### TEXA S C OU R T OF A PPEAL S, THIR D DIST R ICT , AT AU STIN

NO. 03-0 8 -00 183 -CV

In the Matte r of A. J. V.

F ROM THE DISTRICT CO URT OF TRAVIS COUNTY , 98TH JUDICIAL DISTRICT NO. JV-2 7,59 6 , HO NORAB LE W. JEANNE MEURER , JUDGE PRESIDI NG

M E M O R

A N D U M O P I N I O N
A.J .V. pleade d true to allegat i o n s that he eng ag ed in delinquent conduc t by committing the off

enses of unauthorized use of a

motor vehicle a

nd evadingarr est. See Te x. F a m. Cod e Ann. § 5 1. 03 (We st 2 00 8) ; T e x. Pe na l Co de Ann. §§ 31 .0 7, 38 .0 4 ( Wes t 20 03 ). Th e juv e nil e
c ourt a dju dic a te d h im d e lin qu e nt o n b oth g ro un ds a nd pla c e d h im o n p ro batio n unti l September 25, 2009, to be serve d at an inter mediate sa

nctions cente r. The court also order ed A.J.V. and his mother to pay

$1150 in restitution. I n his only point of err or, A.J.V. contends that the evidenc e does not support the r estitution order. We find no abuse of discre tion, but we will modify the re stitut ion order to a ccur ately state the amount ordere d. The a utomobile in question belonge d to Serg io Oviedo Ovalle. O valle testified at the dis po sit ion

he a ri ngthat th e c a r, a

19 93 F or d T e mpo , wa s st ole n o n Jan ua ry 29 , 2 00 8, wh ic h w a s a Tuesday . Ovalle sa id that he had pur chase d the ca r about a y ear ear lier for

$1500, and that it was in g ood condition be fore it wa s stolen. On Thursday morning , which would have been January 31,2

the police notified O valle that his ca r had be en re cover ed. When Ovalle arr ived at the wrecke r y ard wher e the car had been taken, he discovere d that the license plates and spea kers ha d been r emoved, t h e e x t e r i o r

h a d b e e n p a i n t e d

a g r a y - b l a c k

p r i m e r c o l o r , a n d

t h e u p h o l s t e r y h a d b e e n s l a s h e d
. In
a dd iti on , a

thr e e -m on th- old

we e d e a te r w or

th $ 15 0 h a d b e e n s tol e n f

ro m the tr un k of the c a r. Ov a lle testified that when he t ried to start t he car, “ the eng ine was making a weird noise like if

a piston had broken, a nd something inside the starter was makinga we ird noise and it didn’t want to start, a nd the bac k seat wa s broken a nd the seat belts that we re au t o m atic, bec ause it wa s an automatic c ar,
wer e also broke n. When you put the key to sta rt, the eng ines of the seat belts would stick making a nois e.” Ovalle added, “I didn’t g o and pick it up beca use to me it’s useless bec ause I would have to ge t a tow truck to bringit to my house bec ause the car

doesn’t st ar t
. ” Af

ter be ing told that he would have to pa

y a $298 impound fee and an add i t i o n al $ 9 5 to have the c ar towe d to his house, Ovalle e lected to a

bandon the ve hicle bec ause “ [t ]he car is usele ss.” When a juvenile is found to have eng ag ed in delinquent cond u ct arising from the commission of an offe nse in which prope rty damag e or loss or persona l injury occur red, the court may order the child or his par ent to make f ull or partial re stitut ion to the victim of the offe nse. Tex. Fam. Code An n . § 5 4
. 0 4 1 (b ) ( W es t2 0 0 8 ). Be ca u s e d el i n qu en cy p ro ce ed i n gs ar e q u as i -criminal in nature, the ru l es of re stitut ion in criminal case s apply
. In re J .R. , 907 S.W .2d 107, 109 (Tex. App.—Austin 1995, no writ). The que stion of restit u t i o n is committ ed to the cour t’s discretion, but that discre tion is not unlimit ed. Cam pb e ll v . S tat e , 5 S.W. 3d 69 3, 69 6 ( Te x. Cr im. App. 1999). The amount of restitution must have a fac tual basis within the victim’s loss; the trial
c ourt may no t or de r re sti tut ion to a ny on e bu t the vic tim of the of fe ns e wi th wh ic h the offend er is3

char g ed; and the tr ial court may not order r estitution for an off ense f or which the defe ndant is not criminally

responsible. Id . at 696-97. The juvenile c ourt order ed A.J.V. to pay $1150 in restitution, $1000 for the c ar a nd $150 for the w eed e ater . A.J .V. contends that the juvenile cour t abused it s d iscretion by

order ing him to pay

restitution for losses that wer e not shown to be th e re sult of his unauthorized use of Ovalle’ s vehicle. A .J .V. ar g ues t h at t h ere is no evidence that he stole, dama g ed, or va ndalized Ovalle’ s car , or that he stole the w eed e ater
. He contends that the j uvenile court abused its discre tion by or de ri nghim to pa

y re sti tut ion fo r los se s re su lti ng fr om of fe ns e s fo r wh ic h he wa s n ot s ho wn to be cr iminally

responsible. A. J
. V. urge s that this cause is ana logous to In re D.S. , 9 2 1 S. W.2d 860 (Tex. App.—San Antonio 1996, no writ). I n that case , a juvenile pleade d true to the a lleg ation that he committed cr iminal trespass, was a djudicated de linquent, and o rd ered to pay restitution to the proper ty owner . Id . at 861. Citing cr iminal prece dent, the court of appea ls he ld that restitution may be orde red only

for pr operty

damag e or loss that occurs in the c ommissi on of the off ense f or which the ac cused is convic ted. Id . The c ourt vac ated t h e re s t i t u t ion order be cause the prope rty loss at issue was not the re sult of the criminal trespa ss. Id
.

Th e State dis pu te s A .J.V .’ s c on te nti on that O va lle ’s los se s d id n ot r e su lt f ro m hi s
u n au t h o ri z edu s e o f t h e a u t o m o b i l e, ci t i n g In re C.T. , 4 3 S. W.3 d 6 00 (T e x. Ap p. —Co rp us Chr ist i 2001, no pet.). C.T. wa s adjudicate d delinquent for ha ving f ailed to stop and leave information after she wa s involved in a three -vehic le ac cident, and she was order ed to pa y restitution for the dama g es to one of the vehicles. Id . at 60 1; see Tex. Tr ansp. Code Ann. § 550.022 (West Supp. 2008). Citi ngThe court of appeals relied on an opini on by this Court i n which we upheld a r estitution order 1 in a p r o s e c u ti o n f

o r f a il in g to s to p a n d r ender aid. Se e Le rm a v . S

tat e , 758 S.W .2d 383, 384 (Tex. App.—Austin 1988, no pet.). 4 D.S. , she argued that the damag es wer e the result of the acc ident and not her fa ilure to stop and leave information. Id . at 602-03. The court of a ppeals re jected this ar gu m en t , noting that both her involvement in the acc ident and the damag es to the other ve hicle we re e lements of the of fense of fa i l i n g t o s t o p a n d

l e a v e i n f o r m a t i o n ; i n o t h e r

w o r d s , b u tf

o r t h e a c c i d e n ta n d

r e s u l t i n g d a m a g e s, C.T.’s failure to stop would not have been a crime. Id . at 603. Ther efor e, the damag es to the other
ve hic le we re oc c a sio ne d by a nd a ro se ou t of the of fe ns e fo r wh ic h she wa s adj ud ic a te d d e lin qu e nt. Id
. We ag ree with the rea soning a nd result in C.T. , a lth ou g h th a t op ini on is l e g a lly dis tin g uis ha

ble 1 bec a u s e d a ma g e to th e v e h ic le is n o t a f o r ma l e le me n t o f th e o f

f e n s e o f u n a

u th o r iz e d u s e . See Tex. P enal Code A nn. § 31.07.

Both pa rties re fer us to two opini o n s in

volving r estitution orders base d on a juvenile’ s
un lawf ul u se of a ve hic le . T he fi rs t is In re R. M. Z. , N o . 0 4

- 0 0

- 0 0 4 6 5
- C V , 2 0 0 1 T e x . A p p . LE X IS 2668 (Tex. App.—San Antoni o Apr. 25, 2001, no pet.) (not de signated for publication). I n that case , there was a

jury trial and a

full evidentiary

rec ord. Id . at *1. Police offic ers stopped a “primer red vehicle” seen dr iving a

way from anothe r, stripped ve hicle. Id
. at *2. The drive r of the r ed vehic le, who was R.M.Z ., told the office rs that “this has bee n my car for a while,” a nd that he had just g ot it running. Id . As it turns out, t h e ca r h ad b ee n stolen three da y s befor e. Id . T he e vid e nc e a lso showed that the stee ring column had been broke n to allow the ca r to be drive n without a key , and the vehicle identification number and license plates had be en alter ed. Id
. at *8. R.M.Z. was found to have c ommitt ed the of

fense of unauthorized use a nd order ed to pay restitution to the owner of the5

vehicle. Id
. at *2. C iting the San Antonio cour t’s ear lier opinion in D.S. , R.M.Z. a rg ued on appe al that the re stitut ion order w as i m p ro p er beca use there was no e vidence that he had stolen the car . Id
. at *7. The court of appeals rejected this argument, holding that the evidence supported a f inding that the car had been in R.M.Z.’s possession for the three day s it had been missing , and that he w as responsible for

the damag e to the vehic le while is was in his possession. Id . at *8. Th e oth e r o pin ion

is In re R.M

. , No. 05-06-00519- CV, 2007 Tex. App. L EXI S 5785 (Tex. App.—Dallas Jul. 24, 2007, no pet.) (me m. op.). R.M. pleaded true to unauthorized use of a vehicle a nd was orde red to pa

y restitution for damag es to t h e v eh i cle. Id . at *1. The opinion contains only a limit ed rec itation of the fac ts, but it states that the “[t] estimony at trial showed [that R.M.] and his cohorts jumped out of the c ar they had take n while i t was sti ll moving.” Id . ( e mph a sis added) . The c ar, w hich h ad b ee n i n “perfec t condition” befor e the incide nt, had to be towed to a repa ir fac ility beca

use there was no key

and the ig nition was damag ed. Id . at *3. The c ourt held that this evidence was suff

icient to establish that the damag es to the vehic le re sulted from the unauthorized use off

ense. Id . at *4. We conclude that the juvenile court did not abuse its discre tion by order ing A .J .V. to pay restitution for the dama g e to Ovalle’ s car . The car was stolen on J anuar y 29. A.J .V. admitted to the juvenile cour

t that on J anuar

y 30, he intenti o n all y

and knowing ly

operated Ovalle’ s car without consent. He a lso admitted that on J anuar y 30, he int entionally fled from a poli ce office r who he knew was attempting t o l aw fu l l y arrest him. On J anuar y 31, Ovalle e x amined his ca r and discovere d that due to damag e to the eng ine and star ter, the c ar w ould not start. From this evidenc e, the juvenile cour

t could rea sonably

infer that A.J .V. was the las t p er s o n t o operate the ca r and, a s6

such, wa s responsible for

the damag e to the vehic le. The infe renc e that appe llant damag ed Ova lle’s
c a r is str e ng the ne d by the sh or t tim e fr a me . Th e dama g e ha d to have oc c ur re d duri ng a roug hly twenty -four

hour per iod beg inning with the thef t of the car and ending with A.J .V.’s ar rest. Given thi s ti me ta

ble , th e po ssi bil ity

tha t th e dama g e to t

he c a r wa s inf

lic te d by so me on e e lse is c on sid e ra bly reduc ed. We hold that the evidenc e supports the juvenile c ourt’s finding that the damag e to Ovalle’ s
car occur red dur ing or

as a r esult of A.J.V.’s unauthorized use of the ve hicle. A closer question is pr esente d by

the juvenile cour

t’s order that A.J .V. pay

restitution for the stolen w eed e ater . As noted above , the family code au t h o ri zes the pay

ment of re stitut ion when a juvenile is found to ha

ve eng ag ed in de linquent c onduct arising from the commission of an offe nse in which prope rty damag e or loss of pe rsonal injury o cc u rr ed
. Tex. Fam. Code Ann. § 54.041(b). This statute ha s been c onstrued to mean that th e d am age o r l oss must have resulted from the of

fense on which the de linquency finding is based. D.S. , 921 S.W .2d at 861. I t is obvious t hat Ovalle’ s wee d eate r would not have been stolen if his car had not been stolen, a

nd it would be rea sonable to orde r t he thief to pa y restitution for the loss. But A.J.V. was not adjudg ed delinquent f or havingstolen the ca r. R at h er, he was a djudge d delinquent for h aving operated Ovalle’ s car without his consent. Howeve r, the same conduct on whic h the delinquency

finding was ba sed would al so have suppor ted the infe renc e that A.J.V. was the thief. Se e Cha v e

z v . S tat e , 843 S.W .2d 586, 587-88 (Tex. Crim. App. 1992) (c onviction for thef t may be ba se d o n une xpla ine d p os se ssi on of re c e ntl y sto le n p ro pe rt

y ); Ha rd esty v . S tat e , 6 5 6 S. W.2d 73, 76-77 (Te x . Crim. App. 1983) (same)
. Under the particula r circ umstances of

this case, we conclude that the conne ction betwee n A.J .V.’s unauthoriz ed use of Uvalle’s vehicle and t he los s of t he we edThe wr itten order e rrone ously states that the re stitut ion amount is $1100. 2 7 eate r that had be en in the vehic le was suf ficient to wa

rra nt the juvenile cour

t’s order that A.J .V. pay restitution for the loss of the we ed eater. No a buse of discr etion is shown, and t h e p o int of err or is overrule d. The dispositional order of probation does not conf orm to t h e juvenile court’s restitution order, a

nd it is modified to state t hat re stitut ion in the amount of $1150 is to be paid. As 2 so modified, the juvenile cour t’s judgme nt is affirmed.

__________________________________________ J . Woodfin J ones, Chief Just ice Be fore Chief J ustice Jones, J ustices Pury ear and Pember

ton Modified and, a s Modified, Aff irmed Filed: Apr il 10, 2009