                                                                              ACCEPTED
                                                                         04-12-00238-CR
                                                              FOURTH COURT OF APPEALS
                                                                   SAN ANTONIO, TEXAS
                                                                     3/9/2015 2:47:15 PM
                     No. 04-12-00238-CR                                    KEITH HOTTLE
                                                                                  CLERK
               IN THE COURT OF APPEALS
           FOR THE FOURTH JUDICIAL DISTRICT
               OF TEXAS, AT SAN ANTONIO    FILED IN
                                                   4th COURT OF APPEALS
                                                    SAN ANTONIO, TEXAS
                      Kimberly Saenz               3/9/2015 2:47:15 PM
                            Appellant                KEITH E. HOTTLE
                                                           Clerk
                                v.

                    The State of Texas
                            Appellee
    On Appeal from the 217th District Court of Angelina County
In Cause No. CR-28,665; the Honorable Barry Bryan, Judge Presiding


         State’s Supplemental Brief
                          Submitted by:

                        Art Bauereiss
              District Attorney for Angelina County
                     State Bar No. 01921800
              eMail: abauereiss@angelinacounty.net
                        Post Office Box 908
                       Lufkin, Texas 75901
                      (936) 632-5090 phone
                        (936) 637-2818 fax

                 Attorney for the State of Texas

        John G. Jasuta                     David A. Schulman
      Post Office Box 783                  Post Office Box 783
  Austin, Texas 78767-0783             Austin, Texas 78767-0783
   lawyer1@johnjasuta.com            zdrdavida@davidschulman.com
     Tel. 512-474-4747 x1                 Tel. 512-474-4747 x2
      Fax: 512-532-6282                    Fax: 512-532-6282
 State Bar Card No. 10592300          State Bar Card No. 17833400

                    Of Counsel on the Brief
          Oral Argument Conditionally Requested
                               Table of Contents


Index of Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                          ii

Identity of Parties and Counsel. . . . . . . . . . . . . . . . . . . . . . . . iv

Statement Regarding Oral Argument. . . . . . . . . . . . . . . . . . . . iv

Note About Abbreviations.. . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

Statement of Facts & Procedural History. . . . . . . . . . . . . . . .                                       1

Argument & Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . .                              3

      I. Appellant Was “Caught in the Act.”. . . . . . . . . . . . . . .                                     5

      II. Appellant’s Statements. . . . . . . . . . . . . . . . . . . . . . .                               11

      III. Appellant’s Opportunities to Commit the Offense.. .                                              14

      IV. Substances Involved. . . . . . . . . . . . . . . . . . . . . . . .                                24

             A - Not Heparin. . . . . . . . . . . . . . . . .       .   .   .   .   .   .   .   .   .   .   24
             B - Not Renalin. . . . . . . . . . . . . . . . .       .   .   .   .   .   .   .   .   .   .   25
             C - Not Bleach in Water. . . . . . . . . . .           .   .   .   .   .   .   .   .   .   .   26
             D - Not Bleach in Dialysis Machines.                   .   .   .   .   .   .   .   .   .   .   28
             E - Not Stress of Dialysis Treatment..                 .   .   .   .   .   .   .   .   .   .   29

Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                         29

Prayer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                     31

Certificate of Compliance and Delivery. . . . . . . . . . . . . . . . .                                     33


                                              i
                       Index of Authorities


Texas Cases:

Allen v. State, 253 S.W.3d 260 (Tex.Cr.App. 2008). . . . . . . . . 3

Almanza v. State, 686 S.W.2d 157 (Tex.Cr.App. 1985). . . . 2-5

Barrios v. State, 283 S.W.3d 348 (Tex.Cr.App. 2009). . . . . . . 3

Cosio v. State, 353 S.W.3d 766 (Tex.Cr.App. 2011).. . . . . . . . 4

Garcia v. State, 919 S.W.2d 370 (Tex.Cr.App. 1994). . . . . . . 5

Motilla v. State, 78 S.W.3d 352 (Tex.Cr.App. 2002). . . . . . . . 5

Ngo v. State, 175 S.W.3d 738 (Tex.Cr.App. 2005). . . . . . . . . . 3

Reeves v. State, 420 S.W.3d 812 (Tex.Cr.App. 2013).. . . . . . . 4

Saenz v. State, 421 S.W.3d 725
   (Tex.App. - San Antonio 2014) . . . . . . . . . . . . . . . . . . . . . 2

Saenz v. State, _____ S.W.3d _____
   (Tex.Cr.App. PD-0253-14; December 10, 2014). . . . . . . . . 2

Villarreal v. State, _____ S.W.3d _____
     (Tex.Cr.App. PD-0332-13; February 4, 2014). . . . . . . . . . 3

Warner v. State, 245 S.W.3d 458 (Tex.Cr.App. 2008). . . . . . . 4




                                     ii
              Identity of Parties and Counsel

    The parties have not changed since original submission.

          Statement Regarding Oral Argument

    The State requests oral argument only if Appellant requests

and is granted oral argument.

                 Note About Abbreviations

    In this brief, the State refers to the Clerk’s Record as “CR”

followed by the appropriate page: e.g., “(CR 123).” The State refers

to the Reporter’s Record as “RR” followed by the volume, page and

line numbers: e.g., “(RR Vol. 3, P. 47, L. 12-15).




                                 iii
                       No. 04-12-00238-CR
                IN THE COURT OF APPEALS
            FOR THE FOURTH JUDICIAL DISTRICT
                OF TEXAS, AT SAN ANTONIO
                        Kimberly Saenz
                             Appellant
                                 v.

                      The State of Texas
                             Appellee
     On Appeal from the 217th District Court of Angelina County
 In Cause No. CR-28,665; the Honorable Barry Bryan, Judge Presiding


           State’s Supplemental Brief
TO THE HONORABLE FOURTH COURT” OF APPEALS:

    COMES NOW, the State of Texas, by and through her duly

elected District Attorney, Appellee in the above styled and

numbered cause, and respectfully files the State’s Supplemental

Brief, and would show the Court as follows:

        Statement of Facts & Procedural History

    The events giving rise to the instant prosecution occurred in

the DaVita HealthCare Partners, Inc. (“DaVita”) dialysis facility in

Lufkin, Texas, during April 2008 (RR Vol. 37, P. 25). In that


                                 1
month, ten patients either died following cardiac arrest or

developed symptoms of illness while undergoing dialysis. Appellant

was indicted and charged with one count of capital murder and

five counts of aggravated assault (CR Vol. 1, PP. 75-77).

    On original submission the Court affirmed Appellant’s

conviction. Saenz v. State, 421 S.W.3d 725 (Tex.App. - San

Antonio 2014). Appellant sought and was granted discretionary

review, and, ultimately, the Court of Criminal Appeals reversed the

conviction, finding that this Court erred in holding that the jury

charge was not erroneous:

          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.

Saenz v. State, _____ S.W.3d _____ (Tex.Cr.App. PD-0253-14;

December 10, 2014)(“Saenz II”), slip op. at 7. The Court held,

however, that because Appellant had not objected to the jury

charge, the trial court’s error must be analyzed for egregious harm

under Almanza v. State, 686 S.W.2d 157 (Tex.Cr.App. 1985).



                                       2
The case was remanded to this Court for that purpose. Saenz II,

slip op. at 7-8.

                   Argument & Authorities

     Under Almanza, the degree of harm required for reversal

depends on whether the error was preserved in the trial court.

Villarreal v. State, _____ S.W.3d _____ (Tex.Cr.App. PD-0332-13;

February 4, 2014); Ngo v. State, 175 S.W.3d 738, 743

(Tex.Cr.App. 2005); Almanza, 686 S.W.2d at 171. Where, as here,

the defendant did not raise a timely objection to the jury

instructions, reversal is required only if the error was fundamental

in the sense that it was so egregious and created such harm that

the defendant was deprived of a fair and impartial trial. See

Almanza, 686 S.W.2d at 171; see also Barrios v. State, 283

S.W.3d 348, 350 (Tex.Cr.App. 2009).

     Charge error is egregiously harmful if it affects the very basis

of the case, deprives the defendant of a valuable right, or vitally

affects a defensive theory. See Barrios, 283 S.W.3d at 350; see

also Allen v. State, 253 S.W.3d 260, 264 (Tex.Cr.App. 2008).

                                 3
Egregious harm is a “high and difficult standard” to meet, and

such a determination must be “borne out by the trial record.”

Reeves v. State, 420 S.W.3d 812, 816 (Tex.Cr.App. 2013). On

appeal, neither party bears the burden of showing harm or a lack

thereof under this standard. Warner v. State, 245 S.W.3d 458,

464 (Tex.Cr.App. 2008).

    A reviewing court reverses a conviction when it has found that

the defendant suffered “actual rather than theoretical harm.”

Cosio v. State, 353 S.W.3d 766, 777 (Tex.Cr.App. 2011). In

examining the record to determine whether charge error has

resulted in egregious harm to a defendant, the Court should

consider:

      Ø the entirety of the jury charge;

      Ù the state of the evidence, including the contested issues
        and weight of probative evidence;

      Ú the arguments of counsel; and

      Û any other relevant information revealed by the trial
        record as a whole.

Almanza, 686 S.W.2d at 171.

                               4
    The presence of overwhelming evidence supporting the finding

of guilt can be a factor in the evaluation of harmless error. Motilla

v. State, 78 S.W.3d 352, 357 (Tex.Cr.App. 2002). Additionally,

under Almanza, where the evidence of the defendant’s guilt is

overwhelming, the error may be considered harmless. Garcia v.

State, 919 S.W.2d 370 (Tex.Cr.App. 1994). In the instant case,

the evidence establishing Appellant’s criminal responsibility for the

deaths of five victims through the unique manner and means of

injecting bleach was overwhelming.

             I. Appellant Was “Caught in the Act.”

    The events giving rise to the instant prosecution occurred in

the DaVita dialysis facility in Lufkin, Texas, during April 2008 (RR

Vol. 37, P. 25). On April 28, 2008, the clinical coordinator for the

DaVita dialysis facility was overseeing the scheduling of patients

and employees after several adverse events to dialysis patients had

occurred throughout that month (RR Vol. 37, PP. 16-25). She

reassigned Appellant (a licensed vocational nurse or “LVN”




                                 5
employed by DaVita) to work as a patient care technician (“PCT”)1

rather than as a medications nurse (RR Vol. 37, P. 28). Appellant

was upset by the work reassignment and got teary-eyed (RR Vol.

37, PP. 30-31).

     Appellant preferred to be the medications nurse rather than

a PCT, which involved the more stressful work of direct patient

care (RR Vol. 34, P. 64; Vol. 36, P. 129). She had previously

complained and was looking for another job (RR Vol. 34, PP. 60,

63; RR Vol. 37, P. 171). She thought it was unfair that other LVNs

got to give medications and she always had to take patients (RR

Vol. 36, P. 54).     Appellant also had complained about several

specific patients (Metcalf, Strange, Few, Oates, Kelley, Rhone and

Risinger) and didn’t appear happy at work (RR Vol. 34, P. 99; Vol.

37, PP. 171, 203; Vol. 44, P. 14).




 1
   PCT’s do not have a medical license and can’t do certain procedures without
delegation by the medical director (RR Vol. 34, P. 166) The PCT creates the
morning bleach solution used for cleaning up surfaces (RR Vol. 34, P. 167)

                                      6
      Linda Hall2 and Lurlene Hamilton3 (dialysis patients at the

DaVita facility in Lufkin) saw Appellant obtain a syringe from the

nurse’s station,4 pour bleach from a bottle5 into a container, slide

the container holding the bleach down the counter and set it on

the floor, squat down to draw bleach from the container into the

syringe, return the container back to the nurse’s station, walk over

to dialysis patient Marva Rhone, look around, push the syringe

into the port hole for Rhone’s medication and inject the bleach (RR

Vol. 33, PP. 113-117, 191-237; Vol. 35, PP. 202-204; Vol. 36, PP.

24-25). Hall was clear that Appellant did not inject the syringe



 2
   Hall testified at trial. In addition, a deposition of Hall and a written statement
she made to the Board of Nurse Examiners were admitted into evidence (RR Vol.
33, P. 146; State’s Exhibit No. 67; Deposition Exhibit No. 7).
 3
   Hamilton did not testify at trial because she had died. However, her recorded
deposition was admitted into evidence (RR Vol. 33, P. 180); State’s Exhibit No. 68)
A transcript of that deposition also was admitted into evidence, along with an
earlier unsuccessful deposition (RR Vol. 34, P. 13; State’s Exhibit No. 69; Defense
Exhibits Nos. 4-5) Additionally, a written statement made by Hamilton was
admitted into evidence (RR Vol. 33, P. 200; State’s Exhibit No. 69-2 or Deposition
Exhibit No. 2).
 4
   For a photo of the nurse’s station, see State’s Exhibit No. 65 (RR Vol. 33, P.
111).
 5
   For a photo of a bleach bottle used in the facility, see State’s Exhibit No. 66
(RR Vol. 33, P. 111).

                                         7
into Rhone’s saline bag; she injected it into Rhone’s IV tubing,

where medication is received (RR Vol. 33, PP. 134, 137).

       Appellant then placed the syringe into a Sharps container

(used for the disposal of syringes)6 located at another patient’s

dialysis machine rather than the container at Rhone’s machine

(RR Vol. 35, P. 209; State’s Exhibit No. 67, PP. 31, 36, 40).

Hamilton also said she saw Appellant use a syringe to inject

bleach into the IV line for dialysis patient Carolyn Risinger (RR

Vol. 33, P. 191).

       After witnessing the event, Hall told a DaVita employee, “I saw

that nurse putting something out of the bleach pan in Ms. Rhone’s

IV” and “It scared me to death” (RR Vol. 33, P. 116). She also told

the employee, “Please don’t let her touch me no more” (RR Vol. 33,

P. 117). Hall was scared and upset (RR Vol. 35, P. 203). Hamilton

was so upset that she said, “She is going to kill us all. She is going

to kill us all” (RR Vol. 33, PP. 195-196). Hamilton was crying and

scared when she reported what she saw (RR Vol. 35, P. 200).


 6
     See State’s Exhibit No. 82 (RR Vol. 34, PP. 163-165).

                                        8
     The DaVita clinical coordinator met with Hamilton and Hall,

who were excited and upset (RR Vol. 376, P. 32). She listened to

their description of Appellant’s actions and recovered the Sharps

container (RR Vol. 37, P. 35). She then confronted Appellant, who

denied giving anyone any medication, but admitted drawing up a

bleach mixture on the floor (RR Vol. 37, P. 35). The coordinator

sent Appellant home for the day (RR Vol. 37, P. 39), then opened

the Sharps container, took out a syringe, squirted out some liquid

onto a bleach testing strip and watched it turn purple, indicating

the presence of bleach (RR Vol. 37, P. 42).

     The coordinator then got another bleach testing strip and

found that the inside of the syringe tested positive for bleach (RR

Vol. 37, P. 43; Vol. 41, P. 35; Vol. 42, PP. 15-17). She testified

that, after two syringes tested positive for bleach, “My heart fell. I

was thinking, oh, goodness” (RR Vol. 37, P. 43).

     Another employee, testing syringes in another Sharps

container, also had two syringes test positive for bleach (RR Vol.

37, P. 43). Subsequent lab testing confirmed the presence of

                                  9
bleach in three of the needles (RR Vol. 38, PP. 40-43; State’s

Exhibit Nos. 11A, 12A 15A). The investigating officer could smell

bleach on the syringes (RR Vol. 38, P. 50).

        On April 29, 2008, all DaVita employees were supposed to

attend a meeting (RR Vol. 36, P. 141). Appellant was absent and

told a PCT, when called, that she was not coming to the meeting

even though she could lose her job (RR Vol. 36, P. 142). The PCT

later met with Appellant, who was crying and didn’t recognize the

PCT at first (RR Vol. 36, P. 143). The PCT testified, “She told me

that she didn’t kill those people,” and seemed like she had lost all

the hope in the world (RR Vol. 36, PP. 144,176).

        Subsequent testing by the FDA confirmed the presence of

bleach in syringes connected to certain patients. The agency then

seized the DaVita facility (RR Vol. 39, PP. 137-145; Vol. 40, PP. 9-

19).7




 7
   For a chart listing seized syringes, the related Sharps container and the FDA
lab results, see State’s Exhibit No. 195 (RR Vol. 41, P. 93-95).

                                      10
    Subsequent forensic examination of a home computer

(containing Appellant’s tax returns, letters and e-mails) seized

from Appellant showed that, on April 2, 2008, there had been a

search through a Yahoo search engine for “bleach poisoning,”

leading to the location of an article on chlorine poisoning (RR Vol.

42, PP. 61-64). In addition, the examination showed searches in

the first week of May 2008 for “bleach given during dialysis” and

“can bleach be detected in dialysis lines” (RR Vol. 42, P. 65).

                   II. Appellant’s Statements

    Appellant’s recorded interview on April 29, 2008, at the

Lufkin Police Department, and a transcript of that interview, was

admitted into evidence (State’s Exhibits 86 & 86A). During the

interview, Appellant admitted taking medication for depression,

and having started the medication six weeks earlier (RR Vol. 36,

P. 197). Her interview was increasingly impaired, disjointed and

irrational (RR Vol. 38, PP. 35-36).

    During the interview, Appellant speculated that bleach in the

machines was responsible for the problems at the DaVita facility

                                11
(RR Vol. 36, P. 188). Referring to how she rushed the delivery of

medications, she also said, “I just have a habit of pushing the

bleach ‘cause I just – I don’t know when it was last done, and I

don’t want to kill my patients” (RR Vol. 36, P. 189). As to the

allegation that she injected something into Rhone’s port, she

claimed she only gave Rhone some saline solution (RR Vol. 36, PP.

199-200, 208).

     Appellant explained the procedure for creating a bleach

solution (RR Vol. 36, P. 201), and seemingly acknowledged that

there was no reason to use a syringe to draw bleach (RR Vol. 36,

P. 202). Then she claimed she sometimes used a syringe when the

measuring cups were not available (RR Vol. 36, P. 203).8

     Appellant’s descriptions then become confusing (RR Vol. 36,

PP. 203-206). She did deny going over to any patients on April 28,



 8
   A PCT with 20 years of experience at DaVita said she had never seen appellant
use a syringe to measure out bleach to prepare the diluted solution and would
have reported it to her superiors if she had seen it, because they never used
syringes in that way (RR Vol. 36, PP. 56-57). Other employees also had never seen
anyone at DaVita use a syringe to create the diluted bleach solution. (RR Vol. 36,
P. 128; 37, P. 172) At a team meeting, employees were told to use a measuring
cup. (RR Vol. 36, P. 13).

                                       12
2008, with a syringe because she was not doing any medications

that day (RR Vol. 36, P. 207).

     On March 31, 2009, Appellant testified before a grand jury

(RR Vol. 37, P. 216). A recording and transcript of that testimony

was admitted into evidence (RR Vol. 37, P. 216; State’s Exhibits 93

& 93A).

     During her grand jury testimony, Appellant explained that on

April 28, 2008, she was flushing the dialysis machine with saline

because of clotting (RR Vol. 37, P. 220). She explained that she

drew up bleach in a syringe because supervisors were watching

and she wanted to do everything by the book (RR Vol. 37, P. 221).

She also said measuring cups were unavailable (RR Vol. 37, P.

224).9    She claimed she poured bleach into a cap of the bottle,

drew up bleach with the syringe and put the syringe in a Sharps

container afterward (RR Vol. 37, PP. 225-226). Appellant did not

testify at trial.

 9
      The investigating officer testified to seeing measuring cups in the DaVita
facility on April 28, 2008 (RR Vol. 38, P. 63). A PCT testified she couldn’t
remember the facility ever running out of measuring cups for bleach. (RR Vol. 43,
P. 59).

                                      13
       III. Appellant’s Opportunities to Commit the Offense

        The indictment named ten (10) victims of bleach injections.

Five died and five were injured.10 Appellant was working on every

date that involved a bleach-related injection to a patient.

        After reviewing all the records and testing results, a physician

and specialist in toxicology with the Center for Disease Control

concluded that the deaths and/or injuries of Rhone, Risinger,

Oates, Castaneda, Bradley, Few, Kelley, Metcalf, Strange and

Bryant were all caused by the injection of bleach into a dialysis

line or port (RR Vol. 42, PP. 164-168). The following information

details those events for each victim.

                                  April 1, 2008

        Clara Strange. Strange used a central venous catheter
        for dialysis (RR Vol. 42, P. 107).11 A PCT observed that
        appellant was assigned to watch Strange while he was on
        a break (RR Vol. 36, P. 119). The PCT returned from the


 10
     For a calendar listing the names of the patients who suffered from bleach
injections and the dates of those events, see State’s Exhibit No. 87 (RR Vol. 70).
For a calendar matching the dates of the bleach injections and appellant’s
scheduled working days, see State’s Exhibit No. 101 (RR Vol. 38, P. 64).
 11
      For details regarding Ms. Strange’s dialysis treatment, see State’s Exhibit No.
32.

                                         14
       break and found Strange was unresponsive and not
       breathing. Strange was transported to a hospital (RR Vol.
       36, P. 120; State’s Exhibit No. 27). A physician and
       specialist in toxicology with the Center for Disease
       Control concluded she died from injection of bleach into
       a dialysis line or port (RR Vol. 42, PP. 164-168).12

       Thelma Metcalf. Metcalf went to the DaVita facility for
       dialysis (RR Vol. 35, P. 186).13 She used a central
       venous catheter (RR Vol. 42, P. 107). A PCT observed
       that Metcalf became unresponsive shortly after Strange
       had coded (RR Vol. 36, P. 121). Appellant was the PCT
       assigned to Metcalf (RR Vol. 36, P. 121). An LVN saw
       Appellant turn down Metcalf’s blood-flow rate (RR Vol.
       37, P. 170). A person can reduce the likelihood of an
       alarm going off by turning down the blood-flow rate on
       the machine (RR Vol. 37, P. 206).

            An employee of DaVita told Appellant to open an
       airway for Metcalf when doing CPR compression (RR Vol.
       40, P. 60). When Appellant didn’t respond, the employee
       took the air bag from her and took over providing air (RR
       Vol. 40, P. 61).      Metcalf was transported to the
       emergency room of a hospital by ambulance (State’s
       Exhibit No. 24). Subsequent testing of the blood tubing
       used in Metcalf’s dialysis on April 1 showed positive for
       the presence of bleach (RR Vol. 39, PP. 151-152).14 DNA
       testing confirmed the tubing as coming from Metcalf (RR
       Vol. 36, P. 76; Vol. 38, P. 62; State’s Exhibit No. 84).

 12
     For the chart listing the results of testing for the presence of bleach in
Strange’s blood tubing, see State’s Exhibit No. 163.
 13
      For details regarding her dialysis treatment, see State’s Exhibit No. 33.
 14
    For a color-coded diagram showing the location of bleach in that tubing, see
State’s Exhibit No. 160 (RR Vol. 39, P. 134).

                                         15
           Based on a review of DaVita records for Metcalf from
      her dialysis, a medical officer from the Center for Disease
      Control concluded that something caused her blood
      pressure to fall significantly near the time Appellant was
      charted as being near Metcalf (RR Vol. 42, PP. 111-112).
      Metcalf became unresponsive, stopped breathing and
      had no pulse; CPR was started and someone called 911
      (RR Vol. 42, P. 113). A physician and specialist in
      toxicology with the Center for Disease Control concluded
      Metcalf died from injection of bleach into a dialysis line
      or port (RR Vol. 42, PP. 164-68)

                              April 16, 2008

      Graciela Castaneda. Ms. Castaneda went to the DaVita
      facility for dialysis (RR Vol. 35, PP. 40-41).15 While
      receiving treatment, she lost consciousness and was
      transported to a hospital (RR Vol. 35, PP. 40-41; State’s
      Exhibit No. 25). Ms. Castenada had heart problems and
      needed oxygen (RR Vol. 35, PP. 63-64). Her ongoing
      illnesses had impacted her memory and mental
      functioning (RR Vol. 38, PP. 148-149).

           Subsequent testing of a plasma sample from
      Castaneda was positive for the high level of
      chlorotyrosine, confirming exposure to bleach in the
      blood stream (RR Vol. 39, PP. 85-87; Vol. 42, P. 149).
      However, testing for her blood tubes were inconclusive
      for the presence of bleach (RR Vol. 39, P. 153).16



 15
    For details regarding Ms. Cstaneda’s dialysis treatment, see State’s Exhibit
No. 34.
 16
     For a color-coded diagram showing the results of testing on Castaneda’s
tubing, see State’s Exhibit No. 158 (RR Vol. 39, P. 134).

                                      16
           Castaneda’s blood work showed elevated LDH,
       suggesting bleach had been injected (RR Vol. 42, PP.
       123-124; State’s Exhibit No. 227). A physician and
       specialist in toxicology with the Center for Disease
       Control concluded she was injured by an injection of
       bleach into her dialysis tubing (RR Vol. 42, PP. 164-168).

            Castaneda would chew gum during dialysis (RR Vol.
       44, P. 196). Defense experts (a nephrologist and forensic
       pathologist) opined that Castaneda choked on her gum
       (RR Vol. 47, P. 100; 48, PP. 35-36).

       Garlin Kelley. Mr. Kelley went to the DaVita facility for
       dialysis (RR Vol. 33, P. 170; Vol. 335, P. 120).17 After
       being started on dialysis, he was doing fine (RR Vol. 36,
       P. 81). Appellant was his medicine nurse (RR Vol. 36, P.
       82). A PCT heard Kelley’s machine alarm (RR Vol. 36, P.
       84), and saw Appellant about to restart his dialysis
       machine but told her to wait because Kelley was “just
       laying out. His eyes were hazed” (RR Vol. 36, P. 86).

            A PCT and RN saw an unusual clot in Kelley’s
       arterial chamber (RR Vol. 35, P. 124; Vol. 36, PP. 87-88).
       Kelley had a cardiac arrest and was taken to a hospital,
       but never regained consciousness (RR Vol. 33, P. 173;
       State’s Exhibit No. 22).

            Subsequent testing of a plasma sample from Kelley
       was positive for the high level of chlorotyrosine,
       confirming exposure to bleach in the blood stream (RR
       Vol. 39, PP. 80-81, 84; Vol. 42, P. 149). Subsequent
       testing of the blood tubing for Kelley and an attached


 17
      For details regarding Mr. Kelley’s dialysis treatment, see State’s Exhibit No.
35.

                                         17
       syringe tested positive for the presence of bleach and
       chlorate (RR Vol. 39, PP. 154-155).18 Subsequent DNA
       testing confirmed the blood tubing came from Kelley (RR
       Vol. 36, P. 76; Vol. 38, P. 62; State’s Exhibit No. 84). A
       physician and specialist in toxicology with the Center for
       Disease Control concluded Kelley died from injection of
       bleach into a dialysis line or port (RR Vol. 42, PP. 164-
       168).

                                 April 22, 2008

       Cora Bryant. Bryant went to DaVita facility for dialysis
       (RR Vol. 35, P. 190).19 Everything seemed fine until her
       machine alarmed (RR Vol. 37, P. 161). A LVN saw
       Appellant trying to reset Bryant’s machine and heard
       Bryant asking Appellant what medication was being
       given (RR Vol. 37, PP. 163, 165). Bryant then had a
       cardiac arrest, which meant something had to have been
       delivered to her (RR Vol. 37, PP. 165, 167).

            The medical director had not expected her to die on
       dialysis, even though she had several medical issues (RR
       Vol. 38, PP. 152-153). Bryant was transported to the
       emergency room of a hospital by ambulance (State’s
       Exhibit No. 23).

            A dialysis machine will typically alarm if something
       is injected, such as medication (RR Vol. 37, P. 205). A
       person can reduce the likelihood of an alarm going off by
       turning down the blood-flow rate on the machine (RR

 18
    For a color-coded diagram showing the location of bleach in that tubing, see
State’s Exhibit No. 161 (RR Vol. 39, P. 134).
 19
      For details regarding Ms. Bryant’s dialysis treatment, see State’s Exhibit No.
36.

                                         18
         Vol. 37, P. 206). A LVN saw Appellant turn down
         Bryant’s blood-flow rate (RR Vol. 376, P. 167).

             Subsequent testing of a plasma sample from Bryant
         was positive for chlorotyrosine, confirming exposure to
         bleach in the blood stream (RR Vol. 39, PP. 84-88; Vol.
         42, P. 149).20 Her blood work showed elevated LDH,
         suggesting bleach had been injected (RR Vol. 42, PP.
         123-124; State’s Exhibit No. 227).21

         Subsequent DNA testing confirmed the blood tubing
         came from Bryant (RR Vol. 36, P. 76; Vol. 38, P. 62;
         State’s Exhibit No. 84). A physician and specialist in
         toxicology with the Center for Disease Control concluded
         she died from injection of bleach into a dialysis line or
         port (RR Vol. 42, PP. 164-168).

                                  April 23, 2008

         Marie Bradley. Bradley went to the DaVita facility for
         dialysis (RR Vol. 35, P. 13).22 While receiving treatment,
         she had an event and woke up in the hospital three and
         a half days later (RR Vol. 35, P. 13). Bradley had no
         memory of what happened to her (RR Vol. 35, P. 33).
         She was transported to an emergency room of a hospital
         by ambulance (State’s Exhibit No. 21). She recovered
         and was doing well at the time of trial (RR Vol. 38, PP.
         149-150).

 20
    Oralia Torres was receiving dialysis only one chair away from Bryant on April
22, 2008. Blood testing on Torres was negative for chlortyrosine, suggesting that
Bryant got something different during dialysis (RR Vol. 42, PP. 162-164).
  21
    For the chart listing the results of testing for the presence of bleach in
Bryant’s blood tubing, see State’s Exhibit No. 164.
 22
       For details regarding Bradley’s dialysis treatment, see State’s Exhibit No. 37.

                                          19
           Based on a review of DaVita records for Bradley
      from her dialysis, a medical officer from the Center for
      Disease Control concluded her blood pressure dropped
      significantly without any real change in her heart rate or
      blood flow during the time that Appellant charted
      observing her (RR Vol. 42, PP. 113-114). Subsequent
      testing of a syringe labeled for delivery of the drug
      Zemplar to Bradley on April 23 tested positive for the
      presence of bleach (RR Vol. 39, PP. 143-144). Her blood
      work showed elevated LDH, suggesting bleach had been
      injected (RR Vol. 42, PP. 123-124; State’s Exhibit No.
      227). Subsequent testing of blood tested positive for
      chlorotyrosine (RR Vol. 42, P. 149). A physician and
      specialist in toxicology with the Center for Disease
      Control concluded she was injured by an injection of
      bleach into a dialysis line or port (RR Vol. 42, PP. 164-
      168).

                               April 26, 2008

      Opal Few. Few went to the DaVita facility for dialysis (RR
      Vol. 36, P. 45).23 She used a central venous catheter (RR
      Vol. 42, P. 107). The medical director said she was lively
      and full of energy despite her age and medical issues (RR
      Vol. 38, PP. 153-154). However, she began having
      problems within minutes of being put on dialysis (RR
      Vol. 35, P. 117).

          Ms. Few was unresponsive, didn’t have a heartbeat
      and was not breathing (RR Vol. 35, P. 118). A PCT
      observed that Appellant didn’t seem to care about Few’s
      condition (RR Vol. 36, P. 125). Few was transported to
      an emergency room by ambulance (State’s Exhibit No.


23
     For details regarding Few’s dialysis treatment, see State’s Exhibit No. 38.

                                       20
       20). A registered nurse recalled asking Appellant to give
       Few her medications just before the problems began (RR
       Vol. 35, P. 118). Appellant admitted to the nurse that
       she gave Few the medicine Zemplar but didn’t document
       it on the computer until after being told to do so (RR Vol.
       35, PP. 119, 178).

            Subsequent testing of a plasma sample from Few
       was positive for chlorotyrosine, confirming exposure to
       bleach in the blood stream (RR Vol. 39, P. 87).
       Subsequent testing of a syringe labeled for delivery of the
       drug Zemplar to Few on April 26, 2008, was positive for
       the presence of bleach (RR Vol. 39, P. 143). Subsequent
       testing of the blood tubing for Few used on April 26,
       2008, was positive for the presence of bleach (RR Vol. 39,
       PP. 145-146).24

            Punctures in the blood tubing for Few were
       consistent with the use of a syringe with a 3-pointed tip
       (RR Vol. 40, PP. 36-37). Subsequent DNA testing
       confirmed the blood tubing came from Few (RR Vol. 36,
       P. 76; Vol. 38, P. 62; State’s Exhibit No. 84). A physician
       and specialist in toxicology with the Center for Disease
       Control concluded she died from injection of bleach into
       a dialysis line or port (RR Vol. 42, PP. 164-168).

       Debra Oates. Oates went to the DaVita facility for
       dialysis (RR Vol. 35, P. 78).25 A registered nurse (“RN”)
       saw Appellant administer something into Oates’ blood
       lines and then drop a syringe into a Sharps container
       (RR Vol. 35, P. 180).

 24
    For a color-coded diagram showing the location of bleach in that tubing, see
State’s Exhibit No. 159 (RR Vol. 39, P. 134).
 25
      For details regarding Oates’ dialysis treatment, see State’s Exhibit No. 39.

                                         21
     Oates saw Appellant just before she started having
problems, had a funny taste in her mouth and asked
appellant, “What did you give me?” (RR Vol. 35, P. 88-
93). Oates then became sick, began bleeding and had
the sensation her bones were being crushed (RR Vol. 35,
P. 79). She also had chest pain and was unable to
breath (RR Vol. 35, P. 80). Ms. Oates also had signs of
an anxiety attack, including a rapid heartbeat and
sweating. She said she didn’t feel right and that
something was going on (RR Vol. 35, P. 112).

     Oates also complained of nausea and vomited (RR
Vol. 35, P. 113; Vol. 36, PP. 122-123). Her blood
pressure dropped significantly and she was “not feeling
good.” (RR Vol. 42, PP. 114-115). Oates was taken to a
hospital by ambulance (RR Vol. 35, PP. 79, 113; State’s
Exhibit No. 26). She recovered and was doing relatively
well at the time of trial (RR Vol. 38, PP. 147-148).

     Subsequent testing of a plasma sample from Oates
was positive for a high level of chlorotyrosine, confirming
exposure to bleach in the blood stream (RR Vol. 39, PP.
81-82; Vol. 42, P. 149). Her blood work showed elevated
LDH, suggesting bleach had been injected (RR Vol. 42,
PP. 123-124; State’s Exhibit No. 227). A physician and
specialist in toxicology with the Center for Disease
Control concluded she was injured by an injection of
bleach into her dialysis line or port (RR Vol. 42, PP. 164-
168).




                            22
                                   April 28, 2008

         Marva Rhone. 26 A PCT put Rhone on dialysis on April
         28, 2008 (RR Vol. 34, P. 49).27 Before leaving for a break,
         the PCT observed that Rhone was doing fine (RR Vol. 34,
         P. 50). Hall and Hamilton then observed Appellant inject
         bleach into a port on Rhone’s dialysis machine (see
         supra). Upon returning from break, the PCT noticed
         Rhone’s blood pressure was dropping, that she appeared
         to squirm and looked uncomfortable (RR Vol. 34, P. 52).

              Ms. Rhone became nauseated, began throwing up,
         became weak, had slurred speech and could hardly talk
         (RR Vol. 33, PP. 154-155; Vol. 35, P. 205). She reported
         pain along her ribs (RR Vol. 34, P. 56). Rhone went to a
         hospital for blood work (RR Vol. 33, P. 156), which
         showed elevated potassium and LDH, suggesting bleach
         had been injected (RR Vol. 42, PP. 123-124; State’s
         Exhibit No. 227).28 A physician and specialist in
         toxicology with the Center for Disease Control concluded
         she was injured by an injection of bleach into her
         dialysis line or port (RR Vol. 42, PP. 164-168).

         Carolyn Risinger. During dialysis,29 Risinger became
         sick (RR Vol. 35, P. 205). Hamilton observed Appellant
         inject bleach into a port on Risinger’s dialysis machine
         (see supra). Ms. Risinger was reclined, given a cloth on

  26
     Rhone did not testify at trial because she died in 2011 after a kidney
transplant (RR Vol. 33, P. 160; Vol. 38, PP. 144-145).
 27
       For details regarding Rhone’s dialysis treatment, see State’s Exhibit No. 30.
  28
    For the chart listing the results of testing for the presence of bleach in
Rhone’s blood tubing, see State’s Exhibit No. 162 (RR Vol. 39, P. 133).
 29
       For details regarding Risinger’s dialysis treatment, see State’s Exhibit No. 31.

                                           23
    her head and received oxygen and saline (RR Vol. 34, P.
    191). A physician and specialist in toxicology with the
    Center for Disease Control concluded she was injured by
    an injection of bleach into her dialysis line or port (RR
    Vol. 42, PP. 164-168).

         The Risinger blood tubes from her dialysis machine
    were not turned over to police (RR Vol. 37, P. 114). In
    addition, blood samples from April 28, 2008, were
    unavailable because Risinger did not go to the hospital
    after her event (RR Vol. 42, P. 123; Vol. 43, P. 22).

         Risinger did not testify at trial because she died
    from a motor vehicle accident (RR Vol. 38, P. 146).
    Risinger’s husband testified, however, stating that
    neither he nor his wife saw Appellant do anything out of
    the ordinary and never came over to her dialysis machine
    (RR Vol. 43, PP. 13, 19). A PCT also testified she didn’t
    see anyone inject anything at Risinger’s dialysis chair
    (RR Vol. 43, P. 51). A dialysis patient, who focused on
    Risinger that day, didn’t see Appellant do anything to
    Risinger (RR Vol. 43, PP. 112-114). A defense expert
    opined that Risinger simply suffered from high blood
    pressure and end-stage renal disease (RR Vol. 48, P. 41).

                    IV. Substances Involved

                        A - Not Heparin

    The drug Heparin is used in dialysis to keep a patient’s blood

from clotting (RR Vol. 34, P. 138). The medical director eliminated

Heparin as a cause of any problems with the ten patients at the



                                24
DaVita facility (RR Vol. 38, P. 161). Indeed, appellant stipulated

that the Heparin used by the DaVita facility did not have any

problems (RR Vol. 39, PP. 199-203; State’s Exhibit No. 168). The

evidence clearly showed that the substance involved was not

Heparin.

                         B - Not Renalin

    Two categories of dialyzers were available for use by patients,

re-use and non re-use dialyzers (RR Vol. 34, P. 140). Non re-use

dialyzers were used a single time and then disposed. Re-use

dialyzers were cleaned between uses by the same patient through

a Renatron, which rinsed the dialyzer with processed water and

cleaned it with Renalin (peracetic acid) (RR Vol. 34, P. 142).

    If a patient were exposed to Renalin through a re-use dialyzer,

the symptoms would begin immediately upon the initiation of

dialysis and include a burning sensation in the access point, a

funny breath odor, chest pains, vomiting, nausea and breathing

difficulty (RR Vol. 34, P. 141). The DaVita facility stopped using




                                25
re-use dialyzers after April 16, 2008 (RR Vol. 37, P. 26; Vol. 40, P.

44).

       For Metcalf, treatment records show her dialyzer was clear of

Renalin (RR Vol. 37, PP. 64-65). Patients Few and Bradley did not

use a re-use dialyzer (RR Vol. 37, PP. 65-66). The medical director

eliminated Renalin as a cause of any problems with patients at the

DaVita facility (RR Vol. 38, PP. 163-172).

                      C - Not Bleach in Water

       Throughout the trial, Appellant attempted to suggest that

chlorine entered the dialysis machines through the city water used

by the facility. Dialysis requires the use of processed water (RR

Vol. 34, P. 143).

       Water used at the DaVita facility was initially drawn from the

city water supply (RR Vol. 37, PP. 49-50). However, the facility

filtered out any chemicals, including chlorine (RR Vol. 34, P. 198;

Vol. 37, PP. 49-50). The dialysis facility tested the water every four

hours for the presence of chlorine (RR Vol. 34, P. 170; Vol. 37, PP.




                                  26
51-52; Vol. 40, P. 49). Dialysis would stop if chlorine was detected

(RR Vol. 34, P. 171).

    The medical director eliminated chlorine break-through from

the city water supply as a cause of any problems (RR Vol. 38, PP.

162-172; Vol. 39, PP. 47-49). The biomedical technician for the

DaVita facility reviewed the testing logs and couldn’t find a single

test showing the presence of chlorine in the facility water (RR Vol.

40, P. 128). Further, a microbiologist at the Center for Disease

Controls and Prevention reviewed the testing done at the DaVita

facility and found the facility water did not contain chlorine (RR

Vol. 41, P. 142).

    Although Appellant alleged that testing was ineffective

because, at one point, the facility was using a different testing

packet, the manager for the company providing the testing kits

confirmed that testing would, nonetheless, have detected the

presence of chlorine (RR Vol. 40, PP. 113-114, 117). He concluded

that the testing was reliable (RR Vol. 40, P. 123). Additionally, the

senior director of technical operations for DaVita reviewed the

                                 27
records and concluded that there was no indication of bleach or

chlorine in the facility’s water system during April 2008 (RR Vol.

40, PP. 158, 203-209).

             D - Not Bleach in Dialysis Machines

    The dialysis machines were cleaned weekly (on Thursdays)

with bleach (RR Vol. 34, PP. 173, 207; Vol. 36, P. 52; Vol. 37, PP.

55, 58). Using bleach test strips, the facility tested the machines

for the presence of bleach (RR Vol. 34, P. 174; Vol. 36, PP. 52-53;

Vol. 37, P. 56; Vol. 40, P. 47). Machines also were tested before

being used by patients (RR Vol. 36, P. 54).

    If bleach were present in a machine, any patient reaction

would have occurred at the beginning of treatment (RR Vol. 34, P.

174). Notably, no patients had any medical events on a Friday,

which would have been the first day for dialysis after machines

were cleaned (RR Vol. 37, PP. 59-60; State’s Exhibit No. 87). A

microbiologist at the Center for Disease Controls and Prevention

reviewed the testing done for bleach in the machines at the DaVita




                                28
facility and found the machines did not contain chlorine in April

2008 (RR Vol. 41, PP. 145-146).

              E- Not Stress of Dialysis Treatment

     A defense expert witness, a nephrologist, testified he believed

the medical incidents for several patients were caused by excessive

fluid removal (“ultrafiltrification”) and other issues (RR Vol. 47, PP.

61-105). On cross-examination, the doctor admitted that, while

he could offer his opinion based on limited medical information,

he ultimately didn’t know the causes of death (RR Vol. 47, P. 109).

A State’s expert witness, another nephrologist, contradicted the

defense expert (RR Vol. 48, PP. 16-45).

                            Conclusion

     That evidence included eyewitnesses who saw Appellant draw

a syringe with bleach and inject it into two dialysis patients,

forensic evidence confirming bleach in syringes, blood lines and

the bodies of victims and expert testimony concluding that the five

victims died of bleach poisoning. The defense involved focusing on

alternative sources for the presence of bleach in the bodies.

                                  29
However, the State overwhelmingly eliminated those sources

through forensic testing, examination of facility records and expert

testimony.       No rational juror could have isolated out any

particular victim who died as being supported by insufficient proof

when contrasted with the other victims.

    Likewise, the evidence overwhelmingly supported a finding

that the five deaths occurred in the same scheme or course of

conduct. The uniquely identical manner and means of causing

the deaths, along with the relatively short time period between all

of the deaths, supports such a conclusion. No rational juror could

have thought there was insufficient evidence on the issue as to

either theory.

    While Appellant argues that some jurors might have grouped

victims who died on a single day into the same criminal

transaction, that does not mean those same jurors could rationally

have had a reasonable doubt that all of the victims should be

grouped into the same scheme or course of conduct. There simply

is no rational basis for thinking that the five people who died in

                                30
the same dialysis center in the same month by the same method

(injection of bleach) were not murdered in the same scheme or

course of conduct.

    As to instructing the jury on the need for a unanimous

decision on the issues of multiple deaths and same scheme or

course of conduct, there simply wasn’t much for the jury to

deliberate about. Given such overwhelming evidence on those

elements, the trial court’s error would not have impacted the

deliberations and, therefore, was harmless.

                            Prayer

    WHEREFORE, PREMISES CONSIDERED, the undersigned,

on behalf of the State of Texas, respectfully prays that this

Honorable Court will review this brief and upon submission of the

case to the Court will affirm the judgment and conviction of the

court below.




                               31
Respectfully Submitted,
/s/ Art Bauereiss
Art Bauereiss, District Attorney
State Bar No. 01921800
eMail: abauereiss@angelinacounty.net
Post Office Box 908
Lufkin, Texas 75901
(936) 632-5090 phone
(936) 637-2818 fax
Attorney for the State of Texas

John G. Jasuta
Post Office Box 783
Austin, Texas 78767-0783
lawyer1@johnjasuta.com
Tel. 512-474-4747 x1
Fax: 512-532-6282
State Bar Card No. 10592300

David A. Schulman
Post Office Box 783
Austin, Texas 78767-0783
zdrdavida@davidschulman.com
Tel. 512-474-4747 x2
Fax: 512-532-6282
State Bar Card No. 17833400

Of Counsel on the Brief




        32
         Certificate of Compliance and Delivery

    This is to certify that: (1) this document, created using

WordPerfect™ X7 software, contains 6,715 words; does not comply

with Rule 9.4 (i)(3), Tex.R.App.Pro, excluding those items

permitted by Rule 9.4 (i)(1), Tex.R.App.Pro., and complies with

Rules 9.4 (i)(2)(B) and 9.4 (i)(3), Tex.R.App.Pro.; and (2) on March

9, 2015, a true and correct copy of the above and foregoing

“State’s Supplemental Brief” was transmitted via the eService

function on the State’s eFiling portal, to Robert Morrow

(ramorrow15@gmail.com); counsel of record for Appellant,

Kimberly Saenz.

                             /s/
                             ___________________________________
                             Art Bauereiss




                                33
