                                                                                        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




                                    i
                                         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



                                                            ii
                                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

                                           iv
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.




                                         v
                            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

                                          1
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

                                           2
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
                                          3
      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.

                                          4
      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




                                         11
