                               Fourth Court of Appeals
                                      San Antonio, Texas
                                              OPINION
                                          No. 04-12-00238-CR

                                        Kimberly Clark SAENZ,
                                              Appellant

                                                  v.
                                              The State of
                                         The STATE of Texas,
                                               Appellee

                    From the 217th Judicial District Court, Angelina County, Texas
                                      Trial Court No. CR28665
                           The Honorable Barry R. Bryan, Judge Presiding

Opinion by:       Catherine Stone, Chief Justice

Sitting:          Catherine Stone, Chief Justice
                  Marialyn Barnard, Justice
                  Patricia O. Alvarez, Justice

Delivered and Filed: January 22, 2014

AFFIRMED

           In April 2008, five patients died and at least five patients suffered adverse episodes while

undergoing dialysis at a clinic in Lufkin, Texas. Kimberly Saenz, a licensed vocational nurse

employed at the dialysis clinic, was charged by indictment with five counts of aggravated assault

involving five separate individuals and one count of capital murder involving five different

individuals. A jury found Saenz guilty of capital murder and three counts of aggravated assault.

The jury acquitted Saenz on two counts of aggravated assault. Although the State sought the death
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penalty, the jury sentenced Saenz to 20 years’ imprisonment for each count of aggravated assault

and to life in prison without parole for capital murder.

       On appeal, Saenz presents twenty-one points of error alleging: (1) jury charge error; (2)

insufficiency of the evidence; (3) ineffective assistance of counsel; (4) improper exclusion of

evidence; and (5) improper admission of expert testimony. We overrule Saenz’s appellate issues

and affirm the trial court’s judgment.

                                     FACTUAL BACKGROUND

       During the month of April 2008, a dialysis clinic experienced an unusual increase in the

number of patients who experienced episodes of illness and cardiac arrest while undergoing

dialysis treatment. Three patients—Clara Strange, Thelma Metcalf, and Opal Few—experienced

a cardiac arrest while undergoing dialysis treatment and died the same day. Two patients—Garlin

Kelley and Cora Bryant—had similar experiences, but died several months later. At least five

additional patients—Marie Bradley, Debra Oates, Graciela Castaneda, Marva Rhone, and Carolyn

Risinger—had similar experiences but survived. At the time of the incidents, Saenz had been

employed at the dialysis clinic for eight months. Depending on schedule requirements, Saenz

functioned either as a patient care technician or as a nurse responsible for preparing medications

for multiple patients.

   A. April 28, 2008

       On April 28, 2008, Saenz was instructed to work as a patient care technician responsible

for four patients. Saenz became “teary-eyed” and was unhappy with this assignment as she

preferred to function as the nurse responsible for preparing the medications, a position that had

less contact with the patients.    While undergoing dialysis treatment that morning, Lurlene

Hamilton witnessed Saenz preparing a bleach cleaning solution by pouring bleach into a container.

Hamilton then witnessed Saenz place the container on the floor, bend down, and extract bleach
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into a syringe. Hamilton testified that Saenz appeared nervous. Hamilton then witnessed Saenz

approach patient Carolyn Risinger, who was undergoing dialysis treatment, and inject the bleach-

filled syringe into Risinger’s intravenous (IV) dialysis line. Hamilton then witnessed Saenz do the

same thing to patient Marva Rhone, who was asleep. Hamilton testified that Saenz injected two

syringes of bleach into Rhone’s IV and two syringes of bleach into Risinger’s IV and that Saenz

disposed of the syringes in the container designated for used syringes, the “sharps container.”

Hamilton was very upset by what she witnessed and reported it to another patient care technician,

Yazmin Santana. When asked why she did not immediately report the incident as it was unfolding,

Hamilton testified that she feared for her own safety.

       Linda Hall was undergoing dialysis treatment in the chair next to Hamilton, although they

were separated by two dialysis machines. Hall testified that she witnessed Saenz place a syringe

in her pocket, place a container on the floor that usually contained the bleach cleaning solution,

extract bleach with the syringe, and inject the syringe into Rhone’s IV. Saenz then placed the used

syringe into the sharps container that was assigned to the dialysis chair adjacent to Rhone. Hall

testified that Saenz appeared nervous. Saenz did not use the computer next to Rhone’s chair which

would normally be used to chart any medication that was administered to the patient. Hall testified

that she was upset by what she witnessed, but did not report it to the dialysis clinic staff until after

Hamilton began reporting her observations. Hall explained that she was in disbelief, but that only

a matter of seconds transpired between the time she witnessed the injection, heard Hamilton’s

commotion, and reported what she had seen. Saenz was told of the allegations against her and was

instructed to go home for the day.

       Following the reports by Hall and Hamilton, the dialysis clinic’s administrators

immediately sequestered the two sharps containers alleged to contain the used bleach syringes.

The administrators used a testing strip that the clinic routinely used to test the dialysis machines
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for bleach residue in the water line. The internal chamber of two syringes from each sharps

container tested positive for bleach. Thereafter, the Centers for Disease Control (CDC), the Texas

Department of Health and Human Services (TDHHS), and the Lufkin Police Department initiated

an investigation into the incidents at the dialysis clinic. Most of the dialysis lines from each of the

unusual events in April of 2008 were preserved by the dialysis clinic. These lines, as well as all

of the sharps containers then in the clinic, were turned over to the police.

       On April 29, 2008, the clinic voluntarily closed its doors and administrators conducted a

mandatory staff meeting. Saenz did not attend the meeting. One of her co-workers, Werlan

Guillory, contacted Saenz by phone and Saenz informed him that she was at the Exposition Center

with her daughter’s school and that she was not coming to the meeting. Afterwards, Guillory

drove to the Exposition Center to check on Saenz. Guillory testified that Saenz appeared

disheveled, was crying, and did not immediately recognize him. During their conversation, Saenz

mentioned an earlier conversation with her husband and then Saenz stated to Guillory “I did not

kill those people.” Later that day, Saenz consented to an interview with police.

   B. April 2008 Deaths

                                            Clara Strange

       On April 1, 2008, Clara Strange was assigned to patient care technician Werlan Guillory.

Strange initially complained of shortness of breath, but was given oxygen and seemed to tolerate

her dialysis treatment well for several hours. Saenz monitored Guillory’s patients while he was

on break. When Guillory returned from his break, he noticed that Strange was unresponsive.

Strange was transported to the hospital, but efforts to revive her were unsuccessful. She died on

April 1, 2008. Strange’s chart indicated that Saenz had lowered her blood flow rate from 400 to

300. Guillory testified that nothing on the chart warranted lowering the blood flow rate.



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        Strange’s dialysis lines were preserved and sent to a Food and Drug Administration (FDA)

lab for analysis. A portion of Strange’s dialysis line tested positive for bleach. A CDC toxicologist

concluded that Strange died from injection of bleach into her dialysis line or port. Strange’s blood

was not tested for the 3-chlorotyrosine biomarker. 1

                                             Thelma Metcalf

        On April 1, 2008, Thelma Metcalf’s assigned patient care technician was Saenz. Several

hours into her dialysis treatment, and approximately thirty minutes after Strange was found

unresponsive, Metcalf was also found unresponsive. Metcalf was not breathing and had no pulse.

Patient care technician Cory Smith testified that he and Saenz attempted to resuscitate Metcalf

with CPR, but Saenz was not performing CPR correctly and Smith had to take over. Contrary to

Smith’s testimony, Nurse Dale Sockwell testified that he performed CPR on Metcalf and that

Saenz was not around during that time. Metcalf was transported to the hospital but efforts to revive

her were unsuccessful. She died on April 1, 2008. Metcalf’s chart indicated that Saenz had

lowered her blood flow rate from 300 to 200. Patient care technician Candice Lackey testified that

lowering the blood flow rate would have been warranted because Metcalf’s chart indicated that

her blood pressure was approaching the maximum limit.

         Metcalf’s dialysis lines were preserved and sent to a FDA lab for analysis. A portion of

Metcalf’s dialysis line tested positive for bleach. A CDC toxicologist concluded that Metcalf died

from injection of bleach into her dialysis line or port. Metcalf’s blood was not tested for the 3-

chlorotyrosine biomarker.




1
  The 3-chorotyrosine biomarker can be evidence of chlorine exposure. Saenz challenges the reliability of this
scientific evidence in points of error sixteen through twenty-one.

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                                            Garlin Kelley

        On April 16, 2008, Garlin Kelley’s assigned patient care technician was Sharon Dearmon.

Saenz was the nurse assigned to administer Kelley’s medication. Several hours into the dialysis

treatment, Dearmon heard the alarm on Kelley’s dialysis machine sound and saw Saenz standing

near the machine, preparing to turn off the alarm and reset the machine. Dearmon noticed that

Kelley appeared unresponsive, so she instructed Saenz not to reset the machine. Dearmon

witnessed an unusual clot in Kelley’s arterial dialysis line. Dearmon performed CPR on Kelley

and instructed Saenz to get help. Kelley was transported to the hospital and was resuscitated but

never regained consciousness. He died on August 18, 2008.

        Kelley’s dialysis lines were preserved and sent to a FDA lab for analysis. A portion of

Kelley’s dialysis line tested positive for bleach. In addition, a syringe attached to the dialysis line

tested positive for bleach. Kelley’s blood sample taken after the incident tested positive for 3-

chlorotyrosine. A CDC toxicologist concluded that Kelley died from injection of bleach into his

dialysis line or port.

                                             Cora Bryant

        On April 22, 2008, Cora Bryant was assigned to patient care technician Martha Mann.

Bryant experienced problems with her blood clotting during her treatment and her dialysis lines

had to be replaced. While Mann was taking her break, the alarm sounded on Bryant’s machine.

Candice Lackey was in the medicine room and saw Saenz attempting to reset the machine. Lackey

testified that administering medication to the patient or the clotting of blood would often cause the

machine to alarm. When the machine alarms, blood stops flowing to the patient. At the time of

the alarm, Bryant was in stable condition and was watching TV. Lackey returned Bryant’s blood

that was in the machine back to her body. Immediately, Bryant asked Lackey “What are you



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giving me?” Bryant then turned her head and went into a cardiac arrest. Bryant was transported

to the hospital and later died on July 15, 2008.

        Bryant’s dialysis lines were preserved and sent to a FDA lab for analysis. No bleach was

detected on Bryant’s dialysis lines; however, Bryant’s blood sample taken after the incident tested

positive for 3-chlorotyrosine. Additionally, Bryant’s blood sample showed an elevated level of

LDH. 2 A CDC toxicologist concluded that Bryant died from injection of bleach into her dialysis

line or port.

                                              Opal Few

        On April 26, 2008, Opal Few was assigned to patient care technician Donya Heartsfield.

Less than thirty minutes into Few’s treatment and while Heartsfield was preparing the medications

for Few and her other patients, she heard Few’s alarm sound and noticed that Few was

unresponsive. Few was transported to the hospital. Efforts to revive her were unsuccessful and

she died on April 26, 2008. Heartsfield did not recall seeing Saenz that day. However, Nurse

Sharon Smith testified that earlier in the day, she had instructed Saenz to administer Few’s

medication. After Few’s incident, Smith noticed that Few’s computer chart did not reflect that she

had been given her medication. Smith testified that she asked Saenz and Saenz responded that she

had given Few her medication but that she didn’t chart it. Smith instructed Saenz to record the

medication on Few’s chart. Saenz then recorded administering Zemplar to Few at 9:05 A.M.

Another patient’s chart indicated that at 9:00 A.M. Saenz was removing the patient’s dialysis lines,

a procedure that takes more than five minutes.

        Few’s dialysis lines were preserved and sent to a FDA lab for analysis. A portion of Few’s

dialysis line tested positive for bleach. In addition, a syringe found in a sharps container, labeled


2
  Lactate dehydrogenase (LDH) is an enzyme produced during blood hemolysis. Hemolysis occurs when bleach
contacts blood.

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as containing Zemplar and designated for Opal Few on 4/26/08, tested positive for bleach. Few’s

blood was not tested for the 3-chlorotyrosine biomarker. A CDC toxicologist concluded that Few

died from injection of bleach into her dialysis line or port.

    C. April 2008 Non-Death Incidents

                                         Graciela Castaneda

        On April 16, 2008, Graciela Castaneda lost consciousness while undergoing dialysis

treatment. She was chewing gum during her treatment. The two EMS technicians who transported

her to the hospital testified that she had no gum in her airway; however, a record from the hospital

indicated that Castaneda may have had gum in her throat. Castaneda was diagnosed with

pneumonia at the hospital. Castaneda recalled seeing Saenz during her treatment. Castaneda’s

husband testified that upon later seeing Saenz in the newspaper she said, “Man, I didn’t know

she’d do that to me.” Prior to the incident, Castaneda had heart problems. Following the incident,

Castaneda developed problems with her memory and required the use of oxygen.

        Castaneda’s dialysis lines were preserved and sent to a FDA lab for analysis. Test results

of the lines were inconclusive for the presence of bleach. Castaneda’s blood tested positive for 3-

chlorotyrosine. Additionally, Castaneda’s blood sample showed an elevated level of LDH. A

CDC toxicologist concluded that Castaneda was injured from injection of bleach into her dialysis

line or port.

                                           Marie Bradley

        On April 23, 2008, Marie Bradley was assigned to patient care technician Tammi Grant.

Saenz was charted as administering medication to Bradley. During Bradley’s session, she had an

event where her blood pressure dropped, requiring her to be transported to the hospital. Bradley

woke up three and a half days later with no memory of April 23, 2008.



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        Bradley’s dialysis lines were preserved and sent to a FDA lab for analysis. A portion of

Bradley’s dialysis line tested positive for bleach. A syringe labeled as containing Zemplar and

designated for Marie Bradley on 4/23/08 tested positive for bleach. Bradley’s blood tested positive

for 3-chlorotyrosine. Additionally, Bradley’s blood sample showed an elevated level of LDH. A

CDC toxicologist concluded that Bradley was injured from injection of bleach into her dialysis

line or port.

                                              Debra Oates

        On April 26, 2008, Debra Oates was assigned to patient care technician Werlan Guillory.

Saenz was charted as administering medication to Oates early in her session. Several hours later,

near the end of her treatment session, Oates experienced a strange taste in her mouth and asked

Saenz, “What did you give me?” Nurse Sharon Smith recalled seeing Saenz administering

something with a syringe and then disposing of the syringe in the sharps container, although Smith

was not sure when during the session she witnessed this. Oates experienced a drop in blood

pressure, chest pain, trouble breathing, and felt as if her bones were being crushed. She became

nauseated, started vomiting, and her access site would not stop bleeding. She was transported to

the hospital where she was treated for several days. Oates had experienced a similar incident in

January 2008 that required hospital treatment.

        Oates’s dialysis lines were not preserved for testing. Oates’s blood tested positive for 3-

chlorotyrosine. Additionally, Oates’s blood sample showed an elevated level of LDH. A CDC

toxicologist concluded that Oates was injured from injection of bleach into her dialysis line or port.

                                           Marva Rhone

        On April 28, 2013, Marva Rhone was assigned to patient care technician Angie Rodriguez.

Several hours into her session, Rodriguez took a break. Rodriguez testified that either patient care

technician Tammi Grant or Saenz was responsible for monitoring her patients during her break.
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Grant testified that she monitored Rodriguez’s patients while Rodriguez took a break and that she

never saw Saenz. When Rodriguez returned, Rhone’s blood pressure had dropped and she reported

that she did not feel well, was uncomfortable, and experienced pain in her ribs. Rhone became

nauseated, weak, and had difficulty speaking. Rhone’s illness was charted as lasting six minutes.

Rhone did not require treatment at the hospital. Rhone had recently been involved in a car accident

which caused discomfort in her ribs. Hall and Hamilton testified that they witnessed Saenz inject

bleach into Rhone’s dialysis line.

        Rhone’s dialysis lines were preserved and sent to a FDA lab for analysis. A portion of

Rhone’s dialysis line tested positive for bleach. Rhone’s blood tested positive for 3-chlorotyrosine.

Additionally, Rhone’s blood sample showed an elevated level of LDH and potassium. A CDC

toxicologist concluded that Rhone was injured from injection of bleach into her dialysis line or

port.

                                         Carolyn Risinger

        On April 28, 2013, Carolyn Risinger was assigned to patient care technician Tammi Grant.

During her session, Risinger began flopping in her chair, felt hot, and was given oxygen and saline.

Grant testified that she may have taken a break, but also testified that she never saw Saenz that

morning. Patient Jimmy Grammer testified that he watched Risinger throughout her session and

never saw Saenz approach Risinger’s machine. Risinger did not require hospital treatment.

Risinger did not submit to a blood test and her dialysis lines were not preserved. Hamilton testified

that she witnessed Saenz inject bleach into Risinger’s dialysis line.

                                      JURY CHARGE ERROR

        In two points of error Saenz claims the jury charge erroneously failed to require unanimous

agreement about which individuals Saenz allegedly killed, and about whether the patients were



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killed in a single criminal transaction or as part of the same scheme or course of conduct. The

Court’s charge on capital murder (Count VI) stated in pertinent part as follows:

       [I]f you find from the evidence beyond a reasonable doubt that on or about the 26th
       day of April, 2008, in Angelina County, Texas, the Defendant, Kimberly Saenz,
       did intentionally or knowingly cause the death of more than one of the following
       persons: Clara Strange, Thelma Metcalf, Garlin Kelley, Cora Bryant, or Opal Few
       during the same criminal transactions or during different criminal transactions, but
       the murders were committed pursuant to the same scheme or course of conduct, by
       introducing sodium hypochlorite, commonly known as bleach, or other chlorinating
       agent into the body’s bloodstream, then you will find the Defendant guilty of the
       offense of capital murder as charged in the Indictment.

       During closing argument, the State commented: “The State has the burden of proof to prove

that the Defendant caused the death of at least two of the five victims. You don’t have to agree as

to which two.”

       Saenz argues that the jury was not told that it must unanimously agree who, or how many

people, she allegedly killed, or whether this crime occurred as part of a single transaction or as part

of the same scheme or course of conduct. Citing the unanimous verdict requirements of the Texas

Constitution and the Code of Criminal Procedure, Saenz contends the jury must unanimously agree

on the identity of the victim alleged to have been murdered and the number of additional murders

committed as the circumstance aggravating the murder to capital murder. The State responds that

a court may instruct a jury in the disjunctive on alternative theories of the same offense without

offending the right to a unanimous verdict. The State further argues that the requirement that the

jury unanimously agree on the identity of the victim applies only when there is a single victim,

unlike capital murder under Section 19.03(a)(7) which is “a single penal offense that has many

legal theories for proving the same crime, including proof that there was more than one victim and

more than one way to group those deaths (same criminal transaction or scheme or course of

conduct.)”



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    A. Standard of Review

        “Our first duty in analyzing a jury-charge issue is to decide whether error exists.” Ngo v.

State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). “Then, if we find error, we analyze that error

for harm.” Id. “Both Article V, Section 13 of the Texas Constitution and Article 36.29(a) of the

Texas Code of Criminal Procedure require unanimous jury verdicts in all felony cases.” Leza v.

State, 351 S.W.3d 344, 356 (Tex. Crim. App. 2011). “To discern what a jury must be unanimous

about, appellate courts examine the statute defining the offense to determine whether the

Legislature ‘creat[ed] multiple, separate offenses, or a single offense’ with different methods or

means of commission.” Pizzo v. State, 235 S.W.3d 711, 714 (Tex. Crim. App. 2007) (quoting

Jefferson v. State, 18 S.W.3d 305, 311 (Tex. Crim. App. 2006)). Jury unanimity is required on the

“essential elements of the offense,” but is generally not required on “alternate modes or means of

commission.” Id.

    B. Unanimity on Same Criminal Transaction or Common Scheme

        A person commits capital murder if: (1) the person commits murder as defined under

Section 19.02(b)(1); and (2) the person commits one of the nine aggravating circumstances listed

in Sections 19.03(a)(1) through 19.03(a)(9). TEX. PENAL CODE ANN. § 19.03(a) (West 2013). In

the instant case, Saenz was charged with the aggravating circumstance contained in Section

19.03(a)(7), which requires the person to have murdered more than one person:

        (A)     during the same criminal transaction; or

        (B)    during different criminal transactions but the murders are committed
        pursuant to the same scheme or course of conduct.

Id. at § 19.03(a)(7).

        Each of the nine aggravating circumstances listed in Section 19.03(a) are “alternate

theories” of committing the same capital murder offense. Kitchens v. State, 823 S.W.2d 256, 258


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(Tex. Crim. App. 1991). Thus, when a single capital murder offense is alleged, the jury may be

charged disjunctively and is not required to unanimously agree about which aggravating

circumstance applies. Id. This is true regardless of whether the aggravating circumstances are

found in the same or different Section 19.03(a) subsections. Gamboa v. State, 296 S.W.3d 574,

584 (Tex. Crim. App. 2009). Further, the jury is not required to unanimously agree on the

aggravating circumstance even when the conduct constituting the aggravating circumstance

involves different victims. Davis v. State, 313 S.W.3d 317, 341-42 (Tex. Crim. App. 2010)

(holding jury verdict unanimous where jury was charged with alternative aggravating circumstance

of burglary involving two different victims); Cabrialez v. State, No. 13-04-163-CR, 2006 WL

146098, *2–3 (Tex. App.—Corpus Christi Jan. 19, 2006, no pet.) (mem. op., not designated for

publication) (holding jury verdict unanimous where jury was charged with alternate aggravating

circumstance of robbery or burglary against any one of five named victims).

       Saenz contends that subsections (A) and (B) of Section 19.03(a)(7) of the Texas Penal

Code constitute separate offenses and thus “a unanimous verdict is impossible if [some] jurors

believed that Ms. Saenz murdered multiple people in one criminal transaction [while] other jurors

believed she did so as part of the same scheme or course of conduct.” To illustrate her point, Saenz

includes the following example:

       For example, if Ms. Saenz allegedly killed Clara Strange and Thelma Metcalf in
       one criminal transaction on the same day, that is one capital murder offense. If she
       allegedly killed Garlin Kelley and Cora Bryant on different days, but pursuant to
       the same course of conduct, that is another capital offense. If she allegedly killed
       all five patients, pursuant to the same course of conduct, that is another capital
       offense. To ensure unanimity, the trial court should have instructed the jury that its
       verdict must be unanimous as to each specific offense.

       We disagree. Just as each of the nine aggravating circumstances listed in Section 19.03(a)

are alternative theories of the same capital murder offense, subsections (A) and (B) of Section

19.03(a)(7) also are alternate theories of the same capital murder offense. Alternative theories can
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exist involving any of the aggravating circumstances found in Section 19.03(a), which necessarily

includes subsections (A) and (B) of Section 19.03(a)(7).       Indeed, in Gamboa, one of the

aggravating circumstances was an additional murder under Section 19.03(a)(7) while the other

aggravating circumstance was a robbery under Section 19.03(a)(2).           296 S.W.3d at 582.

Accordingly, the jury was not required to unanimously agree on the alternate theories of capital

murder as alleged under subsections (A) and (B) of Section 19.03(a)(7).

   C. Victim Identity Unanimity

       It is established Texas law that when the charged offense is murder, the jury must

unanimously agree about who was murdered because each murder victim is considered a separate

offense. See Johnson v. State, 364 S.W.3d 292, 295–96 (Tex. Crim. App. 2012); Hisey v. State,

129 S.W.3d 649, 652 (Tex. App.—Houston [1st Dist.] 2004, pet. dism’d). However, it is not

established whether the jury is required to unanimously agree on exactly who was murdered if the

charged offense is capital murder with multiple murders serving as the aggravating circumstance.

That question is squarely presented in this case.

   1. Unanimity on Predicate Murder Victim

       Saenz argues that the jury must unanimously agree on the identity of the predicate victim

who was murdered and the number of additional victims who were murdered as the aggravating

circumstance. This argument finds some support in the law.

       In Graham v. State, 19 S.W.3d 851, 852 (Tex. Crim. App. 2000), the jury was charged with

finding that Graham committed capital murder by: (1) the murder of Hurtado and Giraldo in the

same criminal transaction; (2) the murder of Hurtado while in the course of robbing him; and (3)

the murder of Garcia-Castro while in the course of robbing him. For purposes of severance under

Texas Penal Code Section 3.04(a), Graham argued that the jury was charged with two distinct

capital murder offenses based on the identity of the victim who was murdered, i.e., (1) the murder
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of Hurtado with the alternative aggravating circumstances being the murder of Giraldo or the

robbery of Hurtado; and (2) the murder of Garcia-Castro with the aggravating circumstance being

the robbery of Garcia-Castro. Id. The State argued the charge alleged different theories for

committing one offense of capital murder. Id. The Court of Criminal Appeals held that the charge

alleged two capital murder offenses because “two of the three paragraphs allege different murders

as the basis for the capital charge.” Id. at 853 (emphasis in original). The court explained that the

murder of Hurtado and the murder of Garcia-Castro were “two distinct capital offenses” because

there were “multiple murders rather than multiple theories.” Id. at 854. Accordingly, Graham

suggests that each murder victim constitutes a separate offense of capital murder, which would

require the jury to unanimously agree on the identity of the predicate murder victim.

   2. Unanimity on Murder of More than One Person

       In its more recent decision in Saenz v. State, 166 S.W.3d 270 (Tex. Crim. App. 2005),

however, the Court of Criminal Appeals suggests that a jury is permitted to return a general verdict

of capital murder without specifying which victims were murdered. In Saenz, John Saenz was

indicted with three counts of capital murder. 166 S.W.3d at 271. In the indictment, Count I alleged

the murder of Torres aggravated by the murders of Bravo and Cain in the same criminal

transaction. See Saenz v. State, 131 S.W.3d 43, 49 (Tex. App.—San Antonio 2003), aff’d, 166

S.W.3d 270 (Tex. Crim. App. 2005). Count II alleged the murder of Bravo aggravated by the

murders of Torres and Cain. See id. Count III alleged the murder of Cain aggravated by the

murders of Torres and Bravo. See id. Saenz was found guilty as to each count and sentenced to

three concurrent life sentences. See id. at 45. Saenz then appealed this conviction to this court.

       Because Section 19.03(a)(7) necessarily requires the murder of more than one person, this

court distinguished it from “assault-type offenses that require only one victim.” Id. at 52. We held

that “the allowable unit of prosecution for section 19.03(a)(7)(A) is more than one victim.” Id.
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We explained that, “[i]f the allowable unit of prosecution is more than one victim, Saenz

necessarily committed only one capital murder. All three counts contain the same victims, the

same allowable unit of prosecution. All three counts, therefore, constitute only one offense of

capital murder. Because the indictment states only one allowable unit of prosecution, Saenz can

be convicted of only one offense.” Id. at 52–53.

       The Court of Criminal Appeals affirmed our decision in Saenz. In construing the statute,

the court distinguished 19.03(a)(7) from the other aggravating circumstances that only require one

victim, concluding “the statute reflects that the killing of at least two persons allows the State to

charge a single count of capital murder . . . .” 166 S.W.3d at 273. The court then looked at the

legislative history of Section 19.03(a)(7) and observed that the drafters of the bill were not seeking

a way to obtain multiple death penalties against mass murderers, but rather were making it possible

to execute mass murderers. Id. The court concluded that “the most reasonable interpretation of

the statute and its legislative intent is that, under the circumstances presented here, the statute

allows only a single capital murder conviction. Accordingly, we hold that the Double Jeopardy

Clause of the Fifth Amendment was violated when the State charged appellant with three separate

counts of capital murder under Section 19.03(a)(7)(A) because the charges rely on the same three

murders for each charge.” Id. at 274.

   3. Analysis

       The Court of Criminal Appeals has held that the unit of prosecution for capital murder

under Section 19.03(a)(7) is the murder of “at least two persons.” Saenz, 166 S.W.3d at 273. In

extending the Saenz holding to both 19.03(a)(7) sub-sections, the Court of Criminal Appeals

recently re-affirmed that “the allowable unit of prosecution for this statute is not each individual,

but the killing of more than one individual.” Ex Parte Milner, 394 S.W.3d 502, 508 (Tex. Crim.

App. 2013). Although Saenz determined the unit of prosecution in the Double Jeopardy context,
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the Court of Criminal Appeals has described its Double Jeopardy and jury unanimity jurisprudence

as “closely intertwined strands” that “address the same basic question” of whether “different legal

theories of criminal liability comprise different offenses” or whether “they comprise alternate

methods of committing the same offense.” 3 Huffman v. State, 267 S.W.3d 902, 905 (Tex. Crim.

App. 2008); see Villanueva v. State, 227 S.W.3d 744, 747 (Tex. Crim. App. 2007) (doubting that

the Legislature would intend for the court to construe an offense in one way for double jeopardy

purposes but in another way for jury unanimity purposes).

         A jury “must unanimously agree about the occurrence of a single criminal offense, but they

need not be unanimous about the specific manner and means of how that offense was committed.”

Young v. State, 341 S.W.3d 417, 422 (Tex. Crim. App. 2011). The “manner and means” of

committing a criminal offense refers to the actus reus of the crime. Sanchez v. State, 376 S.W.3d

767, 773 (Tex. Crim. App. 2012). Thus, when several different acts constitute the manner and

means of committing a single criminal offense as opposed to the commission of several criminal

offenses, the jury need only unanimously agree that the single offense was committed. Jefferson,

189 S.W.3d at 311; Cosio v. State, 353 S.W.3d 766, 772 (Tex. Crim. App. 2011); Pizzo, 235

S.W.3d at 715. The Court of Criminal Appeals has defined the single offense under Section

19.03(a)(7) as the murder of more than one person. Saenz, 166 S.W.3d at 273; Ex Parte Milner,

394 S.W.3d at 508. Therefore, when a jury unanimously agrees that a defendant murdered more




3
  We note that, in Paredes v. Thaler, 617 F.3d 315 (5th Cir. 2010), the Fifth Circuit refused to apply Saenz to a jury
unanimity issue. In that case, the court reviewed a denial of writ of habeas corpus for a defendant who was convicted
for the capital murder of the same three individuals giving rise to the John Saenz case. The jury was instructed that it
could convict Paredes of capital murder if it found that (1) he killed Torres and either Bravo or Cain; or (2) he killed
Bravo and either Torres or Cain; or (3) he killed Cain and either Torres or Bravo. The Fifth Circuit observed that it
did not have “a definitive construction of section 19.03(a)(7)(A) from the Texas Court of Criminal Appeals as to
whether it is proper in a jury charge to permit the crime of multiple murder to be established by alternate means of
varying combinations of more than one murder.” Paredes, 617 F.3d at 320–22.


                                                         - 17 -
                                                                                     04-12-00238-CR


than one person, it unanimously agrees that the defendant committed a single offense of capital

murder under Section 19.03(a)(7).

       Although Graham held that each predicate murder victim constituted a separate offense of

capital murder, the Saenz court distinguished that holding as applying only to the Section 19.03(a)

subsections that involve only one victim, unlike Section 19.03(a)(7) which necessarily involves

more than one victim. Saenz, 166 S.W.3d at 273. Indeed, the requirement that the jury must

unanimously agree on the identity of the predicate murder victim of a capital murder offense is

derived from the concept that each predicate murder victim constitutes a separate offense. See

Young, 341 S.W.3d at 423–24. It follows that where each predicate murder victim does not

constitute a separate offense, the jury need not unanimously agree on that victim’s identity.

       The Dallas Court of Appeals applied Saenz to a jury unanimity issue in Anderson v. State,

No. 05-06-00233-CR, 2007 WL 2004896, at*1–2 (Tex. App.—Dallas Jul. 12, 2007, pet. ref’d)

(mem. op., not designated for publication). Anderson’s jury was charged disjunctively on four

different theories of capital murder: (1) murder of Brown aggravated by murders of Hernandez or

Pena; (2) murders of Hernandez and Pena; (3) conspiracy to commit robbery during which

Hernandez and Pena were murdered; or (4) conspiracy to commit felony drug possession during

which Hernandez and Pena were murdered. The court concluded that all four paragraphs described

“different methods of committing the single offense of capital murder.” Id. at *2. Although some

jurors could have concluded that Brown was murdered and some jurors could have concluded that

Brown was not murdered, the court held the jury was only required to unanimously agree that

Anderson committed the single offense of capital murder. Id.

   Therefore, based on the Texas Court of Criminal Appeals’ holding in Saenz, we conclude that

the jury charge in the instant case afforded Saenz her right to a unanimous jury verdict as the jury



                                               - 18 -
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unanimously agreed that she committed a single offense of capital murder under Section

19.03(a)(7).

                             LEGAL SUFFICIENCY OF THE EVIDENCE

       In points of error three and four, Saenz contends the evidence is legally insufficient to

support the capital murder conviction or the convictions of aggravated assault. The State responds

that the combined direct and circumstantial evidence was sufficient for a rational juror to find guilt

beyond a reasonable doubt.

   A. Standard of Review

       “In determining whether the evidence is legally sufficient to support a conviction, a

reviewing court must consider all of the evidence in the light most favorable to the verdict and

determine whether, based on that evidence and reasonable inferences therefrom, a rational fact

finder could have found the essential elements of the crime beyond a reasonable doubt.” Gear v.

State, 340 S.W.3d 743, 746 (Tex. Crim. App. 2011) (citing Jackson v. Virginia, 443 U.S. 307,

318–19 (1979)). “[W]hen viewing the evidence in the light most favorable to the verdict, ‘the

reviewing court is required to defer to the jury’s credibility and weight determinations because the

jury is the sole judge of the witnesses’ credibility and the weight to be given their testimony.’”

Winfrey v. State, 393 S.W.3d 763, 768 (Tex. Crim. App. 2013) (quoting Brooks v. State, 323

S.W.3d 893, 899 (Tex. Crim. App. 2010)). “Circumstantial evidence is as probative as direct

evidence in establishing guilt, and circumstantial evidence alone can be sufficient to establish

guilt.” Id. at 771 (citing Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007)).

       This court considers “all evidence in the record of the trial, whether it was admissible or

inadmissible.” Id. at 767 (quoting Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999)).

“[I]t is not necessary that every fact point directly and independently to the defendant’s guilt; it is

enough if the conclusion is warranted by the combined and cumulative force of all the
                                                 - 19 -
                                                                                     04-12-00238-CR


incriminating circumstances.” Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993).

We measure sufficiency of the evidence by “the elements of the offense as defined by the

hypothetically correct jury charge for the case.” Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim.

App. 1997).

    B. Discussion

        As to Clara Strange, Thelma Metcalf, Garlin Kelley, Opal Few, and Cora Bryant, the State

had the burden of proving beyond a reasonable doubt that (1) Saenz (2) intentionally or knowingly

(3) caused the death (4) of more than one person (5) by injecting bleach into their bloodstreams

(6) either during the same criminal transaction or during different criminal transactions, but the

murders were committed pursuant to the same scheme or course of conduct. TEX. PENAL CODE

ANN. § 19.03(a)(7) (West 2013). As to Marie Bradley, Debra Oates, Graciela Castaneda, Marva

Rhone, and Carolyn Risinger, the State had the burden of proving beyond a reasonable doubt that

(1) Saenz (2) intentionally, knowingly, or recklessly (3) exhibited a deadly weapon during the

commission of an assault (4) by injecting bleach into their bloodstreams. TEX. PENAL CODE ANN.

§ 22.02(a) (West 2011).

    1. Evidence of Bleach Injection

        Saenz argues that the evidence is insufficient to show that each patient was injured by an

injection of bleach. Rather, Saenz contends the injuries could have been caused by the “myriad of

chronic and severe illnesses complicated by dialysis treatment.” Moreover, Saenz argues that none

of the patients exhibited the “known indicators of bleach poisoning.” The State’s evidence of

injury by bleach injection falls into three categories: (1) eyewitness testimony that Saenz injected

bleach into Rhone and Risinger; (2) the presence of bleach in the dialysis lines and in syringes;

and (3) the presence of the 3-chlorotyrosine biomarker in all of the patients whose blood was tested

shortly after their respective incidents.
                                               - 20 -
                                                                                          04-12-00238-CR


       a. Evidence of Bleach in Dialysis Lines

           Saenz argues that presence of bleach in the dialysis lines is insufficient because there is no

evidence of bleach at the point where the lines enter the patient’s body, and bleach was detected

in the blood path on the dialysis lines of only Opal Few. Further, Saenz contends there was

uncontroverted testimony establishing that the dialysis machine would have had to be turned off

and the blood not flowing when the detected bleach was introduced into the line. Thus, Saenz

argues that a positive result is either the result of contamination during the transporting of the

dialysis lines to the lab or bleach being introduced after the machine was turned off following a

treatment session. The State responds that the positive test results of bleach and chlorate on

“numerous items” is consistent with a bleach exposure.

           The dialysis lines were analyzed by an FDA laboratory. David Jackson, an FDA forensic

chemist, testified that either bleach or chlorate 4 was detected in the lines of Rhone, Few, Strange,

Metcalf, and Kelley. Jackson testified that in his opinion, the use of saline to push the blood

through the dialysis lines would account for the negative bleach or chlorate readings in other parts

of the dialysis lines. Defense expert Dr. Jonathan Neidigh, a university chemist, opined that he

would expect to see evidence of bleach in other places of the dialysis lines downstream of the

injection point if the bleach had been injected while the blood was moving. Although Saenz points

to the testimony of Nurse Candice Lackey as evidence that the dialysis machine would have had

to be turned off at the point of a bleach injection, the record does not conclusively establish that

fact. At the time of Lackey’s testimony on the subject, it appears she was using a demonstrative

and was pointing at various parts of the dialysis machine to explain her testimony. Therefore, the

jury was in a better position to understand Lackey’s testimony in its entirety.



4
    The presence of chlorate is an indicator of bleach.

                                                          - 21 -
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       Ultimately, it is within the jury’s province to evaluate the weight and credibility of the

evidence. A rational juror could have found that Jackson’s testimony was more credible than that

of Neidigh or Lackey. Additionally, the FDA analysis found bleach on the inside of Kelley and

Few’s syringes dated for the day of their incident. Kelley’s syringe was attached to his dialysis

line. Bleach was also detected on the inside of other syringes found inside of the sharps containers.

The jury heard testimony that there was no reason for bleach to be either inside the patient syringes

or on the inside of the dialysis lines. A CDC expert, Dr. Michael Schwartz, reviewed the FDA test

results and concluded that the patients were injected with bleach. Hall and Hamilton testified that

they witnessed Saenz injecting bleach. Given the totality of the evidence, a rational juror could

have concluded that bleach was injected into the dialysis lines.

   b. 3-chlorotyrosine Evidence

       Saenz also challenges the sufficiency of the 3-chlorotyrosine evidence that was used to

establish the presence of bleach in the blood samples of several patients. In collaboration with the

CDC and the local health department, Dr. Mark Sochaski conducted a blind study of 54 blood

samples from dialysis clinic patients. Some of the samples were taken from complainants after

they had experienced adverse incidents during dialysis treatment in April 2008. Other samples

were control samples taken from patients, at either the dialysis clinic or a neighboring dialysis

clinic, who had not experienced an adverse incident. The study was “blind” in that only the local

health department and not Dr. Sochaski knew the patients’ identities. Dr. Sochaski detected no

levels of the biomarker 3-chlorotyrosine in the control patients’ samples; however, he detected

high levels in the blood samples taken from Garlin Kelley, Cora Bryant, Marie Bradley, Debra

Oates, Graciela Castaneda, and Marva Rhone. Blood samples were not available for Clara Strange,

Thelma Metcalf, Opal Few, and Carolyn Risinger. 3-chlorotyrosine is naturally produced by the

body and has been found in low levels in patients of dialysis, patients fighting an infection, or
                                                - 22 -
                                                                                     04-12-00238-CR


those who have recently had a heart attack. The presence of 3-chlorotyrosine can also indicate the

blood’s exposure to chlorine from outside of the body. Because the levels of 3-chlorotyrosine in

the complainants were much higher than any levels recorded as a result of being naturally produced

by the body, Dr. Sochaski concluded that the complainants had been externally exposed to a

chlorinating compound.

       Saenz argues that the presence of 3-chlorotyrosine is not sufficient evidence that bleach

was injected into the patients because (1) the original Sochaski study supporting the test results

was conducted by exposing rats to chlorine gas and is inapplicable to humans, and (2) the presence

of 3-chlorotyrosine is not solely indicative of bleach poisoning because the human body naturally

produces 3-chlorotyrosine in certain situations.

       A reviewing court must distinguish between claims of improperly admitted evidence and

claims of insufficient evidence. Moff v. State, 131 S.W.3d 485, 490 (Tex. Crim. App. 2004). When

reviewing for legal sufficiency of the evidence, we must consider all evidence before the jury at

trial, whether it was properly or improperly admitted. Id. Although Saenz challenges the

admissibility of the 3-chlorotyrosine evidence in points of error sixteen through twenty-one, we

review that evidence in a sufficiency challenge as if it were properly admitted.

       Saenz argues that the presence of 3-chlorotyrosine is not sufficient evidence of bleach

exposure because 3-chlorotyrosine is naturally produced in the human body. Saenz points to

evidence that “levels are higher in patients on dialysis, patients with cardiac disease or following

heart attacks, and in patients fighting an infection.” Saenz argues that these are equally plausible

explanations for the 3-chlorotyrosine levels, pointing to Kelley who had E.coli pneumonia and

Hepatitis C at the time of his incident and also to Bryant who suffered from myocardial fibrosis

and cirrhosis of the liver. However, Dr. Schwartz, a medical officer with the CDC, testified that

injection of bleach caused the 3-chlorotyrosine levels in the complainants. Dr. Schwartz explained
                                               - 23 -
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that the 3-chlorotyrosine levels in the complainants were 300 to 400 times greater than what would

be expected from the levels that would be naturally produced by a person undergoing dialysis. 5

Likewise, Dr. Schwartz explained that the 3-chlorotyrosine levels in the complainants were 20 to

70 times higher than what would be expected from the levels naturally produced by a patient who

had experienced a heart attack. 6 In addition, Dr. Schwartz testified that consistent with an external

exposure to bleach, the levels of 3-chlorotyrosine in the complainants steadily declined over the

seventy-two hours following their admission to the hospital, with the highest levels measured close

to the time of the patient’s incident at the clinic. Dr. Schwartz explained that if the presence of 3-

chlorotyrosine were caused by an inflammation of the body as a result of some sort of infection,

he would expect to see steady levels of 3-chlorotyrosine, not the steadily declining levels shown

in the complainants.         Likewise, Dr. Schwartz also would have expected to see steady 3-

chlorotyrosine levels after a heart attack because the heart muscle dies and slowly seeps damaged

cells.

         Dr. Schwartz also explained that he tested the blood of a “control patient,” Oralia Torres,

who was not suspected to have been injected by bleach. Torres and Cora Bryant both had their

dialysis treatment at the dialysis clinic on April 22, 2008 and were seated one chair apart. Bryant’s

treatment ended in her cardiac arrest that sent her to the hospital. Torres had an uneventful dialysis

treatment. On April 24, 2008, Torres had to visit the hospital due to an infection. The blood

samples taken on that day from Torres were negative for 3-chlorotyrosine. The blood sample for

Bryant taken the day of her incident was positive for 3-chlorotyrosine. Dr. Schwartz concluded



5
  Dr. Schwartz referenced the Himmelfarb study, which tested patients shortly after they had completed their dialysis
treatment. Himmelfarb observed 3-chlorotyrosine levels ranging from 0.00047% to 0.006%.
6
  Dr. Schwartz referenced the Mocatta study, which tested heart attack patients shortly after they were admitted to the
hospital. The average 3-chlorotyrosine level was 0.0019%. During her study, Mocatta also injected hydrochlorous
acid into a container of blood plasma and the resulting 3-chlorotyrosine level was 0.08%, which according to Dr.
Schwartz was similar to the levels found in the complainants.

                                                        - 24 -
                                                                                                    04-12-00238-CR


that each of the complainants was injured by the injection of sodium hypochlorite or bleach into

their dialysis line.

         Saenz further contends the jury discredited the 3-chlorotyrosine evidence when it acquitted

Saenz as to Graciela Castaneda because Castaneda’s results showed one of the highest levels of 3-

chlorotyrosine. Saenz contends it is irrational that the jury would convict as to Cora Bryant but

acquit as to Castanenda when both patients’ blood samples were positive for 3-chlorotyrosine but

both had dialysis lines that did not test positive for bleach. 7 The State responds that the jury did

not discredit the 3-chlorotyrine evidence when it acquitted Saenz as to Castaneda’s injuries.

Rather, the jury could have rationally concluded that Castaneda was injected with bleach, but that

her injuries were caused by her choking on a piece of chewing gum.

         The jury heard conflicting evidence regarding whether Castaneda’s injuries were caused

by choking on gum. Castaneda testified that she would chew gum during her dialysis treatment.

The two EMS technicians who transported Castaneda to the hospital on April 16, 2008 testified

that she was not breathing when they arrived at the dialysis clinic. One EMS technician testified

that he attempted to place a tube in Castaneda’s throat which required a visual inspection of the

throat. He did not recall seeing any gum in Castaneda’s throat and stated that he would have

documented such an observation. He testified that he was ultimately unable to insert the tube

because of Castaneda’s clenched teeth. He had used a suction device to clear Castaneda’s throat

of any secretions and did not see any gum. The second EMS technician corroborated this account.

However, hospital records included the notation “EMS found chewing gum in airway as per RN

was in PEA.” Neither EMS technician could explain this notation. Defense expert Dr. Michael



7
 Bryant and Castaneda’s blood lines still contained blood at the time Jackson tested them. Thus, the test results were
“inconclusive” because the test depended on a color change that was not possible with the red color of blood. Defense
expert Dr. Jonathan Neidigh testified that the “inconclusive” results should be “negative.”

                                                        - 25 -
                                                                                    04-12-00238-CR


Germain opined that Castaneda suffered a respiratory arrest related to an obstructed airway due to

chewing gum. Defense expert Dr. Amy Gruszecki opined that Castaneda’s injury resulted from a

combination of choking on gum and pneumonia.

        Although it is possible that the jury may have given weight to the gum choking theory,

other evidentiary differences existed between Castaneda and Bryant.         For example, several

eyewitnesses provided a vivid account of Bryant’s cardiac arrest, which resulted immediately after

the nurse returned her blood. The details of Castaneda’s event, however, were provided at trial by

Castaneda herself, who appeared to be plagued by memory problems. Castaneda described her

incident as merely losing consciousness. Castaneda was also diagnosed with pneumonia at the

time of her incident. The fact that the jury chose to acquit Saenz as to Castaneda does not

necessarily mean that it discredited the 3-chlorotyrosine evidence, the other factual differences

could have caused the jury to reach its different findings.

    c. Other Evidence of Bleach Injection

        Saenz argues that none of the victims evidenced known symptoms of bleach poisoning.

The jury heard evidence that injecting bleach into the bloodstream could cause a cardiac arrest and

trouble breathing. Symptoms can also include falling blood pressure, rapid heartbeat, or the

complete cessation of blood pressure or heartbeat. Defense expert Dr. Gruszecki opined that the

injection of bleach into the blood stream would cause burning, swelling, and redness. However,

Dr. Gruszecki conceded during cross-examination that her opinion was based more on what one

would practically expect from a bleach exposure based on the hazardous material guidelines for

bleach. While there was no evidence of burning, swelling, or redness, each patient exhibited

evidence of a bleach exposure consistent with a cardiac arrest or difficulty breathing. The

exception would be in the cases of Castaneda and Risinger, and the jury acquitted as to those

patients.
                                                - 26 -
                                                                                             04-12-00238-CR


        Saenz also argues that none of the alleged victims’ blood samples showed signs of

hemolysis. Hemolysis is the break-down of red blood cells which would result when the blood is

exposed to bleach. During hemolysis, the red blood cells will burst, creating elevated levels of

potassium and the LDH enzyme. Potassium levels, however, are lowered by the introduction of

epinephrine. While normal potassium levels were found in Metcalf, Kelley, Few, Bryant, Bradley,

and Castaneda, each of these patients received epinephrine during their emergency. Rhone was

the only patient with an elevated potassium level and Rhone did not receive epinephrine. Dr.

Schwartz analyzed the LDH levels of Bryant, Oates, Castaneda, Bradley, and Rhone, who were

the patients who survived long enough at the hospital to give a viable blood sample. 8 Dr. Schwartz

compared the patients’ LDH levels after the event with the levels indicated in routine blood tests

before the event and concluded that the source of the elevated LDH levels was acute hemolysis.

A rational juror could have concluded that the complainants evidenced symptoms consistent with

a bleach injection.

        Lastly, Saenz argues that with the exception of Kelley and Bryant, each of the patient

deaths was certified by the medical examiner as being caused by natural causes. Saenz argues that

the death certificates for Kelley and Bryant were delayed and that the medical examiner certified

their causes of death as exposure to bleach only after he relied on Dr. Sochaski’s study. The

defense expert forensic pathologist, Dr. Gruszecki, testified that in her opinion each of the patients

died as a result of natural causes related to their pre-existing medical conditions. However, the

jury heard considerable evidence from which it could conclude the deaths were caused by bleach

injection. In addition to Dr. Schwartz’s testimony, the jury heard from Dr. Imran Nazeer that in

his twelve years as a nephrologist, only two patients had died while undergoing dialysis treatment.


8
 The patients’ pre-event and post-event levels were as follows, respectively: Bryant 199, 360; Oates 213, 781;
Castaneda 219, >2150; Bradley 169, 1372; Rhone 166, 1201.

                                                    - 27 -
                                                                                      04-12-00238-CR


Dr. Nazeer also testified regarding a recent study finding that the chance of having a cardiac arrest

during dialysis treatment was “very rare”—a 0.007% chance. The jury could have also considered

that with the exception of Kelley and Bryant, who lingered for several months after their incident,

the other deaths were certified before the police had fully completed their investigation and before

Dr. Sochaski had completed his study of the dialysis clinic patients. Lastly, the jury could have

rationally given more weight to the medical examiner who actually examined the patients, rather

than the defense expert who had not examined them, but relied upon a review of their medical

history.

   2. Evidence Connecting Saenz

       Saenz contends there is no evidence that she injected bleach into anyone and challenges

the eyewitness testimony of Hall and Hamilton. Saenz suggests this eyewitness testimony is

unreliable because both Hall and Hamilton were elderly, suffered from poor eyesight, and provided

different stories. Specifically, she argues that while both testified that Saenz drew up bleach with

a syringe and injected the bleach into Rhone’s line, neither was explicit that it was same syringe.

Saenz contends that even if Hall and Hamilton witnessed her extracting bleach into a syringe,

doing so was a common practice at the clinic for the purposes of preparing the bleach cleaning

solution. Moreover, Saenz argues that the jury disregarded the testimony of Hall and Hamilton

when it acquitted her as to Risinger’s aggravated assault.

       The State responds that the cumulative force of the direct and circumstantial evidence

establishes that Saenz injected bleach into the patients. The State claims that once the jury

concluded that Saenz injected bleach into Rhone, the jury could rationally infer that she was

responsible for the other injuries caused by a bleach injection. Moreover, the State points to

evidence showing that Saenz was working at the facility on each day when the incidents occurred.

The State also points to “incriminating statements” made by Saenz.
                                                - 28 -
                                                                                       04-12-00238-CR


   a. Eyewitness Credibility

       The jury heard live testimony from Hall and two recorded depositions from Hamilton. In

2008, Hall was 55 years old and Hamilton was 66 years old. During Hall’s trial testimony in 2012,

she was asked to look at a photograph exhibit and stated, “I’m not seeing very clearly. My sight

has gotten worse,” and later explained “My sight in 2008 was by far better than it is today.”

However, she was able discern the contents of the photograph shown to her at trial. Hall later

testified that she was blind in one eye. Although Hall was not wearing glasses on the day in

question, she testified that she required glasses only for reading.

       In Hamilton’s 2008 deposition, she stated that she had glaucoma. She had difficulty

reading documents during the deposition and required use of her bi-focal glasses. She stated that

she was not wearing her glasses during her dialysis treatment on April 28, 2008. However, she

stated that she felt she could see better without her glasses. In her first deposition, Hamilton stated

that her diabetes medication made her nervous and affected her memory.

        Hamilton and Hall’s versions of events differed in several respects. Hamilton testified that

she witnessed Saenz preparing the bleach solution and then injecting the bleach—first into

Risinger and then into Rhone—with each patient receiving two injections. In contrast, Hall

testified that the bleach solution was already prepared and she saw Saenz make only one injection

and only to Rhone’s line. Given the differences in the eye witnesses’ testimony, a rational juror

could conclude that Hamilton witnessed the entire episode, while Hall witnessed only the last

injection.

        Amy Clinton, the regional manager with the dialysis clinic, testified that she spoke with

Hall and Hamilton on April 28, 2008 shortly after they reported their observations regarding Saenz.

She first spoke with Hamilton and then separately spoke with Hall. She said they gave consistent

accounts describing Saenz placing a bleach container on the floor, drawing bleach, and injecting
                                                 - 29 -
                                                                                     04-12-00238-CR


both Rhone and Risinger. However, Clinton testified that the main focus of both witness’s

observations was on Rhone’s injection.

       Although the eyewitness accounts of Hall and Hamilton differed slightly, a rational juror

could have concluded that their versions of events were not irreconcilably conflicted. Both

eyewitnesses were adamant about what they had seen and were considerably upset afterwards.

Both eyewitnesses were seated in such a manner that they could have witnessed what they claimed

to have seen. The jury saw live testimony of Hall and two video depositions of Hamilton.

Ultimately, the jury determined the credibility of both witnesses.

       Saenz argues that it was irrational for the jury to give weight to the eyewitness testimony

because the jury disregarded the same eyewitness testimony when it acquitted Saenz as to

Risinger’s aggravated assault. Risinger’s dialysis lines were not preserved and she never went to

the hospital or provided a blood sample. Risinger was described as being sick, but she did not

suffer a significant event consistent with the other patients. Risinger’s husband testified at trial

that her condition improved when he came to take her home. Therefore, the jury could rationally

have concluded that while the eyewitness testimony established a bleach injection, the evidence

was insufficient to support an injury. Further, only Hamilton witnessed an injection into Risinger’s

line. This was contradicted by Jimmy Grammer’s testimony that he watched Risinger during her

session and never saw Saenz inject anything into her dialysis line. Risinger’s patient care

technician, Martha Mann, testified that she never saw Saenz that day. Thus, the jury could have

rationally disregarded Hamilton’s testimony without disregarding Hall’s testimony that Saenz

injected Rhone.

   b. Bleach Mixing Procedures

       The jury heard conflicting testimony about the proper procedure for preparing the bleach

solution. Two bleach solutions were to be prepared each morning before the first patient shift.
                                               - 30 -
                                                                                      04-12-00238-CR


The solutions were created by mixing bleach with water in a plastic “shoebox” container. The

solution was used to wash the patient chair and equipment after each session and to clean up blood

spills. The proper procedure required measuring the bleach for the solution in a medicine cup, or

by using a pre-drawn line on the shoebox container. Connie Baker, a former dialysis clinic

employee, testified that although it was the clinic’s procedure to use a medicine cup to measure

the bleach, it was a “fairly common practice” for nurses to draw up bleach with a syringe to mix

the solution. However, Baker agreed that it would be difficult to use a syringe to draw bleach from

a bleach bottle and that if the bottle were less than full, the bleach would have to first be poured

into a separate container. Nick Luker, a former dialysis clinic employee, testified that he had

witnessed dialysis clinic employees use a syringe to measure bleach for the daily bleach solution.

However, Baker and Luker’s testimony was contradicted by numerous witnesses who testified that

it was neither proper procedure nor a common practice to use a syringe to measure bleach and that

the bleach solution should never be placed on the floor. Multiple witnesses confirmed that the

facility had an adequate supply of medicine cups and no witness stated otherwise.

       In her police interview, Saenz testified that on April 28, 2008, she used a syringe to extract

bleach for the daily cleaning solution because the facility was out of medicine cups. She also

stated that she was attempting to be precise by using a syringe instead of just pouring the bleach

into the container. She stated that this was prompted by the monitors who were at the facility and

the pressure the staff was feeling to follow correct procedures. However, several dialysis clinic

employees testified that it would not be efficient to pour bleach into one container, draw it up with

a syringe, express it into a second container, and then mix the bleach with water. Additionally,

extracting bleach directly from the bleach bottle with the syringe would be practical only if the

bottle was nearly full. During her grand jury testimony, Saenz stated that she poured the bleach

into the bottle cap and then used the syringe to extract the bleach.
                                                - 31 -
                                                                                      04-12-00238-CR


       Saenz acknowledged the correct procedure for measuring bleach required using a medicine

cup. Other than Saenz’s own statement, there was no evidence that the supply of measuring cups

was depleted. Saenz stated that she used the syringe because she was concerned about being

precise and following procedure due to the monitors who were present. However, if this were

truly a concern, it would seem logical that Saenz would follow the actual procedure, rather than a

procedure that may have been a common practice. Therefore, the jury could have rationally

discredited Saenz’s explanation for using a syringe to prepare the bleach solution and considered

her doing so as circumstantial evidence to support the eyewitness testimony.

   c. Saenz’s Statements

       Saenz gave a statement to police and also testified before the grand jury. The jury saw

video recordings of both. The State contends that further circumstantial evidence supporting

Saenz’s guilt is found in her statements. The State points to Saenz’s admission during her police

statement that she had been taking medication for depression for six weeks. The State describes

Saenz during the interview as “increasingly impaired, disjointed and irrational.” Lastly, the State

points to the following statement by Saenz during her police interview: “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.”

       During closing argument, the State suggested that Saenz’s statement regarding “pushing

the bleach” was a reference to injecting bleach into the dialysis lines. However, when the statement

is taken in the proper context it is clear that Saenz was discussing pushing the bleach button on the

dialysis machine. This button initiated the machine’s self-cleaning process that utilized bleach.

Saenz was stating that she was careful to initiate this process out of concern that contaminated

water may have been the cause of the recent patient episodes. The jury watched the entire

recording of the interview and was able to make this determination. Saenz does not make any
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other statements that would be considered incriminating, as the State contends. However, a

rational juror could note that Saenz appeared nervous during the interview and that she, not the

police interviewers, was the first to mention bleach as a potential cause of the patient injuries.

   d. Internet Searches

       The State introduced evidence showing that Saenz performed several internet searches on

her computer related to bleach poisoning. The evidence showed that on April 2, 2008, the day

after the first incident involving Strange and Metcalf, a search was performed on Yahoo for “bleach

poisoning.” Searches were also performed during the first week of May 2008 for “bleach given

during dialysis” and “can bleach be detected in dialysis lines.”

       During her April 29, 2008 police interview, Saenz stated that she had been searching online

to find an explanation for the patient injuries. Saenz did not testify and no other explanation was

provided for the internet searches. A rational juror could have considered these searches as

circumstantial evidence connecting Saenz to the bleach injections.

   e. Other Evidence Connecting Saenz

       Saenz challenges the sufficiency of other circumstantial evidence offered to establish her

guilt. Specifically, she claims the testimony that she reduced the blood flow rates for Strange and

Metcalf was not probative because Saenz had a legitimate reason for doing so. Saenz contends

the evidence of her improperly performing CPR on Metcalf was refuted by other testimony and

even if true, Saenz could have been in shock as a result of Strange’s cardiac arrest moments earlier.

       Saenz argues that witnesses saw Saenz approach Kelley’s machine only after the alarm

sounded. Additionally, she argues that Sharon Dearmon testified that only one syringe was

attached to Kelley’s line and that it was a Heparin syringe that Dearmon had placed there. A

syringe on Kelley’s line later tested positive for bleach.



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       Saenz contends Candice Lackey did not see Saenz inject Bryant’s dialysis lines and that

Saenz approached Bryant only when her alarm sounded. Additionally, she argues that Lackey

testified that the blood did not have time to run through the machine and into Bryant’s body

because treatment was stopped when the alarm sounded. Saenz notes that no indication of bleach

was found on Bryant’s dialysis lines.

       Saenz argues the evidence was conflicting with regard to who provided medicine to Opal

Few. Sharon Smith testified that Saenz was instructed to do so and that Saenz later confirmed she

had administered Zemplar to Few. Smith testified that Saenz failed to chart the medication, but

later updated Few’s chart to reflect that she had done so at 9:05 A.M. Few’s assigned nurse, Donya

Heartsfield, testified that she was preparing Few’s medication at the time of her cardiac arrest.

Further, Saenz argues she could not have been near Few at 9:05 A.M. because she was charted as

performing a procedure on the other side of the clinic at 9:00 A.M. on another patient. Saenz notes

that although Few’s syringe had been in a sharps container for at least five days, there was no

blood or other biological matter on the syringe and that the syringe did not include Saenz’s initials.

   C. Conclusion

       “[I]t is not necessary that every fact point directly and independently to the defendant’s

guilt; it is enough if the conclusion is warranted by the combined and cumulative force of all the

incriminating circumstances.” Johnson, 871 S.W.2d at 186. Circumstantial evidence alone can

establish guilt. Hooper, 214 S.W.3d at 13. Ultimately, it was within the jury’s province to

determine the weight and credibility of the evidence. Brooks, 323 S.W.3d at 899. The jury was

presented with expert testimony and physical evidence supporting a conclusion that the victims

were injected with bleach. If the jury believed the eyewitness testimony that Saenz injected bleach

into either Rhone or Risinger, the jury could have considered that as circumstantial evidence

connecting Saenz to instances where patients were injured in a similar manner by bleach injection.
                                                - 34 -
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Deferring to the jury’s determinations and viewing the evidence in the light most favorable to the

verdict, we conclude that the evidence is legally sufficient to support each of Saenz’s convictions.

Winfrey, 393 S.W.3d at 768.

                             INEFFECTIVE ASSISTANCE OF COUNSEL

       In points of error five through eleven, Saenz contends that her trial counsel rendered

ineffective assistance of counsel. She bases her claim on the totality of the representation she

received, and on trial counsel’s failure to: (1) object to an erroneous jury charge; (2) object to the

State’s argument that unanimity was not required; (3) preserve the record to enable meaningful

post-conviction review; (4) preserve the record by going off the record more than 130 times; (5)

request a mistrial concerning a sleeping juror; and (6) impeach key State witnesses.

   A. Standard of Review

       To prevail on a claim of ineffective assistance of counsel, an appellant must prove two

elements by a preponderance of the evidence: (1) deficient performance of trial counsel; and (2)

harm resulting from that deficiency sufficient to undermine confidence in the outcome of the trial.

Strickland v. Washington, 466 U.S. 668, 687 (1984); Ex parte LaHood, 401 S.W.3d 45, 49 (Tex.

Crim. App. 2013).

       Deficient performance is that which “‘fell below an objective standard of reasonableness’

under prevailing professional norms and according to the necessity of the case.” Ex parte Moore,

395 S.W.3d 152, 157 (Tex. Crim. App. 2013) (quoting Strickland, 466 U.S. at 687–88). We begin

with a presumption that counsel’s actions were reasonable and based on sound trial strategy. Id.

To overcome this presumption, an appellant must establish ineffectiveness that is “firmly founded”

and affirmatively demonstrated in the record. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex.

Crim. App. 2005) (quoting Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999)). A

direct appeal is generally an “inadequate vehicle for raising such a claim because the record is
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generally undeveloped.” Id. Trial counsel “should ordinarily be afforded an opportunity to explain

his actions before being denounced as ineffective.” Id. (quoting Rylander v. State, 101 S.W.3d

107, 111 (Tex. Crim. App. 2003)). Absent that opportunity, deficient performance should be found

only if the trial counsel’s conduct was “so outrageous that no competent attorney would have

engaged in it.” Menefield v. State, 363 S.W.3d 591, 593 (Tex. Crim. App. 2012) (quoting Garcia

v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001)).

        Deficient performance is prejudicial to an accused when there is a “reasonable probability

that the outcome of the trial would have been different but for counsel’s deficiency.” LaHood,

401 S.W.3d at 50. “Reasonable probability” is “a probability sufficient to undermine confidence

in the outcome” of the trial. Id. (quoting Strickland, 466 U.S. at 694).

    B. Totality of Representation

        Saenz argues that even if this court “disagrees that any individual deficiency meets the

criteria for ineffectiveness, the errors taken as a whole absolutely denied . . . her right to effective

representation.” Saenz points to the fact that the same trial judge in her case previously determined

her trial counsel to be ineffective in an unrelated case, although the Court of Criminal Appeals

ultimately found no ineffective assistance in that case. See Ex Parte Flores, 387 S.W.3d 626, 636

(Tex. Crim. App. 2012).

        This court has held that reversible error can be shown when “trial counsel’s errors are so

fundamental with such far-reaching implications that no one could excuse them as ‘trial strategy’

because no reasonable lawyer would do them.” Green v. State, 899 S.W.2d 245, 247–48 (Tex.

App.—San Antonio 1995, no pet.). However, the same cannot be said of this case. After

reviewing the record as a whole, we conclude that none of trial counsel’s conduct rises to the level

of being “so outrageous that no competent attorney would have engaged in it.” Menefield, 363

S.W.3d at 593. Trial counsel mounted a rigorous defense that included a thorough examination of
                                                 - 36 -
                                                                                     04-12-00238-CR


each State witness, as well as presentation of rebuttal witnesses for almost all of the State’s key

witnesses.   Trial counsel presented multiple viable defense theories.       Further, trial counsel

conducted multiple offers of proof to preserve excluded evidence. On the whole, the record does

not establish that trial counsel rendered ineffective assistance.

   C. Jury Unanimity

       In points of error six and seven, Saenz alleges ineffective assistance of counsel related to

the jury charge’s alleged failure to require unanimity. Because we have decided that there was no

error in the jury charge, the claim of ineffective assistance on that ground also fails. Failure to

object to a jury charge or comments related to the jury charge when there was no error is not

deficient performance. Luster v. State, 85 S.W.3d 865, 871 (Tex. App.—Eastland 2002, pet. ref’d)

(trial counsel had no duty to object where there was no jury charge error); Vaughn v. State, 888

S.W.2d 62, 71 (Tex. App.—Houston [1st Dist.] 1994, pet. denied) (same).

   D. Failure to Preserve Record

       In points of error eight and nine, Saenz argues that her counsel rendered ineffective

assistance when he failed to adequately preserve the record for meaningful post-conviction review.

Specifically, she contends that trial counsel went off the record more than 130 times. She argues

that trial counsel’s behavior fell below the professional norm as defined by the State Bar of Texas

Guidelines for Capital and Non-Capital representation which imposes a duty on counsel to

preserve the record for appellate review.

       Citing to Ex parte Welborn, 785 S.W.2d 391, 393 (Tex. Crim. App. 1990), Saenz argues

there is no presumption of sound trial strategy when counsel has failed to conduct an adequate

factual and legal investigation. Saenz argues that trial counsel’s failure to preserve the record is

evidence that his legal investigation was inadequate because it shows that he did not understand

Texas Rule of Appellate Procedure 33.1 and the Texas Rules of Evidence. She points to off-record
                                                - 37 -
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exchanges that, based on their context, may relate to the following: (1) a discussion or possible

ruling regarding possible Brady evidence; (2) a possible ruling regarding whether Connie Baker

could testify about why she left the dialysis clinic; (3) the possible voir dire of expert witness Dr.

Jonathan Neidigh; and (4) a possible ruling on evidence possibly connecting Sharon Smith as an

alternate perpetrator.

       “Reviewing courts are obliged to defer to strategic and tactical decisions of trial counsel,

so long as those decisions are informed by adequate investigation of the facts of the case and the

governing law.” Frangias v. State, 392 S.W.3d 642, 653 (Tex. Crim. App. 2013). However, we

cannot determine that trial counsel was not adequately apprised of the governing law when there

has been no evidentiary hearing to discern trial counsel’s strategic motivations. Hollis v. State,

219 S.W.3d 446, 462 (Tex. App.—Austin 2007, no pet.). Unlike the court in Ex Parte Welborn,

in this case there is no evidentiary record to establish that trial counsel did not understand the

governing law. “It is not sufficient that the appellant show, with the benefit of hindsight, that his

counsel’s actions or omissions during trial were merely of questionable competence.” Mata v.

State, 226 S.W.3d 425, 430 (Tex. Crim. App. 2007). Thus, we cannot conclude that the mere

existence of possible off-record exchanges “affirmatively demonstrates” that trial counsel

misunderstood the procedure for preserving error, especially where the record is replete with other

instances where trial counsel demonstrated a strong understanding of those procedures. Bone v.

State, 77 S.W.3d 828, 835 (Tex. Crim. App. 2002). To do so would require us to speculate

regarding trial counsel’s motivations, which we cannot do. Lopez v. State, 343 S.W.3d 137, 142

(Tex. Crim. App. 2011). Rather, we must strongly presume that trial counsel acted in accordance

with a reasonably sound trial strategy. Id. at 143.

       “[T]he presumption that trial counsel’s performance was reasonably based on sound trial

strategy, coupled with the absence of any supporting evidence in the record of unreasonableness,
                                                - 38 -
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compels a reviewing court to consider ways in which trial counsel’s actions were within in the

bounds of professional norms.” Mata, 226 S.W.3d at 431. It is conceivable that trial counsel did

not insist on a record of certain exchanges because the exchanges either were not substantive or

did not include an objection or ruling from the trial court. Indeed, there are instances on the record

where trial counsel approaches the bench to argue an evidentiary issue and insists on a record of

the exchange. Therefore, Saenz has failed to rebut the presumption that her trial counsel’s

performance was reasonably based on a sound trial strategy.

    E. Sleeping Juror

        Next, Saenz argues that her trial counsel rendered ineffective assistance when he failed to

preserve error regarding a sleeping juror by failing to move for a mistrial or make a bystander bill.

Outside of the presence of the jury, trial counsel stated to the trial court:

        And I don’t know that we necessarily need to do it now, but I’m just bringing it to your
        attention. One of the jurors has been sleeping through part of the trial. I don’t know if you
        noticed it or not. It’s been brought to my attention, but I don’t know –


        The judge responded that he saw audience members looking at the jury box but did not see

anyone sleeping. Trial counsel named the juror, who had indicated earlier he would be working

at his construction job in addition to serving on the jury.

        When a juror has been observed sleeping during court proceedings “it is incumbent upon

the objecting party to make a contemporaneous objection.” Thieleman v. State, 187 S.W.3d 455,

458 (Tex. Crim. App. 2005). Error is preserved if the objecting party objects to the presence of

the sleeping juror on the jury, moves for a mistrial, alleges juror misconduct in a motion for new

trial, or files a bill of exception. Id. at 458 n. 3; Harleston v. State, No. 01-09-00481-CR, 2010

WL 2873590, at*2 (Tex. App.—Houston [1st Dist.] Jul. 22, 2010, pet. ref’d). “The trial court

should consider whether ‘the sleeping juror missed large portions of the trial or [whether] the


                                                 - 39 -
                                                                                      04-12-00238-CR


portions missed were particularly critical.’” Menard v. State, 193 S.W.3d 55, 60 (Tex. App.—

Houston [1st Dist.] 2006, pet ref’d) (quoting United States v. Freitag, 230 F.3d 1019, 1023 (7th

Cir. 2000)); Lopez v. State, No. 03-10-00654-CR, 2012 WL 104468, at*2 (Tex. App.—Austin Jan.

11, 2012, no pet.) (trial court did not abuse its discretion in denying mistrial where witnesses were

not certain what evidence, if any, the juror missed).

       Saenz has not established that trial counsel’s performance was deficient when he did not

object to the presence of a sleeping juror. Because we presume that trial counsel was acting

pursuant to a sound trial strategy, trial counsel may have decided not to pursue the objection after

balancing the trial judge’s own observations against whatever source trial counsel had available to

prove the juror was potentially sleeping. In addition, trial counsel could also have taken into

consideration whether he could establish that the sleeping juror missed a significant portion of the

testimony. Moreover, we cannot determine that the outcome of the trial would have been affected

if the juror had been properly challenged. It would be within the trial court’s discretion whether

to remove a juror after hearing relevant evidence of the conduct. There is no assurance in the

record that the trial court would have sustained an objection given his observation that he did not

see any juror sleeping.

   F. Failure to Impeach Witnesses

       In point of error eleven, Saenz contends her trial counsel rendered ineffective assistance

when he failed to properly impeach State witnesses Linda Hall, Werlan Guillory, Stephen Abbott,

Dr. Imran Nazeer, and Sharon Smith. A trial counsel’s decision not to impeach can be considered

sound trial strategy. See Davis v. State, 276 S.W.3d 491, 502 (Tex. App.—Waco 2008, pet. ref’d).

With a silent record, the court must presume that trial counsel was acting pursuant to a sound trial

strategy unless the “conduct was so outrageous that no competent attorney would have engaged in

it.” Menefield, 363 S.W.3d at 593. After a full review of the record, we cannot conclude that the
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outcome of the trial was affected by trial counsel’s failure to impeach the listed witnesses nor can

we discern outrageous conduct by trial counsel.

                                    WITNESS SHARON SMITH

       Points of error twelve through thirteen concern the testimony of a State witness, Sharon

Smith. Saenz contends that she was denied her right to confrontation when: (1) she was denied

meaningful cross-examination of Smith; and (2) the trial court did not allow her to develop

evidence of Smith as an alternate perpetrator.

       Sharon Smith worked as a nurse at the dialysis clinic during the month of April 2008.

According to trial counsel’s statements on the record and outside of the presence of the jury, Smith

had a romantic relationship with a married man and attempted to kill him with a knife. At some

point thereafter, the man received a syringe in the mail with an anonymous note stating “Inject

this. Bang, bang. They’re coming to test it.” It was never determined what substance was inside

the syringe. The State objected to the evidence of these events on the grounds that it was irrelevant

and prejudicial. The court sustained the objection. Trial counsel then conducted an offer of proof

outside of the presence of the jury and examined Smith. Smith denied each of these allegations.

       The crux of Saenz’s argument is that the trial court erred in not allowing her to develop

evidence of Smith as an alternate perpetrator. “Although a defendant obviously has a right to

attempt to establish his innocence by showing that someone else committed the crime, he still must

show that his proffered evidence regarding the alleged alternative perpetrator is sufficient, on its

own or in combination with other evidence in the record, to show a nexus between the crime

charged and the alleged ‘alternative perpetrator’.” Wiley v. State, 74 S.W.3d 399, 406 (Tex. Crim.

App. 2002). Such evidence is subject to Rule 403 balancing. Id. at 408. “It is not sufficient for a

defendant merely to offer up unsupported speculation that another person may have done the

crime. Such speculative blaming intensifies the grave risk of jury confusion, and it invites the jury
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to render its findings based on emotion or prejudice.” Id. at 407 (quoting United States v. McVeigh,

153 F.3d 1166, 1191 (10th Cir. 1998)).

       Saenz failed to offer any evidence to support the alleged incident involving Smith and the

syringe. Smith denied each allegation on the record and the exhibits offered by Saenz during the

offer of proof are not probative. Even assuming Saenz could have established the alleged incident

during a cross-examination of Smith in front of the jury, Saenz offers no nexus between the crime

of injecting patients with bleach and the alleged act of mailing a threatening note with a syringe

containing an unknown substance to an individual completely unrelated to the case at bar.

Moreover, the introduction of such highly speculative evidence is not admissible under Rule 403

because it would present a great threat of confusion of the issues, requiring the State to disprove

that Smith was the perpetrator. See id.

                         EVIDENCE CONCERNING THE DIALYSIS CLINIC

       In points of error fourteen and fifteen, Saenz argues that (1) the trial court reversibly erred

in finding her crucial defensive evidence irrelevant; and (2) she was denied due process when she

was prevented from presenting a complete defense. Saenz argues that she was unable to present

evidence to prove that the dialysis clinic was engaged in a “cover-up.” Specifically, she challenges

the trial court’s exclusion of: (1) TDHHS records wherein the dialysis clinic was cited; (2)

testimony from cleaning employees concerning an unusually large amount of document shredding;

and (3) testimony regarding unsanitary conditions at the dialysis clinic. Additionally, Saenz argues

that the trial court erred in excluding any evidence that was “negative” to the dialysis clinic such

as incidents involving other patients who had become sick at the clinic. Inasmuch as the trial

court’s ruling was based on Rule 404(b), Saenz contends that the rule was inapplicable because

the dialysis clinic is a corporation and not a person.



                                                - 42 -
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       The State responds that Saenz failed to properly preserve error by not objecting to much of

the challenged evidence. Alternatively, the State urges that the evidence is not relevant and thus

inadmissible.

   A. Standard of Review

       We review a trial court’s decision to exclude evidence under the Texas Rules of Evidence

for an abuse of discretion. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990). A

trial court abuses its discretion if its decision falls outside the zone of reasonable disagreement.

Green v. State, 934 S.W.2d 92, 101–02 (Tex. Crim. App. 1996).

   B. TDHHS Report

       Saenz challenges the trial court’s ruling excluding a 2008 TDHHS report wherein the

dialysis clinic was cited for a number of problems. The trial court granted a motion in limine to

exclude the report until a foundation for relevance was established. The court explained that the

report was not relevant to the extent that it established the dialysis clinic had done “bad things” to

patients who were not complainants. At several times during the trial, the trial court explained that

the foundation for the report would not be established until some other evidence was introduced

to link the adverse occurrences in the report to the complainants. Ultimately, the TDHHS report

was offered as an exhibit during an offer of proof. For purposes of review, we will assume that

trial counsel preserved error as to the TDHHS report.

       Trial counsel indicated that the report showed the dialysis clinic was not reporting its

adverse occurrences 68% of the time. An adverse occurrence is when a patient suffers some illness

or incident during dialysis treatment. On appeal, Saenz argues this evidence went to the heart of

her theory that the dialysis clinic was engaged in a “cover-up.” The fact that the dialysis clinic

was not meeting its regulatory obligations does not necessarily mean that the clinic was purposely

concealing information from the State or that it was engaged in a cover-up related to Saenz’s case.
                                                - 43 -
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Without further evidence to support such a cover-up, the trial court did not abuse its discretion

when it excluded the report.

   C. Document Shredding

       Saenz argues that the alleged cover-up was further established by the testimony of two

cleaning contractors who testified that following the April 2008 incidents, the clinic was disposing

of an unusual amount of shredded paper. The State objected that the evidence was not probative

and alternatively, that it was more prejudicial than probative. The trial court excluded the evidence

unless the cover-up was further established. Trial counsel then introduced the testimony through

an offer of proof. Again, Saenz has failed to demonstrate how the alleged document shredding

was relevant to her case. It was not established that any of the documents were related to Saenz’s

case or the incidents involved. The trial court did not abuse its discretion in excluding the

testimony regarding document shredding.

   D. Unsanitary Conditions

       The trial court also excluded testimony from a cleaning contractor who testified that she

had observed unsanitary conditions at the dialysis clinic. The trial court excluded the evidence

until “there’s a showing that would link cleanliness to adverse reactions in the patients.” Trial

counsel offered the testimony through an offer of proof. It is not clear how the existence of any

unsanitary conditions at the facility would tend to prove that the dialysis clinic was engaged in a

cover-up. As it was not alleged that the complainants’ injuries were caused by the unsanitary

conditions, Saenz has failed to established the relevance of this evidence. Accordingly, the trial

court did not abuse its discretion in excluding it.




                                                 - 44 -
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    E. Rule 404(b)

         Lastly, Saenz argues that the trial court erred when it excluded evidence casting the dialysis

clinic in a negative light because Rule 404(b) is inapplicable to corporations. 9 Specifically, Saenz

points to the testimony of dialysis clinic administrator Sandy Lawrence. Before Lawrence

answered a question regarding “problems” the clinic was experiencing, trial counsel ask to

approach the bench. The bench conference was conducted outside of the presence of the jury. The

State never objected on the record. It appears that trial counsel was complying with the motion in

limine by approaching the bench before asking the question. As trial counsel did not object on the

record, Saenz claims he failed to preserve error on this issue. However, the ruling by the trial court

was based on relevance. Although the State’s argument analogized the situation to its inability to

introduce bad acts concerning the defendant, the trial court explained that trial counsel had failed

to establish a foundation for relevance. Therefore, it is not necessary to address the issue of

whether Rule 404(b) applies to corporations.

                                              EXPERT TESTIMONY

         Saenz contends the trial court failed in its gatekeeping function and committed harmful

error by admitting evidence that affected her rights to a fair trial. Specifically, Saenz argues that:

(1) the trial court erred by not conducting a hearing to determine the admissibility of Dr. Sochaski’s

testimony when she requested a hearing; (2) Dr. Sochaski was not qualified to testify that the 3-

chlorotyrosine detected in the complainants’ blood came from a bleach injection because the

theory underlying his opinion was unreliable; and (3) Dr. Sochaski’s testimony and report were

prejudicial and unhelpful, confusing, and misleading to the jury.




9
  Texas Rule of Evidence 404(b) provides in pertinent part, “Evidence of other crimes, wrongs or acts is not admissible
to prove the character of a person in order to show action in conformity therewith.”

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        The State responds that Saenz waived her right to a gatekeeping hearing when she agreed

to have the court make the determination based on the experts’ affidavits. The State also argues

that a gatekeeping hearing actually was conducted because the trial court heard arguments from

counsel on February 21, 2012 and considered the affidavits. Alternatively, the State argues that

the trial court properly admitted Sochaski’s testimony and report.

        The party offering expert testimony under Texas Rule of Evidence 702 must prove by

“clear and convincing evidence that it is sufficiently reliable and that it is relevant in the sense that

it will help the jury reach an accurate result.” Blasdell v. State, 384 S.W.3d 824, 829 (Tex. Crim.

App. 2012). Thus, the proponent must prove (1) the witness qualifies as an expert by reason of

his knowledge, skill, experience, training, or education; (2) the testimony is based on a reliable

scientific foundation; and (3) it is relevant to the issues in the case. Tillman v. State, 354 S.W.3d

425, 435 (Tex. Crim. App. 2011); Davis v. State, 329 S.W.3d 798, 813 (Tex. Crim. App. 2010).

We review the trial court’s determination of reliability and relevance for an abuse of discretion

and will not reverse if it is “within the zone of reasonable disagreement.” Tillman, 354 S.W.3d at

435.

    A. Gatekeeping Hearing

        On February 21, 2012, the trial court held a pre-trial hearing on Saenz’s Motion to Exclude

Lay Testimony and Expert Testimony. During that hearing, trial counsel stated “Now, we’re

asking the Court, based on Daubert and Kelly, to exclude [Sochaski’s] findings based on the

science.” For the next thirty minutes, both sides made arguments related to the reliability of Dr.

Sochaski’s study. The trial court indicated that it wanted to rule on the motion based on the expert

affidavits to avoid the need for a live hearing during the trial. On the record, both of Saenz’s

attorneys indicated their agreement to this approach. Again on February 28, 2012, both sides

argued the reliability of the Sochaski study for over thirty minutes. Again, the trial court indicated
                                                  - 46 -
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its intent to rule on the motion after considering the affidavits of Dr. Sochaski and Dr. Schwartz.

On the first day of trial, March 5, 2012, the trial court denied Saenz’s motion to exclude Dr.

Sochaski’s testimony after considering “the oral arguments of counsel, the written pleadings, and

the affidavits.”

        Before scientific evidence may be admitted, “the trial court must conduct a hearing outside

the presence of the jury” to determine whether the proponent has established its reliability. Jackson

v. State, 17 S.W.3d 664, 670 (Tex. Crim. App. 2000). We review a trial court’s decision “whether,

when, and how” to hold a gatekeeping hearing for abuse of discretion. Piro v. Sarofim, 80 S.W.3d

717, 720 (Tex. App.—Houston [1st Dist.] 2002, no pet.). Thus, a trial court is afforded flexibility

to determine whether and in what manner it will conduct a gatekeeping hearing. DeLarue v. State,

102 S.W.3d 388, 398 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d) (citing Daubert v. Merrell

Dow Pharmaceuticals, Inc., 509 U.S. 579, 594 (1993)). There is no requirement that the court

conduct a live evidentiary hearing. It may be proper for a court to make a determination

considering live testimony or written materials such as depositions, affidavits, or publications.

Piro, 80 S.W.3d at 720 (citing Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152–53 (1999));

Bonner v. State, No. 10-09-00120-CR, 2010 WL 3503858, at*17 (Tex. App.—Waco Sept. 8, 2010,

pet. ref’d) (mem. op., not designated for publication). Here, the trial court exercised its discretion

to determine the reliability of the Sochaski evidence by a combination of pre-trial hearings and

affidavits from the experts. At one point, the trial court indicated that it preferred this approach so

that it could review the scientific evidence in a more contemplative manner. The trial court also

expressed a desire to promote efficient use of jury’s time at trial. As there is no requirement that

the trial court’s gatekeeping determination involve live testimony from the expert, the trial court

did not abuse its discretion by conducting the gatekeeping hearing in this manner.



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    B. Reliability

        Saenz argues that Dr. Sochaski’s testimony is unreliable because Dr. Sochaski relied, in

part, on a study involving rats and mice which Saenz asserts (1) has not been shown to be

applicable to humans, and (2) used a methodology that could not be used in testing on human

subjects.

        The study on which Saenz focuses was conducted by Dr. Sochaski in conjunction with a

scientist from the Environmental Protection Agency. One purpose of the study was to examine

human exposure to chlorine gas for homeland security and workplace safety reasons. Dr. Sochaski

exposed rats and mice to chlorine gas. The animals were then sacrificed and their nasal tissue

analyzed. A gas chromatography mass spectrometer was used to determine the concentration of

3-chlortyrosine in the samples. The study concluded that as the dose amount of chlorine increased

in the rats, their 3-chlorotyrosine levels increased. At trial, several experts likened this to the

relationship between alcohol consumed and one’s blood alcohol content. After completing the

study, Dr. Sochaski wrote a “methods development” article regarding the use of 3-chlortyrosine

as a biomarker to indicate chlorine exposure, and the article was peer reviewed and published in

the Journal of Analytical Toxicology.

        In its response, the State focuses on waiver and offers no substantive counter-argument on

the reliability issue.

    1. Reliability Factors

        We review the trial court’s determination of reliability for an abuse of discretion. Tillman,

354 S.W.3d at 435. In order for scientific evidence to be reliable, “(a) the underlying scientific

theory must be valid; (b) the technique applying the theory must be valid; and (c) the technique

must have been properly applied on the occasion in question.” Vela v. State, 209 S.W.3d 128, 133



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(Tex. Crim. App. 2006) (quoting Kelly v. State, 824 S.W.2d 568, 573 (Tex. Crim. App. 1992)).

The following list of non-exhaustive factors could affect a trial judge’s determination of reliability:

       (1) the extent to which the underlying scientific theory and technique are accepted
       as valid by the relevant scientific community, if such a community can be
       ascertained; (2) the qualifications of the experts testifying; (3) the existence of
       literature supporting or rejecting the underlying scientific theory and technique; (4)
       the potential rate of error of the technique; (5) the availability of other experts to
       test and evaluate the technique; (6) the clarity with which the underlying scientific
       theory and technique can be explained to the court; and (7) the experience and skill
       of the person(s) who applied the technique on the occasion in question.

Kelly, 824 S.W.2d at 573.

       As previously noted, Saenz’s principal contention regarding the reliability of Dr.

Sochaski’s testimony concerns the inapplicability of the methodology used in the rat study to

humans.

   a. Underlying Scientific Theory

       The science itself is not in dispute. Chlorine is a naturally occurring element that exists in

a gaseous form. Sodium hypochlorite is the scientific name for bleach. Sodium hypochlorite is

chemically composed of sodium, oxygen, and chlorine. When the human body is exposed to either

chlorine or sodium hypochlorite, both chlorine and sodium hypochlorite will turn into

hypochlorous acid in the body.         Hypochlorous acid can also be produced by the body

“endogenously” or naturally in certain situations. For instance, when the body has an infection

such as a bacterial infection, the white blood cells will attack the bacteria and secrete hypochlorous

acid in order to kill the infection. Hypochlorous acid also is produced during a heart attack.

Regardless of the source of the hypochlorous acid, it is immediately absorbed by the body and

quickly reacts to form additional compounds. One of the more stable compounds that the body

will produce is 3-chlorotyrosine.




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         Although Saenz chooses to focus on Dr. Sochaski’s rat study, Dr. Sochaski also has

demonstrated the reliability of the 3-chlorotyrosine biomarker in humans. In conjunction with the

CDC’s investigation into the deaths at the dialysis clinic, Dr. Sochaski was sent a total of 54 blood

samples in May and June of 2008. The samples were identified only by a number and Dr. Sochaski

had no way of knowing the source of each sample. According to testimony from Dr. Schwartz,

the blood samples consisted of samples from dialysis clinic patients, patients from a dialysis clinic

in a neighboring county, and patients from the hospital. Dr. Sochaski used the same methodology

he had developed in the earlier rat study to test the blood samples (this testing is referred to as the

CDC study).        None of the control samples showed any level of 3-chlorotyrosine.                             The

complainants’ blood samples, however, showed relatively high levels of 3-chlorotyrosine. Both

Dr. Sochaski and another expert, Dr. Schwartz, testified that the levels of 3-chlorotyrosine shown

in the complainants’ samples were higher than any levels they had ever seen in reported literature,

with one exception: the Mocatta study. In the Mocatta study, the researcher purposely mixed equal

volumes of bleach and human blood plasma together in vitro for thirty minutes. The highest level

in that study was 0.08%. 10

         In addition to the rat study and the CDC study, the fact that 3-chlortyrosine levels increase

as the amount of hydrochlorous acid increases is not a novel idea. Defense expert Dr. Jonathan

Neidigh testified as follows regarding the relationship between 3-chlorotyrosine and chlorine

exposure.

         COUNSEL: So you said there are -- you said that chlorine can cause 3-
         chlorotyrosine?
         NEIDIGH: That’s correct.
         COUNSEL: Can it cause -- can it cause 3-chlorotyrosine at low levels?


10
  Dr. Schwartz testified that this level was close to the average level of the complainants observed in blood samples
taken on or close to their event. Their levels were as follows: Kelley, 0.044%; Oates, 0.14%; Bryant, 0.071%; Bradley,
0.019%; Castaneda, 0.131%.

                                                        - 50 -
                                                                                    04-12-00238-CR


       NEIDIGH: Well, the level of 3-chlorotyrosine is a function, a factor of the amount
       of chlorinating agent. It’s a dose response kind of thing in chemical terms. So if I
       have a small amount of chlorine, I get a small amount of chlorotyrosine.
       COUNSEL: Okay. Can bleach cause 3-chlorotyrosine?
       NEIDIGH: Yes.

       Dr. Neidigh testified that there had been about “a dozen” studies concerning 3-

chlorotyrosine since the 1990s.      Although many of these studies involved measuring 3-

chlortyrosine as a result of endogenously produced hydrochlorous acid, it was established at trial

that the same hydrochlorous acid is produced, whether it be endogenously or from an external

exposure to chlorine.    Additionally, the Mocatta in vitro study observed high levels of 3-

chlorotyrosine.   Likewise, Dr. Schwartz stated in his affidavit that “[t]he formation of 3-

chlorotyrosine from hypochlorous acid is well recognized by multiple experts.” At trial, Dr.

Schwartz testified that Dr. Sochaski’s study was applicable to humans because 3-chlorotyrosine

would be produced regardless of whether the hypochlorous acid was produced endogenously or as

a result of an external exposure.

       Thus, the underlying scientific theory that increases in bleach exposure result in increased

levels of 3-chlorotyrosine was not established exclusively by Dr. Sochaski’s rat study. Rather,

that study reinforced existing common scientific knowledge that exposure to chlorine results in

increased levels of 3-chlorotyrosine. Accordingly, the trial court did not abuse its discretion in

determining that the underlying scientific theory was valid.

   b. Validity of Technique Applying the Underlying Theory

       Dr. Sochaski testified that his methodology utilized a gas chromatography mass

spectrometer (GCMS) to analyze a given tissue for 3-chlorotyrosine. Dr. Sochaski explained that

he used the GCMS to break down proteins in the tissue and separate out the 3-chlortyrosine so that

it could be measured on a molecular level that was common to all organisms. In his affidavit, Dr.

Sochaski stated that “[t]he method of isotope dilution with [GCMS] is one of the most accurate
                                               - 51 -
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methods currently available for the quantitative analysis of chemicals, including chloro-tyrosine,

in biological tissues such as plasma.” Dr. Neidigh testified that use of the GCMS was the proper

instrument to analyze for levels of 3-chlorotyrosine. Dr. Schwartz also accepted this technique as

proper. Accordingly, the trial court did not abuse its discretion in determining that the technique

used to apply the theory was valid and was properly applied. See Jones v. State, 716 S.W.2d 142,

148–49 (Tex. App.—Austin 1986, pet. ref’d) (GCMS used to extrapolate rat tissue study to human

tissue tests where nurse was accused of injecting patient).

   c. Acceptance by the Relevant Scientific Community

       Saenz contends that Dr. Sochaski’s rat study is not peer accepted, and she purportedly cites

to a report by Dr. Melinda Schaeffer, a State witness who never offered testimony, in which Dr.

Sochaski’s study is described as a “novel” test that is not specific for bleach exposure. Saenz’s

citation to Dr. Schaeffer’s report, however, is a citation to her trial counsel’s unsworn pretrial

motion to exclude Dr. Sochaski’s expert testimony. Attached as an exhibit to this motion is a one

page PowerPoint slide titled “Limitations” which includes a bullet point with the following text,

“Novel test [;] – Not specific for bleach exposure [;] – Chlorotyrosine endogenously produced.”

This single bullet on a PowerPoint slide is open for interpretation and hardly supports the

contention that Dr. Schaeffer disagrees with Dr. Sochaski’s methodology.           Moreover, Dr.

Schaefer’s epidemiological report includes the results of the CDC study.

       In addition, Dr. Sochaski’s study involving the rats was peer-reviewed and published. Dr.

Schwartz testified that he accepted Dr. Sochaski’s methodology as applied to humans. Dr.

Schwartz also cited the CDC study in his conclusion that the complainants were injured by a bleach

injection. Although two defense experts testified that they would not accept Dr. Sochaski’s

methodology as applied to humans, the requirement is not one of unanimous acceptance.

Accordingly, the trial court did not abuse its discretion in finding that Dr. Sochaski’s study was
                                               - 52 -
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accepted in the relevant scientific community, especially given the uncontroverted acceptance of

the underlying scientific theory.

   d. Testability and Rate of Error

       Saenz argues that because Dr. Sochaski’s study cannot be ethically tested on live human

subjects, it is not testable and any rate of error cannot be established. Saenz points to a conflict

between Dr. Sochaski’s February 2008 article and his statements at trial. In his February 2008

article, Dr. Sochaski stated:

       The method presented in this paper is only applicable to the use of determining
       exposure levels in laboratory animals, as the collection of samples for assessing
       human exposure using the current technique would be too invasive. Additional
       investigations need to be conducted on making this method less invasive and more
       “user friendly” for diagnostic purposes . . .Although the method presented in this
       manuscript is not likely to be used as a diagnostic for human chlorine gas exposures,
       it does represent a good starting point for future method development and has value
       for applications in research of chlorine absorption in various regions of their
       respiratory tract.

(emphasis added).

       However, in his affidavit and at trial, Dr. Sochaski stated that his methodology was just as

applicable to human blood plasma as it was to rat nasal tissue. Dr. Sochaski explained that the test

is only concerned with the amino acid modification of tyrosine to 3-chlorotyrosine and that all

organisms have tyrosine, whether they be a human, a whale, a rat, or a tobacco leaf. Moreover,

the Mocatta study also demonstrates the applicability of the theory to humans.

   e. Other Kelly Factors

       The clarity with which the underlying scientific theory and technique can be explained to

the court weighs in favor of reliability. Dr. Sochaski testified there was a four-step process in

which the GCMS is used to measure 3-chlorotyrosine concentration. He likened this concentration

to a BAC’s measure of alcohol consumed. He explained that the test is equally applicable to each



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organism because all organisms possess tyrosine. Finally, other literature exists which links

hydrochlorous acid to 3-chlorotyrosine.

     2. Conclusion

        Applying the Kelly factors to Dr. Sochaski’s testimony, we hold that the trial court did not

abuse its discretion in admitting the testimony because the trial court could have concluded from

the evidence presented that: (1) the underlying scientific theory is valid and can be clearly

explained; (2) the use of a GCMS to apply the theory to humans is valid and similar to a BAC

measurement of alcohol consumed; (3) the theory is accepted by the relevant scientific community;

(4) the theory has been applied in testing on human blood plasma; and (5) literature exists which

supports the underlying scientific theory.

     C. Qualification

        Saenz argues that Dr. Sochaski was not qualified because (1) he had no experience testing

3-chlorotyrosine or any other chlorine compound on humans; and (2) his expertise was

inapplicable because he was not a medical doctor. 11

        “If scientific, technical, or other specialized knowledge will assist the trier of fact to

understand the evidence or to determine a fact in issue, [then] a witness qualified as an expert by

knowledge, skill, experience, training, or education may testify thereto in the form of an opinion

or otherwise.” TEX. R. EVID. 702. As the Court of Criminal Appeals has explained:

        Qualification is a two-step inquiry. A witness must first have a sufficient
        background in a particular field, and a trial judge must then determine whether that
        background goes to the matter on which the witness is to give an opinion. The
        proponent must establish that the expert has knowledge, skill, experience, training,
        or education regarding the specific issue before the court that would qualify the
        expert to give an opinion on that particular subject. The focus is on the fit between

11
  We reject the State’s claim that Saenz waived her right to challenge Dr. Sochaski’s testimony and report because
Saenz did not object when Dr. Sochaski was called to testify. Saenz properly preserved error by filing a motion to
exclude the expert evidence and objecting during two pre-trial proceedings. See Gueder v. State, 115 S.W.3d 11, 13
(Tex. Crim. App. 2003).

                                                      - 54 -
                                                                                      04-12-00238-CR


       the subject matter at issue and the expert's familiarity with it. Because the spectrum
       of education, skill, and training is so wide, a trial court has great discretion in
       determining whether a witness possesses appropriate qualifications as an expert on
       a specific topic in a particular case.


Davis, 329 S.W.3d at 813 (citations omitted) (citing Vela v. State, 209 S.W.3d 128, 131–36 (Tex.

Crim. App. 2006)).

       Dr. Sochaski is a research investigator and manager of analytical chemistry services at the

Hamner Institutes for Health Science, a non-profit organization that focuses on drug and chemical

safety for humans. Dr. Sochaski has a Master’s degree in environmental chemistry and a Ph.D. in

bio-analytical chemistry from the University of South Carolina. Dr. Sochaski testified that he

studied analytical methods, development, and sample analysis—“a pretty broad range of different

research topics.” He is a member of the American Chemical Society, the Society of Toxicology,

and the American Society of Mass Spectometry.           Dr. Sochski’s opinion related to the 3-

chlorotyrosine levels he recorded while conducting the CDC study. While there had been other

studies involving 3-chlorotyrosine, Dr. Sochaski’s rat study was the only study to measure 3-

chlorotyrosine levels after exposing a live subject to a chlorinating compound. Accordingly, Dr.

Sochaski had a sufficient background in the field of bio-analytical chemistry, and that background

was sufficiently relevant to the subject of his opinion—levels of 3-chlorotyrosine.

       However, Dr. Sochaski also testified that the 3-chlorotyrosine levels detected in the

complainants’ blood samples were not endogenously produced, but rather the result of an “external

exposure” to a chlorinating compound, although he did not specify that the compound was sodium

hypochlorite. Saenz argues that Dr. Sochaski was not qualified to give this opinion because he is

not a medical doctor. Saenz points to a purported communication between Dr. Sochaski and the

Lufkin Police Department in which Dr. Sochaski stated that the 3-chlorotyrosine levels were the

result of an exposure to some form of chlorinating compound, but then seemed to contradict that
                                               - 55 -
                                                                                       04-12-00238-CR


statement by stating that, because he was not a medical doctor, he could not rule out a “massive

infection” as a possible source. At trial, he also testified that the elevated 3-chlorotyrosine levels

were caused by an external exposure to a chlorinating compound and were not endogenously

produced. However, at trial, he did not base his opinion on ruling out the existence of a massive

infection, but on the fact that he had never seen levels as high in any published literature.

       We find no abuse of discretion even if we assume that Dr. Sochaski was not qualified to

determine that the source of the 3-chlorotyosine levels in the complainants was from an external

exposure to chlorine. We recognize that because he is not a medical doctor, Dr. Sochaski had no

way of ruling out an infection as an endogenous source. Nonetheless, any error from Dr.

Sochaski’s unqualified opinion was rendered harmless by Dr. Schwartz’s expert testimony. An

error related to the improper admission of expert testimony is a non-constitutional error. Coble v.

State, 330 S.W.3d 253, 280 (Tex. Crim. App. 2010). A non-constitutional error is not reversible

if it does not affect the substantial rights of the defendant. TEX. R. APP. PROC. 44.2(b). “A

substantial right is affected when the error had a substantial and injurious effect or influence in

determining the jury’s verdict.” Coble, 330 S.W.3d at 280. In conducting this harm analysis, we

consider “everything in the record” including other testimony and evidence before the jury and

“the character of the alleged error and how it might be considered in connection with other

evidence in the case.” Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000); accord

Davison v. State, 405 S.W.3d 682, 688 (Tex. Crim. App. 2013). Thus, “[a] criminal conviction

should not be overturned for non-constitutional error if the appellate court, after examining the

record as whole, has fair assurance that the error did not influence the jury, or had but a slight

effect.” Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998).

       Dr. Schwartz, a licensed medical doctor and toxicologist whose qualifications are not in

dispute, testified that the 3-chlorotyrosine levels found in the complainants were not produced
                                                - 56 -
                                                                                         04-12-00238-CR


endogenously, but as a result of an external exposure to a chlorinating compound, specifically

sodium hyopchlorite. Dr. Schwartz’s conclusion was based upon the 3-chlorotyrosine levels

recorded in Dr. Sochaski’s CDC study, but it was not based on Dr. Sochaski’s opinion, at trial or

otherwise, regarding the source of the 3-chlorotyrosine. Dr. Schwartz’s opinion was reached after

he reviewed the medical histories of the complainants. He testified that the 3-chlorotyrosine levels

observed in the CDC study were not consistent with an infection because the levels gradually

degraded over time, unlike what would be expected in the event of an infection. Dr. Schwartz also

based his conclusion on the control patient, Oralia Torres, who had an infection and showed no

levels of 3-chlorotyrosine. Additionally, Dr. Schwartz relied on peer-reviewed studies to rule out

other endogenous sources of the 3-chlorotyorsine such as that arising from a heart attack or routine

dialysis treatment. Thus, even assuming Dr. Sochaski was not qualified to rule out an endogenous

source for the complainants’ 3-chlorotyosine levels, Dr. Schwartz was so qualified and he did rule

out an endogenous source. Therefore, any error related to Dr. Sochaski’s opinion was harmless as

it did not have a substantial and injurious effect or influence on the jury’s verdict.

                                            CONCLUSION

       The court’s charge to the jury properly submitted the capital murder charge and the jury’s

verdict on that charge is supported by legally sufficient evidence. There is no showing of

ineffective assistance of trial counsel. Finally, the trial court’s evidentiary rulings were proper.

The judgment of the trial court is affirmed.



                                                   Catherine Stone, Chief Justice

PUBLISH




                                                - 57 -
