           IN THE COURT OF CRIMINAL APPEALS
                       OF TEXAS
                                       PD-0253-14

                            KIMBERLY SAENZ, Appellant

                                             v.

                                THE STATE OF TEXAS

                        ON DISCRETIONARY REVIEW
                    FROM THE FOURTH COURT OF APPEALS
                            ANGELINA COUNTY

       Womack, J., delivered the opinion of the Court, in which Keller, P.J., and
       Price, Johnson, Hervey, Cochran, and Alcala, JJ., joined. Keasler, J.,
       concurred in the judgment. Meyers, J., dissented.

       We granted review to consider whether a jury charge on capital murder under

Penal Code Section 19.03(a)(7) must require the jurors to agree as to the identities and the

number of the victims. We shall reverse the judgment of the court below and remand the

case to the Court of Appeals.

       The appellant was indicted for five counts of aggravated assault and one count of

capital murder. The first five counts of the indictment alleged aggravated assaults of five

patients of a dialysis clinic who suffered adverse episodes but did not die. The sixth count

charged her with capital murder by murdering more than one person during the same
                                                                                           2

criminal transaction or during different criminal transactions but pursuant to the same

scheme or course of conduct. The jury acquitted the appellant on two of the aggravated

assault charges. It found her guilty of three aggravated assaults and of capital murder. The

Court of Appeals affirmed the trial court’s judgment.1

       The appellant was charged with capital murder under Penal Code Section

19.03(a)(7), which reads:

       A person commits an offense if the person commits murder as defined
       under Section 19.02(b)(1) and … the person murders more than one person:
             (A) during the same criminal transaction; or
             (B) during different criminal transactions but the murders are
             committed pursuant to the same scheme or course of conduct.

The capital-murder language of the jury charge instructed jurors to determine if the

appellant “did intentionally or knowingly cause the death of more than one of the

following persons: Clara Strange, Thelma Metcalf, Garlin Kelley, Cora Bryant, or Opal

Few during the same criminal transactions or during different criminal transactions, but

the murders were committed pursuant to the same scheme or course of conduct, by

introducing sodium hypochlorite, commonly known as bleach, or other chlorinating agent

into the body’s bloodstream.” 2

       During closing arguments, the State told the jury, “The State has the burden of

proof to prove that the Defendant caused the death of at least two of the five victims. You



       1
           Saenz v. State, 421 S.W.3d 725 (Tex. App. – San Antonio 2014).
       2
           Emphasis added.
                                                                                                 3

don’t have to agree as to which two.” 3

       The appellant argued for the first time on appeal that the language in the jury

charge and the State’s closing argument allowed the jury to convict her of capital murder

without agreeing on which two or more of the five named individuals were murdered by

the appellant, violating the requirement that jury verdicts be unanimous.

                                  Unanimity in Capital Murder

       Texas law requires a unanimous jury verdict in all criminal cases.4 More

specifically, “the jury must be unanimous in finding every constituent element of the

charged offense in all criminal cases.” 5

       The capital-murder statute requires a predicate murder as defined under Section

19.02(b)(1) and any one of nine additional aggravating circumstances.6 “When an

indictment alleges differing methods of committing capital murder in the conjunctive, the

jury may properly be charged in the disjunctive.”7 “The unanimity requirement is not

violated by instructing the jury on alternate theories of committing the same offense, in


       3
           Emphasis added.
       4
           TEX . CODE CRIM . PRO . art. 36.29.
       5
        Jourdan v. State, 428 S.W.3d 86, 94 (Tex. Crim. App. 2014) (citing Pizzo v. State, 235
S.W.3d 711, 714 (Tex. Crim. App. 2007)).
       6
        TEX . PENAL CODE § 19.03(a); see also Graham v State, 19 S.W.3d 851, 853 (Tex. Crim.
App. 2000). Section 19.02(b)(1) defines the offense of murder as “intentionally or knowingly
caus[ing] the death of an individual.”
       7
         Martinez v. State, 129 S.W.3d 101, 103 (Tex. Crim. App. 2004) (citing Kitchens v.
State, 823 S.W.2d 256, 258 (Tex. Crim. App. 1991)).
                                                                                             4

contrast to instructing the jury on two separate offenses involving separate incidents.” 8 To

guarantee unanimity when the State is not required to elect between aggravating

circumstances, “the jury must be instructed that it must unanimously agree on one

incident of criminal conduct (or unit of prosecution), based on the evidence, that meets all

of the essential elements of the single charged offense beyond a reasonable doubt.” 9

       More recently, this Court stated that these holdings remain good law, and that “the

gravamen of capital murder is intentionally (or knowingly) causing a death, plus any one

of various different types of aggravating elements ….”10 We also clarified “that our

holding … applies equally to all alternate theories of capital murder contained within

[Penal Code] § 19.03, whether they are found in the same or different subsections, so long

as the same victim is alleged for the predicate murder.” 11

       The aggravating circumstance for a capital-murder prosecution under Section

19.03(a)(7), which is at issue in this case, is the “murder of more than one person during

the same criminal transaction or … pursuant to the same scheme or course of conduct.”




       8
           Id.
       9
           Cosio v. State, 353 S.W.3d 766, 776 (Tex. Crim. App. 2011).
       10
            Gardner v. State, 306 S.W.3d 274, 302 (Tex. Crim. App. 2009).
       11
         Gamboa v. State, 296 S.W.3d 574, 584 (Tex. Crim. App. 2009) (emphasis added). See
also Davis v. State, 313 S.W.3d 317, 342 (Tex. Crim. App. 2010) (“Nothing prohibits a single
capital murder from containing alternate underlying offenses that are the same statutory
offense but with different victims or different underlying methods of commission, so long
as the same victim is alleged with respect to the predicate murder.”) (emphasis added).
                                                                                                   5

As we stated in John Anthony Saenz v. State, “The commission of at least one murder,

then, which is in addition to the predicate murder, is the aggravating circumstance

required by Section 19.03(a)(7)(A).”12 Although that case dealt specifically with

subsection (A), we have held that the same interpretation applies to both subsections (A)

and (B) of Section 19.03(a)(7).13 Phrased another way, under both subsections the

allowable unit of prosecution is “the killing of more than one individual.” 14

       However, our previous case law regarding Section 19.03(a)(7) does not directly

address the issue presented today, which is in the context of jury unanimity.

       In the other Saenz case, John Saenz was convicted of three counts of capital

murder when he shot and killed three people during a single transaction. Each capital

murder count alleged a different victim as the predicate murder and alleged the killings of

the other two victims as aggravating circumstances.15 We held that only one of his capital-

murder convictions could be sustained because two murders must be shown to establish

capital murder under Section 19.03(a)(7)(A), and the same three murders could not be




       12
            166 S.W.3d 270, 273 (Tex. Crim. App. 2005) (emphasis added).
       13
          Ex parte Milner, 394 S.W.3d 502, 508 (Tex. Crim. App. 2013) (“for capital murder
under Section 19.07(a)(7)(B), the state must allege that at least two murders were committed: an
intentional murder under section 19.02(b)(1) and at least one additional murder as the
aggravating circumstance”).
       14
         Saenz, 166 S.W.3d at 273 (addressing Section 19.03(a)(7)(A)); Milner, 394 S.W.3d at
508 (addressing Section 19.03(a)(7)(B)).
       15
            Saenz, 166 S.W.3d at 271.
                                                                                           6

used to establish separate capital-murder convictions.16 However, there was no question

of whether the jury agreed he had committed all three murders — their original verdict

convicted him of all three in separate charges, affirmatively answering the question of

whether he had committed each of the separate murders. Each charge alleged a specific

victim of the predicate murder, aggravated by the other two.

       The jury charge before us today did not specify the killing of any one victim as the

predicate murder, and the jury was not required to specify which two or more of the five

alleged victims that they agreed the appellant had murdered.

       In Milner the applicant pleaded guilty to two counts of capital murder and one

count of murder after he shot and killed one person and attempted to kill two others. Each

of the attempted murders was charged as attempted capital murder, aggravated by the

death of the first victim in the same scheme and course of conduct.17 We held that only

one of the capital-murder convictions could be upheld, “[b]ecause each attempted capital

murder conviction under Penal Code §§ 19.03(a)(7)(B) and 15.01(b) [criminal attempt]

requires at least two victims not included as victims in other attempted capital murder

provisions under those same penal code sections.” 18 As in John William Saenz, there was

no fact question of whether the applicant committed all three attacks; he pleaded guilty to



       16
            Id. at 274.
       17
            Milner, 394 S.W.3d at 504.
       18
            Id. at 510.
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all three charges, including the attempted capital-murder charges that named a specific

victim of the predicate attempted murder.

       The language used in the jury charge that we consider today made it possible for

the jurors to convict without agreeing that any one particular person was murdered by the

appellant. Although the charge required the jury to unanimously agree that she killed at

least two of the five named victims, there was no requirement that the jurors agree on any

one specific murder, which would have served as the predicate murder. Six jurors could

have agreed she killed victims A, B, and C, while the other six agreed she killed victims

D and E. There is no way to know whether the unanimous verdict included agreement

regarding the identity of at least one of the victims.

       Without unanimous agreement regarding a predicate murder as defined under

Section 19.02(b)(1), which in this case could have been any one of the five people she

was alleged to have killed, there was no foundation from which to progress to a

conviction for capital murder, and the appellant’s right to a unanimous verdict was

violated. The Fourth Court of Appeals erred in holding that the jury charge was not

erroneous.

       Because the appellant did not object to the jury charge, the trial court’s error must

be analyzed for egregious harm under Almanza v. State.19 We therefore vacate the


       19
          686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on State’s motion for reh’g). See
also Cosio v. State, 353 S.W.3d 766, 777 (Tex. Crim. App. 2011) (“Because Cosio forfeited his
constitution-based jury charge claim [predicated on jury unanimity], he is not entitled to a harm
analysis under [TEX . R. APP . P.] Rule 44.2(a). But the charge error must still be reviewed for
                                                                                 8

judgment of the Court of Appeals and remand the case to that Court for further

proceedings not inconsistent with this opinion.


Delivered December 10, 2014.
Publish.




egregious harm under Almanza.”).
