                                 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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