NO. 04-12-00238-CR

IN THE FOURTH COURT OF APPEALS

FOR THE STATE OF TEXAS, SITTING IN SAN ANTONIO

KIMBERLY SAENZ, Appellant

VS.

THE STATE OF TEXAS, Appellee

On Remand from the Court of Criminal Appeals in Cause No. PD-0253-14

Appeal from the 217th Judicial District Court

of Angelina County, Texas, in Cause No. CR-28,665

APPELLANT’S MOTION FOR EN BANC RECONSIDERATION

ROBERT A. MORROW

SBN: 14542600

24 Waterway Ave., Suite 660

The Woodlands, Texas 77380

Tel. 281-379-6901

Fax 281-813-0321

ORAL ARGUMENT REQUESTED Heather M. Lytle

SBN: 24046487

202 Travis Street, Suite 300

Houston, Texas 77002

Tel. 713-204-7060

Amy D. Martin

SBN: 24041402

202 Travis Street, Suite 300

Houston, Texas 77002

Tel. 713-320-3525

ACCEPTED

04-12-00238-CR

FOURTH COURT OF APPEALS

SAN ANTONIO, TEXAS

9/8/2015 2:14:46 PM

KEITH HOTTLE

CLERK
i

IDENTITY OF PARTIES AND COUNSEL

 APPELLANT: KIMBERLY SAENZ

Trial Counsel: T. Ryan Deaton Stephen C. Taylor

103 E. Denman P.O. Box 293

Lufkin, TX 75901 Conroe, TX 77305-0293

Tel. 936-637-7778 Tel. 800.223.8308

Appellate Counsel: Robert A. Morrow III Amy D. Martin

24 Waterway Avenue 202 Travis Street

Suite 660 Suite 300

The Woodlands, TX 77380 Houston, TX 77002

Tel. 281-379-6901 Tel. 713-320-3525

Heather M. Lytle

202 Travis Street

Suite 300

Houston, TX 77002

Tel. 713-204-7060

 APPELLEE STATE OF TEXAS

Trial Counsel: Clyde M. Herrington Christopher Tortorice

Layne Thompson Asst. U.S. Atty.

Angelina Co. Dist. Atty. 110 N. College

P.O. Box 908 Suite 700

Lufkin, TX 75902-0908 Tyler, TX 75702

Tel. 936-632-5090 Tel. 936-590-1400

Appellate Counsel: Angelina Co. Dist. Atty. Ofc.

Appellate Division

P.O. Box 908

Lufkin, TX 75902-0908

Tel. 936-632-5090
ii

TABLE OF CONTENTS

 Page No.

IDENTITY OF PARTIES AND COUNSEL ............................................................. i

TABLE OF AUTHORITIES.................................................................................... iii

STATEMENT OF THE CASE...................................................................................1

EN BANC RECONSIDERATION............................................................................1

Lack of uniformity...................................................................................................2

Extraordinary circumstances..................................................................................3

PRAYER ....................................................................................................................7

CERTIFICATE OF COMPLIANCE .........................................................................8

CERTIFICATE OF SERVICE ...................................................................................8
iii

TABLE OF AUTHORITIES

Page No.

Cases

Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985).........................1, 5

Ansari v. State, No. 04-14-00728-CR, 2015 WL 4638286 (Tex. App. Aug. 5, 

2015)(not designated for publication) .........................................................2,3

Carroll v. State, 101 S.W.3d 454 (Tex. Crim. App. 2003)......................................5

Granviel v. State, 723 S.W.2d 141 (Tex. Crim. App. 1986) ...................................5

Robison v. State, 888 S.W.2d 473 (Tex. Crim. App. 1994) ....................................5

Saenz v. State, 421 S.W.3d 725 (Tex. App.—San Antonio), petition for 

discretionary review granted (May 14, 2014), vacated, 451 S.W.3d 388 

(Tex. Crim. App. 2014), reh'g denied (Jan. 28, 2015)....................................4

Saenz v. State, 451 S.W.3d 388 (Tex. Crim. App. 2014)........................................1

Saenz v. State, No. 04-12-00238-CR, 2015 WL 5037969 (Tex. App. Aug. 26, 

2015)(not designated for publication) ........................................................1, 4

Warner v. State, 245 S.W.3d 458, 462 (Tex. Crim. App. 2008)..............................3

Rules

Texas Rule of Appellate Procedure 41.2.................................................................2

Texas Rule of Appellate Procedure 49.7.................................................................1

Texas Rule of Appellate Procedure 9.4...................................................................8
1

STATEMENT OF THE CASE

Appellant Kimberly Clark Saenz relies upon and incorporates the Statements 

of the Case presented in all prior pleadings she has filed. Appellant has also filed a 

Motion for Rehearing in which a more detailed recitation of the facts can be found.

On December 10, 2014, the Court of Criminal Appeals held that this Court 

erred in finding no error in the jury charge because the charge allowed for a nonunanimous verdict by failing to require unanimous agreement on the victim of the 

predicate murder on which the capital murder charge was based1. Saenz v. State, 451 

S.W.3d 388 (Tex. Crim. App. 2014).

The Court of Criminal Appeals remanded the case to this Court to conduct a 

harm analysis under the Almanza standard, because Ms. Saenz’ did not object to the 

charge error2. Id.

EN BANC RECONSIDERATION

On August 26, 2015 this Court, by a Panel of only 2 Justices, held that the 

error was not harmful. Appellant files this Motion for En Banc Reconsideration 

pursuant to Texas Rule of Appellate Procedure 49.7.

 

1 This case was a death penalty case in which the jury imposed a life sentence. Therefore, the case 

was appealed to this Court.

2 The lack of objection to the charge and to the prosecutor’s argument were two of the issues 

Appellant argued to be evidence of ineffective assistance of counsel. Ultimately, Counsel did file 

a Motion for New Trial in which he argued that the charge was fatally flawed. CR 8:3150-3267. 
2

Although disfavored, en banc consideration is proper if “necessary to secure

or maintain uniformity of the c o u r t ’ s d e c i s i o n s o r unless extraordinary 

circumstances require en banc consideration.” Texas Rule of Appellate 

Procedure 41.2(c). In Appellant’s case, both reasons are applicable.

This Court decided a case three weeks prior to Appellant’s that exhibits a lack 

of uniformity in the Court’s opinions on the same issue. This was a death penalty 

case with a life without parole verdict. Appellant’s crime was based upon the murder 

of multiple victims. The Court of Criminal Appeals reversed this Court and held 

that Appellant was denied her right to a unanimous verdict because the jurors were 

told they did not need to render a unanimous verdict.

Lack of uniformity

Three weeks before this opinion was handed down, a 3 Justice Panel (2 of 

whom decided this case) decided Ansari v. State, No. 04-14-00728-CR, 2015 WL 

4638286 (Tex. App. Aug. 5, 2015)(not designated for publication). At trial, Ansari 

was denied a requested jury charge on unanimity and this Court found it to be 

harmful error. Because the objection was preserved at trial, Ansari had to show 

“some harm.” 

Reviewing a jury instruction and argument very similar to Appellant’s, the 

Court found that both “weigh in favor of a finding of some harm.” Ansari at *3.
3

The Court concluded: “The contradictions in the evidence between the only 

two witnesses and law enforcement, as well as the photographs—impeaching the 

testimony of the eyewitnesses—weigh in favor of a finding of some harm.” Ansari 

at *5.

In Appellant’s case, the prosecutor explicitly told the jury they did not have 

to agree on the same victims. In Ansari, the prosecutor’s argument only “suggested 

to each individual juror the he or she could find Ansari guilty if he or she believed 

either assault occurred—without agreement.” Ansari at *4.

This Court found it harmful that “there is no way to know whether the jurors 

all believed one of the assaults occurred or whether some believed one occurred and 

some believed another occurred.” Id.

However, the 2 Justice Panel reviewing Appellant’s case concluded that it was 

harmless when each juror was explicitly told they only had to believe Appellant

killed two victims—any two. 

The standard for the harm analysis is different in the two cases. However, the 

Court pointed out that it was still required to find “actual, rather than merely 

theoretical, harm from the error.” Id .at *3. (quoting Warner v. State, 245 S.W.3d 

458, 462 (Tex. Crim. App. 2008)).

Extraordinary circumstances

This Court should reconsider Appellant’s case en banc because it concerns an 
4

issue that goes directly to a defendant’s fundamental rights, only 2 Justices 

participated in the case on remand, the use of the “law of the case” doctrine is 

questionable, and this case is exceedingly complicated and a more reliable finding 

will be reached with evaluations of the records from multiple justices. 

And then there were two

Appellant was denied her right to a unanimous verdict because of a flawed 

jury charge. However, upon initial review, a Panel of 3 Justices did not believe there 

was an error with the charge3. The Court of Criminal Appeals remanded the case in 

order for this Court, presumably by the same Panel of 3 Justices, to conduct a harm 

analysis. However, the Chief Justice had retired by the time the case was remanded 

and only 2 Justices participated in the case.

Although both the jury charge and argument of counsel 

weigh in favor of egregious harm, we conclude the state of 

the evidence and the record as a whole substantially 

support a finding of guilt with regard to each of the five 

capital murder victims. Accordingly, we hold the record 

does not establish egregious harm, and we affirm the trial 

court's judgment.

Saenz v. State, No. 04-12-00238-CR, 2015 WL 5037969, at *1 (Tex. App. Aug. 26, 

2015)(not designated for publication).

 

3 The first time Ms. Saenz case was before this Court, the Panel consisted of Chief Justice Catherine 

Stone, The Honorable Marialyn Barnard and The Honorable Patricia O. Alvarez. Saenz v. State, 

421 S.W.3d 725, 733 (Tex. App.—San Antonio), petition for discretionary review granted (May 

14, 2014), vacated, 451 S.W.3d 388 (Tex. Crim. App. 2014), reh'g denied (Jan. 28, 2015).
5

Two of the factors supported a finding of egregious harm, so the Court looked 

to “‘the state of the evidence’ and “‘all other relevant information in the record 

remaining cognizant this case was highly circumstantial.’” Almanza v. State, 686 

S.W.2d 157, 171 (Tex. Crim. App. 1985). 

Despite the initial and repeated assertion that 2 of the factors “weighed in 

favor of egregious harm,” the incomplete Panel reviewed the record in such a way 

that the violation of Appellant’s right was determined to be harmless. 

The 2 Justices’ recitation of the evidence is incomplete. The Court made it 

very clear that much of the evidence was circumstantial, yet it only seems to consider 

the State’s version of the circumstances. 

The Panel argued that “the rule of the case” doctrine allowed it to proceed 

with its analysis as if Appellant agreed with any factual and legal determination in 

its previous (3 Justice Panel) opinion if that determination was not disputed in her 

Petition for Discretionary Review. 

That doctrine applies where there has been a legal determination by a court of 

last resort. Robison v. State, 888 S.W.2d 473, 485 (Tex. Crim. App. 1994); Granviel 

v. State, 723 S.W.2d 141, 147 (Tex. Crim. App. 1986). 

A remand to a court of appeals is not a “subsequent appeal” and the law of the 

case doctrine is inapplicable. Carroll v. State, 101 S.W.3d 454, 461 (Tex. Crim. 
6

App. 2003). The Panel incorrectly applied this doctrine when evaluating the record 

as a whole and found that the error was harmless:

Although Saenz argues this is a question of highly contested evidence

like in Ngo, we disagree. The evidence adduced at trial, and this court’s

analysisthereof and conclusionstherefrom were not contested by Saenz

in the petition for discretionary review she filed with the Court of

Criminal Appeals.

Reconsideration by the entire Court would enable all of the Justices to discuss 

and examine the case to determine the proper basis for analyzing harm.

Flawed doctrine, flawed decision

Because of this mistaken reliance on the “law of the case” doctrine, the Panel

found that, although the error that had been “emphasized” and the argument weighed 

“in favor of egregious harm,” the more nebulous and subjective factors in the 

standard were determinative.
7

PRAYER

WHEREFORE, PREMISES CONSIDERED, Ms. Saenz respectfully requests 

that this Court, sitting en banc, withdraw the Panel Opinion, and find that the denial 

of Ms. Saenz’right to a unanimous verdict was harmful.

Respectfully submitted, 

 _______________________

ROBERT A. MORROW

SBN: 14542600

24 Waterway Ave., Suite 660

The Woodlands, Texas 77380

Tel. 281-379-6901

Fax 281-813-0321 

Heather M. Lytle

SBN: 24046487

202 Travis Street, Suite 300

Houston, Texas 77002

Tel. 713-204-7060 

Amy D. Martin

SBN: 24041402

202 Travis Street, Suite 300

Houston, Texas 77002

Tel. 713-320-3525 

ATTORNEYS FOR APPELLANT

KIMBERLY CLARK SAENZ

Robert A. Morrow 
8

CERTIFICATE OF COMPLIANCE

I certify that this Motion for En Banc Reconsideration complies with Texas 

Rule of Appellate Procedure 9.4. It was prepared in 14-point Times New Roman 

font. In its entirety, it contains 1,952 words. 

_______________________

ROBERT A. MORROW

CERTIFICATE OF SERVICE

This is to certify that on the September 8, 2015, a true and correct copy of the

foregoing instrument was served upon counsel for the State electronic service.

________________________ 

ROBERT A. MORROW

Robert A. Morrow 

Robert A. Morrow