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-JUV01291, 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 
04-09-00592-CV & 04-09-00593-CV

- 2 -

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.
04-09-00592-CV & 04-09-00593-CV

- 3 -

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-JUV01291 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 
04-09-00592-CV & 04-09-00593-CV

- 4 -

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 
04-09-00592-CV & 04-09-00593-CV

- 5 -

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 
04-09-00592-CV & 04-09-00593-CV

- 6 -

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.