Larry Kitchens v. State ( 2007 )

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 287^TH 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 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 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.

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.

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 [1^st 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.

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 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 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) 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.

Conclusion

Accordingly, having overruled Appellant's three issues, we affirm the trial court's judgment.

Patrick A. Pirtle

Justice

Publish.

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NO. 07-09-0184-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL B

MAY 19, 2010

______________________________

AIM-EX INDUSTRY, INC.,

                                                                                                            Appellant

v.

JASON SLOVER AND STEPHANIE SLOVER, Individually

                                                and as Next Friends of L.S., Minor Child,

                                                                                                            Appellees

_______________________________

FROM THE 72^nd DISTRICT COURT OF LUBBOCK COUNTY;

NO. 2007-539,883; HON. RUBEN REYES, PRESIDING

_______________________________

Memorandum Opinion

_______________________________

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

            Aim-Ex Industry, Inc. (Aim-Ex) appeals from a default judgment entered against it in favor of Jason and Stephanie Slover, individually and as next friends of their son L.S., a minor (the Slovers).  Aim-Ex contends that the trial court erred in entering the default judgment and denying its motion for new trial since 1) it met the requirements of Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 133 S.W.2d 124 (1939), 2) the Slovers failed to present evidence of a specific manufacturing defect, 3) no evidence supported the award of punitive damages, 4) no evidence supported the award of future damages, and 5) the award of damages for past medical expenses should have been adjusted for any discount received by the Slovers.  We affirm in part and reverse and remand in part.

            Background

            On July 3, 2007, the Slovers filed a lawsuit seeking damages for personal injuries received by their seven-year-old son while driving an all terrain vehicle (ATV) manufactured in China.  They did not originally name Aim-Ex as a defendant but amended their petition on February 11, 2008, to do so.  The defendant was a foreign corporation and service was perfected on it via the Texas Secretary of State on March 4, 2008.  A copy of the same was then forwarded by certified mail on March 11, 2008, to Aim-Ex at its California address.  A return receipt “bearing the Signature of Addressee’s Agent” was received by the Secretary of State on March 13, 2008. 

            Approximately a year later, that is, on March 4, 2009, the Slovers moved for default judgment against Aim-Ex because it had yet to file an answer or otherwise appear.  That judgment was entered on March 13, 2009, after which Aim-Ex timely moved for a new trial.  The trial court denied the latter.

             Issue 1 - Denial of Motion for New Trial

            Initially, Aim-Ex asserts that the trial court erred in denying its motion for new trial because it satisfied the requirements established in Craddock v. Sunshine Bus Lines, Inc.  We disagree and overrule the point. 

            Per Craddock, one seeking to overturn a default judgment due to his failure to appear or answer must illustrate that 1) such failure was neither intentional nor the result of conscious indifference but rather arose from accident or mistake, 2) he has a meritorious defense, and 3) granting the motion would cause neither delay nor injury to the plaintiff.  Dolgencorp of Texas, Inc. v. Lerma, 288 S.W.3d 922, 925 (Tex. 2009) (discussing the requirements of Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 133 S.W.2d 124 (1939)).  Moreover, in determining whether one acted intentionally or with conscious indifference, we examine the knowledge and acts of the party who failed to appear.  In re K.A.R., 171 S.W.3d 705, 717 (Tex. App.–Houston [14^th Dist.] 2005, no pet.).  And, included within that scope are the acts of both the actual party and its agent; in other words, it must be shown that both the party and its agent, if any, are free of conscious indifference.  Estate of Pollack v. McMurrey, 858 S.W.2d 388, 391 (Tex. 1993).  Finally, the excuse proffered need not be a good one so long as it evinces something other than intentional or consciously indifferent conduct.  Jaco v. Rivera, 278 S.W.3d 867, 872 (Tex. App.–Houston [14^th Dist.] 2009, no pet.). 

            At bar, Aim-Ex contends that it did not appear or answer because opposing counsel failed to inform it that citation had been served despite its inquiries into the matter.  Because it failed to appear at the hearing on its motion for new trial, the only evidence allegedly supporting the contention appears in the affidavit proffered with its motion.  Therein, the affiant explains that he is an associate in the law firm of Aim-Ex’ counsel and that he was instructed, on January 16, 2009, to call the Slovers’ counsel to determine if service had been effected upon Aim-Ex.  By that time, service had already been perfected for about ten months.  He further explained that opposing counsel failed to respond to his messages, that he called the district clerk to see if a return of service had been filed, that the clerk said it had not, that he drafted and mailed a letter to the Slovers’ counsel asking that he be notified when service was effectuated, and that opposing counsel again did not notify him.  Instead, Aim-Ex notified its counsel in the latter part of March 2009 that a default judgment had been entered.  Missing from this utterance, and the entire record for that matter, is evidence illustrating what, if anything, Aim-Ex did during the twelve months between service and entry of the default judgment.  Nothing explains why Aim-Ex never informed its attorney about receiving citation.  Nothing explains whether that company lost the citation, misplaced it, attempted to forward it to its counsel, or simply disregarded it. 

            Nor does Aim-Ex contend that service upon the Secretary of State was improper, question the accuracy of the address to which notice was sent, posit that the person who signed the return receipt was not its agent, or suggest that it did not receive the notice.  See Munoz v. Rivera, 225 S.W.3d 23, 28 (Tex. App.–El Paso 2005, no pet.) (holding the defendant failed to establish he did not receive notice of the trial setting when the record showed the notice was sent and received).  Again, the nature of the mistake that caused the default must be explained.  Sheraton Homes, Inc. v. Shipley, 137 S.W.3d 379, 381 (Tex. App.–Dallas 2004, no pet.).  And, because the evidence of record omits reference to the conduct of Aim-Ex (as opposed to its attorneys), it failed to meet its burden.  See Scenic Mountain Medical Center v. Castillo, 162 S.W.3d 587, 590 (Tex. App.–El Paso 2005, no pet.) (finding that the defendant did not meet its burden when the witness established that she did not know the reason for the failure to file an answer by the corporate office and testified that she did not know if the failure was the result of intentional or consciously indifferent conduct).       

            Issue 2 - Evidence of a Defect

            Next, Aim-Ex asserts there was no evidence of a manufacturing defect in the ATV that would support liability.  We overrule the issue.

            A “no answer” default judgment admits all of the facts properly pled in a petition except unliquidated damages.[1] Dolgencorp of Texas, Inc. v. Lerma, 288 S.W.3d at 930.  One of those facts being the existence of a defect, it too was admitted.  Therefore, Aim-Ex may not challenge on appeal that aspect of liability.  Fleming Mfg. Co. v. Capitol Brick, Inc., 734 S.W.2d 405, 408 (Tex. App.–Austin 1987, writ ref’d n.r.e.).   

            Issue 3 - Punitive Damages

            Aim-Ex also challenges the award of punitive damages because it contends that there was no evidence of gross negligence on its part.  We overrule the issue for the default judgment relieved the Slovers from establishing their opponent’s gross negligence.  That is, gross negligence was effectively admitted due to the default; so, the Slovers did not have to proffer evidence of it.  Folsom Inv., Inc. v. Troutz, 632 S.W.2d 872, 877 (Tex. App.–Fort Worth 1982, writ ref’d n.r.e.).  This is not to say that the amount of punitive damages awarded should go unaffected. Reversing the trial court’s award of actual damages could result in the reversal of the exemplary damage award.  Id. (wherein the sum allotted for punitive damages was reversed because a new trial was required on the issue of actual damages).  Indeed, because the ratio between the amount of actual and punitive damages awarded is an indicia to consider in assessing the validity of the punitive sum, In re Bradle, 83 S.W.3d 923, 928 (Tex. App.–Austin 2002, no pet.), it seems only appropriate to have the quantum retried if actual damages are to be retried. 

            Issue 4 - Future Damages

            The award of actual damages is also contested by Aim-Ex.  We sustain the issue in part.

            The trial court awarded the sum of $1,300,000 as total damages.  That sum appears to be comprised of approximately $300,000 for past medical expense, $350,000 in other non-itemized damages, and $650,000 in punitive damages. Whether this is actually true is unknown since no findings were entered on the matter.  Nor were the components of the $1,300,000 itemized in the judgment. Furthermore, the total could have consisted of payment for past and future medical expense, past and future pain and mental anguish, past and future wage loss, past and future physical disfigurement, and punitive damages since all were sought via the live pleading.  And, therein lies the problem because while there is some evidence supporting the award of damages for certain of those losses, there was no evidence supporting the award to recompense at least one loss, i.e. future medical expense. 

            A plaintiff has the burden of showing a reasonable probability that medical expenses will be incurred in the future. Sanmina-SCI Corp. v. Ogburn, 153 S.W.3d 639, 642 (Tex. App.–Dallas 2004, pet. denied).  To be probable, the expenses must be more likely than not to occur. Pilgrim’s Pride Corp. v. Smoak, 134 S.W.3d 880, 905 (Tex. App.–Texarkana 2004, pet. denied).     

            Here, Stephanie Slover testified that her son currently had no medical appointments scheduled though he may need medical care in the future.  But she also conceded that he may not need later medical help.  The mere chance of needing future medical care (as exemplified in the circumstances before us) is not sufficient to meet the necessary quantum of evidence.  Id. at 906.  Thus, any award to recompense for such loss would be improper, given the record before us. Because of this, the fact that an award for future medical expense was requested via the pleadings and at the default hearing, and the lack of any attempt to itemize or segregate what sums of money, if any, were allotted to the myriad types of damage sought, we cannot but reverse and remand the actual damages awarded.[2] Tex. Indus., Inc. v. Vaughn, 919 S.W.2d 798, 804 (Tex. App.–Houston [14^th Dist.] 1996, no writ); accord, Whitaker v. Rose, 218 S.W.3d 216, 224 (Tex. App.–Houston [14^th Dist.] 2007, no pet.) (holding that when a default judgment specifies a single damage award based on more than one damage element and there is no evidence to support the award as to one of the elements, then the entire award must be reversed and remanded even though one of the other elements might be sufficient to support the award). 

            Accordingly, we affirm the judgment with respect to liability and reverse and remand for a new trial on the issue of damages. Excluded from the latter, however, is the question of whether Aim-Ex was grossly negligent; that will not be retried for it was admitted.  See Folsom Inv. Inc. v. Troutz, 632 S.W.2d at 877 (wherein all issues of damage were remanded but the question of the defendant’s gross negligence was not). 

                                                                                    Brian Quinn

                                                                                    Chief Justice

---

[1]Aim-Ex does not allege on appeal that the cause of action was not properly pled.

[2]This relieves us from having to address the last issue before us.  Since the matter of damages is to be retried, we need not determine if the trial court erred in not discounting the damages for past medical care by an adjustment to the medical bills.