                                  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 BRENT KITCHENS,

                                                                    Appellant

                                           v.

                               THE STATE OF TEXAS,

                                                                    Appellee
                       _________________________________

             FROM THE 287TH DISTRICT COURT OF BAILEY COUNTY;

            NO. 2249, 2250 & 2305; HON. GORDON GREEN, PRESIDING
                       _______________________________

                                    Opinion
                        _______________________________

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

      Appellant Larry Brent Kitchens appeals from three orders denying his applications

for writs of habeas corpus.    Through those writs, he sought the dismissal of three

indictments through which he was charged with capital murder. According to appellant, the

trial court was obligated to so dismiss the causes since their prosecution was barred by

double jeopardy. We reverse in part and affirm in part.
                                                Background

        The dispute involves the killing of three individuals, Vince Simnacher, Rhonda

Kitchens, and Derwin Beauchamp. 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 not only Simnacher but also Kitchens and Beauchamp. All three died.

        The State secured four indictments against appellant charging him with capital

murder.       Via the first three, appellant was accused of that crime as defined in

§19.03(a)(7)(A) of the Texas Penal Code.1 That is, in Cause No. 2249, the indictment read

that appellant intentionally or knowingly caused the death of Rhonda while also intentionally

or knowingly causing the death of Beauchamp and Simnacher. However, through the

indictment in Cause No. 2250, the State alleged that he caused the death of Simnacher

while also killing Rhonda and Beauchamp, and, in Cause No. 2251, it alleged that he

murdered Beauchamp while also intentionally or knowingly causing the death of Rhonda

and Simnacher. Via the fourth indictment (which initiated Cause No. 2305), appellant was

accused of intentionally or knowingly killing Simnacher while committing or attempting to

commit burglary of Simnacher’s residence. See TEX . PEN . CODE ANN . § 19.03(a)(2)

(Vernon 2004-05) (stating that one commits capital murder if he murders another while,

among other things, committing or attempting to commit burglary).

        It was Cause No. 2251 that the State first tried. Moreover, the trial ended in

appellant’s acquittal. Having been acquitted of that offense, appellant then petitioned for



        1
         Section 19.03(a)(7)(A) provides that a person commits capital murder if he commits murder and
mu rders more than one person during the same criminal transaction. T E X . P E N . C O D E A N N . §19.03(a)(7)(A)
(Verno n Su pp. 200 4-05).

                                                        2
habeas corpus, contending that double jeopardy barred the State from prosecuting the

remaining indictments. The trial court disagreed and denied appellant relief. Thereafter,

he appealed the decisions of the trial court.

       Causes 2249 and 2250

       We first address the contention that double jeopardy barred prosecution of the

remaining indictments founded upon §19.03(a)(7)(A) of the Penal Code. We conclude that

it does and rely on the opinion in Saenz v. State, No. P.D. 61-01, 2005 Tex. Crim. App.

LEXIS 980 (Tex. Crim. App. June 29, 2005, no pet. h.) to arrive at that decision. In Saenz,

the Court of Criminal Appeals held that the applicable unit of prosecution when

§19.03(a)(7)(A) is involved consists of the victim’s murder coupled with the murders of one

or more additional people during the same criminal transaction. Id. at 6. And, given that

the unit of prosecution was so comprised, the legislature intended that the accused be tried

under §19.03(a)(7)(A) only once for all the murders upon which the charge was based. Id.

at 10. In other words, an accused could only be tried once under §19.03(a)(7)(A) for

murdering the individuals named in the indictment. The decedents could not be rotated

from the class of primary victim to that of aggravated circumstance to increase the chance

of multiple convictions. To do so constituted double jeopardy. Saenz v. State, supra.

       Like the situation in Saenz, the prosecutor at bar also used three deaths to satisfy

the elements of §19.03(a)(7)(A).      Those three deaths formed the allowable unit of

prosecution, as did the three in Saenz. So, to use them again in a second or third

indictment that also alleged capital murder under §19.03(a)(7)(A) but simply rotated the

classification of the same decedents from primary victim to aggravated circumstance would

run afoul of the double jeopardy clause. Saenz v. State, supra. Therefore, the trial court

                                                3
erred in refusing to dismiss cause numbers 2249 and 2250 under the circumstances

presented to it.       Morever, 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 above, Cause No. 2305 is founded upon §19.03(a)(2). The latter

permits a conviction for capital murder if the accused intentionally or knowingly caused the

death of someone while committing or attempting to commit burglary. TEX . PEN . CODE ANN .

 §19.03(a)(2) (Vernon Supp. 2004-05).                       As can be seen, the elements or acts

encompassed under §19.03(a)(2) differ from those in §19.03(a)(7)(A). Admittedly, both

require proof of murder but §19.03(a)(2) obligates the State to also prove burglary or

attempted burglary while §19.03(a)(7)(A) obligates it to prove at least one more murder.

Thus, the allowable unit of prosecution reflected in the indictment numbered 2305 differs

from the unit of prosecution reflected in cause numbers 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 jeopardy clause even though Simnacher is named as the

murder victim in both instances. See Vick v. State, 991 S.W.2d 830, 832-33 (Tex. Crim.

App. 1999) (holding that double jeopardy does not arise where the accusation in the

second indictment requires proof of an act separate and distinct from the acts alleged in

the first).2


        2
          Appellant also suggests that jeopardy attached upon his acquittal in Cause No. 2251 because the
jury mu st have found that he did no t intend to murde r Sim nac her. And, if it so found, the determination then
wo uld bar the relitigation of that issue in Cause No . 2305. Appellant’s argument may h ave m erit if it co uld be
said that the jury so found. Ye t, that infere nce is far from certain give n the record be fore us. As previou sly
mentioned, the indictment in Cause No. 2251 required proof of three murders to secure a conviction, one of
which was that of Rhonda. Yet, appellant testified that he did not intend to kill her. It may well be the jury
believed him , and, if it did, then it would have been obligated to acquit him of the offense as charged. Given

                                                        4
        Accordingly, we reverse the orders entered in cause numbers 2249 and 2250 and

render judgment dismissing those two causes. However, we affirm the order entered in

cause number 2305.



                                                         Brian Quinn
                                                         Chief Justice


Publish.




this scenario, doub le jeopard y would not pre vent the State from prosecuting appellant, in Cause No. 2305,
for m urde ring S imn ach er while co mm itting or attem pting to com mit burglary.

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