            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

               K ELLER, P.J., filed a dissenting opinion in which K EASLER, J., joined.


       While appellant was driving while intoxicated, his car struck a utility pole. The pole was

broken in half, with power lines spread on the ground. I believe that those facts, by themselves, are

sufficient circumstantial evidence of causation (that the defendant’s crime of driving while

intoxicated caused the damage to the utility pole). As we stated in Kuciemba v. State, “Being

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, and the inference of causation is even
                                                                           HANNA DISSENT — 2

stronger when the accident is a one-car collision with an inanimate object.”1 This statement, made

in connection with the sufficiency of the evidence to support a DWI conviction, in which the

applicable standard of proof at trial was “beyond a reasonable doubt,” should apply with even greater

force to the restitution inquiry, which involves the lesser standard of proof of “preponderance of the

evidence.”2 And although appellant claimed that his car struck the utility pole because he ran over

a water puddle, the trial judge did not have to credit that self-serving explanation.3

       Further, the force with which appellant hit the utility pole—causing it to break in half—is

evidence that appellant failed to timely apply his brakes. The trial judge could rationally infer that

such a failure was due to appellant’s intoxication.

       I agree with the Court’s analysis of Article 42.037, but I disagree with the way the Court has




       1
          310 S.W.3d 460, 462 (Tex. Crim. App. 2010). See also Scillitani v. State, 315 S.W.3d 542
(Tex. Crim. App. 2010) (vacating and remanding in light of Kuciemba and referring to our statement
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”). The Court contends that
the issue in Kuciemba was whether the defendant was intoxicated while driving, not whether his
intoxication caused the accident. That is true, but we found that a jury could conclude that the
defendant was intoxicated while driving because it could infer that his intoxication caused the
accident. Thus, the holding in Kuciemba is directly applicable to this case.
       2
           See Idowu v. State, 73 S.W.3d 918, 920 n.5 (Tex. Crim. App. 2002) (burden of proof at
restitution hearing is preponderance of the evidence).
       3
          See Campbell v. State, 5 S.W.3d 693, 698-99 (Tex. Crim. App. 1999) (Though it must take
into account the findings of the jury, the trial judge determines the amount of restitution and can
assess restitution in an amount that exceeds the property-value range for which the jury convicts the
defendant.); Wilson v. State, 311 S.W.3d 452, 458 (Tex. Crim. App. 2010) (“As the sole trier of fact
during a . . . hearing, the trial court may believe or disbelieve all or any part of a witness's
testimony.”).
                                                             HANNA DISSENT — 3

applied it in this case. I therefore respectfully dissent.

Filed: April 9, 2014
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