ACCEPTED
04-12-00238-CR
FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
3/26/2015 11:40:40 PM
KEITH HOTTLE
CLERK
NO. 04-12-00238-CR
IN THE FOURTH COURT OF APPEALS FILED IN
4th COURT OF APPEALS
FOR THE STATE OF TEXAS, SITTING IN SAN ANTONIO
SAN ANTONIO, TEXAS
3/26/2015 11:40:40 PM
KEITH E. HOTTLE
Clerk
KIMBERLY SAENZ, Appellant,
VS.
THE STATE OF TEXAS, Appellee.
On direct appeal from the 217th Judicial District Court
of Angelina County, Texas, in Cause No. CR-28,665
APPELLANT’S SUPPLEMENTAL BRIEF
ROBERT A. MORROW
SBN: 14542600
24 Waterway Ave., Suite 660
The Woodlands, Texas 77380
Tel. 281-379-6901
Fax 281-813-0321
ORAL ARGUMENT REQUESTED Heather M. Lytle
SBN: 24046487
202 Travis Street, Suite 300
Houston, Texas 77002
Tel. 713-204-7060
Amy D. Martin
SBN: 24041402
202 Travis Street, Suite 300
Houston, Texas 77002
Tel. 713-320-3525
IDENTITY OF PARTIES AND COUNSEL
APPELLANT: KIMBERLY SAENZ
Trial Counsel: T. Ryan Deaton Stephen C. Taylor
103 E. Denman P.O. Box 293
Lufkin, TX 75901 Conroe, TX 77305-0293
Tel. 936-637-7778 Tel. 800.223.8308
Appellate Counsel: Robert A. Morrow III Amy D. Martin
24 Waterway Avenue 202 Travis Street
Suite 660 Suite 300
The Woodlands, TX 77380 Houston, TX 77002
Tel. 281-379-6901 Tel. 713-320-3525
Aisha Khan Sajjad Heather M. Lytle
202 Travis Street 202 Travis Street
Suite 300 Suite 300
Houston, TX 77002 Houston, TX 77002
Tel. 832-964-6936 Tel. 713-204-7060
APPELLEE STATE OF TEXAS
Trial Counsel: Clyde M. Herrington Christopher Tortorice
Layne Thompson Asst. U.S. Atty.
Angelina Co. Dist. Atty. 110 N. College
P.O. Box 908 Suite 700
Lufkin, TX 75902-0908 Tyler, TX 75702
Tel. 936-632-5090 Tel. 936-590-1400
Appellate Counsel: Art Bauereiss John G. Jasuta
Angelina Co. Dist. Atty. Ofc. David A. Schulman
Appellate Division PO Box 783
P.O. Box 908 Austin, Texas 78767
Lufkin, TX 75902-0908 Tel. 512-474-4747
Tel. 936-632-5090
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TABLE OF CONTENTS
Page No.
IDENTITY OF PARTIES AND COUNSEL ..................................................... i
TABLE OF CONTENTS ................................................................................... ii
TABLE OF AUTHORITIES .............................................................................. iii
STATEMENT OF THE CASE ........................................................................... iv
STATEMENT REGARDING ORAL ARGUMENT ......................................... iv
STATEMENT OF FACTS ................................................................................. 1
ARGUMENT ..................................................................................................... 1
The Almanza factors require a finding of egregious harm. ................. 2
Legally sufficient is a far cry from “overwhelming.” ........................... 5
1. Ms. Saenz’ acquittals ............................................................... 6
2. No evidence of chlorate entering the body. ............................ 7
3. Cause of death was a highly contested issue. ......................... 7
Contested and controverted evidence is not “overwhelming”
evidence. .................................................................................................. 8
Reliance on Motilla and Garcia is misplaced. ....................................... 8
PRAYER ............................................................................................................ 10
CERTIFICATE OF COMPLIANCE ................................................................. 11
CERTIFICATE OF SERVICE ........................................................................... 11
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TABLE OF AUTHORITIES
Page No.
Cases
Almanza v. State,
686 S.W.2d 157 (Tex.Crim.App. 1985) .................................................... 1
Cosio v. State,
353 S.W.3d 766 (Tex.Crim.App. 2011) .................................................... 5,8
Garcia v. State,
919 S.W.2d 370 (Tex.Crim.App. 1994) .................................................... 9
Hutch v. State,
922 S.W.2d 166 (Tex.Crim.App. 1996) .................................................... 2
Motilla v. State,
78 S.W.3d 352 (Tex.Crim.App. 2002) ...................................................... 8
Ngo v. State,
175 S.W.3d 738 (Tex.Crim.App. 2005) .............................................. 1,3-4,8
Saenz v. State,
451 S.W.3d 388 (Tex.Crim.App. 2014) .................................................... iv,1
iii
STATEMENT OF THE CASE
Appellant, Kimberly Clark Saenz, relies upon and incorporates the
Statement of the Case presented in her Appellant’s Brief that has already been
presented to this Court. Following this Court’s decision to affirm Ms. Saenz’
conviction and sentence, the Texas Court of Criminal Appeals granted Ms. Saenz’
petition for discretionary review. On December 10, 2014, the Court of Criminal
Appeals reversed this Court’s decision, holding that the Court erred in finding no
error in the jury charge, and holding that the charge allowed for a non-unanimous
verdict by failing to require unanimous agreement on the victim of the predicate
murder on which the capital murder charge was based. Saenz v. State, 451 S.W.3d
388 (Tex.Crim.App. 2014). The Court of Criminal Appeals remanded the case to
this Court to conduct a harm analysis under the Almanza standard, because Ms.
Saenz’ counsel failed to object to the charge error. Id.
On February 6, 2015 this Court ordered the parties to submit supplemental
briefing. The State filed its brief in accordance with the Order on March 9, 2015.
Ms. Saenz now files her Supplemental Brief pursuant to the Court’s Order.
STATEMENT REGARDING ORAL ARGUMENT
Ms. Saenz respectfully requests that this Court grant oral argument. The
Court of Criminal Appeals decision in this case was a case of first impression in
Texas. Accordingly, the determination of harm in this case will also have
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significant impact on the jurisprudence of our State. Additionally, given the
volume of evidence in this case, the review of which is necessary to determine
harm, oral argument will aid this Court in making its determination.
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STATEMENT OF FACTS
Ms. Saenz relies upon, and incorporates, the Statement of Facts presented in
her Appellant’s Brief on original submission to this Court, as well as the Statement
of Facts presented to the Court of Criminal Appeals in her Petitioner’s Brief on the
Merits.
ARGUMENT
The Court of Criminal Appeals held that Kimberly Saenz’ right to a
unanimous verdict was violated because the jury charge “made it possible for the
jurors to convict without agreeing that any one particular person was murdered by
the appellant.” Saenz v. State, 451 S.W.3d 388 (Tex.Crim.App. 2014). The
question before this Court is whether the erroneous jury charge, which was
presented without objection by the defense, caused egregious harm to Ms. Saenz,
as defined by Almanza v. State, 686 S.W.2d 157 (Tex.Crim.App. 1985). Put
simply, did the legal error in the charge go beyond the theoretical “possibility” of a
non-unanimous verdict to create an actual deprivation of a valuable right? See Ngo
v. State, 175 S.W.3d 738, 750 (Tex.Crim.App. 2005).
The State blithely answers “no” to this question, claiming that the evidence
of Ms. Saenz’ guilt of murdering all five of the alleged victims was so
overwhelming that every juror must have believed her guilty of killing them all.
Thus, argues the State, there is no actual harm because even though the jury charge
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permitted a non-unanimous verdict, the evidence did not.
In support of its argument, the State correctly stated the standard for
determining whether egregious harm results from jury charge error: This Court will
find actual harm by considering the error in light of: (1) the entire jury charge as
written; (2) the state of the evidence, including contested issues and the weight of
the probative evidence; (3) the arguments of counsel; and (4) any other relevant
information found in the record as a whole. Hutch v. State, 922 S.W.2d 166, 171
(Tex.Crim.App. 1996). While the State correctly recites this standard, its argument
blatantly ignores three of those four factors, focusing entirely on the State’s
interpretation of the state of the evidence. State’s Supplemental Brief, p. 3-5.
When all of the Almanza factors are considered, along with all the evidence
at trial, it becomes readily apparent that Kimberly Saenz suffered egregious harm
as a result of the jury charge error because the record as a whole demonstrates that
she was actually deprived of the valuable, constitutional right to a unanimous
verdict.
The Almanza factors require a finding of egregious harm.
In her briefing before this Court on original submission, and before the
Court of Criminal Appeals, Ms. Saenz set out thoroughly, and with specificity, the
facts supporting the finding of harm based on each of the Almanza factors. See
Appellant’s Brief, pp. 16-21. In order to avoid repetitious briefing, Ms. Saenz
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directs the Court to those briefs for a thorough recitation of the facts surrounding
the charge, the State’s arguments, and the record, which support a finding of
egregious harm.
Given the manner in which the jury charge emphasized, rather than
ameliorated, the error, and the State’s closing argument which encouraged the jury
to render a guilty verdict despite a lack of unanimity, it is important for this Court
to consider cases in which the Court of Criminal Appeals has considered these
issues specifically.
In Ngo v. State, the Court of Criminal Appeals found that the jury charge
caused actual, egregious harm, and deprived the defendant of his right to a
unanimous verdict, because: (1) both the State and the judge emphasized the error
in the charge; and (2) the jury charge itself exacerbated, rather than ameliorated,
the error. Ngo v. State, 175 S.W.3d 738 (Tex.Crim.App. 2005). The Court held:
This is not an instance of a jury charge which is simply missing an
important word – “unanimously” – which reasonable jurors might
infer from the context of the entire charge or from the comments of
the advocates emphasizing the correct legal principles. Here, the jury
was affirmatively told, on three occasions, twice by the prosecutor and
once by the trial judge, that it need not return a unanimous verdict.
Both told the jury that “a mix and match” verdict of guilt based upon
some jurors believing appellant stole a credit card, others believing he
received a stolen credit card, and still others believing that he
fraudulently presented one, was “the law.”
…
In sum, this is an instance in which the original jury charge error was
not corrected or ameliorated in another portion of the charge; instead,
it was compounded by the one misleading statement concerning
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unanimity that was set out in the jury charge, as well as by the
affirmative statements of both the trial judge and prosecutor that the
jury could indeed return a non-unanimous verdict. And, given the
state of the evidence, we … cannot determine that the jury was, in
fact, unanimous in finding appellant guilty of one specific credit-card-
abuse offense. Some jurors could have found appellant's defense to
one or more of the three allegations persuasive while finding another
one unpersuasive. We therefore agree that appellant's constitutional
and statutory right to a unanimous jury verdict was violated and this
violation caused egregious harm to his right to a fair and impartial
trial.
Ngo, 175 S.W.3d at 751-52.
The Ngo case is remarkably similar to Ms. Saenz’ case. Even though the
judge did not misstate the law in this case, the indictment, which was read at the
outset of the case, mirrored the error in the jury charge, emphasizing to the jury
that it need not agree on which victims Ms. Saenz allegedly murdered. RR 50:18-
25; CR 1:75-77. As in Ngo, the prosecutor in this case specifically told the jury that
it need not reach a unanimous verdict. RR 50:36-37. Importantly, the Court
considered the evidence presented in Mr. Ngo’s case, and found that because the
State’s evidence was contested, this factor weighed in favor of finding harm. Ngo,
175 S.W.3d at 752. This is precisely the state of the evidence in Ms. Saenz’ trial –
the defense vigorously contested the State’s evidence at every turn with its own,
valid, and often uncontroverted, evidence. Accordingly, following the analysis set
out by Ngo, Ms. Saenz suffered actual harm in that her right to a fair and impartial
trial was violated.
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Six years after deciding Ngo, the Court of Criminal Appeals considered the
issue again in Cosio v. State. In that case, the Court found that the jury charge
allowed for a non-unanimous verdict, but held the error to be harmless because: (1)
the State did not emphasize the error in its closing arguments, and (2) the evidence
was such that a guilty verdict necessarily required unanimity. Cosio v. State, 353
S.W.3d 766 (Tex.Crim.App. 2011). The Court specifically compared the case to
Ngo, emphasizing that a prosecutor’s repetition of the error in his closing weighs
heavily in favor of finding harm. Id. at 777, n.75. Unlike here, the Court found
that the largely uncontested evidence would not have allowed the jury to convict
Cosio of one of the alleged charges while acquitting him of the others. Id. at 778.
In stark contrast to Cosio, in Ms. Saenz’ trial the State did emphasize the
error in closing argument, effectively lessening its burden of proof in the eyes of
the jury. Moreover, as noted, the evidence was fiercely and continually contested,
and was not so overwhelming that it precluded the jury from disagreeing about
whether or not Ms. Saenz murdered any one of the five alleged victims.
Legally sufficient is a far cry from “overwhelming.”
Despite the State’s lengthy recitations of evidence and arguments presented
at trial, the fact remains that Ms. Saenz has already shown this Court in her
previous briefing that ample evidence was presented to contradict the State’s
purported evidence, and that such evidence went uncontroverted in many cases.
5
Ms. Saenz concedes that this Court overruled her claim that the State’s evidence
was legally insufficient to support her conviction. However, such a ruling is a far
cry from holding that the evidence was “overwhelming” enough to preclude the
very real possibility that jurors disagreed about which of the five patients she
allegedly murdered.
As discussed thoroughly in Ms. Saenz’ briefs on original submission before
this Court, the defense countered the State’s evidence at every turn, and exposed
every speculation, hypothesis and loosely-connected circumstance. See Appellant’s
Brief, pp. 21-43. Again, in an effort to avoid repetitious briefing, Ms. Saenz directs
the Court’s attention to her previously submitted briefs for a thorough recitation of
the, at times unchallenged, defense, and the specific manner in which it countered
the State’s evidence.
In order to highlight the fallacy of the State’s argument, Ms. Saenz refers the
Court to the following specifics:
1. Ms. Saenz’ acquittals.
First, the jury acquitted Ms. Saenz of two counts of aggravated assault
against Graciela Casteneda and Carolyn Risinger – despite alleged eye-witness
testimony that Ms. Saenz personally injected Ms. Risinger with bleach, and despite
Ms. Casteneda having the highest level of 3-chlorotyrosine in her blood. See
Appellant’s Brief, p. 44; RR39:80, 85-87. Accordingly, it is clear that the same
6
evidence the State now calls “overwhelming” the jury found to be insufficient.
2. No evidence of chlorate entering the body.
Second, the State’s own evidence showed that none of the five deceased
patients’ dialysis lines contained chlorate (an indicator of the presence of bleach) at
the point where fluid enters the body. See Appellant’s Brief, p. 23. Only one
patient’s dialysis lines, those of Opal Few, contained chlorate in the actual blood
line. Id., p. 29. Even so, both the defense and the State witnesses agreed that Ms.
Few’s dialysis machine would have had to be turned off when the chlorate was
introduced – in other words, the evidence conclusively showed she was not
actively receiving dialysis treatment at the time the chlorate was introduced. Id., p.
30; RR 39:196;46:126-33;33;48:167-69.
3. Cause of death was a highly contested issue.
A significant portion of the evidence at trial centered around the cause of
death of each of the five patients. The State presented theories and hypotheses
about how bleach-induced death could be proven, while the defense presented
evidence of what did occur in each of the five patients. See Appellant’s Brief, pp.
21-43. Specifically, each of the five patients presented with serious illnesses
related to end-stage renal failure, all of which explain the cardiac arrests
experienced by these patients. Id. Moreover, in the cases of Garlin Kelley and
Cora Bryant, both of whom were treated for months after suffering a cardiac event
7
at the dialysis center, no examining doctor or nurse ever noted the known effects of
bleach poisoning. Id. at pp. 42-43; RR47:159-207;48:12-60.
Contested and controverted evidence is not “overwhelming” evidence.
The State’s analysis ignores the fact that the defense vigorously contested its
evidence with sound and credible evidence. The Almanza factors direct this Court
to consider, as one factor, “the state of the evidence, including contested issues and
the weight of the probative evidence.” It is evident from the sheer volume of
evidence, and the lengthy briefing already presented to this Court, that each
element of the capital murder charge was contested. The fact that the defense
presented enough competent evidence to counter each element that the State
brought forward necessarily precludes a finding that the evidence against Ms.
Saenz was overwhelming. See Ngo, 175 S.W.3d at 752; cf. Cosio, 353 S.W.3d 778.
Reliance on Motilla and Garcia is misplaced.
The only authority the State presents to this Court in support of its argument
are two Court of Criminal Appeals decisions – Motilla v. State and Garcia v. State.
See State’s Supplemental Brief, p. 5. Motilla is wholly inapplicable because it does
not address the Almanza standard of determining egregious harm. Instead, Motilla
considered harm caused by the non-constitutional error of the erroneous admission
of evidence, governed by Rule 44.2(b) of the Texas Rules of Appellate Procedure.
Motilla v. State, 78 S.W.3d 352, 357 (Tex.Crim.App. 2002).
8
The State relies on Garcia as support for its contention that “under Almanza,
where the evidence of the defendant’s guilt is overwhelming, the error may be
considered harmless.” See State’s Supplemental Brief, p. 5; Garcia v. State, 919
S.W.2d 370 (Tex.Crim.App. 1994). However, the State conspicuously omits from
its discussion that Court may only find a jury charge error harmless in the face of
alleged overwhelming evidence of guilt when the remaining Almanza factors are
weak or non-existent.
In Garcia, the complained-of error was the inclusion of a discrete phrase,
"intent or knowledge may be inferred by acts done or words spoken" rather than
lack of unanimity. Garcia, 919 S.W.2d 370, 396. Furthermore, there was no other
error in the charge, and no emphasis of the error by counsel. Id. The Court found
the jury charge error in that case harmless in light of these facts and in the face of
overwhelming – and uncontested – evidence of guilt. Id.
Accordingly, Garcia is readily distinguishable on the facts and inapplicable
to this case. More importantly, as argued above the State failed to acknowledge the
ample authority demonstrating that evidence of guilt is but one factor to consider
and weigh against the other three: (1) the entire jury charge as written; (2) the
arguments of counsel; and (3) any other relevant information found in the record as
a whole. The State’s argument fails because the manner in which Ms. Saenz’ right
to a unanimous verdict was undermined by the charge itself, the indictment, and
9
the prosecutor outweigh even legally sufficient evidence of guilt. Based on this
record, this Court must find that Ms. Saenz actually suffered harm to her right to a
fair and impartial trial, and her constitutional and statutory right to a unanimous
verdict.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Ms. Saenz respectfully
requests that this Court vacate her conviction and sentence, and remand to the trial
court for a new trial.
Respectfully submitted,
__/s/ Robert A. Morrow III___
ROBERT A. MORROW
SBN: 14542600
24 Waterway Ave., Suite 660
The Woodlands, Texas 77380
Tel. 281-379-6901
Fax 281-813-0321
Heather M. Lytle
SBN: 24046487
202 Travis Street, Suite 300
Houston, Texas 77002
Tel. 713-204-7060
Amy D. Martin
SBN: 24041402
202 Travis Street, Suite 300
Houston, Texas 77002
Tel. 713-320-3525
ATTORNEYS FOR APPELLANT
KIMBERLY CLARK SAENZ
10
CERTIFICATE OF COMPLIANCE
I certify that this brief complies with Texas Rule of Appellate Procedure 9.4.
It was prepared in 14-point Times New Roman font. It contains 2,303 words.
__/s/ Robert A. Morrow III___
ROBERT A. MORROW
CERTIFICATE OF SERVICE
This is to certify that on the 26th day of March, 2015, a true and correct copy
of the foregoing instrument was served upon the following counsel of record in
accordance with the Texas Rules of Appellate Procedure:
Art Bauereiss John G. Jasuta
Angelina Co. Dist. Atty. Ofc. David A. Schulman
Appellate Division PO Box 783
P.O. Box 908 Austin, Texas 78767
Lufkin, TX 75902-0908 Tel. 512-474-4747
Tel. 936-632-5090
__/s/ Robert A. Morrow III___
ROBERT A. MORROW
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