No. 01-14-00886-CR

In the

Court of Appeals

For the

First District of Texas

At Houston

♦

No. 1389543

In the 248th District Court

Of Harris County, Texas

♦

ANA MARIA GONZALEZ-ANGULO 

Appellant

V.

THE STATE OF TEXAS

Appellee

♦

STATE’S APPELLATE BRIEF 

♦

DEVON ANDERSON

District Attorney

Harris County, Texas

ERIC KUGLER

Assistant District Attorney

Harris County, Texas

TBC No. 796910

kugler_eric@dao.hctx.net

JUSTIN KEITER

NATHAN HENNIGAN

Assistant District Attorneys 

Harris County, Texas

1201 Franklin, Suite 600

Houston, Texas 77002

Tel: (713) 755-5826

FAX: (713) 755-5809

Counsel for Appellee

ORAL ARGUMENT REQUESTED ONLY IF GRANTED TO APPELLANT

ACCEPTED

01-14-00886-CR

FIRST COURT OF APPEALS

HOUSTON, TEXAS

10/14/2015 9:12:40 AM

CHRISTOPHER PRINE

CLERK

 FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 10/14/2015 9:12:40 AM CHRISTOPHER A. PRINE Clerk
STATEMENT REGARDING ORAL ARGUMENT

Pursuant to TEX. R. APP. P. 39, the State requests oral argument only if oral 

argument is granted to the appellant.

IDENTIFICATION OF THE PARTIES

Counsel for the State:

Devon Anderson  District Attorney of Harris County

Eric Kugler  Assistant District Attorney on appeal

Justin Keiter; Nathan Hennigan  Assistant District Attorneys at trial

Appellant or criminal defendant:

Ana Maria Gonzalez-Angulo 

Counsel for Appellant:

Barbara Drumheller  Counsel on appeal

Derek Hollingsworth; Andy Drumheller  Counsel at trial

Trial Judge:

Hon. Katherine Cabaniss  Presiding Judge

i
TABLE OF CONTENTS

Page

STATEMENT REGARDING ORAL ARGUMENT ................................................i

IDENTIFICATION OF THE PARTIES ....................................................................i

INDEX OF AUTHORITIES.................................................................................... iii

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

STATEMENT OF FACTS ........................................................................................1

REPLY TO APPELLANT’S SECOND AND THIRD POINTS OF ERROR .......32

A rational jury could have found beyond a reasonable doubt that the appellant 

committed the aggravated assault of a person with whom she had been in a 

dating relationship................................................................................................32

REPLY TO APPELLANT’S FIRST POINT OF ERROR......................................41

The trial court did not abuse its discretion in denying the appellant’s motion for 

new trial based on alleged newly discovered evidence because it could have 

disbelieved the new evidence and believed Blumenschein’s affidavit, which 

contradicted much of the allegedly new evidence. ..............................................43

REPLY TO APPELLANT’S FOURTH POINT OF ERROR.................................48

A. DeSilva had a strong basis for identifying the appellant and there were 

numerous pieces of evidence to connect the appellant to the anonymous 

GlaxoSmithKline caller even without DeSilva’s identification...........................49

B. The appellant was not harmed by the admission of her voice identification 

because other evidence linked her to the GlaxoSmithKline investigation, and that 

investigation related to a collateral issue in the case. ..........................................54

CONCLUSION........................................................................................................57

CERTIFICATE OF SERVICE AND COMPLIANCE ...........................................58

ii
INDEX OF AUTHORITIES

CASES

Adams v. State, 

397 S.W.3d 760 (Tex. App.—

Houston [14th Dist.] 2013, no pet.)............................................................... 49, 51

Aviles-Barroso v. State, 

14-14-00142-CR, 2015 WL 5157472 (Tex. App.—

Houston [14th Dist.] Aug. 27, 2015, no. pet. h.)........................................... 49, 50

Barley v. State, 

906 S.W.2d 27 (Tex. Crim. App. 1995)...............................................................49

Brooks v. State, 

323 S.W.3d 893 (Tex. Crim. App. 2010).............................................................33

Chambers v. State, 

805 S.W.2d 459 (Tex. Crim. App. 1991).............................................................33

Coffin v. State, 

885 S.W.2d 140 (Tex. Crim. App. 1994).............................................................48

Colyer v. State, 

428 S.W.3d 117 (Tex. Crim. App. 2014).............................................................42

Conner v. State, 

67 S.W.3d 192 (Tex. Crim. App. 2001)........................................................ 48, 49

Davis v. State, 

180 S.W.3d 277 (Tex.App.—

Texarkana 2005, no pet.)......................................................................................50

Green v. State, 

934 S.W.2d 92 (Tex. Crim. App. 1996)...............................................................48

Guzman v. State, 

955 S.W.2d 85 (Tex. Crim. App. 1997)...............................................................48

Halton v. State, 

05-14-00640-CR, 2015 WL 3991827 (Tex. App.—

Dallas July 1, 2015, no pet.).................................................................................35

iii
Holden v. State, 

201 S.W.3d 761 (Tex. Crim. App. 2006).............................................................42

Huffman v. State, 

775 S.W.2d 653 (Tex. App.—

El Paso 1989, pet. ref’d).......................................................................................35

Ibarra v. State, 

11 S.W.3d 189 (Tex. Crim. App. 1999)........................................................ 49, 51

Jackson v. Virginia, 

443 U.S. 307319 (1979).......................................................................... 32, 37, 40

Johnson v. State, 

871 S.W.2d 183 (Tex. Crim. App. 1993).............................................................34

Keeter v. State, 

74 S.W.3d 31 (Tex. Crim. App. 2002).................................................................42

King v. State, 

29 S.W.3d 556 (Tex. Crim. App. 2000)...............................................................33

Lewis v. State, 

911 S.W.2d 1 (Tex. Crim. App. 1995).......................................................... 43, 45

McCarthy v. State, 

65 S.W.3d 47 (Tex. Crim. App. 2001).................................................................54

Neil v. Biggers, 

409 U.S. 188 (1972)...................................................................................... 49, 50

Okonkwo v. State, 

398 S.W.3d 689 (Tex. Crim. App. 2013)...................................................... 43, 45

Palomo v. State, 

352 S.W.3d 87 (Tex. App.—

Houston [14th Dist.] 2011, pet. ref’d)..................................................................35

Santos v. State, 

116 S.W.3d 447 (Tex. App.—

Houston [14th Dist.] 2003, pet. ref’d)..................................................................49

Stobaugh v. State, 

421 S.W.3d 787 (Tex. App.—

Fort Worth 2014)..................................................................................................38

Wall v. State, 

184 S.W.3d 730 (Tex. Crim. App. 2006).............................................................54

iv
Wallace v. State, 

106 S.W.3d 103 (Tex. Crim. App. 2003)...................................................... 43, 47

Webb v. State, 

232 S.W.3d 109 (Tex. Crim. App. 2007).............................................................42

Wesbrook v. State, 

29 S.W.3d 103 (Tex. Crim. App. 2000)...............................................................54

Williams v. State, 

116 S.W.3d 788 (Tex. Crim. App. 2003).............................................................50

STATUTES

TEX. CODE CRIM. PROC. art. 40.001 (West 2012)....................................................43

TEX. FAMILY CODE § 71.0021(b) (West 2010)........................................... 33, 34, 40

TEX. FAMILY CODE § 71.0021(c) (West 2010) ........................................................33

TEX. PENAL CODE § 1.07 (West 2010).....................................................................33

TEX. PENAL CODE § 22.02(b)(1) (West 2010) .........................................................33

TEX. PENAL CODE § 37.02 (West 2012)...................................................................46

RULES

TEX. R. APP. P. 39....................................................................................................... i

TEX. R. APP. P. 44.2(a).............................................................................................54

TEX. R. EVID. 401.....................................................................................................44

v
TO THE HONORABLE COURT OF APPEALS:

STATEMENT OF THE CASE

The appellant was charged with the aggravated assault of her boyfriend, 

George Blumenschein, by poisoning him with ethylene glycol on January 27, 2013 

(CR – 23). She pled “not guilty” to the charge, and the case was tried to a jury (CR 

– 155). The jury found her guilty and assessed punishment at ten years in prison 

on September 29, 2014 (CR – 155). The appellant filed notice of appeal one 

month later, and the trial court certified that she had the right to appeal (CR – 158, 

160). 

STATEMENT OF FACTS

George Blumenschein was a medical oncologist at MD Anderson Cancer 

Center (RR. VI – 148-149) (RR. IX – 145). His supervisor was Bonnie Glisson, a 

professor of medicine at MD Anderson (RR. VII – 99-101). Blumenschein did his 

fellowship at MD Anderson in 1997 (RR. IX – 139). That same year, he met 

Evette Toney, and the two started dating; however, she then moved to Boston to 

earn a master’s degree (RR. V – 176) (RR. IX – 149-150) (RR. X – 251-252). 

Toney returned to Houston in 2003 to pursue her doctorate in clinical 

epidemiology, and the couple resumed their relationship (RR. IX – 150-151) (RR. 
X – 252). Toney lived with Blumenschein for a few months before getting her 

own apartment (RR. IX – 152). 

In 2007, Blumenschein bought a house and asked Toney to move in with 

him; she did (RR. IX – 153) (RR. X – 254). Toney wanted to get married, but 

Blumenschein was not on the same page, so she bought her own house in 2009 and 

moved out (RR. IX – 153-154) (RR. X – 256-257). Blumenschein asked her to 

return to his home, and she did so in late 2009 or early 2010 (RR. IX – 154) (RR. 

X – 257). Blumenschein was in good health and had no liver or kidney problems 

at that time (RR. IX – 248-249). 

The appellant was also a physician and breast oncologist at MD Anderson 

(RR. V – 77) (RR. VII – 102-103). She was married, and she and her husband 

were trying a have a child through in vitro fertilization (IVF) (RR. XII – 51). But 

the side effects of IVF were very difficult on her, and the implantation did not 

work (RR. XII – 51). 

In 2004, the appellant called Blumenschein and asked him to take over the 

care of a patient who had previously seen Blumenschein’s father, who was also a 

physician (RR. IX – 148, 156). Blumenschein did not interact with the appellant 

again until 2008, when she invited a group of physicians to a cancer conference in 

Columbia (RR. IX – 156). Blumenschein went to the conference and thought that 

the appellant was “very nice.” (RR. IX – 157). During one of his trips to 

2
Columbia, Blumenschein and the appellant toured a coffee plantation and learned 

that the way to experience coffee was to take it black and not adulterate it with 

anything else (RR. IX – 181). And that is the way that Blumenschein would drink 

his coffee (RR. IX – 180) (RR. X – 275) (RR. XII – 28). 

Eventually, the appellant and Blumenschein collaborated on a potential 

clinical trial targeting a cancer cell that involved both lung and breast cancer (RR. 

IX – 157-158). Blumenschein told her that he wanted to learn how to write grants, 

and the appellant volunteered to teach him (RR. IX – 158). In December 2010, the 

appellant wrote him an email that said: “Love to work with you on these 

grants...P.S....I’ve seen how you...seem to really like children. I think you’d be a 

great dad. You should have kids.” (RR. IX – 159). One day the appellant held up 

her hand for Blumenschein to see that she had no ring (RR. IX – 160). She told 

him that she was getting a divorce (RR. IX – 160). But she also knew that he was 

in a long-term relationship with Toney (RR. IX – 159-160) (RR. XII – 52-53). 

Around March 2011, the appellant and Blumenschein were working on a 

grant in Blumenschein’s office (RR. IX – 161). They were both looking at the 

same computer when the appellant insisted that she sit on Blumenschein’s knee 

(RR. IX – 161). She then advanced the relationship and started lying on his 

shoulders and kissing him on the neck (RR. IX – 162). He said “no,” but the 

appellant did not accept that answer (RR. IX – 162). The appellant said that she 

3
loved him like a brother, but he insisted that she was touching too much (RR. IX –

163). She said that it was a cultural thing from Columbia (RR. IX – 163). 

Around September 2011, they had both travelled to Stockholm when the 

appellant performed oral sex on Blumenschein (RR. IX – 163-164). They started 

to have an affair despite the fact that Blumenschein repeatedly told her that it was a 

bad idea (RR. IX – 164-165, 167). At one point, the appellant said, “I’d have a kid 

with you...No, no, no. I can have a kid with you. I could move to Europe for a year 

and I could come back and you could be the uncle.” (RR. IX – 166). The appellant 

rejected that offer, but the appellant responded, “Well, you better think about it and 

do it soon because I don’t have lot of time.” (RR. IX – 166, 171). The appellant 

also complained that they never took the relationship further than oral sex; they 

never had sexual intercourse, and the appellant was disappointed about that (RR. 

IX – 168-169). 

Professionally, the appellant and Blumenschein were doing well because

they were generating interest among pharmaceutical companies (RR. IX – 172). 

But working together was difficult due to increasing demands (RR. IX – 193). 

And their behavior aroused suspicions in the office, especially with Glisson (RR. 

VII – 103-104, 175-176, 236-239). But when Glisson and other coworkers 

confronted Blumenschein about the apparent affair, he denied it (RR. VII – 104, 

113, 238-239). Nevertheless, the appellant did reveal the affair to one of her 

4
closest friends at MD Anderson, another breast medical oncologist named Jennifer 

Litton (RR. XII – 54). 

The appellant bought Blumenschein many expensive gifts, which he did not 

want (RR. IX – 176-179) (RR. X – 274-275). And she would often copy his style, 

buying the same brand of luggage, the same brand of watch, and the same kind of 

Porsche (RR. IX – 255) (RR. X – 7-8). She named him in her will, and he was one 

of her two executors (RR. VII – 299-301) (RR. X – 26) (St. Ex. 31). She would 

also tell her coworkers that Blumenschein had been “good” to her, that he was her 

best friend in the United States, and that she “cared for him.” (RR. VII – 176, 237-

239). One coworker thought that the appellant had a crush on Blumenschein (RR. 

VII – 230). 

When they traveled together to conferences, the appellant would sometimes 

say, “Oh, there’s no rooms [sic] left. If you want to come to this conference, you’ll 

have to split a room with me. You’ll save money. Don’t worry about it.” (RR. X –

12). But sometimes the appellant was lying about those circumstances (RR. X –

13).

In December 2011, the appellant confronted Blumenschein about her 

suspicions that he was adopting a child (RR. IX – 174). It turned out that 

Blumenschein was merely acting as a reference for a friend who was adopting 

(RR. IX – 173-175). Nevertheless, that confrontation bothered Blumenschein 

5
because those reference lists were supposed to be confidential, and he wondered 

how the appellant obtained access to it (RR. IX – 175). 

In May 2012, Toney told Blumenschein that she wanted to take the next step 

in their relationship, which meant having a family (RR. IX – 215-217) (RR. X –

265). Toney became pregnant with twins through IVF and was placed on bedrest 

during that summer (RR. IX – 217) (RR. X – 265-266). While she was on bedrest, 

she allowed her sister to drive her company car, which was not allowed by her 

employer, GlaxoSmithKline (RR. IX – 218-219) (RR. X – 266, 268-270). When 

Toney’s sister was involved in an accident, Toney became worried because she did 

not have a doctor’s note ordering her not to drive (RR. IX – 219) (RR. X – 270-

271). Blumenschein shared these concerns with the appellant without mentioning 

the pregnancy, and the appellant wrote a fraudulent note for Toney even though the 

appellant was not her physician and despite the fact that Blumenschein refused the 

offer (RR. VII – 194-195) (RR. IX – 220-224) (RR. X – 272). Toney gave the 

appellant’s note to her employer even though it was a lie (RR. IX – 223-224) (RR. 

X – 273) (St. Ex. 18). 

Toney miscarried her twins in September 2012 (RR. IX – 226) (RR. X –

272). Blumenschein finally told the appellant about Toney’s pregnancy and 

miscarriage in October 2012 (RR. IX – 226-229). Around that time, Litton noticed 

that the appellant was more agitated, more tearful, and more prone to anger than 

6
she had been in the past (RR. XII – 57, 59). Other coworkers also noted that the 

appellant became very emotional and would often cry (RR. VII – 188, 199). She 

told one of them that Blumenschein wasn’t eating again and that he needed to start 

eating; she also mentioned IVF during that same phone call (RR. VII – 199-200). 

Litton was concerned about the appellant and encouraged her to seek counseling 

(RR. XII – 59). 

Blumenschein and Toney drove to his parents’ house in Arlington for 

Thanksgiving 2012 (RR. IX – 183-185). When they returned, there was an 

anonymous letter addressed to Toney (RR. IX – 186) (RR. X – 277). It said 

something like, “He’s interfering in my working life. She’s interfering in your 

personal life. We should meet to discuss this, and we should do this before—

because things will become more complicated with Ana’s impending 

pregnancy...Meet me at Starbucks Tuesday at noon.” (RR. IX – 187) (RR. X –

277-278). Both Toney’s name and the appellant’s name were misspelled in the 

note (RR. IX – 187). Toney asked Blumenschein if he was having an affair with 

the appellant, but he denied it, and she believed him (RR. X – 278). 

Blumenschein talked about the note with both Toney and the appellant, but 

he could not go to Starbucks on Tuesday at noon because he had a clinic (RR. IX –

187-188, 191). When Blumenschein showed the note to the appellant, she told him 

that it was just someone trying to mess with his head (RR. IX – 189-190) (RR. X –

7
279). He did not call the police because he did not see the note as overtly 

threatening (RR. IX – 189). And no one went to Starbucks (RR. IX – 191) (RR. X 

– 280). 

The appellant told Blumenschein that she received an anonymous phone call 

at MD Anderson saying, “You better leave him alone. You better stop working 

with him. This is a warning.” (RR. IX – 192). She said it was “somebody trying to 

mess with my head...they must be jealous of us being successful. Don’t worry 

about it.” (RR. IX – 192). According to the phone records, there was no evidence 

of any such anonymous calls around either November 20 or December 11 (RR. 

VIII – 272, 274). 

On December 17, 2012, a coworker told Blumenschein to call the appellant,

which he did; the appellant stated that she had been attacked at her home, beaten,

and thrown to the ground (RR. IX – 194). The appellant said that someone buzzed 

her intercom to let her know that her mailbox was open but that when she went to 

close it, a black man and a black woman grabbed her, threw her to the ground, 

kicked her repeatedly, said, “You better stop working with him,” and then ran 

away (RR. VII – 77-78, 244-247) (RR. IX – 195) (RR. X – 286) (RR. XII – 62-63). 

Blumenschein insisted that she call the police, but she refused (RR. VII – 245-246) 

(RR. IX – 195-196) (RR. XII – 64). He drove over to her house and did not see 

any injuries consistent with such an assault, and neither did her coworkers (RR. 

8
VII – 212, 252) (RR. IX – 197-198, 204) (RR. X – 282, 284) (RR. XII – 63-64). 

Furthermore, the appellant wrote a cogent and coherent email dealing with an MD 

Anderson study less than fifteen minutes after the alleged attack occurred; there 

was no mention of the assault in that email nor any hint that a traumatic event had 

just occurred (RR. IX – 19-21) (St. Ex. 134). When Blumenschein returned home, 

Toney confronted him about what was going on, but he said nothing about the 

affair (RR. IX – 202). 

The next day, the appellant asked if she could stay with Blumenschein and 

Toney because she was afraid (RR. IX – 203-204) (RR. X – 283). When the 

appellant arrived at their house, the three talked about possible suspects (RR. IX –

205). The appellant suggested it was another doctor named Funda Meric-Bernstam 

who was supposedly jealous of their research (RR. IX – 205) (RR. X – 284). Such 

an accusation was odd because the appellant was apparently close friends with 

Meric-Bernstam, who was a surgical oncologist at MS Anderson (RR. V – 74, 93). 

The appellant said that she was going to investigate Meric-Bernstam (RR. IX –

205). She said that she was having two bodyguards fly in from Colombia that 

Friday who were going to get permits for guns (RR. IX – 206) (RR. X – 285). A 

couple of weeks later, the appellant added to the story, claiming that the assailants 

said, “Oh, and you won’t be having his baby.” (RR. IX – 198). 

9
Blumenschein continued to push the appellant to make a police report, even 

while the two went to San Francisco for an advisory board meeting, and she 

eventually agreed to go when they returned to Houston if Blumenschein would 

accompany her (RR. VII – 82) (RR. IX – 207-210). The appellant made her report 

at the City of Southside Place police station; such reports are extremely rare in that 

small and upscale community (RR. VII – 72, 78). There were twelve residences 

within a couple hundred feet of the appellant’s mailbox, but not one call was made 

to the police that evening of the alleged assault (RR. VII – 90-91). Furthermore, 

the appellant never provided the police any additional information from a private 

investigator who she allegedly hired to look into the assault (RR. VII – 94). 

While they were at the police station, the appellant said, “Aha, I know 

something you don’t know...You don’t know what’s going on in your 

house...There was a black man staying at your house last night.” (RR. IX – 211-

212). Blumenschein knew that Toney’s cousin, who was African-American, was 

staying with Toney while Blumenschein was in San Francisco (RR. IX – 212) (RR. 

X – 289). But he was surprised that the appellant knew and asked her, “How in the 

hell did you know that?” (RR. IX – 212). The appellant responded, “I had your 

house watched,” and Blumenschein told her never to do that again (RR. IX – 212). 

On January 3, 2013, Toney had an operation at Texas Women’s Hospital to 

improve her ability to carry a baby to term (RR. IX – 229-230) (RR. X – 9). She 

10
stayed at the hospital for a few days, and Blumenschein drove her car during that 

time as an authorized driver (RR. IX – 231-232) (RR. X – 9). During one of those 

days, Blumenschein left work around 5:30 p.m. and told the appellant that he 

needed to go home, but instead he went to see Toney at the hospital (RR. IX – 233-

234) (RR. XI – 17). The traffic was very heavy, so Blumenschein took many back 

streets (RR. IX – 234-235). A few days later, the appellant confronted him angrily 

and said, “You lied to me....You didn’t go home. You went to the hospital. You 

went [to] the Women’s Hospital.” (RR. IX – 234). Blumenschein asked how she 

knew that, and the appellant responded, “I had you watched. I had you watched.” 

(RR. IX – 234). Blumenschein said, “Do not do this again, never again. Stop it.” 

(RR. IX – 235). 

Despite naming her as a suspect in the mailbox assault, the appellant would 

sometimes talk to Meric-Bernstam about her relationship with Blumenschein; but 

she insisted that it was professional (RR. V – 93). Nevertheless, Meric-Bernstam 

was worried that the appellant was attached to Blumenschein whereas 

Blumenschein had a long-time girlfriend and was not emotionally available to the 

appellant (RR. V – 93). Meric-Bernstam was worried that the appellant would get 

hurt (RR. V – 93). 

The appellant told Cathy Eng, a professor of colorectoral cancer and a 

clinical researcher at MD Anderson, about her affair with Blumenschein (RR. V –

11
172, 180-181). She also told Eng about the alleged attack near her mailbox (RR. V 

– 181). She stated that she tried to file a police report but that she had a difficult 

time at the police station (RR. V – 182). She claimed that she called someone 

from back home to assist in the investigation, and then she pointed the finger at 

Toney (RR. V – 201). She made similar statements to other coworkers (RR. VII –

254-259). 

Sometime in early January 2013, Blumenschein started telling some of his 

coworkers that he was finally thinking of getting married to Toney (RR. VII –

198). On January 26, 2013, Blumenschein returned to Houston from a conference 

in San Diego (RR. IX – 237, 241). On the plane, he sat next to an old friend, Mark 

Gilbert, who was a neuro-oncologist at MD Anderson (RR. VI – 84-86). They had 

glasses of wine from the same bottle and ate the same meal (RR. VI – 24, 93-100)

(RR. IX – 241-242). Gilbert believed that Blumenschein was acting normally (RR. 

VI – 100). After they landed in Houston, Blumenschein picked up some food from 

Niko Niko’s Greek restaurant for himself and Toney, which they ate together (RR. 

VI – 123-133) (RR. IX – 243-246) (RR. XI – 21-23). They then went to bed 

around 8:00 p.m. (RR. IX – 248) (RR. XI – 23).

The next morning, a Saturday, they woke up at 7:00 a.m., and Blumenschein 

felt great (RR. IX – 249-250) (RR. XI – 24). He planned to meet the appellant at 

MD Anderson to work, but she insisted that he stop by her house first (RR. IX –

12
250-251, 299). The appellant said that she had made breakfast and had some 

special Columbian coffee for him (RR. IX – 250-251). When he arrived, the 

coffee was already prepared, and Blumenschein had a few sips; but it was too 

sweet for his taste (RR. IX – 252-253). They had oral sex and a shot of vodka 

before driving into work (RR. IX – 253-256). 

The appellant made a travel mug of coffee for Blumenschein to take with 

them to work, although the appellant was more of a Diet-Coke person (RR. IX –

257). The coffee was incredibly and sickeningly sweet (RR. IX – 258-259). When 

Blumenschein complained, the appellant said that it was Splenda despite the fact 

that she knew that Blumenschein drank his coffee black (RR. IX – 259-260). At 

around 10:00 a.m., the appellant took the coffee away, and Blumenschein thought 

that she had tossed it in the sink, but she returned with two cups of coffee (RR. IX 

– 262-264). The appellant said that one cup of coffee was special and expensive 

and that he needed to finish it first (RR. IX – 265). Blumenschein took some more

sips but then threw it in the trash (RR. IX – 265). The appellant then handed him 

the second cup of coffee, which was still sweet but not as sweet as the earlier 

coffee, and Blumenschein likely finished that cup (RR. VII – 108-109) (RR. IX –

265-266). 

Around 11:00 a.m. that morning, Blumenschein became light-headed and 

felt intoxicated (RR. IX – 267-268). He commented to the appellant that he was 

13
slurring his words, but she said, “Oh, you’re hypoglycemic. You haven’t eaten 

anything. Don’t worry about it.” (RR. IX – 268). But Blumenschein had been 

healthy and was worried that he was having a stroke (RR. IX – 268). 

Blumenschein appeared disheveled and abnormal to his colleagues that were 

at work (RR. VI – 181-183) (RR. VII – 110). He called Toney around 1:30 p.m. 

and said, “Evette, I’m not feeling well. I’m calling because if something happens, I 

want you to know that my speech is slurred and I’m not feeling well.” (RR. XI –

28-29). Toney asked him to go to the hospital, but he responded, “I haven’t had 

anything to eat. I just had coffee this morning. So maybe I should eat something 

and I may feel better.” (RR. IX – 268-269) (RR. XI – 29). He continued to work 

(RR. IX – 269). The appellant said again, “You know, you’re just hypoglycemic. 

We’ll go to my place and get something to eat.” (RR. IX – 270). Before leaving 

MD Anderson with Blumenschein, the appellant packed up her travel coffee cup 

that had contained the special coffee (RR. IX – 306). 

The appellant drove Blumenschein back to her house and laid out a plate of 

cheese and sausage (RR. IX – 272). When Blumenschein cut into the sausage, he 

cut his thumb so badly that it would not stop bleeding (RR. IX – 272-273). The 

appellant called Meric-Bernstam, who came over, looked at the cut, and told 

Blumenschein to go to the hospital if he was still not feeling well after dinner (RR. 

V – 74, 79-80) (RR. IX – 273-275). Meric-Bernstam was concerned about his 

14
reactions and performed a neurologic sobriety test on him (RR. V – 82). She then 

suggested that he go to an emergency room, but he refused (RR. V – 83). He told 

Meric-Bernstam how upset he was about the sweet coffee; and the appellant 

seemed to be irritated that he was “making such a big deal about it.” (RR. V – 85). 

Blumenschein had an important dinner that evening at Feast to discuss 

getting his own cancer center at the University of Virginia, and he was worried that 

he would slur his speech or say something stupid (RR. IX – 275-277). He drank 

water, not wine during the meal (RR. IX – 277). Nevertheless, he kept dropping 

his eating utensils, jostling the dishes, and fumbling his BlackBerry (RR. IX – 276-

277). His dinner companions, who included Eng, asked if he had taken Oxycontin 

and kept telling him to go to the hospital (RR. V – 184-192, 235, 241-244) (RR. IX 

– 278, 283). He called Toney around 8:00 p.m. and told her in very slurred speech, 

“I’m constantly dropping my utensils. I can barely walk.” (RR. XI – 36). 

After dinner, Blumenschein wanted to go to the hospital, and the appellant 

assured Eng that she would take him there; but she drove him back to her house 

instead (RR. V – 192, 226) (RR. IX – 279-281). When they arrived, Blumenschein 

asked for his keys, but the appellant would not give them to him (RR. IX – 281). 

He tried to use his BlackBerry while he was in the bathroom, but he couldn’t 

manipulate it and ended up dropping it in the toilet, which disabled the phone (RR. 

IX – 281). 

15
Toney was attempting to reach Blumenschein on his cell phone, but there 

was no answer (RR. XI – 40). She finally called the appellant at 10:16 p.m., and 

the appellant stated that Blumenschein was at her house (RR. XI – 42). The 

appellant was calm and said, “I have his keys and he’s still sick. He’s very 

sick....He can barely walk, Evette, so I took away his keys.” (RR. XI – 42-43). 

Toney replied, “Great. Keep him there. I’m on my way. I’m going to pick him up 

and take him to the hospital.” (RR. XI – 42-44). The appellant, however, then 

handed Blumenschein his keys (RR. IX – 282). 

Toney arrived at the appellant’s house at 10:27 p.m., but the appellant and 

Blumenschein were already gone (RR. IX – 45-46). When Toney called the 

appellant, the appellant said, “Oh, George took the keys and I’m following him to 

MD Anderson.” (RR. XI – 46). Toney said, “Ana, why would you allow him to 

drive? Not only could he kill himself but someone else. Why would you allow 

this?” (RR. XI – 46). The appellant’s response was silence (RR. XI – 46). 

Blumenschein drove himself, slowly, to MD Anderson while the appellant 

followed him; she arrived about four minutes later (RR. VI – 105) (RR. IX – 282)

(RR. XI – 49-50). When Toney got to the hospital, she saw the appellant arrive 

and said, “We need to get him to the ER now.” (RR. XI – 49). But the appellant 

responded, “I don’t know,” before finally calling the emergency center (RR. XI –

49). It took them another twenty minutes to get to the emergency room (RR. XI –

16
55). When they arrived, the appellant volunteered to fill out the paperwork for 

Toney (RR. XI – 55-56). 

At the emergency room, Blumenschein was in and out of consciousness, 

stuporous, nonsensical, and groaning (RR. V – 195, 274) (RR. VI – 102) (RR. XI –

48). He was also complaining about double vision (RR. VIII – 51). Gilbert was 

paged to evaluate his cognitive functioning (RR. VI – 101-103, 107-108). 

Blumenschein was very worried about a presentation that he had to give on 

Monday morning, but when his colleagues told him that someone else would 

handle it, he fell asleep (RR. IX – 284). The appellant wrote an order of Tylenol 

for Blumenschein despite the fact that she was not his treating physician (RR. VI –

41).

Amit Lahoti, a nephrologist at MD Anderson, saw Blumenschein in the 

emergency room (RR. V – 268). There was a severe amount of acid in 

Blumenschein’s blood, which was already causing kidney problems, so 

Blumenschein was transferred to the Intensive Care Unit (ICU), and dialysis was 

started (RR. V – 198, 268-269, 274-277) (RR. VII – 112). His creatinine levels hit 

2.96 that morning, which indicated severe kidney damage (RR. V – 278). That 

afternoon, a nurse pointed out Blumenschein’s urine bag to Lahoti; there was an 

unusual whitish sediment in the bag (RR. V – 279). 

17
Lahoti spun a sample from Blumenschein’s urine bag in his centrifuge, 

checked it under a microscope, and was shocked to see crystals “everywhere” that 

were a telltale sign of ethylene glycol poisoning (RR. V – 279-280, 284, 286, 296) 

(RR. VI – 18) (RR. VII – 115) (St. Ex. 5, 6). Ethylene glycol, which can be found 

in antifreeze, breaks down into crystals that can be deposited into numerous 

organs, including the kidneys, causing inflammation (RR. V – 283-284, 289) (RR. 

VIII – 142-144). Those crystals can also be deposited in the brain, causing double 

vision (RR. VIII – 51, 142-144). 

Ethylene glycol is a colorless, odorless substance with a sweet taste (RR. V 

– 309) (RR. VIII – 27). It would change the flavor of any food that it was added 

to, and Blumenschein described the appellant’s coffee as “funny, or different” to a 

consulting physician (RR. VII – 22-23). Because it is an alcohol, ethylene glycol 

can cause intoxication (RR. VIII – 146). Furthermore, the continuous ingestion of 

a substantial amount of ethyl alcohol can delay the absorption of ethylene glycol 

because the body prefers to process ethyl alcohol rather than ethylene glycol (RR. 

III – 57-60). 

When Lohati returned to Blumenschein’s room with a picture of the crystals, 

the appellant said, “Oh, boy, looks like ethylene glycol. I’ve seen this quite a bit 

back home in my home country.” (RR. V – 294). The appellant told Glisson that 

she had been reading about ethylene glycol poisoning and stated that 

18
Blumenschein “must have been exposed in California then had alcohol during the 

trip back from San Diego and that that had delayed his presentation with clinical 

symptoms.” (RR. VII – 116). She also told another of Blumenschein’s colleagues 

that he was suffering from ethylene glycol poisoning and added, “And George is 

not the kind of person that would commit suicide.” (RR. VI – 164). 

Meric-Bernstam stopped by to check on Blumenschein (RR. V – 88-89). 

She could only see him from a distance, but he was pale and seemed unaware of 

his surroundings (RR. V – 89). The appellant talked with her there; she stated that 

she saw crystals in the Foley catheter that drains the bladder, that she was worried 

about that, and that it was being investigated by the nephrologist (RR. V – 90, 161, 

199). The appellant suggested that Toney had done the poisoning (RR. V – 91). 

She also told Meric-Bernstam about the alleged attack near her mailbox the 

previous December (RR. V – 92). 

The appellant told Glisson that Toney had a motive to poison Blumenschein 

because Toney had miscarried in the fall and the couple was still trying to have 

children (RR. VII – 121). That alleged motive made no sense to Glisson (RR. VII 

– 122). The appellant also admitted to Glisson that she had access to ethylene 

glycol in her laboratory (RR. VII – 124-125) (RR. IX – 28). But the appellant 

never told Glisson about the coffee she had made for Blumenschein the day he 

19
became ill (RR. VII – 124, 162-163, 228, 265). She also denied having a sexual 

relationship with Blumenschein (RR. VII – 163). 

The appellant continued to tell other coworkers of her suspicions that Toney 

was behind both the poisoning and the mailbox assault (RR. VII – 181-183) (RR. 

XII – 19-22). Sometimes in telling the mailbox story, the appellant would claim 

that it was two black males rather than a black male and a black female (RR. XII –

20). And she blamed Toney for allegedly forcing him away from his family (RR. 

VII – 190-192). 

A day or so after Blumenschein was admitted to the hospital for the 

poisoning, the appellant sat down to talk with Litton (RR. XII – 69-71). She told 

Litton that Blumenschein was very sick, that he was poisoned with ethylene glycol, 

and that she was upset about the coffee that she gave him (RR. XII – 71). The 

appellant stated that Blumenschein was concerned that the coffee was too sweet 

and that she told him that she had put Splenda in it (RR. XII – 71). She also said 

that Blumenschein was confused and that she had to remind him that they were 

sipping out of the same to-go cup (RR. XII – 71-72). She admitted that she had 

ethylene glycol in her lab (RR. XII – 71). She said, “I’m going to get in so much

trouble for this.” (RR. XII – 71). Although the appellant was crying, she was being 

extremely careful about the words she chose to describe the situation (RR. XII –

20
74). She suggested that Toney was trying to frame her for the poisoning (RR. XII 

– 75). 

Many labs at MD Anderson have open doors, and people can just walk in 

without using a security badge, especially by following someone else who had 

already used a badge to open the door (RR. V – 165-166) (RR. IX – 15-16) (RR. X 

– 160-161). And ethylene glycol would not commonly be locked up in a lab (RR. 

X – 161). Toney, on the other hand, had never purchased ethylene glycol (RR. XI 

– 96-97). 

Blumenschein almost died as a result of the poisoning, and he would have 

died without the prompt medical treatment that he received (RR. V – 308) (RR. VI 

– 36, 112) (RR. IX – 287). He woke up on Tuesday in the ICU, saw Toney there, 

and asked what had happened (RR. IX – 285). Toney told him that he had been 

poisoned and that the appellant said that they found crystals (RR. IX – 285-286)

(RR. XI – 64, 68). Blumenschein thought that the only odd food he had taken in 

the past few days was the appellant’s abnormally sweet coffee (RR. IX – 286) (RR. 

X – 9) (RR. XI – 69-70). 

Blumenschein did not immediately tell the police about his suspicions 

because he was still in the hospital and felt that both he and Toney were 

vulnerable, especially in light of the appellant’s contacts in Columbia (RR. IX –

288) (RR. X – 10) (RR. XI – 69-70, 238). Blumenschein said to Toney, “Evette, 

21
do not poke the dragon....I think she poisoned me. I don’t want to say anything 

until I know for certain, until we have some proof.” (RR. XI – 70). He also said, 

“I’m in ICU. Please don’t say anything....I don’t know if she’s going to do 

something to you. I don’t know if she’s going to do something to me.” (RR. XI –

71). 

The first blood sample taken from Blumenschein was negative for ethylene 

glycol, but that was not surprising because that alcohol is quickly converted into 

acid (RR. V – 300) (RR. VI – 17-18) (RR. VII – 18-19). Nevertheless, the 

appellant sent an email to Lahoti on January 29 noting that the blood test for 

ethylene glycol was negative and asking what caused the damage to the kidneys 

(RR. V – 299-302). Lahoti, however, was confident in his diagnosis that 

Blumenschein suffered from ethylene glycol poisoning (RR. V – 303) (RR. VII –

17-18, 58-60, 129). And his diagnosis was confirmed by a professor of medical 

toxicology from the University of Texas Southwestern Medical Center and the 

North Texas Poison Center (RR. VIII – 8, 12, 18-56, 70). Furthermore, the timing 

of Blumenschein’s intoxication symptoms was consistent with ingesting the 

ethylene glycol sometime Sunday morning (RR. VIII – 56-70). Kenneth 

McMartin, a professor of toxicology at Louisiana State University and the 

recognized authority on ethylene glycol toxicity, concurred in that conclusion (RR. 

VIII – 70, 129-135, 150-186, 217-218). 

22
The appellant spoke with Kristen Price, a doctor who was investigating the 

possible source of the ethylene glycol poisoning, but she did not volunteer 

information, and she failed to mention anything that Blumenschein had to eat or 

drink with her, including the coffee (RR. VI – 30, 33). She did, however, say that 

Toney did not like her and did not like the fact that Blumenschein spent so much 

time with her (RR. VI – 32-34). 

The appellant told Price that she wanted to speak confidentially (RR. VI –

34). She stated that she and Blumenschein “almost became romantically involved 

or had a sexual relationship,” but she stopped it because she didn’t think that would 

be wise with them working together (RR. VI – 34). A month or two later, the 

appellant told Price that Blumenschein had actually come to her apartment the 

morning before he got ill and that they had a shot of vodka; but she still failed to 

mention the coffee (RR. VI – 35, 45). The first time that Price heard about the 

coffee was in the media (RR. VI – 75). 

While Blumenschein was still in the ICU, he received an angry text from the 

appellant (RR. IX – 290, 294). She was upset that she was going to be a suspect 

because she had access to ethylene glycol (RR. IX – 290). She was also focused 

on learning the location of the anonymous letter that Toney had received in the 

mail after Thanksgiving (RR. IX – 292). That letter was in the same bag as 

Blumenschein’s laptop computer (RR. IX – 293) (RR. XI – 72). When 

23
Blumenschein remarked that he needed his laptop computer, the appellant 

immediately volunteered to get it; however, when she delivered it to 

Blumenschein, the letter was missing from the bag (RR. IX – 193-194) (RR. XI –

72-76). 

After Blumenschein had been in the ICU for a couple of weeks, the 

appellant told Toney that she wanted to travel with Blumenschein to Italy (RR. XI 

– 78). She stated, “I have shared hotel rooms with him several times and I want to 

travel with him and take care of him.” (RR. XI – 79). Hearing this prompted 

Toney to confront Blumenschein again about his affair with the appellant, and this 

time he finally admitted to it; Toney cried (RR. IX – 290-291) (RR. XI – 80). 

Toney then confronted the appellant, who also admitted to the affair (RR. XI – 83). 

She said, “That was just sex, Evette.” (RR. XI – 84). Regarding the poisoning, the 

appellant said that she spoke with her brother about the attack, that he was going to 

come from Colombia, that she was going to take care of matters, and that she 

decided not to do that (RR. XI – 84). 

Price eventually contacted the chief at the University of Texas Police 

Department (UTPD) in MD Anderson as well as the chief legal counsel for the 

hospital (RR. VI – 38). Macario Sosa with the UTPD was assigned to the case 

(RR. VIII – 229-230). He interviewed Price, Eng, Toney, Lahoti, and others (RR. 

VIII – 229, 237, 259-260, 292) (RR. IX – 25). He tried to meet with 

24
Blumenschein, but Blumenschein was still in the ICU and was in a lot of pain (RR. 

VIII – 240, 242). He arranged to meet with the appellant on January 31, but the 

appellant called and cancelled because she was flying to Chicago (RR. VIII – 233-

235). He made another appointment to meet with her on February 1, but she 

cancelled that meeting as well (RR. VIII – 236-237). He was eventually able to 

talk with her on February 26 (RR. VIII – 237). In the meantime, he pulled the MD 

Anderson emails for the appellant and Blumenschein (RR. VIII – 240). 

Blumenschein was discharged from the hospital on February 22 (RR. IX –

295). The appellant offered to have Blumenschein and Toney stay with her during 

his recuperation so that she could give him IV fluids, but he declined (RR. VII –

184-187) (RR. IX – 295). He had lost a lot of muscle mass, and it was very 

difficult for him to keep his blood pressure up (RR. IX – 297). The damage to his 

kidneys caused long-term physical disabilities, limiting his diet and activity and 

reducing his life expectancy (RR. VII – 26-28) (RR. X – 27) (RR. XII – 30). His 

kidneys function at about forty percent of what they should (RR. X – 29). He is 

required to be a vegetarian, does not drink alcohol, and becomes fatigued easily 

(RR. VII – 25-28, 39) (RR. X – 27-28). 

The appellant’s friends decided that they no longer wanted to be alone with 

the appellant to avoid talking about Blumenschein and Toney (RR. VII – 271-272, 

302). They compared notes and realized that the appellant was telling the same 

25
basic stories but with different details (RR. XII – 76). Litton felt that the appellant 

was manipulating her (RR. XII – 76). 

The appellant told Price about the alleged assault that occurred near her 

mailbox, although in this version it was two men; she also stated that the assault 

had been traced to Toney by a private investigator (RR. VI – 43-45). And she told 

Price that she was worried about Blumenschein’s possible conflict of interest 

because Toney worked for GlaxoSmithKline, and Blumenschein had a research 

grant from that company (RR. VI – 47-50) (RR. VII – 197-198, 265-266). 

The appellant and Gilbert were at a conference in San Francisco in March or 

April, and they went out to dinner together (RR. VI – 112). The topic of 

Blumenschein’s poisoning came up, and the appellant suggested that Toney was 

possibly the poisoner (RR. VI – 114). 

Also in March, Blumenschein was supposed to attend a conference in Italy 

and was planning on taking Toney (RR. X – 14-16) (RR. XI – 89). The appellant 

repeatedly offered to come to Italy to take care of him and his IV fluids, but he 

rejected her assistance (RR. X – 16). She then told him that she had looked into 

his United Airlines account and knew that he was taking Toney on the trip (RR. X 

– 16) (RR. XI – 89). Blumenschein did not know how the appellant had acquired 

the password to his United Airlines account, and he had to change it (RR. X – 16). 

26
On March 17, the appellant sent Blumenschein an angry email regarding a 

prior email that Blumenschein had never sent (RR. IX – 297). His technology 

department concluded that someone had been messing around with his email 

account (RR. VII – 297-298) (RR. IX – 298, 300). The appellant had acquired the 

password to his email account, and she downloaded a picture of Toney from his 

email (RR. VII – 274) (RR. IX – 296). On another occasion, one of the appellant’s 

hotel reservations was cancelled without his consent (RR. XII – 32-34). The 

appellant told coworkers that she and Blumenschein shared email passwords 

because of their work partnership (RR. VII – 275). 

In order to protect themselves in light of the curious circumstances, 

Blumenschein and Toney bought a recording device and learned how to use it (RR. 

IX – 307-308). He recorded several of his telephone calls with the appellant (RR. 

IX – 309). In one of the recordings, the appellant told Blumenschein that she had 

come home from a foreign conference to find an anonymous letter on her front 

porch that had been exposed to the sprinkler system (RR. X – 19). She stated that 

the letter said something like, “You finally left him alone, good.” (RR. X – 19). 

Blumenschein told the appellant to give the letter to the police because it was a 

break in the case, and they discussed the letter several times (RR. X – 19). But the 

appellant eventually admitted that she had fabricated the letter (RR. X – 19, 21). 

27
In early April 2013, an anonymous letter was dropped off to MD Anderson’s 

conflict-of-interest chair regarding Blumenschein’s grant from GlaxoSmithKline 

and Toney’s employment with that same company (RR. VII – 266) (RR. VIII –

277-284) (RR. X – 142-143). That letter contained the same misspelling of the 

appellant’s name that had been in the earlier Thanksgiving 2012 note addressed to 

Toney (RR. VIII – 284). The appellant denied writing that anonymous letter (RR. 

VII – 266-268). But surveillance video showed her at the conflict-of-interest office 

at the time that the letter was delivered (RR. VII – 289-291). 

On April 18, a conflict-of-interest board member received an anonymous 

email reporting Blumenschein’s alleged marriage to Toney and pointing her out as 

a GlaxoSmithKline employee (RR. X – 138-140). The email referred to the 

appellant and misspelled her first name in the same manner as was done in the 

prior anonymous letters (RR. X – 140-141). The email also referred to an 

upcoming ASCO conference, which meant that the author knew a lot about 

Blumenschein and his schedule (RR. X – 141-142). That board member talked 

with the appellant, who was very eager to assist (RR. X – 145-147). She stated 

that she had tried several times to discuss the issue with Blumenschein and that she 

was unable to effect any outcome; she also forwarded several emails in that regard 

(RR. X – 145-147). She told the board member that Toney had filled out 

28
documents in the emergency room indicating that she was Blumenschein’s spouse 

(RR. X – 154). 

A similar anonymous letter regarding the alleged conflict of interest was sent 

to GlaxoSmithKline (RR. X – 185-188). The letter detailed numerous alleged 

violations by Toney, including using a GlaxoSmithKline conference line to receive 

personal coaching from physicians and using the appellant’s fraudulent doctor’s 

note as an excuse after the crash of the company car (RR. X – 187-188). The letter 

misspelled Blumenschein’s name as “Blumenschain.” (RR. X – 207-208).

Mike DeSilva, an investigator with GlaxoSmithKline was assigned to look 

into the allegations in the letter (RR. X – 188-189). While he was conducting the 

investigation, he received two anonymous phone calls from a woman with a 

Hispanic accent, who he later identified as the appellant (RR. X – 196, 201). He 

talked with the appellant for approximately ten minutes during the first call, which 

occurred on April 30, and over thirty minutes during the second call, which 

occurred on May 1 (RR. X – 195, 201). The appellant stated that she worked with 

Blumenschein at MD Anderson and that it was very important to her that 

Blumenschein not be made aware that she had reported the conflict of interest 

allegation involving him and Evette Toney (RR. X – 204). The appellant reported 

that during Blumenschein’s recent hospitalization Toney had told hospital 

personnel that she was his common-law spouse (RR. X – 205). 

29
DeSilva set up an anonymous email account for the appellant so that he 

could continue to communicate with her (RR. X – 205-206). During an email 

exchange on May 5, the appellant referred to herself as “your doctor contact at MD 

Anderson” and then directed DeSilva to contact the appellant herself through her 

MD Anderson email account (RR. X – 207) (St. Ex. 138). That email also 

misspelled Blumenschein’s name as “Blumenschain.” (RR. X – 207-208). In 

another email dated May 8, the appellant once again referred DeSilva to herself 

and stated: 

Gonzalez is very close to Blumenschein. They work together, 

and are close friends. However, we are sure that she will answer any 

questions that you have, and if she is asked to keep the investigation 

confidential, she will (one of us asked her through a private e-mail 

account anonymously).... She answered that she will be willing to 

answer any questions via e-mail and by a phone call if necessary, but 

she would need to have MD Anderson Compliance Officer present. ...

Since this is getting much more complex and involves other 

information, we believe that we should not get further involved. We 

have contacted Gonzalez for you. E-mail her. E-mail or call the other 

people we told you, they will tell you the truth. Compliance either has 

called them or will call them. 

(RR. X – 209-210, 211) (St. Ex. 139). On May 9, the appellant wrote, “Gonzalez 

will help you out. We are from nieghborh [sic] countries and we were raised the 

same way. She will do the right thing.” (RR. X – 212) (St. Ex. 141). DeSilva 

emailed the appellant through her MD Anderson account and attempted to set up a 

meeting, but the appellant was unwilling to meet personally and would only 

30
communicate through email (RR. X – 213-215). The appellant, however, never 

answered DeSilva’s emailed list of questions (RR. X – 217-219). Toney was fired 

by GlaxoSmithKline as a result of using the appellant’s false doctor’s note (RR. X 

– 220-221, 274) (RR. XI – 90-93). 

Sosa obtained a warrant for the appellant’s arrest on May 29, 2013 (RR. VII 

– 299-304) (CR – 8-9, 19). He could not obtain a statement from the appellant 

because she already had legal counsel (RR. IX – 32). But the appellant told Sosa 

that it was Evette (RR. IX – 37). When Sosa said, “You can’t beat science,” the 

appellant responded, “Yes, science is good.” (RR. IX – 37). She appeared defeated 

at that point (RR. IX – 38). 

A month or so before the trial, the appellant warned her friends that she was 

probably going to sue MD Anderson and some of the other people that had “hurt 

her throughout this process.” (RR. VII – 304). She also stated that her criminal 

lawyers were going to be very hard on some witnesses, especially those who had 

allegedly lied before the Grand Jury, despite the fact that such testimony is 

supposed to be confidential (RR. VII – 305-306). 

31
REPLY TO APPELLANT’S SECOND AND THIRD 

POINTS OF ERROR

The appellant claims in her second point of error that the evidence was 

insufficient to connect her to the injuries sustained by Blumenschein (App’nt Brf. 

32-42). Her related third point of error argues that the evidence was insufficient to 

show that she was in a dating relationship with him (App’nt Brf. 43-47). These 

issues will be addressed first because sufficiency of the evidence is in many ways 

the most basic argument that can be made in a case, and because a discussion of 

the evidence is relevant to any harm analysis performed in the other points of error. 

Nevertheless, these issues lacks merit because any rational jury could have found 

the appellant guilty based on the mountain of testimonial and circumstantial 

evidence. 

A rational jury could have found beyond a reasonable doubt that 

the appellant committed the aggravated assault of a person 

with whom she had been in a dating relationship.

The standard of review in the present case is whether, after viewing the 

evidence in the light most favorable to the prosecution, any rational trier of fact 

could have found beyond a reasonable doubt that the appellant intentionally caused 

serious bodily injury to Blumenschein by poisoning him with ethylene glycol and 

that she had been in a dating relationship with him (CR – 23); Jackson v. Virginia, 

443 U.S. 307, 319 (1979); Brooks v. State, 323 S.W.3d 893, 902 (Tex. Crim. App. 

32
2010); TEX. PENAL CODE § 22.02(b)(1) (West 2010). The jury is the sole judge of 

the weight of the evidence under this review and may choose to believe all, some, 

or none of it. Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991). 

“Serious bodily injury” means bodily injury that creates a substantial risk of 

death or that causes death, serious permanent disfigurement, or protracted loss or 

impairment of the function of any bodily member or organ. TEX. PENAL CODE § 

1.07 (West 2010). A “dating relationship” means a relationship between 

individuals who have or have had a continuing relationship of a “romantic or 

intimate nature.” TEX. FAMILY CODE § 71.0021(b) (West 2010). The existence of 

such a relationship must be determined based on the length of the relationship, the 

nature of the relationship, and the frequency and type of interaction between the 

persons involved in the relationship. Id.. But a “casual acquaintanceship” or 

“ordinary fraternization” in a business or social context does not constitute such a 

relationship. TEX. FAMILY CODE § 71.0021(c) (West 2010). 

Evidence can be legally sufficient for a conviction even if it is entirely 

circumstantial. King v. State, 29 S.W.3d 556, 565 (Tex. Crim. App. 2000). The 

standard of review for circumstantial and direct evidence is the same. Id. It is not 

necessary that every fact point directly and independently to the defendant’s guilt; 

it is enough if the conclusion is warranted by the combined and cumulative force 

33
of all the incriminating circumstances. Johnson v. State, 871 S.W.2d 183, 186 

(Tex. Crim. App. 1993).

In the present case, the evidence showed that the appellant and 

Blumenschein started having sex in 2011 and continued to have sex until the day 

she poisoned him in 2013 (RR. IX – 163-164, 253-256). The appellant would 

frequently give him expensive gifts, she offered to have his child, she named him 

in her will, and they took frequent trips together, sometimes sharing a hotel room 

(RR. VII – 299-301) (RR. IX – 162-169, 176-179) (RR. X – 12-13, 26, 274-275)

(RR. XI – 79). Furthermore, the appellant admitted to the affair on more than one 

occasion (RR. XII – 54) (RR. XI – 83). While Blumenschein did not consider the 

appellant to be his girlfriend or that they were dating, he conceded that they had an 

intimate relationship (RR. IX – 163, 166-167, 169-170, 176, 193, 218) (RR. X –

43-44). Thus, the evidence was sufficient to show intimacy if not true romance. 

TEX. FAMILY CODE § 71.0021(b) (West 2010).

With regard to the poisoning, the appellant herself acknowledged the 

numerous connections. She told her good friend Litton, “I’m going to get in so 

much trouble for this,” because she gave Blumenschein the sweet coffee the day he 

became ill and because she had access to ethylene glycol in her lab (RR. XII – 71). 

Her escalating desperate behavior prior to the poisoning showed her willingness to 

break the law, by stalking and making false statements to law enforcement among 

34
other activities, in order to harm Blumenschein’s relationship with Toney (RR. IX 

– 211-235). Her behavior during the day of the poisoning showed her intent to 

isolate Blumenschein and prevent him from getting the medical help that he 

needed (RR. V – 192, 226) (RR. IX – 279-282) (RR. XI – 42-43, 46-49). And her 

behavior during Blumenschein’s hospitalization showed her intent to deflect 

suspicions onto Toney and away from herself (RR. V – 91, 299-302) (RR. VI – 32-

34, 164) (RR. VII – 116, 121, 181-183) (RR. XII – 19-22, 75). 

From the above evidence, any jury would have been rationally justified in 

finding guilt beyond a reasonable doubt. See Palomo v. State, 352 S.W.3d 87, 90 

(Tex. App.—Houston [14th Dist.] 2011, pet. ref’d) (holding that defendant’s 

possession of a weapon linked to the crime soon after the crime and the 

defendant’s having access to the location where the police discovered the weapon 

was a circumstance of the defendant’s guilt); Huffman v. State, 775 S.W.2d 653, 

661 (Tex. App.—El Paso 1989, pet. ref’d) (holding in a murder case based on 

circumstantial evidence and involving ligature strangulation, defendant’s access to 

a belt which gave him the capacity to inflict the fatal injuries was evidence of guilt 

where a belt was found near the victim’s bed even though it was not conclusively 

shown to be murder weapon,); Halton v. State, 05-14-00640-CR, 2015 WL 

3991827, at *5 (Tex. App.—Dallas July 1, 2015, no pet.) (not designated for 

publication) (finding evidence sufficient to show a dating relationship even though 

35
victim denied having sexual relations with Halton and testified she does not 

consider a relationship without sex “dating intimately,” where victim also testified 

that they shared companionship and kissed). 

The appellant claims that Blumenschein “told investigators and physicians 

that [the appellant] drank the same coffee from the same cup he did throughout the 

day.” (App’nt Brf. 35). But in the same passage cited by the appellant, 

Blumenschein stated that his memory was “very foggy” and that he was on pain 

medications at the time (RR. X – 65-66). Moreover, Blumenschein’s previous 

testimony at trial was that the appellant “held it up to her lips and said, It’s 

Splenda. I couldn’t tell if she drank or not. I didn’t see her swallow.” (RR. IX –

259). He also affirmed that he “never actually saw her take a sip.” (RR. IX – 259). 

Furthermore, any statements to the contrary could have been the result of the 

appellant’s power of suggestion. The appellant admitted to Litton that 

Blumenschein was confused and she had to “remind him” that they were sipping 

out of the same to-go cup (RR. XII – 71-72). Finally, even if the testimony cited 

by the appellant were the only testimony on the issue in the appellate record, the 

jury could have chosen to disbelieve it; therefore, it should not be considered under 

the correct standard for evaluating the sufficiency of the evidence. See Jackson, 

443 U.S. at 319 (requiring that evidence be viewed in the light most favorable to 

the prosecution). 

36
The appellant argues that no ethylene glycol was found in her possession. 

(App’nt Brf. 35). But she admitted that she had access to the poison (RR. VII –

124-125) (RR. IX – 28). She was a smart woman. And she had all the time she 

needed to dispose of the physical evidence after Blumenschein was admitted to the 

hospital and she realized that she would be a suspect. The appellant states without 

citation to the record that the “evidence conclusively showed every physician at 

M.D. Anderson had as much access to ethylene glycol as she did.” (App’nt Brf. 

35-36). But that evidence came from the appellant’s mouth, when she was trying 

to manipulate her friend, Litton (RR. XII – 71). And once again, evidence 

favorable to an appellant cannot “conclusively show” anything in a sufficiency 

review because the standard requires that the evidence be viewed in the light most 

favorable to the prosecution. See Jackson, 443 U.S. at 319. 

The appellant claims that the “window of possible ingestion realistically 

extended as far back as the previous Friday night.” (App’nt Brf. 36). But there was 

nothing at all realistic about that scenario. As the foremost authority on ethylene 

glycol poisoning explained in detail, such a scenario would have required that 

Blumenschein continuously keep his blood alcohol level at 0.10 to 0.15 during that 

period (RR. VIII – 57-68). And that would have required that he consume 

approximately three liters of booze each day, continuously (RR. VIII – 61-62). 

There was no realistic evidence that such a scenario was occurring.

37
The appellant argues that the “fatal attraction” theory “has no logical force 

and is hard to square with a lovelorn woman set on winning the complainant.” 

(App’nt Brf. 37). But there is an oft-quoted proverb to the contrary: “Heaven hath

no rage, like love to hatred turned, Nor hell a fury like a [lover] scorned.” WILLIAM 

CONGREVE, THE MOURNING BRIDE, act 3, sc.8. The appellant had spent so much 

time, money, and energy in her efforts to woo Blumenschein, that she was 

understandably reduced to rage when Blumenschein announced that he was still 

pursuing a baby with Toney and was even thinking of marrying her (RR. VII –

198) (RR. IX – 234-235). Not only did the appellant’s motive have overwhelming 

logical force, it was one of the oldest motives in the book.

The appellant cites Stobaugh v. State, 421 S.W.3d 787, 790 (Tex. App.—

Fort Worth 2014), petition refused, 455 S.W.3d 165 (Tex. Crim. App. 2015), in 

support of her claim that the circumstantial evidence was insufficient. But

Stobaugh was a 47,000 word opinion holding the evidence insufficient to prove 

murder in that case where “there is no body, no murder weapon, no witnesses, no 

blood or DNA evidence; there are no fibers, hairs, or any type of forensic evidence 

establishing that a murder occurred.” Id., 421 S.W.3d at 865. The sheer length of 

the opinion demonstrates how fact-bound the holding was. Furthermore, in the 

present case, there was overwhelming evidence that a poisoning had occurred. 

Blumenschein survived the assault and was able to testify about his injuries and the 

38
sweet coffee. And three irreproachable experts agreed that Blumenschein’s 

injuries were caused by ethylene glycol poisoning, which most likely occurred 

around the time that Blumenschein drank the appellant’s sweet coffee (RR. V –

303) (RR. VII – 17-18, 58-60, 129) (RR. VIII – 8, 12, 18-70, 129-135, 150-186, 

217-218). 

The appellant claims that it “strains credibility to believe that 

[Blumenschein] would drink something he found sickening, disgusting and 

perhaps even toxic because he did not want to hurt the feelings of someone he had 

been using for casual sex at the office over the previous two years.” (App’nt Brf. 

41). But of course, their relationship was far more complex than that. The 

appellant and Blumenschein had worked closely together for years and had been in 

an intimate relationship for almost as long (RR. VII – 299-301) (RR. IX – 162-169, 

176-179, 253-256) (RR. X – 12-13, 26, 274-275) (RR. XI – 79, 83) (RR. XII – 54). 

Furthermore, Blumenschein stated that the appellant was not someone who would 

take “no” for an answer (RR. IX – 251). The appellant was the driving force 

behind the relationship: she initiated their first contact and orchestrated every 

major advance in intimacy (RR. IX – 148, 156, 159-160, 162-169). Thus, the 

appellant’s characterization of the relationship is not supported by the evidence.

The appellant claims that the evidence of a dating relationship was 

insufficient because Blumenschein and the appellant both stated at times that it was 

39
casual sex. (App’nt Brf. 44-45). But the appellant’s claim of casual sex was made 

to Toney when she was finally confronted about the affair; therefore, she had a 

motive to downplay it. The appellant made crystal clear to her friends and 

coworkers, through both her actions and her statements, that she was far more 

emotionally invested in Blumenschein than mere casual sex. She offered to have 

his baby, she told people that she cared for him and that he was good to her, and 

she bought him many expensive gifts (RR. VII – 176, 230, 237-239) (RR. IX –

166, 176-179) (RR. X – 274-275). 

Both Blumenschein and the appellant admitted to Toney that they were 

having an “affair.” (RR. XI – 80, 83). These admissions, coupled with the

evidence that the affair included repeated sexual relations, travel together, and gift 

exchanges, was sufficient evidence to meet the broad definition of a “dating 

relationship.” TEX. FAMILY CODE § 71.0021(b) (West 2010) (“a relationship 

between individuals who have or have had a continuing relationship of a romantic 

or intimate nature.”). Furthermore, as stated previously, the jury could easily have 

dismissed all evidence to the contrary as lacking credibility. See Jackson, 443 U.S. 

at 319 (requiring that evidence be viewed in the light most favorable to the 

prosecution). Thus, the evidence was sufficient to sustain the conviction, and the 

appellant’s second and third points of error should be overruled. 

40
REPLY TO APPELLANT’S FIRST POINT OF ERROR

In her first point of error, the appellant complains that the trial court erred in 

failing to grant her motion for new trial based on alleged “newly discovered 

evidence” that rebutted the “fatal attraction” theory. (App’nt Brf. 11). This claim 

lacks merit because the trial court could have disbelieved the new evidence and 

believed Blumenschein’s affidavit, which contradicted much of the allegedly new 

evidence.

The appellant filed a motion for new trial thirty days after judgment was 

entered in the case (CR – 168). The motion alleged that “Mary Kara Bucci had 

direct and personal knowledge of evidence favorable to the accused, which she 

withheld prior to trial, despite the attempts of the defense team to discover it.” (CR 

– 169). Bucci’s affidavit stated that she had an “occasionally romantic or intimate” 

relationship with Blumenschein for 3.5 years starting in 2006 (CR – 179). She also 

stated that she saw Blumenschein in Alaska in 2012 and that he stated then that he 

and Toney were no longer seeing each other (CR – 179). 

The State filed a response to the appellant’s motion for new trial, and 

Blumenschein submitted an affidavit to “correct some of the misstatements” in 

Bucci’s affidavit (CR – 190-194). Blumenschein affirmed that he and Bucci 

“engaged in oral sex on two or three occasions over the next several months” in 

June 2009 after Toney had moved out of his house, but he denied an ongoing 

41
romantic relationship starting in 2006 (CR – 192). He confirmed that he spoke 

with Bucci in Alaska in 2012 but denied saying anything about his relationship 

with Toney being over (CR – 193-194). The trial court held a hearing on the 

appellant’s motion for new trial and denied the motion on December 8, 2014 (CR –

176, 208). 

A trial court’s decision whether to grant a new trial based on newly 

discovered evidence is reviewed for an abuse of discretion. See Keeter v. State, 74 

S.W.3d 31, 37 (Tex. Crim. App. 2002); see also Colyer v. State, 428 S.W.3d 117, 

122 (Tex. Crim. App. 2014). Under the abuse-of-discretion standard, this Court 

must view the evidence in the light most favorable to the trial court’s ruling and 

uphold the trial court’s ruling if it is within the zone of reasonable disagreement. 

Webb v. State, 232 S.W.3d 109, 110 (Tex. Crim. App. 2007). This Court cannot

substitute its judgment for that of the trial court, but instead must consider whether 

the trial court’s decision was arbitrary or unreasonable. Id.; Holden v. State, 201 

S.W.3d 761, 763 (Tex. Crim. App. 2006). A trial court abuses its discretion in 

denying a motion for new trial when no reasonable view of the record could 

support its ruling. Colyer, 428 S.W.3d at 122.

42
The trial court did not abuse its discretion in denying the 

appellant’s motion for new trial based on alleged newly 

discovered evidence because it could have disbelieved the 

new evidence and believed Blumenschein’s affidavit, which 

contradicted much of the allegedly new evidence.

“The trial court, as factfinder, is the sole judge of witness credibility at a 

hearing on a motion for new trial with respect to both live testimony and 

affidavits.” Okonkwo v. State, 398 S.W.3d 689, 694 (Tex. Crim. App. 2013). If 

there is conflicting evidence on an issue of fact, the trial judge determines the issue 

and there is no abuse of discretion in overruling the motion for new trial. Lewis v. 

State, 911 S.W.2d 1, 7 (Tex. Crim. App. 1995).

The Code of Criminal Procedure provides that a new trial “shall be granted 

to an accused where material evidence favorable to the accused has been 

discovered since trial.” TEX. CODE CRIM. PROC. art. 40.001 (West 2012). Under 

this provision, a defendant is entitled to a new trial if (1) the newly discovered 

evidence was unknown or unavailable to the movant at the time of his trial; (2) the 

movant’s failure to discover or obtain the evidence was not due to his lack of 

diligence; (3) the evidence is admissible and is not merely cumulative, 

corroborative, collateral, or impeaching; and (4) the new evidence is probably true 

and will probably bring about a different result on another trial. Wallace v. State, 

106 S.W.3d 103, 108 (Tex. Crim. App. 2003). 

43
In the present case, the appellant has failed to establish both the third and 

fourth requirements for a new trial. The appellant cannot show that the evidence 

was admissible because it was irrelevant. Relevant evidence is defined as evidence 

“having any tendency to make the existence of any fact that is of consequence to 

the determination of the action more probable or less probable than it would be 

without the evidence.” TEX. R. EVID. 401. And whether Blumenschein had an 

affair with Bucci does not make it more or less probable that he was poisoned by 

the appellant. Furthermore, to the extent that Blumenschein’s infidelity to Toney 

was relevant, any evidence of an additional affair with Bucci would have been 

merely cumulative, corroborative, collateral, or impeaching. 

The appellant claims that the evidence of the affair with Bucci showed that 

Blumenschein “may have targeted [the appellant] for sexual harassment as early as 

2008.” (App’nt Brf. 25). But while sexual harassment may form the basis for a 

civil action, it does not constitute a defense to attempted murder. Moreover, the 

trial court, as the finder of fact, could have completely disbelieved the allegations 

in Bucci’s affidavit, especially when confronted by the contradictory averments in 

Blumenschein’s affidavit. Compare (CR – 178-179) with (CR – 192-194). 

The appellant argues that painting Blumenschein as a predator who targeted 

younger female colleagues “would have refuted the State’s implications about 

motive and opportunity.” (App’nt Brf. 26). To the contrary, it would only have 

44
provided additional evidence of yet another motive for the appellant to seek her 

revenge on Blumenschein. If the appellant’s hostility toward Blumenschein was 

born out of her playing the part of the scorned lover, that hostility would only be 

greater if she also saw Blumenschein as the initial instigator of their intimate and 

romantic relationship.

The appellant has also failed to show that the allegedly new evidence was 

probably true and that it would probably bring about a different result at a new 

trial. Bucci’s affidavit did not squarely address any of the elements of the alleged 

offense. The allegations in the affidavit dealt with specific tangential issues 

regarding Blumenschein’s romantic affairs. But the fact that Blumenschein had 

numerous romantic affairs was not a contested issue at trial. In fact, according to 

the State’s final argument, the admission of such an affair was central in 

establishing one of the appellant’s motives (RR. XII – 197, 202). Furthermore, 

Blumenschein filed an affidavit denying or disputing many of Bucci’s allegations 

in her affidavit. And the trial court was entitled to believe Blumenschein’s 

affidavit. See Okonkwo, 398 S.W.3d at 694; Lewis, 911 S.W.2d at 7. 

The appellant claims that Bucci had “no motivation to lie” and made the 

affidavit “at personal risk to her own reputation and privacy.” (App’nt Brf. 27). 

But if her implicit allegations of Blumenschein being a predator who targeted 

younger female colleagues were true, then she would have had the same 

45
motivations as the appellant to get her revenge on him. Furthermore, the appellant 

has failed to show how making the affidavit exposed her to any personal risk. 

There was no evidence of Blumenschein threatening anyone in such a manner. 

Furthermore, it is difficult to imagine any damage that could be done to Bucci’s 

reputation or privacy in Palmer, Alaska, where she now practices, as a result of 

filing her affidavit back in Houston, Texas. 

The appellant claims that Blumenschein “expressly admitted to lying 

extensively about his private life while he was on the stand during trial.” (App’nt 

Brf. 31). To be clear, Blumenschein did not admit that his trial testimony was a 

lie; rather, he admitted to lying to Glisson and others when they asked about his 

private romantic affairs (RR. X – 119-120). Lying to a coworker about a private 

matter is a completely different act than lying under oath while testifying at trial or 

while swearing to an affidavit. See TEX. PENAL CODE § 37.02 (West 2012) (“A 

person commits an offense if, with intent to deceive and with knowledge of the 

statement’s meaning: (1) he makes a false statement under oath or swears to the 

truth of a false statement previously made and the statement is required or 

authorized by law to be made under oath.”). And the trial court was entitled to 

consider that difference in its ruling. Therefore, the trial court did not abuse its 

discretion in denying the appellant’s motion for new trial. 

46
Finally, as stated previously in response to the appellant’s second and third 

points of error, the evidence of the appellant’s guilt was overwhelmingly strong. 

There was evidence from numerous sources that Blumenschein and the appellant 

were intimate with each other, that the appellant would frequently give him 

expensive gifts, that she offered to have his child, that she named him in her will, 

and that they took frequent trips together, sometimes sharing a hotel room (RR. VII 

– 299-301) (RR. IX – 162-169, 176-179) (RR. X – 12-13, 26, 274-275) (RR. XI –

79). Furthermore, the appellant admitted to the affair on more than one occasion 

(RR. XII – 54) (RR. XI – 83). And she admitted to a friend that she would get in 

trouble for the poisoning because she gave Blumenschein the sweet coffee the day 

he became ill and because she had access to ethylene glycol in her lab (RR. XII –

71). Thus, any additional evidence concerning another of Blumenschein’s affairs 

would not likely have changed the outcome of the trial. See Wallace, 106 S.W.3d 

at 108 (holding that trial court does not abuse its discretion in denying a new trial 

when the prosecution’s case was strong enough that the new evidence suggested by 

the affidavits, even if true, would probably not be so compelling as to bring about a 

different result in a new trial). The trial court did not abuse its discretion in 

denying the motion for new trial, and the appellant’s first point of error should be 

overruled. 

47
REPLY TO APPELLANT’S FOURTH POINT OF ERROR

In her fourth and final point of error, the appellant complains about 

DeSilva’s identification of her voice in her two anonymous telephone calls to 

GlaxoSmithKline. (App’nt Brf. 48-61). This argument fails because DeSilva had a 

strong basis for identifying the appellant and there were numerous pieces of 

evidence to connect the appellant to the anonymous GlaxoSmithKline caller even 

without DeSilva’s identification. Furthermore, the appellant was not harmed by 

the admission of the voice identification, which related to a collateral issue in the 

case.

The trial court’s ruling on the admissibility of evidence is subject to an abuse 

of discretion standard on appeal. See Coffin v. State, 885 S.W.2d 140, 149 (Tex. 

Crim. App. 1994). A reviewing court should not reverse a trial judge whose ruling 

was within the “zone of reasonable disagreement.” Green v. State, 934 S.W.2d 92, 

101 (Tex. Crim. App. 1996). The reviewing court must view the evidence in the 

light most favorable to the trial court’s ruling, giving the trial court almost total 

deference on its findings of historical fact that are supported by the record. 

Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).

48
A. DeSilva had a strong basis for identifying the appellant and 

there were numerous pieces of evidence to connect the 

appellant to the anonymous GlaxoSmithKline caller even 

without DeSilva’s identification.

“[A] pretrial identification procedure may be so suggestive and conducive to 

mistaken identification that subsequent use of that identification at trial would deny 

the accused due process of law.” Conner v. State, 67 S.W.3d 192, 200 (Tex. Crim. 

App. 2001). To determine the admissibility of a pretrial identification, this Court 

must use a two-step analysis asking (1) whether the pretrial procedure was 

impermissibly suggestive; and (2) if so, whether the suggestive pretrial procedure 

gave rise to a very substantial likelihood of irreparable misidentification. Santos v. 

State, 116 S.W.3d 447, 455 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d); see 

also Neil v. Biggers, 409 U.S. 188, 198 (1972); Aviles-Barroso v. State, 14-14-

00142-CR, 2015 WL 5157472, at *12 (Tex. App.—Houston [14th Dist.] Aug. 27, 

2015, no. pet. h.). An analysis under these steps requires an examination of the 

totality of the circumstances surrounding the particular case and a determination of 

the reliability of the identification. Conner, 67 S.W.3d at 200; Barley v. State, 906 

S.W.2d 27, 33 (Tex. Crim. App. 1995). A defendant must prove the pre-trial 

identification is unreliable by proving both elements by clear and convincing 

evidence. See Santos, 116 S.W.3d at 451.

If the indicia of reliability outweigh the influence of an impermissibly 

suggestive pretrial identification, then the identification testimony is admissible. 

49
Santos, 116 S.W.3d at 451, 455–56; see Neil, 409 U.S. at 199. Therefore, even if 

the pretrial procedure is found to be impermissibly suggestive, identification 

testimony nevertheless is admissible if the totality of the circumstances shows no 

substantial likelihood of irreparable misidentification. See Ibarra v. State, 11 

S.W.3d 189, 195 (Tex. Crim. App. 1999); Adams v. State, 397 S.W.3d 760, 764 

(Tex. App.—Houston [14th Dist.] 2013, no pet.). If the totality of the 

circumstances indicates that a substantial likelihood of misidentification exists, 

then admission of the identification of the defendant amounts to a denial of due 

process. See Neil, 409 U.S. at 198–99; Adams, 397 S.W.3d at 764.

The analysis of an identification of a voice differs somewhat from that of an 

identification by sight, but the standards used to validate a visual identification are 

applicable. Aviles-Barroso, 2015 WL 5157472, at *12; see also Davis v. State, 180 

S.W.3d 277, 283 (Tex.App.—Texarkana 2005, no pet.) (analyzing admissibility of 

voice identification); Williams v. State, 116 S.W.3d 788, 792 (Tex. Crim. App.

2003) (“‘while one’s voice and handwriting are, of course, means of 

communication,’ a voice or handwriting exemplar ‘is an identifying physical 

characteristic.’”). 

In determining whether an impermissibly suggestive identification procedure 

gave rise to a substantial likelihood of irreparable misidentification, this Court 

must weigh the following factors: (1) the witness’s opportunity to hear the 

50
criminal; (2) the witness’s degree of attention; (3) the accuracy of the witness’s 

prior description of the criminal’s voice; (4) the level of certainty demonstrated by 

the witness at the confrontation; and (5) the length of time between the initial 

contact and the confrontation. See Neil, 409 U.S. at 199; Santos, 116 S.W.3d at 

453, 455–56; Aviles-Barroso, 2015 WL 5157472, at *16. Because these factors 

are issues of historical fact, this Court must weigh them deferentially in a light 

favorable to the trial court’s ruling. See Ibarra, 11 S.W.3d at 195–96; Adams, 397 

S.W.3d at 764. 

In the present case, there were numerous pieces of evidence to connect the 

appellant to the anonymous GlaxoSmithKline caller even without DeSilva’s 

identification. An anonymous letter was dropped off to MD Anderson’s conflictof-interest chair regarding the GlaxoSmithKline issue in early April 2013 (RR. VII 

– 266) (RR. VIII – 277-284) (RR. X – 142-143). The appellant denied writing that 

anonymous letter, but surveillance video showed her at the conflict-of-interest 

office at the time that the letter was delivered (RR. VII – 266-268, 289-291). On 

April 18, a conflict-of-interest board member received an anonymous email 

reporting the same GlaxoSmithKline issue (RR. X – 138-140). The email referred 

to the appellant and misspelled her first name in the same manner as was done in 

the prior anonymous letter and referred to an upcoming ASCO conference, which 

meant that the author knew a lot about Blumenschein and his schedule, as the 

51
appellant did (RR. X – 140-142). A similar anonymous letter regarding the alleged 

conflict of interest was also sent to GlaxoSmithKline and included the allegation 

that Toney used the appellant’s fabricated doctor’s note as an excuse after the crash 

of the company car (RR. X – 185-188). 

While DeSilva was conducting an investigation of the letter, he received two 

anonymous phone calls from a woman with a Hispanic accent (RR. X – 196, 201). 

He talked with the woman for approximately ten minutes during the first call, 

which occurred on April 30, and over thirty minutes during the second call, which 

occurred on May 1 (RR. X – 195, 201). The woman with the Hispanic accent

stated that she worked with Blumenschein at MD Anderson and that it was very 

important to her that Blumenschein not be made aware that she had reported the 

conflict of interest allegation involving him and Evette Toney (RR. X – 204). She 

reported that during Blumenschein’s recent hospitalization Toney had told hospital 

personnel that she was his common-law spouse, while the appellant was the one 

who had filled out the hospital paperwork (RR. X – 205) (RR. XI – 55-56). 

DeSilva set up an anonymous email account for the caller so that he could continue 

to communicate with her, and she identified herself as “your doctor contact at MD 

Anderson” and then directed DeSilva to contact the appellant through her MD 

Anderson email account (RR. X – 207, 209-210, 211) (St. Ex. 139). DeSilva 

emailed the appellant and attempted to set up a meeting, but the appellant was 

52
unwilling to meet personally and would only communicate through email (RR. X –

213-215). Thus, there was strong circumstantial evidence that the appellant was 

the anonymous caller to GlaxoSmithKline even without DeSilva’s identification of 

her voice.

With regard to the identification itself, DeSilva had a strong basis for 

identifying the appellant. He spoke with her during the course of two phone 

conversations lasting more than forty minutes total (RR. X – 195, 201). 

Furthermore, DeSilva was not your average citizen; he was a trained investigator 

with 22 years of experience in law enforcement (RR. X – 184). Thus, his powers 

of perception and memory were likely more developed than other listeners, 

especially since he was conducting an active investigation on the issue. He 

conducted the identification after listening to Blumenschein’s telephone recordings 

of the appellant, so the context of the voice was the same (RR. IX – 309) (RR. X –

196, 199, 200-203) (St. Ex. 127). And Blumenschein made six hours of such 

recordings, so there was also a sufficient sample size of the appellant’s known 

voice for DeSilva to use as a basis for the identification (RR. X – 18) (St. Ex. 127). 

DeSilva spoke with the anonymous caller on April 30 and May 1, 2013 (RR. 

X – 195, 201). In September 2014, the prosecutors gave DeSilva a CD with 

Blumenschein’s recordings and said, “We want you to listen to a tape and see if 

you can recognize who this voice is.” (RR. X – 243-244). They also told him that 

53
it was a conversation was between Blumenschein and the appellant (RR. X – 244). 

DeSilva stated that the “pitch sounded the same, the cadence, the accent, it 

sounded like the same person I spoke with on the phone on those two occasions.” 

(RR. X – 247). Thus, even if there were an impermissibly suggestive identification 

procedure, the substantial corroborating evidence assured that it did not give rise to 

a substantial likelihood of irreparable misidentification. The indicia of reliability 

outweighed any influence of an impermissibly suggestive pretrial identification. 

The trial court did not abuse its discretion in admitting the identification into 

evidence, and the appellant’s fourth point of error should be overruled. 

B. The appellant was not harmed by the admission of her voice 

identification because other evidence linked her to the 

GlaxoSmithKline investigation, and that investigation 

related to a collateral issue in the case.

Even if this Court believes that due process was violated, this Court should 

still affirm the conviction if it determines “beyond a reasonable doubt that the error 

did not contribute to the conviction or punishment.” TEX. R. APP. P. 44.2(a); see 

Wall v. State, 184 S.W.3d 730, 746 (Tex. Crim. App. 2006). Under Rule 44.2(a), 

this Court must “calculate, as nearly as possible, the probable impact of the error 

on the jury in light of the other evidence.” McCarthy v. State, 65 S.W.3d 47, 55 

(Tex. Crim. App. 2001); Wesbrook v. State, 29 S.W.3d 103, 119 (Tex. Crim. App. 

2000). If there is a reasonable likelihood that the error materially affected the 

54
jury’s deliberations, then the error is not harmless beyond a reasonable doubt.

Wall, 184 S.W.3d at 746. A finding of harmless error means that the nature of that 

evidence is such that it could not have affected the jury’s deliberations or verdict. 

Id. The presence of other overwhelming evidence that was properly admitted 

which supports the material fact to which the inadmissible evidence was directed 

may be an important factor in the evaluation of harm. Id.

In the present case, the evidence supporting the appellant’s guilt was 

overwhelming, even without the admission of DeSilva’s identification of the 

appellant as the GlaxoSmithKline caller. As stated previously, there was evidence 

from numerous sources that Blumenschein and the appellant were intimate with 

each other, that the appellant would frequently give him expensive gifts, that she 

offered to have his child, that she named him in her will, and that they took 

frequent trips together, sometimes sharing a hotel room (RR. VII – 299-301) (RR. 

IX – 162-169, 176-179) (RR. X – 12-13, 26, 274-275) (RR. XI – 79). 

Furthermore, the appellant admitted to the affair on more than one occasion (RR. 

XII – 54) (RR. XI – 83). And she admitted to a friend that she would get in trouble 

for the poisoning because she gave Blumenschein the sweet coffee the day he 

became ill and because she had access to ethylene glycol in her lab (RR. XII – 71). 

Moreover, the GlaxoSmithKline investigation was at best a tangential issue 

in the case. The only fact it established was that the appellant was instigating an 

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investigation into the possible conflict of interest between Blumenschein and 

Toney as well as Toney’s dishonesty in submitting the appellant’s fraudulent 

doctor’s note. But that fact was already well established by other evidence 

showing that the appellant likely dropped off a letter with similar content to MD 

Anderson’s conflict-of-interest chair (RR. VII – 266-268, 289-291) (RR. VIII –

277-284) (RR. X – 142-143). It was also established by other evidence that she 

sent an email probing into such matter to MD Anderson regulators (St. Ex. 143). 

Moreover, the appellant made herself available as an enthusiastic resource to both 

MD Anderson and GlaxoSmithKline in their investigations of the situation (RR. VI 

– 47-50) (RR. VII – 197-198, 265-266) (RR. X – 145-147, 154) (St. Ex. 137). 

Thus, it could not come as a surprise that the appellant was connected to yet 

another attempt to expose the alleged conflict. 

Even if DeSilva’s identification were the only evidence connecting the 

appellant to the investigation of the possible conflict of interest between 

Blumenschein and Toney, that issue was fairly irrelevant to the case. It did not 

address any element of the alleged offense (CR – 23). And it did not dispel any

motive to attempt to kill Blumenschein. At most, it showed that the appellant was 

obsessed with Blumenschein, but that fact had already been established by other 

evidence in the case. The jury sent out three notes during their deliberations on 

guilt, but none dealt with the GlaxoSmithKline investigation (CR – 126, 127, 139). 

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And their guilt-stage deliberations lasted only four hours despite the fact that they 

heard from approximately twenty-two guilt-stage witnesses over the course of 

eight days of trial testimony (CR – 206-207). Neither prosecutor specifically 

mentioned the anonymous calls to GlaxoSmithKline in their closing argument (RR. 

XII – 103-120, 174-202). Thus, it is unlikely that DeSilva’s identification 

materially affected the jury’s deliberations. The appellant’s fourth point of error 

lacks merit and should be overruled. 

CONCLUSION

It is respectfully submitted that all things are regular and the conviction 

should be affirmed. 

DEVON ANDERSON

District Attorney

Harris County, Texas

/s/ Eric Kugler

ERIC KUGLER

Assistant District Attorney

Harris County, Texas

1201 Franklin, Suite 600

Houston, Texas 77002-1923

(713) 755-5826

kugler_eric@dao.hctx.net

TBC No. 796910

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CERTIFICATE OF SERVICE AND COMPLIANCE

This is to certify that: (a) the word count function of the computer program 

used to prepare this document reports that there are 13,765 words in the relevant 

sections; and (b) a copy of the foregoing instrument will be served by 

efile.txcourts.gov to:

Barbara Drumheller

Attorney at Law

8501 Katy Freeway, Suite 201

Houston, Texas 77024

Barbara Drumheller@gmail.com




/s/ Eric Kugler

ERIC KUGLER

Assistant District Attorney

Harris County, Texas

1201 Franklin, Suite 600

Houston, Texas 77002-1923

(713) 755-5826

TBC No. 796910

Date: October 14, 2015

58