the Court in which M EYERS, P RICE,
J OHNSON, H ERVEY and A LCALA, JJ., joined. K ELLER, P.J., filed a dissenting opinion
in which K EASLER, J., joined. W OMACK, J., concurred.

OPINION

Appellant pled guilty to driving while intoxicated. The trial judge accepted his plea

and ordered him to pay $7,767.88 in restitution to Lubbock Power and Light (LP&L) for

repairing a utility pole that appellant’s car had struck. Appellant appealed, arguing that
 Hanna Page 2

Article 42.0371 of the Code of Criminal Procedure does not authorize restitution because

LP&L was not a “victim” of the offense for which he was convicted. The court of appeals

agreed, holding that the restitution order was improper because (1) driving while intoxicated

is a victimless crime because it “does not encompass per se a particular category of

complainant,” and (2) there was no victim alleged in the charging instrument.2 We granted

review3 and conclude that restitution (1) may be ordered in a DWI case, and (2) may be

ordered for someone whose name did not appear in the charging instrument. However, the

State must prove that the defendant’s commission of the offense was the direct cause of the

harm. Because the State failed to prove that appellant’s intoxicated driving caused the

damage to the utility pole, we affirm the judgment of the court of appeals, which had deleted

the restitution order.

1
TEX . CODE CRIM . PROC. art. 42.037. Article 42.037(a) states, “In addition to any fine
authorized by law, the court that sentences a defendant convicted of an offense may order the
defendant to make restitution to any victim of the offense[.]” Article 42.037(b)(1) states, “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” to pay for the value of the property.
2
Hanna v. State, 406 S.W.3d 670, 673-74 (Tex. App.–Amarillo 2013).
3
The State’s sole question for review asks the following:
When record evidence establishes a person’s property damage or loss as a direct
result of the defendant’s commission of the offense of conviction, does the plain
language of Article 42.037, Code of Criminal Procedure, authorizing restitution to
“any victim of the offense,” (1) limit eligibility for restitution only to persons actually
named in the charging instrument, even when the existence of a victim is not an
essential element of the offense of conviction, or otherwise required by offense-
charging law, or (2) exclude whole categories of “victimless” offenses from
consideration for restitution to persons damaged as a direct result of the criminal
conduct?
 Hanna Page 3

I.

Appellant was charged with the offense of driving while intoxicated. Before appellant

entered his guilty plea, the trial judge held a restitution hearing, during which the prosecutor

introduced a “damage repair invoice” that gave the total cost of repairing LP&L’s pole. That

was the only evidence the State introduced during this hearing, and appellant objected–during

the prosecutor’s closing arguments–that the State had failed to prove causation.

The trial judge then recessed the hearing to allow the prosecutor to introduce

additional evidence. The evidence at the second hearing showed that, on January 17, 2012,

Officer Joshua Franco was dispatched to a car crash. Officer Franco testified that, when he

arrived at the scene, he noticed “power electricity lines all over the road” and “a vehicle that

was crashed into a broken telephone pole.” The officer testified that the driver–appellant–told

him that he had gone to Sonic to get a hamburger, and, while driving home, “he must have

hit a water puddle which caused him to lose control crashing into the pole.” When asked

whether he made any determination of what caused the accident, Officer Franco responded,

“[Appellant] driving that vehicle.”

During her closing argument, the prosecutor argued that she “proved the causation to

the damage of the pole with Mr. Dana Hannah . . . in this case driving his vehicle.” 4

Appellant said that Article 42.037 of the Code of Criminal Procedure limits payments of

4
The State continued, “He hit the pole causing damage to that pole that the State proved on
Friday. The amount of damage to the pole was over $7,000 to the victim, the victim being Lubbock
Power and Light.”
 Hanna Page 4

restitution to victims of the offense, and, because there was no victim in this case, the trial

judge could not order restitution. Unpersuaded, the trial judge ordered appellant to pay full

restitution for the pole.

On appeal, appellant argued that LP&L was not a victim of the offense for which he

was convicted. The court of appeals agreed for two interrelated reasons. First, the court

noted that the DWI statute “required neither injury to anyone nor the destruction or loss of

anyone’s property.”5 Therefore “LP&L was not a victim ‘of the offense [DWI] for which

[appellant] was convicted,’ and the trial court erred in holding otherwise.” 6 Second, although

the court recognized that our decision in Martin v. State7 left open the possibility of

restitution to victims not named in the charging instrument, it held that such a possibility was

very limited and allowed only in rare situations–such as when a defendant steals property

from a husband and wife but the indictment lists only one of them as the complainant.8 The

court concluded:

Again, the nature of the offense here does not encompass per se a particular
category of complainant. No one need be injured or suffer loss for a D.W.I. to
occur. Nor was the incident with the electrical pole or the identity of the pole’s
owner mentioned anywhere in the charging instrument or somehow alleged to
be part of the offense charged. So, it cannot be said that LP&L was somehow

5
Hanna, 406 S.W.3d at 672.
6
Id.
7
Martin v. State, 874 S.W.2d 674 (Tex. Crim. App. 1994).
8
Hanna, 406 S.W.3d at 672-73.
 Hanna Page 5

a victim of the crime for which appellant was convicted.9

Because many DWI cases involve accidents with property damage and because the

court of appeals adopted broad and seemingly per se rules, we granted review.

II.

Restitution is not only a form of punishment, it is also a crime victim’s statutory

right.10 Restitution serves multiple purposes, including restoring the victim to the status quo

and forcing an offender to address and remedy the specific harm that he has caused.11 “A

broad interpretation of the restitution statutes provides judges with ‘greater discretion in

effectuating opportunities for rehabilitating criminals, deterring future harms, and efficiently

compensating victims.’”12 However, the legislature has also recognized limits on the right

to restitution: the amount of restitution must be just; it must have a factual basis in the record;

and it may be ordered only to a victim of an offense for which the defendant is charged.13

9
Id. at 673-74.
10
TEX . CODE CRIM . PROC. art. 42.037.
11
Don Rogers, Feature: The Crime Victim’s Constitutional Right to Restitution in Texas
Criminal Proceedings, 46 HOUSTON LAWYER 18, January/February, 2009 (“restitution not only
compensates the crime victim for actual loss in applicable cases, but also furthers the socially
desirable goal of rehabilitation ‘[b]ecause it forces the defendant to confront, in concrete terms, the
harm his actions have caused.’”) (quoting Kelly v. Robinson, 479 U.S. 36, 49 n.10 (1986)).
12
Lemos v State, 27 S.W.3d 42, 45 (Tex. App.–San Antonio 2000, pet. ref’d) (quoting Neil
D. Okazkai, People v. Sexton: Insuring an Absurd Result Through Inflexible Interpretation—The
Court of Appeal Denies Criminal Restitution To a Victim’s Insurance Company, 31 LOY . L.A. L.
REV . 297, 321 (1997)).
13
Campbell v. State, 5 S.W.3d 693, 696-97 (Tex. Crim. App. 1999) (one “limit on the
authority of a trial court to order restitution is that a trial court may not order restitution to any but
 Hanna Page 6

This case poses the question of who is a “victim” for purposes of the Texas restitution

statute. As in all cases involving statutory interpretation, we look first to the plain language

of the statute. We do so in an effort to “effectuate the ‘collective’ intent or purpose of the

legislators who enacted the legislation.” 14

The Code of Criminal Procedure specifically states that it should be “liberally

construed” to achieve the legislature’s purpose–“[t]he prevention, suppression and

punishment of crime.”15 The legislature intended restitution to “‘adequately compensate the

victim of the offense’ in the course of punishing the criminal offender.” 16 “Society is

benefitted by punishment, including restitution, that is directly related to the offenses for

which a defendant has been charged and convicted.”17 With these goals in mind, we turn to

the restitution statute.

Article 42.037(a) states that a trial judge has discretion to order a defendant to make

restitution “to any victim of the offense[.]”18 Section (b)(1) covers “damage to or loss or

the victim or victims of the offense with which the offender is charged. Nor may a trial court,
without the agreement of the defendant, order restitution to other victims unless their losses have
been adjudicated.”) (citations omitted).
14
Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991).
15
TEX . CODE CRIM . PROC. art. 1.26.
16
Cabla v. State, 6 S.W.3d 543, 545 (Tex. Crim. App. 1999) (quoting TEX . CODE CRIM .
PROC. art. 42.12, § 9(a)).
17
Id. at 545-46.
18
TEX . CODE CRIM . PROC. art. 42.037(a).
 Hanna Page 7

destruction of property of a victim of the offense[.]”19 Section (b)(2) applies when the

offense “results in personal injury to a victim[.]”20 Section (k) provides, “The court shall

resolve any dispute relating to the proper amount or type of restitution[,]” and that “[t]he

standard of proof is a preponderance of the evidence.”21 Section (k) also puts the burden to

demonstrate “the amount of the loss sustained by a victim as a result of the offense” on the

State, while defendant bears the burden to prove his financial resources and his needs, as well

as the needs of any dependants.22 Section (m) states that a restitution order may be enforced

like the judgment in a civil action.23

While Article 42.037 sets out a comprehensive restitution scheme, it leaves one

important aspect vague: the statute does not define the term “victim.” 24 When interpreting

19
Id., art. 42.037(b)(1). This restitution section lists several possible remedies, including
returning the property or paying for its value. Id.
20
Id., art. 42.037(b)(2). The restitution remedies for personal injury include payment of “any
expenses incurred by the victim as a result of the offense” or compensation to the victims of crime
fund. Id.
21
Id., art. 42.037(k).
22
Id.
23
Id., art. 42.037(m).
24
In Chapter 56, titled “Rights of Crime Victims,” the term “victim” is defined in Article
56.01 and includes only victims of specified offenses or other offenses when the person “has suffered
personal injury or death as a result of the criminal conduct of another.” Id., art. 56.01(2). That
definition, however, is only for the purpose of Chapter 56. Id., art. 56.01. Victims of theft or
burglary, for example, are not covered by the term “victim” in Chapter 56, but they are entitled to
restitution for their property losses. See art. 42.037(b)(1) (discussing restitution when “the offense
results in damage to or loss or destruction of property of a victim of the offense”); see e.g., Campbell
v. State, 5 S.W.3d 693, 696-97 (Tex. Crim. App. 1999) (defendant convicted of theft could be
ordered to pay $100,000 restitution to various named victims); Long v. State, 7 S.W.3d 316, 322-23
 Hanna Page 8

a statute, an undefined word or phrase should be construed and understood according to its

common, every day usage.25 According to Black’s Law Dictionary, a “victim” is a “person

who is the object of a crime . . . .”26 But can there be a victim, for purposes of restitution,

when the defendant is charged with a “victimless crime”? And must a victim be named in

the charging instrument? Texas law is unclear on both points.

A. “Victimless crimes” are not victimless if the offense caused someone harm.

We have never held that restitution is allowed only for penal offenses with statutorily-

recognized victims. But this Court has consistently held that there must be a causal

connection between the criminal offense and the recipient of restitution. For example, in

Gordon v. State,27 we deleted a restitution order for funeral expenses because the jury

acquitted the defendant of murder, and therefore the defendant was not criminally responsible

for the victim’s death and the resulting funeral expenses.28 In Martin,29 this Court again

(Tex. App.–Beaumont 1999, no pet.) (defendant convicted of theft of timber could be ordered to pay
restitution of $105,488, which included the current market value and the costs of regrowing timber).
25
TEX . GOV ’T CODE § 311.011 (statutorily undefined words shall be “construed according
to the rules of grammar and common usage”); see Kirsch v. State, 357 S.W.3d 645, 650 (Tex. Crim.
App. 2012).
26
BLACK’S LAW DICTIONARY 1405 (5th ed. 1979); see also WEBSTER’S NEW TWENTIETH
CENTURY DICTIONARY UN ABRIDGED 2036 (2d ed. 1983) (defining “victim” as “someone or
something killed, destroyed, injured, or otherwise harmed by, or suffering from, some act, condition,
agency, or circumstance”; defining “victimless crime” as “a statutory crime, such as prostitution or
gambling, regarded as having no clearly identifiable victim.”).
27
707 S.W.2d 626 (Tex. Crim. App. 1986).
28
Id. at 629 (defendant police officer convicted of civil-rights violation; noting that the only
“fact” that the trial judge could have relied upon was that the defendant had pulled the arrestee’s hair,
 Hanna Page 9

recognized that “restitution may not be ordered as a condition of probation for losses caused

by an offense for which the defendant is not criminally responsible.” 30 And, in Cabla v.

State,31 we stated, in dicta, that “the focus of restitution orders [is] limited to the individuals

alleged and proven to be victims of the charged offense”32 and that “the amount of a

restitution order is limited to only the losses or expenses that the victim or victims suffered

as a result of the offense for which the defendant was convicted.” 33 This particular language

in Cabla could be interpreted as meaning either individuals “alleged in the indictment” or,

but that act was not the cause of the victim’s death, which was caused by the blows he received from
other officers). See also Campbell v. State, 5 S.W.3d 693, 698 (Tex. Crim. App. 1999) (“In Gordon,
there was no factual basis in the record for the trial court’s order of restitution for causing the
victim’s death. The trial court as a matter of law could not have imposed restitution based on conduct
that had no basis in the record.”).
29
874 S.W.2d 674 (Tex. Crim. App 1994).
30
Id. at 677. In Martin, the defendant was convicted of a defrauding a single victim. Id. at
675. This Court held that the defendant could not be ordered to pay restitution to other investors who
were defrauded in separate, uncharged incidents. Id. at 677. Restitution was not proper because the
defendant was never found guilty of the crime that allegedly caused the other investors’ losses. Id.
See also Ex parte Lewis, 892 S.W.2d 4 (Tex. Crim. App. 1994) (trial court erred in granting
restitution to victims of other, uncharged burglary). Appellant argues that Martin prohibits restitution
in this case because “the trial court’s award of restitution to LP&L was outside the scope of the
offense” and “the crime for which Appellant was charged and convicted has nothing to do with
causing damage to a phone pole.” Appellant’s Brief at 11. But in the present case, appellant pled
guilty to the DWI that the State argued caused the damage to the pole.
31
6 S.W.3d 543 (Tex. Crim. App. 1999).
32
Id. at 546.
33
Id. In Cabla, the issue was whether the defendant’s previous bankruptcy proceeding
discharged the trial court’s restitution order. We upheld the restitution order “because the evidence
at trial established [defendant] committed a crime against the alleged victims and that he was ordered
to pay restitution in the amount proven to have been unlawfully appropriated from those victims.”
Id. at 550.
 Hanna Page 10

more generally, individuals “alleged and proven to be victims of the criminal offense” at the

restitution hearing. We believe that the latter interpretation is the correct one because later

in Cabla we stated that “if a trial court . . . awards restitution to an individual either not

named as a victim in the indictment or not shown to be a victim at trial, . . . [t]hen the

restitution order may be attacked on those grounds.” 34

In support of its conclusion that restitution is not permissible when a criminal offense

contains no statutory requirement of a complainant (i.e., a victim), the court of appeals relied

on two lower court opinions: Bruni v. State35 and Lemos v. State.36 In Bruni, a defendant was

ordered to pay restitution to a theft victim’s wife even though he, not his wife, was the named

complainant. The court held that, although the victim’s wife was not a named complainant,

the record showed that the stolen money was jointly owned by the victim and his wife as

community property, so the victim’s wife was herself a victim.37

The court of appeals in this case read Bruni as permitting restitution because the wife,

like the victim, “fell within the statutorily contemplated category of victims of theft.” 38 But

nothing in Bruni indicated that its holding hinged on “statutorily contemplated” victims.

Rather, the Bruni court held that the victim’s wife was also a victim because “[t]he record

34
Id. at 549.
35
669 S.W.2d 829 (Tex. App.–Austin 1984, no pet.).
36
27 S.W.3d 42 (Tex. App.–San Antonio 2000, pet. ref.).
37
Bruni, 699 S.W.2d at 836.
38
Hanna, 406 S.W.3d at 673.
 Hanna Page 11

show[ed] that the $40,000 appropriated by Bruni was jointly owned by John and Betty Ross

as husband and wife. . . . Perforce, both were victims.”39 The result depended entirely on the

evidence that the named victim’s wife was also a victim and that the defendant’s criminal

conduct caused her loss, not that she was a “statutorily contemplated” victim.

In Lemos, the defendant was acquitted of murder, but convicted of aggravated

robbery. On appeal, he challenged a restitution order that required him to pay for therapy for

the murder victim’s family.40 The court held that the victim’s family did not qualify for

restitution because “‘restitution is limited to the results of the offense or offenses charged,

and that restitution must be made only to the victim[.]’”41 Thus, “restitution exists only for

those direct victims of the offense for which the defendant was charged and convicted.” 42

However, the Lemos court equated that correct statement with an incorrect one: the victim’s

family could not recover because they were not “statutorily-recognized victim[s].” 43

It was this language on which the court of appeals in the present case relied.44

However, as we have already noted, the restitution statute does not define “victim” nor does

39
Bruni, 669 S.W.2d at 836.
40
Lemos, 27 S.W.3d at 44-45.
41
Id. at 48 (quoting Gonzalez v. State, 954 S.W.2d 98, 106 (Tex. App.—San Antonio 1997,
no pet.)).
42
Id. at 49.
43
Id.
44
Hanna, 406 S.W.3d at 673.
 Hanna Page 12

it require that restitution may be ordered only for those criminal offenses that foresee harm

to a specific victim or complainant. Therefore, while we agree that restitution is limited to

victims who have suffered harm to their person or property as a result of the offense, this

does not mean that such restitution is limited to a “statutorily-recognized” victim.

Instead, we hold that, for purposes of the restitution statute, a “victim” is any person

who suffered loss as a direct result of the criminal offense. As stated in Section 42.037(k),

“[t]he burden of demonstrating the amount of the loss sustained by a victim as a result of the

offense is on the prosecuting attorney.”45 The phrase “as a result of the offense” includes the

notion of both actual and proximate causation.46 As the State acknowledges, the damage

must be a “direct” result of the defendant’s criminal offense–that is, the State must prove, by

a preponderance of the evidence, that the loss was a “but for” result of the criminal offense

and resulted “proximately,” or foreseeably, from the criminal offense.47

45
TEX . CODE . CRIM . PROC. art. 42.037(k) (emphasis added).
46
The federal Mandatory Victims Restitution Act defines a victim as “a person directly and
proximately harmed as a result of the commission of an offense[.]” 18 U.S.C. § 3663A (2).
47
In Hughey v. United States, 495 U.S. 411 (1990), the Supreme Court recognized a similar
standard in its interpretation of the federal Victim and Witness Protection Act (VWPA). However,
instead of holding that the harm must be caused by “the offense,” the Supreme Court held that under
the VWPA restitution “is intended to compensate victims only for losses caused by the conduct
underlying the offense of conviction.” Id. at 416. We use different language to avoid what would be
an incorrect interpretation, that restitution is allowed for any harm caused by the actus reus of an
offense. In Hughey, the Supreme Court held that a defendant could not be ordered to pay restitution
for the fraudulent use of multiple credit cards when he was convicted of the fraudulent use of only
a single victim’s credit card. Id. at 422. In so holding, the Court recognized that the statute did not
“reflect congressional intent to include in the restitution calculus losses beyond those caused by the
offense of conviction.” Id. at 416.
 Hanna Page 13

This standard is similar to that used in many other jurisdictions.48 In addition, public

policy supports allowing restitution to victims of purportedly “victimless” crimes. Allowing

restitution in such cases provides victims with a single forum in which they may recover

actual damages, albeit only those caused as a direct result of the offense. Prohibiting

restitution in such cases would severely limit a victim’s ability to be made whole if that

person did not have the financial resources to hire an attorney and pursue a civil lawsuit.

This is not to say that a restitution proceeding could, or should, replace civil actions.49 But

48
See Pena v. State, 664 P.2d 169, 178 (Alaska Ct. App. 1983) (defendant convicted of
manslaughter ordered to pay restitution to decedent’s surviving passenger because “property
damages and injuries directly sustained by [the passenger] were unquestionably the consequence of
precisely the same conduct and intent on [the defendant’s] part”); State v. Lewis, 214 P.3d 409, 412-
13 (Ariz. Ct. App. 2009) (“[E]ven a ‘victimless’ crime may support a restitution award when the
criminal conduct directly caused the economic damage. Rather than the elements of the crime, ‘the
facts underlying the conviction determine whether there are victims of a specific crime.’”) (citation
omitted); State v. Wilkinson, 39 P.3d 1131, 1133 (Ariz. 2002) (defendant who misrepresented
himself as a licensed contractor must pay restitution for the salary he received, because it was a direct
result of misrepresenting self, but not for shoddy work, which was an indirect result); State v.
Guadagni, 178 P.3d 473, 477-79 (Ariz. Ct. App. 2008) (defendant ordered to pay restitution to wives
who suffered economic losses as a direct result of bigamy because, although bigamy may
occasionally be victimless, “the elements of a crime do not alone determine whether a particular
person is entitled to restitution”); State v. Mai, 572 N.W.2d 168, 171 (Iowa Ct. App. 1997) (State
must prove “by a preponderance of the evidence a causal connection exists between the criminal act
and the victim’s damages”); State v. McBride, 940 P.2d 539, 543-44 (Utah Ct. App. 1997) (applying
“modified ‘but for’ test” in rejecting defendant’s argument that police negligence was not
superseding cause of victim’s loss); United States v. Vaknin, 112 F.3d 579, 589 (1st Cir. 1997)
(“Even if but for causation is acceptable in theory, limitless but for causation is not. Restitution
should not lie if the conduct underlying the offense of conviction is too far removed, either factually
or temporally, from the loss.”).
49
Restitution “is not awardable for pain and suffering or the inconvenience the offense may
have caused the victim.” 43A GEORGE E. DIX & JOHN M. SCHMOLESKY, TEXAS PRACTICE: CRIMINAL
PRACTICE AND PROCEDURE § 46.136 (3d ed. 2011). See also TEX . CODE CRIM . PROC. art.
42.037(f)(2) (“Any amount recovered by a victim from a person ordered to pay restitution in a
federal or state civil proceeding is reduced by any amount previously paid to the victim by the person
under an order of restitution.”).
 Hanna Page 14

when the legislature specifically provides a procedural mechanism for compensating the

victims of crime, that mechanism should not be unnecessarily or artificially limited.

Furthermore, allowing restitution in DWI cases is consistent with public policy

concerns specific to DWI laws. Although the court of appeals correctly noted that the

offense of DWI does not require a victim, the whole purpose of criminalizing driving while

intoxicated is to prevent “[t]he carnage caused by drunk drivers” 50 –fatalities, serious injuries

and property damage.51 Furthermore, judicially enacting a flat prohibition against restitution

in DWI cases could have deleterious effects, such as giving prosecutors an incentive to

charge DWI defendants with additional counts of intoxication assault or criminal mischief

solely to preserve the right to request restitution for an accident victim. Therefore, we

conclude that restitution may be ordered, when appropriate, in DWI cases.52

50
South Dakota v. Neville, 459 U.S. 553, 558 (1983) (“The situation underlying this
case—that of the drunk driver—occurs with tragic frequency on our Nation’s highways. The carnage
caused by drunk drivers is well documented and needs no detailed recitation here.”).
51
See Blackburn v. State, 204 S.W.2d 619, 620 (Tex. Crim. App. 1947) (“The purpose of the
law is to protect people against drunk drivers while using such public road, street or thoroughfare.”).
According to the National Highway Traffic Safety Administration,
Alcohol is a factor in 26% of the United States’ crash costs. Alcohol-related crashes
in the United States cost the public an estimated $114.3 billion in 2000, including
$51.1 billion in monetary costs and an estimated $63.2 billion in quality of life
losses. . . . People other than the drinking driver paid $71.6 billion of the
alcohol-related crash bill. . . . Alcohol-related crashes accounted for an estimated
18% of the $103 billion in U.S. auto insurance payments.
Dexter Taylor, Ted Miller & Kenya Cox, Impaired Driving in the United States Cost Fact Sheet,
Nat i o n al Hi ghway Traffi c S afet y Adm i ni s t ration, 200 2 , a v a i l a bl e at
http://www.nhtsa.gov/people/injury/alcohol/impaired_driving_pg2/US.htm.
52
Other Texas courts of appeals have ordered restitution in DWI cases when appropriate.
See, e.g., Ruiz v. State, No. 14-04-01140-CR, 2006 WL 771381, *1-2 (Tex. App.–Houston [14th
 Hanna Page 15

B. A victim need not be named in the charging instrument.

There is nothing in the Code of Criminal Procedure requiring, as a prerequisite for a

restitution order, that a victim be alleged in the charging instrument. Indeed, the restitution

statute explicitly states that a defendant may be ordered to make restitution to “any victim

of the offense.”53 If the legislature intended that restitution could be ordered only for “the

named victim of the offense” or “the complainant of the offense” it surely would have said

so. Even the phrases “the victim” or “a victim” are more restrictive than the expansive

phrase “any victim.” When the legislature uses the word “any,” it usually means “any and

all.” Furthermore, we have never held that, to be entitled to restitution, a victim must be

named in the charging instrument. In fact, we indicated quite the opposite in Martin v.

State,54 when we noted that

[n]amed complainants will generally be the only victims of the crime
adjudicated because in the majority of cases the offense is alleged in terms of
an identified victim or complainant. However, we make this distinction

Dist.] March 28, 2006, no pet.) (not designated for publication) (upholding DWI defendant’s
restitution order to pay for “replacement structure” for the house destroyed by his intoxicated
driving); Banda v. State, No. 13-97-400-CR, 1998 WL 34202281, *1-2 (Tex. App.–Corpus Christi
June 11, 1998, no pet.) (trial judge could recommend that parole board order DWI defendant to pay
restitution to accident victim for property damage caused by his driving while intoxicated).
Appellant raises a valid countervailing public-policy concern that, if we allow restitution
for DWI damages, we open the floodgates for restitution in a wide swath of “victimless” offenses–
perhaps even thousands of dollars worth of restitution for accidents caused by Class C jaywalking
offenses. We leave those legitimate concerns to another day as DWI, unlike many other “victimless”
offenses, clearly has the purpose of preventing and deterring death and damages to persons and
property by intoxicated drivers on our highways.
53
TEX . CODE CRIM . PROC. art. 42.037(a) (emphasis added).
54
874 S.W.2d 674 (Tex. Crim. App. 1994).
 Hanna Page 16

because we recognize that the named complainant may not always be the only
victim of the crime adjudicated.55

There is no requirement that a restitution victim be alleged in the indictment. Holding

otherwise would allow for bizarre circumstances that could not have been the intent of the

legislature. Imagine that Dangerous Dan breaks into Suzie Q’s house and steals Suzie’s

computer and her houseguest’s Rolex watch. Is the trial judge forbidden from ordering

restitution for the houseguest simply because she is not the complainant named in the

burglary indictment? This cannot be the case. It is more logical and just to conclude that the

houseguest is entitled to restitution if the State proves, by a preponderance of the evidence,

that she is also a victim–that the burglary was the “but for” and proximate cause of the loss

of her Rolex.

In sum, we conclude that a person who suffers property damage or personal injuries

as the direct result of a defendant’s DWI crime may be entitled to restitution even though that

victim is not named in the DWI charging instrument.

III.

Although we reject some of the reasoning of the court of appeals, we nonetheless

affirm its holding that the $7,767.88 restitution order was improper. The State offered

evidence that appellant caused the damage to the utility pole, but there is no evidence–and

certainly not proof that satisfies the preponderance of the evidence standard–to show that the

55
Id. at 676 n. 4 (citations omitted). See also id. at 678 n. 9 (discussing Bruni v. State, 669
S.W.2d 829 (Tex. App.–Austin 1984, no pet.) and noting that “even though Betty Ross was not a
named complainant, she was clearly a victim of the crime adjudicated.”).
 Hanna Page 17

offense (appellant’s intoxicated driving) caused the damage to the utility pole. The only

evidence as to what caused the accident (and the resulting damage) was appellant’s statement

that “he must have hit a water puddle which caused him to lose control crashing into the

pole.” The trial judge did not have to believe appellant’s testimony concerning the cause of

the accident, but there is no other affirmative evidence that would support a finding that

appellant’s intoxicated driving caused the accident.56

In this case, appellant pled guilty, so there was no trial testimony concerning his

driving, the accident, or his intoxication. At the end of the first restitution hearing in which

the State proved only the amount of the damage to the utility pole, appellant objected because

“[t]here’s been no evidence of causation.” When the trial judge asked if the State needed a

recess, appellant again objected, saying, “The State has had plenty of time to prepare this.

This is the third time we’ve been here. They didn’t present evidence as to causation.”

Nonetheless, the trial judge recessed the restitution hearing for several days to allow the State

an opportunity to prove causation.

At that second hearing, Officer Franco testified that he responded to a dispatch call

for “a car crash with injuries.” When he arrived, he saw a car “that was crashed into a

56
See, e.g., Cavazos v. State, 382 S.W.3d 377, 385 (Tex. Crim. App. 2012) (holding that
defendant is not entitled to a jury instruction on a lesser included offense based on mere speculation;
“it requires affirmative evidence that both raises the lesser-included offense and rebuts or negates
an element of the greater offense.”); Hampton v. State, 109 S.W.3d 437, 441 (Tex. Crim. App. 2003)
(trial court erred in submitting instruction on lesser-included offense of sexual assault because the
failure to find or retrieve a knife matching the description given by the complainant is not
“affirmative evidence” that no knife was used during the assault).
 Hanna Page 18

broken telephone pole” and “power electricity lines all over the road.” The pole was broken

in half. Appellant, the driver of that car, told Officer Franco that he hit a water puddle and

lost control of his car. Officer Franco never mentioned anything about appellant being

intoxicated, smelling of alcohol, or exhibiting any other indicia of drunkenness. He never

mentioned the word alcohol or drink or drunk. He did not describe appellant’s condition or

demeanor. When the prosecutor asked if Officer Franco had made a determination as to what

caused that accident, Officer Franco said, “Mr. Hanna[] driving that vehicle.” Period. We

cannot simply assume, without any evidence, that Officer Franco thought appellant was

intoxicated or that this assumed intoxication caused the accident.

People frequently have car accidents regardless of whether they are intoxicated. To

obtain restitution, the State must prove that appellant’s intoxicated driving was the “but for”

and proximate cause of the damage. Although the State was given ample opportunity to offer

evidence that it was appellant’s intoxicated driving that caused the accident, there was no

such proof in this case.57

57
Although appellant pled guilty to being intoxicated, he explicitly denied that his
intoxication was the cause of the accident. At any rate, proof of the defendant’s intoxication is not
equivalent to proof of causation. For example, other intoxication offenses such as intoxication
assault and intoxication manslaughter require proof that it was the intoxicated driving that caused
the victim's injuries, not merely that the defendant was driving (while intoxicated) and that a person
had been injured by the defendant's driving. See TEX . PEN . CODE § 49.07 (a person commits
intoxication assault “if the person, by accident or mistake . . . while operating a motor vehicle in a
public place while intoxicated, by reason of that intoxication causes serious bodily injury to
another.”) (emphasis added); TEX . PEN . CODE § 49.08 (a person is guilty of intoxicated manslaughter
if he “operates a motor vehicle in a public place . . . and is intoxicated and by reason of that
intoxication causes the death of another by accident or mistake.”) (emphasis added). See also
Martinez v. State, 66 S.W.3d 467, 469 (Tex. App.–Houston [1st Dist.] 2001, pet. ref’d) (sufficient
 Hanna Page 19

Therefore, we affirm the judgment of the court of appeals.

Delivered: April 9, 2014
Publish

evidence for jury to find “that appellant caused the deaths of the four victims by reason of his
intoxication.”); Rodriguez v. State, 191 S.W.3d 428, 438 (Tex. App.–Corpus Christi 2006, pet. ref’d)
(“[J]ury could rationally conclude that appellant was intoxicated and that the accident was caused
by that intoxication.”); Wooten v. State, 267 S.W.3d 289, 295 (Tex. App.–Houston [14th Dist.] 2008,
pet. ref’d) (“[A] fact-finder reasonably could have found that “but for” appellant's intoxication, the
complainants' deaths would not have occurred”). Although in Kuciemba v. State, S.W.3d 460, 462
(Tex. Crim. App. 2010) we stated that “[b]eing intoxicated at the scene of a traffic accident in which
the actor was a driver is some circumstantial evidence that the actor’s intoxication caused the
accident . . .,” Kuciemba had nothing to do with whether the evidence was sufficient to prove that
the defendant’s intoxicated driving caused the accident. Instead, in Kuciemba we held that the fact
that a defendant was intoxicated at the scene of an accident, paired with evidence that the accident
had occurred recently, was sufficient evidence that the defendant was intoxicated at the earlier time
when he was driving the vehicle. Id. at 463.