in the Matter of S v.

MEMORANDUM OPINION No. 04-03-00806-CV IN THE MATTER OF S.V. From the 289th Judicial District Court, Bexar County, Texas Trial Court No. 2003-JUV-02490 Honorable Carmen Kelsey, Judge Presiding

Opinion by: Phylis J. Speedlin, Justice

Sitting: Paul W. Green, Justice

Sandee Bryan Marion, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: June 2, 2004

AFFIRMED

S.V. appeals the trial court's order committing him to the Texas Youth Commission. In four issues, S.V. contends: (1) his due process rights were violated when the State amended the petition alleging delinquent conduct; (2) he was entitled to personal service of the amended petition; (3) the second amendment to the petition subjected S.V. to double jeopardy; and (4) the trial court abused its discretion in ordering S.V. to pay $2,211.50 in restitution. We overrule each of these issues and affirm the trial court's judgment.

Background

The petition alleging delinquent conduct sets forth two offenses in which S.V. was alleged to have engaged: theft of an automobile and unauthorized use of an automobile. Before the charge was read to the jury, the State elected to proceed on the theft offense. After a short recess, the State changed the election to proceed on the unauthorized use of an automobile. S.V.'s attorneys objected, claiming the election constituted an amendment to the petition and that the election raised double jeopardy issues. The trial court overruled the objections and submitted a charge on the offense of unauthorized use of an automobile. The jury found that S.V. engaged in delinquent conduct, and the trial court ordered S.V. committed to the Texas Youth Commission. The trial court also ordered S.V. to pay restitution in the amount of $2,111.50.

Amendment to Petition

S.V.'s first two issues are premised on his contention that the petition alleging delinquent conduct was amended when the State elected to proceed to the jury on only one of the offenses alleged in the petition. S.V. asserts that such an amendment is similar to the amendment of an indictment. S.V. contends his due process rights were violated by the amendment, and he was entitled to personal service of the amended petition.

S.V.'s contention, however, is based on a faulty premise. It is well-established that the State's election to proceed on one offense does not constitute an amendment of the charging instrument. See Robinson v. State, 415 S.W.2d 180, 182 (Tex. Crim. App. 1967); Epperson v. State, 330 S.W.2d 445, 446 (Tex. Crim. App. 1959); Williams v. State, No. 03-02-00561-CR, 2004 WL 635262, at *3 (Tex. App.--Austin 2004, no pet.) (not designated for publication). Accordingly, S.V.'s first two issues are overruled.

Double Jeopardy

In his third issue, S.V. contends that the State's changing of its election on which offense to submit to the jury subjected him to double jeopardy.

The Double Jeopardy Clause protects against (1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple punishments for the same offense. Lopez v. State, 108 S.W.3d 293, 295-96 (Tex. Crim. App. 2003); Luna v. State, 985 S.W.2d 128, 130 (Tex. App.--San Antonio 1998, pet. ref'd). The general rule is that the abandonment of an accusation after jeopardy attaches amounts to an acquittal. See Ex parte McAfee, 761 S.W.2d 771, 773 (Tex. Crim. App. 1988); Duke v. State, 2 S.W.3d 512, 515 (Tex. App.--San Antonio 1999, no pet.). However, "this general rule is found and applied only in cases where the jury in the first trial did return a verdict on the count that was submitted, and upon that verdict the trial court entered a judgment of conviction." Ex parte McAfee, 761 S.W.2d at 773 (emphasis in original). Absent a final judgment, the defendant remains under the initial jeopardy. See id. "In other words, jeopardy must attach, and then, there must be some jeopardy terminating event before retrial is barred." Ramirez v. State, 36 S.W.3d 660, 666 (Tex. App.--Waco 2001, pet. ref'd). In this case, no final judgment was entered before the State changed its election; therefore, S.V. remained under the initial jeopardy. See Ex parte McAfee, 761 S.W.2d at 773. Since the initial jeopardy had never terminated, the change in election did not result in a double jeopardy violation. See id.

S.V.'s third issue is overruled.

Restitution

In his final issue, S.V. contends that the trial court abused its discretion in ordering S.V. to pay restitution in the amount of $2,211.50. S.V. asserts that the victim gave conflicting testimony regarding the amount of his damages.

Whether to order restitution is within the sound discretion of a trial court and is reviewed under an abuse of discretion standard. In re C.T., 43 S.W.3d 600, 602 (Tex. App.--Corpus Christi 2001, no pet.). "The amount of restitution must be just, and it must have a factual basis within the loss of the victim." Campbell v. State, 5 S.W.3d 693, 696 (Tex. Crim. App. 1999). The victim testified that when his car was returned, the trunk "had been popped," the steering column was broken, the factory stereo had been removed, the paint was discolored, the upholstery was damaged, the head liner was ripped, and the wheel rims were damaged. The victim testified that he obtained a written estimate to fix the damage to the trunk, steering column, and paint that totaled $2,211.50. The estimate was admitted into evidence. The victim also testified that an additional $3,000.00 would be required to fix the rims and the upholstery. The victim stated that he paid $400.00 for the car without an engine and then put an engine in the car. The victim estimated that his car was worth $3,500.00. The victim acknowledged that the average retail value of his car according to blue book was $1,500.00. Given the victim's testimony, the trial court did not abuse its discretion in ordering restitution in the amount of $2,211.50. The amount had a factual basis in the evidence in view of the written estimate that was offered into evidence. The evidence regarding the amount the victim paid for the car and its blue book value does not detract from the fact that the victim would be required to pay $2,211.50 to fix some of the damage to his car.

S.V.'s fourth issue is overruled.

Conclusion

The trial court's judgment is affirmed.

Phylis J. Speedlin, Justice