Court of Appeals of Texas, Fourth District, San Antonio
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From the 217th Judicial District Court, Angelina County, Texas. Trial Court No. CR28665. The Honorable Barry R. Bryan, Judge Presiding.
For APPELLANT: Amy D. Martin, Heather Lytle, Houston, TX; Robert Morrow, The Woodlands, TX.
For APPELLEE: John G. Jasuta, David A. Schulman, Attorney at Law, Austin, TX; Arthur Bauereiss, Angelina County Assistant District Attorney, Lufkin, TX.
Catherine Stone, Chief Justice.
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 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.
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 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 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
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.
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.
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.
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.
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 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. A CDC toxicologist concluded that Bryant died from injection of bleach into her dialysis line or port.
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 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
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.
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.
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.
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.
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. 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.
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 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.)"
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, 189 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 (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 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. ...