                                                                                       ACCEPTED
                                                                                   04-12-00238-CR
                                                                       FOURTH COURT OF APPEALS
                                                                            SAN ANTONIO, TEXAS
                                                                               9/8/2015 2:14:46 PM
                                                                                    KEITH HOTTLE
                                                                                            CLERK

                          NO. 04-12-00238-CR

              IN THE FOURTH COURT OF APPEALS
       FOR THE STATE OF TEXAS, SITTING IN SAN ANTONIO


                    KIMBERLY SAENZ, Appellant

                                  VS.

                   THE STATE OF TEXAS, Appellee


  On Remand from the Court of Criminal Appeals in Cause No. PD-0253-14
               Appeal from the 217th Judicial District Court
          of Angelina County, Texas, in Cause No. CR-28,665



   APPELLANT’S MOTION FOR EN BANC RECONSIDERATION


                                        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

                     Heather M. Lytle
                     202 Travis Street
                     Suite 300
                     Houston, TX 77002
                     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:   Angelina Co. Dist. Atty. Ofc.
                     Appellate Division
                     P.O. Box 908
                     Lufkin, TX 75902-0908
                     Tel. 936-632-5090




                                    i
                                          TABLE OF CONTENTS

                                                                                                              Page No.

IDENTITY OF PARTIES AND COUNSEL ............................................................. i

TABLE OF AUTHORITIES .................................................................................... iii

STATEMENT OF THE CASE...................................................................................1

EN BANC RECONSIDERATION ............................................................................1

  Lack of uniformity ...................................................................................................2

  Extraordinary circumstances ..................................................................................3

PRAYER ....................................................................................................................7

CERTIFICATE OF COMPLIANCE .........................................................................8

CERTIFICATE OF SERVICE ...................................................................................8




                                                             ii
                                 TABLE OF AUTHORITIES


                                                                                              Page No.

Cases
 Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) .........................1, 5
 Ansari v. State, No. 04-14-00728-CR, 2015 WL 4638286 (Tex. App. Aug. 5,
        2015)(not designated for publication) .........................................................2,3
 Carroll v. State, 101 S.W.3d 454 (Tex. Crim. App. 2003) ......................................5
 Granviel v. State, 723 S.W.2d 141 (Tex. Crim. App. 1986) ...................................5
 Robison v. State, 888 S.W.2d 473 (Tex. Crim. App. 1994) ....................................5
 Saenz v. State, 421 S.W.3d 725 (Tex. App.—San Antonio), petition for
        discretionary review granted (May 14, 2014), vacated, 451 S.W.3d 388
        (Tex. Crim. App. 2014), reh'g denied (Jan. 28, 2015) ....................................4
 Saenz v. State, 451 S.W.3d 388 (Tex. Crim. App. 2014) ........................................1
 Saenz v. State, No. 04-12-00238-CR, 2015 WL 5037969 (Tex. App. Aug. 26,
        2015)(not designated for publication) ........................................................1, 4
 Warner v. State, 245 S.W.3d 458, 462 (Tex. Crim. App. 2008) ..............................3


Rules
 Texas Rule of Appellate Procedure 41.2.................................................................2
 Texas Rule of Appellate Procedure 49.7.................................................................1
 Texas Rule of Appellate Procedure 9.4...................................................................8




                                                   iii
                             STATEMENT OF THE CASE

       Appellant Kimberly Clark Saenz relies upon and incorporates the Statements

of the Case presented in all prior pleadings she has filed. Appellant has also filed a

Motion for Rehearing in which a more detailed recitation of the facts can be found.

       On December 10, 2014, the Court of Criminal Appeals held that this Court

erred in finding no error in the jury charge because 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 based1. 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’ did not object to the

charge error2. Id.


                           EN BANC RECONSIDERATION

       On August 26, 2015 this Court, by a Panel of only 2 Justices, held that the

error was not harmful. Appellant files this Motion for En Banc Reconsideration

pursuant to Texas Rule of Appellate Procedure 49.7.

1
 This case was a death penalty case in which the jury imposed a life sentence. Therefore, the case
was appealed to this Court.
2
  The lack of objection to the charge and to the prosecutor’s argument were two of the issues
Appellant argued to be evidence of ineffective assistance of counsel. Ultimately, Counsel did file
a Motion for New Trial in which he argued that the charge was fatally flawed. CR 8:3150-3267.

                                                1
      Although disfavored, en banc consideration is proper if “necessary to secure

or maintain uniformity of   the c o u r t ’ s d e c i s i o n s o r   unless extraordinary

circumstances     require    en      banc consideration.” Texas Rule of Appellate

Procedure 41.2(c). In Appellant’s case, both reasons are applicable.

      This Court decided a case three weeks prior to Appellant’s that exhibits a lack

of uniformity in the Court’s opinions on the same issue. This was a death penalty

case with a life without parole verdict. Appellant’s crime was based upon the murder

of multiple victims. The Court of Criminal Appeals reversed this Court and held

that Appellant was denied her right to a unanimous verdict because the jurors were

told they did not need to render a unanimous verdict.

                                  Lack of uniformity

      Three weeks before this opinion was handed down, a 3 Justice Panel (2 of

whom decided this case) decided Ansari v. State, No. 04-14-00728-CR, 2015 WL

4638286 (Tex. App. Aug. 5, 2015)(not designated for publication). At trial, Ansari

was denied a requested jury charge on unanimity and this Court found it to be

harmful error. Because the objection was preserved at trial, Ansari had to show

“some harm.”

      Reviewing a jury instruction and argument very similar to Appellant’s, the

Court found that both “weigh in favor of a finding of some harm.” Ansari at *3.




                                           2
         The Court concluded: “The contradictions in the evidence between the only

two witnesses and law enforcement, as well as the photographs—impeaching the

testimony of the eyewitnesses—weigh in favor of a finding of some harm.” Ansari

at *5.

         In Appellant’s case, the prosecutor explicitly told the jury they did not have

to agree on the same victims. In Ansari, the prosecutor’s argument only “suggested

to each individual juror the he or she could find Ansari guilty if he or she believed

either assault occurred—without agreement.” Ansari at *4.

         This Court found it harmful that “there is no way to know whether the jurors

all believed one of the assaults occurred or whether some believed one occurred and

some believed another occurred.” Id.

         However, the 2 Justice Panel reviewing Appellant’s case concluded that it was

harmless when each juror was explicitly told they only had to believe Appellant

killed two victims—any two.

         The standard for the harm analysis is different in the two cases. However, the

Court pointed out that it was still required to find “actual, rather than merely

theoretical, harm from the error.” Id .at *3. (quoting Warner v. State, 245 S.W.3d

458, 462 (Tex. Crim. App. 2008)).

                             Extraordinary circumstances

         This Court should reconsider Appellant’s case en banc because it concerns an



                                            3
issue that goes directly to a defendant’s fundamental rights, only 2 Justices

participated in the case on remand, the use of the “law of the case” doctrine is

questionable, and this case is exceedingly complicated and a more reliable finding

will be reached with evaluations of the records from multiple justices.

And then there were two

       Appellant was denied her right to a unanimous verdict because of a flawed

jury charge. However, upon initial review, a Panel of 3 Justices did not believe there

was an error with the charge3. The Court of Criminal Appeals remanded the case in

order for this Court, presumably by the same Panel of 3 Justices, to conduct a harm

analysis. However, the Chief Justice had retired by the time the case was remanded

and only 2 Justices participated in the case.


               Although both the jury charge and argument of counsel
               weigh in favor of egregious harm, we conclude the state of
               the evidence and the record as a whole substantially
               support a finding of guilt with regard to each of the five
               capital murder victims. Accordingly, we hold the record
               does not establish egregious harm, and we affirm the trial
               court's judgment.

Saenz v. State, No. 04-12-00238-CR, 2015 WL 5037969, at *1 (Tex. App. Aug. 26,
2015)(not designated for publication).




3
 The first time Ms. Saenz case was before this Court, the Panel consisted of Chief Justice Catherine
Stone, The Honorable Marialyn Barnard and The Honorable Patricia O. Alvarez. Saenz v. State,
421 S.W.3d 725, 733 (Tex. App.—San Antonio), petition for discretionary review granted (May
14, 2014), vacated, 451 S.W.3d 388 (Tex. Crim. App. 2014), reh'g denied (Jan. 28, 2015).

                                                 4
      Two of the factors supported a finding of egregious harm, so the Court looked

to “‘the state of the evidence’ and “‘all other relevant information in the record

remaining cognizant this case was highly circumstantial.’” Almanza v. State, 686

S.W.2d 157, 171 (Tex. Crim. App. 1985).

      Despite the initial and repeated assertion that 2 of the factors “weighed in

favor of egregious harm,” the incomplete Panel reviewed the record in such a way

that the violation of Appellant’s right was determined to be harmless.

      The 2 Justices’ recitation of the evidence is incomplete. The Court made it

very clear that much of the evidence was circumstantial, yet it only seems to consider

the State’s version of the circumstances.

      The Panel argued that “the rule of the case” doctrine allowed it to proceed

with its analysis as if Appellant agreed with any factual and legal determination in

its previous (3 Justice Panel) opinion if that determination was not disputed in her

Petition for Discretionary Review.

      That doctrine applies where there has been a legal determination by a court of

last resort. Robison v. State, 888 S.W.2d 473, 485 (Tex. Crim. App. 1994); Granviel

v. State, 723 S.W.2d 141, 147 (Tex. Crim. App. 1986).

      A remand to a court of appeals is not a “subsequent appeal” and the law of the

case doctrine is inapplicable. Carroll v. State, 101 S.W.3d 454, 461 (Tex. Crim.




                                            5
App. 2003). The Panel incorrectly applied this doctrine when evaluating the record

as a whole and found that the error was harmless:

      Although Saenz argues this is a question of highly contested evidence
      like in Ngo, we disagree. The evidence adduced at trial, and this court’s
      analysis thereof and conclusions therefrom were not contested by Saenz
      in the petition for discretionary review she filed with the Court of
      Criminal Appeals.

      Reconsideration by the entire Court would enable all of the Justices to discuss

and examine the case to determine the proper basis for analyzing harm.

Flawed doctrine, flawed decision

      Because of this mistaken reliance on the “law of the case” doctrine, the Panel

found that, although the error that had been “emphasized” and the argument weighed

“in favor of egregious harm,” the more nebulous and subjective factors in the

standard were determinative.




                                         6
                                     PRAYER

      WHEREFORE, PREMISES CONSIDERED, Ms. Saenz respectfully requests

that this Court, sitting en banc, withdraw the Panel Opinion, and find that the denial

of Ms. Saenz’ right to a unanimous verdict was harmful.

                                              Respectfully submitted,

                                              _______________________
                                              Robert A. Morrow
                                              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




                                          7
                       CERTIFICATE OF COMPLIANCE

      I certify that this Motion for En Banc Reconsideration complies with Texas

Rule of Appellate Procedure 9.4. It was prepared in 14-point Times New Roman

font. In its entirety, it contains 1,952 words.


                                                  _______________________
                                                  Robert A. Morrow
                                                  ROBERT A. MORROW




                          CERTIFICATE OF SERVICE

      This is to certify that on the September 8, 2015, a true and correct copy of the

foregoing instrument was served upon counsel for the State electronic service.


                                                  ________________________
                                                  Robert A. Morrow
                                                  ROBERT A. MORROW




                                           8
