in the Matter of D.S.W. ( 2010 )

MEMORANDUM OPINION
Nos. 04-09-00592-CV & 04-09-00593-CV
IN THE MATTER OF D.S.W
From the 289th Judicial District Court, Bexar County, Texas
Trial Court Nos. 2009-JUV-01290 & 2009-JUV-01291
Honorable Carmen Kelsey, Judge Presiding
Opinion by: Karen Angelini, Justice
Sitting: Karen Angelini, Justice
Phylis J. Speedlin, Justice
Rebecca Simmons, Justice
Delivered and Filed: September 1, 2010
AFFIRMED IN PART; REVERSED AND VACATED IN PART; SET ASIDE AND
REMANDED IN PART
This is an appeal of two juvenile cases. In cause number 2009-JUV-01290, D.S.W. pled
true to arson of a habitation causing bodily injury and to arson of a habitation. In 2009-JUV-
01291, D.S.W. pled true to three counts of arson of a habitation causing bodily injury and to
arson of a habitation. The trial court found a need for disposition and committed D.S.W. to the
Texas Youth Commission. The court also ordered restitution in the total amount of $477,556.72,
to be owed jointly and severally by D.S.W. and his mother.
D.S.W. brings three issues on appeal. In his first two issues on appeal, D.S.W. contends
his double jeopardy rights were violated in each case when he was adjudicated for arson of a
habitation causing bodily injury and for arson of a habitation. The State agrees that D.S.W.’s
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double jeopardy rights were violated and, therefore, we will sustain D.S.W.’s first two issues on
appeal. In his third issue, D.S.W. argues “[t]he trial court abused its discretion when it ordered
restitution in the aggregate amount of $477,556.75, because this extraordinary amount of
restitution is not appropriate to the age and physical, emotional, and mental abilities of [D.S.W.],
and is not supported in the record.” We agree that the amount of restitution is not supported in
the record. Therefore, we set aside the restitution orders and remand to the trial court for a new
hearing on restitution. We affirm the trial court’s disposition orders in all other respects.
DISCUSSION
A. Double Jeopardy
D.S.W. was charged with setting two fires in two adjacent apartment buildings on two
different dates. The owner of the building where the first fire was started was William Ponce. A
firefighter, Yasha Stanford, was injured while fighting the first fire. The owner of the building
where the second fire was started was Alex Mathes. Three firefighters, Leonard Weir, Erick
Vargas, and Nohemi Gonzalez, were injured while fighting the second fire.
At the adjudication and disposition hearings, with respect to Cause No. 2009-JUV-01290,
D.S.W. pled true to Count I, which alleged arson of a habitation causing bodily injury to
firefighter, Yasha Stanford, and to Count II, which alleged arson of a habitation. Also at the
hearings, with respect to Cause No. 2009-JUV-01291, D.S.W. pled true to Count I, which
alleged arson of a habitation causing bodily injury to firefighter, Leonard Weir; to Count II,
which alleged arson of a habitation causing bodily injury to firefighter, Erick Vargas; to Count
III, which alleged arson of a habitation causing bodily injury to firefighter, Nohemi Gonzalez;
and to Count IV, which alleged arson of a habitation.
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D.S.W. argues that his right to be free from double jeopardy was violated in both cases
for the same reason — in each case, there was only one fire. And, because there was only one
fire in each case, D.S.W. argues the offense of arson was complete when he started each fire, and
therefore, he committed only one offense in each case. Thus, according to D.S.W., the
adjudication in 2009-JUV-01290 for the less serious offense of arson of a habitation, alleged in
Count II, must be vacated. Likewise, D.S.W. argues three of the four adjudications in 2009-JUV-
01291 must be vacated — the less serious offense of arson of a habitation, alleged in Count IV,
and two of the three adjudications for equally serious offenses, Count II and III. Adjudications
for Count I in 2009-JUV-01290 and Count I in 2009-JUV-01291 would remain. The State
agrees. We therefore sustain D.S.W.’s first two issues on appeal, vacate the Count II adjudication
in 2009-JUV-01290, vacate the Counts II, III and IV adjudications in 2009-JUV-01291, and
reform the orders of adjudication and disposition to so reflect. See Evans v. State, 299 S.W.3d
138, 141 (Tex. Crim. App. 2009) (explaining that the remedy for a double jeopardy violation is
to retain the most serious offense and vacate the others); Berger v. State, 104 S.W.3d 199, 205
(Tex. App.—Austin 2003, no pet.) (“When there has been an impermissible conviction of a
defendant in violation of double jeopardy as in the instant case, the proper remedy is to reform
the judgment by vacating the offense with the least serious punishment.”).
In his third issue on appeal, D.S.W. argues the amount of restitution ordered by the trial
court amounted to an abuse of discretion because the amount ordered is not appropriate to his
age and physical, emotional, and mental abilities and because it was not supported by the record.
We review an award of restitution in a juvenile case under an abuse of discretion
standard. In re D.K., 247 S.W.3d 802, 803 (Tex. App.—Dallas 2008, no pet.). Under this
standard, legal and factual sufficiency are not independent grounds of error but are factors we
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consider in determining whether the trial court abused its discretion. Id. And, a trial court abuses
its discretion when it acts arbitrarily, unreasonably, without regard to guiding principles of law,
or without supporting evidence. Id.
Because juvenile proceedings are considered quasi-criminal, the rules of restitution for
criminal cases apply to restitution ordered by a court in a juvenile proceeding. In re D.S., 921
S.W.2d 860, 861 (Tex. App.—San Antonio 1996, no writ). The amount of restitution ordered
must be “just,” that is, supported by a factual basis within the record. Thompson v. State, 557
S.W.2d 521, 525-26 (Tex. Crim. App. 1977); In re J.R., 907 S.W.2d 107, 109 (Tex. App.—
Austin 1995, no writ). When the amount of restitution is not supported by the record, the proper
procedure on appeal is to set aside the amount of restitution and remand the case for a hearing to
determine a just amount of restitution. Barton v. State, 21 S.W.3d 287, 290 (Tex. Crim. App.
2000).
In cause number 2009-JUV-01290, the trial court ordered restitution to be paid to the
property owner, William Ponce, in the amount of $2,240.00 and to the property insurer,
American Reliable Insurance Company in the amount of $226,887.38. The evidence relating to
the amount of loss incurred in 2009-JUV-01290 consisted of the fire marshal’s report, William
Ponce’s unsworn affidavit, and American Reliable Insurance Company’s loss run statement. The
fire marshal’s report stated that the building was owned by William Ponce, that the building was
appraised for $218,180.00 in 2008, that it was insured by Voyager Indemnity Insurance
Company for $224,000.00, that the policy was in effect from May 16, 2008, until May 16, 2009,
and that the policy number was TSG019061. The unsworn affidavit of William Ponce declared
that the amount of pecuniary loss to the building was $224,000.00. The American Reliable
Insurance Company’s loss run statement indicated that it was for policy number TSG019061
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with an effective date of May 16, 2008, until May 16, 2009. The statement included William
Ponce’s name and the address of the property that was lost. It also contained a series of columns
indicating “Payments” at the “Policy Total” of $224,000.00, “L.A.E.” of $2,887.38, and “Total
Inc.” of $226,887.38. One might speculate that William Ponce’s deductible under the insurance
policy was $2,240.00; however, there is no evidence in the record to support payment of
restitution to William Ponce for any amount. Further, one might speculate that American
Reliable Insurance Company insured the property for $224,000.00, but paid out $226,887.38,
which included an amount for “L.A.E.” There is nothing in the record explaining what the
“L.A.E.” amount is. Yet, the “Policy Total” plus the “L.A.E.” is the amount the court ordered in
restitution to American Reliable Insurance Company.
In cause number 2009-JUV-01291, restitution was ordered in the amount of $248,429.37
to Wachovia Bank Account #5320511000161788. The evidence relating to the amount of loss
incurred in 2009-JUV-01291 consisted of the fire marshal’s report and a letter dated July 2,
2009. The fire marshal’s report stated that the building was owned by Alexander and Alejandra
Mathes and was appraised for $209,880.00 in 2008. It further indicated the building was insured
by Farmers Insurance Group for $250,000.00, the policy was in effect from December 21, 2008,
until December 21, 2009, and the policy number was 60470-29-76. The July 2, 2009, letter was
addressed to “Leslie Lovelace” and signed by “Kath White, Bankruptcy Specialist.” The letter
identified the “Customer” as Alejandra Matthes and lists the address of the destroyed property as
“Collateral.” The letter indicated the payoff amount was $248,429.37 and stated payment should
be sent to Wachovia Bank. The letter did not identify Leslie Lovelace nor did it identify Kath
White with any certainty since the letter was not written on letterhead stationery. Again, one
might speculate that Wachovia Bank was the mortgagor on the destroyed property and that the
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payoff amount was to be paid because of the fire; however, there is no evidence in the record to
support that assumption.
Because the amount the trial court ordered in restitution is not adequately supported in
the record and requires some amount of speculation, we set aside the restitution orders and
remand the causes to the trial court for a new hearing on restitution. 1
CONCLUSION
Because D.S.W.’s right to be free from double jeopardy was violated, with respect to
Cause No. 2009-JUV-01290, we reverse the trial court’s order of adjudication in part and vacate
the order of adjudication for Count II. With respect to Cause No. 2009-JUV-01291, we reverse
the trial court’s order of adjudication in part and vacate the order of adjudication for Counts II,
III, and IV. Further, because the amount the trial court ordered in restitution is not adequately
supported in the record, we set aside the orders of disposition with respect to restitution and
remand the causes to the trial court for a new hearing on restitution. The trial court’s orders are
affirmed in all other respects.
Karen Angelini, Justice
1
Because we are remanding the causes for a new restitution hearing, we need not address D.S.W.’s contention that
the amount of restitution ordered is excessive because it is not appropriate to his age and physical, emotional, and
mental abilities.
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