Ana Maria Gonzalez-Angulo v. State ( 2015 )

ACCEPTED
01-14-00886-CR
FIRST COURT OF APPEALS
HOUSTON, TEXAS
10/14/2015 9:12:40 AM
No. 01-14-00886-CR CHRISTOPHER PRINE
CLERK
In the
Court of Appeals
For the
First District of Texas FILED IN
1st COURT OF APPEALS
At Houston HOUSTON, TEXAS
♦ 10/14/2015 9:12:40 AM
No. 1389543 CHRISTOPHER A. PRINE
Clerk
In the 248th District Court
Of Harris County, Texas
♦
ANA MARIA GONZALEZ-ANGULO
Appellant
V.
THE STATE OF TEXAS
Appellee
♦
STATE’S APPELLATE BRIEF
♦
DEVON ANDERSON
District Attorney
Harris County, Texas
ERIC KUGLER
Assistant District Attorney
Harris County, Texas
TBC No. 796910
kugler_eric@dao.hctx.net
JUSTIN KEITER
NATHAN HENNIGAN
Assistant District Attorneys
Harris County, Texas
1201 Franklin, Suite 600
Houston, Texas 77002
Tel: (713) 755-5826
FAX: (713) 755-5809
Counsel for Appellee
ORAL ARGUMENT REQUESTED ONLY IF GRANTED TO APPELLANT
STATEMENT REGARDING ORAL ARGUMENT
Pursuant to TEX. R. APP. P. 39, the State requests oral argument only if oral
argument is granted to the appellant.
IDENTIFICATION OF THE PARTIES
Counsel for the State:
Devon Anderson  District Attorney of Harris County
Eric Kugler  Assistant District Attorney on appeal
Justin Keiter; Nathan Hennigan  Assistant District Attorneys at trial
Appellant or criminal defendant:
Ana Maria Gonzalez-Angulo
Counsel for Appellant:
Barbara Drumheller  Counsel on appeal
Derek Hollingsworth; Andy Drumheller  Counsel at trial
Trial Judge:
Hon. Katherine Cabaniss  Presiding Judge
i
TABLE OF CONTENTS
Page
STATEMENT REGARDING ORAL ARGUMENT ................................................i
IDENTIFICATION OF THE PARTIES ....................................................................i
INDEX OF AUTHORITIES.................................................................................... iii
STATEMENT OF THE CASE .................................................................................. 1
STATEMENT OF FACTS ........................................................................................ 1
REPLY TO APPELLANT’S SECOND AND THIRD POINTS OF ERROR ....... 32
A rational jury could have found beyond a reasonable doubt that the appellant
committed the aggravated assault of a person with whom she had been in a
dating relationship. ...............................................................................................32
REPLY TO APPELLANT’S FIRST POINT OF ERROR ...................................... 41
The trial court did not abuse its discretion in denying the appellant’s motion for
new trial based on alleged newly discovered evidence because it could have
disbelieved the new evidence and believed Blumenschein’s affidavit, which
contradicted much of the allegedly new evidence. ..............................................43
REPLY TO APPELLANT’S FOURTH POINT OF ERROR................................. 48
A. DeSilva had a strong basis for identifying the appellant and there were
numerous pieces of evidence to connect the appellant to the anonymous
GlaxoSmithKline caller even without DeSilva’s identification...........................49
B. The appellant was not harmed by the admission of her voice identification
because other evidence linked her to the GlaxoSmithKline investigation, and that
investigation related to a collateral issue in the case. ..........................................54
CONCLUSION ........................................................................................................57
CERTIFICATE OF SERVICE AND COMPLIANCE ........................................... 58
ii
INDEX OF AUTHORITIES
CASES
Adams v. State,
397 S.W.3d 760 (Tex. App.—
Houston [14th Dist.] 2013, no pet.)............................................................... 49, 51
Aviles-Barroso v. State,
14-14-00142-CR, 2015 WL 5157472 (Tex. App.—
Houston [14th Dist.] Aug. 27, 2015, no. pet. h.)........................................... 49, 50
Barley v. State,
906 S.W.2d 27 (Tex. Crim. App. 1995) ...............................................................49
Brooks v. State,
323 S.W.3d 893 (Tex. Crim. App. 2010) .............................................................33
Chambers v. State,
805 S.W.2d 459 (Tex. Crim. App. 1991) .............................................................33
Coffin v. State,
885 S.W.2d 140 (Tex. Crim. App. 1994) .............................................................48
Colyer v. State,
428 S.W.3d 117 (Tex. Crim. App. 2014) .............................................................42
Conner v. State,
67 S.W.3d 192 (Tex. Crim. App. 2001) ........................................................ 48, 49
Davis v. State,
180 S.W.3d 277 (Tex.App.—
Texarkana 2005, no pet.) ......................................................................................50
Green v. State,
934 S.W.2d 92 (Tex. Crim. App. 1996) ...............................................................48
Guzman v. State,
955 S.W.2d 85 (Tex. Crim. App. 1997) ...............................................................48
Halton v. State,
05-14-00640-CR, 2015 WL 3991827 (Tex. App.—
Dallas July 1, 2015, no pet.) .................................................................................35
iii
Holden v. State,
201 S.W.3d 761 (Tex. Crim. App. 2006) .............................................................42
Huffman v. State,
775 S.W.2d 653 (Tex. App.—
El Paso 1989, pet. ref’d) .......................................................................................35
Ibarra v. State,
11 S.W.3d 189 (Tex. Crim. App. 1999) ........................................................ 49, 51
Jackson v. Virginia,
443 U.S. 307319 (1979) .......................................................................... 32, 37, 40
Johnson v. State,
871 S.W.2d 183 (Tex. Crim. App. 1993) .............................................................34
Keeter v. State,
74 S.W.3d 31 (Tex. Crim. App. 2002) .................................................................42
King v. State,
29 S.W.3d 556 (Tex. Crim. App. 2000) ...............................................................33
Lewis v. State,
911 S.W.2d 1 (Tex. Crim. App. 1995) .......................................................... 43, 45
McCarthy v. State,
65 S.W.3d 47 (Tex. Crim. App. 2001) .................................................................54
Neil v. Biggers,
409 U.S. 188 (1972) ...................................................................................... 49, 50
Okonkwo v. State,
398 S.W.3d 689 (Tex. Crim. App. 2013) ...................................................... 43, 45
Palomo v. State,
352 S.W.3d 87 (Tex. App.—
Houston [14th Dist.] 2011, pet. ref’d) ..................................................................35
Santos v. State,
116 S.W.3d 447 (Tex. App.—
Houston [14th Dist.] 2003, pet. ref’d) ..................................................................49
Stobaugh v. State,
421 S.W.3d 787 (Tex. App.—
Fort Worth 2014) ..................................................................................................38
Wall v. State,
184 S.W.3d 730 (Tex. Crim. App. 2006) .............................................................54
iv
Wallace v. State,
106 S.W.3d 103 (Tex. Crim. App. 2003) ...................................................... 43, 47
Webb v. State,
232 S.W.3d 109 (Tex. Crim. App. 2007) .............................................................42
Wesbrook v. State,
29 S.W.3d 103 (Tex. Crim. App. 2000) ...............................................................54
Will. v. State,
116 S.W.3d 788 (Tex. Crim. App. 2003) .............................................................50
STATUTES
TEX. CODE CRIM. PROC. art. 40.001 (West 2012) ....................................................43
TEX. FAMILY CODE § 71.0021(b) (West 2010) ........................................... 33, 34, 40
TEX. FAMILY CODE § 71.0021(c) (West 2010) ........................................................33
TEX. PENAL CODE § 1.07 (West 2010).....................................................................33
TEX. PENAL CODE § 22.02(b)(1) (West 2010) .........................................................33
TEX. PENAL CODE § 37.02 (West 2012) ...................................................................46
RULES
TEX. R. APP. P. 39....................................................................................................... i
TEX. R. APP. P. 44.2(a) .............................................................................................54
TEX. R. EVID. 401 .....................................................................................................44
v
TO THE HONORABLE COURT OF APPEALS:
STATEMENT OF THE CASE
The appellant was charged with the aggravated assault of her boyfriend,
George Blumenschein, by poisoning him with ethylene glycol on January 27, 2013
(CR – 23). She pled “not guilty” to the charge, and the case was tried to a jury (CR
– 155). The jury found her guilty and assessed punishment at ten years in prison
on September 29, 2014 (CR – 155). The appellant filed notice of appeal one
month later, and the trial court certified that she had the right to appeal (CR – 158,
160).
STATEMENT OF FACTS
George Blumenschein was a medical oncologist at MD Anderson Cancer
Center (RR. VI – 148-149) (RR. IX – 145). His supervisor was Bonnie Glisson, a
professor of medicine at MD Anderson (RR. VII – 99-101). Blumenschein did his
fellowship at MD Anderson in 1997 (RR. IX – 139). That same year, he met
Evette Toney, and the two started dating; however, she then moved to Boston to
earn a master’s degree (RR. V – 176) (RR. IX – 149-150) (RR. X – 251-252).
Toney returned to Houston in 2003 to pursue her doctorate in clinical
epidemiology, and the couple resumed their relationship (RR. IX – 150-151) (RR.
X – 252). Toney lived with Blumenschein for a few months before getting her
own apartment (RR. IX – 152).
In 2007, Blumenschein bought a house and asked Toney to move in with
him; she did (RR. IX – 153) (RR. X – 254). Toney wanted to get married, but
Blumenschein was not on the same page, so she bought her own house in 2009 and
moved out (RR. IX – 153-154) (RR. X – 256-257). Blumenschein asked her to
return to his home, and she did so in late 2009 or early 2010 (RR. IX – 154) (RR.
X – 257). Blumenschein was in good health and had no liver or kidney problems
at that time (RR. IX – 248-249).
The appellant was also a physician and breast oncologist at MD Anderson
(RR. V – 77) (RR. VII – 102-103). She was married, and she and her husband
were trying a have a child through in vitro fertilization (IVF) (RR. XII – 51). But
the side effects of IVF were very difficult on her, and the implantation did not
work (RR. XII – 51).
In 2004, the appellant called Blumenschein and asked him to take over the
care of a patient who had previously seen Blumenschein’s father, who was also a
physician (RR. IX – 148, 156). Blumenschein did not interact with the appellant
again until 2008, when she invited a group of physicians to a cancer conference in
Columbia (RR. IX – 156). Blumenschein went to the conference and thought that
the appellant was “very nice.” (RR. IX – 157). During one of his trips to
2
Columbia, Blumenschein and the appellant toured a coffee plantation and learned
that the way to experience coffee was to take it black and not adulterate it with
anything else (RR. IX – 181). And that is the way that Blumenschein would drink
his coffee (RR. IX – 180) (RR. X – 275) (RR. XII – 28).
Eventually, the appellant and Blumenschein collaborated on a potential
clinical trial targeting a cancer cell that involved both lung and breast cancer (RR.
IX – 157-158). Blumenschein told her that he wanted to learn how to write grants,
and the appellant volunteered to teach him (RR. IX – 158). In December 2010, the
appellant wrote him an email that said: “Love to work with you on these
grants…P.S.…I’ve seen how you…seem to really like children. I think you’d be a
great dad. You should have kids.” (RR. IX – 159). One day the appellant held up
her hand for Blumenschein to see that she had no ring (RR. IX – 160). She told
him that she was getting a divorce (RR. IX – 160). But she also knew that he was
in a long-term relationship with Toney (RR. IX – 159-160) (RR. XII – 52-53).
Around March 2011, the appellant and Blumenschein were working on a
grant in Blumenschein’s office (RR. IX – 161). They were both looking at the
same computer when the appellant insisted that she sit on Blumenschein’s knee
(RR. IX – 161). She then advanced the relationship and started lying on his
shoulders and kissing him on the neck (RR. IX – 162). He said “no,” but the
appellant did not accept that answer (RR. IX – 162). The appellant said that she
3
loved him like a brother, but he insisted that she was touching too much (RR. IX –
163). She said that it was a cultural thing from Columbia (RR. IX – 163).
Around September 2011, they had both travelled to Stockholm when the
appellant performed oral sex on Blumenschein (RR. IX – 163-164). They started
to have an affair despite the fact that Blumenschein repeatedly told her that it was a
bad idea (RR. IX – 164-165, 167). At one point, the appellant said, “I’d have a kid
with you…No, no, no. I can have a kid with you. I could move to Europe for a year
and I could come back and you could be the uncle.” (RR. IX – 166). The appellant
rejected that offer, but the appellant responded, “Well, you better think about it and
do it soon because I don’t have lot of time.” (RR. IX – 166, 171). The appellant
also complained that they never took the relationship further than oral sex; they
never had sexual intercourse, and the appellant was disappointed about that (RR.
IX – 168-169).
Professionally, the appellant and Blumenschein were doing well because
they were generating interest among pharmaceutical companies (RR. IX – 172).
But working together was difficult due to increasing demands (RR. IX – 193).
And their behavior aroused suspicions in the office, especially with Glisson (RR.
VII – 103-104, 175-176, 236-239). But when Glisson and other coworkers
confronted Blumenschein about the apparent affair, he denied it (RR. VII – 104,
113, 238-239). Nevertheless, the appellant did reveal the affair to one of her
4
closest friends at MD Anderson, another breast medical oncologist named Jennifer
Litton (RR. XII – 54).
The appellant bought Blumenschein many expensive gifts, which he did not
want (RR. IX – 176-179) (RR. X – 274-275). And she would often copy his style,
buying the same brand of luggage, the same brand of watch, and the same kind of
Porsche (RR. IX – 255) (RR. X – 7-8). She named him in her will, and he was one
of her two executors (RR. VII – 299-301) (RR. X – 26) (St. Ex. 31). She would
also tell her coworkers that Blumenschein had been “good” to her, that he was her
best friend in the United States, and that she “cared for him.” (RR. VII – 176, 237-
239). One coworker thought that the appellant had a crush on Blumenschein (RR.
VII – 230).
When they traveled together to conferences, the appellant would sometimes
say, “Oh, there’s no rooms [sic] left. If you want to come to this conference, you’ll
have to split a room with me. You’ll save money. Don’t worry about it.” (RR. X –
12). But sometimes the appellant was lying about those circumstances (RR. X –
13).
In December 2011, the appellant confronted Blumenschein about her
suspicions that he was adopting a child (RR. IX – 174). It turned out that
Blumenschein was merely acting as a reference for a friend who was adopting
(RR. IX – 173-175). Nevertheless, that confrontation bothered Blumenschein
5
because those reference lists were supposed to be confidential, and he wondered
how the appellant obtained access to it (RR. IX – 175).
In May 2012, Toney told Blumenschein that she wanted to take the next step
in their relationship, which meant having a family (RR. IX – 215-217) (RR. X –
265). Toney became pregnant with twins through IVF and was placed on bedrest
during that summer (RR. IX – 217) (RR. X – 265-266). While she was on bedrest,
she allowed her sister to drive her company car, which was not allowed by her
employer, GlaxoSmithKline (RR. IX – 218-219) (RR. X – 266, 268-270). When
Toney’s sister was involved in an accident, Toney became worried because she did
not have a doctor’s note ordering her not to drive (RR. IX – 219) (RR. X – 270-
271). Blumenschein shared these concerns with the appellant without mentioning
the pregnancy, and the appellant wrote a fraudulent note for Toney even though the
appellant was not her physician and despite the fact that Blumenschein refused the
offer (RR. VII – 194-195) (RR. IX – 220-224) (RR. X – 272). Toney gave the
appellant’s note to her employer even though it was a lie (RR. IX – 223-224) (RR.
X – 273) (St. Ex. 18).
Toney miscarried her twins in September 2012 (RR. IX – 226) (RR. X –
272). Blumenschein finally told the appellant about Toney’s pregnancy and
miscarriage in October 2012 (RR. IX – 226-229). Around that time, Litton noticed
that the appellant was more agitated, more tearful, and more prone to anger than
6
she had been in the past (RR. XII – 57, 59). Other coworkers also noted that the
appellant became very emotional and would often cry (RR. VII – 188, 199). She
told one of them that Blumenschein wasn’t eating again and that he needed to start
eating; she also mentioned IVF during that same phone call (RR. VII – 199-200).
Litton was concerned about the appellant and encouraged her to seek counseling
(RR. XII – 59).
Blumenschein and Toney drove to his parents’ house in Arlington for
Thanksgiving 2012 (RR. IX – 183-185). When they returned, there was an
anonymous letter addressed to Toney (RR. IX – 186) (RR. X – 277). It said
something like, “He’s interfering in my working life. She’s interfering in your
personal life. We should meet to discuss this, and we should do this before—
because things will become more complicated with Ana’s impending
pregnancy…Meet me at Starbucks Tuesday at noon.” (RR. IX – 187) (RR. X –
277-278). Both Toney’s name and the appellant’s name were misspelled in the
note (RR. IX – 187). Toney asked Blumenschein if he was having an affair with
the appellant, but he denied it, and she believed him (RR. X – 278).
Blumenschein talked about the note with both Toney and the appellant, but
he could not go to Starbucks on Tuesday at noon because he had a clinic (RR. IX –
187-188, 191). When Blumenschein showed the note to the appellant, she told him
that it was just someone trying to mess with his head (RR. IX – 189-190) (RR. X –
7
279). He did not call the police because he did not see the note as overtly
threatening (RR. IX – 189). And no one went to Starbucks (RR. IX – 191) (RR. X
– 280).
The appellant told Blumenschein that she received an anonymous phone call
at MD Anderson saying, “You better leave him alone. You better stop working
with him. This is a warning.” (RR. IX – 192). She said it was “somebody trying to
mess with my head…they must be jealous of us being successful. Don’t worry
about it.” (RR. IX – 192). According to the phone records, there was no evidence
of any such anonymous calls around either November 20 or December 11 (RR.
VIII – 272, 274).
On December 17, 2012, a coworker told Blumenschein to call the appellant,
which he did; the appellant stated that she had been attacked at her home, beaten,
and thrown to the ground (RR. IX – 194). The appellant said that someone buzzed
her intercom to let her know that her mailbox was open but that when she went to
close it, a black man and a black woman grabbed her, threw her to the ground,
kicked her repeatedly, said, “You better stop working with him,” and then ran
away (RR. VII – 77-78, 244-247) (RR. IX – 195) (RR. X – 286) (RR. XII – 62-63).
Blumenschein insisted that she call the police, but she refused (RR. VII – 245-246)
(RR. IX – 195-196) (RR. XII – 64). He drove over to her house and did not see
any injuries consistent with such an assault, and neither did her coworkers (RR.
8
VII – 212, 252) (RR. IX – 197-198, 204) (RR. X – 282, 284) (RR. XII – 63-64).
Furthermore, the appellant wrote a cogent and coherent email dealing with an MD
Anderson study less than fifteen minutes after the alleged attack occurred; there
was no mention of the assault in that email nor any hint that a traumatic event had
just occurred (RR. IX – 19-21) (St. Ex. 134). When Blumenschein returned home,
Toney confronted him about what was going on, but he said nothing about the
affair (RR. IX – 202).
The next day, the appellant asked if she could stay with Blumenschein and
Toney because she was afraid (RR. IX – 203-204) (RR. X – 283). When the
appellant arrived at their house, the three talked about possible suspects (RR. IX –
205). The appellant suggested it was another doctor named Funda Meric-Bernstam
who was supposedly jealous of their research (RR. IX – 205) (RR. X – 284). Such
an accusation was odd because the appellant was apparently close friends with
Meric-Bernstam, who was a surgical oncologist at MS Anderson (RR. V – 74, 93).
The appellant said that she was going to investigate Meric-Bernstam (RR. IX –
205). She said that she was having two bodyguards fly in from Colombia that
Friday who were going to get permits for guns (RR. IX – 206) (RR. X – 285). A
couple of weeks later, the appellant added to the story, claiming that the assailants
said, “Oh, and you won’t be having his baby.” (RR. IX – 198).
9
Blumenschein continued to push the appellant to make a police report, even
while the two went to San Francisco for an advisory board meeting, and she
eventually agreed to go when they returned to Houston if Blumenschein would
accompany her (RR. VII – 82) (RR. IX – 207-210). The appellant made her report
at the City of Southside Place police station; such reports are extremely rare in that
small and upscale community (RR. VII – 72, 78). There were twelve residences
within a couple hundred feet of the appellant’s mailbox, but not one call was made
to the police that evening of the alleged assault (RR. VII – 90-91). Furthermore,
the appellant never provided the police any additional information from a private
investigator who she allegedly hired to look into the assault (RR. VII – 94).
While they were at the police station, the appellant said, “Aha, I know
something you don’t know…You don’t know what’s going on in your
house…There was a black man staying at your house last night.” (RR. IX – 211-
212). Blumenschein knew that Toney’s cousin, who was African-American, was
staying with Toney while Blumenschein was in San Francisco (RR. IX – 212) (RR.
X – 289). But he was surprised that the appellant knew and asked her, “How in the
hell did you know that?” (RR. IX – 212). The appellant responded, “I had your
house watched,” and Blumenschein told her never to do that again (RR. IX – 212).
On January 3, 2013, Toney had an operation at Texas Women’s Hospital to
improve her ability to carry a baby to term (RR. IX – 229-230) (RR. X – 9). She
10
stayed at the hospital for a few days, and Blumenschein drove her car during that
time as an authorized driver (RR. IX – 231-232) (RR. X – 9). During one of those
days, Blumenschein left work around 5:30 p.m. and told the appellant that he
needed to go home, but instead he went to see Toney at the hospital (RR. IX – 233-
234) (RR. XI – 17). The traffic was very heavy, so Blumenschein took many back
streets (RR. IX – 234-235). A few days later, the appellant confronted him angrily
and said, “You lied to me….You didn’t go home. You went to the hospital. You
went [to] the Women’s Hospital.” (RR. IX – 234). Blumenschein asked how she
knew that, and the appellant responded, “I had you watched. I had you watched.”
(RR. IX – 234). Blumenschein said, “Do not do this again, never again. Stop it.”
(RR. IX – 235).
Despite naming her as a suspect in the mailbox assault, the appellant would
sometimes talk to Meric-Bernstam about her relationship with Blumenschein; but
she insisted that it was professional (RR. V – 93). Nevertheless, Meric-Bernstam
was worried that the appellant was attached to Blumenschein whereas
Blumenschein had a long-time girlfriend and was not emotionally available to the
appellant (RR. V – 93). Meric-Bernstam was worried that the appellant would get
hurt (RR. V – 93).
The appellant told Cathy Eng, a professor of colorectoral cancer and a
clinical researcher at MD Anderson, about her affair with Blumenschein (RR. V –
11
172, 180-181). She also told Eng about the alleged attack near her mailbox (RR. V
– 181). She stated that she tried to file a police report but that she had a difficult
time at the police station (RR. V – 182). She claimed that she called someone
from back home to assist in the investigation, and then she pointed the finger at
Toney (RR. V – 201). She made similar statements to other coworkers (RR. VII –
254-259).
Sometime in early January 2013, Blumenschein started telling some of his
coworkers that he was finally thinking of getting married to Toney (RR. VII –
198). On January 26, 2013, Blumenschein returned to Houston from a conference
in San Diego (RR. IX – 237, 241). On the plane, he sat next to an old friend, Mark
Gilbert, who was a neuro-oncologist at MD Anderson (RR. VI – 84-86). They had
glasses of wine from the same bottle and ate the same meal (RR. VI – 24, 93-100)
(RR. IX – 241-242). Gilbert believed that Blumenschein was acting normally (RR.
VI – 100). After they landed in Houston, Blumenschein picked up some food from
Niko Niko’s Greek restaurant for himself and Toney, which they ate together (RR.
VI – 123-133) (RR. IX – 243-246) (RR. XI – 21-23). They then went to bed
around 8:00 p.m. (RR. IX – 248) (RR. XI – 23).
The next morning, a Saturday, they woke up at 7:00 a.m., and Blumenschein
felt great (RR. IX – 249-250) (RR. XI – 24). He planned to meet the appellant at
MD Anderson to work, but she insisted that he stop by her house first (RR. IX –
12
250-251, 299). The appellant said that she had made breakfast and had some
special Columbian coffee for him (RR. IX – 250-251). When he arrived, the
coffee was already prepared, and Blumenschein had a few sips; but it was too
sweet for his taste (RR. IX – 252-253). They had oral sex and a shot of vodka
before driving into work (RR. IX – 253-256).
The appellant made a travel mug of coffee for Blumenschein to take with
them to work, although the appellant was more of a Diet-Coke person (RR. IX –
257). The coffee was incredibly and sickeningly sweet (RR. IX – 258-259). When
Blumenschein complained, the appellant said that it was Splenda despite the fact
that she knew that Blumenschein drank his coffee black (RR. IX – 259-260). At
around 10:00 a.m., the appellant took the coffee away, and Blumenschein thought
that she had tossed it in the sink, but she returned with two cups of coffee (RR. IX
– 262-264). The appellant said that one cup of coffee was special and expensive
and that he needed to finish it first (RR. IX – 265). Blumenschein took some more
sips but then threw it in the trash (RR. IX – 265). The appellant then handed him
the second cup of coffee, which was still sweet but not as sweet as the earlier
coffee, and Blumenschein likely finished that cup (RR. VII – 108-109) (RR. IX –
265-266).
Around 11:00 a.m. that morning, Blumenschein became light-headed and
felt intoxicated (RR. IX – 267-268). He commented to the appellant that he was
13
slurring his words, but she said, “Oh, you’re hypoglycemic. You haven’t eaten
anything. Don’t worry about it.” (RR. IX – 268). But Blumenschein had been
healthy and was worried that he was having a stroke (RR. IX – 268).
Blumenschein appeared disheveled and abnormal to his colleagues that were
at work (RR. VI – 181-183) (RR. VII – 110). He called Toney around 1:30 p.m.
and said, “Evette, I’m not feeling well. I’m calling because if something happens, I
want you to know that my speech is slurred and I’m not feeling well.” (RR. XI –
28-29). Toney asked him to go to the hospital, but he responded, “I haven’t had
anything to eat. I just had coffee this morning. So maybe I should eat something
and I may feel better.” (RR. IX – 268-269) (RR. XI – 29). He continued to work
(RR. IX – 269). The appellant said again, “You know, you’re just hypoglycemic.
We’ll go to my place and get something to eat.” (RR. IX – 270). Before leaving
MD Anderson with Blumenschein, the appellant packed up her travel coffee cup
that had contained the special coffee (RR. IX – 306).
The appellant drove Blumenschein back to her house and laid out a plate of
cheese and sausage (RR. IX – 272). When Blumenschein cut into the sausage, he
cut his thumb so badly that it would not stop bleeding (RR. IX – 272-273). The
appellant called Meric-Bernstam, who came over, looked at the cut, and told
Blumenschein to go to the hospital if he was still not feeling well after dinner (RR.
V – 74, 79-80) (RR. IX – 273-275). Meric-Bernstam was concerned about his
14
reactions and performed a neurologic sobriety test on him (RR. V – 82). She then
suggested that he go to an emergency room, but he refused (RR. V – 83). He told
Meric-Bernstam how upset he was about the sweet coffee; and the appellant
seemed to be irritated that he was “making such a big deal about it.” (RR. V – 85).
Blumenschein had an important dinner that evening at Feast to discuss
getting his own cancer center at the University of Virginia, and he was worried that
he would slur his speech or say something stupid (RR. IX – 275-277). He drank
water, not wine during the meal (RR. IX – 277). Nevertheless, he kept dropping
his eating utensils, jostling the dishes, and fumbling his BlackBerry (RR. IX – 276-
277). His dinner companions, who included Eng, asked if he had taken Oxycontin
and kept telling him to go to the hospital (RR. V – 184-192, 235, 241-244) (RR. IX
– 278, 283). He called Toney around 8:00 p.m. and told her in very slurred speech,
“I’m constantly dropping my utensils. I can barely walk.” (RR. XI – 36).
After dinner, Blumenschein wanted to go to the hospital, and the appellant
assured Eng that she would take him there; but she drove him back to her house
instead (RR. V – 192, 226) (RR. IX – 279-281). When they arrived, Blumenschein
asked for his keys, but the appellant would not give them to him (RR. IX – 281).
He tried to use his BlackBerry while he was in the bathroom, but he couldn’t
manipulate it and ended up dropping it in the toilet, which disabled the phone (RR.
IX – 281).
15
Toney was attempting to reach Blumenschein on his cell phone, but there
was no answer (RR. XI – 40). She finally called the appellant at 10:16 p.m., and
the appellant stated that Blumenschein was at her house (RR. XI – 42). The
appellant was calm and said, “I have his keys and he’s still sick. He’s very
sick….He can barely walk, Evette, so I took away his keys.” (RR. XI – 42-43).
Toney replied, “Great. Keep him there. I’m on my way. I’m going to pick him up
and take him to the hospital.” (RR. XI – 42-44). The appellant, however, then
handed Blumenschein his keys (RR. IX – 282).
Toney arrived at the appellant’s house at 10:27 p.m., but the appellant and
Blumenschein were already gone (RR. IX – 45-46). When Toney called the
appellant, the appellant said, “Oh, George took the keys and I’m following him to
MD Anderson.” (RR. XI – 46). Toney said, “Ana, why would you allow him to
drive? Not only could he kill himself but someone else. Why would you allow
this?” (RR. XI – 46). The appellant’s response was silence (RR. XI – 46).
Blumenschein drove himself, slowly, to MD Anderson while the appellant
followed him; she arrived about four minutes later (RR. VI – 105) (RR. IX – 282)
(RR. XI – 49-50). When Toney got to the hospital, she saw the appellant arrive
and said, “We need to get him to the ER now.” (RR. XI – 49). But the appellant
responded, “I don’t know,” before finally calling the emergency center (RR. XI –
49). It took them another twenty minutes to get to the emergency room (RR. XI –
16
55). When they arrived, the appellant volunteered to fill out the paperwork for
Toney (RR. XI – 55-56).
At the emergency room, Blumenschein was in and out of consciousness,
stuporous, nonsensical, and groaning (RR. V – 195, 274) (RR. VI – 102) (RR. XI –
48). He was also complaining about double vision (RR. VIII – 51). Gilbert was
paged to evaluate his cognitive functioning (RR. VI – 101-103, 107-108).
Blumenschein was very worried about a presentation that he had to give on
Monday morning, but when his colleagues told him that someone else would
handle it, he fell asleep (RR. IX – 284). The appellant wrote an order of Tylenol
for Blumenschein despite the fact that she was not his treating physician (RR. VI –
41).
Amit Lahoti, a nephrologist at MD Anderson, saw Blumenschein in the
emergency room (RR. V – 268). There was a severe amount of acid in
Blumenschein’s blood, which was already causing kidney problems, so
Blumenschein was transferred to the Intensive Care Unit (ICU), and dialysis was
started (RR. V – 198, 268-269, 274-277) (RR. VII – 112). His creatinine levels hit
2.96 that morning, which indicated severe kidney damage (RR. V – 278). That
afternoon, a nurse pointed out Blumenschein’s urine bag to Lahoti; there was an
unusual whitish sediment in the bag (RR. V – 279).
17
Lahoti spun a sample from Blumenschein’s urine bag in his centrifuge,
checked it under a microscope, and was shocked to see crystals “everywhere” that
were a telltale sign of ethylene glycol poisoning (RR. V – 279-280, 284, 286, 296)
(RR. VI – 18) (RR. VII – 115) (St. Ex. 5, 6). Ethylene glycol, which can be found
in antifreeze, breaks down into crystals that can be deposited into numerous
organs, including the kidneys, causing inflammation (RR. V – 283-284, 289) (RR.
VIII – 142-144). Those crystals can also be deposited in the brain, causing double
vision (RR. VIII – 51, 142-144).
Ethylene glycol is a colorless, odorless substance with a sweet taste (RR. V
– 309) (RR. VIII – 27). It would change the flavor of any food that it was added
to, and Blumenschein described the appellant’s coffee as “funny, or different” to a
consulting physician (RR. VII – 22-23). Because it is an alcohol, ethylene glycol
can cause intoxication (RR. VIII – 146). Furthermore, the continuous ingestion of
a substantial amount of ethyl alcohol can delay the absorption of ethylene glycol
because the body prefers to process ethyl alcohol rather than ethylene glycol (RR.
III – 57-60).
When Lohati returned to Blumenschein’s room with a picture of the crystals,
the appellant said, “Oh, boy, looks like ethylene glycol. I’ve seen this quite a bit
back home in my home country.” (RR. V – 294). The appellant told Glisson that
she had been reading about ethylene glycol poisoning and stated that
18
Blumenschein “must have been exposed in California then had alcohol during the
trip back from San Diego and that that had delayed his presentation with clinical
symptoms.” (RR. VII – 116). She also told another of Blumenschein’s colleagues
that he was suffering from ethylene glycol poisoning and added, “And George is
not the kind of person that would commit suicide.” (RR. VI – 164).
Meric-Bernstam stopped by to check on Blumenschein (RR. V – 88-89).
She could only see him from a distance, but he was pale and seemed unaware of
his surroundings (RR. V – 89). The appellant talked with her there; she stated that
she saw crystals in the Foley catheter that drains the bladder, that she was worried
about that, and that it was being investigated by the nephrologist (RR. V – 90, 161,
199). The appellant suggested that Toney had done the poisoning (RR. V – 91).
She also told Meric-Bernstam about the alleged attack near her mailbox the
previous December (RR. V – 92).
The appellant told Glisson that Toney had a motive to poison Blumenschein
because Toney had miscarried in the fall and the couple was still trying to have
children (RR. VII – 121). That alleged motive made no sense to Glisson (RR. VII
– 122). The appellant also admitted to Glisson that she had access to ethylene
glycol in her laboratory (RR. VII – 124-125) (RR. IX – 28). But the appellant
never told Glisson about the coffee she had made for Blumenschein the day he
19
became ill (RR. VII – 124, 162-163, 228, 265). She also denied having a sexual
relationship with Blumenschein (RR. VII – 163).
The appellant continued to tell other coworkers of her suspicions that Toney
was behind both the poisoning and the mailbox assault (RR. VII – 181-183) (RR.
XII – 19-22). Sometimes in telling the mailbox story, the appellant would claim
that it was two black males rather than a black male and a black female (RR. XII –
20). And she blamed Toney for allegedly forcing him away from his family (RR.
VII – 190-192).
A day or so after Blumenschein was admitted to the hospital for the
poisoning, the appellant sat down to talk with Litton (RR. XII – 69-71). She told
Litton that Blumenschein was very sick, that he was poisoned with ethylene glycol,
and that she was upset about the coffee that she gave him (RR. XII – 71). The
appellant stated that Blumenschein was concerned that the coffee was too sweet
and that she told him that she had put Splenda in it (RR. XII – 71). She also said
that Blumenschein was confused and that she had to remind him that they were
sipping out of the same to-go cup (RR. XII – 71-72). She admitted that she had
ethylene glycol in her lab (RR. XII – 71). She said, “I’m going to get in so much
trouble for this.” (RR. XII – 71). Although the appellant was crying, she was being
extremely careful about the words she chose to describe the situation (RR. XII –
20
74). She suggested that Toney was trying to frame her for the poisoning (RR. XII
– 75).
Many labs at MD Anderson have open doors, and people can just walk in
without using a security badge, especially by following someone else who had
already used a badge to open the door (RR. V – 165-166) (RR. IX – 15-16) (RR. X
– 160-161). And ethylene glycol would not commonly be locked up in a lab (RR.
X – 161). Toney, on the other hand, had never purchased ethylene glycol (RR. XI
– 96-97).
Blumenschein almost died as a result of the poisoning, and he would have
died without the prompt medical treatment that he received (RR. V – 308) (RR. VI
– 36, 112) (RR. IX – 287). He woke up on Tuesday in the ICU, saw Toney there,
and asked what had happened (RR. IX – 285). Toney told him that he had been
poisoned and that the appellant said that they found crystals (RR. IX – 285-286)
(RR. XI – 64, 68). Blumenschein thought that the only odd food he had taken in
the past few days was the appellant’s abnormally sweet coffee (RR. IX – 286) (RR.
X – 9) (RR. XI – 69-70).
Blumenschein did not immediately tell the police about his suspicions
because he was still in the hospital and felt that both he and Toney were
vulnerable, especially in light of the appellant’s contacts in Columbia (RR. IX –
288) (RR. X – 10) (RR. XI – 69-70, 238). Blumenschein said to Toney, “Evette,
21
do not poke the dragon.…I think she poisoned me. I don’t want to say anything
until I know for certain, until we have some proof.” (RR. XI – 70). He also said,
“I’m in ICU. Please don’t say anything.…I don’t know if she’s going to do
something to you. I don’t know if she’s going to do something to me.” (RR. XI –
71).
The first blood sample taken from Blumenschein was negative for ethylene
glycol, but that was not surprising because that alcohol is quickly converted into
acid (RR. V – 300) (RR. VI – 17-18) (RR. VII – 18-19). Nevertheless, the
appellant sent an email to Lahoti on January 29 noting that the blood test for
ethylene glycol was negative and asking what caused the damage to the kidneys
(RR. V – 299-302). Lahoti, however, was confident in his diagnosis that
Blumenschein suffered from ethylene glycol poisoning (RR. V – 303) (RR. VII –
17-18, 58-60, 129). And his diagnosis was confirmed by a professor of medical
toxicology from the University of Texas Southwestern Medical Center and the
North Texas Poison Center (RR. VIII – 8, 12, 18-56, 70). Furthermore, the timing
of Blumenschein’s intoxication symptoms was consistent with ingesting the
ethylene glycol sometime Sunday morning (RR. VIII – 56-70). Kenneth
McMartin, a professor of toxicology at Louisiana State University and the
recognized authority on ethylene glycol toxicity, concurred in that conclusion (RR.
VIII – 70, 129-135, 150-186, 217-218).
22
The appellant spoke with Kristen Price, a doctor who was investigating the
possible source of the ethylene glycol poisoning, but she did not volunteer
information, and she failed to mention anything that Blumenschein had to eat or
drink with her, including the coffee (RR. VI – 30, 33). She did, however, say that
Toney did not like her and did not like the fact that Blumenschein spent so much
time with her (RR. VI – 32-34).
The appellant told Price that she wanted to speak confidentially (RR. VI –
34). She stated that she and Blumenschein “almost became romantically involved
or had a sexual relationship,” but she stopped it because she didn’t think that would
be wise with them working together (RR. VI – 34). A month or two later, the
appellant told Price that Blumenschein had actually come to her apartment the
morning before he got ill and that they had a shot of vodka; but she still failed to
mention the coffee (RR. VI – 35, 45). The first time that Price heard about the
coffee was in the media (RR. VI – 75).
While Blumenschein was still in the ICU, he received an angry text from the
appellant (RR. IX – 290, 294). She was upset that she was going to be a suspect
because she had access to ethylene glycol (RR. IX – 290). She was also focused
on learning the location of the anonymous letter that Toney had received in the
mail after Thanksgiving (RR. IX – 292). That letter was in the same bag as
Blumenschein’s laptop computer (RR. IX – 293) (RR. XI – 72). When
23
Blumenschein remarked that he needed his laptop computer, the appellant
immediately volunteered to get it; however, when she delivered it to
Blumenschein, the letter was missing from the bag (RR. IX – 193-194) (RR. XI –
72-76).
After Blumenschein had been in the ICU for a couple of weeks, the
appellant told Toney that she wanted to travel with Blumenschein to Italy (RR. XI
– 78). She stated, “I have shared hotel rooms with him several times and I want to
travel with him and take care of him.” (RR. XI – 79). Hearing this prompted
Toney to confront Blumenschein again about his affair with the appellant, and this
time he finally admitted to it; Toney cried (RR. IX – 290-291) (RR. XI – 80).
Toney then confronted the appellant, who also admitted to the affair (RR. XI – 83).
She said, “That was just sex, Evette.” (RR. XI – 84). Regarding the poisoning, the
appellant said that she spoke with her brother about the attack, that he was going to
come from Colombia, that she was going to take care of matters, and that she
decided not to do that (RR. XI – 84).
Price eventually contacted the chief at the University of Texas Police
Department (UTPD) in MD Anderson as well as the chief legal counsel for the
hospital (RR. VI – 38). Macario Sosa with the UTPD was assigned to the case
(RR. VIII – 229-230). He interviewed Price, Eng, Toney, Lahoti, and others (RR.
VIII – 229, 237, 259-260, 292) (RR. IX – 25). He tried to meet with
24
Blumenschein, but Blumenschein was still in the ICU and was in a lot of pain (RR.
VIII – 240, 242). He arranged to meet with the appellant on January 31, but the
appellant called and cancelled because she was flying to Chicago (RR. VIII – 233-
235). He made another appointment to meet with her on February 1, but she
cancelled that meeting as well (RR. VIII – 236-237). He was eventually able to
talk with her on February 26 (RR. VIII – 237). In the meantime, he pulled the MD
Anderson emails for the appellant and Blumenschein (RR. VIII – 240).
Blumenschein was discharged from the hospital on February 22 (RR. IX –
295). The appellant offered to have Blumenschein and Toney stay with her during
his recuperation so that she could give him IV fluids, but he declined (RR. VII –
184-187) (RR. IX – 295). He had lost a lot of muscle mass, and it was very
difficult for him to keep his blood pressure up (RR. IX – 297). The damage to his
kidneys caused long-term physical disabilities, limiting his diet and activity and
reducing his life expectancy (RR. VII – 26-28) (RR. X – 27) (RR. XII – 30). His
kidneys function at about forty percent of what they should (RR. X – 29). He is
required to be a vegetarian, does not drink alcohol, and becomes fatigued easily
(RR. VII – 25-28, 39) (RR. X – 27-28).
The appellant’s friends decided that they no longer wanted to be alone with
the appellant to avoid talking about Blumenschein and Toney (RR. VII – 271-272,
302). They compared notes and realized that the appellant was telling the same
25
basic stories but with different details (RR. XII – 76). Litton felt that the appellant
was manipulating her (RR. XII – 76).
The appellant told Price about the alleged assault that occurred near her
mailbox, although in this version it was two men; she also stated that the assault
had been traced to Toney by a private investigator (RR. VI – 43-45). And she told
Price that she was worried about Blumenschein’s possible conflict of interest
because Toney worked for GlaxoSmithKline, and Blumenschein had a research
grant from that company (RR. VI – 47-50) (RR. VII – 197-198, 265-266).
The appellant and Gilbert were at a conference in San Francisco in March or
April, and they went out to dinner together (RR. VI – 112). The topic of
Blumenschein’s poisoning came up, and the appellant suggested that Toney was
possibly the poisoner (RR. VI – 114).
Also in March, Blumenschein was supposed to attend a conference in Italy
and was planning on taking Toney (RR. X – 14-16) (RR. XI – 89). The appellant
repeatedly offered to come to Italy to take care of him and his IV fluids, but he
rejected her assistance (RR. X – 16). She then told him that she had looked into
his United Airlines account and knew that he was taking Toney on the trip (RR. X
– 16) (RR. XI – 89). Blumenschein did not know how the appellant had acquired
the password to his United Airlines account, and he had to change it (RR. X – 16).
26
On March 17, the appellant sent Blumenschein an angry email regarding a
prior email that Blumenschein had never sent (RR. IX – 297). His technology
department concluded that someone had been messing around with his email
account (RR. VII – 297-298) (RR. IX – 298, 300). The appellant had acquired the
password to his email account, and she downloaded a picture of Toney from his
email (RR. VII – 274) (RR. IX – 296). On another occasion, one of the appellant’s
hotel reservations was cancelled without his consent (RR. XII – 32-34). The
appellant told coworkers that she and Blumenschein shared email passwords
because of their work partnership (RR. VII – 275).
In order to protect themselves in light of the curious circumstances,
Blumenschein and Toney bought a recording device and learned how to use it (RR.
IX – 307-308). He recorded several of his telephone calls with the appellant (RR.
IX – 309). In one of the recordings, the appellant told Blumenschein that she had
come home from a foreign conference to find an anonymous letter on her front
porch that had been exposed to the sprinkler system (RR. X – 19). She stated that
the letter said something like, “You finally left him alone, good.” (RR. X – 19).
Blumenschein told the appellant to give the letter to the police because it was a
break in the case, and they discussed the letter several times (RR. X – 19). But the
appellant eventually admitted that she had fabricated the letter (RR. X – 19, 21).
27
In early April 2013, an anonymous letter was dropped off to MD Anderson’s
conflict-of-interest chair regarding Blumenschein’s grant from GlaxoSmithKline
and Toney’s employment with that same company (RR. VII – 266) (RR. VIII –
277-284) (RR. X – 142-143). That letter contained the same misspelling of the
appellant’s name that had been in the earlier Thanksgiving 2012 note addressed to
Toney (RR. VIII – 284). The appellant denied writing that anonymous letter (RR.
VII – 266-268). But surveillance video showed her at the conflict-of-interest office
at the time that the letter was delivered (RR. VII – 289-291).
On April 18, a conflict-of-interest board member received an anonymous
email reporting Blumenschein’s alleged marriage to Toney and pointing her out as
a GlaxoSmithKline employee (RR. X – 138-140). The email referred to the
appellant and misspelled her first name in the same manner as was done in the
prior anonymous letters (RR. X – 140-141). The email also referred to an
upcoming ASCO conference, which meant that the author knew a lot about
Blumenschein and his schedule (RR. X – 141-142). That board member talked
with the appellant, who was very eager to assist (RR. X – 145-147). She stated
that she had tried several times to discuss the issue with Blumenschein and that she
was unable to effect any outcome; she also forwarded several emails in that regard
(RR. X – 145-147). She told the board member that Toney had filled out
28
documents in the emergency room indicating that she was Blumenschein’s spouse
(RR. X – 154).
A similar anonymous letter regarding the alleged conflict of interest was sent
to GlaxoSmithKline (RR. X – 185-188). The letter detailed numerous alleged
violations by Toney, including using a GlaxoSmithKline conference line to receive
personal coaching from physicians and using the appellant’s fraudulent doctor’s
note as an excuse after the crash of the company car (RR. X – 187-188). The letter
misspelled Blumenschein’s name as “Blumenschain.” (RR. X – 207-208).
Mike DeSilva, an investigator with GlaxoSmithKline was assigned to look
into the allegations in the letter (RR. X – 188-189). While he was conducting the
investigation, he received two anonymous phone calls from a woman with a
Hispanic accent, who he later identified as the appellant (RR. X – 196, 201). He
talked with the appellant for approximately ten minutes during the first call, which
occurred on April 30, and over thirty minutes during the second call, which
occurred on May 1 (RR. X – 195, 201). The appellant stated that she worked with
Blumenschein at MD Anderson and that it was very important to her that
Blumenschein not be made aware that she had reported the conflict of interest
allegation involving him and Evette Toney (RR. X – 204). The appellant reported
that during Blumenschein’s recent hospitalization Toney had told hospital
personnel that she was his common-law spouse (RR. X – 205).
29
DeSilva set up an anonymous email account for the appellant so that he
could continue to communicate with her (RR. X – 205-206). During an email
exchange on May 5, the appellant referred to herself as “your doctor contact at MD
Anderson” and then directed DeSilva to contact the appellant herself through her
MD Anderson email account (RR. X – 207) (St. Ex. 138). That email also
misspelled Blumenschein’s name as “Blumenschain.” (RR. X – 207-208). In
another email dated May 8, the appellant once again referred DeSilva to herself
and stated:
Gonzalez is very close to Blumenschein. They work together,
and are close friends. However, we are sure that she will answer any
questions that you have, and if she is asked to keep the investigation
confidential, she will (one of us asked her through a private e-mail
account anonymously)…. She answered that she will be willing to
answer any questions via e-mail and by a phone call if necessary, but
she would need to have MD Anderson Compliance Officer present. …
Since this is getting much more complex and involves other
information, we believe that we should not get further involved. We
have contacted Gonzalez for you. E-mail her. E-mail or call the other
people we told you, they will tell you the truth. Compliance either has
called them or will call them.
(RR. X – 209-210, 211) (St. Ex. 139). On May 9, the appellant wrote, “Gonzalez
will help you out. We are from nieghborh [sic] countries and we were raised the
same way. She will do the right thing.” (RR. X – 212) (St. Ex. 141). DeSilva
emailed the appellant through her MD Anderson account and attempted to set up a
meeting, but the appellant was unwilling to meet personally and would only
30
communicate through email (RR. X – 213-215). The appellant, however, never
answered DeSilva’s emailed list of questions (RR. X – 217-219). Toney was fired
by GlaxoSmithKline as a result of using the appellant’s false doctor’s note (RR. X
– 220-221, 274) (RR. XI – 90-93).
Sosa obtained a warrant for the appellant’s arrest on May 29, 2013 (RR. VII
– 299-304) (CR – 8-9, 19). He could not obtain a statement from the appellant
because she already had legal counsel (RR. IX – 32). But the appellant told Sosa
that it was Evette (RR. IX – 37). When Sosa said, “You can’t beat science,” the
appellant responded, “Yes, science is good.” (RR. IX – 37). She appeared defeated
at that point (RR. IX – 38).
A month or so before the trial, the appellant warned her friends that she was
probably going to sue MD Anderson and some of the other people that had “hurt
her throughout this process.” (RR. VII – 304). She also stated that her criminal
lawyers were going to be very hard on some witnesses, especially those who had
allegedly lied before the Grand Jury, despite the fact that such testimony is
supposed to be confidential (RR. VII – 305-306).
31
REPLY TO APPELLANT’S SECOND AND THIRD
POINTS OF ERROR
The appellant claims in her second point of error that the evidence was
insufficient to connect her to the injuries sustained by Blumenschein (App’nt Brf.
32-42). Her related third point of error argues that the evidence was insufficient to
show that she was in a dating relationship with him (App’nt Brf. 43-47). These
issues will be addressed first because sufficiency of the evidence is in many ways
the most basic argument that can be made in a case, and because a discussion of
the evidence is relevant to any harm analysis performed in the other points of error.
Nevertheless, these issues lacks merit because any rational jury could have found
the appellant guilty based on the mountain of testimonial and circumstantial
evidence.
A rational jury could have found beyond a reasonable doubt that
the appellant committed the aggravated assault of a person
with whom she had been in a dating relationship.
The standard of review in the present case is whether, after viewing the
evidence in the light most favorable to the prosecution, any rational trier of fact
could have found beyond a reasonable doubt that the appellant intentionally caused
serious bodily injury to Blumenschein by poisoning him with ethylene glycol and
that she had been in a dating relationship with him (CR – 23); Jackson v. Virginia,
443 U.S. 307, 319 (1979); Brooks v. State, 323 S.W.3d 893, 902 (Tex. Crim. App.
32
2010); TEX. PENAL CODE § 22.02(b)(1) (West 2010). The jury is the sole judge of
the weight of the evidence under this review and may choose to believe all, some,
or none of it. Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991).
“Serious bodily injury” means bodily injury that creates a substantial risk of
death or that causes death, serious permanent disfigurement, or protracted loss or
impairment of the function of any bodily member or organ. TEX. PENAL CODE §
1.07 (West 2010). A “dating relationship” means a relationship between
individuals who have or have had a continuing relationship of a “romantic or
intimate nature.” TEX. FAMILY CODE § 71.0021(b) (West 2010). The existence of
such a relationship must be determined based on the length of the relationship, the
nature of the relationship, and the frequency and type of interaction between the
persons involved in the relationship. Id.. But a “casual acquaintanceship” or
“ordinary fraternization” in a business or social context does not constitute such a
relationship. TEX. FAMILY CODE § 71.0021(c) (West 2010).
Evidence can be legally sufficient for a conviction even if it is entirely
circumstantial. King v. State, 29 S.W.3d 556, 565 (Tex. Crim. App. 2000). The
standard of review for circumstantial and direct evidence is the same. Id. It is not
necessary that every fact point directly and independently to the defendant’s guilt;
it is enough if the conclusion is warranted by the combined and cumulative force
33
of all the incriminating circumstances. Johnson v. State, 871 S.W.2d 183, 186
(Tex. Crim. App. 1993).
In the present case, the evidence showed that the appellant and
Blumenschein started having sex in 2011 and continued to have sex until the day
she poisoned him in 2013 (RR. IX – 163-164, 253-256). The appellant would
frequently give him expensive gifts, she offered to have his child, she named him
in her will, and they took frequent trips together, sometimes sharing a hotel room
(RR. VII – 299-301) (RR. IX – 162-169, 176-179) (RR. X – 12-13, 26, 274-275)
(RR. XI – 79). Furthermore, the appellant admitted to the affair on more than one
occasion (RR. XII – 54) (RR. XI – 83). While Blumenschein did not consider the
appellant to be his girlfriend or that they were dating, he conceded that they had an
intimate relationship (RR. IX – 163, 166-167, 169-170, 176, 193, 218) (RR. X –
43-44). Thus, the evidence was sufficient to show intimacy if not true romance.
TEX. FAMILY CODE § 71.0021(b) (West 2010).
With regard to the poisoning, the appellant herself acknowledged the
numerous connections. She told her good friend Litton, “I’m going to get in so
much trouble for this,” because she gave Blumenschein the sweet coffee the day he
became ill and because she had access to ethylene glycol in her lab (RR. XII – 71).
Her escalating desperate behavior prior to the poisoning showed her willingness to
break the law, by stalking and making false statements to law enforcement among
34
other activities, in order to harm Blumenschein’s relationship with Toney (RR. IX
– 211-235). Her behavior during the day of the poisoning showed her intent to
isolate Blumenschein and prevent him from getting the medical help that he
needed (RR. V – 192, 226) (RR. IX – 279-282) (RR. XI – 42-43, 46-49). And her
behavior during Blumenschein’s hospitalization showed her intent to deflect
suspicions onto Toney and away from herself (RR. V – 91, 299-302) (RR. VI – 32-
34, 164) (RR. VII – 116, 121, 181-183) (RR. XII – 19-22, 75).
From the above evidence, any jury would have been rationally justified in
finding guilt beyond a reasonable doubt. See Palomo v. State, 352 S.W.3d 87, 90
(Tex. App.—Houston [14th Dist.] 2011, pet. ref’d) (holding that defendant’s
possession of a weapon linked to the crime soon after the crime and the
defendant’s having access to the location where the police discovered the weapon
was a circumstance of the defendant’s guilt); Huffman v. State, 775 S.W.2d 653,
661 (Tex. App.—El Paso 1989, pet. ref’d) (holding in a murder case based on
circumstantial evidence and involving ligature strangulation, defendant’s access to
a belt which gave him the capacity to inflict the fatal injuries was evidence of guilt
where a belt was found near the victim’s bed even though it was not conclusively
shown to be murder weapon,); Halton v. State, 05-14-00640-CR, 2015 WL
3991827, at *5 (Tex. App.—Dallas July 1, 2015, no pet.) (not designated for
publication) (finding evidence sufficient to show a dating relationship even though
35
victim denied having sexual relations with Halton and testified she does not
consider a relationship without sex “dating intimately,” where victim also testified
that they shared companionship and kissed).
The appellant claims that Blumenschein “told investigators and physicians
that [the appellant] drank the same coffee from the same cup he did throughout the
day.” (App’nt Brf. 35). But in the same passage cited by the appellant,
Blumenschein stated that his memory was “very foggy” and that he was on pain
medications at the time (RR. X – 65-66). Moreover, Blumenschein’s previous
testimony at trial was that the appellant “held it up to her lips and said, It’s
Splenda. I couldn’t tell if she drank or not. I didn’t see her swallow.” (RR. IX –
259). He also affirmed that he “never actually saw her take a sip.” (RR. IX – 259).
Furthermore, any statements to the contrary could have been the result of the
appellant’s power of suggestion. The appellant admitted to Litton that
Blumenschein was confused and she had to “remind him” that they were sipping
out of the same to-go cup (RR. XII – 71-72). Finally, even if the testimony cited
by the appellant were the only testimony on the issue in the appellate record, the
jury could have chosen to disbelieve it; therefore, it should not be considered under
the correct standard for evaluating the sufficiency of the evidence. See Jackson,
443 U.S. at 319 (requiring that evidence be viewed in the light most favorable to
the prosecution).
36
The appellant argues that no ethylene glycol was found in her possession.
(App’nt Brf. 35). But she admitted that she had access to the poison (RR. VII –
124-125) (RR. IX – 28). She was a smart woman. And she had all the time she
needed to dispose of the physical evidence after Blumenschein was admitted to the
hospital and she realized that she would be a suspect. The appellant states without
citation to the record that the “evidence conclusively showed every physician at
M.D. Anderson had as much access to ethylene glycol as she did.” (App’nt Brf.
35-36). But that evidence came from the appellant’s mouth, when she was trying
to manipulate her friend, Litton (RR. XII – 71). And once again, evidence
favorable to an appellant cannot “conclusively show” anything in a sufficiency
review because the standard requires that the evidence be viewed in the light most
favorable to the prosecution. See Jackson, 443 U.S. at 319.
The appellant claims that the “window of possible ingestion realistically
extended as far back as the previous Friday night.” (App’nt Brf. 36). But there was
nothing at all realistic about that scenario. As the foremost authority on ethylene
glycol poisoning explained in detail, such a scenario would have required that
Blumenschein continuously keep his blood alcohol level at 0.10 to 0.15 during that
period (RR. VIII – 57-68). And that would have required that he consume
approximately three liters of booze each day, continuously (RR. VIII – 61-62).
There was no realistic evidence that such a scenario was occurring.
37
The appellant argues that the “fatal attraction” theory “has no logical force
and is hard to square with a lovelorn woman set on winning the complainant.”
(App’nt Brf. 37). But there is an oft-quoted proverb to the contrary: “Heaven hath
no rage, like love to hatred turned, Nor hell a fury like a [lover] scorned.” WILLIAM
CONGREVE, THE MOURNING BRIDE, act 3, sc.8. The appellant had spent so much
time, money, and energy in her efforts to woo Blumenschein, that she was
understandably reduced to rage when Blumenschein announced that he was still
pursuing a baby with Toney and was even thinking of marrying her (RR. VII –
198) (RR. IX – 234-235). Not only did the appellant’s motive have overwhelming
logical force, it was one of the oldest motives in the book.
The appellant cites Stobaugh v. State, 421 S.W.3d 787, 790 (Tex. App.—
Fort Worth 2014), petition refused, 455 S.W.3d 165 (Tex. Crim. App. 2015), in
support of her claim that the circumstantial evidence was insufficient. But
Stobaugh was a 47,000 word opinion holding the evidence insufficient to prove
murder in that case where “there is no body, no murder weapon, no witnesses, no
blood or DNA evidence; there are no fibers, hairs, or any type of forensic evidence
establishing that a murder occurred.” Id., 421 S.W.3d at 865. The sheer length of
the opinion demonstrates how fact-bound the holding was. Furthermore, in the
present case, there was overwhelming evidence that a poisoning had occurred.
Blumenschein survived the assault and was able to testify about his injuries and the
38
sweet coffee. And three irreproachable experts agreed that Blumenschein’s
injuries were caused by ethylene glycol poisoning, which most likely occurred
around the time that Blumenschein drank the appellant’s sweet coffee (RR. V –
303) (RR. VII – 17-18, 58-60, 129) (RR. VIII – 8, 12, 18-70, 129-135, 150-186,
217-218).
The appellant claims that it “strains credibility to believe that
[Blumenschein] would drink something he found sickening, disgusting and
perhaps even toxic because he did not want to hurt the feelings of someone he had
been using for casual sex at the office over the previous two years.” (App’nt Brf.
41). But of course, their relationship was far more complex than that. The
appellant and Blumenschein had worked closely together for years and had been in
an intimate relationship for almost as long (RR. VII – 299-301) (RR. IX – 162-169,
176-179, 253-256) (RR. X – 12-13, 26, 274-275) (RR. XI – 79, 83) (RR. XII – 54).
Furthermore, Blumenschein stated that the appellant was not someone who would
take “no” for an answer (RR. IX – 251). The appellant was the driving force
behind the relationship: she initiated their first contact and orchestrated every
major advance in intimacy (RR. IX – 148, 156, 159-160, 162-169). Thus, the
appellant’s characterization of the relationship is not supported by the evidence.
The appellant claims that the evidence of a dating relationship was
insufficient because Blumenschein and the appellant both stated at times that it was
39
casual sex. (App’nt Brf. 44-45). But the appellant’s claim of casual sex was made
to Toney when she was finally confronted about the affair; therefore, she had a
motive to downplay it. The appellant made crystal clear to her friends and
coworkers, through both her actions and her statements, that she was far more
emotionally invested in Blumenschein than mere casual sex. She offered to have
his baby, she told people that she cared for him and that he was good to her, and
she bought him many expensive gifts (RR. VII – 176, 230, 237-239) (RR. IX –
166, 176-179) (RR. X – 274-275).
Both Blumenschein and the appellant admitted to Toney that they were
having an “affair.” (RR. XI – 80, 83). These admissions, coupled with the
evidence that the affair included repeated sexual relations, travel together, and gift
exchanges, was sufficient evidence to meet the broad definition of a “dating
relationship.” TEX. FAMILY CODE § 71.0021(b) (West 2010) (“a relationship
between individuals who have or have had a continuing relationship of a romantic
or intimate nature.”). Furthermore, as stated previously, the jury could easily have
dismissed all evidence to the contrary as lacking credibility. See Jackson, 443 U.S.
at 319 (requiring that evidence be viewed in the light most favorable to the
prosecution). Thus, the evidence was sufficient to sustain the conviction, and the
appellant’s second and third points of error should be overruled.
40
REPLY TO APPELLANT’S FIRST POINT OF ERROR
In her first point of error, the appellant complains that the trial court erred in
failing to grant her motion for new trial based on alleged “newly discovered
evidence” that rebutted the “fatal attraction” theory. (App’nt Brf. 11). This claim
lacks merit because the trial court could have disbelieved the new evidence and
believed Blumenschein’s affidavit, which contradicted much of the allegedly new
evidence.
The appellant filed a motion for new trial thirty days after judgment was
entered in the case (CR – 168). The motion alleged that “Mary Kara Bucci had
direct and personal knowledge of evidence favorable to the accused, which she
withheld prior to trial, despite the attempts of the defense team to discover it.” (CR
– 169). Bucci’s affidavit stated that she had an “occasionally romantic or intimate”
relationship with Blumenschein for 3.5 years starting in 2006 (CR – 179). She also
stated that she saw Blumenschein in Alaska in 2012 and that he stated then that he
and Toney were no longer seeing each other (CR – 179).
The State filed a response to the appellant’s motion for new trial, and
Blumenschein submitted an affidavit to “correct some of the misstatements” in
Bucci’s affidavit (CR – 190-194). Blumenschein affirmed that he and Bucci
“engaged in oral sex on two or three occasions over the next several months” in
June 2009 after Toney had moved out of his house, but he denied an ongoing
41
romantic relationship starting in 2006 (CR – 192). He confirmed that he spoke
with Bucci in Alaska in 2012 but denied saying anything about his relationship
with Toney being over (CR – 193-194). The trial court held a hearing on the
appellant’s motion for new trial and denied the motion on December 8, 2014 (CR –
176, 208).
A trial court’s decision whether to grant a new trial based on newly
discovered evidence is reviewed for an abuse of discretion. See Keeter v. State, 74
S.W.3d 31, 37 (Tex. Crim. App. 2002); see also Colyer v. State, 428 S.W.3d 117,
122 (Tex. Crim. App. 2014). Under the abuse-of-discretion standard, this Court
must view the evidence in the light most favorable to the trial court’s ruling and
uphold the trial court’s ruling if it is within the zone of reasonable disagreement.
Webb v. State, 232 S.W.3d 109, 110 (Tex. Crim. App. 2007). This Court cannot
substitute its judgment for that of the trial court, but instead must consider whether
the trial court’s decision was arbitrary or unreasonable. Id.; Holden v. State, 201
S.W.3d 761, 763 (Tex. Crim. App. 2006). A trial court abuses its discretion in
denying a motion for new trial when no reasonable view of the record could
support its ruling. Colyer, 428 S.W.3d at 122.
42
The trial court did not abuse its discretion in denying the
appellant’s motion for new trial based on alleged newly
discovered evidence because it could have disbelieved the
new evidence and believed Blumenschein’s affidavit, which
contradicted much of the allegedly new evidence.
“The trial court, as factfinder, is the sole judge of witness credibility at a
hearing on a motion for new trial with respect to both live testimony and
affidavits.” Okonkwo v. State, 398 S.W.3d 689, 694 (Tex. Crim. App. 2013). If
there is conflicting evidence on an issue of fact, the trial judge determines the issue
and there is no abuse of discretion in overruling the motion for new trial. Lewis v.
State, 911 S.W.2d 1, 7 (Tex. Crim. App. 1995).
The Code of Criminal Procedure provides that a new trial “shall be granted
to an accused where material evidence favorable to the accused has been
discovered since trial.” TEX. CODE CRIM. PROC. art. 40.001 (West 2012). Under
this provision, a defendant is entitled to a new trial if (1) the newly discovered
evidence was unknown or unavailable to the movant at the time of his trial; (2) the
movant’s failure to discover or obtain the evidence was not due to his lack of
diligence; (3) the evidence is admissible and is not merely cumulative,
corroborative, collateral, or impeaching; and (4) the new evidence is probably true
and will probably bring about a different result on another trial. Wallace v. State,
106 S.W.3d 103, 108 (Tex. Crim. App. 2003).
43
In the present case, the appellant has failed to establish both the third and
fourth requirements for a new trial. The appellant cannot show that the evidence
was admissible because it was irrelevant. Relevant evidence is defined as evidence
“having any tendency to make the existence of any fact that is of consequence to
the determination of the action more probable or less probable than it would be
without the evidence.” TEX. R. EVID. 401. And whether Blumenschein had an
affair with Bucci does not make it more or less probable that he was poisoned by
the appellant. Furthermore, to the extent that Blumenschein’s infidelity to Toney
was relevant, any evidence of an additional affair with Bucci would have been
merely cumulative, corroborative, collateral, or impeaching.
The appellant claims that the evidence of the affair with Bucci showed that
Blumenschein “may have targeted [the appellant] for sexual harassment as early as
2008.” (App’nt Brf. 25). But while sexual harassment may form the basis for a
civil action, it does not constitute a defense to attempted murder. Moreover, the
trial court, as the finder of fact, could have completely disbelieved the allegations
in Bucci’s affidavit, especially when confronted by the contradictory averments in
Blumenschein’s affidavit. Compare (CR – 178-179) with (CR – 192-194).
The appellant argues that painting Blumenschein as a predator who targeted
younger female colleagues “would have refuted the State’s implications about
motive and opportunity.” (App’nt Brf. 26). To the contrary, it would only have
44
provided additional evidence of yet another motive for the appellant to seek her
revenge on Blumenschein. If the appellant’s hostility toward Blumenschein was
born out of her playing the part of the scorned lover, that hostility would only be
greater if she also saw Blumenschein as the initial instigator of their intimate and
romantic relationship.
The appellant has also failed to show that the allegedly new evidence was
probably true and that it would probably bring about a different result at a new
trial. Bucci’s affidavit did not squarely address any of the elements of the alleged
offense. The allegations in the affidavit dealt with specific tangential issues
regarding Blumenschein’s romantic affairs. But the fact that Blumenschein had
numerous romantic affairs was not a contested issue at trial. In fact, according to
the State’s final argument, the admission of such an affair was central in
establishing one of the appellant’s motives (RR. XII – 197, 202). Furthermore,
Blumenschein filed an affidavit denying or disputing many of Bucci’s allegations
in her affidavit. And the trial court was entitled to believe Blumenschein’s
affidavit. See Okonkwo, 398 S.W.3d at 694; Lewis, 911 S.W.2d at 7.
The appellant claims that Bucci had “no motivation to lie” and made the
affidavit “at personal risk to her own reputation and privacy.” (App’nt Brf. 27).
But if her implicit allegations of Blumenschein being a predator who targeted
younger female colleagues were true, then she would have had the same
45
motivations as the appellant to get her revenge on him. Furthermore, the appellant
has failed to show how making the affidavit exposed her to any personal risk.
There was no evidence of Blumenschein threatening anyone in such a manner.
Furthermore, it is difficult to imagine any damage that could be done to Bucci’s
reputation or privacy in Palmer, Alaska, where she now practices, as a result of
filing her affidavit back in Houston, Texas.
The appellant claims that Blumenschein “expressly admitted to lying
extensively about his private life while he was on the stand during trial.” (App’nt
Brf. 31). To be clear, Blumenschein did not admit that his trial testimony was a
lie; rather, he admitted to lying to Glisson and others when they asked about his
private romantic affairs (RR. X – 119-120). Lying to a coworker about a private
matter is a completely different act than lying under oath while testifying at trial or
while swearing to an affidavit. See TEX. PENAL CODE § 37.02 (West 2012) (“A
person commits an offense if, with intent to deceive and with knowledge of the
statement’s meaning: (1) he makes a false statement under oath or swears to the
truth of a false statement previously made and the statement is required or
authorized by law to be made under oath.”). And the trial court was entitled to
consider that difference in its ruling. Therefore, the trial court did not abuse its
discretion in denying the appellant’s motion for new trial.
46
Finally, as stated previously in response to the appellant’s second and third
points of error, the evidence of the appellant’s guilt was overwhelmingly strong.
There was evidence from numerous sources that Blumenschein and the appellant
were intimate with each other, that the appellant would frequently give him
expensive gifts, that she offered to have his child, that she named him in her will,
and that they took frequent trips together, sometimes sharing a hotel room (RR. VII
– 299-301) (RR. IX – 162-169, 176-179) (RR. X – 12-13, 26, 274-275) (RR. XI –
79). Furthermore, the appellant admitted to the affair on more than one occasion
(RR. XII – 54) (RR. XI – 83). And she admitted to a friend that she would get in
trouble for the poisoning because she gave Blumenschein the sweet coffee the day
he became ill and because she had access to ethylene glycol in her lab (RR. XII –
71). Thus, any additional evidence concerning another of Blumenschein’s affairs
would not likely have changed the outcome of the trial. See Wallace, 106 S.W.3d
at 108 (holding that trial court does not abuse its discretion in denying a new trial
when the prosecution’s case was strong enough that the new evidence suggested by
the affidavits, even if true, would probably not be so compelling as to bring about a
different result in a new trial). The trial court did not abuse its discretion in
denying the motion for new trial, and the appellant’s first point of error should be
overruled.
47
REPLY TO APPELLANT’S FOURTH POINT OF ERROR
In her fourth and final point of error, the appellant complains about
DeSilva’s identification of her voice in her two anonymous telephone calls to
GlaxoSmithKline. (App’nt Brf. 48-61). This argument fails because DeSilva had a
strong basis for identifying the appellant and there were numerous pieces of
evidence to connect the appellant to the anonymous GlaxoSmithKline caller even
without DeSilva’s identification. Furthermore, the appellant was not harmed by
the admission of the voice identification, which related to a collateral issue in the
case.
The trial court’s ruling on the admissibility of evidence is subject to an abuse
of discretion standard on appeal. See Coffin v. State, 885 S.W.2d 140, 149 (Tex.
Crim. App. 1994). A reviewing court should not reverse a trial judge whose ruling
was within the “zone of reasonable disagreement.” Green v. State, 934 S.W.2d 92,
101 (Tex. Crim. App. 1996). The reviewing court must view the evidence in the
light most favorable to the trial court’s ruling, giving the trial court almost total
deference on its findings of historical fact that are supported by the record.
Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).
48
A. DeSilva had a strong basis for identifying the appellant and
there were numerous pieces of evidence to connect the
appellant to the anonymous GlaxoSmithKline caller even
without DeSilva’s identification.
“[A] pretrial identification procedure may be so suggestive and conducive to
mistaken identification that subsequent use of that identification at trial would deny
the accused due process of law.” Conner v. State, 67 S.W.3d 192, 200 (Tex. Crim.
App. 2001). To determine the admissibility of a pretrial identification, this Court
must use a two-step analysis asking (1) whether the pretrial procedure was
impermissibly suggestive; and (2) if so, whether the suggestive pretrial procedure
gave rise to a very substantial likelihood of irreparable misidentification. Santos v.
State, 116 S.W.3d 447, 455 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d); see
also Neil v. Biggers, 409 U.S. 188, 198 (1972); Aviles-Barroso v. State, 14-14-
00142-CR, 2015 WL 5157472, at *12 (Tex. App.—Houston [14th Dist.] Aug. 27,
2015, no. pet. h.). An analysis under these steps requires an examination of the
totality of the circumstances surrounding the particular case and a determination of
the reliability of the identification. Conner, 67 S.W.3d at 200; Barley v. State, 906
S.W.2d 27, 33 (Tex. Crim. App. 1995). A defendant must prove the pre-trial
identification is unreliable by proving both elements by clear and convincing
evidence. See Santos, 116 S.W.3d at 451.
If the indicia of reliability outweigh the influence of an impermissibly
suggestive pretrial identification, then the identification testimony is admissible.
49
Santos, 116 S.W.3d at 451, 455–56; see Neil, 409 U.S. at 199. Therefore, even if
the pretrial procedure is found to be impermissibly suggestive, identification
testimony nevertheless is admissible if the totality of the circumstances shows no
substantial likelihood of irreparable misidentification. See Ibarra v. State, 11
S.W.3d 189, 195 (Tex. Crim. App. 1999); Adams v. State, 397 S.W.3d 760, 764
(Tex. App.—Houston [14th Dist.] 2013, no pet.). If the totality of the
circumstances indicates that a substantial likelihood of misidentification exists,
then admission of the identification of the defendant amounts to a denial of due
process. See Neil, 409 U.S. at 198–99; Adams, 397 S.W.3d at 764.
The analysis of an identification of a voice differs somewhat from that of an
identification by sight, but the standards used to validate a visual identification are
applicable. Aviles-Barroso, 2015 WL 5157472, at *12; see also Davis v. State, 180
S.W.3d 277, 283 (Tex.App.—Texarkana 2005, no pet.) (analyzing admissibility of
voice identification); Williams v. State, 116 S.W.3d 788, 792 (Tex. Crim. App.
2003) (“‘while one’s voice and handwriting are, of course, means of
communication,’ a voice or handwriting exemplar ‘is an identifying physical
characteristic.’”).
In determining whether an impermissibly suggestive identification procedure
gave rise to a substantial likelihood of irreparable misidentification, this Court
must weigh the following factors: (1) the witness’s opportunity to hear the
50
criminal; (2) the witness’s degree of attention; (3) the accuracy of the witness’s
prior description of the criminal’s voice; (4) the level of certainty demonstrated by
the witness at the confrontation; and (5) the length of time between the initial
contact and the confrontation. See Neil, 409 U.S. at 199; Santos, 116 S.W.3d at
453, 455–56; Aviles-Barroso, 2015 WL 5157472, at *16. Because these factors
are issues of historical fact, this Court must weigh them deferentially in a light
favorable to the trial court’s ruling. See Ibarra, 11 S.W.3d at 195–96; Adams, 397
S.W.3d at 764.
In the present case, there were numerous pieces of evidence to connect the
appellant to the anonymous GlaxoSmithKline caller even without DeSilva’s
identification. An anonymous letter was dropped off to MD Anderson’s conflict-
of-interest chair regarding the GlaxoSmithKline issue in early April 2013 (RR. VII
– 266) (RR. VIII – 277-284) (RR. X – 142-143). The appellant denied writing that
anonymous letter, but surveillance video showed her at the conflict-of-interest
office at the time that the letter was delivered (RR. VII – 266-268, 289-291). On
April 18, a conflict-of-interest board member received an anonymous email
reporting the same GlaxoSmithKline issue (RR. X – 138-140). The email referred
to the appellant and misspelled her first name in the same manner as was done in
the prior anonymous letter and referred to an upcoming ASCO conference, which
meant that the author knew a lot about Blumenschein and his schedule, as the
51
appellant did (RR. X – 140-142). A similar anonymous letter regarding the alleged
conflict of interest was also sent to GlaxoSmithKline and included the allegation
that Toney used the appellant’s fabricated doctor’s note as an excuse after the crash
of the company car (RR. X – 185-188).
While DeSilva was conducting an investigation of the letter, he received two
anonymous phone calls from a woman with a Hispanic accent (RR. X – 196, 201).
He talked with the woman for approximately ten minutes during the first call,
which occurred on April 30, and over thirty minutes during the second call, which
occurred on May 1 (RR. X – 195, 201). The woman with the Hispanic accent
stated that she worked with Blumenschein at MD Anderson and that it was very
important to her that Blumenschein not be made aware that she had reported the
conflict of interest allegation involving him and Evette Toney (RR. X – 204). She
reported that during Blumenschein’s recent hospitalization Toney had told hospital
personnel that she was his common-law spouse, while the appellant was the one
who had filled out the hospital paperwork (RR. X – 205) (RR. XI – 55-56).
DeSilva set up an anonymous email account for the caller so that he could continue
to communicate with her, and she identified herself as “your doctor contact at MD
Anderson” and then directed DeSilva to contact the appellant through her MD
Anderson email account (RR. X – 207, 209-210, 211) (St. Ex. 139). DeSilva
emailed the appellant and attempted to set up a meeting, but the appellant was
52
unwilling to meet personally and would only communicate through email (RR. X –
213-215). Thus, there was strong circumstantial evidence that the appellant was
the anonymous caller to GlaxoSmithKline even without DeSilva’s identification of
her voice.
With regard to the identification itself, DeSilva had a strong basis for
identifying the appellant. He spoke with her during the course of two phone
conversations lasting more than forty minutes total (RR. X – 195, 201).
Furthermore, DeSilva was not your average citizen; he was a trained investigator
with 22 years of experience in law enforcement (RR. X – 184). Thus, his powers
of perception and memory were likely more developed than other listeners,
especially since he was conducting an active investigation on the issue. He
conducted the identification after listening to Blumenschein’s telephone recordings
of the appellant, so the context of the voice was the same (RR. IX – 309) (RR. X –
196, 199, 200-203) (St. Ex. 127). And Blumenschein made six hours of such
recordings, so there was also a sufficient sample size of the appellant’s known
voice for DeSilva to use as a basis for the identification (RR. X – 18) (St. Ex. 127).
DeSilva spoke with the anonymous caller on April 30 and May 1, 2013 (RR.
X – 195, 201). In September 2014, the prosecutors gave DeSilva a CD with
Blumenschein’s recordings and said, “We want you to listen to a tape and see if
you can recognize who this voice is.” (RR. X – 243-244). They also told him that
53
it was a conversation was between Blumenschein and the appellant (RR. X – 244).
DeSilva stated that the “pitch sounded the same, the cadence, the accent, it
sounded like the same person I spoke with on the phone on those two occasions.”
(RR. X – 247). Thus, even if there were an impermissibly suggestive identification
procedure, the substantial corroborating evidence assured that it did not give rise to
a substantial likelihood of irreparable misidentification. The indicia of reliability
outweighed any influence of an impermissibly suggestive pretrial identification.
The trial court did not abuse its discretion in admitting the identification into
evidence, and the appellant’s fourth point of error should be overruled.
B. The appellant was not harmed by the admission of her voice
identification because other evidence linked her to the
GlaxoSmithKline investigation, and that investigation
related to a collateral issue in the case.
Even if this Court believes that due process was violated, this Court should
still affirm the conviction if it determines “beyond a reasonable doubt that the error
did not contribute to the conviction or punishment.” TEX. R. APP. P. 44.2(a); see
Wall v. State, 184 S.W.3d 730, 746 (Tex. Crim. App. 2006). Under Rule 44.2(a),
this Court must “calculate, as nearly as possible, the probable impact of the error
on the jury in light of the other evidence.” McCarthy v. State, 65 S.W.3d 47, 55
(Tex. Crim. App. 2001); Wesbrook v. State, 29 S.W.3d 103, 119 (Tex. Crim. App.
2000). If there is a reasonable likelihood that the error materially affected the
54
jury’s deliberations, then the error is not harmless beyond a reasonable doubt.
Wall, 184 S.W.3d at 746. A finding of harmless error means that the nature of that
evidence is such that it could not have affected the jury’s deliberations or verdict.
Id. The presence of other overwhelming evidence that was properly admitted
which supports the material fact to which the inadmissible evidence was directed
may be an important factor in the evaluation of harm. Id.
In the present case, the evidence supporting the appellant’s guilt was
overwhelming, even without the admission of DeSilva’s identification of the
appellant as the GlaxoSmithKline caller. As stated previously, there was evidence
from numerous sources that Blumenschein and the appellant were intimate with
each other, that the appellant would frequently give him expensive gifts, that she
offered to have his child, that she named him in her will, and that they took
frequent trips together, sometimes sharing a hotel room (RR. VII – 299-301) (RR.
IX – 162-169, 176-179) (RR. X – 12-13, 26, 274-275) (RR. XI – 79).
Furthermore, the appellant admitted to the affair on more than one occasion (RR.
XII – 54) (RR. XI – 83). And she admitted to a friend that she would get in trouble
for the poisoning because she gave Blumenschein the sweet coffee the day he
became ill and because she had access to ethylene glycol in her lab (RR. XII – 71).
Moreover, the GlaxoSmithKline investigation was at best a tangential issue
in the case. The only fact it established was that the appellant was instigating an
55
investigation into the possible conflict of interest between Blumenschein and
Toney as well as Toney’s dishonesty in submitting the appellant’s fraudulent
doctor’s note. But that fact was already well established by other evidence
showing that the appellant likely dropped off a letter with similar content to MD
Anderson’s conflict-of-interest chair (RR. VII – 266-268, 289-291) (RR. VIII –
277-284) (RR. X – 142-143). It was also established by other evidence that she
sent an email probing into such matter to MD Anderson regulators (St. Ex. 143).
Moreover, the appellant made herself available as an enthusiastic resource to both
MD Anderson and GlaxoSmithKline in their investigations of the situation (RR. VI
– 47-50) (RR. VII – 197-198, 265-266) (RR. X – 145-147, 154) (St. Ex. 137).
Thus, it could not come as a surprise that the appellant was connected to yet
another attempt to expose the alleged conflict.
Even if DeSilva’s identification were the only evidence connecting the
appellant to the investigation of the possible conflict of interest between
Blumenschein and Toney, that issue was fairly irrelevant to the case. It did not
address any element of the alleged offense (CR – 23). And it did not dispel any
motive to attempt to kill Blumenschein. At most, it showed that the appellant was
obsessed with Blumenschein, but that fact had already been established by other
evidence in the case. The jury sent out three notes during their deliberations on
guilt, but none dealt with the GlaxoSmithKline investigation (CR – 126, 127, 139).
56
And their guilt-stage deliberations lasted only four hours despite the fact that they
heard from approximately twenty-two guilt-stage witnesses over the course of
eight days of trial testimony (CR – 206-207). Neither prosecutor specifically
mentioned the anonymous calls to GlaxoSmithKline in their closing argument (RR.
XII – 103-120, 174-202). Thus, it is unlikely that DeSilva’s identification
materially affected the jury’s deliberations. The appellant’s fourth point of error
lacks merit and should be overruled.
CONCLUSION
It is respectfully submitted that all things are regular and the conviction
should be affirmed.
DEVON ANDERSON
District Attorney
Harris County, Texas
/s/ Eric Kugler
ERIC KUGLER
Assistant District Attorney
Harris County, Texas
1201 Franklin, Suite 600
Houston, Texas 77002-1923
(713) 755-5826
kugler_eric@dao.hctx.net
TBC No. 796910
57
CERTIFICATE OF SERVICE AND COMPLIANCE
This is to certify that: (a) the word count function of the computer program
used to prepare this document reports that there are 13,765 words in the relevant
sections; and (b) a copy of the foregoing instrument will be served by
efile.txcourts.gov to:
Barbara Drumheller
Attorney at Law
8501 Katy Freeway, Suite 201
Houston, Texas 77024
Barbara Drumheller@gmail.com
/s/ Eric Kugler
ERIC KUGLER
Assistant District Attorney
Harris County, Texas
1201 Franklin, Suite 600
Houston, Texas 77002-1923
(713) 755-5826
TBC No. 796910
Date: October 14, 2015
58