                                   In The
                              Court of Appeals
                     Seventh District of Texas at Amarillo
                              ________________________

                                   No. 07-12-0539-CR
                              ________________________


                                   Dana Hanna, Appellant

                                             v.

                                The State of Texas, Appellee



                      On Appeal from the County Court at Law No. 2
                                  Lubbock County, Texas
              Trial Court No. 2012-470,744, Honorable Drue Farmer, Presiding


                                       May 8, 2013

                                        OPINION
                   Before QUINN, C.J., and CAMPBELL and Hancock, JJ.

       Dana Hanna appeals his conviction for driving while intoxicated and attacks the

trial court’s order directing him to pay Lubbock Power and Light (LP&L) $7,767.88 in

restitution. We affirm in part and reverse in part.

                                         Situation

       No one disputes that appellant struck a telephone pole while driving in an

intoxicated state. Nor is it disputed that the pole belonged to LP&L, that he pled guilty
to driving while intoxicated, that the trial court accepted the plea, convicted him of the

offense and ordered him to pay the aforementioned sum as restitution for repairing the

pole. Appellant believes the award to be improper because LP&L was not a victim of

the offense for which he was convicted. We agree.

                                       Resolution

        The pertinent standard of review is one of abused discretion. Cartwright v.

State, 605 S.W.2d 287, 289 (Tex. Crim. App. 1980). Next, statute provides that:

      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 or to the compensation to victims of
      crime fund established under Subchapter B, Chapter 56, to the extent that
      fund has paid compensation to or on behalf of the victim.

TEX. CODE CRIM. PROC. ANN. art. 42.037(a) (West Supp. 2012) (emphasis added).

Here, the State sought restitution from appellant under the foregoing provision.         It

argued that since appellant damaged LP&L’s electrical pole when driving while

intoxicated, LP&L was a “victim of the offense” as contemplated by art. 42.037(a). And,

the trial court agreed. Given appellant’s objection to that analysis, we are obligated to

discern the scope of the phrase “any victim of the offense.” And, like much of the

verbiage contained in its statutes, the legislature did not define the passage. Yet, all is

not lost for other courts have provided us with ample guidance.

      For instance, Cabla v. State, 6 S.W.3d 543 (Tex. Crim. App. 1999), tells us that

restitution is “focused on the victims of the offenses for which a defendant has been

convicted.” Id. at 546. We are further informed that the “legislature did not intend for

[such compensation] to be ‘ordered payable to persons, other than the victim of the

offense of conviction, who also suffered as a result of a scheme of which the offense of

conviction was a part.’” Id., quoting Martin v. State, 874 S.W.2d 674, 677-78 (Tex.

                                            2
Crim. App. 1994). This was followed by the utterance that restitution is limited to the

individuals “alleged and proven to be the victims of the charged offense.” Cabla, 6

S.W.3d at 546 (emphasis added). The Court of Criminal Appeals then supported its

statements by citing its decision in Ex parte Lewis, 892 S.W.2d 4 (Tex. Crim. App.

1994).

         In Lewis, restitution was awarded to an individual named Snortland and a

corporation named U.S.A.A. Yet, the court noted that the complainant of the offense for

which Lewis was charged and convicted, i.e. burglary, was Donna Whately. Id. at 6.

And, in denying Snortland and U.S.A.A. relief, it turned to Martin v. State, 874 S.W.2d

674 (Tex. Crim. App. 1994) and reiterated that the legislature “limited restitution to the

victim of the offense for which the defendant was convicted.” Ex parte Lewis, 892

S.W.2d at 6. Then, it observed that “[i]n light of Martin and these facts, particularly that

neither Donald Snortland nor U.S.A.A. was the complainant in the instant #90-10-

01225-CR cause which ordered the restitution, we conclude that the trial court was

without authority to order restitution to them in that cause.”      Id. (emphasis added).

From this and the use of the phrase “alleged and proven” in Cabla, we hold that LP&L

fell outside the scope of art. 42.037(a).

         It is true that LP&L owned the pole damaged by appellant as he drove in an

intoxicated state. Nonetheless, the charging instrument accused him of operating “a

motor vehicle in a public place while intoxicated” in Lubbock County. Nothing was said

of the collision with the pole. Nor was LP&L mentioned in the instrument or named as

a complainant.    We further note that the crime, as defined in the information and

pertinent statute, required neither injury to anyone nor the destruction or loss of

anyone’s property. See TEX. PENAL CODE ANN. § 49.04(a) (West Supp. 2012) (stating

                                             3
that a “person commits an offense if the person is intoxicated while operating a motor

vehicle in a public place”). Consequently, LP&L was not a victim “of the offense [D.W.I.]

for which [appellant] was convicted,” and the trial court erred in holding otherwise. See

Sahs v. State, No. 06-05-00123-CR, 2006 Tex. App. LEXIS 1145 (Tex. App.–Texarkana

February 3, 2006, no pet.) (not designated for publication) (wherein the offenses for

which Sahs was convicted involved the theft and burning of a particular car and holding

that the county was not a victim for purposes of restitution because the car fire spread

to its bridge).

       We recognize that the Martin court left open the possibility that individuals other

than the person named as a complainant in the charging instrument may recover

restitution. But, the opening has its own limits. One need only read the pertinent

language used by the court to discover that. The language we refer to says:

       Named 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 because we recognize that the named complainant may not
       always be the only victim of the crime adjudicated. See Bruni v. State,
       669 S.W.2d 829, 836 (Tex. App.–Austin 1984, no pet.) (restitution properly
       ordered to both named complainant and his wife where wife was joint
       owner of money defendant was convicted of appropriating).

Martin v. State, 874 S.W.2d at 676 n.4. By alluding to Bruni, the Martin court focused

on the nature of the specific crime charged and whether that crime demarcates a

particular category of victim. Because Bruni was charged with theft, the criminal offense

at issue there encompassed a category of potential victims, i.e. the owner or owners of

the stolen items. Indeed, there can be no theft unless the accused misappropriates

property with the intent to deprive “the owner” of it. See TEX. PENAL CODE ANN. §

31.03(a) (West Supp. 2012) (stating that a “person commits an offense if he unlawfully

appropriates property with intent to deprive the owner of property”). And, since the
                                            4
property taken by Bruni was owned by both John Ross and his wife, both fell within the

statutorily contemplated category of victims of theft. That is why it was permissible for

both to have their loss restored though only one was named as complainant. Bruni v.

State, 669 S.W.2d 829, 836 (Tex. App.–Austin 1984, no pet.) (stating that “we do not

agree with appellant that the court erred in naming Betty Ross as a victim. The record

shows that the $40,000 appropriated by Bruni was jointly owned by John and Betty

Ross as husband and wife. The $3,173 for unpaid salary due John was community

property. Perforce, both were victims”); accord, Martin v. State, supra.

       Additionally, the opinion in Lemos v. State, 27 S.W.3d 42 (Tex. App.–San

Antonio 2000, pet. ref’d) implicitly supports our interpretation of the aforementioned

passage in Martin and the holding in Bruni. The Lemos court was asked if restitution

could be awarded to the wife and child of an assault victim who died as a result of the

assault.       The expenses sought to be recouped were those incurred by the two

individuals for therapy to cope with the death.          On appeal, the reviewing court

acknowledged a link between Lemos’ assault upon the decedent and those particular

expenses, but it concluded that the two survivors were not victims for purposes of

restitution.     Id.   It so held because “[t]he only statutorily-recognized victim of the

aggravated robbery for which Lemos was charged and convicted was Mr. Flores.” Id. at

49 (emphasis added).          In others words, while the offense of aggravated assault

explicitly contemplates that someone be assaulted, neither Flores’ wife nor his child

were the subject of the assault underlying Lemos’ conviction. Therefore, they were not

victims to whom restitution could be granted.

       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.

                                               5
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 a victim of the crime for

which appellant was convicted. 1

       In sum, the trial court erred in ordering appellant to pay restitution to LP&L.

Furthermore, our decision disposes of the need to address any other issues raised on

appeal. We reverse that part of the judgment ordering the payment of restitution and

affirm the remainder.

                                                       Brian Quinn
                                                       Chief Justice


Publish.




       1
        Nor can it be said that LP&L somehow reimbursed a victim of the crime. See Ceballos v. State,
246 S.W.3d 369, 373 (Tex. App.–Austin 2008, pet ref’d) (explaining that those who recompense a victim
may obtain restitution).

                                                  6
