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

 FILED IN 4th COURT OF APPEALS SAN ANTONIO, TEXAS 3/9/2015 2:47:15 PM KEITH E. 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
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
 

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, 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 bottle5into 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

WordPerfectTM 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

33