ACCEPTED 04-12-00238-CR FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS 3/9/2015 2:47:15 PM No. 04-12-00238-CR KEITH HOTTLE CLERK IN THE COURT OF APPEALS FOR THE FOURTH JUDICIAL DISTRICT OF TEXAS, AT SAN ANTONIO FILED IN 4th COURT OF APPEALS SAN ANTONIO, TEXAS Kimberly Saenz 3/9/2015 2:47:15 PM Appellant KEITH E. HOTTLE Clerk v.
The State of Texas Appellee On Appeal from the 217th District Court of Angelina County In Cause No. CR-28,665; the Honorable Barry Bryan, Judge Presiding
State’s Supplemental Brief Submitted by:
Art Bauereiss District Attorney for Angelina County State Bar No. 01921800 eMail: abauereiss@angelinacounty.net Post Office Box 908 Lufkin, Texas 75901 (936) 632-5090 phone (936) 637-2818 fax
Attorney for the State of Texas
John G. Jasuta David A. Schulman Post Office Box 783 Post Office Box 783 Austin, Texas 78767-0783 Austin, Texas 78767-0783 lawyer1@johnjasuta.com zdrdavida@davidschulman.com Tel. 512-474-4747 x1 Tel. 512-474-4747 x2 Fax: 512-532-6282 Fax: 512-532-6282 State Bar Card No. 10592300 State Bar Card No. 17833400
Of Counsel on the Brief Oral Argument Conditionally Requested Table of Contents
Index of Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
Identity of Parties and Counsel. . . . . . . . . . . . . . . . . . . . . . . . iv
Statement Regarding Oral Argument. . . . . . . . . . . . . . . . . . . . iv
Note About Abbreviations.. . . . . . . . . . . . . . . . . . . . . . . . . . . . iv
Statement of Facts & Procedural History. . . . . . . . . . . . . . . . 1
Argument & Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
I. Appellant Was “Caught in the Act.”. . . . . . . . . . . . . . . 5
II. Appellant’s Statements. . . . . . . . . . . . . . . . . . . . . . . 11
III. Appellant’s Opportunities to Commit the Offense.. . 14
IV. Substances Involved. . . . . . . . . . . . . . . . . . . . . . . . 24
A - Not Heparin. . . . . . . . . . . . . . . . . . . . . . . . . . . 24 B - Not Renalin. . . . . . . . . . . . . . . . . . . . . . . . . . . 25 C - Not Bleach in Water. . . . . . . . . . . . . . . . . . . . . 26 D - Not Bleach in Dialysis Machines. . . . . . . . . . . 28 E - Not Stress of Dialysis Treatment.. . . . . . . . . . . 29
Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Prayer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Certificate of Compliance and Delivery. . . . . . . . . . . . . . . . . 33
i Index of Authorities
Texas Cases:
Allen v. State, 253 S.W.3d 260 (Tex.Cr.App. 2008). . . . . . . . . 3
Almanza v. State, 686 S.W.2d 157 (Tex.Cr.App. 1985). . . . 2-5
Barrios v. State, 283 S.W.3d 348 (Tex.Cr.App. 2009). . . . . . . 3
Cosio v. State, 353 S.W.3d 766 (Tex.Cr.App. 2011).. . . . . . . . 4
Garcia v. State, 919 S.W.2d 370 (Tex.Cr.App. 1994). . . . . . . 5
Motilla v. State, 78 S.W.3d 352 (Tex.Cr.App. 2002). . . . . . . . 5
Ngo v. State, 175 S.W.3d 738 (Tex.Cr.App. 2005). . . . . . . . . . 3
Reeves v. State, 420 S.W.3d 812 (Tex.Cr.App. 2013).. . . . . . . 4
Saenz v. State, 421 S.W.3d 725 (Tex.App. - San Antonio 2014) . . . . . . . . . . . . . . . . . . . . . 2
Saenz v. State, _____ S.W.3d _____ (Tex.Cr.App. PD-0253-14; December 10, 2014). . . . . . . . . 2
Villarreal v. State, _____ S.W.3d _____ (Tex.Cr.App. PD-0332-13; February 4, 2014). . . . . . . . . . 3
Warner v. State, 245 S.W.3d 458 (Tex.Cr.App. 2008). . . . . . . 4
ii Identity of Parties and Counsel
The parties have not changed since original submission.
Statement Regarding Oral Argument
The State requests oral argument only if Appellant requests
and is granted oral argument.
Note About Abbreviations
In this brief, the State refers to the Clerk’s Record as “CR”
followed by the appropriate page: e.g., “(CR 123).” The State refers
to the Reporter’s Record as “RR” followed by the volume, page and
line numbers: e.g., “(RR Vol. 3, P. 47, L. 12-15).
iii No. 04-12-00238-CR IN THE COURT OF APPEALS FOR THE FOURTH JUDICIAL DISTRICT OF TEXAS, AT SAN ANTONIO Kimberly Saenz Appellant v.
The State of Texas Appellee On Appeal from the 217th District Court of Angelina County In Cause No. CR-28,665; the Honorable Barry Bryan, Judge Presiding
State’s Supplemental Brief TO THE HONORABLE FOURTH COURT” OF APPEALS:
COMES NOW, the State of Texas, by and through her duly
elected District Attorney, Appellee in the above styled and
numbered cause, and respectfully files the State’s Supplemental
Brief, and would show the Court as follows:
Statement of Facts & Procedural History
The events giving rise to the instant prosecution occurred in
the DaVita HealthCare Partners, Inc. (“DaVita”) dialysis facility in
Lufkin, Texas, during April 2008 (RR Vol. 37, P. 25). In that
1 month, ten patients either died following cardiac arrest or
developed symptoms of illness while undergoing dialysis. Appellant
was indicted and charged with one count of capital murder and
five counts of aggravated assault (CR Vol. 1, PP. 75-77).
On original submission the Court affirmed Appellant’s
conviction. Saenz v. State, 421 S.W.3d 725 (Tex.App. - San
Antonio 2014). Appellant sought and was granted discretionary
review, and, ultimately, the Court of Criminal Appeals reversed the
conviction, finding that this Court erred in holding that the jury
charge was not erroneous:
Without unanimous agreement regarding a predicate murder as defined under Section 19.02(b)(1), which in this case could have been any one of the five people she was alleged to have killed, there was no foundation from which to progress to a conviction for capital murder, and the appellant’s right to a unanimous verdict was violated.
Saenz v. State, _____ S.W.3d _____ (Tex.Cr.App. PD-0253-14;
December 10, 2014)(“Saenz II”), slip op. at 7. The Court held,
however, that because Appellant had not objected to the jury
charge, the trial court’s error must be analyzed for egregious harm
under Almanza v. State, 686 S.W.2d 157 (Tex.Cr.App. 1985).
2 The case was remanded to this Court for that purpose. Saenz II,
slip op. at 7-8.
Argument & Authorities
Under Almanza, the degree of harm required for reversal
depends on whether the error was preserved in the trial court.
Villarreal v. State, _____ S.W.3d _____ (Tex.Cr.App. PD-0332-13;
February 4, 2014); Ngo v. State, 175 S.W.3d 738, 743
(Tex.Cr.App. 2005); Almanza, 686 S.W.2d at 171. Where, as here,
the defendant did not raise a timely objection to the jury
instructions, reversal is required only if the error was fundamental
in the sense that it was so egregious and created such harm that
the defendant was deprived of a fair and impartial trial. See
Almanza, 686 S.W.2d at 171; see also Barrios v. State, 283
S.W.3d 348, 350 (Tex.Cr.App. 2009).
Charge error is egregiously harmful if it affects the very basis
of the case, deprives the defendant of a valuable right, or vitally
affects a defensive theory. See Barrios, 283 S.W.3d at 350; see
also Allen v. State, 253 S.W.3d 260, 264 (Tex.Cr.App. 2008).
3 Egregious harm is a “high and difficult standard” to meet, and
such a determination must be “borne out by the trial record.”
Reeves v. State, 420 S.W.3d 812, 816 (Tex.Cr.App. 2013). On
appeal, neither party bears the burden of showing harm or a lack
thereof under this standard. Warner v. State, 245 S.W.3d 458,
464 (Tex.Cr.App. 2008).
A reviewing court reverses a conviction when it has found that
the defendant suffered “actual rather than theoretical harm.”
Cosio v. State, 353 S.W.3d 766, 777 (Tex.Cr.App. 2011). In
examining the record to determine whether charge error has
resulted in egregious harm to a defendant, the Court should
consider:
Ø the entirety of the jury charge;
Ù the state of the evidence, including the contested issues and weight of probative evidence;
Ú the arguments of counsel; and
Û any other relevant information revealed by the trial record as a whole.
Almanza, 686 S.W.2d at 171.
4 The presence of overwhelming evidence supporting the finding
of guilt can be a factor in the evaluation of harmless error. Motilla
v. State, 78 S.W.3d 352, 357 (Tex.Cr.App. 2002). Additionally,
under Almanza, where the evidence of the defendant’s guilt is
overwhelming, the error may be considered harmless. Garcia v.
State, 919 S.W.2d 370 (Tex.Cr.App. 1994). In the instant case,
the evidence establishing Appellant’s criminal responsibility for the
deaths of five victims through the unique manner and means of
injecting bleach was overwhelming.
I. Appellant Was “Caught in the Act.”
The events giving rise to the instant prosecution occurred in
the DaVita dialysis facility in Lufkin, Texas, during April 2008 (RR
Vol. 37, P. 25). On April 28, 2008, the clinical coordinator for the
DaVita dialysis facility was overseeing the scheduling of patients
and employees after several adverse events to dialysis patients had
occurred throughout that month (RR Vol. 37, PP. 16-25). She
reassigned Appellant (a licensed vocational nurse or “LVN”
5 employed by DaVita) to work as a patient care technician (“PCT”)1
rather than as a medications nurse (RR Vol. 37, P. 28). Appellant
was upset by the work reassignment and got teary-eyed (RR Vol.
37, PP. 30-31).
Appellant preferred to be the medications nurse rather than
a PCT, which involved the more stressful work of direct patient
care (RR Vol. 34, P. 64; Vol. 36, P. 129). She had previously
complained and was looking for another job (RR Vol. 34, PP. 60,
63; RR Vol. 37, P. 171). She thought it was unfair that other LVNs
got to give medications and she always had to take patients (RR
Vol. 36, P. 54). Appellant also had complained about several
specific patients (Metcalf, Strange, Few, Oates, Kelley, Rhone and
Risinger) and didn’t appear happy at work (RR Vol. 34, P. 99; Vol.
37, PP. 171, 203; Vol. 44, P. 14).
1 PCT’s do not have a medical license and can’t do certain procedures without delegation by the medical director (RR Vol. 34, P. 166) The PCT creates the morning bleach solution used for cleaning up surfaces (RR Vol. 34, P. 167)
6 Linda Hall2 and Lurlene Hamilton3 (dialysis patients at the
DaVita facility in Lufkin) saw Appellant obtain a syringe from the
nurse’s station,4 pour bleach from a bottle5 into a container, slide
the container holding the bleach down the counter and set it on
the floor, squat down to draw bleach from the container into the
syringe, return the container back to the nurse’s station, walk over
to dialysis patient Marva Rhone, look around, push the syringe
into the port hole for Rhone’s medication and inject the bleach (RR
Vol. 33, PP. 113-117, 191-237; Vol. 35, PP. 202-204; Vol. 36, PP.
24-25). Hall was clear that Appellant did not inject the syringe
2 Hall testified at trial. In addition, a deposition of Hall and a written statement she made to the Board of Nurse Examiners were admitted into evidence (RR Vol. 33, P. 146; State’s Exhibit No. 67; Deposition Exhibit No. 7). 3 Hamilton did not testify at trial because she had died. However, her recorded deposition was admitted into evidence (RR Vol. 33, P. 180); State’s Exhibit No. 68) A transcript of that deposition also was admitted into evidence, along with an earlier unsuccessful deposition (RR Vol. 34, P. 13; State’s Exhibit No. 69; Defense Exhibits Nos. 4-5) Additionally, a written statement made by Hamilton was admitted into evidence (RR Vol. 33, P. 200; State’s Exhibit No. 69-2 or Deposition Exhibit No. 2). 4 For a photo of the nurse’s station, see State’s Exhibit No. 65 (RR Vol. 33, P. 111). 5 For a photo of a bleach bottle used in the facility, see State’s Exhibit No. 66 (RR Vol. 33, P. 111).
7 into Rhone’s saline bag; she injected it into Rhone’s IV tubing,
where medication is received (RR Vol. 33, PP. 134, 137).
Appellant then placed the syringe into a Sharps container
(used for the disposal of syringes)6 located at another patient’s
dialysis machine rather than the container at Rhone’s machine
(RR Vol. 35, P. 209; State’s Exhibit No. 67, PP. 31, 36, 40).
Hamilton also said she saw Appellant use a syringe to inject
bleach into the IV line for dialysis patient Carolyn Risinger (RR
Vol. 33, P. 191).
After witnessing the event, Hall told a DaVita employee, “I saw
that nurse putting something out of the bleach pan in Ms. Rhone’s
IV” and “It scared me to death” (RR Vol. 33, P. 116). She also told
the employee, “Please don’t let her touch me no more” (RR Vol. 33,
P. 117). Hall was scared and upset (RR Vol. 35, P. 203). Hamilton
was so upset that she said, “She is going to kill us all. She is going
to kill us all” (RR Vol. 33, PP. 195-196). Hamilton was crying and
scared when she reported what she saw (RR Vol. 35, P. 200).
6 See State’s Exhibit No. 82 (RR Vol. 34, PP. 163-165).
8 The DaVita clinical coordinator met with Hamilton and Hall,
who were excited and upset (RR Vol. 376, P. 32). She listened to
their description of Appellant’s actions and recovered the Sharps
container (RR Vol. 37, P. 35). She then confronted Appellant, who
denied giving anyone any medication, but admitted drawing up a
bleach mixture on the floor (RR Vol. 37, P. 35). The coordinator
sent Appellant home for the day (RR Vol. 37, P. 39), then opened
the Sharps container, took out a syringe, squirted out some liquid
onto a bleach testing strip and watched it turn purple, indicating
the presence of bleach (RR Vol. 37, P. 42).
The coordinator then got another bleach testing strip and
found that the inside of the syringe tested positive for bleach (RR
Vol. 37, P. 43; Vol. 41, P. 35; Vol. 42, PP. 15-17). She testified
that, after two syringes tested positive for bleach, “My heart fell. I
was thinking, oh, goodness” (RR Vol. 37, P. 43).
Another employee, testing syringes in another Sharps
container, also had two syringes test positive for bleach (RR Vol.
37, P. 43). Subsequent lab testing confirmed the presence of
9 bleach in three of the needles (RR Vol. 38, PP. 40-43; State’s
Exhibit Nos. 11A, 12A 15A). The investigating officer could smell
bleach on the syringes (RR Vol. 38, P. 50).
On April 29, 2008, all DaVita employees were supposed to
attend a meeting (RR Vol. 36, P. 141). Appellant was absent and
told a PCT, when called, that she was not coming to the meeting
even though she could lose her job (RR Vol. 36, P. 142). The PCT
later met with Appellant, who was crying and didn’t recognize the
PCT at first (RR Vol. 36, P. 143). The PCT testified, “She told me
that she didn’t kill those people,” and seemed like she had lost all
the hope in the world (RR Vol. 36, PP. 144,176).
Subsequent testing by the FDA confirmed the presence of
bleach in syringes connected to certain patients. The agency then
seized the DaVita facility (RR Vol. 39, PP. 137-145; Vol. 40, PP. 9-
19).7
7 For a chart listing seized syringes, the related Sharps container and the FDA lab results, see State’s Exhibit No. 195 (RR Vol. 41, P. 93-95).
10 Subsequent forensic examination of a home computer
(containing Appellant’s tax returns, letters and e-mails) seized
from Appellant showed that, on April 2, 2008, there had been a
search through a Yahoo search engine for “bleach poisoning,”
leading to the location of an article on chlorine poisoning (RR Vol.
42, PP. 61-64). In addition, the examination showed searches in
the first week of May 2008 for “bleach given during dialysis” and
“can bleach be detected in dialysis lines” (RR Vol. 42, P. 65).
II. Appellant’s Statements
Appellant’s recorded interview on April 29, 2008, at the
Lufkin Police Department, and a transcript of that interview, was
admitted into evidence (State’s Exhibits 86 & 86A). During the
interview, Appellant admitted taking medication for depression,
and having started the medication six weeks earlier (RR Vol. 36,
P. 197). Her interview was increasingly impaired, disjointed and
irrational (RR Vol. 38, PP. 35-36).
During the interview, Appellant speculated that bleach in the
machines was responsible for the problems at the DaVita facility
11 (RR Vol. 36, P. 188). Referring to how she rushed the delivery of
medications, she also said, “I just have a habit of pushing the
bleach ‘cause I just – I don’t know when it was last done, and I
don’t want to kill my patients” (RR Vol. 36, P. 189). As to the
allegation that she injected something into Rhone’s port, she
claimed she only gave Rhone some saline solution (RR Vol. 36, PP.
199-200, 208).
Appellant explained the procedure for creating a bleach
solution (RR Vol. 36, P. 201), and seemingly acknowledged that
there was no reason to use a syringe to draw bleach (RR Vol. 36,
P. 202). Then she claimed she sometimes used a syringe when the
measuring cups were not available (RR Vol. 36, P. 203).8
Appellant’s descriptions then become confusing (RR Vol. 36,
PP. 203-206). She did deny going over to any patients on April 28,
8 A PCT with 20 years of experience at DaVita said she had never seen appellant use a syringe to measure out bleach to prepare the diluted solution and would have reported it to her superiors if she had seen it, because they never used syringes in that way (RR Vol. 36, PP. 56-57). Other employees also had never seen anyone at DaVita use a syringe to create the diluted bleach solution. (RR Vol. 36, P. 128; 37, P. 172) At a team meeting, employees were told to use a measuring cup. (RR Vol. 36, P. 13).
12 2008, with a syringe because she was not doing any medications
that day (RR Vol. 36, P. 207).
On March 31, 2009, Appellant testified before a grand jury
(RR Vol. 37, P. 216). A recording and transcript of that testimony
was admitted into evidence (RR Vol. 37, P. 216; State’s Exhibits 93
& 93A).
During her grand jury testimony, Appellant explained that on
April 28, 2008, she was flushing the dialysis machine with saline
because of clotting (RR Vol. 37, P. 220). She explained that she
drew up bleach in a syringe because supervisors were watching
and she wanted to do everything by the book (RR Vol. 37, P. 221).
She also said measuring cups were unavailable (RR Vol. 37, P.
224).9 She claimed she poured bleach into a cap of the bottle,
drew up bleach with the syringe and put the syringe in a Sharps
container afterward (RR Vol. 37, PP. 225-226). Appellant did not
testify at trial.
9 The investigating officer testified to seeing measuring cups in the DaVita facility on April 28, 2008 (RR Vol. 38, P. 63). A PCT testified she couldn’t remember the facility ever running out of measuring cups for bleach. (RR Vol. 43, P. 59).
13 III. Appellant’s Opportunities to Commit the Offense
The indictment named ten (10) victims of bleach injections.
Five died and five were injured.10 Appellant was working on every
date that involved a bleach-related injection to a patient.
After reviewing all the records and testing results, a physician
and specialist in toxicology with the Center for Disease Control
concluded that the deaths and/or injuries of Rhone, Risinger,
Oates, Castaneda, Bradley, Few, Kelley, Metcalf, Strange and
Bryant were all caused by the injection of bleach into a dialysis
line or port (RR Vol. 42, PP. 164-168). The following information
details those events for each victim.
April 1, 2008
Clara Strange. Strange used a central venous catheter for dialysis (RR Vol. 42, P. 107).11 A PCT observed that appellant was assigned to watch Strange while he was on a break (RR Vol. 36, P. 119). The PCT returned from the
10 For a calendar listing the names of the patients who suffered from bleach injections and the dates of those events, see State’s Exhibit No. 87 (RR Vol. 70). For a calendar matching the dates of the bleach injections and appellant’s scheduled working days, see State’s Exhibit No. 101 (RR Vol. 38, P. 64). 11 For details regarding Ms. Strange’s dialysis treatment, see State’s Exhibit No. 32.
14 break and found Strange was unresponsive and not breathing. Strange was transported to a hospital (RR Vol. 36, P. 120; State’s Exhibit No. 27). A physician and specialist in toxicology with the Center for Disease Control concluded she died from injection of bleach into a dialysis line or port (RR Vol. 42, PP. 164-168).12
Thelma Metcalf. Metcalf went to the DaVita facility for dialysis (RR Vol. 35, P. 186).13 She used a central venous catheter (RR Vol. 42, P. 107). A PCT observed that Metcalf became unresponsive shortly after Strange had coded (RR Vol. 36, P. 121). Appellant was the PCT assigned to Metcalf (RR Vol. 36, P. 121). An LVN saw Appellant turn down Metcalf’s blood-flow rate (RR Vol. 37, P. 170). A person can reduce the likelihood of an alarm going off by turning down the blood-flow rate on the machine (RR Vol. 37, P. 206).
An employee of DaVita told Appellant to open an airway for Metcalf when doing CPR compression (RR Vol. 40, P. 60). When Appellant didn’t respond, the employee took the air bag from her and took over providing air (RR Vol. 40, P. 61). Metcalf was transported to the emergency room of a hospital by ambulance (State’s Exhibit No. 24). Subsequent testing of the blood tubing used in Metcalf’s dialysis on April 1 showed positive for the presence of bleach (RR Vol. 39, PP. 151-152).14 DNA testing confirmed the tubing as coming from Metcalf (RR Vol. 36, P. 76; Vol. 38, P. 62; State’s Exhibit No. 84).
12 For the chart listing the results of testing for the presence of bleach in Strange’s blood tubing, see State’s Exhibit No. 163. 13 For details regarding her dialysis treatment, see State’s Exhibit No. 33. 14 For a color-coded diagram showing the location of bleach in that tubing, see State’s Exhibit No. 160 (RR Vol. 39, P. 134).
15 Based on a review of DaVita records for Metcalf from her dialysis, a medical officer from the Center for Disease Control concluded that something caused her blood pressure to fall significantly near the time Appellant was charted as being near Metcalf (RR Vol. 42, PP. 111-112). Metcalf became unresponsive, stopped breathing and had no pulse; CPR was started and someone called 911 (RR Vol. 42, P. 113). A physician and specialist in toxicology with the Center for Disease Control concluded Metcalf died from injection of bleach into a dialysis line or port (RR Vol. 42, PP. 164-68)
April 16, 2008
Graciela Castaneda. Ms. Castaneda went to the DaVita facility for dialysis (RR Vol. 35, PP. 40-41).15 While receiving treatment, she lost consciousness and was transported to a hospital (RR Vol. 35, PP. 40-41; State’s Exhibit No. 25). Ms. Castenada had heart problems and needed oxygen (RR Vol. 35, PP. 63-64). Her ongoing illnesses had impacted her memory and mental functioning (RR Vol. 38, PP. 148-149).
Subsequent testing of a plasma sample from Castaneda was positive for the high level of chlorotyrosine, confirming exposure to bleach in the blood stream (RR Vol. 39, PP. 85-87; Vol. 42, P. 149). However, testing for her blood tubes were inconclusive for the presence of bleach (RR Vol. 39, P. 153).16
15 For details regarding Ms. Cstaneda’s dialysis treatment, see State’s Exhibit No. 34. 16 For a color-coded diagram showing the results of testing on Castaneda’s tubing, see State’s Exhibit No. 158 (RR Vol. 39, P. 134).
16 Castaneda’s blood work showed elevated LDH, suggesting bleach had been injected (RR Vol. 42, PP. 123-124; State’s Exhibit No. 227). A physician and specialist in toxicology with the Center for Disease Control concluded she was injured by an injection of bleach into her dialysis tubing (RR Vol. 42, PP. 164-168).
Castaneda would chew gum during dialysis (RR Vol. 44, P. 196). Defense experts (a nephrologist and forensic pathologist) opined that Castaneda choked on her gum (RR Vol. 47, P. 100; 48, PP. 35-36).
Garlin Kelley. Mr. Kelley went to the DaVita facility for dialysis (RR Vol. 33, P. 170; Vol. 335, P. 120).17 After being started on dialysis, he was doing fine (RR Vol. 36, P. 81). Appellant was his medicine nurse (RR Vol. 36, P. 82). A PCT heard Kelley’s machine alarm (RR Vol. 36, P. 84), and saw Appellant about to restart his dialysis machine but told her to wait because Kelley was “just laying out. His eyes were hazed” (RR Vol. 36, P. 86).
A PCT and RN saw an unusual clot in Kelley’s arterial chamber (RR Vol. 35, P. 124; Vol. 36, PP. 87-88). Kelley had a cardiac arrest and was taken to a hospital, but never regained consciousness (RR Vol. 33, P. 173; State’s Exhibit No. 22).
Subsequent testing of a plasma sample from Kelley was positive for the high level of chlorotyrosine, confirming exposure to bleach in the blood stream (RR Vol. 39, PP. 80-81, 84; Vol. 42, P. 149). Subsequent testing of the blood tubing for Kelley and an attached
17 For details regarding Mr. Kelley’s dialysis treatment, see State’s Exhibit No. 35.
17 syringe tested positive for the presence of bleach and chlorate (RR Vol. 39, PP. 154-155).18 Subsequent DNA testing confirmed the blood tubing came from Kelley (RR Vol. 36, P. 76; Vol. 38, P. 62; State’s Exhibit No. 84). A physician and specialist in toxicology with the Center for Disease Control concluded Kelley died from injection of bleach into a dialysis line or port (RR Vol. 42, PP. 164- 168).
April 22, 2008
Cora Bryant. Bryant went to DaVita facility for dialysis (RR Vol. 35, P. 190).19 Everything seemed fine until her machine alarmed (RR Vol. 37, P. 161). A LVN saw Appellant trying to reset Bryant’s machine and heard Bryant asking Appellant what medication was being given (RR Vol. 37, PP. 163, 165). Bryant then had a cardiac arrest, which meant something had to have been delivered to her (RR Vol. 37, PP. 165, 167).
The medical director had not expected her to die on dialysis, even though she had several medical issues (RR Vol. 38, PP. 152-153). Bryant was transported to the emergency room of a hospital by ambulance (State’s Exhibit No. 23).
A dialysis machine will typically alarm if something is injected, such as medication (RR Vol. 37, P. 205). A person can reduce the likelihood of an alarm going off by turning down the blood-flow rate on the machine (RR
18 For a color-coded diagram showing the location of bleach in that tubing, see State’s Exhibit No. 161 (RR Vol. 39, P. 134). 19 For details regarding Ms. Bryant’s dialysis treatment, see State’s Exhibit No. 36.
18 Vol. 37, P. 206). A LVN saw Appellant turn down Bryant’s blood-flow rate (RR Vol. 376, P. 167).
Subsequent testing of a plasma sample from Bryant was positive for chlorotyrosine, confirming exposure to bleach in the blood stream (RR Vol. 39, PP. 84-88; Vol. 42, P. 149).20 Her blood work showed elevated LDH, suggesting bleach had been injected (RR Vol. 42, PP. 123-124; State’s Exhibit No. 227).21
Subsequent DNA testing confirmed the blood tubing came from Bryant (RR Vol. 36, P. 76; Vol. 38, P. 62; State’s Exhibit No. 84). A physician and specialist in toxicology with the Center for Disease Control concluded she died from injection of bleach into a dialysis line or port (RR Vol. 42, PP. 164-168).
April 23, 2008
Marie Bradley. Bradley went to the DaVita facility for dialysis (RR Vol. 35, P. 13).22 While receiving treatment, she had an event and woke up in the hospital three and a half days later (RR Vol. 35, P. 13). Bradley had no memory of what happened to her (RR Vol. 35, P. 33). She was transported to an emergency room of a hospital by ambulance (State’s Exhibit No. 21). She recovered and was doing well at the time of trial (RR Vol. 38, PP. 149-150).
20 Oralia Torres was receiving dialysis only one chair away from Bryant on April 22, 2008. Blood testing on Torres was negative for chlortyrosine, suggesting that Bryant got something different during dialysis (RR Vol. 42, PP. 162-164). 21 For the chart listing the results of testing for the presence of bleach in Bryant’s blood tubing, see State’s Exhibit No. 164. 22 For details regarding Bradley’s dialysis treatment, see State’s Exhibit No. 37.
19 Based on a review of DaVita records for Bradley from her dialysis, a medical officer from the Center for Disease Control concluded her blood pressure dropped significantly without any real change in her heart rate or blood flow during the time that Appellant charted observing her (RR Vol. 42, PP. 113-114). Subsequent testing of a syringe labeled for delivery of the drug Zemplar to Bradley on April 23 tested positive for the presence of bleach (RR Vol. 39, PP. 143-144). Her blood work showed elevated LDH, suggesting bleach had been injected (RR Vol. 42, PP. 123-124; State’s Exhibit No. 227). Subsequent testing of blood tested positive for chlorotyrosine (RR Vol. 42, P. 149). A physician and specialist in toxicology with the Center for Disease Control concluded she was injured by an injection of bleach into a dialysis line or port (RR Vol. 42, PP. 164- 168).
April 26, 2008
Opal Few. Few went to the DaVita facility for dialysis (RR Vol. 36, P. 45).23 She used a central venous catheter (RR Vol. 42, P. 107). The medical director said she was lively and full of energy despite her age and medical issues (RR Vol. 38, PP. 153-154). However, she began having problems within minutes of being put on dialysis (RR Vol. 35, P. 117).
Ms. Few was unresponsive, didn’t have a heartbeat and was not breathing (RR Vol. 35, P. 118). A PCT observed that Appellant didn’t seem to care about Few’s condition (RR Vol. 36, P. 125). Few was transported to an emergency room by ambulance (State’s Exhibit No.
23 For details regarding Few’s dialysis treatment, see State’s Exhibit No. 38.
20 20). A registered nurse recalled asking Appellant to give Few her medications just before the problems began (RR Vol. 35, P. 118). Appellant admitted to the nurse that she gave Few the medicine Zemplar but didn’t document it on the computer until after being told to do so (RR Vol. 35, PP. 119, 178).
Subsequent testing of a plasma sample from Few was positive for chlorotyrosine, confirming exposure to bleach in the blood stream (RR Vol. 39, P. 87). Subsequent testing of a syringe labeled for delivery of the drug Zemplar to Few on April 26, 2008, was positive for the presence of bleach (RR Vol. 39, P. 143). Subsequent testing of the blood tubing for Few used on April 26, 2008, was positive for the presence of bleach (RR Vol. 39, PP. 145-146).24
Punctures in the blood tubing for Few were consistent with the use of a syringe with a 3-pointed tip (RR Vol. 40, PP. 36-37). Subsequent DNA testing confirmed the blood tubing came from Few (RR Vol. 36, P. 76; Vol. 38, P. 62; State’s Exhibit No. 84). A physician and specialist in toxicology with the Center for Disease Control concluded she died from injection of bleach into a dialysis line or port (RR Vol. 42, PP. 164-168).
Debra Oates. Oates went to the DaVita facility for dialysis (RR Vol. 35, P. 78).25 A registered nurse (“RN”) saw Appellant administer something into Oates’ blood lines and then drop a syringe into a Sharps container (RR Vol. 35, P. 180).
24 For a color-coded diagram showing the location of bleach in that tubing, see State’s Exhibit No. 159 (RR Vol. 39, P. 134). 25 For details regarding Oates’ dialysis treatment, see State’s Exhibit No. 39.
21 Oates saw Appellant just before she started having problems, had a funny taste in her mouth and asked appellant, “What did you give me?” (RR Vol. 35, P. 88- 93). Oates then became sick, began bleeding and had the sensation her bones were being crushed (RR Vol. 35, P. 79). She also had chest pain and was unable to breath (RR Vol. 35, P. 80). Ms. Oates also had signs of an anxiety attack, including a rapid heartbeat and sweating. She said she didn’t feel right and that something was going on (RR Vol. 35, P. 112).
Oates also complained of nausea and vomited (RR Vol. 35, P. 113; Vol. 36, PP. 122-123). Her blood pressure dropped significantly and she was “not feeling good.” (RR Vol. 42, PP. 114-115). Oates was taken to a hospital by ambulance (RR Vol. 35, PP. 79, 113; State’s Exhibit No. 26). She recovered and was doing relatively well at the time of trial (RR Vol. 38, PP. 147-148).
Subsequent testing of a plasma sample from Oates was positive for a high level of chlorotyrosine, confirming exposure to bleach in the blood stream (RR Vol. 39, PP. 81-82; Vol. 42, P. 149). Her blood work showed elevated LDH, suggesting bleach had been injected (RR Vol. 42, PP. 123-124; State’s Exhibit No. 227). A physician and specialist in toxicology with the Center for Disease Control concluded she was injured by an injection of bleach into her dialysis line or port (RR Vol. 42, PP. 164- 168).
22 April 28, 2008
Marva Rhone. 26 A PCT put Rhone on dialysis on April 28, 2008 (RR Vol. 34, P. 49).27 Before leaving for a break, the PCT observed that Rhone was doing fine (RR Vol. 34, P. 50). Hall and Hamilton then observed Appellant inject bleach into a port on Rhone’s dialysis machine (see supra). Upon returning from break, the PCT noticed Rhone’s blood pressure was dropping, that she appeared to squirm and looked uncomfortable (RR Vol. 34, P. 52).
Ms. Rhone became nauseated, began throwing up, became weak, had slurred speech and could hardly talk (RR Vol. 33, PP. 154-155; Vol. 35, P. 205). She reported pain along her ribs (RR Vol. 34, P. 56). Rhone went to a hospital for blood work (RR Vol. 33, P. 156), which showed elevated potassium and LDH, suggesting bleach had been injected (RR Vol. 42, PP. 123-124; State’s Exhibit No. 227).28 A physician and specialist in toxicology with the Center for Disease Control concluded she was injured by an injection of bleach into her dialysis line or port (RR Vol. 42, PP. 164-168).
Carolyn Risinger. During dialysis,29 Risinger became sick (RR Vol. 35, P. 205). Hamilton observed Appellant inject bleach into a port on Risinger’s dialysis machine (see supra). Ms. Risinger was reclined, given a cloth on
26 Rhone did not testify at trial because she died in 2011 after a kidney transplant (RR Vol. 33, P. 160; Vol. 38, PP. 144-145). 27 For details regarding Rhone’s dialysis treatment, see State’s Exhibit No. 30. 28 For the chart listing the results of testing for the presence of bleach in Rhone’s blood tubing, see State’s Exhibit No. 162 (RR Vol. 39, P. 133). 29 For details regarding Risinger’s dialysis treatment, see State’s Exhibit No. 31.
23 her head and received oxygen and saline (RR Vol. 34, P. 191). A physician and specialist in toxicology with the Center for Disease Control concluded she was injured by an injection of bleach into her dialysis line or port (RR Vol. 42, PP. 164-168).
The Risinger blood tubes from her dialysis machine were not turned over to police (RR Vol. 37, P. 114). In addition, blood samples from April 28, 2008, were unavailable because Risinger did not go to the hospital after her event (RR Vol. 42, P. 123; Vol. 43, P. 22).
Risinger did not testify at trial because she died from a motor vehicle accident (RR Vol. 38, P. 146). Risinger’s husband testified, however, stating that neither he nor his wife saw Appellant do anything out of the ordinary and never came over to her dialysis machine (RR Vol. 43, PP. 13, 19). A PCT also testified she didn’t see anyone inject anything at Risinger’s dialysis chair (RR Vol. 43, P. 51). A dialysis patient, who focused on Risinger that day, didn’t see Appellant do anything to Risinger (RR Vol. 43, PP. 112-114). A defense expert opined that Risinger simply suffered from high blood pressure and end-stage renal disease (RR Vol. 48, P. 41).
IV. Substances Involved
A - Not Heparin
The drug Heparin is used in dialysis to keep a patient’s blood
from clotting (RR Vol. 34, P. 138). The medical director eliminated
Heparin as a cause of any problems with the ten patients at the
24 DaVita facility (RR Vol. 38, P. 161). Indeed, appellant stipulated
that the Heparin used by the DaVita facility did not have any
problems (RR Vol. 39, PP. 199-203; State’s Exhibit No. 168). The
evidence clearly showed that the substance involved was not
Heparin.
B - Not Renalin
Two categories of dialyzers were available for use by patients,
re-use and non re-use dialyzers (RR Vol. 34, P. 140). Non re-use
dialyzers were used a single time and then disposed. Re-use
dialyzers were cleaned between uses by the same patient through
a Renatron, which rinsed the dialyzer with processed water and
cleaned it with Renalin (peracetic acid) (RR Vol. 34, P. 142).
If a patient were exposed to Renalin through a re-use dialyzer,
the symptoms would begin immediately upon the initiation of
dialysis and include a burning sensation in the access point, a
funny breath odor, chest pains, vomiting, nausea and breathing
difficulty (RR Vol. 34, P. 141). The DaVita facility stopped using
25 re-use dialyzers after April 16, 2008 (RR Vol. 37, P. 26; Vol. 40, P.
44).
For Metcalf, treatment records show her dialyzer was clear of
Renalin (RR Vol. 37, PP. 64-65). Patients Few and Bradley did not
use a re-use dialyzer (RR Vol. 37, PP. 65-66). The medical director
eliminated Renalin as a cause of any problems with patients at the
DaVita facility (RR Vol. 38, PP. 163-172).
C - Not Bleach in Water
Throughout the trial, Appellant attempted to suggest that
chlorine entered the dialysis machines through the city water used
by the facility. Dialysis requires the use of processed water (RR
Vol. 34, P. 143).
Water used at the DaVita facility was initially drawn from the
city water supply (RR Vol. 37, PP. 49-50). However, the facility
filtered out any chemicals, including chlorine (RR Vol. 34, P. 198;
Vol. 37, PP. 49-50). The dialysis facility tested the water every four
hours for the presence of chlorine (RR Vol. 34, P. 170; Vol. 37, PP.
26 51-52; Vol. 40, P. 49). Dialysis would stop if chlorine was detected
(RR Vol. 34, P. 171).
The medical director eliminated chlorine break-through from
the city water supply as a cause of any problems (RR Vol. 38, PP.
162-172; Vol. 39, PP. 47-49). The biomedical technician for the
DaVita facility reviewed the testing logs and couldn’t find a single
test showing the presence of chlorine in the facility water (RR Vol.
40, P. 128). Further, a microbiologist at the Center for Disease
Controls and Prevention reviewed the testing done at the DaVita
facility and found the facility water did not contain chlorine (RR
Vol. 41, P. 142).
Although Appellant alleged that testing was ineffective
because, at one point, the facility was using a different testing
packet, the manager for the company providing the testing kits
confirmed that testing would, nonetheless, have detected the
presence of chlorine (RR Vol. 40, PP. 113-114, 117). He concluded
that the testing was reliable (RR Vol. 40, P. 123). Additionally, the
senior director of technical operations for DaVita reviewed the
27 records and concluded that there was no indication of bleach or
chlorine in the facility’s water system during April 2008 (RR Vol.
40, PP. 158, 203-209).
D - Not Bleach in Dialysis Machines
The dialysis machines were cleaned weekly (on Thursdays)
with bleach (RR Vol. 34, PP. 173, 207; Vol. 36, P. 52; Vol. 37, PP.
55, 58). Using bleach test strips, the facility tested the machines
for the presence of bleach (RR Vol. 34, P. 174; Vol. 36, PP. 52-53;
Vol. 37, P. 56; Vol. 40, P. 47). Machines also were tested before
being used by patients (RR Vol. 36, P. 54).
If bleach were present in a machine, any patient reaction
would have occurred at the beginning of treatment (RR Vol. 34, P.
174). Notably, no patients had any medical events on a Friday,
which would have been the first day for dialysis after machines
were cleaned (RR Vol. 37, PP. 59-60; State’s Exhibit No. 87). A
microbiologist at the Center for Disease Controls and Prevention
reviewed the testing done for bleach in the machines at the DaVita
28 facility and found the machines did not contain chlorine in April
2008 (RR Vol. 41, PP. 145-146).
E- Not Stress of Dialysis Treatment
A defense expert witness, a nephrologist, testified he believed
the medical incidents for several patients were caused by excessive
fluid removal (“ultrafiltrification”) and other issues (RR Vol. 47, PP.
61-105). On cross-examination, the doctor admitted that, while
he could offer his opinion based on limited medical information,
he ultimately didn’t know the causes of death (RR Vol. 47, P. 109).
A State’s expert witness, another nephrologist, contradicted the
defense expert (RR Vol. 48, PP. 16-45).
Conclusion
That evidence included eyewitnesses who saw Appellant draw
a syringe with bleach and inject it into two dialysis patients,
forensic evidence confirming bleach in syringes, blood lines and
the bodies of victims and expert testimony concluding that the five
victims died of bleach poisoning. The defense involved focusing on
alternative sources for the presence of bleach in the bodies.
29 However, the State overwhelmingly eliminated those sources
through forensic testing, examination of facility records and expert
testimony. No rational juror could have isolated out any
particular victim who died as being supported by insufficient proof
when contrasted with the other victims.
Likewise, the evidence overwhelmingly supported a finding
that the five deaths occurred in the same scheme or course of
conduct. The uniquely identical manner and means of causing
the deaths, along with the relatively short time period between all
of the deaths, supports such a conclusion. No rational juror could
have thought there was insufficient evidence on the issue as to
either theory.
While Appellant argues that some jurors might have grouped
victims who died on a single day into the same criminal
transaction, that does not mean those same jurors could rationally
have had a reasonable doubt that all of the victims should be
grouped into the same scheme or course of conduct. There simply
is no rational basis for thinking that the five people who died in
30 the same dialysis center in the same month by the same method
(injection of bleach) were not murdered in the same scheme or
course of conduct.
As to instructing the jury on the need for a unanimous
decision on the issues of multiple deaths and same scheme or
course of conduct, there simply wasn’t much for the jury to
deliberate about. Given such overwhelming evidence on those
elements, the trial court’s error would not have impacted the
deliberations and, therefore, was harmless.
Prayer
WHEREFORE, PREMISES CONSIDERED, the undersigned,
on behalf of the State of Texas, respectfully prays that this
Honorable Court will review this brief and upon submission of the
case to the Court will affirm the judgment and conviction of the
court below.
31 Respectfully Submitted, /s/ Art Bauereiss Art Bauereiss, District Attorney State Bar No. 01921800 eMail: abauereiss@angelinacounty.net Post Office Box 908 Lufkin, Texas 75901 (936) 632-5090 phone (936) 637-2818 fax Attorney for the State of Texas
John G. Jasuta Post Office Box 783 Austin, Texas 78767-0783 lawyer1@johnjasuta.com Tel. 512-474-4747 x1 Fax: 512-532-6282 State Bar Card No. 10592300
David A. Schulman Post Office Box 783 Austin, Texas 78767-0783 zdrdavida@davidschulman.com Tel. 512-474-4747 x2 Fax: 512-532-6282 State Bar Card No. 17833400
Of Counsel on the Brief
32 Certificate of Compliance and Delivery
This is to certify that: (1) this document, created using
WordPerfect™ X7 software, contains 6,715 words; does not comply
with Rule 9.4 (i)(3), Tex.R.App.Pro, excluding those items
permitted by Rule 9.4 (i)(1), Tex.R.App.Pro., and complies with
Rules 9.4 (i)(2)(B) and 9.4 (i)(3), Tex.R.App.Pro.; and (2) on March
9, 2015, a true and correct copy of the above and foregoing
“State’s Supplemental Brief” was transmitted via the eService
function on the State’s eFiling portal, to Robert Morrow
(ramorrow15@gmail.com); counsel of record for Appellant,
Kimberly Saenz.
/s/ ___________________________________ Art Bauereiss