                                 NO. 07-06-0010-CR

                            IN THE COURT OF APPEALS

                     FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                       PANEL C

                                    MAY 25, 2007

                        ______________________________


                      LARRY BRENT KITCHENS, APPELLANT

                                          V.

                         THE STATE OF TEXAS, APPELLEE

                      _________________________________

             FROM THE 287TH DISTRICT COURT OF BAILEY COUNTY;

               NO. 2305; HONORABLE GORDON H. GREEN, JUDGE

                        _______________________________


Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.


                                       OPINION


      Appellant, Larry Brent Kitchens, was convicted of the offense of capital murder and

sentenced to life. By his first two issues, Appellant alleges the trial court committed

reversible error by denying his motion to quash the indictment and by overruling his
objection to the court’s charge. By a third and final issue, he alleges that the evidence is

legally insufficient to support the conviction for capital murder. Finding no error, we affirm.


                                    Background Facts


       On October 10, 2003, Vince Simnacher, Appellant’s ex-wife, Rhonda Kitchens, and

other friends gathered at Simnacher’s house for a party to celebrate the anniversary of the

divorce between Appellant and Rhonda. During the party, Appellant entered the residence

with a loaded SKS semi-automatic assault rifle and began shooting. When the shooting

was over, Vince Simnacher, Rhonda Kitchens, and Derwin Beauchamp were dead.

Appellant left the Simnacher residence, returned to his own residence, and awaited the

police. Shortly thereafter, he surrendered himself to a Department of Public Safety trooper

and he was transported to the Bailey County Jail. Appellant was charged with capital

murder.


       The State’s theory of the case was that Appellant was upset about the situation

surrounding his ex-wife, that he entered the Simnacher residence, without the consent of

the owner and with the intent to commit an assault, and that while in the course of

committing that burglary, he did intentionally shoot and kill Vince Simnacher.


                                          Analysis


       By his first issue, Appellant contends the trial court erred when it overruled his

motion to quash the indictment for failure to allege the constituent elements of the

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underlying offense of burglary. Specifically, he complains that the indictment did not allege

which theory of burglary the State intended to prove. That motion was overruled.


       A person commits the offense of capital murder if the person intentionally causes

the death of an individual in the course of committing or attempting to commit a burglary.

Tex. Penal Code Ann. § 19.03(a)(2) (Vernon Supp. 2006). Under the provisions of §

30.02(a) of the Texas Penal Code, a person commits the offense of burglary if that person

enters a habitation, without the effective consent of the owner (1) with intent to commit a

felony, theft, or an assault; or (2) commits or attempts to commit a felony, theft, or an

assault. A person commits the offense of assault if the person intentionally, knowingly, or

recklessly causes bodily injury to another; intentionally or knowingly threatens another with

imminent bodily injury; or intentionally or knowingly causes physical contact with another

when the person knows or should reasonably believe that the other person will regard the

contact as offensive or provocative. Id. at § 22.01(a).


       The indictment in this case alleges that Appellant “on or about the 10th day of

October, 2003, . . . did then and there intentionally cause the death of an individual,

namely, Vince Simnacher, by shooting him with a rifle, and [Appellant] was then and there

in the course of committing or attempting to commit the offense of burglary of the residence

of Vince Simnacher, who was the owner of the residence.”


       The Court of Criminal Appeals has repeatedly held that an indictment need not

allege the constituent elements of the aggravating feature which elevates a murder to

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capital murder. E.g., Alba v. State, 905 S.W.2d 581, 585 (Tex.Crim.App. 1995) (murder

in the course of committing burglary); Barnes v. State, 876 S.W.2d 316, 322

(Tex.Crim.App. 1994) (murder in the course of committing burglary); Beathard v. State, 767

S.W.2d 423, 431 (Tex.Crim.App. 1989) (murder in the course of committing burglary);

Marquez v. State, 725 S.W.2d 217, 236 (Tex.Crim.App. 1987), abrogated on other grounds

by Moody v. State, 827 S.W.2d 875 (Tex.Crim.App. 1992) (murder in the course of

committing aggravated sexual assault); Hogue v. State, 711 S.W.2d 9, 14 (Tex.Crim.App.

1986) (murder in the course of committing arson); Hammett v. State, 578 S.W.2d 699, 708

(Tex.Crim.App. 1979) (murder in the course of committing robbery).


       Appellant does not provide any authority which excepts the facts and circumstances

of this case from this general rule. Instead, he argues that it was error to fail to require the

State to allege those elements because his ability to prepare his defense was “substantially

impacted” by the lack of specific notice as to which theory of burglary the State intended

to prove. He argues that his counsel was forced to attempt to discredit all testimony that

could possibly establish any of the theories of burglary that might be argued from the facts

of the case. Under the facts of this case, burglary might be established by showing that

Appellant entered the Simnacher residence with the intent to commit a felony, theft, or

assault. Similarly, an assault might be established by showing that Appellant had the intent

to cause bodily injury, threaten imminent bodily injury, or make offensive physical contact

with Vince Simnacher, Rhonda Kitchens, or any other party guest.



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       While the task presented to Appellant’s counsel may have been formidable, the

dilemma he faced was no different than that faced by counsel in Alba, Barnes, or

Beathard. We see no compelling reason to distinguish this case from the line of cases

which have held that the specific theory of burglary need not be alleged in a capital murder

indictment based upon the aggravating offense of burglary. Appellant’s first issue is

overruled.


       By his second issue, Appellant contends the trial court erred by submitting the

definition of burglary with intent to commit assault in the charge. He further contends that

the submission was error because it authorized the jury to convict him on a theory not

alleged in the indictment.


       Appellant complains about that portion of the charge that reads as follows:


        A person commits burglary, if, without the effective consent of the owner, the
       person intentionally or knowingly enters a building and commits or attempts
       to commit an assault. Assault is committed if the person: (1) intentionally,
       knowingly, or recklessly causes bodily injury to another, . . . (2) intentionally
       or knowingly threatens another with imminent bodily injury, . . . or (3)
       intentionally or knowingly causes [offensive physical contact].


       Appellant argues that the addition of the elements of burglary, to-wit: entry into a

building and the commission or attempted commission of an assault and the addition of

the definition of assault constitutes fundamental error because they enlarge the indictment

by authorizing a conviction on one or more theories not alleged in the indictment. We

disagree.

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       The indictment requires proof of murder intentionally committed “in the course of

committing or attempting to commit the offense of burglary. . . .” In order to understand the

concept of burglary, the jury was entitled to a statutorily correct definition of burglary.

Because the indictment need not allege the specific theory of burglary relied upon by the

prosecution, the trial court was limited, not by any specific allegation, but by the evidence.

The evidence introduced in this cause supported the State’s theory that Appellant entered

the Simnacher residence without consent and committed or attempted to commit the

offense of assault. As such, the jury was required to understand the proper legal definition

of both burglary and assault.


       The charge at issue does not permit nor require proof different than that required

by the indictment. In order to have a clear understanding of its duty and purpose, the

charge of the court should contain a statutorily correct definition of any legal term or phrase

that the jury must necessarily use in order to properly resolve an issue. Watson v. State,

548 S.W.2d 676, 679 (Tex.Crim.App. 1977); Thomas v. State, 474 S.W.2d 692, 695

(Tex.Crim.App. 1972); Parsons v. State, 191 S.W.3d 862, 864 (Tex.App.–Waco 2006, pet.

ref’d); Nguyen v. State, 811 S.W.2d 165, 167 (Tex.App.–Houston [1st Dist.] 1991, pet.

ref’d). Because the jury was called upon to understand the concepts of both burglary and

assault, the trial court did not err by including these definitions. Appellant’s second issue

is overruled.




                                              6
         By his final issue, relying on Garrett v. State, 573 S.W.2d 543 (Tex.Crim.App.

1978), Appellant asserts that the evidence was legally insufficient to support his conviction

for capital murder because burglary with intent to commit assault against a specific victim

cannot be used to enhance the murder of that victim to capital murder. In other words,

Appellant contends that the indictment in this case required the State to prove that the

intended victim of the assault was someone other than the victim of the murder and that

the evidence was, therefore, legally insufficient to support the jury’s verdict.


       At the outset, it should be observed that although Appellant complains about the

legal sufficiency of the evidence, his ground is in reality a challenge to the State’s theory

of prosecution embodied in the indictment. In Garrett, the Court of Criminal Appeals held

that a defendant could not be prosecuted for felony murder where the assaultive act

resulting in the homicide is relied upon as the felony which boosts the homicide into the

murder category. See id. at 545-46. Because the felony murder rule allows the underlying

felony offense to supply the necessary culpable mental state, the court reasoned that the

statutory restriction which prohibits manslaughter from being the underlying felony would

be circumvented if a felony murder could be predicated on the underlying aggravated

assault. See id. In effect, the Court held that to allow an assault to be used as the felony

that makes an offense a felony murder, is to create an offense not authorized by the

Legislature because the Legislature had specifically provided that recklessly causing the

death of an individual (manslaughter) could not be used as a basis for making a homicide

a murder pursuant to § 19.02(b)(3) of the Texas Penal Code. See id. Because the

                                              7
underlying felony assault supplies the necessary culpable mental state for the act of

murder, the Court of Criminal Appeals believed that the application of the felony murder

rule to those facts was an “attempt to split into unrelated parts an indivisible transaction.”

Id. at 546. This reasoning, however, does not apply in the context of a capital murder

predicated upon the commission of a burglary because the State is not creating an offense

not authorized or contemplated by the Legislature. Furthermore, unlike Garrett, in the

capital murder scheme, the intent to cause the death of the individual is wholly

independent of the intent to commit the aggravating offense. The murder and burglary are

clearly divisible transactions, each with its own requisite mens rea. While the mens rea of

the two offenses may overlap, this capital murder scheme does not require a transference

of intent from the burglary offense to the murder. Therefore, we find the merger of intent

doctrine of Garrett to be inapplicable to the prosecution of capital murder under §

19.03(a)(2).


       Assuming that the legal sufficiency of the evidence was at issue, for purposes of

appellate review, this Court must give deference to “the responsibility of the fact finder to

fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable

inferences from basic facts to ultimate facts.” Jackson v. Virginia, 443 U. S. 307, 318-19

(1979). See also Hooper v. State, 214 S.W.3d 9 (Tex.Crim.App. 2007). When assessing

the legal sufficiency of the evidence to support a criminal conviction, the appellate court

must consider all the evidence in the light most favorable to the verdict and determine

whether, based on that evidence and reasonable inferences to be drawn therefrom, a

                                              8
rational juror could have found the essential elements of the crime beyond a reasonable

doubt. Jackson, 443 U.S. at 318-19; Hooper, 214 S.W.3d at 13. Each fact need not point

directly and independently to the guilt of the accused, so long as the cumulative force of

all the evidence is sufficient to support the conviction. Circumstantial evidence alone is

sufficient to establish the guilt of the accused, and the standard of review as to the

sufficiency of the evidence is the same for both direct and circumstantial evidence cases.

Hooper, 214 S.W.3d at 13.


       In a legal sufficiency of the evidence review, the essential elements of the offense

are those of a hypothetically correct jury charge for the offense in question (i.e., one that

accurately sets out the law and adequately describes the offense for which the appellant

was tried without increasing the state’s burden of proof or restricting the state’s theory of

criminal responsibility). Id. at 14. Therefore, it is important to note that where the

indictment and the trial court’s charge authorize the jury to convict on more than one legal

theory, as they did in this case, the verdict of guilt will be upheld if the evidence is sufficient

on any of the theories possible. Id.


       Applying this analysis to the facts of this case, we must determine whether a rational

juror could have found that Appellant intentionally caused the death of Vince Simnacher

while in the course of committing a burglary of the Simnacher residence. Here, the State’s

theory of prosecution would have allowed for a conviction if the jury had found that

Appellant entered the Simnacher residence with the intent to (1) cause bodily injury, (2)


                                                9
threaten to cause imminent bodily injury, or (3) make offensive physical contact with Vince

Simnacher, Rhonda Kitchens, or any other party guest in attendance. Therefore, in

reviewing the sufficiency of the evidence we must consider each possibility.


        It is undisputed that Appellant entered the Simnacher residence without the

effective consent of the owner, and thereafter caused the death of Vince Simnacher. What

Appellant disputes is whether the evidence is legally sufficient to establish that he entered

the residence with the intent to (1) cause bodily injury, (2) threaten to cause imminent

bodily injury, or (3) make offensive physical contact with Vince Simnacher, Rhonda

Kitchens, or any other party guest in attendance. In that regard, the evidence shows that

Appellant was upset about his divorce from Rhonda and her involvement with Vince, that

he was aware that both Rhonda and Vince were at the Simnacher residence, and that he

was angry about there being a party to “celebrate” the anniversary of their divorce. The

testimony of Teresa Raylene Ott indicates that Appellant had previously threatened to kill

Vince Simnacher. She further testified that on the night of the shooting, she had spoke

with Appellant by telephone and quoted him as saying, “I ought to come over there and kill

every mother fucking one of y’all.” Another person present at the time of the shooting,

William Welch, also quoted Appellant as saying, “You son (sic) of bitches didn’t think I

would do it,” as he began to shoot. Even if the State were required to establish that the

intended victim of the assault was someone other than Vince Simnacher, the evidence was

legally sufficient to support the jury’s verdict. Appellant’s third issue is overruled.




                                              10
                                     Conclusion


      Accordingly, having overruled Appellant’s three issues, we affirm the trial court’s

judgment.




                                               Patrick A. Pirtle
                                                   Justice

Publish.




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