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.
BackgroundThe 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 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 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)
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.
1. Section 19.03(a)(7)(A) provides that a person commits capital murder if he commits murder and
murders more than one person during the same criminal transaction. Tex. Pen. Code Ann. §19.03(a)(7)(A)
(Vernon Supp. 2004-05).
2.
align: justify; line-height: 0.416667in"> In considering the indicia here, we find the following in the record: 1) appellant twice rose to stare at the officers though he feigned sleep when they approached the car on foot, 2) appellant was seen reaching towards the area behind the driver’s seat, 3) the drugs were located in a camera case within easy reach to where appellant lay when reclining, 4) the camera case was not zipped shut although its flap was folded over, 5) appellant’s shoes were located in the back seat, 6) the camera itself was found on the floor of the front passenger seat where appellant was sitting beside a fully loaded Glock pistol magazine, 7) appellant lied to the officer about having no identification, 8) the quantum of cocaine found was an amount that would be used for distribution as opposed to personal use, 9) the driver of the vehicle seemed to be looking to appellant for answers when she was questioned by the officers, 10) Perkins’ gaze remained fixed towards appellant while being questioned,11) even though appellant was not listed on the car rental contract as a driver, he told the officers that he was in the car to help drive, 12) even though Perkins’ name was on the rental contract, she was unemployed and she and appellant barely knew each other, and 13) Ingle testified that based on his training and experience, he knew that drug couriers often use a rental vehicle, often try to avoid identification, and often have little acquaintance with those with whom they travel. Upon considering them in their totality, these factors would allow a rational jury to infer, beyond reasonable doubt, that appellant not only knew of the contraband in the vehicle but also exercised care, custody or control over it.
Admittedly, Perkins was allowed to retrieve her child from the back seat and await the drug dog’s arrival by sitting in the front passenger seat. While this could suggest that she had time to manipulate the drugs, the jury was free to reject that hypothesis. And, at the very least, appellant had as much access to the drugs as did Perkins. Therefore, the verdict was not so against the great weight of the evidence as to destroy our confidence in it. Accordingly, we find the evidence both legally and factually sufficient to support appellant’s conviction.
Issue 5 - Motion to Suppress
Appellant also challenges the trial court’s denial of his motion to suppress. Purportedly, the officers lacked reasonable suspicion to effectuate the traffic stop. Furthermore, Trooper Ingle’s opinion that Perkins was following the car in front of her too closely was not supported by specific articulable facts, according to appellant. We overrule the issue.
In reviewing a motion to suppress, we afford great deference to the trial court’s interpretation of historical facts. Ford v. State, 158 S.W.3d 488, 493 (Tex. Crim. App. 2005). That deference extends to both the trial court’s authority to assess the credibility of the witnesses and its authority to disbelieve or believe controverted testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000). However, we do not afford the same deference to the trial court’s application or interpretation of the law. Ford v. State, 158 S.W.3d at 493. Finally, we note that a law enforcement officer may stop a vehicle if he has a reasonable suspicion to believe that a traffic violation is in progress or has been committed. McQuarters v. State, 58 S.W.3d 250, 255 (Tex. App.–Fort Worth 2001, pet. ref’d).
Irrespective of whether Perkins was driving too closely to another vehicle, Trooper Ingle testified that prior to actually turning on his lights and initiating the stop, he observed Perkins change lanes without signaling, which itself constituted a traffic violation. Thus, there existed legitimate basis for the stop.
Accordingly, the judgment is affirmed.
Brian Quinn
Chief Justice
Do not publish.