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 217 th Judicial District Court

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

APPELLANT’S MOTION FOR EN BANC RECONSIDERATION

R OBERT A. M ORROW

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

CLERKi 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 Ass t. 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

- 5090ii 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

................................ ................................ ................... 8iii 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. 3 d 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

................................ ................................ ... 81 STATEMENT OF THE CASE

Appellant Kimberly Clark Saenz relies upon and incorporates the Statement s

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 Co urt of Criminal Appeals held that this Court

erred in findi ng no error in the jury charge because the charge allowed for a non

unanimous verdict by failing to require unanimous agreement on the victim of the

predicate murder on which the capital murder cha rge was based 1

. 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 error 2

. Id

.

EN BANC RE CONSIDERATION

On August 26, 2015 this Court

, by a P anel 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 o f 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 d i sfavored, en banc consideration is proper if “ necessary to secure

or m aintain unifor m ity of the c o u r t ’ s d e c i s i o n s o r unless extraordinary

circu m stances require en banc c on s ideration. ” 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 ve rdict.

Lack of uniformity

Three weeks before this opinio n was handed down, a 3 Justice P anel (2 of

whom decided this case) decided Ansari v. State , No. 04

- 14

- 0 0728

- 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 th e 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 ca se, 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 th e assaults occurred or whether some believed one occurred and

some believed another occurred.” Id.

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

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

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 an4

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 reac hed 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 P anel of 3 Justices did not believe there

was an error with the charge 3

. The Court of Criminal Appeal s remanded the case in

order for this Court , presumably by the same P anel 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 c ase was before this Court, the P anel consisted of Chief Justice Catherine

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

, 421 S.W.3d 725, 733 (Tex. App.

— San Antonio), petition for dis cretionary review granted (May

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

.5

T wo of the factors supported a finding of egregio us h arm, 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 . Th e Court made it

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

the State’s version of the circumstan ces.

The Panel a rgued that “the rule of the case” doctrine allow ed it to proceed

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

its previous (3 Justice Panel ) opinion if that determination was not dispute d 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:

Althou g h S ae nz a r g u e s this is a q u e stion of hi g h l y c ont e st e d e vid e n c e

like in N go

, w e dis a g r ee

. The e v i d e n ce a ddu ce d a t t r i a l, a nd this c ou r t ’ s

a n a l y sis th ere o f a nd c on c lusions th e r efr om we r e not c on t e st e d b y S ae nz

in the p e t i tion f

or dis cre tion a r y re v i e w she f il e d with the C ou r t of

C r imin a l App ea ls.

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, th e 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 Cour t, sitting en banc, withdraw the Panel Opinion, and find that the denial

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

.

Respectfully submitted,

_______________________ R OBERT A. M ORROW

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

A TTORNEYS FOR A PPELLANT

K IMBERLY C LARK S AENZ Robert A. Morrow8 CERTIFICATE OF COMPLIANCE

I certify that this Motion for En Banc Re consideration 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.

_______________________ R OBERT A. M ORROW

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.

________________________ R OBERT A. M ORROW Robert A. Morrow Robert A. Morrow