Saenz, Kimberly Clark , 2014 Tex. Crim. App. LEXIS 1915 ( 2014 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
PD-0253-14
KIMBERLY SAENZ, Appellant
v.
THE STATE OF TEXAS
ON DISCRETIONARY REVIEW
FROM THE FOURTH COURT OF APPEALS
ANGELINA COUNTY
Womack, J., delivered the opinion of the Court, in which Keller, P.J., and
Price, Johnson, Hervey, Cochran, and Alcala, JJ., joined. Keasler, J.,
concurred in the judgment. Meyers, J., dissented.
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
2
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.1
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.” 2
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
1
Saenz v. State, 421 S.W.3d 725 (Tex. App. – San Antonio 2014).
2
Emphasis added.
3
don’t have to agree as to which two.” 3
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.4 More
specifically, “the jury must be unanimous in finding every constituent element of the
charged offense in all criminal cases.” 5
The capital-murder statute requires a predicate murder as defined under Section
19.02(b)(1) and any one of nine additional aggravating circumstances.6 “When an
indictment alleges differing methods of committing capital murder in the conjunctive, the
jury may properly be charged in the disjunctive.”7 “The unanimity requirement is not
violated by instructing the jury on alternate theories of committing the same offense, in
3
Emphasis added.
4
TEX . CODE CRIM . PRO . art. 36.29.
5
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)).
6
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
caus[ing] the death of an individual.”
7
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)).
4
contrast to instructing the jury on two separate offenses involving separate incidents.” 8 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.” 9
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 ….”10 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.” 11
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.”
8
Id.
9
Cosio v. State, 353 S.W.3d 766, 776 (Tex. Crim. App. 2011).
10
Gardner v. State, 306 S.W.3d 274, 302 (Tex. Crim. App. 2009).
11
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).
5
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 19.03(a)(7)(A).”12 Although that case dealt specifically with
subsection (A), we have held that the same interpretation applies to both subsections (A)
and (B) of Section 19.03(a)(7).13 Phrased another way, under both subsections the
allowable unit of prosecution is “the killing of more than one individual.” 14
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.15 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
12
166 S.W.3d 270, 273 (Tex. Crim. App. 2005) (emphasis added).
13
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”).
14
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)).
15
Saenz, 166 S.W.3d at 271.
6
used to establish separate capital-murder convictions.16 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.17 We held that only
one of the capital-murder convictions could be upheld, “[b]ecause 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 same penal code sections.” 18 As in John William Saenz, there was
no fact question of whether the applicant committed all three attacks; he pleaded guilty to
16
Id. at 274.
17
Milner, 394 S.W.3d at 504.
18
Id. at 510.
 7
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.19 We therefore vacate the
19
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
8
judgment of the Court of Appeals and remand the case to that Court for further
proceedings not inconsistent with this opinion.
Delivered December 10, 2014.
Publish.
egregious harm under Almanza.”).