NO. 07-04-0527-CR NO. 07-04-0528-CR NO. 07-04-0529-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO PANEL D AUGUST 8, 2005

______________________________ LARRY B RENT KIT CHENS, Appellant

v. THE STA

TE OF TEX

AS, Appellee

_________________________________ FROM THE 287 TH DISTRICT COURT OF BAILEY COUNTY; NO. 2249, 2250 & 2305; HON. GORDON GREEN, PRE SIDING

_______________________________

Opinion

_______________________________ Before QUINN, C.J., and REAVIS and CAMPBELL, JJ. Appellant

Larry Brent Kitchens appeals from three orders denying his applications for writs of ha beas corpus. Through those writs, he sought the dismissal of three indictme nts through which he was charged with capi tal murder. According to appellant, the trial court was obl igated to so dismiss the causes since their prosecution was barred by double j eopardy. We revers e in part and affirm in part.1 Secti on 19.03(a)( 7)(A) provides t hat a person commits c apit al murder if he commits murder

and mu rders more than one person d uri ng the s ame crimi nal t ransact ion. T EX
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. §19. 03( a) (7 )( A) (Verno n Su pp. 200 4-05). 2 Background The dispute in volves the killing of three individuals, Vin ce Simnacher, Rhonda Kitchens, and Derw in Beauc hamp. The three were attending a party at Simnacher’s abode when appellant entered, leveled a firearm at Simnacher, and fired multiple shots. The bullets struck no t only Si mnacher b ut also K itchens a nd Beauc hamp. Al l three d ied. The State secured four indictments against appellant chargin g him wi th capital murder. Via thefirst thre e, appel lant wasaccused of that cri me as defin ed in §19.03(a)(7)(A) of the Texas Penal Code. 1 That is, in Cause No. 2249, the indictment read thatappellant intentionally or knowingly cau sed the deat h of Rhonda while also intentional ly
or knowingly cau sin g the death of Beauchamp and Simnacher. However, through the indictmentin Cause No. 2250, the State alleged that he caus ed the death of Simnacher while also killing R honda and Beauchamp, and, in Cause No. 2251 , it alleged that he murdered Beaucha mp whilealso in tentiona lly or kn owingly causing the deat h of Rhonda and Simnacher. Via the fourth indictment (which initiated Cause No. 2305), appellant was accused of intentionally or knowingly killin g S i mnacher w hile com mitting o r attempti ng to commitburglary

of Simna cher’s re sidence. See T EX
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. § 19.03(a)(2) (Vernon 2004-05 ) (stating that onecommits capital mu rder if hemu rders anot her while, among oth er things , committi ng or atte mpting to commit bu rglary). Itwas Cau se No. 22 51 that th e State fi rst tried. Mo reover, the trial ended in appellant’s acquittal. Having been acquitted of that offense, appellant then petitioned for3

habeas corpus, contendin g that do uble jeo pardy barred the S tate fr om pros ecuting the remaining indictme nts. The trial cou rt disagr eed and denied a ppellan t relief. Thereaf ter, he appea led the d ecision s of the trial cour t. Causes 2249 and 2250 We first address the contention that double jeopardy bar red pros ecution of the remaining indictments founded upon §19.03(a)(7)(A) of the Penal Code. We conclude that itdoes and rely on the opinion in Sa enz v. Sta te , No. P.D. 61-01, 2005 Tex. Crim. App. L EXIS 980 (Tex. Crim. App. June 29, 2005, no pet. h.) to arrive at that decision. In Saenz , the Court of Criminal A ppe als held that the applicable unit of prosecu tion when §19.03(a)(7)(A) is involved consists of the victim’s murder coupled with the murders of one
or more add itional people during th e samecriminal transacti on. Id. at 6. And, given that the unit of prosecution was so comprised, the legisla ture intended that the accused be tried under §19.03(a)(7)(A) only once for all the murders upon which th e charge was base d. Id. at10. In other words, an accused could only be tried once unde r §19.0 3(a)(7)(A) for
mur dering the individuals named in the indi ctment. The decedents could not be r otate d from the class of primary victim to that of aggravated circumstance to increase the chance of multip le convi ctions. To do so constitute d doublejeopardy

. Saenz v. State , supra
. Like the situation in Saenz , the prosecutor at bar also use d three d eaths to s atisfy the elemen ts o f §19.03(a)(7)(A). Those three deaths formed the allowable unit of prosecution, as did the three in Sae nz . So, touse them again in a second or third indictmentthat also alleged capital murder under §19.03(a)(7)(A) but simply rot ated th e classification of

the same decedent

s from pri mary victi m to aggravated circumstance would
run afoul of

the doub le jeopa rdy claus e. Saenz v. State, su pra . Therefore, the trial court2 Appell ant al so suggest s that jeopardy attached upon his acquit tal in Cause No. 2251 because t he jury mu st ha ve fo und that he did no t intend to m urde r Sim nac her. An d, if it so foun d, t he deter minati on then wo uld bar t he rel it igat ion of that issu e in C au se No . 23 05 . Ap pe llan t’s ar gu m en t m ay h av e m erit if it co uld be sa id that t he jury so foun d. Ye t, that infere nce is far from certa in give n the reco rd be fore u s. As pre viou sly mentioned , the i ndict ment in Cause No. 2251 requi red proof of thr ee murders to secure a convi cti on, one o f which was that

of Rhonda. Yet, appell ant t esti fi ed that he did not i ntend t o kil l her . I t may well be the jur y beli eved him , an d, if it did, then i t woul d have been obl igat ed to ac quit him of the of

fense as charged. Given 4 erred in refus ing to di smi ss cause numbers 2249 and 2250 under the circumstances presented to it. Mo re v er, since the error continues to expose appellant to multiple punishments for the same offense we cannot but say it was harmful. Cause 2305 As mentioned abo ve, Ca use No. 2305 is founded upon §19.03(a)(2). The latter permitsa conviction for capital murder if theaccused intentionally or knowingly caused the death of someone while committing or attempting to commit burglary

. T EX
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. §19.03(a )(2) (Vern on Supp. 2 004-05) . As can be seen, the eleme nts or acts encompassed under §19.03(a)(2) differ from those in §19.03(a)(7)(A). Ad mi ttedly, b oth requireproof of

murder bu t §19.03(a)(2) obligates the State to also prove burglary or attempted burglary

while § 19.03(a)( 7)(A) obl igates i t to proveat least one moremurder. Thus, the allowable unit of prosec ution refl ected in the indi ctment num bered 23 05 differ s from the unit of prosecution reflected in cause numbe rs 2249, 2250, and 2251. And, because it does, the prosecution of appellant for capital murder founded upon §19.03(a)(2) does not violate the double jeopa rdy clau se even though Simnacher is named as the
m urder victim in both instance s. See Vick v. State , 991 S.W. 2d 830, 8 32-33 (Tex. Crim. App. 1999) (holding that doublejeopard y does not arise where the accusation in the second indictment requires proof of an act separate and distinct from the acts a lleged i n the first)

. 2this scen ario, doub le jeopard y wo uld not pre ve nt t he Stat e from prosecut ing appe ll ant, in Cause No. 2305,

for m urde ring S imn ach er w hile co mm itting or a ttem pting to com mit b urgla ry. 5 Accordingly, we reverse the orders entered in cause numbers 2249 and 2250 and render judgment dismissing those two causes. However, we affirm the or der ent ered in
cause nu mber 2305

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Brian Quinn Chief Justice
Publish.