If Kitchens v State (2005 WL 1866055) turns out to be good law, what about these facts: D is indicted for capital murder for murdering A in the course of robbing him, murdering B in the course of robbing her and murdering both in the same criminal transaction. D is acquitted on the trial of the third indictment. If the CCA agrees, it appears the state would have two more bites at the apple. Do you think this can hold up?

Vick v. State, 991 S.W.2d 830 (Tex.Crim.App. Feb 24, 1999) and Lopez v. State, 108 S.W.3d 293 (Tex.Crim.App. Jun 11, 2003), point to the importance of the orientation of the offense. The Court identified conduct orientation in Vick and "possession orientation" in Lopez. Vick could have been acquited of a particular act of agg sex asslt of a child, say genital/genital contact and still be later tried for another act constituting ASA of the same child growing from the same criminal transaction.

Lopez involved an ongoing possession of cocaine. The cocaine possessed on Monday is not a seperate possession from the same party possessing the same cocaine Tuesday, the Court explains.

Capital Murder in the course of robbery is a specific intent crime. The actor's conscious objective or desire must be to cause death; an example of result orientation. If one has been acquitted of intentionally causing the death of X, it seems that a subsequent trial on another theory requiring proof of the defendant's specific intent to cause the death of X death is jeopardy -barred.

Likewise, the fourth indictment in Kitchens would require the state to prove a burglary coupled with the intent to cause death (murder, a felony other than theft), yet the defendant has already been acquitted of causing any death in the house of the victim.

Having recently endured a loss similar to the one the Kitchens prosecution team had to bear, I sincerely hope I am all wrong. I know precisely how they feel. I, too, would like just one more shot at justice for the families of the young people my defendant was accused of killing.

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Kitchens had not already been acquitted of causing any death in Simnacher's house. He was acquitted of having murdered Beauchamp while also intentionally or knowingly causing the death of Rhonda and Simnacher. The jury did not necessarily find he had not murdered Sinmacher in making that determination. Thus, I think the decision of the Seventh Court is quite accurate. Lopez deals with a continuing course of conduct, not really allowable units of prosecution. Besides, the possession statute is significantly different from the capital murder statute (which is actually a combination of several statutes under the same heading).

In my hypothetical if the jury got no lessers of murder on A & B, one could argue that although D was found not guilty of murdering both, the jury could have concluded he murdered one and not the other.

If the indictment read causing the death of micky and causing the death of Donald in the same criminal transaction must the courts assume the not guilty verdict was as to Mickey because he is first named?

Suppose D had argued for the lessers at trial one. May he now (successfully) complain in his former jeopardy argument that the court erred in not adding the lessers to the charge thereby exposing him to subsequent prosecution?

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[This message was edited by BLeonard on 09-24-05 at .]

No assumption arises as to why the jury failed to find (a)(7)(A) capital murder- certainly not from which victim was listed first in the indictment. In order to argue there was any error in failing to submit a lesser charge of murder of either alleged victim, there must have been evidence that your defendant was guilty only of that murder- hardly a good premise for the subsequent argument that the jury did not find that element. I might argue the defendant would be estopped from even making such an argument. See McLendon, No. 14-03-1166-CR (5/2/05). Besides, the defendant was not in jeopardy on the lesser offenses when they were not submitted, so no bar now. Indeed, if I understand Hampton, No. PD-0179-04 (5/22/05) even where a LIO is submitted, jeopardy would not bar a re-trial. But, more importantly, the (a)(7)(A) acquittal cannot bar prosecution of a separate (different)capital murder offense (even if it might bar prosecution of an offense under 19.02). Collateral estoppel arises only where the jury must have found a particular fact in favor of the defendant. Husain, 161 S.W.3d at 650. That is just not the case in your example.

Why don't you consult with Mallin or his crew on this?

Because "fire and forget" lawyers like me try his patience.

But seriously-let Kitchens' PDR be refused or the case approved at the CCA and I will be begging him to bless a reindictment of my D.

Which raises another question: Though I am as sure of the guilt of this defendant as I have ever been of any case I've worked on, I am worried a bit about the appearance of vengefulness or vindictiveness (not using the word as a term of art).

Well, at least I have done my part to provide the ammunition for the "blessing". I really have to doubt the CCA will overturn what the Seventh said, but maybe it is wise to wait for their "blessing" before you try another capital case. Vindictive? Just because the jury failed to see the light of justice the first time does not mean you are being vindictive. If that were true, then no retrials would ever be permitted. If the defendant violated more than one statute (prosecutable unit) you can bring the charges seriatim without fear. This would clearly be a "second prong" type case where the defendant would have to prove your action was "an unjustifiable penalty resulting solely from the defendant's exercise of a protected legal right". See Neal, 150 S.W.3d at 174. I do not think a guilty defendant has any right to expect an acquittal as to part of his conduct will free him from the balance.

In the trial of the acquitted D (there were two actors) I broke my own rule for the first time in my twelve year career: I argued against any lesser includeds. Leave aside the fact that they were not raised. The defendant's position was, quite simply, I was not there.

Confronted with an all or nothing choice on a seventeen year old, the jury did what I thought all twelve would never do. They chose nothing. A couple of weeks ago, we tried the co-D. Any colorable lesser went into the charge without objection from the State. This jury chose all. I relearned my lesson: objecting to lessers is always a dangerous business, although my fear had always been of the Appellate Court, not the jury.

I've been realizing this past few months how correct my father, a former prosecutor, was when he told me, "At the end of your career, it is the 'not guiltys' you will remember."