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
NEWELL, J., filed a dissenting opinion in which WALKER J., joined.
Appellant’s argument in this case loses sight of the forest for the
trees. A person’s failure to give someone else contact information is
not an offense. And the duty to do so under Sections 550.022 and
550.025 of the Transportation Code only arises if the person operates
a vehicle that is involved in a collision resulting in damage to another
vehicle, a structure adjacent to a highway, a fixture, or landscaping
Johnson — 2
legally on or adjacent to a highway. 1 The existence of a collision is the
focus of the offense. 2 Without a collision, the State cannot charge a
motorist for failing to provide contact information because there is no
way for the State to prove that the motorist committed an offense for
failing to provide contact information after the collision.
Article 42.037 of the Code of Criminal Procedure permits the
imposition of restitution as part of a criminal judgment if a defendant
is convicted of an offense that results in damage to or destruction of
property. 3 Appellant would have us read the statutory phrase “the
offense that results in damage” to say “the defendant causes
damage.” Unlike Appellant, I read the reference to the “offense” in
Article 42.037 as a reference to the whole offense regardless of
whether the element of a failure to provide contact information occurs
after the element of “a collision resulting only in damage.” 4 Here,
1
Tex. Transp. Code §§ 550.022, 550.025.
2
See, e.g., Huffman v. State, 267 S.W.3d 902, 908 (Tex. Crim. App. 2008) (noting that the
focus of the offense of failure to stop and render aid is the accident and not leaving the
scene after the accident).
3
Tex. Code Crim. Proc. art. 42.037.
4
Id.; Tex. Transp. Code §§ 550.022, 550.025; cf. Hanna v. State, 426 S.W.3d 87, 94 (Tex.
Crim. App. 2014) (concluding that a person who suffers property damage or personal injury
as a direct result of a DWI crime may be entitled to restitution even if the offense is a
“victimless crime”). Ultimately, our discussion of causation in Hanna should be considered in
the context of the issue in that case. The question in Hanna was whether restitution could
be imposed in a case in which there was no statutorily-recognized victim. In that situation,
Johnson — 3
Appellant committed an offense that resulted in damage even if
Appellant’s failure to comply with a duty didn’t cause it. Limiting Article
42.037’s use of the word “offense” to mean only one element of an
offense (which isn’t even an offense by itself) fails to give full effect to
the statutory text. And it essentially forces the State to recommend
probation in these types of cases or forfeit compensation for crime
victims. 5 Because I believe the trial court had the authority to impose
restitution as part of the judgment in this case, I dissent.
Filed: December 20, 2023
Publish
damage or loss is not an element of the offense that resulted in damage or loss. In this
case, however, damage or loss is part of the offense.
5
See, e.g., Lerma v. State, 758 S.W.2d 383, 384 (Tex. App. – Austin 1988, no pet.)
(upholding a restitution order imposed as a condition of probation).