Full opinion text
OPINION Opinion by: CATHERINE STONE, Chief Justice. In April 2008, five patients died and at least five patients suffered adverse episodes while undergoing dialysis at a clinic in Lufkin, Texas. Kimberly Saenz, a licensed vocational nurse employed at the dialysis clinic, was charged by indictment with five counts of aggravated assault involving five separate individuals and one count of capital murder involving five different individuals. A jury found Saenz guilty of capital murder and three counts of aggravated assault. The jury acquitted Saenz on two counts of aggravated assault. Although the State sought the death penalty, the jury sentenced Saenz to 20 years’ imprisonment for each count of aggravated assault and to life in prison without parole for capital murder. On appeal, Saenz presents twenty-one points of error alleging: (1) jury charge error; (2) insufficiency of the evidence; (3) ineffective assistance of counsel; (4) improper exclusion of evidence; and (5) improper admission of expert testimony. We overrule Saenz’s appellate issues and affirm the trial court’s judgment. Factual Background During the month of April 2008, a dialysis clinic experienced an unusual increase in the number of patients who experienced episodes of illness and cardiac arrest while undergoing dialysis treatment. Three patients — Clara Strange, Thelma Metcalf, and Opal Few — experienced a cardiac arrest while undergoing dialysis treatment and died the same day. Two patients— Garlin Kelley and Cora Bryant — had similar experiences, but died several months later. At least five additional patients— Marie Bradley, Debra Oates, Graciela Castaneda, Marva Rhone, and Carolyn Rising-er — had similar experiences but survived. At the time of the incidents, Saenz had been employed at the dialysis clinic for eight months. Depending on schedule requirements, Saenz functioned either as a patient care technician or as a nurse responsible for preparing medications for multiple patients. A. April 28, 2008 On April 28, 2008, Saenz was instructed to work as a patient care technician responsible for four patients. Saenz became “teary-eyed” and was unhappy with this assignment as she preferred to function as the nurse responsible for preparing the medications, a position that had less contact with the patients. While undergoing dialysis treatment that morning, Lurlene Hamilton witnessed Saenz preparing a bleach cleaning solution by pouring bleach into a container. Hamilton then witnessed Saenz place the container on the floor, bend down, and extract bleach into a syringe. Hamilton testified that Saenz appeared nervous. Hamilton then witnessed Saenz approach patient Carolyn Risinger, who was undergoing dialysis treatment, and inject the bleach-filled syringe into Risinger’s intravenous (IV) dialysis line. Hamilton then witnessed Saenz do the same thing to patient Marva Rhone, who was asleep. Hamilton testified that Saenz injected two syringes of bleach into Rhone’s IV and two syringes of bleach into Risinger’s IV and that Saenz disposed of the syringes in the container designated for used syringes, the “sharps container.” Hamilton was very upset by what she witnessed and reported it to another patient care technician, Yazmin Santana. When asked why she did not immediately report the incident as it was unfolding, Hamilton testified that she feared for her own safety. Linda Hall was undergoing dialysis treatment in the chair next to Hamilton, although they were separated by two dialysis machines. Hall testified that she witnessed Saenz place a syringe in her pocket, place a container on the floor that usually contained the bleach cleaning solution, extract bleach with the syringe, and inject the syringe into Rhone’s IV. Saenz then placed the used syringe into the sharps container that was assigned to the dialysis chair adjacent to Rhone. Hall testified that Saenz appeared nervous. Saenz did not use the computer next to Rhone’s chair which would normally be used to chart any medication that was administered to the patient. Hall testified that she was upset by what she witnessed, but did not report it to the dialysis clinic staff until after Hamilton began reporting her observations. Hall explained that she was in disbelief, but that only a matter of seconds transpired between the time she witnessed the injection, heard Hamilton’s commotion, and reported what she had seen. Saenz was told of the allegations against her and was instructed to go home for the day. Following the reports by Hall and Hamilton, the dialysis clinic’s administrators immediately sequestered the two sharps containers alleged to contain the used bleach syringes. The administrators used a testing strip that the clinic routinely used to test the dialysis machines for bleach residue in the water line. The internal chamber of two syringes from each sharps container tested positive for bleach. Thereafter, the Centers for Disease Control (CDC), the Texas Department of Health and Human Services (TDHHS), and the Lufkin Police Department initiated an investigation into the incidents at the dialysis clinic. Most of the dialysis lines from each of the unusual events in April of 2008 were preserved by the dialysis clinic. These lines, as well as all of the sharps containers then in the clinic, were turned over to the police. On April 29, 2008, the clinic voluntarily closed its doors and administrators conducted a mandatory staff meeting. Saenz did not attend the meeting. One of her coworkers, Werlan Guillory, contacted Saenz by phone and Saenz informed him that she was at the Exposition Center with her daughter’s school and that she was not coming to the meeting. Afterwards, Guil-lory drove to the Exposition Center to check on Saenz. Guillory testified that Saenz appeared disheveled, was crying, and did not immediately recognize him. During their conversation, Saenz mentioned an earlier conversation with her husband and then Saenz stated to Guillory “I did not kill those people.” Later that day, Saenz consented to an interview with police. B. April 2008 Deaths Clara Strange On April 1, 2008, Clara Strange was assigned to patient care technician Werlan Guillory. Strange initially complained of shortness of breath, but was given oxygen and seemed to tolerate her dialysis treatment well for several hours. Saenz monitored Guillory’s patients while he was on break. When Guillory returned from his break, he noticed that Strange was unresponsive. Strange was transported to the hospital, but efforts to revive her were unsuccessful. She died on April 1, 2008. Strange’s chart indicated that Saenz had lowered her blood flow rate from 400 to 300. Guillory testified that nothing on the chart warranted lowering the blood flow rate. Strange’s dialysis lines were preserved and sent to a Food and Drug Administration (FDA) lab for analysis. A portion of Strange’s dialysis line tested positive for bleach. A CDC toxicologist concluded that Strange died from injection of bleach into her dialysis line or port. Strange’s blood was not tested for the 3-chlorotyrosine biomarker. Thelma Metcalf On April 1, 2008, Thelma Metcalfs assigned patient care technician was Saenz. Several hours into her dialysis treatment, and approximately thirty minutes after Strange was found unresponsive, Metcalf was also found unresponsive. Metcalf was not breathing and had no pulse. Patient care technician Cory Smith testified that he and Saenz attempted to resuscitate Metcalf with CPR, but Saenz was not performing CPR correctly and Smith had to take over. Contrary to Smith’s testimony, Nurse Dale Sockwell testified that he performed CPR on Metcalf and that Saenz was not around during that time. Metcalf was transported to the hospital but efforts to revive her were unsuccessful. She died on April 1, 2008. Metcalfs chart indicated that Saenz had lowered her blood flow rate from 300 to 200. Patient care technician Candice Lackey testified that lowering the blood flow rate would have been warranted because Metcalfs chart indicated that her blood pressure was approaching the maximum limit. Metcalfs dialysis lines were preserved and sent to a FDA lab for analysis. A portion of Metcalfs dialysis line tested positive for bleach. A CDC toxicologist concluded that Metcalf died from injection of bleach into her dialysis line or port. Metcalfs blood was not tested for the 3-chlorotyrosine biomarker. Garlin Kelley On April 16, 2008, Garlin Kelley’s assigned patient care technician was Sharon Dearmon. Saenz was the nurse assigned to administer Kelley’s medication. Several hours into the dialysis treatment, Dearmon heard the alarm on Kelley’s dialysis machine sound and saw Saenz standing near the machine, preparing to turn off the alarm and reset the machine. Dearmon noticed that Kelley appeared unresponsive, so she instructed Saenz not to reset the machine. Dearmon witnessed an unusual clot in Kelley’s arterial dialysis line. Dearmon performed CPR on Kelley and instructed Saenz to get help. Kelley was transported to the hospital and was resuscitated but never regained consciousness. He died on August 18, 2008. Kelley’s dialysis lines were preserved and sent to a FDA lab for analysis. A portion of Kelley’s dialysis line tested positive for bleach. In addition, a syringe attached to the dialysis line tested positive for bleach. Kelley’s blood sample taken after the incident tested positive for 3-chlorotyrosine. A CDC toxicologist concluded that Kelley died from injection of bleach into his dialysis line or port. Cora Bryant On April 22, 2008, Cora Bryant was assigned to patient care technician Martha Mann. Bryant experienced problems with her blood clotting during her treatment and her dialysis lines had to be replaced. While Mann was taking her break, the alarm sounded on Bryant’s machine. Candice Lackey was in the medicine room and saw Saenz attempting to reset the machine. Lackey testified that administering medication to the patient or the clotting of blood would often cause the machine to alarm. When the machine alarms, blood stops flowing to the patient. At the time of the alarm, Bryant was in stable condition and was watching TV. Lackey returned Bryant’s blood that was in the machine back to her body. Immediately, Bryant asked Lackey “What are you giving me?” Bryant then turned her head and went into a cardiac arrest. Bryant was transported to the hospital and later died on July 15, 2008. Bryant’s dialysis fines were preserved and sent to a FDA lab for analysis. No bleach was detected on Bryant’s dialysis fines; however, Bryant’s blood sample taken after the incident tested positive for 3-chlorotyrosine. Additionally, Bryant’s blood sample showed an elevated level of LDH. A CDC toxicologist concluded that Bryant died from injection of bleach into her dialysis fine or port. Opal Few On April 26, 2008, Opal Few was assigned to patient care technician Donya Heartsfield. Less than thirty minutes into Few’s treatment and while Heartsfield was preparing the medications for Few and her other patients, she heard Few’s alarm sound and noticed that Few was unresponsive. Few was transported to the hospital. Efforts to revive her were unsuccessful and she died on April 26, 2008. Hearts-field did not recall seeing Saenz that day. However, Nurse Sharon Smith testified that earlier in the day, she had instructed Saenz to administer Few’s medication. After Few’s incident, Smith noticed that Few’s computer chart did not reflect that she had been given her medication. Smith testified that she asked Saenz and Saenz responded that she had given Few her medication but that she didn’t chart it. Smith instructed Saenz to record the medication on Few’s chart. Saenz then recorded administering Zemplar to Few at 9:05 A.M. Another patient’s chart indicated that at 9:00 A.M. Saenz was removing the patient’s dialysis lines, a procedure that takes more than five minutes. Few’s dialysis lines were preserved and sent to a FDA lab for analysis. A portion of Few’s dialysis line tested positive for bleach. In addition, a syringe found in a sharps container, labeled as containing Zemplar and designated for Opal Few on 4/26/08, tested positive for bleach. Few’s blood was not tested for the 3-chlorotyro-sine biomarker. A CDC toxicologist concluded that Few died from injection of bleach into her dialysis line or port. C. April 2008 Non-Death Incidents Graciela Castaneda On April 16, 2008, Graciela Castaneda lost consciousness while undergoing dialysis treatment. She was chewing gum during her treatment. The two EMS technicians who transported her to the hospital testified that she had no gum in her airway; however, a record from the hospital indicated that Castaneda may have had gum in her throat. Castaneda was diagnosed with pneumonia at the hospital. Castaneda recalled seeing Saenz during her treatment. Castaneda’s husband testified that upon later seeing Saenz in the newspaper she said, “Man, I didn’t know she’d do that to me.” Prior to the incident, Castaneda had heart problems. Following the incident, Castaneda developed problems with her memory and required the use of oxygen. Castaneda’s dialysis lines were preserved and sent to a FDA lab for analysis. Test results of the lines were inconclusive for the presence of bleach. Castaneda’s blood tested positive for 3-chlorotyrosine. Additionally, Castaneda’s blood sample showed an elevated level of LDH. A CDC toxicologist concluded that Castaneda was injured from injection of bleach into her dialysis line or port. Marie Bradley On April 23, 2008, Marie Bradley was assigned to patient care technician Tammi Grant. Saenz was charted as administering medication to Bradley. During Bradley’s session, she had an event where her blood pressure dropped, requiring her to be transported to the hospital. Bradley woke up three and a half days later with no memory of April 23, 2008. Bradley’s dialysis lines were preserved and sent to a FDA lab for analysis. A portion of Bradley’s dialysis line tested positive for bleach. A syringe labeled as containing Zemplar and designated for Marie Bradley on 4/23/08 tested positive for bleach. Bradley’s blood tested positive for 3-chlorotyrosine. Additionally, Bradley’s blood sample showed an elevated level of LDH. A CDC toxicologist concluded that Bradley was injured from injection of bleach into her dialysis line or port. Debra Oates On April 26, 2008, Debra Oates was assigned to patient care technician Werlan Guillory. Saenz was charted as administering medication to Oates early in her session. Several hours later, near the end of her treatment session, Oates experienced a strange taste in her mouth and asked Saenz, “What did you give me?” Nurse Sharon Smith recalled seeing Saenz administering something with a syringe and then disposing of the syringe in the sharps container, although Smith was not sure when during the session she witnessed this. Oates experienced a drop in blood pressure, chest pain, trouble breathing, and felt as if her bones were being crushed. She became nauseated, started vomiting, and her access site would not stop bleeding. She was transported to the hospital where she was treated for several days. Oates had experienced a similar incident in January 2008 that required hospital treatment. Oates’s dialysis lines were not preserved for testing. Oates’s blood tested positive for 3-chlorotyrosine. Additionally, Oates’s blood sample showed an elevated level of LDH. A CDC toxicologist concluded that Oates was injured from injection of bleach into her dialysis line or port. Mama Rhone On April 28, 2013, Marva Rhone was assigned to patient care technician Angie Rodriguez. Several hours into her session, Rodriguez took a break. Rodriguez testified that either patient care technician Tammi Grant or Saenz was responsible for monitoring her patients during her break. Grant testified that she monitored Rodriguez’s patients while Rodriguez took a break and that she never saw Saenz. When Rodriguez returned, Rhone’s blood pressure had dropped and she reported that she did not feel well, was uncomfortable, and experienced pain in her ribs. Rhone became nauseated, weak, and had difficulty speaking. Rhone’s illness was charted as lasting six minutes. Rhone did not require treatment at the hospital. Rhone had recently been involved in a car accident which caused discomfort in her ribs. Hall and Hamilton testified that they witnessed Saenz inject bleach into Rhone’s dialysis line. Rhone’s dialysis lines were preserved and sent to a FDA lab for analysis. A portion of Rhone’s dialysis line tested positive for bleach. Rhone’s blood tested positive for 3-chlorotyrosine. Additionally, Rhone’s blood sample showed an elevated level of LDH and potassium. A CDC toxicologist concluded that Rhone was injured from injection of bleach into her dialysis line or port. Carolyn Risinger On April 28, 2013, Carolyn Risinger was assigned to patient care technician Tammi Grant. During her session, Risinger began flopping in her chair, felt hot, and was given oxygen and saline. Grant testified that she may have taken a break, but also testified that she never saw Saenz that morning. Patient Jimmy Grammer testified that he watched Risinger throughout her session and never saw Saenz approach Risinger’s machine. Risinger did not require hospital treatment. Risinger did not submit to a blood test and her dialysis lines were not preserved. Hamilton testified that she witnessed Saenz inject bleach into Risinger’s dialysis line. JURY Charge Error In two points of error Saenz claims the jury charge erroneously failed to require unanimous agreement about which individuals Saenz allegedly killed, and about whether the patients were killed in a single criminal transaction or as part of the same scheme or course of conduct. The Court’s charge on capital murder (Count VI) stated in pertinent part as follows: [I]f you find from the evidence beyond a reasonable doubt that on or about the 26th day of April, 2008, in Angelina County, Texas, the Defendant, Kimberly Saenz, did intentionally or knowingly cause the death of more than one of the following persons: Clara Strange, Thelma Metcalf, Garita Kelley, Cora Bryant, or Opal Few during the same criminal transactions or during different criminal transactions, but the murders were committed pursuant to the same scheme or course of conduct, by introducing sodium hypochlorite, commonly known as bleach, or other chlorinating agent into the body’s bloodstream, then you will find the Defendant guilty of the offense of capital murder as charged in the Indictment. During closing argument, the State commented: “The State has the burden of proof to prove that the Defendant caused the death of at least two of the five 'victims. You don’t have to agree as to which two.” Saenz argues that the jury was not told that it must unanimously agree who, or how many people, she allegedly killed, or whether this crime occurred as part of a single transaction or as part of the same scheme or course of conduct. Citing the unanimous verdict requirements of the Texas Constitution and the Code of Criminal Procedure, Saenz contends the jury must unanimously agree on the identity of the victim alleged to have been murdered and the number of additional murders committed as the circumstance aggravating the murder to capital murder. The State responds that a court may instruct a jury in the disjunctive on alternative theories of the same offense without offending the right to a unanimous verdict. The State further argues that the requirement that the jury unanimously agree on the identity of the victim applies only when there is a single victim, unlike capital murder under Section 19.03(a)(7) which is “a single penal offense that has many legal theories for proving the same crime, including proof that there was more than one victim and more than one way to group those deaths (same criminal transaction or scheme or course of conduct.)” A. Standard of Review “Our first duty in analyzing a jury-charge issue is to decide whether error exists.” Ngo v. State, 175 S.W.3d 738, 743 (Tex.Crim.App.2005). “Then, if we find error, we analyze that error for harm.” Id. “Both Article V, Section 13 of the Texas Constitution and Article 36.29(a) of the Texas Code of Criminal Procedure require unanimous jury verdicts in all felony cases.” Leza v. State, 351 S.W.3d 344, 356 (Tex.Crim.App.2011). “To discern what a jury must be unanimous about, appellate courts examine the statute defining the offense to determine whether the Legislature ‘creat[ed] multiple, separate offenses, or a single offense’ with different methods or means of commission.” Pizzo v. State, 235 S.W.3d 711, 714 (Tex.Crim.App.2007) (quoting Jefferson v. State, 189 S.W.3d 305, 311 (Tex.Crim.App.2006)). Jury unanimity is required on the “essential elements of the offense,” but is generally not required on “alternate modes or means of commission.” Id. B. Unanimity on Same Criminal Transaction or Common Scheme A person commits capital murder if: (1) the person commits murder as defined under Section 19.02(b)(1); and (2) the person commits one of the nine aggravating circumstances listed in Sections 19.03(a)(1) through 19.03(a)(9). Tex. Penal Code Ann. § 19.03(a) (West 2013). In the instant case, Saenz was charged with the aggravating circumstance contained in Section 19.03(a)(7), which requires the person to have murdered more than one person: (A) during the same criminal transaction; or (B) during different criminal transactions but the murders are committed pursuant to the same scheme or course of conduct. Id. at § 19.03(a)(7). Each of the nine aggravating circumstances listed in Section 19.03(a) are “alternate theories” of committing the same capital murder offense. Kitchens v. State, 823 S.W.2d 256, 258 (Tex.Crim.App.1991). Thus, when a single capital murder offense is alleged, the jury may be charged disjunctively and is not required to unanimously agree.about which aggravating circumstance applies. Id. This is true regardless of whether the aggravating circumstances are found in the same or different Section 19.03(a) subsections. Gamboa v. State, 296 S.W.3d 574, 584 (Tex.Crim.App.2009). Further, the jury is not required to unanimously agree on the aggravating circumstance even when the conduct constituting the aggravating circumstance involves different victims. Davis v. State, 313 S.W.3d 317, 341-42 (Tex.Crim.App.2010) (holding jury verdict unanimous where jury was charged with alternative aggravating circumstance of burglary involving two different victims); Cabrialez v. State, No. 13-04-163-CR, 2006 WL 146098, *2-3 (Tex.App.-Corpus Christi Jan. 19, 2006, no pet.) (mem. op., not designated for publication) (holding jury verdict unanimous where jury was charged with alternate aggravating circumstance of robbery or burglary against any one of five named victims). Saenz contends that subsections (A) and (B) of Section 19.03(a)(7) of the Texas Penal Code constitute separate offenses and thus “a unanimous verdict is impossible if [some] jurors believed that Ms. Saenz murdered multiple people in one criminal transaction [while] other jurors believed she did so as part of the same scheme or course of conduct.” To illustrate her point, Saenz includes the following example: For example, if Ms. Saenz allegedly killed Clara Strange and Thelma Metcalf in one criminal transaction on the same day, that is one capital murder offense. If she allegedly killed Garlin Kelley and Cora Bryant on different days, but pursuant to the same course of conduct, that is another capital offense. If she allegedly killed all five patients, pursuant to the same course of conduct, that is another capital offense. To ensure unanimity, the trial court should have instructed the jury that its verdict must be unanimous as to each specific offense. We disagree. Just as each of the nine aggravating circumstances listed in Section 19.03(a) are alternative theories of the same capital murder offense, subsections (A) and (B) of Section 19.03(a)(7) also are alternate theories of the same capital murder offense. Alternative theories can exist involving any of the aggravating circumstances found in Section 19.03(a), which necessarily includes subsections (A) and (B) of Section 19.03(a)(7). Indeed, in Gamboa, one of the aggravating circumstances was an additional murder under Section 19.03(a)(7) while the other aggravating circumstance was a robbery under Section 19.03(a)(2). 296 S.W.3d at 582. Accordingly, the jury was not required to unanimously agree on the alternate theories of capital murder as alleged under subsections (A) and (B) of Section 19.03(a)(7). C. Victim Identity Unanimity It is established Texas law that when the charged offense is murder, the jury must unanimously agree about who was murdered because each murder victim is considered a separate offense. See Johnson v. State, 364 S.W.3d 292, 295-96 (Tex.Crim.App.2012); Hisey v. State, 129 S.W.3d 649, 652 (Tex.App.-Houston [1st Dist.] 2004, pet. dism’d). However, it is not established whether the jury is required to unanimously agree on exactly who was murdered if the charged offense is capital murder with multiple murders serving as the aggravating circumstance. That question is squarely presented in this case. 1. Unanimity on Predicate Murder Victim Saenz argues that the jury must unanimously agree on the identity of the predicate victim who was murdered and the number of additional victims who were murdered as the aggravating circumstance. This argument finds some support in the law. In Graham v. State, 19 S.W.3d 851, 852 (Tex.Crim.App.2000), the jury was charged with finding that Graham committed capital murder by: (1) the murder of Hurtado and Giraldo in the same criminal transaction; (2) the murder of Hurtado while in the course of robbing him; and (3) the murder of Garcia-Castro while in the course of robbing him. For purposes of severance under Texas Penal Code Section 3.04(a), Graham argued that the jury was charged with two distinct capital murder offenses based on the identity of the victim who was murdered, i.e., (1) the murder of Hurtado with the alternative aggravating circumstances being the murder of Giraldo or the robbery of Hurtado; and (2) the murder of Garcia-Castro with the aggravating circumstance being the robbery of Garcia-Castro. Id. The State argued the charge alleged different theories for committing one offense of capital murder. Id. The Court of Criminal Appeals held that the charge alleged two capital murder offenses because “two of the three paragraphs allege different murders as the basis for the capital charge.” Id. at 853 (emphasis in original). The court explained that the murder of Hurtado and the murder of Garcia-Castro were “two distinct capital offenses” because there were “multiple murders rather than multiple theories.” Id. at 854. Accordingly, Graham suggests that each murder victim constitutes a separate offense of capital murder, which would require the jury to unanimously agree on the identity of the predicate murder victim. 2. Unanimity on Murder of More than One Person In its more recent decision in Saenz v. State, 166 S.W.3d 270 (Tex.Crim.App.2005), however, the Court of Criminal Appeals suggests that a jury is permitted to return a general verdict of capital murder without specifying which victims were murdered. In Saenz, John Saenz was indicted with three counts of capital murder. 166 S.W.3d at 271. In the indictment, Count I alleged the murder of Torres aggravated by the murders of Bravo and Cain in the same criminal transaction. See Saenz v. State, 131 S.W.3d 43, 49 (Tex.App.-San Antonio 2003), aff'd, 166 S.W.3d 270 (Tex.Crim.App.2005). Count II alleged the murder of Bravo aggravated by the murders of Torres and Cain. See id. Count III alleged the murder of Cain aggravated by the murders of Torres and Bravo. See id. Saenz was found guilty as to each count and sentenced to three concurrent life sentences. See id. at 45. Saenz then appealed this conviction to this court. Because Section 19.03(a)(7) necessarily requires the murder of more than one person, this court distinguished it from “assault-type offenses that require only one victim.” Id. at 52. We held that “the allowable unit of prosecution for section 19.03(a)(7)(A) is more than one victim.” Id. We explained that, “[i]f the allowable unit of prosecution is more than one victim, Saenz necessarily committed only one capital murder. All three counts contain the same victims, the same allowable unit of prosecution. All three counts, therefore, constitute only one offense of capital murder. Because the indictment states only one allowable unit of prosecution, Saenz can be convicted of only one offense.” Id. at 52-53. The Court of Criminal Appeals affirmed our decision in Saenz. In construing the statute, the court distinguished 19.03(a)(7) from the other aggravating circumstances that only require one victim, concluding “the statute reflects that the killing of at least two persons allows the State to charge a single count of capital mur-der_” 166 S.W.3d at 273. The court then looked at the legislative history of Section 19.03(a)(7) and observed that the drafters of the bill were not seeking a way to obtain multiple death penalties against mass murderers, but rather were making it possible to execute mass murderers. Id. The court concluded that “the most reasonable interpretation of the statute and its legislative intent is that, under the circumstances presented here, the statute allows only a single capital murder conviction. Accordingly, we hold that the Double Jeopardy Clause of the Fifth Amendment was violated when the State charged appellant with three separate counts of capital murder under Section 19.03(a)(7)(A) because the charges rely on the same three murders for each charge.” Id. at 274. 3. Analysis The Court of Criminal Appeals has held that the unit of prosecution for capital murder under Section 19.03(a)(7) is the murder of “at least two persons.” Saenz, 166 S.W.3d at 273. In extending the Saenz holding to both 19.03(a)(7) sub-sections, the Court of Criminal Appeals recently re-affirmed that “the allowable unit of prosecution for this statute is not each individual, but the killing of more than one individual.” Ex Parte Milner, 394 S.W.3d 502, 508 (Tex.Crim.App.2013). Although Saenz determined the unit of prosecution in the Double Jeopardy context, the Court of Criminal Appeals has described its Double Jeopardy and jury unanimity jurisprudence as “closely intertwined strands” that “address the same basic question” of whether “different legal theories of criminal liability comprise different offenses” or whether “they comprise alternate methods of committing the same offense.” Huffman v. State, 267 S.W.3d 902, 905 (Tex.Crim.App.2008); see Villanueva v. State, 227 S.W.3d 744, 747 (Tex.Crim.App.2007) (doubting that the Legislature would intend for the court to construe an offense in one way for double jeopardy purposes but in another way for jury unanimity purposes). A jury “must unanimously agree about the occurrence of a single criminal offense, but they need not be unanimous about the specific manner and means of how that offense was committed.” Young v. State, 341 S.W.3d 417, 422 (Tex.Crim.App.2011). The “manner and means” of committing a criminal offense refers to the actus reus of the crime. Sanchez v. State, 376 S.W.3d 767, 773 (Tex.Crim.App.2012). Thus, when several different acts constitute the manner and means of committing a single criminal offense as opposed to the commission of several criminal offenses, the jury need only unanimously agree that the single offense was committed. Jefferson, 189 S.W.3d at 311; Cosio v. State, 353 S.W.3d 766, 772 (Tex.Crim.App.2011); Pizzo, 235 S.W.3d at 715. The Court of Criminal Appeals has defined the single offense under Section 19.03(a)(7) as the murder of more than one person. Saenz, 166 S.W.3d at 273; Ex Parte Milner, 394 S.W.3d at 508. Therefore, when a jury unanimously agrees that a defendant murdered more than one person, it unanimously agrees that the defendant committed a single offense of capital murder under Section 19.03(a)(7). Although Graham held that each predicate murder victim constituted a separate offense of capital murder, the Saenz court distinguished that holding as applying only to the Section 19.03(a) subsections that involve only one victim, unlike Section 19.03(a)(7) which necessarily involves more than one victim. Saenz, 166 S.W.3d at 273. Indeed, the requirement that the jury must unanimously agree on the identity of the predicate murder victim of a capital murder offense is derived from the concept that each predicate murder victim constitutes a separate offense. See Young, 341 S.W.3d at 423-24. It follows that where each predicate murder victim does not constitute a separate offense, the jury need not unanimously agree on that victim’s identity. The Dallas Court of Appeals applied Saenz to a jury unanimity issue in Anderson v. State, No. 05-06-00233-CR, 2007 WL 2004896, at *1-2 (Tex.App.-Dallas Jul. 12, 2007, pet. ref'd) (mem. op., not designated for publication). Anderson’s jury was charged disjunctively on four different theories of capital murder: (1) murder of Brown aggravated by murders of Hernandez or Pena; (2) murders of Hernandez and Pena; (3) conspiracy to commit robbery during which Hernandez and Pena were murdered; or (4) conspiracy to commit felony drug possession during which Hernandez and Pena were murdered. The court concluded that all four paragraphs described “different methods of committing the single offense of capital murder.” Id. at *2. Although some jurors could have concluded that Brown was murdered and some jurors could have concluded that Brown was not murdered, the court held the jury was only required to unanimously agree that Anderson committed the single offense of capital murder. Id. Therefore, based on the Texas Court of Criminal Appeals’ holding in Saenz, we conclude that the jury charge in the instant case afforded Saenz her right to a unanimous jury verdict as the jury unanimously agreed that she committed a single offense of capital murder under Section 19.03(a)(7). Legal Sufficiency of the Evidence In points of error three and four, Saenz contends the evidence is legally insufficient to support the capital murder conviction or the convictions of aggravated assault. The State responds that the combined direct and circumstantial evidence was sufficient for a rational juror to find guilt beyond a reasonable doubt. A. Standard of Review “In determining whether the evidence is legally sufficient to support a conviction, a reviewing court must consider all of the evidence in the light most favorable to the verdict and determine whether, based on that evidence and reasonable inferences therefrom, a rational fact finder could have found the essential elements of the crime beyond a reasonable doubt.” Gear v. State, 340 S.W.3d 743, 746 (Tex.Crim.App.2011) (citing Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). “[Wjhen viewing the evidence in the light most favorable to the verdict, ‘the reviewing court is required to defer to the jury’s credibility and weight determinations because the jury is the sole judge of the witnesses’ credibility and the weight to be given their testimony.’ ” Winfrey v. State, 393 S.W.3d 763, 768 (Tex.Crim.App.2013) (quoting Brooks v. State, 323 S.W.3d 893, 899 (Tex.Crim.App.2010)). “Circumstantial evidence is as probative as direct evidence in establishing guilt, and circumstantial evidence alone can be sufficient to establish guilt.” Id. at 771 (citing Hooper v. State, 214 S.W.3d 9, 13 (Tex.Crim.App.2007)). This court considers “all evidence in the record of the trial, whether it was admissible or inadmissible.” Id. at 767 (quoting Dewberry v. State, 4 S.W.3d 735, 740 (Tex.Crim.App.1999)). “[I]t is not necessary that every fact point directly and independently to the defendant’s guilt; it is enough if the conclusion is warranted by the combined and cumulative force of all the incriminating circumstances.” Johnson v. State, 871 S.W.2d 183, 186 (Tex.Crim.App.1993). We measure sufficiency of the evidence by “the elements of the offense as defined by the hypothetically correct jury charge for the case.” Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App.1997). B. Discussion As to Clara Strange, Thelma Metcalf, Garlin Kelley, Opal Few, and Cora Bryant, the State had the burden of proving beyond a reasonable doubt that (1) Saenz (2) intentionally or knowingly (3) caused the death (4) of more than one person (5) by injecting bleach into their bloodstreams (6) either during the same criminal transaction or during different criminal transactions, but the murders were committed pursuant to the same scheme or course of conduct. Tex. Penal Code Ann. § 19.03(a)(7) (West 2013). As to Marie Bradley, Debra Oates, Graciela Castaneda, Marva Rhone, and Carolyn Risinger, the State had the burden of proving beyond a reasonable doubt that (1) Saenz (2) intentionally, knowingly, or recklessly (3) exhibited a deadly weapon during the commission of an assault (4) by injecting bleach into their bloodstreams. Tex. Penal Code Ann. § 22.02(a) (West 2011). 1. Evidence of Bleach Injection Saenz argues that the evidence is insufficient to show that each patient was injured by an injection of bleach. Rather, Saenz contends the injuries could have been caused by the “myriad of chronic and severe illnesses complicated by dialysis treatment.” Moreover, Saenz argues that none of the patients exhibited the “known indicators of bleach poisoning.” The State’s evidence of injury by bleach injection falls into three categories: (1) eyewitness testimony that Saenz injected bleach into Rhone and Risinger; (2) the presence of bleach in the dialysis lines and in syringes; and (3) the presence of the 3-ehlo-rotyrosine biomarker in all of the patients whose blood was tested shortly after their respective incidents. a. Evidence of Bleach in Dialysis Lines Saenz argues that presence of bleach in the dialysis lines is insufficient because there is no evidence of bleach at the point where the lines enter the patient’s body, and bleach was detected in the blood path on the dialysis lines of only Opal Few. Further, Saenz contends there was un-controverted testimony establishing that the dialysis machine would have had to be turned off and the blood not flowing when the detected bleach was introduced into the line. Thus, Saenz argues that a positive result is either the result of contamination during the transporting of the dialysis lines to the lab or bleach being introduced after the machine was turned off following a treatment session. The State responds that the positive test results of bleach and chlorate on “numerous items” is consistent with a bleach exposure. The dialysis lines were analyzed by an FDA laboratory. David Jackson, an FDA forensic chemist, testified that either bleach or chlorate was detected in the lines of Rhone, Few, Strange, Metcalf, and Kelley. Jackson testified that in his opinion, the use of saline to push the blood through the dialysis lines would account for the negative bleach or chlorate readings in other parts of the dialysis lines. Defense expert Dr. Jonathan Neidigh, a university chemist, opined that he would expect to see evidence of bleach in other places of the dialysis lines downstream of the injection point if the bleach had been injected while the blood was moving. Although Saenz points to the testimony of Nurse Candice Lackey as evidence that the dialysis machine would have had to be turned off at the point of a bleach injection, the record does not conclusively establish that fact. At the time of Lackey’s testimony on the subject, it appears she was using a demonstrative and was pointing at various parts of the dialysis machine to explain her testimony. Therefore, the jury was in a better position to understand Lackey’s testimony in its entirety. Ultimately, it is within the jury’s province to evaluate the weight and credibility of the evidence. A rational juror could have found that Jackson’s testimony was more credible than that of Neidigh or Lackey. Additionally, the FDA analysis found bleach on the inside of Kelley and Few’s syringes dated for the day of their incident. Kelley’s syringe was attached to his dialysis line. Bleach was also detected on the inside of other syringes found inside of the sharps containers. The jury heard testimony that there was no reason for bleach to be either inside the patient syringes or on the inside of the dialysis lines. A CDC expert, Dr. Michael Schwartz, reviewed the FDA test results and concluded that the patients were injected with bleach. Hall and Hamilton testified that they witnessed Saenz injecting bleach. Given the totality of the evidence, a rational juror could have concluded that bleach was injected into the dialysis lines. b. 3-chlorotyrosine Evidence Saenz also challenges the sufficiency of the 3-chlorotyrosine evidence that was used to establish the presence of bleach in the blood samples of several patients. In collaboration with the CDC and the local health department, Dr. Mark Sochaski conducted a blind study of 54 blood samples from dialysis clinic patients. Some of the samples were taken from complainants after they had experienced adverse incidents during dialysis treatment in April 2008. Other samples were control samples taken from patients, at either the dialysis clinic or a neighboring dialysis clinic, who had not experienced an adverse incident. The study was “blind” in that only the local health department and not Dr. Socha-ski knew the patients’ identities. Dr. So-chaski detected no levels of the biomarker 3-chlorotyrosine in the control patients’ samples; however, he detected high levels in the blood samples taken from Garlin Kelley, Cora Bryant, Marie Bradley, Debra Oates, Graciela Castaneda, and Marva Rhone. Blood samples were not available for Clara Strange, Thelma Metcalf, Opal Few, and Carolyn Risinger. 3-chlorotyro-sine is naturally produced by the body and has been found in low levels in patients of dialysis, patients fighting an infection, or those who have recently had a heart attack. The presence of 3-chlorotyrosine can also indicate the blood’s exposure to chlorine from outside of the body. Because the levels of 3-chlorotyrosine in the complainants were much higher than any levels recorded as a result of being naturally produced by the body, Dr. Sochaski concluded that the complainants had been externally exposed to a chlorinating compound. Saenz argues that the presence of 3-chlorotyrosine is not sufficient evidence that bleach was injected into the patients because (1) the original Sochaski study supporting the test results was conducted by exposing rats to chlorine gas and is inapplicable to humans, and (2) the presence of 3-chlorotyrosine is not solely indicative of bleach poisoning because the human body naturally produces 3-chloro-tyrosine in certain situations. A reviewing court must distinguish between claims of improperly admitted evidence and claims of insufficient evidence. Moff v. State, 131 S.W.3d 485, 490 (Tex.Crim.App.2004). When reviewing for legal sufficiency of the evidence, we must consider all evidence before the jury at trial, whether it was properly or improperly admitted. Id. Although Saenz challenges the admissibility of the 3-chlorotyrosine evidence in points of error sixteen through twenty-one, we review that evidence in a sufficiency challenge as if it were properly admitted. Saenz argues that the presence of 3-chlorotyrosine is not sufficient evidence of bleach exposure because 3-chlorotyrosine is naturally produced in the human body. Saenz points to evidence that “levels are higher in patients on dialysis, patients with cardiac disease or following heart attacks, and in patients fighting an infection.” Saenz argues that these are equally plausible explanations for the 3-chlorotyrosine levels, pointing to Kelley who had E.coli pneumonia and Hepatitis C at the time of his incident and also to Bryant who suffered from myocardial fibrosis and cirrhosis of the liver. However, Dr. Schwartz, a medical officer with the CDC, testified that injection of bleach caused the 3-chlorotyr-osine levels in the complainants. Dr. Schwartz explained that the 3-chlorotyro-sine levels in the complainants were 300 to 400 times greater than what would be expected from the levels that would be naturally produced by a person undergoing dialysis. Likewise, Dr. Schwartz explained that the 3-chlorotyrosine levels in the complainants were 20 to 70 times higher than what would be expected from the levels naturally produced by a patient who had experienced a heart attack. In addition, Dr. Schwartz testified that consistent with an external exposure to bleach, the levels of 3-chlorotyrosine in the complainants steadily declined over the seventy-two hours following their admission to the hospital, with the highest levels measured close to the time of the patient’s incident at the clinic. Dr. Schwartz explained that if the presence of 3-chlorotyrosine were caused by an inflammation of the body as a result of some sort of infection, he would expect to see steady levels of 3-chlorotyro-sine, not the steadily declining levels shown in the complainants. Likewise, Dr. Schwartz also would have expected to see steady 3-chlorotyrosine levels after a heart attack because the heart muscle dies and slowly seeps damaged cells. Dr. Schwartz also explained that he tested the blood of a “control patient,” Oralia Torres, who was not suspected to have been injected by bleach. Torres and Cora Bryant both had their dialysis treatment at the dialysis clinic on April 22, 2008 and were seated one chair apart. Bryant’s treatment ended in her cardiac arrest that sent her to the hospital. Torres had an uneventful dialysis treatment. On April 24, 2008, Torres had to visit the hospital due to an infection. The blood samples taken on that day from Torres were negative for 3-chlorotyrosine. The blood sample for Bryant taken the day of her incident was positive for 3-chlorotyrosine. Dr. Schwartz concluded that each of the complainants was injured by the injection of sodium hypochlorite or bleach into their dialysis line. Saenz further contends the jury discredited the 3-chlorotyrosine evidence when it acquitted Saenz as to Graciela Castaneda because Castaneda’s results showed one of the highest levels of 3-chlorotyrosine. Saenz contends it is irrational that the jury would convict as to Cora Bryant but acquit as to Castaneda when both patients’ blood samples were positive for 3-chlorotyrosine but both had dialysis lines that did not test positive for bleach. The State responds that the jury did not discredit the 3-chlo-rotyrine evidence when it acquitted Saenz as to Castaneda’s injuries. Rather, the jury could have rationally concluded that Castaneda was injected with bleach, but that her injuries were caused by her choking on a piece of chewing gum. The jury heard conflicting evidence regarding whether Castaneda’s injuries were caused by choking on gum. Castaneda testified that she would chew gum during her dialysis treatment. The two EMS technicians who transported Castaneda to the hospital on April 16, 2008 testified that she was not breathing when they arrived at the dialysis clinic. One EMS technician testified that he attempted to place a tube in Castaneda’s throat which required a visual inspection of the throat. He did not recall seeing any gum in Castaneda’s throat and stated that he would have documented such an observation. He testified that he was ultimately unable to insert the tube because of Castaneda’s clenched teeth. He had used a suction device to clear Castaneda’s throat of any secretions and did not see any gum. The second EMS technician corroborated this account. However, hospital records included the notation “EMS found chewing gum in airway as per RN was in PEA.” Neither EMS technician could explain this notation. Defense expert Dr. Michael Germain opined that Castaneda suffered a respiratory arrest related to an obstructed airway due to chewing gum. Defense expert Dr. Amy Gruszecki opined that Castaneda’s injury resulted from a combination of choking on gum and pneumonia. Although it is possible that the jury may have given weight to the gum choking theory, other evidentiary differences existed between Castaneda and Bryant. For example, several eyewitnesses provided a vivid account of Bryant’s cardiac arrest, which resulted immediately after the nurse returned her blood. The details of Castaneda’s event, however, were provided at trial by Castaneda herself, who appeared to be plagued by memory problems. Castaneda described her incident as merely losing consciousness. Castaneda was also diagnosed with pneumonia at the time of her incident. The fact that the jury chose to acquit Saenz as to Castaneda does not necessarily mean that it discredited the 3-chlorotyrosine evidence, the other factual differences could have caused the jury to reach its different findings. c. Other Evidence of Bleach Injection Saenz argues that none of the victims evidenced known symptoms of bleach poisoning. The jury heard evidence that injecting bleach into the bloodstream could cause a cardiac arrest and trouble breathing. Symptoms can also include falling blood pressure, rapid heartbeat, or the complete cessation of blood pressure or heartbeat. Defense expert Dr. Gruszecki opined that the injection of bleach into the blood stream would cause burning, swelling, and redness. However, Dr. Gruszecki conceded during cross-examination that her opinion was based more on what one would practically expect from a bleach exposure based on the hazardous material guidelines for bleach. While there was no evidence of burning, swelling, or redness, each patient exhibited evidence of a bleach exposure consistent with a cardiac arrest or difficulty breathing. The exception would be in the cases of Castaneda and Risinger, and the jury acquitted as to those patients. Saenz also argues that none of the alleged victims’ blood samples showed signs of hemolysis. Hemolysis is the breakdown of red blood cells which would result when the blood is exposed to bleach. During hemolysis, the red blood cells will burst, creating elevated levels of potassium and the LDH enzyme. Potassium levels, however, are lowered by the introduction of epinephrine. While normal potassium levels were found in Metcalf, Kelley, Few, Bryant, Bradley, and Castaneda, each of these patients received epinephrine during their emergency. Rhone was the only patient with an elevated potassium level and Rhone did not receive epinephrine. Dr. Schwartz analyzed the LDH levels of Bryant, Oates, Castaneda, Bradley, and Rhone, who were the patients who survived long enough at the hospital to give a viable blood sample. Dr. Schwartz compared the patients’ LDH levels after the event with the levels indicated in routine blood tests before the event and concluded that the source of the elevated LDH levels was acute hemolysis. A rational juror could have concluded that the complainants evidenced symptoms consistent with a bleach injection. Lastly, Saenz argues that with the exception of Kelley and Bryant, each of the patient deaths was certified by the medical examiner as being caused by natural causes. Saenz argues that the death certificates for Kelley and Bryant were delayed and that the medical examiner certified their causes of death as exposure to bleach only after he relied on Dr. Socha-ski’s study. The defense expert forensic pathologist, Dr. Gruszecki, testified that in her opinion each of the patients died as a result of natural causes related to their pre-existing medical conditions. However, the jury heard considerable evidence from which it could conclude the deaths were caused by bleach injection. In addition to Dr. Schwartz’s testimony, the jury heard from Dr. Imran Nazeer that in his twelve years as a nephrologist, only two patients had died while undergoing dialysis treatment. Dr. Nazeer also testified regarding a recent study finding that the chance of having a cardiac arrest during dialysis treatment was “very rare” — a 0.007% chance. The jury could have also considered that with the exception of Kelley and Bryant, who lingered for several months after their incident, the other deaths were certified before the police had fully completed their investigation and before Dr. Soehaski had completed his study of the dialysis clinic patients. Lastly, the jury could have rationally given more weight to the medical examiner who actually examined the patients, rather than the defense expert who had not examined them, but relied upon a review of their medical history. £ Evidence Connecting Saenz Saenz contends there is no evidence that she injected bleach into anyone and challenges the eyewitness testimony of Hall and Hamilton. Saenz suggests this eyewitness testimony is unreliable because both Hall and Hamilton were elderly, suffered from poor eyesight, and provided different stories. Specifically, she argues that while both testified that Saenz drew up bleach with a syringe and injected the bleach into Rhone’s line, neither was explicit that it was same syringe. Saenz contends that even if Hall and Hamilton witnessed her extracting bleach into a syringe, doing so was a common practice at the clinic for the purposes of preparing the bleach cleaning solution. Moreover, Saenz argues that the jury disregarded the testimony of Hall and Hamilton when it acquitted her as to Risinger’s aggravated assault. The State responds that the cumulative force of the direct and circumstantial evidence establishes that Saenz injected bleach into the patients. The State claims that once the jury concluded that Saenz injected bleach into Rhone, the jury could rationally infer that she was responsible for the other injuries caused by a bleach injection. Moreover, the State points to evidence showing that Saenz was working at the facility on each day when the incidents occurred. The State also points to “incriminating statements” made by Saenz. a. Eyewitness Credibility The jury heard live testimony from Hall and two recorded depositions from Hamilton. In 2008, Hall was 55 years old and Hamilton was 66 years old. During Hall’s trial testimony in 2012, she was asked to look at a photograph exhibit and stated, “I’m not seeing very clearly. My sight has gotten worse,” and later explained “My sight in 2008 was by far better than it is today.” However, she was able discern the contents of the photograph shown to her at trial. Hall later testified that she was blind in one eye. Although Hall was not wearing glasses on the day in question, she testified that she required glasses only for reading. In Hamilton’s 2008 deposition, she stated that she had glaucoma. She had difficulty reading documents during the deposition and required use of her bi-focal glasses. She stated that she was not wearing her glasses during her dialysis treatment on April 28, 2008. However, she stated that she felt she could see better without her glasses. In her first deposition, Hamilton stated that her diabetes medication made her nervous and affected her memory. Hamilton and Hall’s versions of events differed in several respects. Hamilton testified that she witnessed Saenz preparing the bleach solution and then injecting the bleach — first into Risinger and then into Rhone — with each patient receiving two injections. In contrast, Hall testified that the bleach solution was already prepared and she saw Saenz make only one injection and only to Rhone’s line. Given the differences in the eye witnesses’ testimony, a rational juror could conclude that Hamilton witnessed the entire episode, while Hall witnessed only the last injection. Amy Clinton, the regional manager with the dialysis clinic, testified that she spoke with Hall and Hamilton on April 28, 2008 shortly after they reported their observations regarding Saenz. She first spoke with Hamilton and then separately spoke with Hall. She said they gave consistent accounts describing Saenz placing a bleach container on the floor, drawing bleach, and injecting both Rhone and Risinger. However, Clinton testified that the main focus of both witness’s observations was on Rhone’s injection. Although the eyewitness accounts of Hall and Hamilton differed slightly, a rational juror could have concluded that their versions of events were not irreconcilably conflicted. Both eyewitnesses were adamant about what they had seen and were considerably upset afterwards. Both eyewitnesses were seated in such a manner that they could have witnessed what they claimed to have seen. The jury saw live testimony of Hall and two video depositions of Hamilton. Ultimately, the jury determined the credibility of both witnesses. Saenz argues that it was irrational for the jury to give weight to the eyewitness testimony because the jury disregarded the same eyewitness testimony when it acquitted Saenz as to Risinger’s aggravated assault. Risinger’s dialysis lines were not preserved and she never went to the hospital or provided a blood sample. Ri-singer was described as being sick, but she did not suffer a significant event consistent with the other patients. Risinger’s husband testified at trial that her condition improved when he came to take her home. Therefore, the jury could rationally have concluded that while the eyewitness testimony established a bleach injection, the evidence was insufficient to support an injury. Further, only Hamilton witnessed an injection into Risinger’s line. This was contradicted by Jimmy Grammer’s testimony that he watched Risinger during her session and never saw Saenz inject anything into her dialysis line. Risinger’s patient care technician, Martha Mann, testified that she never saw Saenz that day. Thus, the jury could have rationally disregarded Hamilton’s testimony without disregarding Hall’s testimony that Saenz injected Rhone. b. Bleach Mixing Procedures The jury heard conflicting testimony about the proper procedure for preparing the bleach solution. Two bleach solutions were to be prepared each morning before the first patient shift. The solutions were created by mixing bleach with water in a plastic “shoebox” container. The solution was used to wash the patient chair and equipment after each session and to clean up blood spills. The proper procedure required measuring the bleach for the solution in a medicine cup, or by using a pre-drawn line on the shoebox container. Connie Baker, a former dialysis clinic employee, testified that although it was the clinic’s procedure to use a medicine cup to measure the bleach, it was a “fairly common practice” for nurses to draw up bleach with a syringe to mix the solution. However, Baker agreed that it would be difficult to use a syringe to draw bleach from a bleach bottle and that if the bottle were less than full, the bleach would have to first be poured into a separate container. Nick Luker, a former dialysis clinic employee, testified that he had witnessed dialysis clinic employees use a syringe to measure bleach for the daily bleach solution. However, Baker and Luker’s testimony was contradicted by numerous witnesses who testified that it was neither proper procedure nor a common practice to use a syringe to measure bleach and that the bleach solution should never be placed on the floor. Multiple witnesses confirmed that the facility had an adequate supply of medicine cups and no witness stated otherwise. In her police interview, Saenz testified that on April 28, 2008, she used a syringe to extract bleach for the daily cleaning solution because the facility was out of medicine cups. She