# State’s Supplemental Brief 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

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 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 Oral Argument Conditionally Requested ACCEPTED 04-12-00238-CR FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS 3/9/2015 2:47:15 PM KEITH HOTTLE CLERK

### 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

### I ndex 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 requ est s oral argument only if Appellant requests and is granted oral argument.



### Note About Abbreviations
In this brief, the State refers t o 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

# State’s Supplemental Brief 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

TO THE HONORABLE FOURTH COURT” OF APPEALS: COMES NOW, t he State of Texas, by and through her duly elected District Attorney, Appellee in t he above styled an d numbered cause, and respectfully fi l es t he 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, I nc. (“DaVita”) dialysis facility in Lufkin, Texas, during April 2008 (R R Vo l

. 3 7 , P. 25). In t hat

1month, t en patients either died following card iac arrest or d eve lo p e d sym p t o m s o f illne s s while u n d e rgo i n g d i al ys i s . Ap p e l l an t

was indicted and charged with o ne count o f capital murder and five counts of aggravated assault (CR Vol. 1, PP. 75-77). On original submission the Court affirmed Ap p el lant’s conviction. Sa e nz v. State , 421 S.W.3d 725 (Tex.App. - San Antonio 2014). Appellant sought and was granted discretionary review, and, ultimately, the Court of C riminal Appeals reversed the conviction, finding t hat this Court e rred in hol d ing that the jury charge was not erroneous:

Without unanimous agreement re g arding a predicate murder as defined under Section 19.02 (b)(1 ), which in this case could have been any one of the five p e op l e she was alleged to have killed, there was no foundation from which to progress to a c onviction for capital murder, and the appellant’s right to a unanimous verdict was violated. Saenz v. State , _____ S.W.3d

_ _ _ _ _ (Tex.Cr.App. P D-0253-14; December 10, 2 01 4 ) ( “ Saenz II ”), s lip o p. at 7. The C o urt held, however, that because Appellant had not objected to the jur y 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).

2The case was remanded to this Court for that purpose. Saenz II , slip op. at 7-8. 

### Argument & Authorities
U n d e r A l ma nz a , t h e d e g r e e o f h a r m r e qu i r e d f o r r e v e r s al depends on whether the error was preserved in the trial court. Villarreal v. State , _____ S.W.3d

_____ (Tex.Cr.App. P D-0332-13; February 4, 2014); Ngo v. S tate , 175 S.W.3 d 738, 743 (Tex.Cr.App. 2005); Almanza, 686 S.W.2d at 171. Where, as here, the defendant did not raise a t imely o b jection t o t he jury instructions, reversal is required o nly if the error was fundamental in the sense that it was so egregious and created s uch harm t hat the defendant was deprived of a fair and impartial trial. See Almanza, 686 S.W.2d at 1 71; see also Barrios v. State , 283 S.W.3d 348, 350 (Tex.Cr.App. 2009). Charge error is egregiously harmful if it affects t he very basis of the case, deprives the defendant o f a valuable right, o r vitally affects a defensive theory

. S ee Barrios , 2 83 S.W.3d at 350; see also Allen v. S tate , 2 53 S.W. 3 d 2 60, 264 (Tex.Cr.App. 2008). 3Egregi o u s harm is a “high and difficult standard” to meet, and such a d etermination must be “borne out by the trial r ecord.” Reeves v. Sta te , 4 20 S.W.3d 812, 816 (Tex.Cr.App. 2013). On appeal, neither p arty bears the burden of s howing harm or a lack thereof under t his standard. Warner v. State , 2 45 S.W.3d 4 58, 464 (Tex.Cr.App. 2008). A reviewing court reverses a conviction when it has found t hat the d efendant su f

f er e d “actual rather t han theoretical harm.” Cosio v. State , 353 S. W. 3 d 7 6 6, 777 (Tex.Cr.App. 2011). In examining th e 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 a ny o t h e r r e l e v a n t i n f o r m a t i o n r e v e a l e d b y t h e t r i a l record as a whole. Almanza, 686 S.W.2d at 171.

4The p re s e nc e o f ove r whe lm i ng evid e nc e s u p p o rt ing t h e f ind ing of guilt can be a factor in the evaluation of harmless error. Motilla

v. S tate , 78 S.W.3d 3 52, 357 (Tex.Cr.App. 2002). A dditionally, under Almanza, wh er e the evidence of the defendant’s guilt is overwhelming, the e rror may be considered harmless. Garcia v. State , 919 S.W.2d 370 (Tex.Cr.App. 1 9 9 4)

. In the instant c ase, t h e evi d e n c e e s t ab l i s h ing Ap p e llant ’s c rim inal re s p o ns ib ilit y f o r t he deaths of five vi ctims through the u nique 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 D aVita d ialysis facility was overseeing the scheduling of patients and employees after s everal adverse events to dialysis patients had occurred thr ou ghout that month (RR Vol. 37, P P. 16-25). She reassigned Appellant (a licensed vocational nurse or “LVN”

5employed by DaVita) t o work as a patient care technician (“PCT”) 1 rather than as a medications nurse (RR Vol. 37, P. 28). Appellant

was upset by t he wo rk 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 s tressful work of direct patient

care (RR Vol. 34, P. 64; Vol. 3 6 , P. 129). She had previously complained and was looking for another job (RR Vol. 34, P P. 60, 63; RR Vol. 37, P. 1 71). She thought it was unfair t hat other LVNs got to give medications and she always had to t ak e p atients (RR Vo l. 36, P. 54). Appellant also had c omplained about sever al specific p atients (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 delegat i o n by t he medical director (RR Vol. 34, P. 1 66) The PCT creates the morning bleach solution used for cleaning up surfaces (RR Vol. 34, P. 167) 6Linda Hall 2 and Lurlene Hamilton 3 (dialysis pat i en t s at the DaVita facility in Lufkin) saw Appellant o btain a syringe from the nurse’s station, 4 pour bleach from a bottle 5 into a container, slide the container hold i n g t h e bleach down the counter and set it on the f l o o r , squat down to draw bleach f rom the container into the syringe, return the container back to the nurse’s s tation, walk over to dialysis patient Marva Rhon e, l ook around, push the syringe into the port hole for Rhone’s medication and inject the bleach (RR Vol. 33, PP. 1 13-117, 191-237; Vol. 35, P P. 202-204; Vol. 36, PP. 2 4 -2 5 )

. Hall was clear that Appellant d id not inject the syrin g e

2 Hall t e stified at trial. In addition, a deposition of Hall and a written statement she made t o the B o ard o f 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 t rial 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 dep o si t i o n also was admitted into evidence, along with an earlier unsuccessful deposition (RR Vol. 3 4, P. 13; State’s Exhibit No. 69; Defense Exhibits Nos. 4-5) Additionally, a written st at ement made by Hamilton was admitted into evidence (RR Vol. 33, P. 200; State’s Exhibit No. 6 9-2 or Deposition Exhibit No. 2).

4 For a ph o t o o f t h e nurse’s station, see State’s Exhibit No. 65 (RR Vol. 33, P

. 111).

5 For a photo of a bleach bottle used in t he facility, see State’s Exhibit No. 6 6 (RR Vol. 33, P. 111). 7into 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 con t ainer (used f or the disposal o f syringes) 6 located at another patient’s dialysis machine rather than the co n t ainer at Rhone’s machine (RR Vol. 35, P. 209; State’s Exhibit No. 67, PP. 3 1 , 3 6, 40). Hamilton also said she saw Appellant u se a syringe to inject bleach into the IV line for dialysis patient Carolyn Ri singer (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 d eath” (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 s cared 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 c rying and scared when she reported what she saw (RR Vol. 35, P. 200).

6See State’s Exhibit No. 82 (RR Vol. 34, PP. 163-165). 8The DaVita c linical 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. 3 7, P. 35). She then confronted Appellant, who denied giving anyone any medication, but admitted drawing up a bleach mixture on the floor (RR Vol. 3 7, P

. 3 5 ). The coordinator sent Appellant home for the d ay (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 an o t h er bleach testing strip and found that the inside of the syringe tested positive for bleach (RR Vol. 37, P. 43; Vol. 41, P

. 3 5 ; Vol. 42, PP. 15-17). She testified that, after two syringes tested positive f or b leach, “My heart fell. I was thinking, oh, goodness” (RR Vol. 37, P. 43). Another employee, testin g syringes in another Sharps container, also had two syri nges test p ositive for bleach (RR Vol. 37, P. 43). Subsequent lab testing confirmed the presence of

9bleach i n t hree of t he 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 Ap ri l 2 9, 2 008, all DaVita employees were s upposed to attend a meeting (RR Vol. 36, P

. 141). Appellant was absent and told a P CT , when called, that she was not c oming 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 fi r st ( R R Vol. 3 6, 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). Subsequ en t t esting 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 c hart listing seized syringes, the related Sharps c ontainer and the FDA lab results, see State’s Exhibit No. 195 (RR Vol. 41, P. 93-95). 1 0Subsequent 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 f or “ bleach poisoning,” leading to the location of an article on c hlorine poisoning (RR Vol. 42, PP. 61-64). In addition, the examination showed searches in the first week o f May 2008 for “bleach given during d ialysis” and “can bleach be detected in dialysis lines” (RR Vol. 42, P. 65).

I I. Appellant’s Statements Appellant’s recorded interview on April 2 9, 2008, at t he Lufkin Police Department, and a transcript of that interview, was admitted into evidence (State’s Exh i b i ts 86 & 86A). During the interview, Appellant admitt ed taking medication for d epression, and having started the medication six weeks earlier (RR Vol. 36, P

. 1 9 7). Her interview was increasingly impaired, disjointed an d irrational (RR Vol. 38, PP. 35-36). During the interview, Appellant speculated that bleach in the machines was responsible for the p roblems at t he DaVi t a facility

1 1(RR Vo l

. 36 , P. 188). Referring to how she rushed the delivery of medications, s he also said, “I j u st have a habit of pushing the bleach ‘cause I just – I don’t know wh en it was last done, and I don’t want to kill my p at i en ts” (RR Vol. 36, P. 189). A s to the allegation that she injected something i nt o Rhone’s p ort, she claimed she only gave Rhone some saline solution (RR Vol. 36, PP. 199-200, 208). Appellant explained the p rocedure for c reati ng a bleach solution (RR Vol. 36, P. 2 01), and seemingly acknowledged t hat there was no reason to use a syringe t o d raw bleach (RR Vol. 36, P. 202). Then she claimed she sometimes u sed a syringe when the measuring cups were not available (RR Vol. 36, P. 203). 8 Appellant’s descriptions t hen 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 o f experience at DaVita s aid she had never seen appellant use a syringe to measure out bleach to prepare the d iluted s olution and would have reported it to her superiors if she had seen it, because they never u sed 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; 3 7, P. 172) At a team meeting, employees were t ol d to use a measuring cup. (RR Vol. 36, P. 13). 1 22008, with a syringe because she was not d oing any medications that day (RR Vol. 36, P. 207). On March 31, 2009, Appellant testified before a gran d j ury (RR Vol. 37, P. 216). A recording and transcript o f that testimony

was admitted into evidence (RR Vol. 3 7, 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 Vo l. 3 7 , P. 2 20). She explained that she drew u p bleach in a syringe because supervi sors were watching and she wanted to d o everything by the book (RR Vol. 37, P. 221). She also sai d measuring cups were unavailable (RR Vol. 37, P. 224)

. 9 She claimed she poured bleach into a cap o f 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 DaVit a facility o n April 28, 2008 (RR Vol. 3 8, P. 6 3 )

. A PCT t estified s he couldn’t remember t he facility ever running out o f measuring cups for bleach. (RR Vol. 43, P. 59). 1 3III. Appellant’s Opportunities to Commit the Offense

The indictment named ten (10) victims of bleach injections. Five d ied and five were injured. 1 0 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 C e nter for Disease C o n t rol concluded that the deaths and/or injuries of Rhone, Risinger, Oat es, Castaneda, Bradley, Few, Kelley, Metcalf, Strange and Bryant were all c aused by t he i njection 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. 4 2 , P

. 107). 1 1 A PCT observed that appellant was assigned to watch Strange while he was on a b reak (RR Vol. 36, P. 119). The PCT returned from the

10 For a calendar listing the names of the patients who s uffered from b l each 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 inj ections and appellant’s scheduled working days, see State’s Exhibit No. 101 (RR Vol. 38, P. 64).

1 1 For details regarding Ms. Strange’s dialysis treatment, s ee State’s Exhibit No. 32. 1 4break and found Strange was unresponsive and not

breathing. Strange was transported to a hospital (RR Vol. 36, P. 120; State’s Exhibit No. 2 7). A phy sician 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). 1 2 Th elma Metcalf. Metcalf went to the DaVita facility for d i alysis (RR Vol. 35, P. 186). 1 3 She u sed 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). App ellant was the PCT assigned to Metcalf (RR Vol. 3 6, P. 1 21). An LVN saw Appellant tu rn d o wn Metcalf’s blood-flow rate (RR Vol. 3 7 , P. 170). A p erson c an reduce the likelihood of an alarm going off by turning down the blood-f l ow rate on the machine (RR Vol. 37, P. 206). An e mployee of DaVita told Appellant to open an airway for Metcalf when doing CPR c ompression (RR Vol. 40, P. 60). When Appellant didn’t respond, the employee took the air bag from her and took over p roviding air (RR Vol. 40, P. 61 )

. Metcalf was transported to the emergency room of a hospital by ambulance (State’s Exhibit No. 2 4). Subsequent testing of the blood tubing used in Metcalf’s dialy si s on April 1 showed positive for the presence of bleach (RR Vol. 39, PP. 1 51-152). 1 4 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 o f b l each i n Strange’s blood tubing, see State’s Exhibit No. 163.

1 3For details regarding her dialysis treatment, see State’s Exhibit No. 33.

1 4 For a c olor-coded diagram showing the location of bleach in that tubing, see State’s Exhibit No. 160 (RR Vol. 39, P. 134). 1 5Based on a review of DaVita records for Metcalf from

her dialysis, a medical officer f rom the Center for Disease Control concluded that s omething caused her b lood pressure to f

all significantly near the time Appellant was charted as being near Metcalf (RR Vol. 42, PP. 111-112). Metcalf b ecame unresponsive, s topped breathing and had no pulse; CPR was started and someone called 911 ( R R Vol. 42, P. 1 13). A physician and specialist in toxicology with the Center for Disease Control concluded Metcalf d ied from injection of b leach 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 dialysi s (RR Vol. 3 5, PP. 40-41). 1 5 While receiving treatment, she lost c onsciousness an d was transported to a hospital (RR Vol. 35, P P. 40-41; State’s Exhibit No. 25). Ms. Castenada had heart problems and needed oxygen ( R R Vol. 35, PP. 63-64). Her o ngoing illn esses had impacted her memory and mental functioning (RR Vol. 38, PP. 148-149). Subsequent testing of a plasma sam ple from Castaneda was positive for the high level of ch lorotyrosine, c onfirming exposure to bleach in the blood stream (RR Vo l

. 39, PP. 85-87; Vol. 42, P. 149). However , t esting for her blood tubes were inconclusive for the presence of bleach (RR Vol. 39, P. 153). 1 6

15 For details regarding Ms. Cstaneda’s dialysis treatment, see State’s Ex h i b i t No. 34.

1 6 For a color-coded d iagram showing the results o f t esting on Castaneda’s tubing, see State’s Exhibit No. 158 (RR Vol. 39, P. 134). 1 6Castaneda’s blood work s howed el evated LDH,

su ggesting b leach 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 C o n t r ol 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 p athologist) opined that Castaneda choked on her gum (RR Vol. 47, P. 100; 48, PP. 35-36). Garlin Kelley. Mr. Kelley went to the DaVita f acility for dialysis (RR Vol. 33, P. 170; Vol. 335, P

. 120). 1 7 After being started on dialysis, he was doing fine (RR Vol. 36, P. 81). Appellant was his m edicine nurse (RR Vol. 36, P. 82). A PCT heard Kelley’s machine alarm (RR Vol. 36, P. 84), an d saw Appellant about to restart his dialysis m achine 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 u nusual clot in Kelley’s arterial chamber (RR Vol. 3 5, P. 124; Vol. 3 6, PP. 87-88). Kelley had a cardiac arrest and was taken t o 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 f

or the high level of c hl o rotyrosine, confirming exposure to bleach in the blo o d stream (RR Vol. 39, PP. 80-81, 84; Vol. 42, P

. 149). Subsequent testing of th e b l o o d tubing for Kelley and an attached

1 7 For details regarding Mr. Kelley’s dialysis t reatment, see State’s Exhibit No. 35. 1 7syring e t est ed positive f or the presence of bleach and chlorate (RR Vol. 39, PP. 154-155). 1 8 Subsequent D NA testing confirmed the blood tubing came from Kelley (RR Vol. 36, P. 76; Vol. 38, P. 62; State’s Exhibit No

. 8 4 )

. A physician and specialist in toxicology with the Center for Disease Control concluded Kelley di ed from injection of bleach into a dialysi s l i n e o r port (RR Vol. 4 2, PP. 164- 168). April 22, 2008 Cora Bryant. Bryant went to DaVita facility for dialysis (RR Vol. 35, P. 190). 1 9 Everything seemed fine until her machine alarmed (RR Vol. 37, P. 161)

. A L VN saw Ap p ellant trying to reset Bryant’s machine and heard Bryant asking Appellant what medication was being given ( RR Vol. 37, PP. 163, 165). B ryant then had a cardiac arrest, which meant something had to have b een delivered to her (RR Vol. 37, PP. 165, 167). The m edical director had not expected her to die on dialysis, even though she had several medical issues (RR Vo l. 38, PP. 152-153). B ryant 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, s uch as m ed i cation (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

1 8 For a color-coded diagram showing the location of bleach in that tubing, see State’s Exhibit No. 161 (RR Vol. 39, P. 134).

1 9 For d etails regarding Ms. Bryant’s d ialysis treatment, s ee State’s Exhibit No. 36. 1 8Vol. 37, P

. 206). A LVN saw Appellant turn down

Bryant’s blood-flow rate (RR Vol. 376, P. 167). Subsequent testing of a p lasma sample from B r yant was positive for c hlorotyrosine, c onfirming exposu r e to bleach in t he blood stream (RR Vo l

. 3 9, PP. 84-88; Vol. 42, P. 149). 2 0 Her blood wo rk showed elevated LDH, su ggesting b leach had been injected (RR Vol. 42, PP. 123-124; State’s Exhibit No. 227). 2 1 Subsequent DNA t esting conf i rmed t he blood tubing cam e f r o m B ryant (RR Vol. 36, P. 76; Vol. 38, P

. 62; State’s Exhibit N o . 8 4 ). A p hysician and specialist in toxicology with the C enter for Disease Control concluded she died f

r o m i njection of bleach into a dialysis line or port (RR Vol. 42, PP. 164-168).

April 23, 2008 Marie Bradley. Bradley went to the DaVita f aci lity for dialysis (RR Vol. 35, P. 13). 2 2 While receiving treatment, she had an event and woke up in the hospital three and a half days lat er (RR Vol. 35, P. 13). Bradley had no memory of what happened to her (RR Vo l

. 3 5 , P. 33). She was transported to an emergency room o f a hospital by ambulance ( St ate’s Exhibit No. 21). She recovered and was d oing well at the time of trial (RR Vol. 38, PP. 149-150).

2 0 Oralia Torres was receiving dialysis only o ne chair a way from Bryant on April 22, 2008. B lood testing on Torres was negative for chlortyrosine, suggesting that Bryant got something different during dialysis (RR Vol. 42, PP. 162-164).

2 1 For the chart listing the results of testing for the p resen ce o f b l each in Bryant’s blood tubing, see State’s Exhibit No. 164.

2 2 For details regarding Bradley’s dialysis treatment, see State’s Exhibit No. 37. 1 9Based on a review of DaVita records for Bradley

from her dialysis, a medical officer from the Center for D isease Control concluded her blood pressure d ropped significantly without any real change in her heart rate or blood f low during the t ime th at Appellant charted observing her (RR Vol. 42, PP. 113-114). Subsequent testing of a syring e labeled for delivery of the drug Zemplar t o Bradley on April 2 3 tested positive for the presence of b leach (RR Vol. 39, PP. 143-144). Her blood work showed elevated LDH, suggesting bleach had b een injected (RR Vol. 42, PP. 123-124; State’s Exhibit No. 227). Subsequent testing o f blood t ested positive for chlorotyrosine (RR Vol. 42, P. 149). A p hysician and specialist in toxicology with the Center for Disease C o n t r ol concluded she was injured by an injection of bleach into a dialysis line o r port ( R R Vo l

. 4 2, PP. 164- 168). April 26, 2008 Opal Few. Few went to the DaVita facility for dialysis (RR Vol. 36, P. 45). 2 3 She used a c entral venous catheter (RR Vol. 42, P. 1 07). The medical director said she was lively and full of energy despite her age and medical issues (RR Vo l

. 38, PP. 1 53-154). However, she began havi n g p roblems within minutes of b eing put on d ialysis (RR Vol. 35, P. 117). Ms. Few was unresponsive, didn’t have a heartbeat an d was not b reathing (RR Vol. 35, P. 118). A PCT observed that Appellant didn’t seem to care about Few’s cond i tion (RR Vol. 3 6, P

. 125). Few was transported to an emergency room by ambulance (State’s Exhibit No.

2 3For details regarding Few’s dialysis treatment, see State’s Exhibit No. 38. 2 020). A registered nurse recalled asking Appellant t o give

Few her m edications just before the problems began (RR Vol. 35, P. 118). Appellant ad m i tted to the nurse that she gave F ew the m edicine Zemplar but didn’t document it on the computer until after being t old to d o so (RR Vol. 35, PP. 119, 178). Subsequ en t testing of a p lasma sample from F ew was positive for c hlorotyrosine, co n firming exposure to bleach i n t he blood stream (RR Vol. 3 9, P. 87). Subsequent testing of a syringe labeled for delivery of the drug Zemplar t o Few on April 26, 2008, was p ositive for the presence of b leach (RR Vol. 39, P. 143). Subsequent testing o f the b lood tubing fo r Few used on April 26, 2008, was positive for the presence of bleach (RR Vol. 39, PP. 145-146). 2 4 Punctu res in the b lood tubing for F ew were consistent with the u se of a syringe with a 3-pointed tip (RR Vol. 4 0, PP. 36-37). Subsequent DNA testing confirmed the b lood tubing c ame from Few (RR Vol. 36, P. 7 6; Vol. 38, P. 62; State’s Exhibit N o . 8 4). A physician an d 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. O at es went to the DaVita facility for dialysis (RR Vol. 35, P. 78). 2 5 A registered nurse (“RN ”) saw Appellant administer something into Oates’ blood lines and then d rop a syringe into a Sharps container (RR Vol. 35, P. 180).

2 4 For a color-coded diagram showing the location of bleach in that tubing, see State’s Exhibit No. 159 (RR Vol. 39, P. 134).

2 5For details regarding Oates’ dialysis treatment, see State’s Exhibit No. 39. 2 1Oates saw Appellant just before she started having

problems, had a f

u nny taste in her mouth and asked appellant, “What did you give me?” ( R R Vol. 35, P. 88- 93). Oates then b ecame sick, began bleeding and had the sensation her bones were being crushed (RR Vol. 35, P. 7 9). She al so had chest pain and was unable to breath (RR Vol. 35, P. 80). Ms. Oates also had si gns of an anxiety attack, including a rapid h eartbeat and sweating. She said she d idn’t feel right and that something was going on (RR Vol. 35, P. 112). Oates also complained o f nausea an d vomited (RR Vo l

. 35, P. 113; Vol. 36, PP. 122-123). Her b l o o d pressure dropped significantly and she was “not f eeling good.” (RR Vol. 42, PP. 114-115). O at es was taken to a hospital by ambulance (RR Vol. 35, PP. 79, 113; State’s Exh i bit 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 h ad been injected (RR Vol. 42, PP. 123-124; State’s Exhibit No. 227). A physician and specialist in toxicology with the Center for Disease C o n t r ol concluded she was injured by an injection of bleach into her dialysis line or port (RR Vol. 42, PP. 164- 168).

2 2April 28, 2008

Marva Rhone. 2 6 A P CT pu t R h one on dialysis on April 28, 2008 (RR Vol. 34, P. 49). 2 7 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 dialysi s machine (see supra ). U pon returning from b reak, t h e PCT noticed Rhone’s blood pressure was dropping, that she appeared to squirm and looked uncomfortable (RR Vol. 34, P

. 52). Ms. Rhone b ecame nauseated, began throwing up, became weak, had slurred speech and c ould hardly talk (RR Vol. 33, PP. 154-155; Vol. 35, P. 2 05). She reported pain along her ribs (RR Vol. 34, P. 56). Rhone went to a hospital for blood work (RR Vol. 33, P. 1 5 6 ) , which showed e levated p otassium and LDH, suggesting bleach h ad b een injected (RR Vol. 42, PP. 123-124; State’s Exhibit No. 227). 2 8 A physician and sp eci alist in toxicology with the Center for Disease Control concluded she was injured by an injection of bleach i n t o her dialysis line or port (RR Vol. 42, PP. 164-168). Carolyn Risinger. During d ialysis, 2 9 Risinger became sick (RR Vol. 35, P. 205). Hamilton observed Ap pellant inject bleach into a port on Risinger ’s d ialysis machine (see supra

). M s. R i singer was reclined, given a cloth on

2 6 Rhone did not testify at t ri al because she died in 2011 after a kidney transplant (RR Vol. 33, P. 160; Vol. 38, PP. 144-145).

2 7For details regarding Rhone’s dialysis treatment, see State’s Exhibit No. 30.

2 8 For the chart listing the results of testing for the p resen ce o f b l each in Rhone’s blood tubing, see State’s Exhibit No. 162 (RR Vol. 39, P. 133).

2 9 For details regarding Risinger’s dialysis treatment, see State’s Exhibit No. 31. 2 3her head and received oxygen and s aline (RR Vol. 34, P.

191). A physician and specialist in toxicology wi t h the Center for Disease Control concluded she was injured by an injection o f bleach into her dialysis line or port ( R R Vol. 42, PP. 164-168). The Risinger blood tubes from her d ialysis machine were not turned over t o p o l i ce (RR Vol. 37, P. 114). In add i tion, 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 b ecause she died from a motor vehicle acciden t ( R R Vol. 38, P

. 146). Risinger’s husband testified, however, stating that neither he nor his wife saw Appellant do anything o ut of the ordinary and never c ame over to her dialysis machine (RR Vol. 4 3 , P P

. 1 3 , 19). A P CT also t estified she d idn’t see anyone inject anyt hing at Risinger’s dialysis c hair (RR Vol. 43, P

. 5 1 )

. A d ialysis p atient, who f ocused on Risinger that day, didn’t s ee Appell an t do anything to Risinger (RR Vol. 43, P P. 112-114). A d efense expert o p ined 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 p atient’s blood from c lotting (RR Vol. 34, P. 138). The medical director eliminated H ep ari n as a cause of any problems with the ten patients at the

2 4DaVita f

acility (RR Vol. 38, P. 161). Ind eed , ap pellant stipulated that t he Heparin used by the DaVita facility did not have any problems (RR Vol. 39, PP. 199-203; State’s Exhibit No. 1 68). The evidence clearly showed t hat the substance involved was not Heparin. B - Not Renalin Two categories o f dialyzers were available for use by patients,

re-use and non re-use dialyzers (RR Vo l. 34, P. 140). Non re-use dialyzers were used a si n gle time and then d isposed. Re-use dialyzers were cleaned between uses by t he same patient through

a Renatron, which rinsed the dialyzer with p ro cessed 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 t he access point, a funny b r eath odor, chest pains, vomiting, nausea and breathing difficulty (RR Vol. 34, P. 141). The DaVit a facility stopped using

2 5re-use dialyzers after April 16, 2008 (RR Vol. 37, P. 2 6; 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, P P. 6 5-66). The medical director eliminated Renalin a s a cause of any problems with patients at the DaVita facility (RR Vol. 38, PP. 163-172).

C - Not Bleach in Water Throughout the t rial, Appellant attempted to s uggest t hat chlorine entered the dialysis machines through the city water used by t he facility. Dialysis requires th e u se of processed water (RR Vol. 34, P. 143). Water used at the DaVita facility was initially drawn from the city water supply (RR Vo l

. 3 7, PP. 4 9-50). However, the facility filtered out any chemicals, including chlorine (RR Vol. 34, P. 1 98; Vol. 37, PP. 49-50). The dialysis facility tested the water every f our hours for the presence of chlorine (RR Vol. 3 4, P. 1 70; Vol. 37, PP.

2 651-52; Vol. 40, P. 4 9). Dialysis would stop if chlorine was detected (RR Vol. 34, P. 171). The medical d irector eliminated chlorine break-through from the city water supply as a cause of any problems (RR Vol. 38, PP. 162-1 7 2 ; Vol. 39, P P. 47-49). The biomedical t echnician for the DaVita facility reviewed the testing logs and c ouldn’t find a single test showing the presence of chlorine in the facility water (RR Vol. 40, P. 128). Further, a microbiologist at the Cen t er f o r Disease Controls and Prevention reviewed the testing done at t he DaVita facility and f

o u nd t he f

ac ility water did not contain chlorine (RR Vol. 41, P. 142). Althou gh Appellant alleged that testing was ineffective because, at one point, the f acility was u sing a di f f er en t testing packet, the m anager f o r the company p roviding t he testing kits confirmed that testing would, nonetheless, have d e tected the presence of chlorine (RR Vol. 40, PP. 113-114, 1 17). He concluded that the testing was reliable (RR Vol. 40, P. 123). Additionally, the senior director of technical operations f or DaVita reviewed the

2 7records and concluded that there was n o i n dication of bleach or chlorine in the f

acility’s water system during April 2008 (RR Vol. 40, PP. 158, 203-209).

D - Not Bleach in Dialysis Machines The dialysis m achines 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, t he 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 wer e t est ed before being used by patients (RR Vol. 36, P. 54). If b leach were present in a machine, any p atient reaction would have o c curred at the beginning o f treatment (RR Vol. 34, P. 174). Notably, no patients had any m edical events o n a Friday, which would have b een t h e first day for dialysis after machines

were cleaned (R R Vo l

. 37, PP. 59-60; State’s Exhibit No. 87). A microbiologist at th e Center for Disease Controls and Prevention reviewed the testing done for bleach in the machines at t he DaVita

2 8facility and found the machines did no t co n t ain 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 f o r several patients were caused by excessive fluid removal (“ultrafiltrification”) and other issues (RR Vol. 47, PP. 6 1 -1 0 5 ). On cross-examination, the doctor admitted that, while he could offer his o p i n io n based on limited medical information, he u ltimately 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 evid e nc e inc lu d e d eyewit nesses who saw Appellant draw

a syringe with bleach and inject it in t o two dialysis patients, forensic evidence confirming bleach in syringes, blo o d l i n es 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 o f b leach in t h e bodies. 2 9However, the State overwhelmingly eliminated those sources through forensic t esting, examination of facility records and expert t estimony. N o rational juror could have isolated o u t any particular victim who died as being supported by insufficient proof when contrasted with the other victims. Likewise, t he evidence overwhelmingly supp o rted a finding t h at t h e five deaths occurred in the same scheme or course of

co n d u ct

. The u niquely 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 evi dence on the issue as to either theory. While Appellant argues that s ome jurors might have grouped victims who died on a single day into the same criminal transaction, that does not mean t ho s e same jurors could rationally have h ad a r easonable d oubt that all of the victims should be grouped into the same scheme or course of conduct. There simply is no rational basis f or thinking that the five people wh o d i ed in

3 0the same dialysis center in the s ame month by the same method (injection of bleach) were not murdered in the same sch em e or course of conduct. As to instructing the jury on the need for a unanimous decision on the issues of multiple d eaths and s am e scheme or

course of conduct, there simply wasn’t mu ch f or the jury to deliberate about. Given such overwh el m ing evidence o n those elements, the t ri al co urt’s error would not have impacted the deliberations and, therefore, was harmless. 

### Prayer WHEREFORE, PREMISES C ONSIDERED, the undersigned,

on behalf of the State of Tex as, respectfully prays that this Honorable Court will review this b rief and upon submission of the

case t o t he Court will affirm the judgment and conviction of the court below.

3 1Respectfully 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

3 2

### Certificate of Compliance and Delivery

This is to certif

y t hat: (1) t his document, created using WordPerfectTM X 7 s o f

tware , c o nt ains 6 , 7 1 5 wo rd s; does not comply with Rule 9.4 (i)(3), Tex.R.App.Pro, excluding those i t em s per m i tted 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 c orr ect copy of the above and foregoing “State’s Supplemental Brief” was transmitted via the eService function on t h e State’s eFiling portal, to Robert Morrow (ramorrow15@gmail.com ) ; counsel of record for Appellant, Kimberly Saenz. /s/

___________________________________ Art Bauereiss

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