HOUSTON — The state’s top criminal appeals court agreed Wednesday to review whether a former East Texas nurse was properly convicted of capital murder and sentenced to life in prison without parole for killing five dialysis patients by injecting them with bleach.
The Texas Court of Criminal Appeals said it will consider written arguments on whether the jury instructions at Kimberly Saenz’s 2012 trial may have failed to require a unanimous agreement on exactly which individuals Saenz killed at a clinic in Lufkin.
Saenz’s attorneys argued a jury must unanimously agree on the identity and the number of murder victims to support the capital murder charge.
The San Antonio-based 4th Texas Court of Appeals earlier this year said Saenz was properly convicted and sentenced. Her attorneys then took the case to the Court of Criminal Appeals, which ultimately could order a new trial for Saenz, 40.
“We’re real happy,” Robert Morrow, an attorney for Saenz, said. “It’s pretty important. I think this is proper.”
Morrow has 30 days to file a brief with the court. Prosecutors will have the opportunity to respond before the court acts.
“This is more of a legal question than it is a factual question,” said Clyde Herrington, the now retired Angelina County district attorney who prosecuted Saenz. “One of the things I think really significant is that there was no objection to the court charge from the defense (at the time of the trial).”
Herrington said it’s possible the jury charge question raised by Morrow is one never raised previously to the Court of Criminal Appeals.
“They may not feel the (lower) appeals court ruled properly or they feel it’s an important question and the Court of Criminal Appeals needs to rule, or it could mean a conflict between two or more courts of appeal because no other court has ruled on a court’s charge with multiple victims like our situation,” he said. “And I think that’s what they’re doing.”
The court offered no explanation. Saenz’s case was among a large number listed Wednesday only by name on the court’s regular weekly list.
Saenz was convicted of killing patients at the Lufkin clinic run by Denver-based health care giant DaVita Inc. She also received three 20-year terms for aggravated assault in the cases of five other patients at the clinic about 125 miles northeast of Houston. Her trial lawyers contended Saenz wrongly took the blame for sloppy procedures at the clinic, where bleach was a commonly used disinfectant.
The health care company DaVita denied the accusations.
Jurors could have sentenced her to death but the prosecutor never specifically urged them to do so. Evidence showed Saenz previously was found with stolen drugs while she was working as a hospital nurse and tried to fake a urine test that was required of her. She was fired from the clinic in 2008 after a rash of illnesses and deaths.
Two patients testified they saw her inject bleach into the IV lines of two other patients, were terrified by what they saw and feared for their own lives.