Kimberly Clark Saenz v. State ( 2015 )

ACCEPTED
04-12-00238-CR
FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
9/8/2015 2:14:46 PM
KEITH HOTTLE
CLERK
NO. 04-12-00238-CR
IN THE FOURTH COURT OF APPEALS
FOR THE STATE OF TEXAS, SITTING IN SAN ANTONIO
KIMBERLY SAENZ, Appellant
VS.
THE STATE OF TEXAS, Appellee
On Remand from the Court of Criminal Appeals in Cause No. PD-0253-14
Appeal from the 217th Judicial District Court
of Angelina County, Texas, in Cause No. CR-28,665
APPELLANT’S MOTION FOR EN BANC RECONSIDERATION
ROBERT A. MORROW
SBN: 14542600
24 Waterway Ave., Suite 660
The Woodlands, Texas 77380
Tel. 281-379-6901
Fax 281-813-0321
ORAL ARGUMENT REQUESTED Heather M. Lytle
SBN: 24046487
202 Travis Street, Suite 300
Houston, Texas 77002
Tel. 713-204-7060
Amy D. Martin
SBN: 24041402
202 Travis Street, Suite 300
Houston, Texas 77002
Tel. 713-320-3525
IDENTITY OF PARTIES AND COUNSEL
APPELLANT: KIMBERLY SAENZ
Trial Counsel: T. Ryan Deaton Stephen C. Taylor
103 E. Denman P.O. Box 293
Lufkin, TX 75901 Conroe, TX 77305-0293
Tel. 936-637-7778 Tel. 800.223.8308
Appellate Counsel: Robert A. Morrow III Amy D. Martin
24 Waterway Avenue 202 Travis Street
Suite 660 Suite 300
The Woodlands, TX 77380 Houston, TX 77002
Tel. 281-379-6901 Tel. 713-320-3525
Heather M. Lytle
202 Travis Street
Suite 300
Houston, TX 77002
Tel. 713-204-7060
APPELLEE STATE OF TEXAS
Trial Counsel: Clyde M. Herrington Christopher Tortorice
Layne Thompson Asst. U.S. Atty.
Angelina Co. Dist. Atty. 110 N. College
P.O. Box 908 Suite 700
Lufkin, TX 75902-0908 Tyler, TX 75702
Tel. 936-632-5090 Tel. 936-590-1400
Appellate Counsel: Angelina Co. Dist. Atty. Ofc.
Appellate Division
P.O. Box 908
Lufkin, TX 75902-0908
Tel. 936-632-5090
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TABLE OF CONTENTS
Page No.
IDENTITY OF PARTIES AND COUNSEL ............................................................. i
TABLE OF AUTHORITIES .................................................................................... iii
STATEMENT OF THE CASE...................................................................................1
EN BANC RECONSIDERATION ............................................................................1
Lack of uniformity ...................................................................................................2
Extraordinary circumstances ..................................................................................3
PRAYER ....................................................................................................................7
CERTIFICATE OF COMPLIANCE .........................................................................8
CERTIFICATE OF SERVICE ...................................................................................8
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TABLE OF AUTHORITIES
Page No.
Cases
Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) .........................1, 5
Ansari v. State, No. 04-14-00728-CR, 2015 WL 4638286 (Tex. App. Aug. 5,
2015)(not designated for publication) .........................................................2,3
Carroll v. State, 101 S.W.3d 454 (Tex. Crim. App. 2003) ......................................5
Granviel v. State, 723 S.W.2d 141 (Tex. Crim. App. 1986) ...................................5
Robison v. State, 888 S.W.2d 473 (Tex. Crim. App. 1994) ....................................5
Saenz v. State, 421 S.W.3d 725 (Tex. App.—San Antonio), petition for
discretionary review granted (May 14, 2014), vacated, 451 S.W.3d 388
(Tex. Crim. App. 2014), reh'g denied (Jan. 28, 2015) ....................................4
Saenz v. State, 451 S.W.3d 388 (Tex. Crim. App. 2014) ........................................1
Saenz v. State, No. 04-12-00238-CR, 2015 WL 5037969 (Tex. App. Aug. 26,
2015)(not designated for publication) ........................................................1, 4
Warner v. State, 245 S.W.3d 458, 462 (Tex. Crim. App. 2008) ..............................3
Rules
Texas Rule of Appellate Procedure 41.2.................................................................2
Texas Rule of Appellate Procedure 49.7.................................................................1
Texas Rule of Appellate Procedure 9.4...................................................................8
iii
STATEMENT OF THE CASE
Appellant Kimberly Clark Saenz relies upon and incorporates the Statements
of the Case presented in all prior pleadings she has filed. Appellant has also filed a
Motion for Rehearing in which a more detailed recitation of the facts can be found.
On December 10, 2014, the Court of Criminal Appeals held that this Court
erred in finding no error in the jury charge because the charge allowed for a non-
unanimous verdict by failing to require unanimous agreement on the victim of the
predicate murder on which the capital murder charge was based1. Saenz v. State, 451
S.W.3d 388 (Tex. Crim. App. 2014).
The Court of Criminal Appeals remanded the case to this Court to conduct a
harm analysis under the Almanza standard, because Ms. Saenz’ did not object to the
charge error2. Id.
EN BANC RECONSIDERATION
On August 26, 2015 this Court, by a Panel of only 2 Justices, held that the
error was not harmful. Appellant files this Motion for En Banc Reconsideration
pursuant to Texas Rule of Appellate Procedure 49.7.
1
This case was a death penalty case in which the jury imposed a life sentence. Therefore, the case
was appealed to this Court.
2
The lack of objection to the charge and to the prosecutor’s argument were two of the issues
Appellant argued to be evidence of ineffective assistance of counsel. Ultimately, Counsel did file
a Motion for New Trial in which he argued that the charge was fatally flawed. CR 8:3150-3267.
1
Although disfavored, en banc consideration is proper if “necessary to secure
or maintain uniformity of the c o u r t ’ s d e c i s i o n s o r unless extraordinary
circumstances require en banc consideration.” Texas Rule of Appellate
Procedure 41.2(c). In Appellant’s case, both reasons are applicable.
This Court decided a case three weeks prior to Appellant’s that exhibits a lack
of uniformity in the Court’s opinions on the same issue. This was a death penalty
case with a life without parole verdict. Appellant’s crime was based upon the murder
of multiple victims. The Court of Criminal Appeals reversed this Court and held
that Appellant was denied her right to a unanimous verdict because the jurors were
told they did not need to render a unanimous verdict.
Lack of uniformity
Three weeks before this opinion was handed down, a 3 Justice Panel (2 of
whom decided this case) decided Ansari v. State, No. 04-14-00728-CR, 2015 WL
4638286 (Tex. App. Aug. 5, 2015)(not designated for publication). At trial, Ansari
was denied a requested jury charge on unanimity and this Court found it to be
harmful error. Because the objection was preserved at trial, Ansari had to show
“some harm.”
Reviewing a jury instruction and argument very similar to Appellant’s, the
Court found that both “weigh in favor of a finding of some harm.” Ansari at *3.
2
The Court concluded: “The contradictions in the evidence between the only
two witnesses and law enforcement, as well as the photographs—impeaching the
testimony of the eyewitnesses—weigh in favor of a finding of some harm.” Ansari
at *5.
In Appellant’s case, the prosecutor explicitly told the jury they did not have
to agree on the same victims. In Ansari, the prosecutor’s argument only “suggested
to each individual juror the he or she could find Ansari guilty if he or she believed
either assault occurred—without agreement.” Ansari at *4.
This Court found it harmful that “there is no way to know whether the jurors
all believed one of the assaults occurred or whether some believed one occurred and
some believed another occurred.” Id.
However, the 2 Justice Panel reviewing Appellant’s case concluded that it was
harmless when each juror was explicitly told they only had to believe Appellant
killed two victims—any two.
The standard for the harm analysis is different in the two cases. However, the
Court pointed out that it was still required to find “actual, rather than merely
theoretical, harm from the error.” Id .at *3. (quoting Warner v. State, 245 S.W.3d
458, 462 (Tex. Crim. App. 2008)).
Extraordinary circumstances
This Court should reconsider Appellant’s case en banc because it concerns an
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issue that goes directly to a defendant’s fundamental rights, only 2 Justices
participated in the case on remand, the use of the “law of the case” doctrine is
questionable, and this case is exceedingly complicated and a more reliable finding
will be reached with evaluations of the records from multiple justices.
And then there were two
Appellant was denied her right to a unanimous verdict because of a flawed
jury charge. However, upon initial review, a Panel of 3 Justices did not believe there
was an error with the charge3. The Court of Criminal Appeals remanded the case in
order for this Court, presumably by the same Panel of 3 Justices, to conduct a harm
analysis. However, the Chief Justice had retired by the time the case was remanded
and only 2 Justices participated in the case.
Although both the jury charge and argument of counsel
weigh in favor of egregious harm, we conclude the state of
the evidence and the record as a whole substantially
support a finding of guilt with regard to each of the five
capital murder victims. Accordingly, we hold the record
does not establish egregious harm, and we affirm the trial
court's judgment.
Saenz v. State, No. 04-12-00238-CR, 2015 WL 5037969, at *1 (Tex. App. Aug. 26,
2015)(not designated for publication).
3
The first time Ms. Saenz case was before this Court, the Panel consisted of Chief Justice Catherine
Stone, The Honorable Marialyn Barnard and The Honorable Patricia O. Alvarez. Saenz v. State,
421 S.W.3d 725, 733 (Tex. App.—San Antonio), petition for discretionary review granted (May
14, 2014), vacated, 451 S.W.3d 388 (Tex. Crim. App. 2014), reh'g denied (Jan. 28, 2015).
4
Two of the factors supported a finding of egregious harm, so the Court looked
to “‘the state of the evidence’ and “‘all other relevant information in the record
remaining cognizant this case was highly circumstantial.’” Almanza v. State, 686
S.W.2d 157, 171 (Tex. Crim. App. 1985).
Despite the initial and repeated assertion that 2 of the factors “weighed in
favor of egregious harm,” the incomplete Panel reviewed the record in such a way
that the violation of Appellant’s right was determined to be harmless.
The 2 Justices’ recitation of the evidence is incomplete. The Court made it
very clear that much of the evidence was circumstantial, yet it only seems to consider
the State’s version of the circumstances.
The Panel argued that “the rule of the case” doctrine allowed it to proceed
with its analysis as if Appellant agreed with any factual and legal determination in
its previous (3 Justice Panel) opinion if that determination was not disputed in her
Petition for Discretionary Review.
That doctrine applies where there has been a legal determination by a court of
last resort. Robison v. State, 888 S.W.2d 473, 485 (Tex. Crim. App. 1994); Granviel
v. State, 723 S.W.2d 141, 147 (Tex. Crim. App. 1986).
A remand to a court of appeals is not a “subsequent appeal” and the law of the
case doctrine is inapplicable. Carroll v. State, 101 S.W.3d 454, 461 (Tex. Crim.
5
Ohio App. 2003). The Panel incorrectly applied this doctrine when evaluating the record
as a whole and found that the error was harmless:
Although Saenz argues this is a question of highly contested evidence
like in Ngo, we disagree. The evidence adduced at trial, and this court’s
analysis thereof and conclusions therefrom were not contested by Saenz
in the petition for discretionary review she filed with the Court of
Criminal Appeals.
Reconsideration by the entire Court would enable all of the Justices to discuss
and examine the case to determine the proper basis for analyzing harm.
Flawed doctrine, flawed decision
Because of this mistaken reliance on the “law of the case” doctrine, the Panel
found that, although the error that had been “emphasized” and the argument weighed
“in favor of egregious harm,” the more nebulous and subjective factors in the
standard were determinative.
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PRAYER
WHEREFORE, PREMISES CONSIDERED, Ms. Saenz respectfully requests
that this Court, sitting en banc, withdraw the Panel Opinion, and find that the denial
of Ms. Saenz’ right to a unanimous verdict was harmful.
Respectfully submitted,
_______________________
Robert A. Morrow
ROBERT A. MORROW
SBN: 14542600
24 Waterway Ave., Suite 660
The Woodlands, Texas 77380
Tel. 281-379-6901
Fax 281-813-0321
Heather M. Lytle
SBN: 24046487
202 Travis Street, Suite 300
Houston, Texas 77002
Tel. 713-204-7060
Amy D. Martin
SBN: 24041402
202 Travis Street, Suite 300
Houston, Texas 77002
Tel. 713-320-3525
ATTORNEYS FOR APPELLANT
KIMBERLY CLARK SAENZ
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CERTIFICATE OF COMPLIANCE
I certify that this Motion for En Banc Reconsideration complies with Texas
Rule of Appellate Procedure 9.4. It was prepared in 14-point Times New Roman
font. In its entirety, it contains 1,952 words.
_______________________
Robert A. Morrow
ROBERT A. MORROW
CERTIFICATE OF SERVICE
This is to certify that on the September 8, 2015, a true and correct copy of the
foregoing instrument was served upon counsel for the State electronic service.
________________________
Robert A. Morrow
ROBERT A. MORROW
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