In April 2008 five patients died and at least five others suffered sudden, unexplained episodes while they were undergoing dialysis at the DaVita clinic in Lufkin, Texas: Clara Strange, Thelma Metcalf, Garlin Kelley, Cora Bryant and Opal Few among the dead. On the morning of April 28, two patients in their chairs said they watched a licensed vocational nurse named Kimberly Clark Saenz pour bleach into a container, draw it into syringes and inject it into the dialysis lines of patients near them. The State charged her with one count of capital murder covering all five deaths and five counts of aggravated assault, and it asked for death.
A jury convicted her of the capital murder and three of the assaults, acquitted her of the other two, and sentenced her to life without parole. These three opinions are her appeals. The Fourth Court of Appeals in San Antonio affirmed in January 2014, in an opinion that sets out the evidence patient by patient, including the chemical testing for 3-chlorotyrosine, a marker of chlorine exposure, that the prosecution relied on and the defense chemist disputed.
In December 2014 the Court of Criminal Appeals held that the jury charge had violated her right to a unanimous verdict, because it let jurors convict her of capital murder without agreeing which of the five patients she had killed. Since her lawyers had not objected, the court sent the case back to decide whether the error caused egregious harm. In August 2015 the court of appeals concluded that it had not, since the evidence supported a finding of guilt for each of the five deaths, and affirmed the conviction a second time.
These opinions state the evidence the jury believed, and they record the defense case mainly as the claims the court rejected: that the chemical tests were unreliable, that the clinic’s conditions and its handling of bleach explained the deaths, and that the patients who described the injections had reason to be mistaken. The acquittals on two of the assault counts mean the jury did not accept the State’s case as to those two patients, and the opinions do not say which ones they were beyond the counts themselves.
The three opinions are public records of the Texas courts. The five patients whose deaths made up the capital charge keep their names. We have given initials to the patients who survived, including the three the jury found she assaulted, to the patients who testified to what they saw, and to the nurses, technicians and managers at the clinic, all private people. The doctors, chemists and investigators who gave expert testimony, the lawyers and the judges are named as the courts named them.
The Caselaw Access Project text is printed as it stands. It keeps some scanning damage, including “eaeh” for “each,” a stray brace in a table of chemical readings, and one patient heading dated April 28, 2013, where the rest of the record places the events in 2008. We closed words split across lines only where the whole word appears elsewhere in the text, and nothing has been spell-checked.
Kimberly Clark SAENZ, Appellant v. The STATE of The State of Texas, Appellee.
No. 04-12-00238-CR.
Court of Appeals of Texas, San Antonio.
Jan. 22, 2014.
Amy D. Martin, Heather Lytle, Houston, TX, Robert Morrow, The Woodlands, TX, for Appellant.
John’ G. Jasuta, David A. Schulman, Attorneys at Law, Austin, TX, Arthur Bauereiss, Angelina County Assistant District Attorney, Lufkin, TX, for Appellee.
Sitting: CATHERINE STONE, Chief Justice, MARIALYN BARNARD, and PATRICIA 0. ALVAREZ, Justices.
[OPINION BY CATHERINE STONE, Chief Justice. type=majority]
OPINION
Opinion by:
CATHERINE STONE, Chief Justice.
In April 2008, five patients died and at least five patients suffered adverse episodes while undergoing dialysis at a clinic in Lufkin, Texas. Kimberly Saenz, a licensed vocational nurse employed at the dialysis clinic, was charged by indictment with five counts of aggravated assault involving five separate individuals and one count of capital murder involving five different individuals. A jury found Saenz guilty of capital murder and three counts of aggravated assault. The jury acquitted Saenz on two counts of aggravated assault. Although the State sought the death penalty, the jury sentenced Saenz to 20 years’ imprisonment for each count of aggravated assault and to life in prison without parole for capital murder.
On appeal, Saenz presents twenty-one points of error alleging: (1) jury charge error; (2) insufficiency of the evidence; (3) ineffective assistance of counsel; (4) improper exclusion of evidence; and (5) improper admission of expert testimony. We overrule Saenz’s appellate issues and affirm the trial court’s judgment.
Factual Background
During the month of April 2008, a dialysis clinic experienced an unusual increase in the number of patients who experienced episodes of illness and cardiac arrest while undergoing dialysis treatment. Three patients — Clara Strange, Thelma Metcalf, and Opal Few — experienced a cardiac arrest while undergoing dialysis treatment and died the same day. Two patients— Garlin Kelley and Cora Bryant — had similar experiences, but died several months later. At least five additional patients— M.B., D.O., G.C., M.R., and C.R. — had similar experiences but survived. At the time of the incidents, Saenz had been employed at the dialysis clinic for eight months. Depending on schedule requirements, Saenz functioned either as a patient care technician or as a nurse responsible for preparing medications for multiple patients.
A. April 28, 2008
On April 28, 2008, Saenz was instructed to work as a patient care technician responsible for four patients. Saenz became “teary-eyed” and was unhappy with this assignment as she preferred to function as the nurse responsible for preparing the medications, a position that had less contact with the patients. While undergoing dialysis treatment that morning, L.H. witnessed Saenz preparing a bleach cleaning solution by pouring bleach into a container. H. then witnessed Saenz place the container on the floor, bend down, and extract bleach into a syringe. H. testified that Saenz appeared nervous. H. then witnessed Saenz approach patient C.R., who was undergoing dialysis treatment, and inject the bleach-filled syringe into R.’s intravenous (IV) dialysis line. H. then witnessed Saenz do the same thing to patient M.R., who was asleep. H. testified that Saenz injected two syringes of bleach into R.’s IV and two syringes of bleach into R.’s IV and that Saenz disposed of the syringes in the container designated for used syringes, the “sharps container.” H. was very upset by what she witnessed and reported it to another patient care technician, Y.S. When asked why she did not immediately report the incident as it was unfolding, H. testified that she feared for her own safety.
L.H. was undergoing dialysis treatment in the chair next to H., although they were separated by two dialysis machines. H. testified that she witnessed Saenz place a syringe in her pocket, place a container on the floor that usually contained the bleach cleaning solution, extract bleach with the syringe, and inject the syringe into R.’s IV. Saenz then placed the used syringe into the sharps container that was assigned to the dialysis chair adjacent to R.. H. testified that Saenz appeared nervous. Saenz did not use the computer next to R.’s chair which would normally be used to chart any medication that was administered to the patient. H. testified that she was upset by what she witnessed, but did not report it to the dialysis clinic staff until after H. began reporting her observations. H. explained that she was in disbelief, but that only a matter of seconds transpired between the time she witnessed the injection, heard H.’s commotion, and reported what she had seen. Saenz was told of the allegations against her and was instructed to go home for the day.
Following the reports by H. and H., the dialysis clinic’s administrators immediately sequestered the two sharps containers alleged to contain the used bleach syringes. The administrators used a testing strip that the clinic routinely used to test the dialysis machines for bleach residue in the water line. The internal chamber of two syringes from each sharps container tested positive for bleach. Thereafter, the Centers for Disease Control (CDC), the Texas Department of Health and Human Services (TDHHS), and the Lufkin Police Department initiated an investigation into the incidents at the dialysis clinic. Most of the dialysis lines from each of the unusual events in April of 2008 were preserved by the dialysis clinic. These lines, as well as all of the sharps containers then in the clinic, were turned over to the police.
On April 29, 2008, the clinic voluntarily closed its doors and administrators conducted a mandatory staff meeting. Saenz did not attend the meeting. One of her coworkers, W.G., contacted Saenz by phone and Saenz informed him that she was at the Exposition Center with her daughter’s school and that she was not coming to the meeting. Afterwards, G. drove to the Exposition Center to check on Saenz. G. testified that Saenz appeared disheveled, was crying, and did not immediately recognize him. During their conversation, Saenz mentioned an earlier conversation with her husband and then Saenz stated to G. “I did not kill those people.” Later that day, Saenz consented to an interview with police.
B. April 2008 Deaths
Clara Strange
On April 1, 2008, Clara Strange was assigned to patient care technician W.G. Strange initially complained of shortness of breath, but was given oxygen and seemed to tolerate her dialysis treatment well for several hours. Saenz monitored G.’s patients while he was on break. When G. returned from his break, he noticed that Strange was unresponsive. Strange was transported to the hospital, but efforts to revive her were unsuccessful. She died on April 1, 2008. Strange’s chart indicated that Saenz had lowered her blood flow rate from 400 to 300. G. testified that nothing on the chart warranted lowering the blood flow rate.
Strange’s dialysis lines were preserved and sent to a Food and Drug Administration (FDA) lab for analysis. A portion of Strange’s dialysis line tested positive for bleach. A CDC toxicologist concluded that Strange died from injection of bleach into her dialysis line or port. Strange’s blood was not tested for the 3-chlorotyrosine biomarker.
Thelma Metcalf
On April 1, 2008, Thelma Metcalfs assigned patient care technician was Saenz. Several hours into her dialysis treatment, and approximately thirty minutes after Strange was found unresponsive, Metcalf was also found unresponsive. Metcalf was not breathing and had no pulse. Patient care technician C.S. testified that he and Saenz attempted to resuscitate Metcalf with CPR, but Saenz was not performing CPR correctly and S. had to take over. Contrary to S.’s testimony, Nurse D.S. testified that he performed CPR on Metcalf and that Saenz was not around during that time. Metcalf was transported to the hospital but efforts to revive her were unsuccessful. She died on April 1, 2008. Metcalfs chart indicated that Saenz had lowered her blood flow rate from 300 to 200. Patient care technician C.L. testified that lowering the blood flow rate would have been warranted because Metcalfs chart indicated that her blood pressure was approaching the maximum limit.
Metcalfs dialysis lines were preserved and sent to a FDA lab for analysis. A portion of Metcalfs dialysis line tested positive for bleach. A CDC toxicologist concluded that Metcalf died from injection of bleach into her dialysis line or port. Metcalfs blood was not tested for the 3-chlorotyrosine biomarker.
Garlin Kelley
On April 16, 2008, Garlin Kelley’s assigned patient care technician was S.D. Saenz was the nurse assigned to administer Kelley’s medication. Several hours into the dialysis treatment, D. heard the alarm on Kelley’s dialysis machine sound and saw Saenz standing near the machine, preparing to turn off the alarm and reset the machine. D. noticed that Kelley appeared unresponsive, so she instructed Saenz not to reset the machine. D. witnessed an unusual clot in Kelley’s arterial dialysis line. D. performed CPR on Kelley and instructed Saenz to get help. Kelley was transported to the hospital and was resuscitated but never regained consciousness. He died on August 18, 2008.
Kelley’s dialysis lines were preserved and sent to a FDA lab for analysis. A portion of Kelley’s dialysis line tested positive for bleach. In addition, a syringe attached to the dialysis line tested positive for bleach. Kelley’s blood sample taken after the incident tested positive for 3-chlorotyrosine. A CDC toxicologist concluded that Kelley died from injection of bleach into his dialysis line or port.
Cora Bryant
On April 22, 2008, Cora Bryant was assigned to patient care technician M.M. Bryant experienced problems with her blood clotting during her treatment and her dialysis lines had to be replaced. While M. was taking her break, the alarm sounded on Bryant’s machine. C.L. was in the medicine room and saw Saenz attempting to reset the machine. L. testified that administering medication to the patient or the clotting of blood would often cause the machine to alarm. When the machine alarms, blood stops flowing to the patient. At the time of the alarm, Bryant was in stable condition and was watching TV. L. returned Bryant’s blood that was in the machine back to her body. Immediately, Bryant asked L. “What are you giving me?” Bryant then turned her head and went into a cardiac arrest. Bryant was transported to the hospital and later died on July 15, 2008.
Bryant’s dialysis fines were preserved and sent to a FDA lab for analysis. No bleach was detected on Bryant’s dialysis fines; however, Bryant’s blood sample taken after the incident tested positive for 3-chlorotyrosine. Additionally, Bryant’s blood sample showed an elevated level of LDH. A CDC toxicologist concluded that Bryant died from injection of bleach into her dialysis fine or port.
Opal Few
On April 26, 2008, Opal Few was assigned to patient care technician D.H. Less than thirty minutes into Few’s treatment and while H. was preparing the medications for Few and her other patients, she heard Few’s alarm sound and noticed that Few was unresponsive. Few was transported to the hospital. Efforts to revive her were unsuccessful and she died on April 26, 2008. H. did not recall seeing Saenz that day. However, Nurse S.S. testified that earlier in the day, she had instructed Saenz to administer Few’s medication. After Few’s incident, S. noticed that Few’s computer chart did not reflect that she had been given her medication. S. testified that she asked Saenz and Saenz responded that she had given Few her medication but that she didn’t chart it. S. instructed Saenz to record the medication on Few’s chart. Saenz then recorded administering Zemplar to Few at 9:05 A.M. Another patient’s chart indicated that at 9:00 A.M. Saenz was removing the patient’s dialysis lines, a procedure that takes more than five minutes.
Few’s dialysis lines were preserved and sent to a FDA lab for analysis. A portion of Few’s dialysis line tested positive for bleach. In addition, a syringe found in a sharps container, labeled as containing Zemplar and designated for Opal Few on 4/26/08, tested positive for bleach. Few’s blood was not tested for the 3-chlorotyrosine biomarker. A CDC toxicologist concluded that Few died from injection of bleach into her dialysis line or port.
C. April 2008 Non-Death Incidents
G.C.
On April 16, 2008, G.C. lost consciousness while undergoing dialysis treatment. She was chewing gum during her treatment. The two EMS technicians who transported her to the hospital testified that she had no gum in her airway; however, a record from the hospital indicated that C. may have had gum in her throat. C. was diagnosed with pneumonia at the hospital. C. recalled seeing Saenz during her treatment. C.’s husband testified that upon later seeing Saenz in the newspaper she said, “Man, I didn’t know she’d do that to me.” Prior to the incident, C. had heart problems. Following the incident, C. developed problems with her memory and required the use of oxygen.
C.’s dialysis lines were preserved and sent to a FDA lab for analysis. Test results of the lines were inconclusive for the presence of bleach. C.’s blood tested positive for 3-chlorotyrosine. Additionally, C.’s blood sample showed an elevated level of LDH. A CDC toxicologist concluded that C. was injured from injection of bleach into her dialysis line or port.
M.B.
On April 23, 2008, M.B. was assigned to patient care technician T.G. Saenz was charted as administering medication to B.. During B.’s session, she had an event where her blood pressure dropped, requiring her to be transported to the hospital. B. woke up three and a half days later with no memory of April 23, 2008.
B.’s dialysis lines were preserved and sent to a FDA lab for analysis. A portion of B.’s dialysis line tested positive for bleach. A syringe labeled as containing Zemplar and designated for M.B. on 4/23/08 tested positive for bleach. B.’s blood tested positive for 3-chlorotyrosine. Additionally, B.’s blood sample showed an elevated level of LDH. A CDC toxicologist concluded that B. was injured from injection of bleach into her dialysis line or port.
D.O.
On April 26, 2008, D.O. was assigned to patient care technician W.G. Saenz was charted as administering medication to O. early in her session. Several hours later, near the end of her treatment session, O. experienced a strange taste in her mouth and asked Saenz, “What did you give me?” Nurse S.S. recalled seeing Saenz administering something with a syringe and then disposing of the syringe in the sharps container, although S. was not sure when during the session she witnessed this. O. experienced a drop in blood pressure, chest pain, trouble breathing, and felt as if her bones were being crushed. She became nauseated, started vomiting, and her access site would not stop bleeding. She was transported to the hospital where she was treated for several days. O. had experienced a similar incident in January 2008 that required hospital treatment.
O.’s dialysis lines were not preserved for testing. O.’s blood tested positive for 3-chlorotyrosine. Additionally, O.’s blood sample showed an elevated level of LDH. A CDC toxicologist concluded that O. was injured from injection of bleach into her dialysis line or port.
M.R.
On April 28, 2013, M.R. was assigned to patient care technician A.R. Several hours into her session, R. took a break. R. testified that either patient care technician T.G. or Saenz was responsible for monitoring her patients during her break. G. testified that she monitored R.’s patients while R. took a break and that she never saw Saenz. When R. returned, R.’s blood pressure had dropped and she reported that she did not feel well, was uncomfortable, and experienced pain in her ribs. R. became nauseated, weak, and had difficulty speaking. R.’s illness was charted as lasting six minutes. R. did not require treatment at the hospital. R. had recently been involved in a car accident which caused discomfort in her ribs. H. and H. testified that they witnessed Saenz inject bleach into R.’s dialysis line.
R.’s dialysis lines were preserved and sent to a FDA lab for analysis. A portion of R.’s dialysis line tested positive for bleach. R.’s blood tested positive for 3-chlorotyrosine. Additionally, R.’s blood sample showed an elevated level of LDH and potassium. A CDC toxicologist concluded that R. was injured from injection of bleach into her dialysis line or port.
C.R.
On April 28, 2013, C.R. was assigned to patient care technician T.G. During her session, R. began flopping in her chair, felt hot, and was given oxygen and saline. G. testified that she may have taken a break, but also testified that she never saw Saenz that morning. Patient J.G. testified that he watched R. throughout her session and never saw Saenz approach R.’s machine. R. did not require hospital treatment. R. did not submit to a blood test and her dialysis lines were not preserved. H. testified that she witnessed Saenz inject bleach into R.’s dialysis line.
JURY Charge Error
In two points of error Saenz claims the jury charge erroneously failed to require unanimous agreement about which individuals Saenz allegedly killed, and about whether the patients were killed in a single criminal transaction or as part of the same scheme or course of conduct. The Court’s charge on capital murder (Count VI) stated in pertinent part as follows:
[I]f you find from the evidence beyond a reasonable doubt that on or about the 26th day of April, 2008, in Angelina County, Texas, the Defendant, Kimberly Saenz, did intentionally or knowingly cause the death of more than one of the following persons: Clara Strange, Thelma Metcalf, Garita Kelley, Cora Bryant, or Opal Few during the same criminal transactions or during different criminal transactions, but the murders were committed pursuant to the same scheme or course of conduct, by introducing sodium hypochlorite, commonly known as bleach, or other chlorinating agent into the body’s bloodstream, then you will find the Defendant guilty of the offense of capital murder as charged in the Indictment.
During closing argument, the State commented: “The State has the burden of proof to prove that the Defendant caused the death of at least two of the five 'victims. You don’t have to agree as to which two.”
Saenz argues that the jury was not told that it must unanimously agree who, or how many people, she allegedly killed, or whether this crime occurred as part of a single transaction or as part of the same scheme or course of conduct. Citing the unanimous verdict requirements of the Texas Constitution and the Code of Criminal Procedure, Saenz contends the jury must unanimously agree on the identity of the victim alleged to have been murdered and the number of additional murders committed as the circumstance aggravating the murder to capital murder. The State responds that a court may instruct a jury in the disjunctive on alternative theories of the same offense without offending the right to a unanimous verdict. The State further argues that the requirement that the jury unanimously agree on the identity of the victim applies only when there is a single victim, unlike capital murder under Section 19.03(a)(7) which is “a single penal offense that has many legal theories for proving the same crime, including proof that there was more than one victim and more than one way to group those deaths (same criminal transaction or scheme or course of conduct.)”
A. Standard of Review
“Our first duty in analyzing a jury-charge issue is to decide whether error exists.” Ngo v. State, 175 S.W.3d 738, 743 (Tex.Crim.App.2005). “Then, if we find error, we analyze that error for harm.” Id. “Both Article V, Section 13 of the Texas Constitution and Article 36.29(a) of the Texas Code of Criminal Procedure require unanimous jury verdicts in all felony cases.” Leza v. State, 351 S.W.3d 344, 356 (Tex.Crim.App.2011). “To discern what a jury must be unanimous about, appellate courts examine the statute defining the offense to determine whether the Legislature ‘creat[ed] multiple, separate offenses, or a single offense’ with different methods or means of commission.” Pizzo v. State, 235 S.W.3d 711, 714 (Tex.Crim.App.2007) (quoting Jefferson v. State, 189 S.W.3d 305, 311 (Tex.Crim.App.2006)). Jury unanimity is required on the “essential elements of the offense,” but is generally not required on “alternate modes or means of commission.” Id.
B. Unanimity on Same Criminal Transaction or Common Scheme
A person commits capital murder if: (1) the person commits murder as defined under Section 19.02(b)(1); and (2) the person commits one of the nine aggravating circumstances listed in Sections 19.03(a)(1) through 19.03(a)(9). Tex. Penal Code Ann. § 19.03(a) (West 2013). In the instant case, Saenz was charged with the aggravating circumstance contained in Section 19.03(a)(7), which requires the person to have murdered more than one person:
(A) during the same criminal transaction; or
(B) during different criminal transactions but the murders are committed pursuant to the same scheme or course of conduct.
Id. at § 19.03(a)(7).
Each of the nine aggravating circumstances listed in Section 19.03(a) are “alternate theories” of committing the same capital murder offense. Kitchens v. State, 823 S.W.2d 256, 258 (Tex.Crim.App.1991). Thus, when a single capital murder offense is alleged, the jury may be charged disjunctively and is not required to unanimously agree.about which aggravating circumstance applies. Id. This is true regardless of whether the aggravating circumstances are found in the same or different Section 19.03(a) subsections. Gamboa v. State, 296 S.W.3d 574, 584 (Tex.Crim.App.2009). Further, the jury is not required to unanimously agree on the aggravating circumstance even when the conduct constituting the aggravating circumstance involves different victims. Davis v. State, 313 S.W.3d 317, 341-42 (Tex.Crim.App.2010) (holding jury verdict unanimous where jury was charged with alternative aggravating circumstance of burglary involving two different victims); Cabrialez v. State, No. 13-04-163-CR, 2006 WL 146098, *2-3 (Tex.App.-Corpus Christi Jan. 19, 2006, no pet.) (mem. op., not designated for publication) (holding jury verdict unanimous where jury was charged with alternate aggravating circumstance of robbery or burglary against any one of five named victims).
Saenz contends that subsections (A) and (B) of Section 19.03(a)(7) of the Texas Penal Code constitute separate offenses and thus “a unanimous verdict is impossible if [some] jurors believed that Ms. Saenz murdered multiple people in one criminal transaction [while] other jurors believed she did so as part of the same scheme or course of conduct.” To illustrate her point, Saenz includes the following example:
For example, if Ms. Saenz allegedly killed Clara Strange and Thelma Metcalf in one criminal transaction on the same day, that is one capital murder offense. If she allegedly killed Garlin Kelley and Cora Bryant on different days, but pursuant to the same course of conduct, that is another capital offense. If she allegedly killed all five patients, pursuant to the same course of conduct, that is another capital offense. To ensure unanimity, the trial court should have instructed the jury that its verdict must be unanimous as to each specific offense.
We disagree. Just as each of the nine aggravating circumstances listed in Section 19.03(a) are alternative theories of the same capital murder offense, subsections (A) and (B) of Section 19.03(a)(7) also are alternate theories of the same capital murder offense. Alternative theories can exist involving any of the aggravating circumstances found in Section 19.03(a), which necessarily includes subsections (A) and (B) of Section 19.03(a)(7). Indeed, in Gamboa, one of the aggravating circumstances was an additional murder under Section 19.03(a)(7) while the other aggravating circumstance was a robbery under Section 19.03(a)(2). 296 S.W.3d at 582. Accordingly, the jury was not required to unanimously agree on the alternate theories of capital murder as alleged under subsections (A) and (B) of Section 19.03(a)(7).
C. Victim Identity Unanimity
It is established Texas law that when the charged offense is murder, the jury must unanimously agree about who was murdered because each murder victim is considered a separate offense. See Johnson v. State, 364 S.W.3d 292, 295-96 (Tex.Crim.App.2012); Hisey v. State, 129 S.W.3d 649, 652 (Tex.App.-Houston [1st Dist.] 2004, pet. dism’d). However, it is not established whether the jury is required to unanimously agree on exactly who was murdered if the charged offense is capital murder with multiple murders serving as the aggravating circumstance. That question is squarely presented in this case.
1. Unanimity on Predicate Murder Victim
Saenz argues that the jury must unanimously agree on the identity of the predicate victim who was murdered and the number of additional victims who were murdered as the aggravating circumstance. This argument finds some support in the law.
In Graham v. State, 19 S.W.3d 851, 852 (Tex.Crim.App.2000), the jury was charged with finding that Graham committed capital murder by: (1) the murder of Hurtado and Giraldo in the same criminal transaction; (2) the murder of Hurtado while in the course of robbing him; and (3) the murder of Garcia-Castro while in the course of robbing him. For purposes of severance under Texas Penal Code Section 3.04(a), Graham argued that the jury was charged with two distinct capital murder offenses based on the identity of the victim who was murdered, i.e., (1) the murder of Hurtado with the alternative aggravating circumstances being the murder of Giraldo or the robbery of Hurtado; and (2) the murder of Garcia-Castro with the aggravating circumstance being the robbery of Garcia-Castro. Id. The State argued the charge alleged different theories for committing one offense of capital murder. Id. The Court of Criminal Appeals held that the charge alleged two capital murder offenses because “two of the three paragraphs allege different murders as the basis for the capital charge.” Id. at 853 (emphasis in original). The court explained that the murder of Hurtado and the murder of Garcia-Castro were “two distinct capital offenses” because there were “multiple murders rather than multiple theories.” Id. at 854. Accordingly, Graham suggests that each murder victim constitutes a separate offense of capital murder, which would require the jury to unanimously agree on the identity of the predicate murder victim.
2. Unanimity on Murder of More than One Person
In its more recent decision in Saenz v. State, 166 S.W.3d 270 (Tex.Crim.App.2005), however, the Court of Criminal Appeals suggests that a jury is permitted to return a general verdict of capital murder without specifying which victims were murdered. In Saenz, John Saenz was indicted with three counts of capital murder. 166 S.W.3d at 271. In the indictment, Count I alleged the murder of T. aggravated by the murders of Bravo and Cain in the same criminal transaction. See Saenz v. State, 131 S.W.3d 43, 49 (Tex.App.-San Antonio 2003), aff'd, 166 S.W.3d 270 (Tex.Crim.App.2005). Count II alleged the murder of Bravo aggravated by the murders of T. and Cain. See id. Count III alleged the murder of Cain aggravated by the murders of T. and Bravo. See id. Saenz was found guilty as to each count and sentenced to three concurrent life sentences. See id. at 45. Saenz then appealed this conviction to this court.
Because Section 19.03(a)(7) necessarily requires the murder of more than one person, this court distinguished it from “assault-type offenses that require only one victim.” Id. at 52. We held that “the allowable unit of prosecution for section 19.03(a)(7)(A) is more than one victim.” Id. We explained that, “[i]f the allowable unit of prosecution is more than one victim, Saenz necessarily committed only one capital murder. All three counts contain the same victims, the same allowable unit of prosecution. All three counts, therefore, constitute only one offense of capital murder. Because the indictment states only one allowable unit of prosecution, Saenz can be convicted of only one offense.” Id. at 52-53.
The Court of Criminal Appeals affirmed our decision in Saenz. In construing the statute, the court distinguished 19.03(a)(7) from the other aggravating circumstances that only require one victim, concluding “the statute reflects that the killing of at least two persons allows the State to charge a single count of capital mur-der_” 166 S.W.3d at 273. The court then looked at the legislative history of Section 19.03(a)(7) and observed that the drafters of the bill were not seeking a way to obtain multiple death penalties against mass murderers, but rather were making it possible to execute mass murderers. Id. The court concluded that “the most reasonable interpretation of the statute and its legislative intent is that, under the circumstances presented here, the statute allows only a single capital murder conviction. Accordingly, we hold that the Double Jeopardy Clause of the Fifth Amendment was violated when the State charged appellant with three separate counts of capital murder under Section 19.03(a)(7)(A) because the charges rely on the same three murders for each charge.” Id. at 274.
3. Analysis
The Court of Criminal Appeals has held that the unit of prosecution for capital murder under Section 19.03(a)(7) is the murder of “at least two persons.” Saenz, 166 S.W.3d at 273. In extending the Saenz holding to both 19.03(a)(7) subsections, the Court of Criminal Appeals recently re-affirmed that “the allowable unit of prosecution for this statute is not each individual, but the killing of more than one individual.” Ex Parte Milner, 394 S.W.3d 502, 508 (Tex.Crim.App.2013). Although Saenz determined the unit of prosecution in the Double Jeopardy context, the Court of Criminal Appeals has described its Double Jeopardy and jury unanimity jurisprudence as “closely intertwined strands” that “address the same basic question” of whether “different legal theories of criminal liability comprise different offenses” or whether “they comprise alternate methods of committing the same offense.” Huffman v. State, 267 S.W.3d 902, 905 (Tex.Crim.App.2008); see Villanueva v. State, 227 S.W.3d 744, 747 (Tex.Crim.App.2007) (doubting that the Legislature would intend for the court to construe an offense in one way for double jeopardy purposes but in another way for jury unanimity purposes).
A jury “must unanimously agree about the occurrence of a single criminal offense, but they need not be unanimous about the specific manner and means of how that offense was committed.” Young v. State, 341 S.W.3d 417, 422 (Tex.Crim.App.2011). The “manner and means” of committing a criminal offense refers to the actus reus of the crime. Sanchez v. State, 376 S.W.3d 767, 773 (Tex.Crim.App.2012). Thus, when several different acts constitute the manner and means of committing a single criminal offense as opposed to the commission of several criminal offenses, the jury need only unanimously agree that the single offense was committed. Jefferson, 189 S.W.3d at 311; Cosio v. State, 353 S.W.3d 766, 772 (Tex.Crim.App.2011); Pizzo, 235 S.W.3d at 715. The Court of Criminal Appeals has defined the single offense under Section 19.03(a)(7) as the murder of more than one person. Saenz, 166 S.W.3d at 273; Ex Parte Milner, 394 S.W.3d at 508. Therefore, when a jury unanimously agrees that a defendant murdered more than one person, it unanimously agrees that the defendant committed a single offense of capital murder under Section 19.03(a)(7).
Although Graham held that each predicate murder victim constituted a separate offense of capital murder, the Saenz court distinguished that holding as applying only to the Section 19.03(a) subsections that involve only one victim, unlike Section 19.03(a)(7) which necessarily involves more than one victim. Saenz, 166 S.W.3d at 273. Indeed, the requirement that the jury must unanimously agree on the identity of the predicate murder victim of a capital murder offense is derived from the concept that each predicate murder victim constitutes a separate offense. See Young, 341 S.W.3d at 423-24. It follows that where each predicate murder victim does not constitute a separate offense, the jury need not unanimously agree on that victim’s identity.
The Dallas Court of Appeals applied Saenz to a jury unanimity issue in Anderson v. State, No. 05-06-00233-CR, 2007 WL 2004896, at *1-2 (Tex.App.-Dallas Jul. 12, 2007, pet. ref'd) (mem. op., not designated for publication). Anderson’s jury was charged disjunctively on four different theories of capital murder: (1) murder of Brown aggravated by murders of Hernandez or Pena; (2) murders of Hernandez and Pena; (3) conspiracy to commit robbery during which Hernandez and Pena were murdered; or (4) conspiracy to commit felony drug possession during which Hernandez and Pena were murdered. The court concluded that all four paragraphs described “different methods of committing the single offense of capital murder.” Id. at *2. Although some jurors could have concluded that Brown was murdered and some jurors could have concluded that Brown was not murdered, the court held the jury was only required to unanimously agree that Anderson committed the single offense of capital murder. Id.
Therefore, based on the Texas Court of Criminal Appeals’ holding in Saenz, we conclude that the jury charge in the instant case afforded Saenz her right to a unanimous jury verdict as the jury unanimously agreed that she committed a single offense of capital murder under Section 19.03(a)(7).
Legal Sufficiency of the Evidence
In points of error three and four, Saenz contends the evidence is legally insufficient to support the capital murder conviction or the convictions of aggravated assault. The State responds that the combined direct and circumstantial evidence was sufficient for a rational juror to find guilt beyond a reasonable doubt.
A. Standard of Review
“In determining whether the evidence is legally sufficient to support a conviction, a reviewing court must consider all of the evidence in the light most favorable to the verdict and determine whether, based on that evidence and reasonable inferences therefrom, a rational fact finder could have found the essential elements of the crime beyond a reasonable doubt.” Gear v. State, 340 S.W.3d 743, 746 (Tex.Crim.App.2011) (citing Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). “[Wjhen viewing the evidence in the light most favorable to the verdict, ‘the reviewing court is required to defer to the jury’s credibility and weight determinations because the jury is the sole judge of the witnesses’ credibility and the weight to be given their testimony.’ ” Winfrey v. State, 393 S.W.3d 763, 768 (Tex.Crim.App.2013) (quoting Brooks v. State, 323 S.W.3d 893, 899 (Tex.Crim.App.2010)). “Circumstantial evidence is as probative as direct evidence in establishing guilt, and circumstantial evidence alone can be sufficient to establish guilt.” Id. at 771 (citing Hooper v. State, 214 S.W.3d 9, 13 (Tex.Crim.App.2007)).
This court considers “all evidence in the record of the trial, whether it was admissible or inadmissible.” Id. at 767 (quoting Dewberry v. State, 4 S.W.3d 735, 740 (Tex.Crim.App.1999)). “[I]t 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 of all the incriminating circumstances.” Johnson v. State, 871 S.W.2d 183, 186 (Tex.Crim.App.1993). We measure sufficiency of the evidence by “the elements of the offense as defined by the hypothetically correct jury charge for the case.” Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App.1997).
B. Discussion
As to Clara Strange, Thelma Metcalf, Garlin Kelley, Opal Few, and Cora Bryant, the State had the burden of proving beyond a reasonable doubt that (1) Saenz (2) intentionally or knowingly (3) caused the death (4) of more than one person (5) by injecting bleach into their bloodstreams (6) either during the same criminal transaction or during different criminal transactions, but the murders were committed pursuant to the same scheme or course of conduct. Tex. Penal Code Ann. § 19.03(a)(7) (West 2013). As to M.B., D.O., G.C., M.R., and C.R., the State had the burden of proving beyond a reasonable doubt that (1) Saenz (2) intentionally, knowingly, or recklessly (3) exhibited a deadly weapon during the commission of an assault (4) by injecting bleach into their bloodstreams. Tex. Penal Code Ann. § 22.02(a) (West 2011).
1. Evidence of Bleach Injection
Saenz argues that the evidence is insufficient to show that each patient was injured by an injection of bleach. Rather, Saenz contends the injuries could have been caused by the “myriad of chronic and severe illnesses complicated by dialysis treatment.” Moreover, Saenz argues that none of the patients exhibited the “known indicators of bleach poisoning.” The State’s evidence of injury by bleach injection falls into three categories: (1) eyewitness testimony that Saenz injected bleach into R. and R.; (2) the presence of bleach in the dialysis lines and in syringes; and (3) the presence of the 3-ehlo-rotyrosine biomarker in all of the patients whose blood was tested shortly after their respective incidents.
a. Evidence of Bleach in Dialysis Lines
Saenz argues that presence of bleach in the dialysis lines is insufficient because there is no evidence of bleach at the point where the lines enter the patient’s body, and bleach was detected in the blood path on the dialysis lines of only Opal Few. Further, Saenz contends there was uncontroverted testimony establishing that the dialysis machine would have had to be turned off and the blood not flowing when the detected bleach was introduced into the line. Thus, Saenz argues that a positive result is either the result of contamination during the transporting of the dialysis lines to the lab or bleach being introduced after the machine was turned off following a treatment session. The State responds that the positive test results of bleach and chlorate on “numerous items” is consistent with a bleach exposure.
The dialysis lines were analyzed by an FDA laboratory. David Jackson, an FDA forensic chemist, testified that either bleach or chlorate was detected in the lines of R., Few, Strange, Metcalf, and Kelley. Jackson testified that in his opinion, the use of saline to push the blood through the dialysis lines would account for the negative bleach or chlorate readings in other parts of the dialysis lines. Defense expert Dr. Jonathan Neidigh, a university chemist, opined that he would expect to see evidence of bleach in other places of the dialysis lines downstream of the injection point if the bleach had been injected while the blood was moving. Although Saenz points to the testimony of Nurse C.L. as evidence that the dialysis machine would have had to be turned off at the point of a bleach injection, the record does not conclusively establish that fact. At the time of L.’s testimony on the subject, it appears she was using a demonstrative and was pointing at various parts of the dialysis machine to explain her testimony. Therefore, the jury was in a better position to understand L.’s testimony in its entirety.
Ultimately, it is within the jury’s province to evaluate the weight and credibility of the evidence. A rational juror could have found that Jackson’s testimony was more credible than that of Neidigh or L.. Additionally, the FDA analysis found bleach on the inside of Kelley and Few’s syringes dated for the day of their incident. Kelley’s syringe was attached to his dialysis line. Bleach was also detected on the inside of other syringes found inside of the sharps containers. The jury heard testimony that there was no reason for bleach to be either inside the patient syringes or on the inside of the dialysis lines. A CDC expert, Dr. Michael Schwartz, reviewed the FDA test results and concluded that the patients were injected with bleach. H. and H. testified that they witnessed Saenz injecting bleach. Given the totality of the evidence, a rational juror could have concluded that bleach was injected into the dialysis lines.
b. 3-chlorotyrosine Evidence
Saenz also challenges the sufficiency of the 3-chlorotyrosine evidence that was used to establish the presence of bleach in the blood samples of several patients. In collaboration with the CDC and the local health department, Dr. Mark Sochaski conducted a blind study of 54 blood samples from dialysis clinic patients. Some of the samples were taken from complainants after they had experienced adverse incidents during dialysis treatment in April 2008. Other samples were control samples taken from patients, at either the dialysis clinic or a neighboring dialysis clinic, who had not experienced an adverse incident. The study was “blind” in that only the local health department and not Dr. Sochaski knew the patients’ identities. Dr. Sochaski detected no levels of the biomarker 3-chlorotyrosine in the control patients’ samples; however, he detected high levels in the blood samples taken from Garlin Kelley, Cora Bryant, M.B., D.O., G.C., and M.R. Blood samples were not available for Clara Strange, Thelma Metcalf, Opal Few, and C.R. 3-chlorotyrosine is naturally produced by the body and has been found in low levels in patients of dialysis, patients fighting an infection, or those who have recently had a heart attack. The presence of 3-chlorotyrosine can also indicate the blood’s exposure to chlorine from outside of the body. Because the levels of 3-chlorotyrosine in the complainants were much higher than any levels recorded as a result of being naturally produced by the body, Dr. Sochaski concluded that the complainants had been externally exposed to a chlorinating compound.
Saenz argues that the presence of 3-chlorotyrosine is not sufficient evidence that bleach was injected into the patients because (1) the original Sochaski study supporting the test results was conducted by exposing rats to chlorine gas and is inapplicable to humans, and (2) the presence of 3-chlorotyrosine is not solely indicative of bleach poisoning because the human body naturally produces 3-chlorotyrosine in certain situations.
A reviewing court must distinguish between claims of improperly admitted evidence and claims of insufficient evidence. Moff v. State, 131 S.W.3d 485, 490 (Tex.Crim.App.2004). When reviewing for legal sufficiency of the evidence, we must consider all evidence before the jury at trial, whether it was properly or improperly admitted. Id. Although Saenz challenges the admissibility of the 3-chlorotyrosine evidence in points of error sixteen through twenty-one, we review that evidence in a sufficiency challenge as if it were properly admitted.
Saenz argues that the presence of 3-chlorotyrosine is not sufficient evidence of bleach exposure because 3-chlorotyrosine is naturally produced in the human body. Saenz points to evidence that “levels are higher in patients on dialysis, patients with cardiac disease or following heart attacks, and in patients fighting an infection.” Saenz argues that these are equally plausible explanations for the 3-chlorotyrosine levels, pointing to Kelley who had E.coli pneumonia and Hepatitis C at the time of his incident and also to Bryant who suffered from myocardial fibrosis and cirrhosis of the liver. However, Dr. Schwartz, a medical officer with the CDC, testified that injection of bleach caused the 3-chlorotyrosine levels in the complainants. Dr. Schwartz explained that the 3-chlorotyrosine levels in the complainants were 300 to 400 times greater than what would be expected from the levels that would be naturally produced by a person undergoing dialysis. Likewise, Dr. Schwartz explained that the 3-chlorotyrosine levels in the complainants were 20 to 70 times higher than what would be expected from the levels naturally produced by a patient who had experienced a heart attack. In addition, Dr. Schwartz testified that consistent with an external exposure to bleach, the levels of 3-chlorotyrosine in the complainants steadily declined over the seventy-two hours following their admission to the hospital, with the highest levels measured close to the time of the patient’s incident at the clinic. Dr. Schwartz explained that if the presence of 3-chlorotyrosine were caused by an inflammation of the body as a result of some sort of infection, he would expect to see steady levels of 3-chlorotyrosine, not the steadily declining levels shown in the complainants. Likewise, Dr. Schwartz also would have expected to see steady 3-chlorotyrosine levels after a heart attack because the heart muscle dies and slowly seeps damaged cells.
Dr. Schwartz also explained that he tested the blood of a “control patient,” O.T., who was not suspected to have been injected by bleach. T. and Cora Bryant both had their dialysis treatment at the dialysis clinic on April 22, 2008 and were seated one chair apart. Bryant’s treatment ended in her cardiac arrest that sent her to the hospital. T. had an uneventful dialysis treatment. On April 24, 2008, T. had to visit the hospital due to an infection. The blood samples taken on that day from T. were negative for 3-chlorotyrosine. The blood sample for Bryant taken the day of her incident was positive for 3-chlorotyrosine. Dr. Schwartz concluded that each of the complainants was injured by the injection of sodium hypochlorite or bleach into their dialysis line.
Saenz further contends the jury discredited the 3-chlorotyrosine evidence when it acquitted Saenz as to G.C. because C.’s results showed one of the highest levels of 3-chlorotyrosine. Saenz contends it is irrational that the jury would convict as to Cora Bryant but acquit as to C. when both patients’ blood samples were positive for 3-chlorotyrosine but both had dialysis lines that did not test positive for bleach. The State responds that the jury did not discredit the 3-chlo-rotyrine evidence when it acquitted Saenz as to C.’s injuries. Rather, the jury could have rationally concluded that C. was injected with bleach, but that her injuries were caused by her choking on a piece of chewing gum.
The jury heard conflicting evidence regarding whether C.’s injuries were caused by choking on gum. C. testified that she would chew gum during her dialysis treatment. The two EMS technicians who transported C. to the hospital on April 16, 2008 testified that she was not breathing when they arrived at the dialysis clinic. One EMS technician testified that he attempted to place a tube in C.’s throat which required a visual inspection of the throat. He did not recall seeing any gum in C.’s throat and stated that he would have documented such an observation. He testified that he was ultimately unable to insert the tube because of C.’s clenched teeth. He had used a suction device to clear C.’s throat of any secretions and did not see any gum. The second EMS technician corroborated this account. However, hospital records included the notation “EMS found chewing gum in airway as per RN was in PEA.” Neither EMS technician could explain this notation. Defense expert Dr. Michael Germain opined that C. suffered a respiratory arrest related to an obstructed airway due to chewing gum. Defense expert Dr. Amy Gruszecki opined that C.’s injury resulted from a combination of choking on gum and pneumonia.
Although it is possible that the jury may have given weight to the gum choking theory, other evidentiary differences existed between C. and Bryant. For example, several eyewitnesses provided a vivid account of Bryant’s cardiac arrest, which resulted immediately after the nurse returned her blood. The details of C.’s event, however, were provided at trial by C. herself, who appeared to be plagued by memory problems. C. described her incident as merely losing consciousness. C. was also diagnosed with pneumonia at the time of her incident. The fact that the jury chose to acquit Saenz as to C. does not necessarily mean that it discredited the 3-chlorotyrosine evidence, the other factual differences could have caused the jury to reach its different findings.
c. Other Evidence of Bleach Injection
Saenz argues that none of the victims evidenced known symptoms of bleach poisoning. The jury heard evidence that injecting bleach into the bloodstream could cause a cardiac arrest and trouble breathing. Symptoms can also include falling blood pressure, rapid heartbeat, or the complete cessation of blood pressure or heartbeat. Defense expert Dr. Gruszecki opined that the injection of bleach into the blood stream would cause burning, swelling, and redness. However, Dr. Gruszecki conceded during cross-examination that her opinion was based more on what one would practically expect from a bleach exposure based on the hazardous material guidelines for bleach. While there was no evidence of burning, swelling, or redness, each patient exhibited evidence of a bleach exposure consistent with a cardiac arrest or difficulty breathing. The exception would be in the cases of C. and R., and the jury acquitted as to those patients.
Saenz also argues that none of the alleged victims’ blood samples showed signs of hemolysis. Hemolysis is the breakdown of red blood cells which would result when the blood is exposed to bleach. During hemolysis, the red blood cells will burst, creating elevated levels of potassium and the LDH enzyme. Potassium levels, however, are lowered by the introduction of epinephrine. While normal potassium levels were found in Metcalf, Kelley, Few, Bryant, B., and C., each of these patients received epinephrine during their emergency. R. was the only patient with an elevated potassium level and R. did not receive epinephrine. Dr. Schwartz analyzed the LDH levels of Bryant, O., C., B., and R., who were the patients who survived long enough at the hospital to give a viable blood sample. Dr. Schwartz compared the patients’ LDH levels after the event with the levels indicated in routine blood tests before the event and concluded that the source of the elevated LDH levels was acute hemolysis. A rational juror could have concluded that the complainants evidenced symptoms consistent with a bleach injection.
Lastly, Saenz argues that with the exception of Kelley and Bryant, each of the patient deaths was certified by the medical examiner as being caused by natural causes. Saenz argues that the death certificates for Kelley and Bryant were delayed and that the medical examiner certified their causes of death as exposure to bleach only after he relied on Dr. Sochaski’s study. The defense expert forensic pathologist, Dr. Gruszecki, testified that in her opinion each of the patients died as a result of natural causes related to their pre-existing medical conditions. However, the jury heard considerable evidence from which it could conclude the deaths were caused by bleach injection. In addition to Dr. Schwartz’s testimony, the jury heard from Dr. Imran Nazeer that in his twelve years as a nephrologist, only two patients had died while undergoing dialysis treatment. Dr. Nazeer also testified regarding a recent study finding that the chance of having a cardiac arrest during dialysis treatment was “very rare” — a 0.007% chance. The jury could have also considered that with the exception of Kelley and Bryant, who lingered for several months after their incident, the other deaths were certified before the police had fully completed their investigation and before Dr. Soehaski had completed his study of the dialysis clinic patients. Lastly, the jury could have rationally given more weight to the medical examiner who actually examined the patients, rather than the defense expert who had not examined them, but relied upon a review of their medical history.
£ Evidence Connecting Saenz
Saenz contends there is no evidence that she injected bleach into anyone and challenges the eyewitness testimony of H. and H.. Saenz suggests this eyewitness testimony is unreliable because both H. and H. were elderly, suffered from poor eyesight, and provided different stories. Specifically, she argues that while both testified that Saenz drew up bleach with a syringe and injected the bleach into R.’s line, neither was explicit that it was same syringe. Saenz contends that even if H. and H. witnessed her extracting bleach into a syringe, doing so was a common practice at the clinic for the purposes of preparing the bleach cleaning solution. Moreover, Saenz argues that the jury disregarded the testimony of H. and H. when it acquitted her as to R.’s aggravated assault.
The State responds that the cumulative force of the direct and circumstantial evidence establishes that Saenz injected bleach into the patients. The State claims that once the jury concluded that Saenz injected bleach into R., the jury could rationally infer that she was responsible for the other injuries caused by a bleach injection. Moreover, the State points to evidence showing that Saenz was working at the facility on each day when the incidents occurred. The State also points to “incriminating statements” made by Saenz.
a. Eyewitness Credibility
The jury heard live testimony from H. and two recorded depositions from H.. In 2008, H. was 55 years old and H. was 66 years old. During H.’s trial testimony in 2012, she was asked to look at a photograph exhibit and stated, “I’m not seeing very clearly. My sight has gotten worse,” and later explained “My sight in 2008 was by far better than it is today.” However, she was able discern the contents of the photograph shown to her at trial. H. later testified that she was blind in one eye. Although H. was not wearing glasses on the day in question, she testified that she required glasses only for reading.
In H.’s 2008 deposition, she stated that she had glaucoma. She had difficulty reading documents during the deposition and required use of her bi-focal glasses. She stated that she was not wearing her glasses during her dialysis treatment on April 28, 2008. However, she stated that she felt she could see better without her glasses. In her first deposition, H. stated that her diabetes medication made her nervous and affected her memory.
H. and H.’s versions of events differed in several respects. H. testified that she witnessed Saenz preparing the bleach solution and then injecting the bleach — first into R. and then into R. — with each patient receiving two injections. In contrast, H. testified that the bleach solution was already prepared and she saw Saenz make only one injection and only to R.’s line. Given the differences in the eye witnesses’ testimony, a rational juror could conclude that H. witnessed the entire episode, while H. witnessed only the last injection.
A.C., the regional manager with the dialysis clinic, testified that she spoke with H. and H. on April 28, 2008 shortly after they reported their observations regarding Saenz. She first spoke with H. and then separately spoke with H.. She said they gave consistent accounts describing Saenz placing a bleach container on the floor, drawing bleach, and injecting both R. and R.. However, C. testified that the main focus of both witness’s observations was on R.’s injection.
Although the eyewitness accounts of H. and H. differed slightly, a rational juror could have concluded that their versions of events were not irreconcilably conflicted. Both eyewitnesses were adamant about what they had seen and were considerably upset afterwards. Both eyewitnesses were seated in such a manner that they could have witnessed what they claimed to have seen. The jury saw live testimony of H. and two video depositions of H.. Ultimately, the jury determined the credibility of both witnesses.
Saenz argues that it was irrational for the jury to give weight to the eyewitness testimony because the jury disregarded the same eyewitness testimony when it acquitted Saenz as to R.’s aggravated assault. R.’s dialysis lines were not preserved and she never went to the hospital or provided a blood sample. R. was described as being sick, but she did not suffer a significant event consistent with the other patients. R.’s husband testified at trial that her condition improved when he came to take her home. Therefore, the jury could rationally have concluded that while the eyewitness testimony established a bleach injection, the evidence was insufficient to support an injury. Further, only H. witnessed an injection into R.’s line. This was contradicted by J.G.’s testimony that he watched R. during her session and never saw Saenz inject anything into her dialysis line. R.’s patient care technician, M.M., testified that she never saw Saenz that day. Thus, the jury could have rationally disregarded H.’s testimony without disregarding H.’s testimony that Saenz injected R..
b. Bleach Mixing Procedures
The jury heard conflicting testimony about the proper procedure for preparing the bleach solution. Two bleach solutions were to be prepared each morning before the first patient shift. The solutions were created by mixing bleach with water in a plastic “shoebox” container. The solution was used to wash the patient chair and equipment after each session and to clean up blood spills. The proper procedure required measuring the bleach for the solution in a medicine cup, or by using a pre-drawn line on the shoebox container. C.B., a former dialysis clinic employee, testified that although it was the clinic’s procedure to use a medicine cup to measure the bleach, it was a “fairly common practice” for nurses to draw up bleach with a syringe to mix the solution. However, B. agreed that it would be difficult to use a syringe to draw bleach from a bleach bottle and that if the bottle were less than full, the bleach would have to first be poured into a separate container. N.L., a former dialysis clinic employee, testified that he had witnessed dialysis clinic employees use a syringe to measure bleach for the daily bleach solution. However, B. and L.’s testimony was contradicted by numerous witnesses who testified that it was neither proper procedure nor a common practice to use a syringe to measure bleach and that the bleach solution should never be placed on the floor. Multiple witnesses confirmed that the facility had an adequate supply of medicine cups and no witness stated otherwise.
In her police interview, Saenz testified that on April 28, 2008, she used a syringe to extract bleach for the daily cleaning solution because the facility was out of medicine cups. She also stated that she was attempting to be precise by using a syringe instead of just pouring the bleach into the container. She stated that this was prompted by the monitors who were at the facility and the pressure the staff was feeling to follow correct procedures. However, several dialysis clinic employees testified that it would not be efficient to pour bleach into one container, draw it up with a syringe, express it into a second container, and then mix the bleach with water. Additionally, extracting bleach directly from the bleach bottle with the syringe would be practical only if the bottle was nearly full. During her grand jury testimony, Saenz stated that she poured the bleach into the bottle cap and then used the syringe to extract the bleach.
Saenz acknowledged the correct procedure for measuring bleach required using a medicine cup. Other than Saenz’s own statement, there was no evidence that the supply of measuring cups was depleted. Saenz stated that she used the syringe because she was concerned about being precise and following procedure due to the monitors who were present. However, if this were truly a concern, it would seem logical that Saenz would follow the actual procedure, rather than a procedure that may have been a common practice. Therefore, the jury could have rationally discredited Saenz’s explanation for using a syringe to prepare the bleach solution and considered her doing so as circumstantial evidence to support the eyewitness testimony.
c. Saenz’s Statements
Saenz gave a statement to police and also testified before the grand jury. The jury saw video recordings of both. The State contends that further circumstantial evidence supporting Saenz’s guilt is found in her statements. The State points to Saenz’s admission during her police statement that she had been taking medication for depression for six weeks. The State describes Saenz during the interview as “increasingly impaired, disjointed and irrational.” Lastly, the State points to the following statement by Saenz during her police interview: “I just have a habit of pushing the bleach ‘cause I just — I don’t know when it was last done, and I don’t want to kill my patients.”
During closing argument, the State suggested that Saenz’s statement regarding “pushing the bleach” was a reference to injecting bleach into the dialysis lines. However, when the statement is taken in the proper context it is clear that Saenz was discussing pushing the bleach button on the dialysis machine. This button initiated the machine’s self-cleaning process that utilized bleach. Saenz was stating that she was careful to initiate this process out of concern that contaminated water may have been the cause of the recent patient episodes. The jury watched the entire recording of the interview and was able to make this determination. Saenz does not make any other statements that would be considered incriminating, as the State contends. However, a rational juror could note that Saenz appeared nervous during the interview and that she, not the police interviewers, was the first to mention bleach as a potential cause of the patient injuries.
d. Internet Searches
The State introduced evidence showing that Saenz performed several internet searches on her computer related to bleach poisoning. The evidence showed that on April 2, 2008, the day after the first incident involving Strange and Metcalf, a search was performed on Yahoo for “bleach poisoning.” Searches were also performed during the first week of May 2008 for “bleach given during dialysis” and “can bleach be detected in dialysis lines.”
During her April 29, 2008 police interview, Saenz stated that she had been searching online to find an explanation for the patient injuries. Saenz did not testify and no other explanation was provided for the internet searches. A rational juror could have considered these searches as circumstantial evidence connecting Saenz to the bleach injections.
e. Other Evidence Connecting Saenz
Saenz challenges the sufficiency of other circumstantial evidence offered to establish her .guilt. Specifically, she claims the testimony that she reduced the blood flow rates for Strange and Metcalf was not probative because Saenz had a legitimate reason for doing so. Saenz contends the evidence of her improperly performing CPR on Metcalf was refuted by other testimony and even if true, Saenz could have been in shock as a result of Strange’s cardiac arrest moments earlier.
Saenz argues that witnesses saw Saenz approach Kelley’s machine only after the alarm sounded. Additionally, she argues that S.D. testified that only one syringe was attached to Kelley’s line and that it was a Heparin syringe that D. had placed there. A syringe on Kelley’s line later tested positive for bleach.
Saenz contends C.L. did not see Saenz inject Bryant’s dialysis lines and that Saenz approached Bryant only when her alarm sounded. Additionally, she argues that L. testified that the blood did not have time to run through the machine and into Bryant’s body because treatment was stopped when the alarm sounded. Saenz notes that no indication of bleach was found on Bryant’s dialysis lines.
Saenz argues the evidence was conflicting with regard to who provided medicine to Opal Few. S.S. testified that Saenz was instructed to do so and that Saenz later confirmed she had administered Zemplar to Few. S. testified that Saenz failed to chart the medication, but later updated Few’s chart to reflect that she had done so at 9:05 A.M. Few’s assigned nurse, D.H., testified that she was preparing Few’s medication at the time of her cardiac arrest. Further, Saenz argues she could not have been near Few at 9:05 A.M. because she was charted as performing a procedure on the other side of the clinic at 9:00 A.M. on another patient. Saenz notes that although Few’s syringe had been in a sharps container for at least five days, there was no blood or other biological matter on the syringe and that the syringe did not include Saenz’s initials.
C. Conclusion
“[I]t 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 of all the incriminating circumstances.” Johnson, 871 S.W.2d at 186. Circumstantial evidence alone can establish guilt. Hooper, 214 S.W.3d at 13. Ultimately, it was within the jury’s province to determine the weight and credibility of the evidence. Brooks, 323 S.W.3d at 899. The jury was presented with expert testimony and physical evidence supporting a conclusion that the victims were injected with bleach. If the jury believed the eyewitness testimony that Saenz injected bleach into either R. or R., the jury could have considered that as circumstantial evidence connecting Saenz to instances where patients were injured in a similar manner by bleach injection. Deferring to the jury’s determinations and viewing the evidence in the light most favorable to the verdict, we conclude that the evidence is legally sufficient to support each of Saenz’s convictions. Winfrey, 393 S.W.3d at 768.
Ineffective Assistance of Counsel
In points of error five through eleven, Saenz contends that her trial counsel rendered ineffective assistance of counsel. She bases her claim on the totality of the representation she received, and on trial counsel’s failure to: (1) object to an erroneous jury charge; (2) object to the State’s argument that unanimity was not required; (3) preserve the record to enable meaningful post-conviction review; (4) preserve the record by going off the record more than 130 times; (5) request a mistrial concerning a sleeping juror; and (6) impeach key State witnesses.
A. Standard of Review
To prevail on a claim of ineffective assistance of counsel, an appellant must prove two elements by a preponderance of the evidence: (1) deficient performance of trial counsel; and (2) harm resulting from that deficiency sufficient to undermine confidence in the outcome of the trial. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Ex parte LaHood, 401 S.W.3d 45, 49 (Tex.Crim.App.2013).
Deficient performance is that which “ ‘fell below an objective standard of reasonableness’ under prevailing professional norms and according to the necessity of the case.” Ex parte Moore, 395 S.W.3d 152, 157 (Tex.Crim.App.2013) (quoting Strickland, 466 U.S. at 687-88, 104 S.Ct. 2052). We begin with a presumption that counsel’s actions were reasonable and based on sound trial strategy. Id. To overcome this presumption, an appellant must establish ineffectiveness that is “firmly founded” and affirmatively demonstrated in the record. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex.Crim.App.2005) (quoting Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App.1999)). A direct appeal is generally an “inadequate vehicle for raising such a claim because the record is generally undeveloped.” Id. Trial counsel “should ordinarily be afforded an opportunity to explain his actions before being denounced as ineffective.” Id. (quoting Rylander v. State, 101 S.W.3d 107, 111 (Tex.Crim.App.2003)). Absent that opportunity, deficient performance should be found only if the trial counsel’s conduct was “so outrageous that no competent attorney would have engaged in it.” Menefield v. State, 363 S.W.3d 591, 593 (Tex.Crim.App.2012) (quoting Garcia v. State, 57 S.W.3d 436, 440 (Tex.Crim.App.2001)).
Deficient performance is prejudicial to an accused when there is a “reasonable probability that the outcome of the trial would have been different but for counsel’s deficiency.” LaHood, 401 S.W.3d at 50. “Reasonable probability” is “a probability sufficient to undermine confidence in the outcome” of the trial. Id. (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052).
B. Totality of Representation
Saenz argues that even if this court “disagrees that any individual deficiency meets the criteria for ineffectiveness, the errors taken as a whole absolutely denied ... her right to effective representation.” Saenz points to the fact that the same trial judge in her case previously determined her trial counsel to be ineffective in an unrelated case, although the Court of Criminal Appeals ultimately found no ineffective assistance in that case. See Ex Parte Flores, 387 S.W.3d 626, 636 (Tex.Crim.App.2012).
This court has held that reversible error can be shown when “trial counsel’s errors are so fundamental with such far-reaching implications that no one could excuse them as ‘trial strategy because no reasonable lawyer would do them.” Green v. State, 899 S.W.2d 245, 247-48 (Tex.App.-San Antonio 1995, no pet.). However, the same cannot be said of this case. After reviewing the record as a whole, we conclude that none of trial counsel’s conduct rises to the level of being “so outrageous that no competent attorney would have engaged in it.” Menefield, 363 S.W.3d at 593. Trial counsel mounted a rigorous defense that included a thorough examination of each State witness, as well as presentation of rebuttal witnesses for almost all of the State’s key witnesses. Trial counsel presented multiple viable defense theories. Further, trial counsel conducted multiple offers of proof to preserve excluded evidence. On the whole, the record does not establish that trial counsel rendered ineffective assistance.
C. Jury Unanimity
In points of error six and seven, Saenz alleges ineffective assistance of counsel related to the jury charge’s alleged failure to require unanimity. Because we have decided that there was no error in the jury charge, the claim of ineffective assistance on that ground also fails. Failure to object to a jury charge or comments related to the jury charge when there was. no error is not deficient performance. Luster v. State, 85 S.W.3d 865, 871 (Tex.App.-Eastland 2002, pet. ref'd) (trial counsel had no duty to object where there was no jury charge error); Vaughn v. State, 888 S.W.2d 62, 71 (Tex.App.-Houston [1st Dist.] 1994, pet. denied) (same).
D. Failure to Preserve Record
In points of error eight and nine, Saenz argues that her counsel rendered ineffective assistance when he failed to adequately preserve the record for meaningful post-conviction review. Specifically, she contends that trial counsel went off the record more than 130 times. She argues that trial counsel’s behavior fell below the professional norm as defined by the State Bar of Texas Guidelines for Capital and Non-Capital representation which imposes a duty on counsel to preserve the record for appellate review.
Citing to Ex parte Welbor, 785 S.W.2d 391, 393 (Tex.Crim.App.1990), Saenz argues there is no presumption of sound trial strategy when counsel has failed to conduct an adequate factual and legal investigation. Saenz argues that trial counsel’s failure to preserve the record is evidence that his legal investigation was inadequate because it shows that he did not understand Texas Rule of Appellate Procedure 33.1 and the Texas Rules of Evidence. She points to off-record exchanges that, based on their context, may relate to the following: (1) a discussion or possible ruling regarding possible Brady evidence; (2) a possible ruling regarding whether C.B. could testify about why she left the dialysis clinic; (3) the possible voir dire of expert witness Dr. Jonathan Neidigh; and (4) a possible ruling on evidence possibly connecting S.S. as an alternate perpetrator.
“Reviewing courts are obliged to defer to strategic and tactical decisions of trial counsel, so long as those decisions are informed by adequate investigation of the facts of the case and the governing law.” Frangios v. State, 392 S.W.3d 642, 653 (Tex.Crim.App.2013). However, we cannot determine that trial counsel was not adequately apprised of the governing law when there has been no evidentiary hearing to discern trial counsel’s strategic motivations. Hollis v. State, 219 S.W.3d 446, 462 (Tex.App.-Austin 2007, no pet.). Unlike the court in Ex Parte Welborn, in this case there is no evidentiary record to establish that trial counsel did not understand the governing law. “It is not sufficient that the appellant show, with the benefit of hindsight, that his counsel’s actions or omissions during trial were merely of questionable competence.” Mata v. State, 226 S.W.3d 425, 430 (Tex.Crim.App.2007). Thus, we cannot conclude that the mere existence of possible off-record exchanges “affirmatively demonstrates” that trial counsel misunderstood the procedure for preserving error, especially where the record is replete with other instances where trial counsel demonstrated a strong understanding of those procedures. Bone v. State, 77 S.W.3d 828, 885 (Tex.Crim.App.2002). To do so would require us to speculate regarding trial counsel’s motivations, which we cannot do. Lopez v. State, 343 S.W.3d 137, 142 (Tex.Crim.App.2011). Rather, we must strongly presume that trial counsel acted in accordance with a reasonably sound trial strategy. Id. at 143.
“[T]he presumption that trial counsel’s performance was reasonably based on sound trial strategy, coupled with the absence of any supporting evidence in the record of unreasonableness, compels a reviewing court to consider ways in which trial counsel’s actions were within in the bounds of professional norms.” Mata, 226 S.W.3d at 431. It is conceivable that trial counsel did not insist on a record of certain exchanges because the exchanges either were not substantive or did not include an objection or ruling from the trial court. Indeed, there are instances on the record where trial counsel approaches the bench to argue an evidentiary issue and insists on a record of the exchange. Therefore, Saenz has failed to rebut the presumption that her trial counsel’s performance was reasonably based on a sound trial strategy.
E. Sleeping Juror
Next, Saenz argues that her trial counsel rendered ineffective assistance when he failed to preserve error regarding a sleeping juror by failing to move for a mistrial or make a bystander bill. Outside of the presence of the jury, trial counsel stated to the trial court:
And I don’t know that we necessarily need to do it now, but I’m just bringing it to your attention. One of the jurors has been sleeping through part of the trial. I don’t know if you noticed it or not. It’s been brought to my attention, but I don’t know—
The judge responded that he saw audience members looking at the jury box but did not see anyone sleeping. Trial counsel named the juror, who had indicated earlier he would be working at his construction job in addition to serving on the jury.
When a juror has been observed sleeping during court proceedings “it is incumbent upon the objecting party to make a contemporaneous objection.” Thieleman v. State, 187 S.W.3d 455, 458 (Tex.Crim.App.2005). Error is preserved if the objecting party objects to the presence of the sleeping juror on the jury, moves for a mistrial, alleges juror misconduct in a motion for new trial, or files a bill of exception. Id. at 458 n. 3; Harleston v. State, No. 01-09-00481-CR, 2010 WL 2873590, at*2 (Tex.App.-Houston [1st Dist.] Jul. 22, 2010, pet. ref'd). “The trial court should consider whether ‘the sleeping juror missed large portions of the trial or [whether] the portions missed were particularly critical.’ ” Menard v. State, 193 S.W.3d 55, 60 (Tex.App.Houston [1st Dist.] 2006, pet ref'd) (quoting United States v. Freitag, 230 F.3d 1019, 1023 (7th Cir.2000)); Lopez v. State, No. 03-10-00654-CR, 2012 WL 104468, at *2 (Tex.App.-Austin Jan. 11, 2012, no pet.) (trial court did not abuse its discretion in denying mistrial where witnesses were not certain what evidence, if any, the juror missed).
Saenz has not established that trial counsel’s performance was deficient when he did not object to the presence of a sleeping juror. Because we presume that trial counsel was acting pursuant to a sound trial strategy, trial counsel may have decided not to pursue the objection after balancing the trial judge’s own observations against whatever source trial counsel had available to prove the juror was potentially sleeping. In addition, trial counsel could also have taken into consideration whether he could establish that the sleeping juror missed a significant portion of the testimony. Moreover, we cannot determine that the outcome of the trial would have been affected if the juror had been properly challenged. It would be within the trial court’s discretion whether to remove a juror after hearing relevant evidence of the conduct. There is no assurance in the record that the trial court would have sustained an objection given his observation that he did not see any juror sleeping.
F. Failure to Impeach Witnesses
In point of error eleven, Saenz contends her trial counsel rendered ineffective assistance when he failed to properly impeach State witnesses L.H., W.G., S.A., Dr. Imran Nazeer, and S.S. A trial counsel’s decision not to impeach can be considered sound trial strategy. See Davis v. State, 276 S.W.3d 491, 502 (Tex.App.-Waco 2008, pet. ref'd). With a silent record, the court must presume that trial counsel was acting pursuant to a sound trial strategy unless the “conduct was so outrageous that no competent attorney would have engaged in it.” Menefield, 363 S.W.3d at 593. After a full review of the record, we cannot conclude that the outcome of the trial was affected by trial counsel’s failure to impeach the listed witnesses nor can we discern outrageous conduct by trial counsel.
Witness S.S.
Points of error twelve through thirteen concern the testimony of a State witness, S.S. Saenz contends that she was denied her right to confrontation when: (1) she was denied meaningful cross-examination of S.; and (2) the trial court did not allow her to develop evidence of S. as an alternate perpetrator.
S.S. worked as a nurse at the dialysis clinic during the month of April 2008. According to trial counsel’s statements on the record and outside of the presence of the jury, S. had a romantic relationship with a married man and attempted to kill him with a knife. At some point thereafter, the man received a syringe in the mail with an anonymous note stating “Inject this. Bang, bang. They’re coming to test it.” It was never determined what substance was inside the syringe. The State objected to the evidence of these events on the grounds that it was irrelevant and prejudicial. The court sustained the objection. Trial counsel then conducted an offer of proof outside of the presence of the jury and examined S.. S. denied each of these allegations.
The crux of Saenz’s argument is that the trial court erred in not allowing her to develop evidence of S. as an alternate perpetrator. “Although a defendant obviously has a right to attempt to establish his innocence by showing that someone else committed the crime, he still must show that his proffered evidence regarding the alleged alternative perpetrator is sufficient, on its own or in combination with other evidence in the record, to show a nexus between the crime charged and the alleged ‘alternative perpetrator’.” Wiley v. State, 74 S.W.3d 399, 406 (Tex.Crim.App.2002). Such evidence is subject to Rule 403 balancing. Id. at 408. “It is not sufficient for a defendant merely to offer up unsupported speculation that another person may have done the crime. Such speculative blaming intensifies the grave risk of jury confusion, and it invites the jury to render its findings based on emotion or prejudice.” Id. at 407 (quoting United States v. McVeigh, 153 F.3d 1166, 1191 (10th Cir.1998)).
Saenz failed to offer any evidence to support the alleged incident involving S. and the syringe. S. denied each allegation on the record and the exhibits offered by Saenz during the offer of proof are not probative. Even assuming Saenz could have established the alleged incident during a cross-examination of S. in front of the jury, Saenz offers no nexus between the crime of injecting patients with bleach and the alleged act of mailing a threatening note with a syringe containing an unknown substance to an individual completely unrelated to the case at bar. Moreover, the introduction of such highly speculative evidence is not admissible under Rule 403 because it would present a great threat of confusion of the issues, requiring the State to disprove that S. was the perpetrator. See id.
Evidence Concerning the Dialysis Clinic
In points of error fourteen and fifteen, Saenz argues that (1) the trial court reversibly erred in finding her crucial defensive evidence irrelevant; and (2) she was denied due process when she was prevented from presenting a complete defense. Saenz argues that she was unable to present evidence to prove that the dialysis clinic was engaged in a “cover-up.” Specifically, she challenges the trial court’s exclusion of: (1) TDHHS records wherein the dialysis clinic was cited; (2) testimony from cleaning employees concerning an unusually large amount of document shredding; and (3) testimony regarding unsanitary conditions at the dialysis clinic. Additionally, Saenz argues that the trial court erred in excluding any evidence that was “negative” to the dialysis clinic such as incidents involving other patients who had become sick at the clinic. Inasmuch as the trial court’s ruling was based on Rule 404(b), Saenz contends that the rule was inapplicable because the dialysis clinic is a corporation and not a person.
The State responds that Saenz failed to properly preserve error by not objecting to much of the challenged evidence. Alternatively, the State urges that the evidence is not relevant and thus inadmissible.
A. Standard of Review
We review a trial court’s decision to exclude evidence under the Texas Rules of Evidence for an abuse of discretion. Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App.1990). A trial court abuses its discretion if its decision falls outside the zone of reasonable disagreement. Green v. State, 934 S.W.2d 92, 101-02 (Tex.Crim.App.1996).
B. TDHHS Report
Saenz challenges the trial court’s ruling excluding a 2008 TDHHS report wherein the dialysis clinic was cited for a number of problems. The trial court granted a motion in limine to exclude the report until a foundation for relevance was established. The court explained that the report was not relevant to the extent that it established the dialysis clinic had done “bad things” to patients who were not complainants. At several times during the trial, the trial court explained that the foundation for the report would not be established until some other evidence was introduced to link the adverse occurrences in the report to the complainants. Ultimately, the TDHHS report was offered as an exhibit during an offer of proof. For purposes of review, we will assume that trial counsel preserved error as to the TDHHS report.
Trial counsel indicated that the report showed the dialysis clinic was not reporting its adverse occurrences 68% of the time. An adverse occurrence is when a patient suffers some illness or incident during dialysis treatment. On appeal, Saenz argues this evidence went to the heart of her theory that the dialysis clinic was engaged in a “cover-up.” The fact that the dialysis clinic was not meeting its regulatory obligations does not necessarily mean that the clinic was purposely concealing information from the State or that it was engaged in a cover-up related to Saenz’s case. Without further evidence to support such a cover-up, the trial court did not abuse its discretion when it excluded the report.
C. Document Shredding
Saenz argues that the alleged cover-up was further established by the testimony of two cleaning contractors who testified that following the April 2008 incidents, the clinic was disposing of an unusual amount of shredded paper. The State objected that the evidence was not probative and alternatively, that it was more prejudicial than probative. The trial court excluded the evidence unless the cover-up was further established. Trial counsel then introduced the testimony through an offer of proof. Again, Saenz has failed to demonstrate how the alleged document shredding was relevant to her case. It was not established that any of the documents were related to Saenz’s case or the incidents involved. The trial court did not abuse its discretion in excluding the testimony regarding document shredding.
D. Unsanitary Conditions
The trial court also excluded testimony from a cleaning contractor who testified that she had observed unsanitary conditions at the dialysis clinic. The trial court excluded the evidence until “there’s a showing that would link cleanliness to adverse reactions in the patients.” Trial counsel offered the testimony through an offer of proof. It is not clear how the existence of any unsanitary conditions at the facility would tend to prove that the dialysis clinic was engaged in a cover-up. As it was not alleged that the complainants’ injuries were caused by the unsanitary conditions, Saenz has failed to established the relevance of this evidence. Accordingly, the trial court did not abuse its discretion in excluding it.
E.Rule iOi(b)
Lastly, Saenz argues that the trial court erred when it excluded evidence casting the dialysis clinic in a negative light because Rule 404(b) is inapplicable to corporations. Specifically, Saenz points to the testimony of dialysis clinic administrator S.L. Before L. answered a question regarding “problems” the clinic was experiencing, trial counsel ask to approach the bench. The bench conference was conducted outside of the presence of the jury. The State never objected on the record. It appears that trial counsel was complying with the motion in limine by approaching the bench before asking the question. As trial counsel did not object on the record, Saenz claims he failed to preserve error on this issue. However, the ruling by the trial court was based on relevance. Although the State’s argument analogized the situation to its inability to introduce bad acts concerning the defendant, the trial court explained that trial counsel had failed to establish a foundation for relevance. Therefore, it is not necessary to address the issue of whether Rule 404(b) applies to corporations.
Expert Testimony
Saenz contends the trial court failed in its gatekeeping function and committed harmful error by admitting evidence that affected her rights to a fair trial. Specifically, Saenz argues that: (1) the trial court erred by not conducting a hearing to determine the admissibility of Dr. Sochaski’s testimony when she requested a hearing; (2) Dr. Sochaski was not qualified to testify that the 3-chlorotyrosine detected in the complainants’ blood came from a bleach injection because the theory underlying his opinion was unreliable; and (8) Dr. Sochaski’s testimony and report were prejudicial and unhelpful, confusing, and misleading to the jury.
The State responds that Saenz waived her right to a gatekeeping hearing when she agreed to have the court make the determination based on the experts’ affidavits. The State also argues that a gatekeeping hearing actually was conducted because the trial court heard arguments from counsel on February 21, 2012 and considered the affidavits. Alternatively, the State argues that the trial court properly admitted Sochaski’s testimony and report.
The party offering expert testimony under Texas Rule of Evidence 702 must prove by “clear and convincing evidence that it is sufficiently reliable and that it is relevant in the sense that it will help the jury reach an accurate result.” Blasdell v. State, 384 S.W.3d 824, 829 (Tex.Crim.App.2012). Thus, the proponent must prove (1) the witness qualifies as an expert by reason of his knowledge, skill, experience, training, or education; (2) the testimony is based on a reliable scientific foundation; and (3) it is relevant to the issues in the case. Tillman v. State, 354 S.W.3d 425, 435 (Tex.Crim.App.2011); Davis v. State, 329 S.W.3d 798, 813 (Tex.Crim.App.2010). We review the trial court’s determination of reliability and relevance for an abuse of discretion and will not reverse if it is “within the zone of reasonable disagreement.” Tillman, 354 S.W.3d at 435.
A. Gatekeeping Hearing
On February 21, 2012, the trial court held a pre-trial hearing on Saenz’s Motion to Exclude Lay Testimony and Expert Testimony. During that hearing, trial counsel stated “Now, we’re asking the Court, based on Daubert and Kelly, to exclude [Sochaski’s] findings based on the science.” For the next thirty minutes, both sides made arguments related to the reliability of Dr. Sochaski’s study. The trial court indicated that it wanted to rule on the motion based on the expert affidavits to avoid the need for a live hearing during the trial. On the record, both of Saenz’s attorneys indicated their agreement to this approach. Again on February 28, 2012, both sides argued the reliability of the Sochaski study for over thirty minutes. Again, the trial court indicated its intent to rule on the motion after considering the affidavits of Dr. Sochaski and Dr. Schwartz. On the first day of trial, March 5, 2012, the trial court denied Saenz’s motion to exclude Dr. Sochaski’s testimony after considering “the oral arguments of counsel, the written pleadings, and the affidavits.”
Before scientific evidence may be admitted, “the trial court must conduct a hearing outside the presence of the jury” to determine whether the proponent has established its reliability. Jackson v. State, 17 S.W.3d 664, 670 (Tex.Crim.App.2000). We review a trial court’s decision “whether, when, and how” to hold a gatekeeping hearing for abuse of discretion. Piro v. Sarofim, 80 S.W.3d 717, 720 (Tex.App.-Houston [1st Dist.] 2002, no pet.). Thus, a trial court is afforded flexibility to determine whether and in what manner it will conduct a gatekeeping hearing. DeLarue v. State, 102 S.W.3d 388, 398 (Tex.App.-Houston [14th Dist.] 2003, pet. ref'd) (citing Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 594, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993)). There is no requirement that the court conduct a live evidentiary hearing. It may be proper for a court to make a determination considering live testimony or written materials such as depositions, affidavits, or publications. Piro, 80 S.W.3d at 720 (citing Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152-53, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999)); Bonner v. State, No. 10-09-00120-CR, 2010 WL 3503858, at *17 (Tex.App.-Waco Sept. 8, 2010, pet. ref'd) (mem. op., not designated for publication). Here, the trial court exercised its discretion to determine the reliability of the Sochaski evidence by a combination of pre-trial hearings and affidavits from the experts. At one point, the trial court indicated that it preferred this approach so that it could review the scientific evidence in a more contemplative manner. The trial court also expressed a desire to promote efficient use of jury’s time at trial. As there is no requirement that the trial court’s gatekeeping determination involve live testimony from the expert, the trial court did not abuse its discretion by conducting the gatekeeping hearing in this manner.
B. Reliability
Saenz argues that Dr. Soehaski’s testimony is unreliable because Dr. Sochaski relied, in part, on a study involving rats and mice which Saenz asserts (1) has not been shown to be applicable to humans, and (2) used a methodology that could not be used in testing on human subjects.
The study on which Saenz focuses was conducted by Dr. Sochaski in conjunction with a scientist from the Environmental Protection Agency. One purpose of the study was to examine human exposure to chlorine gas for homeland security and workplace safety reasons. Dr. Sochaski exposed rats and mice to chlorine gas. The animals were then sacrificed and their nasal tissue analyzed. A gas chromatography mass spectrometer was used to determine the concentration of 3-chlorotyrosine in the samples. The study concluded that as the dose amount of chlorine increased in the rats, their 3-chlorotyrosine levels increased. At trial, several experts likened this to the relationship between alcohol consumed and one’s blood alcohol content. After completing the study, Dr. Sochaski wrote a “methods development” article regarding the use of 3-chlorotyrosine as a biomarker to indicate chlorine exposure, and the article was peer reviewed and published in the Journal of Analytical Toxicology.
In its response, the State focuses on waiver and offers no substantive counterargument on the reliability issue.
1. Reliability Factors
We review the trial court’s determination of reliability for an abuse of discretion. Tillman, 354 S.W.3d at 435. In order for scientific evidence to be reliable, “(a) the underlying scientific theory must be valid; (b) the technique applying the theory must be valid; and (c) the technique must have been properly applied on the occasion in question.” Vela v. State, 209 S.W.3d 128, 133 (Tex.Crim.App.2006) (quoting Kelly v. State, 824 S.W.2d 568, 573 (Tex.Crim.App.1992)). The following list of non-exhaustive factors could affect a trial judge’s determination of reliability:
(1) the extent to which the underlying scientific theory and technique are accepted as valid by the relevant scientific community, if such a community can be ascertained; (2) the qualifications of the experts testifying; (3) the existence of literature supporting or rejecting the underlying scientific theory and technique; (4) the potential rate of error of the technique; (5) the availability of other experts to test and evaluate the technique; (6) the clarity with which the underlying scientific theory and technique can be explained to the court; and (7) the experience and skill of the person(s) who applied the technique on the occasion in question.
Kelly, 824 S.W.2d at 573.
As previously noted, Saenz’s principal contention regarding the reliability of Dr. Sochaski’s testimony concerns the inapplicability of the methodology used in the rat study to humans.
a. Underlying Scientific Theory
The science itself is not in dispute. Chlorine is a naturally occurring element that exists in a gaseous form. Sodium hypochlorite is the scientific name for bleach. Sodium hypochlorite is chemically composed of sodium, oxygen, and chlorine. When the human body is exposed to either chlorine or sodium hypochlorite, both chlorine and sodium hypochlorite will turn into hypochlorous acid in the body. Hypochlorous acid can also be produced by the body “endogenously” or naturally in certain situations. For instance, when the body has an infection such as a bacterial infection, the white blood cells will attack the bacteria and secrete hypochlorous acid in order to kill the infection. Hypochlorous acid also is produced during a heart attack. Regardless of the source of the hypochlorous acid, it is immediately absorbed by the body and quickly reacts to form additional compounds. One of the more stable compounds that the body will produce is 3-chlorotyrosine.
Although Saenz chooses to focus on Dr. Sochaski’s rat study, Dr. Sochaski also has demonstrated the reliability of the 3-chlorotyrosine biomarker in humans. In conjunction with the CDC’s investigation into the deaths at the dialysis clinic, Dr. Sochaski was sent a total of 54 blood samples in May and June of 2008. The samples were identified only by a number and Dr. Sochaski had no way of knowing the source of each sample. According to testimony from Dr. Schwartz, the blood samples consisted of samples from dialysis clinic patients, patients from a dialysis clinic in a neighboring county, and patients from the hospital. Dr. Sochaski used the same methodology he had developed in the earlier rat study to test the blood samples (this testing is referred to as the CDC study). None of the control samples showed any level of 3-chlorotyrosine. The complainants’ blood samples, however, showed relatively high levels of 3-chlorotyrosine. Both Dr. Sochaski and another expert, Dr. Schwartz, testified that the levels of 3-chlorotyrosine shown in the complainants’ samples were higher than any levels they had ever seen in reported literature, with one exception: the Mocatta study. In the Mocatta study, the researcher purposely mixed equal volumes of bleach and human blood plasma together in vitro for thirty minutes. The highest level in that study was 0.08%.
In addition to the rat study and the CDC study, the fact that 3-chlorotyrosine levels increase as the amount of hydrochlorous acid increases is not a novel idea. Defense expert Dr. Jonathan Neidigh testified as follows regarding the relationship between 3-chlorotyrosine and chlorine exposure.
COUNSEL: So you said there are — you said that chlorine can cause 3-chlorotyrosine?
NEIDIGH: That’s correct.
COUNSEL: Can it cause — can it cause 3 — chlorotyrosine at low levels?
NEIDIGH: Well, the level of 3-chlorotyrosine is a function, a factor of the amount of chlorinating agent. It’s a dose response kind of thing in chemical terms. So if I have a small amount of chlorine, I get a small amount of chlorotyrosine.
COUNSEL: Okay. Can bleach cause 3-chlorotyrosine?
NEIDIGH: Yes.
Dr. Neidigh testified that there had been about “a dozen” studies concerning 3-chlorotyrosine since the 1990s. Although many of these studies involved measuring 3-chlorotyrosine as a result of endogenously produced hydrochlorous acid, it was established at trial that the same hydrochlorous acid is produced, whether it be endogenously or from an external exposure to chlorine. Additionally, the Mocatta in vitro study observed high levels of 3-chlorotyrosine. Likewise, Dr. Schwartz stated in his affidavit that “[t]he formation of 3-chlorotyrosine from hypochlorous acid is well recognized by multiple experts.” At trial, Dr. Schwartz testified that Dr. Sochaski’s study was applicable to humans because 3-chlorotyrosine would be produced regardless of whether the hypochlorous acid was produced endogenously or as a result of an external exposure.
Thus, the underlying scientific theory that increases in bleach exposure result in increased levels of 3-chlorotyrosine was not established exclusively by Dr. Sochaski’s rat study. Rather, that study reinforced existing common scientific knowledge that exposure to chlorine results in increased levels of 3-chlorotyrosine. Accordingly, the trial court did not abuse its discretion in determining that the underlying scientific theory was valid.
b. Validity of Technique Applying the Underlying Theory
Dr. Sochaski testified that his methodology utilized a gas chromatography mass spectrometer (GCMS) to analyze a given tissue for 3-chlorotyrosine. Dr. Sochaski explained that he used the GCMS to break down proteins in the tissue and separate out the 3-chlorotyrosine so that it could be measured on a molecular level that was common to all organisms. In his affidavit, Dr. Sochaski stated that “[t]he method of isotope dilution with [GCMS] is one of the most accurate methods currently available for the quantitative analysis of chemicals, including chlorotyrosine, in biological tissues such as plasma.” Dr. Neidigh testified that use of the GCMS was the proper instrument to analyze for levels of 3-chlorotyrosine. Dr. Schwartz also accepted this technique as proper. Accordingly, the trial court did not abuse its discretion in determining that the technique used to apply the theory was valid and was properly applied. See Jones v. State, 716 S.W.2d 142, 148-49 (Tex.App.-Austin 1986, pet. ref'd) (GCMS used to extrapolate rat tissue study to human tissue tests where nurse was accused of injecting patient).
c. Acceptance by the Relevant Scientific Community
Saenz contends that Dr. Sochaski’s rat study is not peer accepted, and she purportedly cites to a report by Dr. Melinda Schaeffer, a State witness who never offered testimony, in which Dr. Sochaski’s study is described as a “novel” test that is not specific for bleach exposure. Saenz’s citation to Dr. Schaeffer’s report, however, is a citation to her trial counsel’s unsworn pretrial motion to exclude Dr. Sochaski’s expert testimony. Attached as an exhibit to this motion is a one page PowerPoint slide titled “Limitations” which includes a bullet point with the following text, “Novel test [;] — Not specific for bleach exposure [;] — Chlorotyrosine endogenously produced.” This single bullet on a PowerPoint slide is open for interpretation and hardly supports the contention that Dr. Schaeffer disagrees with Dr. Sochaski’s methodology. Moreover, Dr. Schaeffer’s epidemiological report includes the results of the CDC study.
In addition, Dr. Sochaski’s study involving the rats was peer-reviewed and published. Dr. Schwartz testified that he accepted Dr. Sochaski’s methodology as applied to humans. Dr. Schwartz also cited the CDC study in his conclusion that the complainants were injured by a bleach injection. Although two defense experts testified that they would not accept Dr. Sochaski’s methodology as applied to humans, the requirement is not one of unanimous acceptance. Accordingly, the trial court did not abuse its discretion in finding that Dr. Sochaski’s study was accepted in the relevant scientific community, especially given the uncontroverted acceptance of the underlying scientific theory.
d. Testability and Rate of Error
Saenz argues that because Dr. Sochaski’s study cannot be ethically tested on live human subjects, it is not testable and any rate of error cannot be established. Saenz points to a conflict between Dr. Sochaski’s February 2008 article and his statements at trial. In his February 2008 article, Dr. Sochaski stated:
The method presented in this paper is only applicable to the use of determining exposure levels in laboratory animals, as the collection of samples for assessing human exposure using the current technique would be too invasive. Additional investigations need to be conducted on making this method less invasive and more “user friendly” for diagnostic purposes ... Although the method presented in this manuscript is not likely to be used as a diagnostic for human chlorine gas exposures, it does represent a good starting point for future method development and has value for applications in research of chlorine absorption in various regions of their respiratory tract,
(emphasis added).
However, in his affidavit and at trial, Dr. Sochaski stated that his methodology was just as applicable to human blood plasma as it was to rat nasal tissue. Dr. Sochaski explained that the test is only concerned with the amino acid modification of tyrosine to 3-chlorotyrosine and that all organisms have tyrosine, whether they be a human, a whale, a rat, or a tobacco leaf. Moreover, the Mocatta study also demonstrates the applicability of the theory to humans.
e. Other Kelly Factors
The clarity with which the underlying scientific theory and technique can be explained to the court weighs in favor of reliability. Dr. Sochaski testified there was a four-step process in which the GCMS is used to measure 3-chlorotyrosine concentration. He likened this concentration to a BAC’s measure of alcohol consumed. He explained that the test is equally applicable to each organism because all organisms possess tyrosine. Finally, other literature exists which links hydrochlorous acid to 3-chlorotyrosine.
2. Conclusion
Applying the Kelly factors to Dr. Sochaski’s testimony, we hold that the trial court did not abuse its discretion in admitting the testimony because the trial court could have concluded from the evidence presented that: (1) the underlying scientific theory is valid and can be clearly explained; (2) the use of-a GCMS to apply the theory to humans is valid and similar to a BAC measurement of alcohol consumed; (3) the theory is accepted by the relevant scientific community; (4) the theory has been applied in testing on human blood plasma; and (5) literature exists which supports the underlying scientific theory.
C. Qualification
Saenz argues that Dr. Sochaski was not qualified because (1) he had no experience testing 3-chlorotyrosine or any other chlorine compound on humans; and (2) his expertise was inapplicable because he was not a medical doctor.
“If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, [then] a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.” Tex.R. Evid. 702. As the Court of Criminal Appeals has explained:
Qualification is a two-step inquiry. A witness must first have a sufficient background in a particular field, and a trial judge must then determine whether that background goes to the matter on which the witness is to give an opinion. The proponent must establish that the expert has knowledge, skill, experience, training, or education regarding the specific issue before the court that would qualify the expert to give an opinion on that particular subject. The focus is on the fit between the subject matter at issue and the expert’s familiarity with it. Because the spectrum of education, skill, and training is so wide, a trial court has great discretion in determining whether a witness possesses appropriate qualifications as an expert on a specific topic in a particular case.
Davis, 329 S.W.3d at 813 (citations omitted) (citing Vela v. State, 209 S.W.3d 128, 131-36 (Tex.Crim.App.2006)).
Dr. Sochaski is a research investigator and manager of analytical chemistry services at the Hamner Institutes for Health Science, a non-profit organization that focuses on drug and chemical safety for humans. Dr. Sochaski has a Master’s degree in environmental chemistry and a Ph.D. in bio-analytical chemistry from the University of South Carolina. Dr. Sochaski testified that he studied analytical methods, development, and sample analysis — “a pretty broad range of different research topics.” He is a member of the American Chemical Society, the Society of Toxicology, and the American Society of Mass Spectometry. Dr. Sochaski’s opinion related to the 3-chlorotyrosine levels he recorded while conducting the CDC study. While there had been other studies involving 3-chlorotyrosine, Dr. Sochaski’s rat study was the only study to measure 3-chlorotyrosine levels after exposing a live subject to a chlorinating compound. Accordingly, Dr. Sochaski had a sufficient background in the field of bio-analytical chemistry, and that background was sufficiently relevant to the subject of his opinion — levels of 3-chlorotyrosine.
However, Dr. Sochaski also testified that the 3-chlorotyrosine levels detected in the complainants’ blood samples were not endogenously produced, but rather the result of an “external exposure” to a chlorinating compound, although he did not specify that the compound was sodium hypochlorite. Saenz argues that Dr. Sochaski was not qualified to give this opinion because he is not a medical doctor. Saenz points to a purported communication between Dr. Sochaski and the Lufkin Police Department in which Dr. Sochaski stated that the 3-chlorotyrosine levels were the result of an exposure to some form of chlorinating compound, but then seemed to contradict that statement by stating that, because he was not a medical doctor, he could not rule out a “massive infection” as a possible source. At trial, he also testified that the elevated 3-chlorotyrosine levels were caused by an external exposure to a chlorinating compound and were not endogenously produced. However, at trial, he did not base his opinion on ruling out the existence of a massive infection, but on the fact that he had never seen levels as high in any published literature.
We find no abuse of discretion even if we assume that Dr. Sochaski was not qualified to determine that the source of the 3-chlorotyrosine levels in the complainants was from an external exposure to chlorine. We recognize that because he is not a medical doctor, Dr. Sochaski had no way of ruling out an infection as an endogenous source. Nonetheless, any error from Dr. Sochaski’s unqualified opinion was rendered harmless by Dr. Schwartz’s expert testimony. An error related to the improper admission of expert testimony is a non-constitutional error. Coble v. State, 330 S.W.3d 253, 280 (Tex.Crim.App.2010). A non-constitutional error is not reversible if it does not affect the substantial rights of the defendant. Tex.R.App. PROC. 44.2(b). “A substantial right is affected when the error had a substantial and injurious effect or influence in determining the jury’s verdict.” Coble, 330 S.W.3d at 280. In conducting this harm analysis, we consider “everything in the record” including other testimony and evidence before the jury and “the character of the alleged error and how it might be considered in connection with other evidence in the case.” Morales v. State, 32 S.W.3d 862, 867 (Tex.Crim.App.2000); accord Davison v. State, 405 S.W.3d 682, 688 (Tex.Crim.App.2013). Thus, “[a] criminal conviction should not be overturned for non-constitutional error if the appellate court, after examining the record as whole, has fair assurance that the error did not influence the jury, or had but a slight effect.” Johnson v. State, 967 S.W.2d 410, 417 (Tex.Crim.App.1998).
Dr. Schwartz, a licensed medical doctor and toxicologist whose qualifications are not in dispute, testified that the 3-chlorotyrosine levels found in the complainants were not produced endogenously, but as a result of an external exposure to a chlorinating compound, specifically sodium hypochlorite. Dr. Schwartz’s conclusion was based upon the 3-chlorotyrosine levels recorded in Dr. Sochaski’s CDC study, but it was not based on Dr. Sochaski’s opinion, at trial or otherwise, regarding the source of the 3-chlorotyrosine. Dr. Schwartz’s opinion was reached after he reviewed the medical histories of the complainants. He testified that the 3-chlorotyrosine levels observed in the CDC study were not consistent with an infection because the levels gradually degraded over time, unlike what would be expected in the event of an infection. Dr. Schwartz also based his conclusion on the control patient, O.T., who had an infection and showed no levels of 3-chlorotyrosine. Additionally, Dr. Schwartz relied on peer-reviewed studies to rule out other endogenous sources of the 3-chlorotyrosine such as that arising from a heart attack or routine dialysis treatment. Thus, even assuming Dr. Sochaski was not qualified to rule out an endogenous source for the complainants’ 3-chlorotyrosine levels, Dr. Schwartz was so qualified and he did rule out an endogenous source. Therefore, any error related to Dr. Sochaski’s opinion was harmless as it did not have a substantial and injurious effect or influence on the jury’s verdict.
Conclusion
The court’s charge to the jury properly submitted the capital murder charge and the jury’s verdict on that charge is supported by legally sufficient evidence. There is no showing of ineffective assistance of trial counsel. Finally, the trial court’s evidentiary rulings were proper. The judgment of the trial court is affirmed.
The 3-chlorotyrosine biomarker can be evidence of chlorine exposure. Saenz challenges the reliability of this scientific evidence in points of error sixteen through twenty-one.
Lactate dehydrogenase (LDH) is an enzyme produced during blood hemolysis. Hemolysis occurs when bleach contacts blood.
We note that, in Paredes v. Thaler, 617 F.3d 315 (5th Cir.2010), the Fifth Circuit refused to apply Saenz to a jury unanimity issue. In that case, the court reviewed a denial of writ of habeas corpus for a defendant who was convicted for the capital murder of the same three individuals giving rise to the John Saenz case. The jury was instructed that it could convict Paredes of capital murder if it found that (1) he killed T. and either Bravo or Cain; or (2) he killed Bravo and either T. or Cain; or (3) he killed Cain and either T. or Bravo. The Fifth Circuit observed that it did not have "a definitive construction of section 19.03(a)(7)(A) from the Texas Court of Criminal Appeals as to whether it is proper in a jury charge to permit the crime of multiple murder to be established by alternate means of varying combinations of more than one murder.” Paredes, 617 F.3d at 320-22.
The presence of chlorate is an indicator of bleach.
Dr. Schwartz referenced the Himmelfarb study, which tested patients shortly after they had completed dreir dialysis treatment. Himmelfarb observed 3-chlorotyrosine levels ranging from 0.00047% to 0.006%.
Dr. Schwartz referenced the Mocatta study, which tested heart attack patients shortly after they were admitted to the hospital. The average 3-chlorotyrosine level was 0.0019%. During her study, Mocatta also injected hydrochlorous acid into a container of blood plasma and the resulting 3-chlorotyrosine level was 0.08%, which according to Dr. Schwartz was similar to the levels found in the complainants.
Bryant and C.’s blood lines still contained blood at the time Jackson tested them. Thus, the test results were "inconclusive" because the test depended on a color change that was not possible with the red color of blood. Defense expert Dr. Jonathan Neidigh testified that the "inconclusive” results should be "negative.”
The patients’ pre-event and post-event levels were as follows, respectively: Bryant 199, 360; O. 213, 781; C. 219, }2150; B. 169, 1372; R. 166, 1201.
Texas Rule of Evidence 404(b) provides in pertinent part, "Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith.”
Dr. Schwartz testified that this level was close to the average level of the complainants observed in blood samples taken on or close to their event. Their levels were as follows: Kelley, 0.044%; O., 0.14%; Bryant, 0.071%; B., 0.019%; C., 0.131%.
We reject the State’s claim that Saenz waived her right to challenge Dr. Sochaski's testimony and report because Saenz did not object when Dr. Sochaski was called to testify. Saenz properly preserved error by filing a motion to exclude the expert evidence and objecting during two pre-trial proceedings. See Gender v. State, 115 S.W.3d 11, 13 (Tex.Crim.App.2003).
Kimberly SAENZ, Appellant v. The STATE of Texas
PD-0253-14
Court of Criminal Appeals of Texas.
Delivered December 10, 2014
Rehearing Denied January 28, 2015.
Robert A. Morrow, The Woodlands, for Appellant.
Carey Jensen, Assistant District Attorney, Wichita Falls, Lisa C. McMinn, State’s Attorney, Austin, for State.
[OPINION BY Womack, J., type=majority]
Womack, J.,
delivered the opinion of the Court,
in which Keller, P.J., and Price, Johnson, Hervey, Cochran, and Alcala, JJ., joined.
We granted review to consider whether a jury charge on capital murder under Penal Code Section 19.03(a)(7) must require the jurors to agree as to the identities and the number of the victims. We shall reverse the judgment of the .court below and remand the case to the Court of Appeals.
The appellant was indicted for five counts of aggravated assault and one count of capital murder. The first five counts of the indictment alleged aggravated assaults of five patients of a dialysis clinic who suffered adverse episodes but did not die. The sixth count charged her with capital murder by murdering more than one person during the same criminal transaction or during different criminal transactions but pursuant to the same scheme or course of conduct. The jury acquitted the appellant on two of the aggravated assault charges. It found her guilty of three aggravated assaults and of capital murder. The Court of Appeals affirmed the trial court’s judgment.
The appellant was charged with capital murder under Penal Code Section 19.03(a)(7), which reads:
A person commits an offense if the person commits murder as defined under Section 19.02(b)(1) and ... the person murders more than one person:
(A) during the same criminal transaction; or
(B) during different criminal transactions but the murders are committed pursuant to the same scheme or course of conduct.
The capital-murder language of the jury charge instructed jurors to determine if the appellant “did intentionally or knowingly cause the death of more than one of the following persons: Clara Strange, Thelma Metcalf, Garlin Kelley, Cora Bryant, or Opal Few during the same criminal transactions or during different criminal transactions, but the murders were committed pursuant to the same scheme or course of conduct, by introducing sodium hypochlorite, commonly known as bleach, or other chlorinating agent into the body’s bloodstream.”
During closing arguments, the State told the jury, “The State has the burden of proof to prove that the Defendant caused the death of at least two of the five victims.
You don’t have to agree as to which two.”
The appellant argued for the first time on appeal that the language in the jury-charge and the State’s closing argument allowed the jury to convict her of capital murder without agreeing on which two or more of the five named individuals were murdered by the appellant, violating the requirement that jury verdicts be unanimous.
Unanimity in Capital Murder
Texas law requires a unanimous jury verdict in all criminal cases. More specifically, “the jury must be unanimous in finding every constituent element of the charged offense in all criminal cases.”
The capital-murder statute requires a predicate murder as defined under Section 19.02(b)(1) and any one of nine additional aggravating circumstances. “When an indictment alleges differing methods of committing capital murder in the conjunctive, the jury may properly be charged in the disjunctive.” “The unanimity requirement is not violated by instructing the jury on alternate theories of committing the same offense, in contrast to instructing the jury on two separate offenses involving separate incidents.” To guarantee unanimity when the State is not required to elect between aggravating circumstances, “the jury must be instructed that it must unanimously agree on one incident of criminal conduct (or unit of prosecution), based on the evidence, that meets all of the essential elements of the single charged offense beyond a reasonable doubt.”
More recently, this Court stated that these holdings remain good law, and that “the gravamen of capital murder is intentionally (or knowingly) causing a death, plus any one of various different types of aggravating elements_” We also clarified “that our holding ... applies equally to all alternate theories of capital murder contained within [Penal Code] § 19.03, whether they are found in the same or different subsections, so long as the same victim is alleged for the predicate murder.”
The aggravating circumstance for a capital-murder prosecution under Section 19.03(a)(7), which is at issue in this case, is the “murder of more than one person during the same criminal transaction or ... pursuant to the same scheme or course of conduct.” As we stated in John Anthony Saenz v. State, “The commission of at least one. murder, then, which is in addition to the predicate murder, is the aggravating circumstance required by Section 19.08(a)(7)(A).” Although that case dealt specifically with subsection (A), we have held that the same interpretation applies to both subsections (A) and (B) of Section 19.08(a)(7). Phrased another way, under both subsections the allowable unit of prosecution is “the killing of more than one individual.”
However, our previous case law regarding Section 19.03(a)(7) does not directly address the issue presented today, which is in the context of jury unanimity.
In the other Saenz case, John Saenz was convicted of three counts of capital murder when he shot and killed three people during a single transaction. Each capital murder count alleged a different victim as the predicate murder and alleged the killings of the other two victims as aggravating circumstances. We held that only one of his capital-murder convictions could be sustained because two murders must be shown to establish capital murder under Section 19.03(a)(7)(A), and the same three murders could not be used to establish separate capital-murder convictions. However, there was no question of whether the jury agreed he had committed all three murders — their original verdict convicted him of all three in separate charges, affirmatively answering the question of whether he had committed each of the separate murders. Each charge alleged a specific victim of the predicate murder, aggravated by the other two.
The jury charge before us today did not specify the killing of any one victim as the predicate murder, and the jury was not required to specify which two or more of the five alleged victims that they agreed the appellant had murdered.
In Milner the applicant pleaded guilty to two counts of capital murder and one count of murder after he shot and killed one person and attempted to kill two others. Each of the attempted murders was charged as attempted capital murder, aggravated by the death of the first victim in the same scheme and course of conduct. We held that only one of the capital-murder convictions could be upheld, “[bjecause each attempted capital murder conviction under Penal Code §§ 19.03(a)(7)(B) and 15.01(b) [criminal attempt] requires at least two victims not included as victims in other attempted capital murder provisions under those saíne penal code sections.” As in John William Saenz, there was no fact question of whether the applicant committed all three attacks; he pleaded guilty to all three charges, including the attempted capital-murder charges that named a specific victim of the predicate attempted murder.
The language used in the jury charge that we consider today made it possible for the jurors to convict without agreeing that any one particular person was murdered by the appellant. Although the charge required the jury to unanimously agree that' she killed at least two of the five named victims, there was no requirement that the jurors agree on any one specific murder, which would have served as the predicate murder. Six jurors could have agreed she killed victims A, B, and C, while the other six agreed she killed victims D and E. There is no way to know whether the unanimous verdict included agreement regarding the identity of at least one of the victims.
Without unanimous agreement regarding a predicate murder as defined under Section 19.02(b)(1), which in this case could have been any one of the five people she was alleged to have killed, there was no foundation from which to progress to a conviction for capital murder, and the appellant’s right to a unanimous verdict was violated. The Fourth Court of Appeals erred in holding that the jury charge was not erroneous.
Because the appellant did not object to the jury charge, the trial court’s error must be analyzed for egregious harm under Almanza v. State. We therefore vacate the judgment of the Court of Appeals and remand the case to that Court for further proceedings not inconsistent with this opinion.
Keasler, J., concurred in the judgment.
Meyers, J., dissented.
Saenz v. State, 421 S.W.3d 725 (Tex.App.San Antonio 2014).
Emphasis added.
Emphasis added.
Tex. Code Crim. Pro. art. 36.29.
Jourdan v. State, 428 S.W.3d 86, 94 (Tex.Crim.App.2014) (citing Pizzo v. State, 235 S.W.3d 711, 714 (Tex.Crim.App.2007)).
Tex. Penal Code § 19.03(a); see also Graham v. State, 19 S.W.3d 851, 853 (Tex.Crim.App.2000). Section 19.02(b)(1) defines the offense of murder as "intentionally or knowingly causing] the death of an individual.”
Martinez v. State, 129 S.W.3d 101, 103 (Tex. Crim.App.2004) (citing Kitchens v. State, 823 S.W.2d 256, 258 (Tex.Crim.App.1991)).
Id.
Cosio v. State, 353 S.W.3d 766, 776 (Tex.Crim.App.2011).
Gardner v. State, 306 S.W.3d 274, 302 (Tex.Crim.App.2009).
Gamboa v. State, 296 S.W.3d 574, 584 (Tex.Crim.App.2009) (emphasis added). See also Davis v. State, 313 S.W.3d 317, 342 (Tex.Crim.App.2010) ("Nothing prohibits a single capital murder from containing alternate underlying offenses that are the same statutory offense but with different victims or different underlying methods of commission, so long as the same victim is alleged with respect to the predicate murder.") (emphasis added).
166 S.W.3d 270, 273 (Tex.Crim.App.2005) (emphasis added).
Ex parte Milner, 394 S.W.3d 502, 508 (Tex.Crim.App.2013) ("for capital murder under Section 19.07(a)(7)(B), the state must allege that at least two murders were committed: an intentional murder under section 19.02(b)(1) and at least one additional murder as the aggravating circumstance").
Saenz, 166 S.W.3d at 273 (addressing Section 19.03(a)(7)(A)); Milner, 394 S.W.3d at 508 (addressing Section 19.03(a)(7)(B)).
Saenz, 166 S.W.3d at 271.
Id. at 274.
Milner, 394 S.W.3d at 504.
Id. at 510.
686 S.W.2d 157, 171 (Tex.Crim.App.1985) (op. on State’s motion for reh’g). See also Cosio v. State, 353 S.W.3d 766, 777 (Tex.Crim.App.2011) ("Because Cosio forfeited his constitution-based jury charge claim [predicated on jury unanimity], he is not entitled to a harm analysis under [Tex. R. App. P.] Rule 44.2(a). But the charge error must still be reviewed for egregious harm under Almanza.").
Kimberly Clark SAENZ, Appellant v. The STATE of Texas, Appellee
No. 04-12-00238-CR
Court of Appeals of Texas, San Antonio.
Delivered and Filed: August 26, 2015
• Amy D. Martin, Heather Lytle, Houston, TX, Robert Morrow, The Woodlands, TX, for Appellant.
Arthur Bauereiss, Angelina County Assistant District Attorney, Lufkin, TX, John G. Jasuta, David A. Schulman, Attorney at Law, Austin, TX, for Appellee. '
Sitting: Catherine M. Stone, Chief Justice, retired (not participating), Marialyn Barnard, Justice, Patricia O. Alvarez, Justice
[OPINION BY Patricia O. Alvarez, Justice type=majority]
OPINION
Opinion by:
Patricia O. Alvarez, Justice
During April 2008, five-patients died and at least five patients suffered episodes of unexplained illnesses and cardiac arrest while undergoing dialysis treatment at the DaVita Healthcare Dialysis Clinic. ‘Appellant Kimberly Saenz, a licensed vocational nurse employed at the dialysis clinic, was charged by indictment with five counts of aggravated assault i involving five separate individuals and one count of capital murder also involving five different individuals. A jury found Saenz guilty of capital murder and three counts of aggravated assault and acquitted Saenz on two counts of aggravated assault. The jury sentenced Saenz to twenty-years’ imprisonment' in the Institutional Division of the Texas Department ‘of Criminal Justice for each count of aggravated assault and to life in prison -without parole for capital murder.
Oh January 22; 2014, this court'overruled each of Saenz’s twenty-one issues on appeal and affirmed the trial court’s judgment. On December 10, 2014, the Texas Court of Criminal Appeals reversed this court’s holding regarding the - jury charge and remanded this matter for an egregious harm analysis under Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1985) (op. on reh’g). Saenz v. State, 451 S.W.3d 388, 392 (Tex.Crim.App.2014). Although both the jury charge and argument of counsel weigh in favor of egregious harm, we conclude the state of the evidence, and the record as a whole substantially, support a finding of guilt with regard,to eaeh of the five capital murder victims. Accordingly, we hold the record does not establish egregious harm, and we affirm the trial court’s judgment.
Factual and Procedural Background
A. DaVita Healthcare Dialysis Clinic
1. Unusual Events in April of 2008
Between April 1, 2008 and April 28, 2008, the DaVita Healthcare Partners, Inc] dialysis facility in Lufkin, Texas experienced an unusual number of patients suffering episodes of illness and cardiac arrest while undergoing dialysis treatment. Patients were becoming sick and dying in an unexplained manner. ■ Dialysis patients undergo a life sustaining process that acts as a substitute for their failed kidneys. Although dialysis patients generally suffer from health problems, the number of deaths the clinic: was - experiencing was alarming and unexplainable. As a result, DaVita continued to increase supervision and examinations of medication and treatment practices, but patients continued to experience unusual symptoms, and patients continued todie.
During the month of April 2008, the following patients suffered injuries during their treatment at the DaVita dialysis clinic:
April 1, 2008 Clara Strange and Thelma Metcalf died after suffering cardiac .arrest
April 16, 2008 Garlin Kelley suffered cardiac arrest and died two days later at the hospital; Graciela' Castañeda lost consciousness during treatment
April 22, 2008 Cora Bryant suffered cardiac arrest and died three months later at the hospital"
April 23, 2008 M.B. suffered a severe drop in blood pressure
April 26, 2008 Opal Few' died after suffering cardiac arrest; D.O. experienced multiple symptoms and a severe drop in blood pressure
■ April 28, 2008 M.R. and C.R. both suffered severe - drops in blood pressure
2. Kimberly Saenz
At the time of the alleged incidents, Saenz was a licensed vocational nurse and had been employed at the dialysis clinic for approximately nine months. Although Saenz was licensed to administer medication, < DaVita often required Saenz to serve as a patient care technician, the employee who connected the patient to the dialysis machine' and attended to .their needs during the dialysis.
Clinic employees reported Saenz was not happy with her employment at DaVita. Several people reported Saenz was frustrated when DaVita would reassign her to the lesser position of patient care technician. Saenz herself considered administration of medications much less stressful and felt she was being treated unfairly by Da-Vita. During her April 28th shift, Saenz was described as “teary-eyed” in reaction to her patient care technician assignment.
In addition to Saenz’s displeasure with DaVita’s daily assignments, Saenz verbally expressed her aversion to some of the DaVita patients/ One employee testified Saenz specifically voiced her dislike of Strange, Metcalf, Kelley, Few, O., R., and R., all of .whom either died- or were injured during treatment in April of 2008.
Records substantiate that during each of the alleged incidents, Saenz was at the DaVita facility functioning either as a patient care technician or as a nurse responsible for preparing medications for each patient.
3. Testimony Regarding Bleach
Bleach is a disinfectant used on a daily basis by the DaVita employees, and employees at other dialysis clinics, to clean the chairs and equipment between uses. The patient care technicians mix a diluted solution of bleach and water on rags to wipe down the chairs, machines, and other surfaces between patients. Additionally, once a week, the machines are cleaned internally with a bleach solution. The jury heard extensive testimony regarding the proper procedure used to mix the bleach solution and, specifically, how Saenz mixed the bleach solution. Saenz testified the agency brought in monitors,, individuals to ensure compliance with protocols, in an attempt to determine a cause for the unexplained patient complications. She further explained the monitors’ presence made her nervous and, as a result, she took extra precautions.'
On. April 28, 2008, witnesses reported seeing Saenz prepare a bleach solution by pouring bleach into a container and then injecting a bleach-filled syringe.into two patients’ intravenous (IV) dialysis line. Luriene H., a dialysis patient, witnessed Saenz inject R.’s and R.’s IV lines. H. told the clinic supervisor, A.C., that Saenz placed the bleach, solution container on the floor. Saenz then took out a bottle of bleach and poured the bleach into that .container. H. further, relayed seeing Saenz draw up syringes of bleach from the container on the floor and inject bleach into R.’s dialysis line. H. then saw Saenz" repeat the process and inject bleach into the dialysis line of R.. H. explained to C. that “I’m a little nervous right now, and I’m worried because she’s assigned to me.” Another patient, L.H., witnessed Saenz fill a syringe and inject R.’s “saline” line. Both witnesses saw Saenz dispose of the syringes in the DaVita sharps containers. Additionally, both witnesses reported Saenz’s action to supervisors shortly after R. and R. experienced symptoms.
Saenz acknowledged using a syringe to extract the bleach from its container because she was concerned about being precise and following procedures. She adamantly denied ever injecting bleach into a patient.
A Incriminating Statements Made by Saenz
Beginning immediately after the reports made by H. and H., Saenz made several incriminating statements and engaged in several questionable actions.
a.Statement to A.C.
After speaking to H. and H., C. asked Saenz whether she had administered any medication that day. Saenz denied administering medication. Yet, when asked about the bleach, Saenz explained that she “was drawing up bleach to mix for her containers” that she had on the floor, Three syringes collected from the sharps’ container tested positive for bleach.
b.Statement to W.G.
The following day, April 29, 2008, DaVita called a mandatory meeting. The facility was closed diming the investigation and the employees were notified. All of the employees, with the exception of Saenz, attended the meeting. When she did not appear for the meeting, one of Saenz’s coworker’s, W.G., called’and inquired, “Where are you? Are you coming to the meeting?” Saenz replied in the negative, explaining “I’m a chaperone at my daughter’s field" day.” ' G. expressed concern that Saenz could lose her job, but Saenz simply responded, “Okay.”
After the meeting, 'G. went to find Saenz. An uncharacteristically unkempt Saenz acted like she did not recognize him. When he approached her, she was crying and told him that “she didn’t kill those people.” G. described. Saenz as “seem[ing] like she had lost all. the hope in the world.”, The comment was unexpected because, at that point, no one had made any allegations accusing anyone of killing patients.
c.Interview with Lufkin Police Department
During Saenz’s interview with Corporal Mike Shurley and Sergeant S.A. of the Lufkin Police Department, Saenz’s' statements were often disjointed, and she had difficulty staying focused, on the questions asked-by the officers. Saenz was noticeably upset that “two patients [accused] her of giving another patient’s medication that was not ordered.”
She expressed concern that she was “scared to go to work ... cause [DaVita] can’t tell us what’s going on, and I’m doing everything by the, book, and I’m scared because I have a license.”-Saenz further explained, “if I’m doing something wrong, I’want to know that I’m doing something wrong ’cause I don’t .want to kill somebody.” When asked about whether she administered any medications during her shift on April 28, 2008, Saenz explained,
I did give [R.] some saline, - only because she said she was cramping. Opened her - saline- line, [her nurse] wasn’t there, so I charted that I gave her some saline line. She — her pressure didn’t really go down that much, and then she just said she felt kind of nauseated.
- When the officers asked’ Saenz if she had any theories about the underlying cause of the injuries, Saenz questioned the “bleach loop”. and expressed, curiosity whether “our machines are hooked up and they have some bleach in ’em.” When asked to explain the clinic’s “bleaching procedures,” Saenz described a bleach area at the back of the facility where a medicine cup is used to pour bleach into a container with water. Sponges are then soaked in the liquid to wipe the chairs. Although Saenz understood’ the policy was to use' a medicine cup to measure the bleach, when pushed' by the officer on whether she had ever used a syringe to measure the bleach, Saenz acknowledged doing so.
Sometimes I do when’ I can’t find a — the little medicine cups.
There wasn’t any cups up • there that day. But if you use a syringe, 10 cc, then you’re going to have to, you know, put it in the receptacle.
so I took my bleach and I just poured it [into one of the receptacles], and then I pulled [the bleach] up to 10[cc], ’cause I knew that would be like 10 ml.
Saenz further explained the monitors at the facility made her nervous, and she wanted to ensure that she was precisely following procedures. Other than Saenz’s own statement, there was no evidence that the supply of measuring cups was depleted. ■
d. Internet Searches
The State’s computer forensic analyst, Mario Marez, testified that Sergeant A. provided him with two laptop and two desktop computers which were seized from Saenz’s and her parents’ homes. His examination of the computers, revealed Saenz ran two different searches:
(1) On April 2, 2008, at approximately 4:15 a.m., a Yahoo search for “bleach poisoning”; and
(2) On May 3, 2008, at approximately 7:00 p.m., Yahoo searches for “bleach given during' dialysis,” “can bleach be detected in dialysis lines,” and “dialysis patients symptoms of bleach infusion.”
Saenz’s first search was conducted, shortly after four in the morning, the day after the first victims, Strange and Metcalf, died and before anyone had raised any suspicions as to foul play. During her interview with the officers and again during her grand jury testimony, Saenz acknowledged running the searches explaining that she was nervous and wanted to understand why her patients were dying.
e. Grand Jury Testimony
Saenz also testified before the grand jury claiming she felt like she had “been a scapegoat for something that [DaVita] could have kept from happening.” Saenz explained that on April 28, 2008, all of the employees were on edge, “we were all scared ’cause we didn’t know what it was.” She stated the employees met on several occasions'to discuss the situation and further relayed that DaVita “brought in this mock state team, and they were there that day. And I had a lady that was shadowing over me.”
With regard to her patient contact on April 28th, Saenz explained that when another employee went for a break, “one of her patient’s machine alarms kept going off.” Saenz explained that [R.’s] machine ,was “clotting off,” which required the tech, to “flush [the lines] with saline.” She also acknowledged knowing that H. and H. reported seeing her inject bleach into a patient’s line. Yet, Saenz was adamant, “I flushed [R.’s] machine with saline and I told [C.] and she was like, don’t worry about it, you know, just go on to lunch and.we will calm them down,” When Ciinton asked her if she injected any medications, Saenz told her that she injected the saline.
The ' grand jurors questioned Saenz about the procedure' for mixing the bleach. Saenz explained that before "the monitors arrived, “we’d just kind of pour a little bit [of bleach] into the bucket and then fill it with water to clean the machines.” But with the monitors present, “they were having us do everything by the book. So I did. I had drawn up a syringe in a bleach — bleach in a syringe earlier to mix my bleach solution.” When asked how the needle would reach the bleach, Saenz explained; “we would pour it in the cap and draw it with the syringe.” She claimed it was proper procedure if a medicine cup was unavailable.
Throughout the grand jury questioning, Saenz continued speaking without interruption for extended periods of time. On several occasions, she professed her innocence.
I’ve been trying to rack my brain ’cause I know I did not do what they are accusing me of doing. I know I did not do that. I would never inject bleach into a patient.
I feel so railroaded. I feel like there is this big company and they need a way to get out of it, and I am the scapegoat, and that is how I feel.
B. Procedural Background
Saenz was charged by indictment with five counts of aggravated assault for five separate individuals — Marvá R., C.R., Debra Oátes, Graciela Castañeda, and M.B. In each of the allegations, Saenz was charged with’ introducing sodium hypochlorite, commonly known as bleach, or other chlorinating agent into each victim’s bloodstream.
In the sixth count, Saenz was charged with capital murder, specifically by
caus[ing] the death of more than one of the following persons: Clara Strange, Thelma Metcalf, Garlin Kelley, Cora Bryant, or Opal Few during the same criminal transaction or during different criminal transactions but pursuant to the same scheme or course of conduct, by introducing sodium hypochlorite, commonly known as bleach, or other chlorinating agent into the body’s bloodstream.
1. Jury Trial
■ After seventeen days of testimony from fifty-nine witnesses and the introduction of almost four hundred exhibits, the jury returned the following verdicts:
(1) Guilty on three counts of aggravated assault — Counts I (M.R.), III (D.O.), and V (M.B.);
(2) Not guilty on two counts of aggravated. assault — -Counts II (C.R.) and IV (Graciela Castañer da); and
(3) Guilty of capital murder concerning the deaths of Clara Strange, Thelma Metcalf, Garlin Kelley, Cora Bryant, and Opal Pew.
The jury assessed punishment at twenty-years’ imprisonment for each count of aggravated assault and life in prison without parole for the capital murder charge.
2. Fourth Court of Appeals. ■ In her original appeal to this court, Saenz raised twenty-one points of error. The claims can be best categorized as follows: (1) jury charge error — a lack of juror unanimity; (2) insufficiency of the evidence; (3) 'ineffective assistance of counsel; (4) improper exclusion of evidence; and (5) improper admission of expert testimony. On January 22, 2014, this court issued an opinion affirming the trial court’s judgment. Saenz v. State, 421 S.W.3d 725 (Tex.App.-San Antonio 2014), vacated 451 S.W.3d 388 (Tex.Crim.App.2014). 3. Texas• Court of Criminal Appeals Saenz subsequently filed a petition for review with the Texas Court of Criminal Appeals alleging this court erred in its holdings regarding (1) juror unanimity and (2) ineffective assistance of counsel. The court granted the petition for discretionary review “to consider whether a jury charge on capital murder under Penal Code Section 19.03(a)(7) must require the jurors to agree as to the identities and the number of the victims.” On December 10, 2014, the Court of Criminal Appeals reversed this court’s January 22, 2014 opinion. The court’s opinion relied heavily on the following closing argument made by the State: The State has the burden of proof to prove that [Saenz] caused the death' of at least two' of the five victims. You don’t have to agree as to which two. Saenz, 451 S.W.3d at 389-90. Although “[t]he unanimity requirement, is not violated by instructing the jury on alternative theories of committing the same, offense,” id. at 390 (quoting Martinez v. State, 129 S.W.3d 101, 103 (Tex.Crim.App.2004)), this is only true “ ‘so long as the same victim is alleged for .the predicate murder,’ id. (quoting Gamboa v. State, 296 S.W.3d 574, 584 (Tex.Crim.App.2009)); accord Davis v. State, 313 S.W.3d 317, 342 (Tex.Crim.App.2010). The court emphasized that the charge “did not specify the killing of any one victim as the predicate murder, and the jury was not required to specify which two or more of the five alleged victims that they agreed [Saenz] had murdered.” Saenz, 451 S.W.3d at 391. The court explained as follows: Although the charge required the jury to unanimously agree that she killed at least two of the five named victims, there was no requirement that the jurors agree on any one specific murder, which would have served as the predicate murder. ' Six jurors could have agreed she killed victims. A, B, and C, while the other six agreed she killed victims D and E. There is no way to know whether the unanimous verdict included agreement regarding the identity of at least one of the victims. Id. at 392. Thus,- the court concluded the charge was erroneous. Id. Because Saenz did not object to the trial court’s jury charge, the Court of Criminal Appeals remanded this cause for an egregious harm analysis under Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1985) (op. on reh’g). Id.; see also Cosio v. State, 353 S.W.3d 766, 777 (Tex.Crim.App.2011). Harm Analysis A. Standard of Review under Almanza v. State Saenz’s trial counsel did not object to the failure to include the unanimity instruction. ■ When a defendant does not object, a constitutional jury-charge issue is not preserved. Cosio, 353 S.W.3d at 776; Phillips v. State, 193 S.W.3d 904, 913-14 (Tex.Crim.App.2006). However, “charge error is never forfeitable by a defendant’s failure to object at trial.” Cosio, 353 S.W.3d at 776; see also. Ngo v. State, 175 S.W.3d 738, 743 (Tex.Crim.App.2005); Almanza, 686 S.W.2d at 171. Instead, a failure to object controls only the type .of harm analysis that will be applied. Cosio, 353 S.W.3d at 776. When a defendant does not object to the charge error, his convictions are subject to reversal on appeal only if he has suffered “egregious harm.” Almanza, 686 S.W.2d at 171. Egregious harm is established if the record shows that the appellant has suffered such harm that the defendant’s trial was not fair or impartial. Id.; see. Cosio, 353 S.W.3d at 776-77. Charge error is egregiously harmful when “it affects the very basis of the case, deprives the defendant of a valuable right, or vitally affects a defensive theory.” Fulcher v. State, 274 S.W.3d 713, 716 (Tex.App.-San Antonio 2008, pet. ref'd); see also Allen v. State, 253 S.W.3d 260, 264 (Tex.Crim.App.2008). “An egregious harm determination must be based on a finding of actual rather than theoretical harm.” Cosio, 353 S.W.3d at 777; Villarreal v. State, 453 S.W.3d 429, 433 (Tex.Crim.App.2015). However, “we do not require direct evidence of harm to establish egregious harm.” Hutch v. State, 922 S.W.2d 166, 171 (Tex.Crim.App.1996). As the court in Ellison v. State, 86 S.W.3d 226, 227 (Tex.Crim.App.2002), opined, it is a “difficult standard.” We consider the following factors in evaluating harm: (1) “the entire jury charge”; (2) “the state of the evidence, including the contested issues and weight of probative evidence”; (3) the parties’ arguments at voir dire and at trial; and (4) all other relevant information in the record. Almanza, 686 S.W.2d at 171. The Almanza analysis is fact specific and is done on a “case-by-case basis.” Gelinas v. State, 398 S.W.3d 703, 710 (Tex.Crim.App.2013). As the Court of Criminal Appeals concluded, the jury charge did not apprise the jury of the proper unanimity requirement. See Saenz, 451 S.W.3d at 392; see also Arrington, 451 S.W.3d 834, 841 (Tex.Crim.App.2015) (affirming egregious harm when charge instructions “ ‘permitted non-unanimous verdicts based on the evidence presented in the case.’ ’’ (citing Arrington v. State, 413 S.W.3d 106, 112 (Tex.App.-San Antonio 2013))). The jury charge “did not specify the killing of any one victim as the predicate murder and the jury was not required to specify which two or more of the five alleged victims they agreed [Saenz] had murdered.” Saenz, 451 S.W.3d at 391. We must,'therefore, conclude this factor weighs in favor of finding egregious harm. See Villarreal, 453 S.W.3d at 433; Arrington, 451 S.W.3d at 841. Similarly, with regard to arguments of counsel, there is little question the prosecutor exacerbated the error by specifically telling the jury it need not agree as to the same two victims. See Ngo, 175 S.W.3d at 750. Accordingly, this factor also weighs ■in favor of an egregious harm finding. Id. at 752. ". We must, therefore, examine the two remaining .factors: (1) “the state of the evidence” and (2) “all other relevant information in the record remaining cognizant this caseras highly circumstantial.” Almanza, 686 S.W.2d at 171. Our inquiry is factual in nature and turns on the unique circumstances of this case. See Ellison, 86 S.W.3d at 227. We are called upon to “make [our] own assessment,” based solely on the record before us, to evaluate what effect, if any, the error had on the jury’s verdict. Ovalle v. State, 13 S.W.3d 774, 787 (Téx.Crim.App.2000). Importantly, neither party bears the burden of showing harm, or a lack thereof, under this standard. Warner v. State, 245 S.W.3d 458, 464 (Tex.Crim.App.2008). B, State of the Evidence and Other Relevant Information We begin our harm analysis by reviewing (1) the uncontested factual analysis and legal conclusions set forth in this court’s January -22, 2.014-opinion and (2) an in-depth examination- of- the jury’s verdict on the aggravated assault charges. 1. Uncontested Factual Analysis and Legal Conclusions from Prior Opinion When examining the uncontested factual conclusions, we remain, mindful, that we need not reinvent the wheel. We find the court’s, rationale in State v. Swearingen, 424 S.W.3d 32 (Tex.Crim.App.2014), instructive. The court reasoned the court of appeals had already determined the trial .court record was sufficient to support conviction, thus its analysis did not require another sufficiency review because the previous finding of sufficient evidence governs the appeal. Id. at 36-38. Our situation is analogous. Saenz raised twenty-one issues in her original appeal and we concluded the evidence was legally sufficient to support each of Saenz’s convictions. Saenz, 421 S.W.3d at 752. Importantly, in her petition for discretionary review, Saenz raised only two issues: juror unanimity and ineffective assistance of counsel. After denying discretionary review on the question of ineffective assistance of cbunsel, the Court of Criminal Appeals determined the trial court’s charge was erroneous on the issue of juror unanimity. Accordingly, the analysis and conclusions by this court on the remaining nineteen issues, including sufficiency of the evidence, addressed in the prior appeal remain uncontested and “govern the appeal.” Id. Although our original opinion provided substantial support for each of the scientific conclusions, we need not do so here. For purposes of the harm analysis, we consider the following conclusions, as they are uncontested in Saenz’s petition: *• Bleach was injected into the dialysis ■. dines, Saenz, 421 S.W.3d at 746; • Positive blood- tests for the 3-choror-tysine biomarker and elevated levels of lactate dehydrogenase (LDH) in an individual’s blood were evidence of confirmed exposure to bleach in the bloodstream, id. at 748, 763; • Saenz’s explanation for using a sy- ■ ringe to prepare the bleach solution could have been discredited and the jury could have rationally considered her drawing- the bleach with a syringe as ■ circumstantial evidence to support the eyewitness testimony, id. at 751; • Saenz was the first to mention bleach ■ as a potential cause of the patient injuries, id.; • H.’s and H.’s versions of the events, although slightly different, were reconcilable; ■ the ’ jury could have also disregarded H.’s and not H.’s testimony, id. at 750; and ' • The internet searches were circumstantial evidence of Saenz’s guilt, id. ' at 751-52. Because these conclusions and factual analyses were uncontested in Saenz’s petition for discretionary review, we consider them in our harm analysis. See Swearingen, 424 S.W.3d at 36-38. 2. Jury Verdict on Aggravated Assault Charges We also have the benefit of the jury’s verdict, The jury returned three guilty verdicts and two not-guilty verdicts on the aggravated assault charges. An understanding of the facts in relation to each individual victim, specifically the evidence linking Saenz to each victim, the scientific evidence, and other circumstantial evidence, is also helpful. We analyze the evidence supporting each of these verdicts, and how this evidence is''applicable to the jury charge. In doing so, we can better relate the evidence to each of the victims alleged in-the capital murder charge and determine whether the trial court’s erroneous jury charge affected the jury’s verdict. See Ovalle, 13 S.W.3d at 787. We thus turn to the jury’s verdicts on the five aggravated assault counts, looking specifically at how the evidence of Saenz’s guilt varies between the different victims. The jury returned the following verdicts: • Guilty on Aggravated Assault Counts I (R.), III (O.), and V (B.) ■ • Not Guilty on Aggravated Assault Counts II (R.) and IV (Cas- ' tañeda): Although the verdicts are not facially distinguishable, the facts underlying the allegations are clearly discemable. We consider Saenz’s access to each of the patients, the individual symptomology evidenced by each patient, and any other surrounding facts. Like other cases with conflicting testimony, the jury alone determines the weight and credibility of the witnesses and their testimony. Lancon v. State, 253 S.W.3d 699, 707 (Tex.Crim.App.2008). Here, Saenz’s version of the events differed greatly from the testimony of many of her peers and the State’s experts. We begin with the question of differences in Saenz’s access to each of the aggravated assault victims.. •. a. Saenz’s Access to each Victim The testimony supported Saenz had direct contact, immediately prior to each victim’s symptons, with R., O., and B.,- the three aggravated assault victims for whom Saenz was convicted. As to R., Saenz monitored R. while her patient care technician was ■ on break. Saenz also acknowledged injecting “saline” into R.’s IV line. O., on the other hand, received medications from Saenz. Saenz charted administering medications to O. and another patient witnessed Saenz inject something in O.’ IV line and then- dispose of the syringe in the sharps’ container. Saenz also charted, administering medication to B. on the day in question. For each of these patients, Saenz either verbally acknowledged, or personally charted, administering medications on the day of their injuries.. In contrast, the evidence to support direct contact between Saenz and the two victims for which Saenz was acquitted-was significantly less.- Castañeda’s testimony before the jury was somewhat confusing. Castañeda was plagued by memory losses and could not remember Saenz actually administering medications to her on the day in question. Similarly, although Saenz was at the facility when R. became ill, and another patient reported seeing Saenz inject R., R.’s patient care technician did not remember taking a break or asking Saenz to cover her patient for any reason. b. Symptomology The symptomology exhibited by R., O., and B. was also similar. All three patients reported feeling poorly and experienced sudden, dramatic drops in their blood pressure. Additionally, all three patients were taken to the hospital and tested positive for the 3-chlorotyrosine biomarker and elevated LDH levels. For both R. and B., their dialysis lines tested positive for bleach. O.’s dialysis line was not tested. ' Qnce again, Castañeda’s and R.’s symptomology differs from the other three patients’ symptomologies. Although Ri-sihger experienced' a drop in her blood pressure, she' recovered quickly and refused further treatment at a hospital facility. Because she was never seen at the emergency room, no blood tests were conducted and thus there was no scientific link between R.’s blood content and any injections of bleach. Additionally, R.’s'dialysis lines were not preserved for testing. With regard to Castañeda, although she lost consciousness at the dialysis facility, there was some question as to whether she choked on gum she was chewing. Moreover, even though the paramedics did not remember anything blocking Castañeda’s airway, the medical records documented chewing gum was removed from Castáñeda’s airway. Castañeda remained at the hospital diagnosed with pneumonia. - In fact, during testimony at trial, Castañeda explained that prior to her treatment on the day in question, she had already been diagnosed with pneumonia and described the incident as “merely losing consciousness.” Castañeda’s dialysis line was also inconclusive for the presence of bleach. c. Understanding the Distinctions Contrary to Saenz’s assertion, the jury decision to acquit Saenz as to Castañeda and R. does not necessarily mean the jury discredited the scientific evidence. Instead, the jury could have relied on other factual differences to reach different findings. For the counts on which the jury found Saenz guilty, Saenz had direct contact with each of the victims (i.e., R., O., and B.) on the day in question, the victims’ blood tests showed elevated levels of LDH and/or tested positive for the 3-chlorotyrosine biomarker, and all three victims suffered extreme drops in blood pressure. Most importantly, there were no other explanations for their symptoms. The evidence pertaining to the two not guilty counts, on the other hand, is readily distinguishable. First, Castañeda testified her incident was the result of previously diagnosed pneumonia and the medical reports clearly suggested a blocked airway was potentially responsible for her loss of consciousness. For R., absent the patient report of administering medication, there was no documented contact showing Saenz providing medical care to R.. Additionally, no Woodwork was conducted and R.’s dialysis lines were not preserved for testing. We presume the jury adhered to their oaths and followed the trial court’s jury charge. Colburn v. State, 966 S.W.2d 511, 520 (Tex.Crim.App.1998) (“We generally presume the jury follows the trial court’s instructions in the manner presented.”); accord Jones v. State, 264 S.W.3d 26, 29 (Tex.App.-Houston [1st Dist.] 2007, pet. ref d). Here, the jury could have reasonably believed all five patients were injured by injection of sodium hypochlorite or bleach into their dialysis lines as the State alleged. The jury could have also determined the State proved their cases of aggravated assault beyond a reasonable doubt with regard to R., O., and B., as there was no other explanation for their injuries. For both Castañeda and R., however, the jury could have determined the State failed to prove their aggravated assault cases beyond a reasonable doubt because the factual differences raised reasonable .doubts on which a rational jury could acquit. Taking into consideration our uncontested conclusions and factual analysis of the aggravated assault jury determinations, specifically victims with whom Saenz had contact versus those she did not, and victims for whom the State presented scientific evidence supporting bleach poisoning, we now turn to the similarities and differences in the evidence regarding the five victims alleged in Count VI — the capital murder charge. C. Capital Murder Charge Each of the five patients who died during the month of April 2008 while receiving dialysis treatments at the DaVita dialysis center was in end-stage renal failure. Clara Strange and Thelma Metcalf both suffered cardiac arrest during their treatments on April 1, 2008, and died the same day. Similarly, Opal Few was found unresponsive during treatment on April 26, 2008, and died later that day at the hospital. Two of the victims, Garlin Kelley and Cora Bryant, suffered cardiac arrest during treatment and were transferred to the hospital. Kelley.survived for two days and Bryant survived for almost three month before each died at the hospital. 1. Saenz’s Access to the Victims Saenz had direct contact with all five deceased patients. Saenz monitored Strange while her patient care technician was on break. Strange was unresponsive when the patient care technician returned. Approximately thirty minutes later, Metcalf, who was assigned to Saenz on the day in question, suffered cardiac arrest and never regained consciousness. Two weeks later, Kelley was under Saenz’s nursing care, when his patient care technician heard the dialysis machine alarm and saw Saenz standing near an unresponsive Kelley. Saenz stated she was preparing to turn the alarm off and reset the machine. On April 22, 2008, Bryant’s assigned patient care technician was on break when Bryant’s alarm sounded. Another nurse witnessed Saenz attempting to reset Bryant’s machine. Four days later, while Few’s nurse was preparing her medications, Few’s alarm sounded and she suffered cardiac arrest. The medical charts confirmed, and Saenz also acknowledged, Saenz administered medication' to Few shortly before her cardiac arrest. 2. Symptomology Like the three aggravated assault victims for which the jury convicted Saenz, all five capital murder victims became unresponsive and suffered cardiac arrest during their treatments. In three of the patients, Strange, Metcalf, and Bryant, the dialysis machine’s blood flow rate was lowered. An expert witness explained that a person can reduce the' likelihood of the dialysis machine alarming by turning down the patient blood flow rate. 3. Evidence of Bleach The dialysis lines for all five patients were tested for the presence of bleach.. In all but Bryant’s dialysis lines, bleach was detected. Contrary to Saenz’s claims, the testimony substantiated that the bleach did not enter the dialysis process through either the city water or- DaVita’s filtered water. Although Saenz testified she used a syringe to ensure accuracy and to precisely follow procedures, the uncontested proper protocol was' to use small medicine cups to measure the bleach. If Saenz’s concern was truly a question of following protocol and being accurate, the jurors could have easily determined using a syringe was not logical. Saenz claimed that because the needle would not reach the bleach in the bottle, she had to pour the bleach into one container, i.e. a bottle cap, draw it. up with a syringe, express it into a second container, and then mix the bleach with water. Additionally, extracting bleach directly from the bleach bottle with the syringe would be practical only if the bottle was nearly full. Kelley and Bryant were the only patients that survived long enough to be transported and treated at the hospital. As a result, only.their blood was tested for the 3-chlor,otyrosine biomarker. Both tests were positive confirming exposure to bleach in the bloodstream. One expert testified the levels of chlorotyrosine were the highest levels he had ever seen reported in literature — 300 to 400 times greater than what would be expected from the levels that would be naturally produced by a person undergoing dialysis. Although Bryant’s dialysis line did .not test positive for bleach, her blood sample showed an elevated level of LDH. The jury heard testimony her level was twenty to seventy times higher than what would be expected from the levels naturally produced by a patient who had experienced cardiac arrest. Finally, a physician and toxicologist with the Centers for Disease Control, Dr. Mark Schwartz, concluded each capital murder victim died from the .-injection of bleach into his or. her dialysis line or port.-. He further explained that it is impossible to measure the amount of bleach or sodium hypochlorite in a, person’s blood., The bleach reacts too quickly, converting to hypochlorous acid which damages the patient’s organs .and tissues, In addition to Dr. Schwartz’s testimony, the jury heard from Dr. Imran Nazeer who testified, in his twelve years as a nephrologist, only two patients had .died while undergoing dialysis treatment. Dr. Nazeer also testified regarding a recent study finding the chance of having a,,cardiac arrest during dialysis treatment was “very rare” — a 0.007% chance. 4. Other Circumstantial Evidence In addition to the scientific evidence presented, the jury- heard copious testimony relating to circumstantial evidence of Saenz’s guilt. Less than twenty-four hours after Strange and Metcalf died, Saenz was searching the internet for “bleach poisoning.” After the officials began to suspect bleach was- involved in the déaths, Saenz again turned to the internet searching for “bleach given during dialysis,” “can bleach be detected in dialysis lines,” and “dialysis patients symptoms- of bleach infusion.” Saenz' also made several incriminating statements. On April 29, 2008, the day after the clinic was closed, and prior to any real investigation, Saenz appeared despon-dént and told W.G. that “she didn’t kill those people.” During her interview with officers later that same ’day, Saenz was the first to mention bleach poisoning. In her; disjointed statement, Saenz' averred she was “scared” to go to work “ ’cause- I don’t want to kill somebody.” Saenz also acknowledged using a syringe to measure bleach when measuring cups were allegedly not available because she was nervous and wanted to follow procedures precisely.' ' During her testimony before the grand jury, Saenz described herself as a “scapegoat.” She blamed DaVita for failing to take actions to prevent the injuries. Saenz also provided extensive, detail about medications she administered and how. she would prepare the bleach mixture including pouring the bleach “in the .cap and drawing] it with a syringe.”. The jury also heard other evidence of Saenz’s behaviors around these patients; Nurse S.D. testified’ Kelley was unresponsive when Saenz attempted to reset Kelley’s machine. D. also reported seeing “a large black clot” in the arterial chamber of Kelley’s dialysis machine. Strange’s nurse, W.G., testified that when he notified Saenz' of Strange’s condition, “it was like she really didn’t care.” The jury could have reasonably believed the State proved their capital murder case beyond a reasonable doubt because there is evidence that any one of the five patients who died during the month of April died as a result of Saenz’s actions, and those deaths were aggravated by the death of another victim — albeit the jury charge did not specify which specific murder served as the predicate murder. With this in mind, we turn whether the error in the jury charge caused egregious harm. ■ Conclusion Although we agree both the trial court’s jury charge and the prosecutor’s closing argument emphasized, rather than ameliorated, the error in the court’s charge, these are only two of the four factors to consider. See Almanza, 686 S.W.2d at 171, We must also consider the other two factors in evaluating whether actual, egregious harm occurred: the state of the evidence and the record as a whole support a finding of actual, egregious - harm. Id.; Cosio, 353 S.W.3d at 777. Although Saenz argues this is a question of highly contested evidence like in Ngo, we disagree. The evidence adduced at trial, and this court’s analysis thereof and conclusions therefrom were not contested by Saenz in the petition for discretionary review she filed with the Court of Criminal Appeals. Cf. Ngo, 175 S.W.3d at 750. Because the jury found Saenz guilty in Counts I, III, and V (aggravated assaults of R., O., and B.) and not guilty in Counts II and IV (aggravated assaults of Castañeda and R.), a review of the evidence overwhelmingly supports that the jury placed significant weight on (1) Saenz’s access to the victims, (2) her acknowledged use of a syringe to measure bleach, (3) the existence of bleach in the dialysis line, (4) the 3-chlorotyrosine biomarker, and (5) the testing for elevated LDH. In finding Saenz guilty on three aggravated assault charges, the jury necessarily found the evidence credible and rejected Saenz’s assertions of innocence and the various defensive theories she asserted. See Bell v. State, No. 05-13-01616-CR, 2015 WL 1648001, at *4 (Tex.App.-Dallas Apr. 10, 2015, pet. filed). This court concluded the evidence reasonably supported the jury’s determination of guilt and that holding was uncontested. Given these conclusions, the record contains no support that the jurors would have believed that Saenz committed only the murder of one of the five victims and not the other four. For all five capital murder victims, there were factual similarities: Saenz was present at each of their treatments and the victims were found unresponsive shortly after Saenz’s contact with them. Additionally, all five victims had at least one scientific test supporting bleach poisoning — positive test for bleach in the dialysis line or syringe, a positive test for the 3-chlorotyrosine biomarker, or an elevated LDH. The State’s entire case rested on Saenz injecting each of the victims with bleach which caused either serious bodily injury or death. There was no other manner and means alleged. Saenz’s defense was an all or nothing — she did not do anything to harm any of the victims. Thus, because each of the five murders was based on similar factual situations and the jury rejected Saenz’s ultimate defense, the record substantiates the jurors believed Saenz committed the murder of all five victims. As the Court of Criminal Appeals explained, the trial court’s jury charge did not require the jury to unanimously agree “on any one specific murder, which would have served as the predicate murder.” Saenz, 451 S.W.3d at 392. Here, the record clearly supports that any of the five victims could have served as the predicate murder. We thus conclude the evidence overwhelmingly creates unanimity in the predicate murder and did not affect the jury’s verdict. See Ovalle, 13 S.W.3d at 787. Like the court in Cosío, we conclude that “[o]n this record, therefore, it is logical to suppose that the jury unanimously agreed that [Saenz] committed all of the separate instances of criminal conduct during each of the [five] incidents.” 353 S.W.3d at 778. We similarly conclude the evidence supports “the jury’s verdicts [on the five victims alleged in Count VI] were, in fact, unanimous.” Id. The mere existence of conflicting testimony surrounding a contested issue does not necessarily trigger a finding of egregious harm. See Olivas v. State, 202 S.W.3d 137, 148-49 (Tex.Crim.App.2006) (suggesting that contested evidence may, but does not necessarily, give rise to finding of egregious harm). To warrant reversal, the record must show actual rather than theoretical harm. See Nava v. State, 415 S.W.3d 289, 298 (Tex.Crim.App.2013). As a result, we. conclude that the state of the evidence in this case, and the entirety of the record, weigh heavily against a finding of actual harm. See Arrington, 451 S.W.3d at 842, 844 (jury’s rejection of defendant’s categorical denial of all accusations weighed against a finding of egregious harm in connection with the lack of a unanimity instruction); see also Nava, 415 S.W.3d at 298. We, therefore, cannot conclude the omission of a unanimity instruction affected the very basis of the case, deprived Saenz of the valuable right of a unanimous verdict, or vitally affected her defensive theory so as to deprive her of a fair trial. See Allen, 253 S.W.3d at 264; Fulcher, 274 S.W.3d at 716. Accordingly, because we do not find the record establishes actual, egregious harm as a result of the error in the jury charge, we affirm the trial court’s judgment.