When is dead dead? The courts rule...

[Guest guest]

As if by magic, the courts in Texas have issued a ruling that mirrors

our discussion last week of " when is dead, dead? "

In this case a physician was indicted for murder, convicted of

criminally negligent homicide ( " misdemeanor murder " ) and sentenced to

two years in jail. The conviction was overturned on appeal, as

presented below, for " factual insufficiency " regarding the alive/dead

status of the patient and includes relevant sections involving EMT's

and nurses working in the ER.

From:

<http://www.2ndcoa.courts.state.tx.us/opinions/HTMLopinion.asp?OpinionID=17962>

Mike

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COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 2-04-406-CR

LYDIA H. GROTTI - APPELLANT

A/K/A LYDIA GROTTI

V.

THE STATE OF TEXAS - STATE

------------

FROM THE 372ND DISTRICT COURT OF TARRANT COUNTY

OPINION

I. Introduction

A grand jury indicted appellant Lydia H. Grotti ('Grotti'), a former

physician at Hospital ('JPS') in Fort Worth, for the

murder of her patient, Lettie McGhee 'McGhee'. The indictment alleged

that Grotti murdered McGhee by occluding McGhee's endotracheal tube

'ET tube' with her finger. A jury subsequently acquitted Grotti of

murder and manslaughter but convicted her of the state jail felony of

criminally negligent homicide and affirmatively found that she used

her finger as a deadly weapon. The trial court sentenced Grotti to

two years' confinement. Grotti raises seven issues on appeal,

including arguments that the evidence is insufficient to demonstrate

that McGhee was alive at the time Grotti occluded McGhee's ET tube and

that she caused McGhee's death. Whether McGhee was alive when Grotti

occluded the ET tube is the critical issue in this homicide

prosecution. Because we hold that the evidence is factually

insufficient to show that McGhee was alive when Grotti occluded

McGhee's ET tube, we reverse the trial court's judgment and remand the

case for a new trial.

II. Factual and Procedural Background

McGhee, a sixty-four-year-old, obese woman, visited JPS on the night

of December 24, 2000, and into the following day. She complained of

constant abdominal pain occurring over the previous three weeks,

coughing occurring over the previous two to three weeks, and nausea.

JPS staff subsequently conducted a number of exams on McGhee before

sending her home on December 25, 2000. The impression from her

radiology report indicated Apossible mucinous or serous

cystadenocarcinoma of an ovary with possible metastases to the liver

and chest.@ In other words, physicians opined that McGhee had

metastatic ovarian cancer that had spread to her liver and lungs and

to some of her bones.

McGhee returned to the JPS emergency room (the 'ER' sometime in the

early evening on the following day complaining of a persistent cough.

She waited to be treated in the ER after JPS staff appropriately

triaged her. Approximately two hours later, McGhee's daughter

approached Leigh , an emergency medical technician 'EMT' working

at the ER front desk, and told that she needed help because

something was wrong with her mother. looked into the waiting

room and observed McGhee slumped over in a wheelchair.

determined that McGhee was unresponsive, did not have a detectable

pulse, and showed no observable signs of life. With the help of a

triage nurse and a male technician, transported McGhee back to

a trauma room within a few minutes and began a Acode,@ which was

documented on a Acode sheet.@[1] The code sheet indicates that McGhee

was Afound@ at 19:45 and that efforts to resuscitate her began at

19:48.[2] McGhee had suffered a cardiac arrest.[3]

, McGraw, M.D., Alan Eli, M.D., Lovins, a

registered nurse, Kim Short, an EMT, , a registered

nurse, Donna Duclow, a registered nurse, Eva Murray, an ER charge

nurse, Christi Bergland, an ER charge nurse, and Dennis Hunt, a

respiratory therapist, all participated in the code and immediately

began full Advanced Cardiac Life Support 'ACLS' - the performing of

cardiopulmonary resuscitation 'CPR', the delivery of drugs through an

IV, intubation, and defibrillation. Specifically, the code team

hooked McGhee up to an electrocardiogram monitor at 19:48 to determine

her heart rhythm, which was initially identified as ventricular

fibrillation 'V-fib'.[4] Dr. Eli intubated McGhee at 19:57 by

inserting an ET tube to establish an airway to facilitate McGhee's

breathing process. The code team administered defibrillation

(electrical shocks) fifteen times over the course of the entire code.

This occurred twice at 19:48, once at 19:50 and 19:51, twice at 19:52,

once at 20:00, 20:02, and 20:04, twice at 20:08, once at 20:10, twice

at 20:12, and once at 20:13. The code team also administered seven

doses of epinephrine and multiple doses of lidocaine, atropine,

dopamine, and a dose of amniarodone, all of which were intended to

stimulate the heart and obtain or raise blood pressure.

McGhee had no detectable blood pressure or pulse and took no

spontaneous respirations[5] for the first twenty-seven minutes of the

code, according to the code sheet. McGhee's rhythm was either V-fib,

V-tach, or PEA during this period. At 20:08, McGhee's rhythm was

Aasystole,@ meaning an absence of any electrical activity in the

heart.[6] At 20:16, the code team palpated a pulse[7] and detected a

heart rate of ninety beats per minute. McGhee established a Asinus@

rhythm at 20:18 and was put on a ventilator.[8]

Once McGhee was exhibiting a sinus rhythm and was stabilized to a

certain extent, Dr. McGraw called Grotti to consult with her regarding

admitting McGhee to the Intensive Care Unit 'ICU'.[9] Grotti arrived

at the ER shortly thereafter to assess McGhee and to determine whether

she should be transferred to the ICU. McGhee, however, lost a sinus

rhythm and a pulse. At 20:34, McGhee's code sheet indicated that her

rhythm was PEA and that she did not have a palpable pulse. Dr. McGraw

explained that they had been working the code for about forty-five

minutes, and Grotti commented that McGhee had Alost any chance at

recovery@ and that McGhee was either brain dead or that she would

probably be pronouncing McGhee brain dead the following morning or

within twenty-four hours. Grotti concluded that McGhee was not stable

enough for transfer to the ICU, and she returned to the ICU with

instructions to call her if McGhee became stable.

Dr. McGraw continued the code after Grotti returned to the ICU.

McGhee once again regained a sinus rhythm and a palpable pulse with a

heart rate of ninety-seven beats per minute. Dr. McGraw summoned

Grotti a second time to return to the ER and assess McGhee for

admission to the ICU. Shortly before 20:50, Grotti returned and

assumed care of McGhee, and Dr. McGraw left the trauma room to attend

to other patients.

Grotti assessed McGhee. McGhee still did not have a blood pressure,

and she did not have a radial or femoral pulse. Grotti did, however,

detect a carotid pulse, but she described it as Athready@[10] before

announcing to the code team that it had Agone away.@ Grotti ended, or

Acalled,@ the code and discontinued the IV, disconnected the

ventilator, and pronounced McGhee dead at 20:50 because, according to

Grotti, McGhee had lost a pulse, had no spontaneous respirations, and

had no blood pressure. The code sheet at this time indicated that

McGhee had a Abrady@[11] rhythm, a palpable pulse, a heart rate in the

sixties, no blood pressure, and no respirations. The code had lasted

for just over sixty minutes.

Immediately after Grotti called the code, Nurse Lovins observed

McGhee's chest Arising and falling,@ saw condensation in the ET tube,

and thought that McGhee was Abreathing.@ , Nurse , and

Short also observed McGhee's chest Arising and falling@ and thought

that McGhee was Abreathing.@ Grotti, however, explained that the

respirations were Aagonal@ and testified that McGhee made no attempt

to breathe after several minutes. According to Grotti,

[t]he air from the ventilator had pushed air and the patient's lungs

came out and the patient did nothing after that. . . . She did not

make any attempt to breathe in. The air came out, it was like

(gesturing) and then nothing.

Grotti reported McGhee's death to the medical examiner at 21:00 and

called Life Gift at approximately 21:20.[12] She requested permission

from the medical examiner to remove McGhee's ET tube because, in her

opinion, the ET tube was prolonging McGhee's Aagonal activity@ and

removal of the ET tube would naturally collapse McGhee's airway

tissues inward, thus ending the agonal respirations. The medical

examiner denied her permission to remove the ET tube.

Grotti then spoke to members of McGhee's family briefly before

returning to the ER. There, Nurse told Grotti that McGhee was

Abreathing,@ so Grotti examined McGhee once again. McGhee did not

have a pulse, she did not have any heart sounds, and she had fixed

eyes and dilated pupils and nonresponsive corneal reaction, which, in

Grotti's opinion, indicated neurological dysfunction, particularly in

the upper brain stem and lower midbrain. Grotti also examined McGhee

for breath sounds because Ashe was making respiratory effort@ and

because there was condensation in McGhee's ET tube. According to

Grotti, McGhee was getting air into her central airways but not into

her lungs. She explained to Nurse that McGhee had been

hyperoxygenated and that her brain stem was continuing to fire,

causing muscle contractions to open up her airway and move air.

Grotti opined that McGhee was cardiopulmonarily dead and that the

movements that Nurse observed were agonal respirations or

spinal reflexes only. Grotti described the agonal respirations as the

Alast gasps of a dying brain stem.@ Short, however, testified that

she examined McGhee after Grotti called the code and that she detected

a pulse in two different places. She could not identify when she

detected the pulses.

Grotti examined McGhee a few more times thereafter. Although there

was Asome electrical activity@ on the monitor, Grotti detected no

heart sounds or pulses, and McGhee's Arespiratory activity@ became

slower with each examination. Shortly before 21:50, McGhee's

respirations had slowed down to three or four per minute, according to

Grotti. One of the nurses asked how long this activity was going to

continue, and Grotti explained that Ait could go on for minutes or it

could go on for an hour . . . because the [ET] tube was splitting her

airway open.@

At 21:50, Grotti occluded[13] McGhee's ET tube with her finger.

McGhee's head and neck Amoved@ during the ET tube's occlusion.

Kasschau, M.D., a resident in the JPS ICU, entered the trauma

room during this time and, after having spoken with Grotti for five to

ten minutes, observed her occlude McGhee's ET tube for Aa solid five

minutes@ as they continued their conversation. Dr. Kasschau recounted

that Grotti told him that Athis is something that she had seen done in

her fellowship.@ Nurse Berglund entered the trauma room and also

observed Grotti occluding McGhee's ET tube.

Grotti herself admitted that she occluded McGhee's ET tube. In a

letter to the Texas State Board of Medical Examiners (the ABoard',

Grotti stated,

The [ET tube] was prolonging the agony for the family and the E[R]

staff who wanted the patient moved somewhere else, there was no room.

Instead of removing the [ET tube], which the Medical Examiner did not

want us to do, I occluded the [ET tube] for approx. one minute. The

agonal movements of the head and neck occurred three to four times

during that minute and ceased. This occur[r]ed approx. one hour after

the patient was pronounced dead, with no clinically detectable cardiac

function.

McGhee's rhythm went asystole after Grotti occluded the ET tube.

McGhee's death certificate lists her time of death as 20:50 on

December 26, 2000. The medical examiner did not perform an autopsy,

and the manner of death is listed as Anatural.@

Wacasey, M.D., a former ER physician at JPS, had previously

expressed concerns about the JPS ER, including issues involving

patient volume and patient wait times. He learned about the incident

involving Grotti and McGhee on December 27, 2000, and later reported

Grotti's actions that night to the Fort Worth Police Department. She

was subsequently indicted for murder.

At trial, Grotti pleaded not guilty to the offenses alleged in the

indictment and not true to the deadly weapon allegation. Several

expert witnesses testified, offering their opinions as to whether

McGhee was alive or dead when Grotti occluded McGhee's ET tube. In

addition to murder and manslaughter instructions, the trial court

included a criminally negligent homicide instruction in its charge to

the jury. The jury ultimately convicted Grotti of criminally

negligent homicide, and this appeal followed.

In addition to her evidentiary sufficiency challenges, Grotti argues

that there was no evidence to prove that she committed a Agross

deviation@ from the standard of care, that the trial court erred by

instructing the jury on the offense of criminally negligent homicide,

that the prosecutor's violation of an in limine order was prejudicial

prosecutorial misconduct, that the opinions offered by the State's

experts were based on conjecture, not fact, and that her prosecution

violated the constitutional prohibition against double jeopardy.

III. Sufficiency of the EvidenceC

Was McGhee Alive When Grotti Occluded Her ET Tube?

In her first issue, Grotti argues that the evidence is insufficient to

show that McGhee was alive when she allegedly caused McGhee's death.

She states that An most homicide cases, the evidence that the

decedent was alive before the homicide occurred is abundantly

clearCnot so in this case.@ Grotti contends that because the jury

found that she caused McGhee's death by occluding McGhee's airway with

her finger, a deadly weapon, it was the State's burden to prove that

McGhee was alive at 21:50, the time of the ET tube occlusion.

A person commits criminal homicide if he intentionally, knowingly,

recklessly, or with criminal negligence causes the death of an

individual. Tex. Penal Code Ann. ' 19.01(a) (Vernon 2003). The penal

code defines an Aindividual@ as a human being who is alive. Id. '

1.07(a)(26) (Vernon Supp. 2006). A Abut for@ causal connection must be

established between the defendant's conduct and the resulting harm.

Id. ' 6.04(a) (Vernon 2003); Robbins v. State, 717 S.W.2d 348, 351

(Tex. Crim. App. 1986).

Here, if McGhee was not alive when Grotti occluded her ET tube, then

Grotti could not have caused her death. A causal connection must have

been established between Grotti's conduct of occluding McGhee's ET

tube and the harm that allegedly resulted therefromCMcGhee's death.

We therefore examine the evidence to determine if it is legally and

factually sufficient to demonstrate that McGhee was alive at 21:50 so

that Grotti's act of occluding McGhee's ET tube caused her death.[14]

A. Standards of Review

In reviewing the legal sufficiency of the evidence to support a

conviction, we view all the evidence in the light most favorable to

the verdict in order to determine whether any rational trier of fact

could have found the essential elements of the crime beyond a

reasonable doubt. v. Virginia, 443 U.S. 307, 319, 99 S. Ct.

2781, 2789 (1979); Hampton v. State, 165 S.W.3d 691, 693 (Tex. Crim.

App. 2005). This standard gives full play to the responsibility of

the trier of fact to resolve conflicts in the testimony, to weigh the

evidence, and to draw reasonable inferences from basic facts to

ultimate facts. , 443 U.S. at 319, 99 S. Ct. at 2789. The

trier of fact is the sole judge of the weight and credibility of the

evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979);

Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim. App. 2000).

In contrast, when reviewing the factual sufficiency of the evidence to

support a conviction, we are to view all the evidence in a neutral

light, favoring neither party. See Zuniga v. State, 144 S.W.3d 477,

481 (Tex. Crim. App. 2004). The only question to be answered in a

factual sufficiency review is whether, considering the evidence in a

neutral light, the fact finder was rationally justified in finding

guilt beyond a reasonable doubt. Id. at 484. There are two ways

evidence may be factually insufficient: (1) when the evidence

supporting the verdict or judgment, considered by itself, is too weak

to support the finding of guilt beyond a reasonable doubt; or (2) when

there is evidence both supporting and contradicting the verdict and,

weighing all of the evidence, the contrary evidence is so strong that

guilt cannot be proven beyond a reasonable doubt. Id. at 484-85.

AThis standard acknowledges that evidence of guilt can >preponderate'

in favor of conviction but still be insufficient to prove the elements

of the crime beyond a reasonable doubt.@ Id. at 485. In other words,

evidence supporting a guilty finding can outweigh the contrary proof

but still be insufficient to prove the elements of an offense beyond a

reasonable doubt. Id. Only the second standard is implicated in this

appeal.

In performing a factual sufficiency review, we are to give deference

to the fact finder's determinations, including determinations

involving the credibility and demeanor of witnesses. Id. at 481; Cain

v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). We may not

substitute our judgment for the fact finder's. Zuniga, 144 S.W.3d at

482.

A proper factual sufficiency review requires an examination of all the

evidence. Id. at 484, 486-87. An opinion addressing factual

sufficiency must include a discussion of the most important and

relevant evidence that supports the appellant's complaint on appeal.

Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).

As an intermediate court of appeals, our decisions are conclusive on

all questions of fact brought before us on appeal. See Tex. Const.

art. V, ' 6; Goodman v. State, 66 S.W.3d 283, 301-02 (Tex. Crim. App.

2001) (Womack, J., dissenting).

B. Definition of Death

The Texas Penal Code does not define the term Adeath,@ and the trial

court did not include a definition of death in its charge to the jury.

Because the nature of this specific sufficiency examination is

inherently dependent upon the definition and application of the term

Adeath,@ we must first determine the meaning used in this case. See

Tex. Penal Code Ann. ' 19.01(a).

The record demonstrates that the parties presented evidence under the

presumption that section 671.001(a) of the Texas Health and Safety

Code was the applicable and appropriate definition of death to be used

during trial. Titled, AStandards Used in Determining Death,@ section

671.001 provides in part the following:

(a) A person is dead when, according to ordinary standards of medical

practice, there is irreversible cessation of the person's spontaneous

respiratory and circulatory functions.

( If artificial means of support preclude a determination that a

person's spontaneous respiratory and circulatory functions have

ceased, the person is dead when, in the announced opinion of a

physician, according to ordinary standards of medical practice, there

is irreversible cessation of all spontaneous brain function. Death

occurs when the relevant functions cease.

Tex. Health & Safety Code Ann. ' 671.001(a), ( (Vernon 2003).

Section 671.001(a) addresses cardiopulmonary death, and section

671.001( addresses brain death. Id. During his questioning,

Grotti's counsel studiously asked numerous witnesses to assume that

the following definition of death be applied, which tracks the

language of section 671.001(a) verbatim:

A person is dead when, according to ordinary standards of medical

practice, there is an irreversible cessation of the person's

spontaneous respiratory and circulatory functions.

Although the charge included no specific instruction on the definition

of death, there is no evidence in the record that the jury considered

any alternative definition of death, and neither party has raised an

issue regarding the definition of death used at trial. See Tex. Code

Crim. Proc. Ann. art. 36.14 (Vernon Supp. 2006) (requiring defendant

to specifically object in writing to jury charge). Accordingly, we

will also use section 671.001(a)'s cardiopulmonary definition of

Adeath@ in conducting the evidentiary sufficiency examination. See

Phea v. State, 190 S.W.3d 232, 236 (Tex. App.CHouston [1st Dist.]

2006, pet. stricken) (holding that trial court did not err by failing

to include definition of Acriminal episode@ in jury charge).[15]

C. Introduction to Sufficiency Review

In most instances, the death of an individual is easily determinable,

if not obvious. In this case, however, the issue of when death

occurred is critical to the proper determination of the sufficiency of

the evidence as it relates to causation. Accordingly, we set forth

the individual testimony of each witness relevant to the issue of

whether McGhee was alive or dead at 21:50 when Grotti occluded her ET

tube and further organize it according to whether the witness was a

fact or expert witness.

At trial, the State offered the testimony of numerous JPS employees

who were involved to some extent with the events surrounding McGhee's

treatment in the ER as well as the testimony of two physician

witnesses who offered their expert opinions regarding, among other

things, McGhee's condition at 21:50. Grotti also called a few

physician expert witnesses who testified to McGhee's condition both

during and after the code. As the analysis will show, only one

witness, Dr. DiMaio, chief medical examiner for San ,

testified unconditionally that McGhee's respiratory activity after

Grotti had called the code at 20:50 was sufficient to maintain life.

On the contrary, multiple witnesses attributed McGhee's post-20:50

respiratory activity to her brain stem, concluding that her labored

respirations were inadequate to maintain her life and that she thus

had experienced irreversible cessation of her spontaneous respiratory

and circulatory functions prior to 21:50, when Grotti occluded her ET

tube. Consequently, we hold that the evidence showing that McGhee was

not alive at 21:50 is so strong that her guilt could not have been

proven beyond a reasonable doubt. See Zuniga, 144 S.W.3d at 484-85.

D. Expert Physician Testimony

1. Janice Zimmerman, M.D.

Dr. Zimmerman testified as an expert witness on behalf of the State.

As the director of medicine emergency services at Ben Taub General

Hospital in Houston, Dr. Zimmerman based her opinions on McGhee's

medical records, affidavits from JPS employees, information from the

Board, and a few letters, including one from Dr. , one of Grotti's

experts.

Dr. Zimmerman initially testified that Grotti inappropriately called

the code at 20:50 because McGhee was alive. Dr. Zimmerman reasoned

that McGhee was alive at 20:34, 20:35, and 20:50 because, according to

the code sheet, she had a pulse. She also discussed a blood gas

report that was performed at 20:15 and indicated that McGhee had a low

PCO2 number of 23.3 C and a high PO2 number of 354.5 C.[16] Dr.

Zimmerman discussed her understanding of the meaning of these numbers

and testified,

[sTATE:] Now, in doing a comparison between the PO2 number and the

PCO2 number and in looking at both of those at the same time, can you

tell us after examining those two numbers as to whether or not this

woman's lungs were functioning correctly?

[DR. ZIMMERMAN:] Well, what you can say is that she's able to

exchange oxygen and carbon dioxide - -

[sTATE:] Okay.

[DR. ZIMMERMAN:] - - across the lungs. The actual lung function's

being done by the mechanical ventilator or by someone squeezing the

bag. This just says she does pretty good at transferring oxygen from

what they're giving her through her lungs into her bloodstream and

she's getting rid of carbon dioxide. So that transfer of gases is

occurring reasonably well in this lady.

Dr. Zimmerman reasoned that McGhee's condition did not fit the

definition of Adeath@ at 21:50. She opined that McGhee had blood

circulation and breathed continually between 20:50 and 21:50 and that

Grotti's act of occluding McGhee's ET tube deprived her of oxygen,

thus stopping her breathing. Dr. Zimmerman testified that McGhee's

respirations between 20:50 and 21:50 were not agonal. To her, agonal

movements and agonal respirations mean Achest wall movements.@ She

testified to the following:

[sTATE:] In reviewing everything that you've reviewed, what is your

opinion about the respirations that took place between 8:50 and 9:50

p.m.[?]

[DR. ZIMMERMAN:] Those are what I would call normal - - well, may not

be exactly normal, but the patient was breathing.

[DR. ZIMMERMAN:] These are not agonal respirations.

[sTATE:] Why?

[DR. ZIMMERMAN:] Agonal respirations are basically a few breaths that

occur when a patient has died. It just means that part of the brain,

we call a brain stem, just hasn't quite died. So there may be one,

two, or three breaths. We're talking minutes at the most, not for an

hour. That is not agonal respirations.

Dr. Zimmerman interpreted the head and neck movements made by McGhee

when Grotti occluded her ET tube as possibly meaning that McGhee had

sensed the lack of oxygen and consequently struggled. She reasoned

that a dead person could not respond to stimulus like that. Dr.

Zimmerman also attributed McGhee's fixed and dilated eyes to the

medications previously administered to her.

Dr. Zimmerman further opined, however, that the presence of a pulse is

considered to be the return of spontaneous circulation. A[A] pulse

says there is circulation[,]@ and obtaining a blood pressure is the

next step. She testified that Athere [is] no documentation@ that

McGhee had a pulse at 21:50 and that she did not have enough

information to know whether McGhee's breathing was effective to

sustain life at 21:50. She testified,

[DEFENSE COUNSEL:] Is it your opinion to a reasonable degree of

medical certainty that at 21[:]50 Lettie McGhee had spontaneous

effective respiratory and circulatory function?

[DR. ZIMMERMAN:] Again, I can't answer that as a yes or no, because

I'm making an assumption at that point. If she was breathing at

21[:]50 then she did have spontaneous respiratory function and had to

have had some circulatory function to support that.

[DEFENSE COUNSEL:] Okay. Now - -

[DR. ZIMMERMAN:] Whether it was effective or not, it was effective

enough for her to be breathing. But I am making the assumption that

she was breathing at that time.

[DEFENSE COUNSEL:] Okay. But you - - as I understand it, and correct

me if I'm wrong, what you're saying is, you don't have enough

information to know whether or not it was effective to sustain life at

21[:]50?

[DR. ZIMMERMAN:] That would be correct. At that point in time I

don't know that it was effective to sustain her life much beyond that

point in time. [Emphasis added.]

Thus, Dr. Zimmerman admitted that her opinion was based upon the

assumption that McGhee was breathing. Dr. Zimmerman also agreed that

a physician who calls Life Gift would likely have a subjective belief

that the patient was dead.

Dr. Zimmerman disagreed with a number of conclusions made by Dr. ,

discussed infra, regarding McGhee's condition. She disagreed with Dr.

's opinions that McGhee was dead before the code had begun, that

occluding McGhee's ET tube after 20:50 would have had no effect on

McGhee because she was already dead, and that Aall circulation had

stopped.@

2. DiMaio, M.D.

Dr. DiMaio also testified on behalf of the State as an expert witness.

As the chief medical examiner for San , Bexar County, Dr.

DiMaio based his opinions on McGhee's medical records and the

affidavits of various JPS staff.

Dr. DiMaio testified that McGhee was breathing until the time of the

occlusion, that McGhee was alive when Grotti occluded her ET tube, and

that McGhee was dead after Grotti removed her finger from the end of

the ET tube. He thus concluded that McGhee had been asphyxiated. Dr.

DiMaio testified that McGhee had sufficient respiratory function at

21:50 to support life and that the movement of McGhee's head and neck

during the ET tube's occlusion likely indicated that she was

struggling in an effort to breathe. He understood the term agonal

respirations to mean Adifficulty breathing@ and reasoned that a

patient experiencing such respirations is still alive because the

patient is breathing. He testified that the conscious desire or

objective of holding one's finger over an ET tube for five minutes

would be to make absolutely sure that the person was dead.

Dr. DiMaio also based his opinion that McGhee was alive at 21:50 on

Grotti's letter to the Board. As support for his opinion that McGhee

was alive, he cited Grotti's statements that McGhee had a brady rhythm

of thirty to sixty beats per minute, that McGhee was experiencing

agonal respirations, and that McGhee's head and neck moved when she

occluded her ET tube.

3. McGraw, D.O.

Dr. McGraw was the ER physician who attended to McGhee until Grotti

assumed her care (shortly before 20:50). Dr. McGraw testified that he

thought McGhee was going to be transferred to the ICU once Grotti took

over. Although he described McGhee's prognosis from the beginning of

the code as Agrim,@ Dr. McGraw had a Aproblem@ with calling the code

at 20:50 because according to the code sheet, McGhee had a pulse, a

normal sinus rhythm, and a heart rate, conditions that he believes

constitute a Asuccessful@ resuscitation. However, Dr. McGraw was not

involved with McGhee's care anytime after Grotti returned to the ER

and assumed McGhee's care.

4. , M.D.

Dr. , an emergency medicine physician at Methodist Hospital

in Fort Worth, testified as an expert witness on behalf of Grotti. He

based his opinions on McGhee's medical records, testimony given by

various parties associated with the case, ACLS guidelines and Aother

articles,@ and the opinions of other experts.

Dr. testified that McGhee was dead Afor all practical purposes@ at

19:45, when she was found in the ER waiting room, and that there was

nothing on the code sheet that suggested to him that she was alive at

any point during the first twenty-seven minutes of the code. In

discussing the probability of resuscitating a patient over periods of

time and what occurred in this case, Dr. opined that time is a

Amajor factor.@ He testified as follows:

[DEFENSE COUNSEL:] What would the standards of ordinary practice

suggest to you in terms of length in code versus a continuation of the

code?

[DR. COX:] We know that basically every - - every minute you have a

ten percent less chance of survival. So in ten minutes if you're not

resuscitated, [do] not have any responses from somebody, that's

basically a hundred percent. In ten minutes, they're gone if you have

[not] gotten them back.

[DEFENSE COUNSEL:] What about 20 minutes?

[DR. COX:] That's kind of what we do as a general rule to go 20

minutes to - - we now say we know ten minutes is it, let's give it a

double try. We'll do our best, and in 20 minutes if somebody is not

showing a response that is it. I mean, they're not going to be coming

back.

.. . . .

[DEFENSE COUNSEL:] Okay. When - - looking at that, can you tell us -

- suggest to the jury when you may have terminated the code had you

been administering this code?

[DR. COX:] Probably about 2008, 2010 is about 20 minutes out, we're

still not seeing anything going on - -

[DEFENSE COUNSEL:] Okay.

[DR. COX:] - - positive.

Dr. reviewed McGhee's 20:15 blood gas report. He interpreted it as follows:

It tells me they did an excellent job of ventilating. They were

getting oxygen into the system and they were hyperoxygenating, the

oxygen level was about three and a half times over what it normally

is. But after all that time they - - we're not getting a response.

She was metabolically acidotic, and what that says is that the cells

are dying inside. They're releasing lactic acid. They're - - it's

all going down hill.

For somebody to be successfully resuscitated you should be seeing PH -

- particularly when you get them early and get intubated and give them

all the drugs, the PH should be holding up there in the pretty normal

range, signs they're perfusing and getting circulation. In her case

you had the oxygen but not the circulation going on so cells are dying

and - - and that's a sign that things are not going well and death is

occurring.

Dr. opined that McGhee had both respiratory and circulatory

failure at 20:15, thirty minutes into the code. At 20:16, the code

sheet indicates that McGhee had a palpable pulse and a heart rate of

90. Dr. testified that McGhee was nevertheless still not alive.

He reasoned,

If you have a palpable pulse you have some kind of pressure, but

there's not one they could obtain. You can feel a pressure that's

generally at the - - the neck you'll - - about 50 millimeters of

mercury pressure you will feel it, about temporal arteries it's

probably going to be 60 or 70 that you can feel. But that's not a - -

that's not a blood pressure you're going to have when you're alive.

So the heart rate alone, a palpable pulse without the ability to get a

blood pressure is - - it's a good thing. I mean, you like - - that's

at least something, but it's not going to lead to life as such if

that's all it is. If that's all you got you're still in deep trouble

and the patient is not doing well.

Dr. testified that the sinus rhythm that McGhee exhibited at 20:18

and 20:26, although Agood,@ would not be sufficient to sustain her

life absent a blood pressure, which was nonexistent according to the

code sheet. He opined that McGhee experienced major organ failure,

which caused her death, and that she was dead at 20:50, when Grotti

called the code. According to Dr. ,

Again, we've had no response for - - forever. This code has been

carried on three times longer than should be done. It's - - she's not

shown any response. We have yet to have a blood pressure recorded,

even listed no blood pressure. This is not a patient who is - - is

alive.

Dr. also discussed brain stem function and its relation to agonal

respirations. He explained that the brain stem is one of three major

parts of the brain (the other two being the cerebellum and midbrain),

that it is Avery primitive@ and Atough,@ and that it controls our

breathing, among other things. Dr. testified that the brain stem

may continue to fire after a person has died, thus attempting to cause

the person to breathe, and that, in his experience, it was not

uncommon for a person to have agonal respirations, which he has

observed last for an hour, following the discontinuation of

resuscitation. He explained that agonal respirations, or

Agasping-last type respirations,@ are the result of brain stem

activity and are insufficient to effectively respirate a body because

they are not deep respirations. Dr. stated,

[W]hen you're breathing in you've got to move in enough air to fill up

what we call the dead spaces, the mouth, the throat, the trachea, the

tubes, and finally breathe in enough air to get the air adequately to

the sacks of the lungs where exchange can occur . . . . [Agonal

respirations] are not going to get air out to the lungs.

Accordingly, Dr. opined that McGhee was still dead at 21:50 and

that the occlusion of McGhee's ET tube by Grotti did not cause or

contribute to her death.

5. Gus Krucke, M.D.

Dr. Krucke worked as a physician in the JPS ICU with Grotti and

testified on her behalf as an expert witness. Dr. Krucke opined that

McGhee's arrest and death were never successfully reversed and that

the code ought to have been discontinued after the first thirty

minutes. Specifically, he testified that the palpable pulse and heart

rate of 90 indicated at 20:16 on the code sheet does not mean that

McGhee was successfully resuscitated. He opined that a sinus rhythm,

which McGhee had at a few points during the code, does not translate

to effective coronary perfusion because A[t]here may be electrical

activity or automaticity in the heart muscle itself, but if it's not

squeezing and it's not pumping appropriately then you're not providing

adequate circulation and the rhythm is, therefore, ineffective.@ Dr.

Krucke opined that McGhee was dead at 20:34 and 20:50 and that her

chances of successful resuscitation at 20:50 were Azero.@

Dr. Krucke testified that the fact that condensation was observed in

McGhee's ET tube after the code was called would neither surprise him

nor change his opinion that she was dead by 20:50. He testified that

he has observed Athousands@ of people die over the course of his

career and that it was not uncommon for a person to have what appears

to be respiration thereafter. According to Dr. Krucke,

It is not unusual in the death process to have two situations. One

is, let's say, where you are withdrawing life support in a patient who

still has a blood pressure and a pulse. The family's elected based on

the patient's previously expressed wishes to have artificial life

support measures removed and the tube is removed, and then, yes, there

is respiration that eventually diminishes over time to no movement or

respiration at all.

And then there's the other case of an individual who has already been

declared dead who might have spinal reflexes anywhere from 30 minutes,

60 minutes, an hour and a half after the declared death but that

doesn't constitute respiration.

He opined that McGhee was experiencing Aspinal reflexes,@ not agonal

respirations, when Grotti occluded her ET tube. He testified that

although there is no medical reason to occlude an ET tube, Grotti's

occlusion of McGhee's ET tube had no effect on her.

6. Grotti

Much of the relevant portions of Grotti's testimony has already been

detailed in the factual background section above. She testified that

McGhee was never successfully revived or resuscitated at any point

during the code. Grotti testified that she has never called a code

when a patient had a pulse and that she called McGhee's code at 20:50

because McGhee had lost a pulse, had no spontaneous respiration, and

had no blood pressure; McGhee was dead. She did not indicate on the

code sheet at 20:51 that McGhee did not have a pulse because she never

thought that anyone would assume that she called the code when a pulse

was present. She testified that McGhee's respiratory efforts were

ineffectively depositing air into her lungs after the code had been

called and that she explained to Nurse , who had informed her

that she thought McGhee was breathing, that McGhee was

cardiopulmonarily dead and was experiencing agonal respirations. She

described agonal respirations as the brain stem firing, thus causing

muscle contractions in an effort to try to make the body breathe

again. Grotti accordingly attributed the source of McGhee's

respiratory efforts to McGhee's brain stem. She testified as follows:

Okay. Well, when the brain stem fires it actually causes muscle

contractions to try to restart the breathing - - you know, the

breathing action. It tries to - - it causes muscle contractions in

the throat, in the diaphragm, and it tries to open up the airways so

it tries to extend the neck. So what is actually happening was the

brain stem is firing, she's getting muscle contractions, it's opening

up her airway and causing enough negative pressure to have some air

move.

Grotti testified that she thought occluding McGhee's ET tube would be

the equivalent of removing it because McGhee's airway would close or

collapse upon the ET tube's removal. She did not hear any heart

sounds, and she did not detect a palpable pulse after 20:50. She thus

occluded McGhee's ET tube to stop the agonal respirations. McGhee was

already dead and had no cardiopulmonary function at that time,

according to Grotti.

E. Eyewitness Testimony

1. EMT Leigh

was approached by McGhee's daughter in the ER and was the first

to assess McGhee. She assisted in the code until Grotti initially

assessed McGhee and returned to the ICU. Dr. McGraw sent to

the pharmacy at that point to retrieve medications. When

returned to the ER, the code had been called, McGhee had been

disconnected from the ventilator, and the nurses were Avery upset.@

One of 's responsibilities was to Aprep@ McGhee so that her body

could be viewed by family members before being transported to the

medical examiner's office. attempted to prep McGhee Aabout 30

minutes@ after she had returned to the ER from the pharmacy with the

medications but was unable to because McGhee had a Arhythm on the

monitor,@ her chest was Arising and falling,@ and she Aappeared to be

breathing.@ also observed condensation in McGhee's ET tube,

which she associated with breathing. According to , A[t]he

condensation - - I could see moisture coming through the tube every

time she would breathe - - like she'd breathe in and out, her chest

would rise and fall.@ testified that she observed this

activity for fifteen to twenty minutes on three different occasions

and that McGhee's Aair exchange@ became slower and slower with each

visit. She associated the term Aagonal respiration@ with slow,

difficult breathing, but she could not say that McGhee ever had a

pulse after Grotti pronounced her dead at 20:50.

2. Nurse Lovins

Nurse Lovins participated in the entire code and entered the

information on the code sheet until 20:34. She testified that McGhee

had a palpable pulse at some point during the first twenty-seven

minutes of the code but that she did not record it on the code sheet.

She testified that she was Ashocked and upset@ when Grotti called the

code and disconnected the ventilator because she did not think that

McGhee was dead. Nurse Lovins thought that McGhee was Abreathing@

because McGhee's chest was rising and falling and because there was

condensation in the ET tube. She questioned Dr. Eli if McGhee's

Arespirations@ were a normal occurrence for someone who had just been

taken off of a ventilator; he responded that he had never experienced

it before.

Nurse Lovins opined that McGhee was alive. She said that she was Ain

and out@ of the room a few times after Grotti called the code and that

she observed McGhee's respirations Afor at least 30 minutes@

thereafter. She described McGhee's respirations as Aregular@ during

this period because they were occurring at Aregular intervals@ and

Awere not labored.@ Nurse Lovins never palpated for a pulse after

20:50.

3. Nurse a

Nurse participated in McGhee's resuscitation effort too. At

some point during the code, after Grotti's first visit to the ER, Dr.

McGraw asked Nurse to retrieve some Levophed, a drug used to

raise blood pressure, because the code team had administered the

maximum amount of dopamine, another blood pressure medication. When

Nurse returned to the trauma room, Grotti, who was standing at

the head of McGhee's bed, told Nurse that she did not want to

use the Levophed. The ventilator had been turned off, and Nurse

assumed that Grotti had removed McGhee from the ventilator to

determine whether she would take any spontaneous breaths. After

McGhee had been off of the ventilator for a brief period, Nurse

asked Grotti if she planned to reconnect the ventilator. Grotti

responded, ANo, the patient's respirations are agonal.@ Nurse ,

however, recounted that McGhee was Abreathing@ and that her breaths

were Aregular@ (ten breaths per minute), Aforceful,@ Adeep,@ and had

Aenough force to cause condensation to come halfway up the end of the

endotracheal tube.@ McGhee's respirations became less and less

Aforceful,@ however, after she was removed from the ventilator. Nurse

further testified that after Grotti had pronounced McGhee dead

and during McGhee's Aregular@ breathing, someone in the room, though

she could not remember who, stated that McGhee had a pulse Nurse

did not check McGhee for a pulse.

4. EMT Short

Short participated in the code, primarily assisting with chest

compressions. Short testified that as Grotti took McGhee off the

ventilator at the conclusion of the code, Grotti stated that she Awas

going to have to do it in the morning anyway@ and that she Awould take

full responsibility.@ Short observed McGhee Abreathing@ immediately

after the code was called. She testified,

Ms. McGhee had an endotracheal tube, which is the tube that you put in

their throat to maintain their airway and to provide oxygen to the

lungs, and you can see the secretions through the ET tube as she was

breathing. She had - - her chest would rise and fall in a normal

pattern. It didn't look like she was, you know, struggling for air.

Short testified that she observed this activity for just over an hour

after Grotti called the code. She ultimately prepared McGhee's body

for viewing, though she could not recall exactly when, and she

testified that she felt a palpable pulse in two different locations,

but she could not recall whether it was Afaint@ or Apounding.@ Short

claimed to have told a nurse about the pulse, but she did not inform

Grotti.

5. R.N./ER Manager Synthia Chandler

Nurse Chandler served as a joint manager of the ER at the time of the

incident. She is a registered nurse who at the time of trial had

worked at JPS for twenty-five years, twenty-two of them in the ER.

She did not participate in the code, but she and her Awork partner,@

Don Baylor, spoke with Grotti the following morning, December 27,

2000, about Grotti's act of occluding McGhee's ET tube. During their

conversation, Grotti was adamant that McGhee was dead when she

occluded McGhee's ET tube, answering, AShe was dead,@ to many of

Baylor's questions. Nurse Chandler testified that agonal respirations

are Asometimes@ not effective respiration, that she has observed a

body continue to have Areflexive action@ as part of a process of death

following the calling of a code, which can sometimes be caused by

hyperoxygenation, and that McGhee had been hyperoxygenated. Nurse

Chandler agreed that the brain stem is one of the last body functions

to die off, that electrical activity may continue on the cardiac

monitor after death, and that a person may occasionally have an

exchange of oxygen that appears to be respiration after death.

6. Nurse Christi Berglund

Nurse Berglund was the charge nurse/team leader in the ER on December

26, 2000. Although she personally participated in McGhee's code only

briefly, she was kept apprised of the staff's resuscitation effort as

it progressed. After the code had been called, she observed Grotti

standing at the head of McGhee's bed, occluding her ET tube. Nurse

Berglund asked Grotti what she was doing and why. Grotti responded

that she was unable to remove the ET tube because McGhee was going to

be an AME case@ and that she did not want McGhee's family to be upset

by the agonal movements that McGhee was exhibiting. Nurse Berglund

opined that Grotti's occlusion of McGhee's ET tube Awas not going to

make a difference as to whether or not [McGhee] lived or died.@ She

testified that she has Aacknowledged in the past@ that she observed

McGhee making Achest movements@ but that they were not effective to

exchange air. Nurse Berglund testified as follows:

[DEFENSE COUNSEL:] Could you tell me kind of - - or tell us, not just

me, but kind of what you saw when you say that you saw chest movements

after the code was called?

[NURSE BERGLUND:] It was just chest movements. It looked like she

was trying to breathe but she just wasn't getting full chest or lung

expansion. [RR6: 205]

[DEFENSE COUNSEL:] And you also are in the position, are you not,

that after the code was pronounced - - called and - - and Ms. McGhee

was pronounced deceased, her chest wasn't rising and falling normally

like someone's chest rises and falls when they are breathing; is that

a correct - -

[NURSE BERGLUND:] No.

[DEFENSE COUNSEL:] Is that a correct statement?

[NURSE BERGLUND:] Oh, yes. I'm sorry.

[DEFENSE COUNSEL:] Based on your experience of having been a nurse

for all the years that you've been a nurse and being around and

observing, it's your position, is it not, that other observers could

see the activity that you saw that you say had any - - could have the

appearance of breathing and misinterpret it as actually being

breathing?

[NURSE BERGLUND:] Yes.

Nurse Berglund described the movements that she observed McGhee making

as agonal or brain stem reflexes. She testified that if McGhee was

not dead when Grotti called the code, she Acertainly would have been

dead 25 minutes later,@ the point at which she believed Grotti had

occluded McGhee's ET tube.

7. Respiratory Therapist Dennis Hunt

Hunt was the respiratory therapist assigned to the JPS ER on December

26, 2000.[17] He performed CPR on McGhee during the initial stages of

the code and placed her on a ventilator at approximately 20:20. Hunt

observed McGhee thereafter for five to fifteen minutes before leaving

the trauma room to attend to other patients in the ER. He did not

observe McGhee take any spontaneous breaths during this period. Hunt

returned to the trauma room where McGhee was located when he heard the

ventilator alarm sounding. Grotti had disconnected the ventilator.

Hunt testified that he Adidn't notice anything out of the normal@ in

terms of the nurses' behavior at that point, that no one objected out

loud to Grotti's actions, and that no one instructed him to reconnect

the ventilator. As the respiratory therapist on call in the ER, Hunt

testified that he would have brought it to someone's attention if he

had observed McGhee attempting to breathe after the code had been

called.

8. Kasschau, M.D.

Dr. Kasschau, a resident assigned to the ICU, arrived at JPS at 21:45

on December 26, 2000 and checked in with Grotti, who was in the ER

trauma room with McGhee, at approximately 21:55. Dr. Kasschau

returned to the trauma room to visit with Grotti at about 22:05.[18]

Standing fifteen feet away from Grotti, he spoke with her for about

five to ten minutes but was unable to see what she was doing. Dr.

Kasschau then moved up to McGhee's bedside and saw Grotti occluding

McGhee's ET tube with her thumb for five minutes. Dr. Kasschau

observed occasional activity on the cardiac monitor as he spoke to

Grotti. He agreed that At just means that there's still electrical

activity in the heart that is observable by the machine,@ not that

there is a pulse or a perfusing heart. He had the impression at that

point that McGhee had expired and that Grotti was not killing her.

F. Sufficiency Holdings

Viewing the evidence in the light most favorable to the verdict and

giving full play to the responsibility of the trier of fact to resolve

conflicts in the testimony, to weigh the evidence, and to draw

reasonable inferences from basic facts to ultimate facts, we hold that

a rational trier of fact could have found that McGhee was alive at

21:50, when Grotti occluded her ET tube. See , 443 U.S. at

319, 99 S. Ct. at 2789; Hampton, 165 S.W.3d at 693. The evidence is

thus legally sufficient to show that McGhee was an Aindividual@ within

the meaning of sections 1.07(a)(26) and 19.01(a) of the penal code.

Tex. Penal Code Ann. '' 1.07(a)(26), 19.01(a).

But viewing all the evidence in a neutral light, favoring neither

party, and considering evidence that both supports and contradicts the

verdict, we hold that the evidence is factually insufficient to show

that McGhee was alive at 21:50. See Zuniga, 144 S.W.3d at 481.

Because the contrary evidence is so strong, the jury was not

rationally justified in finding guilt beyond a reasonable doubt. See

id. at 484.

We are required to perform a number of tasks upon determining that the

evidence is factually insufficient to support the jury's verdict. See

Goodman, 66 S.W.3d at 295-96 (Keller, J., concurring). We must detail

the evidenceCall of the evidenceCrelevant to the evidentiary

sufficiency issue. We have done so above. We are also required to

state clearly why the jury's finding is factually insufficient. Here,

the evidence that McGhee was alive at 21:50 is factually insufficient

under the second Zuniga prong: there is evidence both supporting and

contradicting the verdict, and weighing all of the evidence, we have

determined that the contrary evidence claiming that McGhee was not

alive at 21:50 is so strong that guilt could not have been proven

beyond a reasonable doubt. See Zuniga, 144 S.W.3d at 484-85.

Finally, we are required to explain why the evidence that McGhee was

not alive at 21:50 outweighed the evidence that McGhee was alive at

21:50. We do so below.

EMT , Nurse Lovins, Nurse , EMT Short, Nurse Berglund, Dr.

McGraw, and Grotti all had participated in McGhee's treatment in some

manner before 21:50, when Grotti occluded the ET tube. All but McGraw

testified that McGhee made respiratory efforts after 20:50, when

Grotti called the code. But neither , Nurse Lovins, nor Nurse

testified that the activity occurred anytime beyond thirty

minutes from the point at which Grotti called the code, and none of

them checked for a pulse after 20:50. Short was the only witness who

testified that she felt a pulse after 20:50. She was not able,

however, to testify to what time she felt the pulses after 20:50.

Moreover, although the collective testimony of , Nurse Lovins,

Nurse , and Short, shows that McGhee was making respiratory

effort after Grotti called the code, there was no testimony from any

of these witnesses that that effort was effective to maintain life or

adequately exchange air.

Although Dr. Zimmerman testified that McGhee's condition did not fit

the definition of death at 21:50, she also testified that a pulse is

indicative of circulation and admitted that there was no documentation

that McGhee had a pulse at 21:50. She further testified that she was

assuming that McGhee was breathing and that she did not have enough

information to know whether McGhee's breathing was effective to

sustain her life at 21:50. In other words, she was unable to provide

critical expert testimony regarding the fundamental issue in this

case: Was McGhee's death due to irreversible cessation of her

respiratory and circulatory functions at the time that Grotti occluded

the ET tube? Her testimony therefore lacks probative weight.

Conversely, Nurse Berglund and Grotti testified that McGhee's

respiratory efforts were ineffective to adequately exchange air and

that she was dead before 21:50. Both described McGhee's movements as

agonal-type reflexes, and Nurse Berglund explained that others could

misinterpret McGhee's respiratory efforts as breathing.

Further, Dr. testified extensively on the issues of life and death

and opined that McGhee was dead at 19:45, 20:50, and 21:50, that

McGhee's blood gas report indicated that her death was Aoccurring,@

and that McGhee had respiratory and circulatory failure at 20:15,

nearly thirty-five minutes before Grotti called the code.

Significantly, as Dr. further pointed out, McGhee never had a

blood pressure, according to the code sheet, despite being coded for

over sixty minutes and being shocked fifteen times. Dr. Krucke also

opined that McGhee's arrest and death, which he said occurred at

19:45, were never successfully reversed and that it was not uncommon

for deceased individuals to experience spinal reflexes after death.

Dr. DiMaio was the only expert witness who unconditionally opined that

McGhee was still alive at 21:50. But the overwhelming weight of the

testimony regarding McGhee's respirations between 20:50 and 21:50,

particularly the testimony of Dr. , Dr. Krucke, Nurse Berglund, and

Grotti, was that McGhee's respirations were ineffective to adequately

exchange air. While Dr. Zimmerman opined that the respirations were

not agonal, but instead Anot normal@ breaths, Dr. DiMaio reasoned that

they were agonal breaths which, according to him, meant only

Adifficulty breathing.@ On the other hand, Dr. , Dr. Krucke,

Grotti, and Nurse Berglund attributed McGhee's post-20:50 respiratory

efforts to her brain stem, which was firing in an attempt to restart

her breathing process. These witnesses all agreed that this agonal

breathing was insufficient to maintain life. And although she did not

testify that McGhee was alive or dead at 21:50, Nurse Chandler

explained that she has observed a body continue to have Areflexive

action@ as part of the process of death after a code has been called,

which can sometimes be caused by hyperoxygenation, and that McGhee had

been hyperoxygenated. Further support for the conclusions reached by

Dr. , Dr. Krucke, Grotti, Nurse Berglund, and Nurse Chandler is

evidenced in McGhee's 20:15 blood gas report, which indicated that

McGhee's PH level was below normal and that she was metabolically

acidotic. This meant that although McGhee was hyperoxygenated, her

circulatory function was failing, which caused the cells to release

lactic acid because they were not receiving adequate oxygen.

There is no evidence that McGhee had a pulse at 21:50. The extent of

the medications and defibrillations administered to McGhee, the length

of the code itself, and the time at which Grotti occluded McGhee's ET

tube vis-a-vis the time that she was found and the time that the code

was called further support the conclusion that McGhee was dead at

21:50. Consequently, numerous witnesses thus reasoned that McGhee had

met the definition of death-as found in section 671.001(a) of the

Texas Health and Safety Code-before 21:50.

Accordingly, the evidence that McGhee was not alive at 21:50 thus

outweighed the evidence that McGhee was alive at 21:50 because (1) the

evidence contrary to the verdict demonstrates that McGhee experienced

irreversible cessation of her spontaneous respiratory and circulatory

functions prior to 21:50 and (2) her respiratory efforts between 20:50

and 21:50 were insufficient to maintain life. See Tex. Health &

Safety Code Ann. ' 671.001(a). Although there is legally sufficient

evidence supporting the jury's verdict, which primarily consists of

Dr. DiMaio's testimony, after viewing all of the evidence and

exercising our exclusive jurisdiction to determine this factual

sufficiency issue, we must conclude that the evidence supporting the

verdict is outweighed by the contrary evidence such that Grotti's

guilt could not have been proven beyond a reasonable doubt.[19]

Because we hold that the evidence is factually insufficient to

demonstrate that McGhee was alive at 21:50Cbecause the contrary

evidence is so strong and that the evidence that she was alive is

insufficient to meet the beyond-a-reasonable-doubt burden of proofCthe

evidence is therefore also factually insufficient to show that McGhee

was an Aindividual@ within the meaning of sections 1.07(a)(26) and

19.01(a) of the penal code. Tex. Penal Code Ann. '' 1.07(a)(26),

19.01(a). Consequently, the evidence is factually insufficient to

show that Grotti's act of occluding McGhee's ET tube caused McGhee's

death. We sustain Grotti's first issue.

In her second issue, Grotti argues that the evidence is factually

insufficient to show that she caused McGhee's death. She argues that

it was McGhee's disease process that caused McGhee's death, not her

act of occluding McGhee's ET tube. Grotti's argument is in the form

of a factual sufficiency challenge and, if sustained, would not

entitle her to any greater relief than that available to her pursuant

to our factual insufficiency holding above. Moreover, her argument is

based upon the presumption that McGhee was alive when Grotti occluded

her ET tube. We have already determined that the evidence is

factually insufficient to show that McGhee was alive when Grotti

occluded her ET tube and, consequently, that Grotti did not cause her

death. Therefore, any inquiry into the cause of McGhee's death based

upon an underlying presumption that McGhee was alive would be

unnecessary and moot. For these reasons, we need not address this

issue. See Tex. R. App. P. 47.1.

Because Grotti's remaining issues, if sustained, would entitle her to

greater relief than that afforded to her pursuant to our factual

insufficiency holding, we address them below.

IV. Gross Deviation & Lesser Included Offense

In her third issue, Grotti argues that there was no evidence that she

committed a gross deviation from a standard of care. See Tex. Penal

Code Ann. ' 6.03(d) (Vernon 2003). She argues that no expert

testified that her conduct constituted a gross deviation from a

standard of care and that a lay juror could not make such a

determination on the basis of mere conjecture or speculation. We also

consider Grotti's fourth issue here, in which she argues that the

trial court erred by instructing the jury on the lesser included

offense of criminally negligent homicide. She argues that her act of

occluding McGhee's ET tube was intentional, not negligent, and that

she is guilty of either a different degree of homicide or none at all.

We use a two-pronged test to determine whether a defendant is entitled

to an instruction on a lesser included offense. Rousseau v. State,

855 S.W.2d 666, 672-73 (Tex. Crim. App.), cert. denied, 510 U.S. 919

(1993); Royster v. State, 622 S.W.2d 442, 446 (Tex. Crim. App. [Panel

Op.] 1981) (op. on reh'g). First, the lesser included offense must be

included within the proof necessary to establish the offense charged.

Salinas v. State, 163 S.W.3d 734, 741 (Tex. Crim. App. 2005). This

means that the offense must comport with article 37.09 of the Texas

Code of Criminal Procedure. Tex. Code Crim. Proc. Ann. art. 37.09

(Vernon 1981); v. State, 969 S.W.2d 4, 8 (Tex. Crim. App. 1998).

Second, some evidence must exist in the record that would permit a

jury to rationally find that if appellant is guilty, he is guilty only

of the lesser offense. Salinas, 163 S.W.3d at 741; Rousseau, 855

S.W.2d at 672-73; Royster, 622 S.W.2d at 446. The evidence must be

evaluated in the context of the entire record. , 969 S.W.2d at

8. There must be some evidence from which a rational jury could

acquit the defendant of the greater offense while convicting him of

the lesser included offense. Id. The court may not consider whether

the evidence is credible, controverted, or in conflict with other

evidence. Id. If there is evidence from any source that negates or

refutes the element establishing the greater offense, or if the

evidence is so weak that it is subject to more than one reasonable

inference regarding the aggravating element, the jury should be

charged on the lesser included offense. See Schweinle v. State, 915

S.W.2d 17, 19 (Tex. Crim. App. 1996); Saunders v. State, 840 S.W.2d

390, 391-92 (Tex. Crim. App. 1992).

A person commits criminally negligent homicide if she causes the death

of another by criminal negligence. Tex. Penal Code Ann. ' 19.05(a).

Criminal negligence occurs when the person ought to be aware of a

substantial and unjustifiable risk that the circumstances exist or the

result will occur. Id. ' 6.03(d). The risk must be of such a nature

and degree that the failure to perceive it constitutes a gross

deviation from the standard of care that an ordinary person would

exercise under all the circumstances as viewed from the actor's

standpoint. Id. It is the Afailure to perceive@ the risk that must

rise to the level of a Agross deviation@ from an ordinary standard of

care. Graham v. State, 657 S.W.2d 99, 101 (Tex. Crim. App. 1983).

The offense of criminally negligent homicide Ainvolves inattentive

risk creation, that is, the actor ought to be aware of the risk

surrounding his conduct or the results thereof [but fails] to perceive

the risk.@ Stadt v. State, 182 S.W.3d 360, 364 (Tex. Crim. App. 2006)

(quoting v. State, 529 S.W.2d 550, 553 (Tex. Crim. App. 1975)).

In order for a defendant to be entitled to a jury charge on criminally

negligent homicide, the record must contain some evidence that the

defendant did not intend the resulting death or know that it was

reasonably certain to occur. Ybarra v. State, 890 S.W.2d 98, 110

(Tex. App.CSan 1994, pet. ref'd). If such evidence is

present, before a charge on criminally negligent homicide is required,

the record must also contain evidence showing an unawareness of the

risk. Mendieta v. State, 706 S.W.2d 651, 653 (Tex. Crim. App. 1986);

Licon v. State, 99 S.W.3d 918, 928 (Tex. App.CEl Paso 2003, no pet.);

Ybarra, 890 S.W.2d at 110.

Criminally negligent homicide is a lesser included offense of murder.

See Lugo v. State, 667 S.W.2d 144, 147 (Tex. Crim. App. 1984). Thus,

the first prong under Royster is met. The issue here is whether there

is some evidence in the record that would permit a jury to rationally

find that if Grotti is guilty, she is guilty only of the lesser

included offense of criminally negligent homicide.

Grotti testified that McGhee was never successfully revived or

resuscitated at any point during the code, that she called the code

because McGhee was dead, and that McGhee's post-20:50 respiratory

efforts were merely agonal respirations. Grotti also testified that

she did not harm McGhee when she occluded McGhee's ET tube and that

she did not occlude the ET tube in order to kill McGhee. The record

thus contains some evidence that Grotti neither intended to cause

McGhee's death nor did she know that it was reasonably certain to

occur.

The obvious risk associated with occluding McGhee's ET tube is

Grotti's failure to recognize that McGhee could possibly have been

alive and that her occlusion of McGhee's ET tube could cause McGhee to

asphyxiate. As set forth in our evidentiary sufficiency analysis

above, there is evidence, primarily from Dr. DiMaio and Dr. Zimmerman,

that McGhee's respiratory efforts were not agonal and that she was

alive when Grotti occluded her ET tube, although Zimmerman Aassumed@

that McGhee was breathing. Considered along with Grotti's opinion of

McGhee's condition at 21:50, this is some evidence indicating an

unawareness by Grotti that McGhee could possibly have been alive at

21:50. See Mendieta, 706 S.W.2d at 653; Ybarra, 890 S.W.2d at 110.

There is thus some evidence in the record that would permit a jury to

rationally find that Grotti is guilty only of the lesser included

offense of criminally negligent homicide. See Royster, 622 S.W.2d at

446.

Regarding Grotti's gross deviation argument, the record demonstrates

that Grotti was board certified in internal medicine and critical care

and had years of emergency care experience. Dr. Zimmerman testified

that she could think of no Amedical or commonsensical@ justification

for ever occluding a patient's ET tube, and Grotti herself said that

occlusion of McGhee's ET tube would have been Ahorrible,@ Aextreme,@

and a Adisregard[] to the normal standard of medical practice@ if

McGhee had been alive at the time. Notwithstanding our factual

sufficiency holding above, this evidence, considered with Dr. DiMaio's

opinion about McGhee's condition at 21:50 (i.e., that she was

breathing), constitutes some evidence that Grotti's failure to

perceive that McGhee was possibly alive was a gross deviation from an

ordinary standard of care.[20] Accordingly, we overrule Grotti's

third and fourth issues.

V. Prosecutorial MisconductCMotion for Mistrial

In her fifth issue, Grotti argues that the State deliberately violated

an in limine order by asking a question that allegedly implicated Abad

acts@ evidence. She argues that the alleged violation constituted

prejudicial prosecutorial misconduct and that the trial court erred by

denying her motion for mistrial.

A mistrial is an extreme remedy for prejudicial events occurring

during the trial process. Bauder v. State, 921 S.W.2d 696, 698 (Tex.

Crim. App. 1996). It is a device used to halt trial proceedings when

error is so prejudicial that expenditure of further time and expense

would be wasteful and futile. Ladd v. State, 3 S.W.3d 547, 567 (Tex.

Crim. App. 1999), cert. denied, 529 U.S. 1070 (2000). The asking of

an improper question will seldom require a mistrial because, in most

cases, any harm can be cured by an instruction to disregard. Id.;

v. State, 805 S.W.2d 409, 413-14 (Tex. Crim. App. 1990),

cert. denied, 500 U.S. 960 (1991). But a mistrial is required when an

improper question or reference is clearly prejudicial to the defendant

and is of such character as to suggest the impossibility of

withdrawing the impression produced on the minds of the jurors.

Simpson v. State, 119 S.W.3d 262, 272 (Tex. Crim. App. 2003), cert.

denied, 542 U.S. 905 (2004); Ladd, 3 S.W.3d at 567. Only when it is

apparent that an objectionable event at trial is so emotionally

inflammatory that curative instructions are not likely to prevent the

jury from being unfairly prejudiced against the defendant is a trial

court required to grant a mistrial. Bauder, 921 S.W.2d at 698.

The denial of a motion for mistrial is reviewed under an abuse of

discretion standard. Ladd, 3 S.W.3d at 567. The determination of

whether a given error necessitates a mistrial must be made by

examining the particular facts of the case. Id. To preserve error

involving prosecutorial misconduct, the defendant must (1) make a

timely and specific objection, (2) request an instruction that the

jury disregard, and (3) move for a mistrial. Penry v. State, 903

S.W.2d 715, 764 (Tex. Crim. App.), cert. denied, 516 U.S. 977 (1995);

Cook v. State, 858 S.W.2d 467, 473 (Tex. Crim. App. 1993).

The following exchange took place during the State's cross-examination

of Grotti:

[sTATE:] When you pull out a patient's endotracheal tube . . .

[GROTTI:] Right.

[sTATE:] Does their airway - - in somebody that is dying, does their

airway collapse upon itself like you claim?

[GROTTI:] That depends on the situation. In this patient, she was

completely [flaccid], her muscles had absolutely no tone. So the - -

what would happen if the tube was pulled out is all of her tissues

would have collapsed inward.

[sTATE:] Did Woody O'Keefe's airway collapse?

[DEFENSE COUNSEL:] Objection, Judge. Can we approach the bench? I'd

[like] to make a motion for mistrial at this time.

The judge then excused the jury from the courtroom and allowed the

prosecutor to question Grotti about O'Keefe, a patient who allegedly

died of acute morphine intoxication while under Grotti's care in April

2001. After the State had asked a few questions, the judge

interrupted and asked, AWho is Woody O'Keefe?@ With the judge's

recommendation, the attorneys for both sides later agreed to excuse

the jury for the remainder of the day. But before dismissing the

jurors, the trial court instructed them as follows:

THE COURT: Now I will tell you this: Right before you went into the

jury room, there was a question about referring to a Woody O'Keefe's

airway. You will disregard for all purposes that question or any

reference to a person named Woody O'Keefe, whoever that may be. Does

everyone understand that instruction?

SEVERAL JURY MEMBERS: Yes.

THE COURT: All right. Disregard doesn't mean that you didn't hear

it, you did. Disregard means that has nothing to do with anything

going on in this trial. I won't even think about it or consider it

for any purpose, whatsoever, just like I won't consider whether the

Rangers won or lost last night because it has nothing to do with this

trial. Does everyone understand what disregard means?

THE COURT: Can everyone follow the Court's instruction to disregard

that statement or remark?

THE COURT: Is there anyone who cannot, if so, just raise your hands.

I see no hands. I thank you for that and following the law and the

rules and your instructions.

The trial court ultimately sustained Grotti's objection but denied her

motion for mistrial.

The State initially argues that Grotti failed to preserve error

because her attorney did not specifically object to the complained-of

question. We disagree. After the trial court allowed the prosecutor

to question Grotti about O'Keefe, it allowed Grotti's attorney to

thoroughly explain the basis of the objection and argument. The basis

of the objection is thus apparent from the record even though Grotti's

counsel merely asserted a general objection when the prosecutor first

asked the question.

Turning to the merits of Grotti's argument, the record does not

demonstrate that the question posed by the prosecutor was Aclearly

prejudicial@ to Grotti or was Aso emotionally inflammatory@ that the

trial court's subsequent instruction to disregard failed to cure its

prejudicial effect, if any. See Simpson, 119 S.W.3d at 272; Bauder,

921 S.W.2d at 698. Grotti did not have an opportunity to respond to

the question, her counsel objected immediately, and no further

questions concerning O'Keefe were asked in the presence of the jury.

The trial court did not even know (or had to be reminded) who O'Keefe

was. The severity of the conduct, if any, was thus minimal.

In addition to instructing the jury to disregard the question, the

trial court gave the jury an opportunity to inform it if they could

not follow the instruction; no one expressed an inability to follow

the instruction. Grotti has presented no evidence to rebut the

presumption that the jury followed the court's instruction to

disregard. See wicz v. State, 186 S.W.3d 601, 620 (Tex.

App.CAustin 2006, pet. ref'd) 'The jury is presumed to follow the

trial court's instruction to disregard unless the comment is so

prejudicial or extreme that the instruction was incapable of removing

the harm.'. We hold that the trial court's instruction to disregard

was effective and cured the prejudicial effect, if any, stemming from

the prosecutor's question. Accordingly, the trial court did not abuse

its discretion by denying Grotti's motion for mistrial. We overrule

Grotti's fifth issue.

VI. Expert Opinions

In her sixth issue, Grotti argues that the opinions of the State's

experts were based on conjecture, not fact. She argues that there is

no evidence that from 20:50 to 21:50 McGhee had the spontaneous

ability to maintain an adequate exchange of oxygen and carbon dioxide

in her lungs and that there is no evidence that McGhee's heart was

able to spontaneously circulate or perfuse oxygen-carrying blood to

the organs of her body. She contends that, to the contrary, there was

an abundance of evidence that McGhee lacked efficient spontaneous

coronary perfusion and exchange of oxygen and carbon dioxide in her

lungs. AFor that reason,@ Grotti argues, Aany opinion that Ms. McGhee

was alive at 21:50 or that Dr. Grotti caused her death at 21:50 would

have been the result of rank conjecture and speculation.@ Grotti's

argument thus amounts to this: Because the evidence is insufficient to

show that McGhee was alive at 21:50, Dr. Zimmerman's opinions

regarding McGhee's condition at the same time were based on

conjecture. We disagree.

A witness qualified as an expert may testify in the form of an opinion

if scientific, technical, or other specialized knowledge will assist

the trier of fact to understand the evidence or to determine a fact in

issue. Tex. R. Evid. 702. Expert witness testimony should be

admitted only when it is helpful to the jury and limited to situations

in which the expert's knowledge and experience on a relevant issue are

beyond that of an average juror. v. State, 895 S.W.2d 363,

366 (Tex. Crim. App. 1994). An expert's opinion must be more than

Asubjective belief or unsupported speculation,@ but it need not reach

the level of Aknown to a certainty@ to be admissible. Daubert v.

Merrell Dow Pharm., Inc., 509 U.S. 579, 590, 113 S. Ct. 2786, 2795

(1993). Testimony in the form of an opinion or inference otherwise

admissible is not objectionable because it embraces an ultimate issue

to be decided by the trier of fact. Tex. R. Evid. 704.

The admissibility of evidence is within the discretion of the trial

court, and the trial court's ruling will not be reversed absent an

abuse of discretion. Osbourn v. State, 92 S.W.3d 531, 537 (Tex. Crim.

App. 2002). If there is evidence supporting the trial court's

decision to admit evidence, there is no abuse of discretion. Id. at

538.

We initially note that although Grotti challenges the opinions of all

of the experts who testified on behalf of the State, her brief

addresses only the testimony of Dr. Zimmerman and not those of any

other experts. Because she does not assert any argument or authority

regarding the other State's experts, she has forfeited that portion of

her argument by inadequate briefing. See Tex. R. App. P. 38.1(h)

(requiring brief to contain a clear and concise argument with

appropriate citations); Tong, 25 S.W.3d at 710; v. State, 50

S.W.3d 579, 591 n.1 (Tex. App.CFort Worth 2001, pet. ref'd).

Grotti contends that Dr. Zimmerman's opinions were based on

conjecture. However, Dr. Zimmerman testified that her opinions were

based on McGhee's medical records, affidavits from JPS employees,

letters and information from the Board, and her education, training,

and expertise. Considering Dr. Zimmerman's stated basis for her

opinion, other legally sufficient evidence corroborating Dr.

Zimmerman's opinion, and Dr. Zimmerman's own specialized medical

knowledge, Dr. Zimmerman's testimony was not based upon conjecture.

The factual background and sufficiency sections above demonstrate the

complexity of the evidence involved in this case. An understanding of

the relevant medical terms and concepts, such as agonal respiration,

spinal reflex, metabolic acidosis, ventricular fibrillation,

ventricular tachycardia, and pulseless electrical activity, is beyond

the common knowledge of the average juror. Dr. Zimmerman's testimony

describing and explaining McGhee's condition during and after the code

assisted the fact finder in making its determination of the relevant

issues. Grotti provides no authority supporting her argument that an

expert's opinion is conjecture merely because there is an abundance of

evidence to the contrary. Further, Dr. Zimmerman specifically

identified the limitations of her opinion. That is, she conceded that

she was Aassuming@ that McGhee was breathing, a key unknown fact.

Thus, the jury was made aware of the assumption upon which her opinion

was based. Accordingly, notwithstanding our factual sufficiency

holding above, Dr. Zimmerman's conclusion that McGhee was alive at

21:50 was based on more than mere subjective belief or unsupported

speculation. See Daubert, 509 U.S. at 590, 113 S. Ct. at 2795. The

trial court did not abuse its discretion by admitting Dr. Zimmerman's

testimony. Accordingly, we overrule Grotti's sixth issue.

VII. Double Jeopardy

In her seventh issue, Grotti argues that her prosecution violated the

Fifth Amendment's prohibition against double jeopardy. The Board

investigated the circumstances surrounding McGhee's death and

ultimately ordered Grotti to pay an Aadministrative penalty@ in the

amount of $10,000 in addition to revoking her medical license and

requiring her to reimburse the Board for costs incurred in preparation

of the hearing transcript. Grotti contends that the administrative

penalty implicates the constitutional protection against double

jeopardy because it is punitive in nature and not remedial, and

therefore constitutes criminal Apunishment@ for double jeopardy

purposes. Consequently, she argues that the State should have been

barred from prosecuting her for murder because she had previously been

subject to statutory Apunishment@ pursuant to the Texas Occupations

Code. See Tex. Occ. Code Ann. ' 164.052 (Vernon Supp. 2006), '

164.053 (Vernon 2004). The State responds that (1) application of the

Blockburger test demonstrates that the offenses are not the same and

(2) the $10,000 administrative penalty was not criminal

Apunishment.@[21]

The double jeopardy clause of the United States Constitution provides

that no person shall be subjected to twice having life or limb in

jeopardy for the same offense. U.S. Const. amend. V. It bars three

separate types of double jeopardy claims: (1) a second prosecution for

the same offense after acquittal; (2) a second prosecution for the

same offense after conviction; and (3) multiple punishments for the

same offense. Brown v. Ohio, 432 U.S. 161, 165, 97 S. Ct. 2221, 2225

(1977); Ex parte Herron, 790 S.W.2d 623, 624 (Tex. Crim. App. 1990)

(op. on reh'g). These double jeopardy protections apply only when the

duplicative prosecutions or punishments involve the Asame offense.@

Ex parte Broxton, 888 S.W.2d 23, 25 (Tex. Crim. App. 1994), cert.

denied, 515 U.S. 1145 (1995). Grotti argues that her double jeopardy

claim implicates the second and third categories.

Texas courts apply the same-elements test articulated by the United

States Supreme Court in Blockburger v. United States, 284 U.S. 299, 52

S. Ct. 180 (1932), when reviewing a double jeopardy claim. See Langs

v. State, 183 S.W.3d 680, 685 (Tex. Crim. App. 2006). This is

achieved by examining the elements of the applicable statutes to

determine whether each statute Arequires proof of an additional fact

which the other does not.@ See Blockburger, 284 U.S. at 304, 52 S.

Ct. at 182. If each statute requires proof of an additional fact that

the other does not, then the two offenses are not the same offense for

double jeopardy purposes. Id.

We begin by recognizing that legislative intent is the primary

consideration in a multiple punishment double jeopardy claim and the

Aultimate end that the >same elements' test seeks.@ Langs, 183 S.W.3d

at 685 n.15, 688; Saenz v. State, 166 S.W.3d 270, 272 (Tex. Crim. App.

2005) 'The Fifth Amendment's multiple punishments prohibition is

violated when a defendant >is convicted of more offenses than the

legislature intended.''. AThe assumption underlying the rule is that

[the legislature] ordinarily does not intend to punish the same

offense under two different statutes.@ Whalen v. United States, 445

U.S. 684, 691-92, 100 S. Ct. 1432, 1437-38 (1980).

Here, disciplinary proceedings were initiated against Grotti pursuant

to the Medical Practice Act 'MPA'. See Tex. Occ. Code Ann. ''

151.001-165.160. (Vernon 2004 & Supp. 2006). The Board's order

indicates that McGhee Acommitted@ a Aprohibited act or practice@

pursuant to sections 164.052(a)(5) and 164.053(a)(1) of the MPA, which

fall under the subtitle, ALicense Denial and Disciplinary Actions.@

Id. '' 164.052(a)(5), 164.053(a)(1). Section 165.160, titled AEffect

on Criminal Prosecution,@ states, AThis subtitle does not bar a

criminal prosecution for a violation of this subtitle or a rule

adopted under this subtitle.@ Id. ' 165.160. Thus, we initially note

that the legislature clearly did not intend this administrative

procedure to be a bar to criminal prosecution. Likewise, application

of Blockburger's same-elements test further reveals the legislature's

did not intend that the Aoffenses@ be the same. Section 164.052(a)(5)

provides that A[a] physician . . . commits a prohibited practice if

that person . . . commits unprofessional or dishonorable conduct that

is likely to deceive or defraud the public, as provided by Section

164.053, or injure the public.@ Id. ' 164.052(a)(5). The Board

included the following in its conclusions of law:

3. Respondent [Grotti] committed a prohibited act or practice within

the meaning of Section 164.052(a)(5) of the Act based upon

unprofessional or dishonorable conduct that is likely to deceive or

defraud the public or injure the public. Respondent's act of

unprofessional conduct was her occlusion of [McGhee's] endotracheal

tube.

Section 164.053(a)(1) provides that A[f]or purposes of Section

164.052(a)(5), unprofessional or dishonorable conduct likely to

deceive or defraud the public includes conduct in which a physician .

.. . commits an act that violates any state or federal law if the act

is connected with the physician's practice of medicine.@ Id. '

164.053(a)(1). The Board included the following in its conclusions of

law:

4. Respondent has committed a prohibited act or practice within the

meaning of Section 164.053(a)(1) of the Act based on Respondent's

commission of an act that violates any law of this state if the act is

connected with Respondent's practice of medicine to wit: Respondent

violated the Health and Safety Code Section 671.001 by failing to

apply the statutory requirements for determining death with regard to

[McGhee].

On the other hand, the indictment, which tracks the relevant penal

code statute, charges Grotti with the offense of murder and states

that Aon or about December 26, 2000,@ Grotti Adid then and there

unlawfully, intentionally, and knowingly cause the death of [McGhee] .

.. . by occluding the airway of [McGhee] with her finger.@ It further

provides that Aon or about December 26, 2000,@ Grotti Adid then and

there unlawfully intend to cause serious bodily injury to [McGhee] . .

.. and did cause the death of [McGhee] by intentionally and knowingly

committing an act clearly dangerous to human life, namely occluding

the airway of [McGhee] with her finger.@[22]

The elements of the criminal offense and the prohibited acts under the

MPA are different. A violation of section 164.052(a)(5) requires that

a physician commit a prohibited practice. The murder offense is not

limited to physicians. A section 164.052(a)(5) violation requires

that the physician commit unprofessional or dishonorable conduct. The

murder offense does not require this form of conduct. The same

MPA-prohibited act requires that the conduct deceive or defraud the

public. The murder offense does not require deception or fraud. A

violation of section 164.053(a)(1) requires that the prohibited act be

connected with the physician's practice of medicine. The murder

offense does not require any connection with the practice of medicine.

Further, the murder offense requires that the defendant intentionally

or knowingly cause death or commit an act clearly dangerous to human

life, but the MPA prohibited acts contain no scienter requirement.

Because each Aoffense@ requires proof of an additional fact that the

other does not, the Aoffenses@ are not the same. See Blockburger, 284

U.S. at 304, 52 S. Ct. at 182.

Grotti does not discuss whether the Aprohibited act or practice@

that she Acommitted@ under the occupations code and the criminal

offense that she was indicted for are the Asame offense.@ As

indicated above, Grotti's double jeopardy argument is based entirely

on the theory that the $10,000 administrative penalty assessed against

her constitutes criminal punishment, citing Hudson v. United States,

522 U.S. 93, 118 S. Ct. 488 (1997). Indeed, Hudson sets forth the

proper inquiry for determining whether a civil penalty constitutes

Apunishment@ for purposes of double jeopardy. See id. at 99, 118 S.

Ct. at 493; see also Ex parte Ward, 964 S.W.2d 617, 620 (Tex. Crim.

App.), cert. denied, 525 U.S. 823 (1998). This court and others,

however, have recognized that the analysis of a multiple punishments

claimCat least in terms of the situation in which the alleged criminal

conduct violates two separate statutory provisions[23]Cbegins by

determining whether the punishments are for the same offense. See Ex

parte Tharp, 912 S.W.2d 887, 889 (Tex. App.CFort Worth 1995), aff'd,

935 S.W.2d 157 (Tex. Crim. App. 1996) 'Because the statutes describe

the >same offense' under the Blockburger test, if the driver's license

suspension . . . was punishment, then a subsequent prosecution for

driving while intoxicated will be barred by double jeopardy.'; see

also Langs, 183 S.W.3d at 685 'This Court adopted the Blockburger test

long ago, and we continue to apply it as the first means of analyzing

a multiple-punishment double-jeopardy claim when the legislature's

intent is not clearly expressed.'; v. State, 920 S.W.2d 692,

693-94 (Tex. App.CHouston [1st Dist.] 1996, pet. ref'd) (applying

Blockburger test to appellant's criminal Apunishment@ argument).

Because the criminal offense and MPA-prohibited acts are not the same

offenses for double jeopardy purposes, we need not determine whether

the Aadministrative penalty@ levied against Grotti constitutes

criminal Apunishment.@ See Ex parte , No. 05-01-00213-CR,

2001 WL 579931, at *2 (Tex. App.CDallas May 31, 2001, no pet.) (not

designated for publication) (denying appellant's application for

pretrial writ of habeas corpus because elements of criminal offense

and administrative offense different). Accordingly, Grotti's

subsequent murder prosecution did not violate the Fifth Amendment's

prohibition against double jeopardy. We overrule Grotti's seventh

issue.

VIII. Conclusion

Having sustained Grotti's first issue, we reverse the trial court's

judgment and remand this case for a new trial. See Zuniga, 144 S.W.3d

at 482; Clewis v. State, 922 S.W.2d 126, 135 (Tex. Crim. App. 1996).

TERRIE LIVINGSTON

JUSTICE

PANEL A: CAYCE, C.J.; LIVINGSTON and GARDNER, JJ.

PUBLISH

DELIVERED: SEPTEMBER 14, 2006

[1]Janice Zimmerman, M.D., an expert witness who testified for the

State, described a 'code' as a resuscitation effort. An simplified

terms . . . you have a patient who has a condition that if you don't

do something they probably are likely to die. But you have an

opportunity to intervene and reverse that process or treat it

effectively.'

[2]Like McGhee's medical records, all time references in this opinion

are based on a 24-hour clock.

[3] , M.D., an expert witness who testified on behalf of

Grotti, described a cardiac arrest as a complete stopping of the

heart, causing respiratory and circulatory failure. ' heart attack,

conversely, occurs when there is Ablockage of an artery in the heart

and a piece of heart muscle dies,' but the heart continues to beat.

[4]V-fib is chaotic or irregular electrical activity of the heart in

which the heart pulsates, but does not beat, pump, or perfuse.

Ventricular tachycardia ('V-tach') and pulseless electrical activity

'PEA') are other forms of irregular electrical heart activity.

[5]' person's breathing is Aspontaneous' when the body itself is doing

the breathing without the assistance of artificial machines, that is,

when the breathing is self-generated.

[6]This is generally referred to as a 'flat line'; the heart is doing nothing.

[7]' pulse is Apalpable' when it can be felt, usually on the carotid

or femoral artery.

[8]' Asinus' rhythm is a normal heart rhythm. According to Dr. ,

although a sinus rhythm suggests a pulse and a heartbeat, it does not

demonstrate effective perfusion, which indicates that the heart is

effectively pumping blood to the organs and tissues.

[9]Grotti was one of two attending physicians in the JPS ICU at the

time. She had attended the University of Texas's medical school in

Houston and had completed a family practice internship, an internal

medicine residency, and a critical care fellowship thereafter. She

worked in Sacramento, California as a hospitalist after her

fellowship. She began working at JPS on August 1, 1997. At the time

of the event, Grotti was board certified in internal medicine and

critical care.

[10]'Thready,' according to Grotti, means weak.

[11]'Brady' is short for Abradycardia,' which means a slower heart

rate, usually less than sixty beats per minute. Grotti explained that

she wrote Abrady' because McGhee's Aheart rate was bradying down, it

was slowing down.'

[12]Life Gift is an organization that assists with the process of

organ donation.

[13]Webster's Dictionary defines 'occlude' as Ato shut or stop up so

as to prevent the passage of something.' Webster's Third New

International Dictionary 1560 (2002).

[14]Grotti initially argues that a different evidentiary standard of

review should be utilized in cases in which a physician has been

charged with negligent homicide arising from the treatment of a

patient. She contends that we should apply the no-evidence standard

of review pronounced by the Texas Supreme Court in City of Keller v.

because there is no precedent in Texas for the application of

the evidentiary sufficiency rules to cases in which physicians are

charged with homicide. 168 S.W.3d 802 (Tex. 2005). We decline

Grotti's recommendation. This is an appeal from a criminal

prosecution, not a civil trial, and until further instructed, we are

bound to apply the appropriate standards of review as articulated by

the court of criminal appeals as set forth herein. See Tello v.

State, 180 S.W.3d 150, 156 (Tex. Crim. App. 2005).

[15]Grotti argues in her brief, and we agree, that section 671.001(a),

not section 671.001(, is the appropriate definition of death by

which to examine the sufficiency of the evidence because this is a

case of cardiopulmonary death, not brain death, and because we are

restrained by the theories and definitions used at trial.

[16]'ccording to the report, AC' stands for critical.

[17]Hunt is certified in Advanced Cardiac Life Support 'CLS),

Cardiopulmonary Resuscitation (CPR), Pediatric Advanced Life Support

(PALS), and Neonatal Advanced Life Support (NALS).

[18]The timing testified to by Dr. Kasschau conflicts with other

evidence showing that Grotti occluded McGhee's ET tube an hour after

she called the code, or 21:50. Regardless of the inconsistency in the

times, however, there is no dispute that Grotti occluded the ET tube

after calling the code and with Dr. Kasschau present in the room.

[19]Although not entirely on point, the court in State v. Naramore,

965 P.2d 211 (Kan. Ct. App. 1998), considered some of the same issues

that we are confronted with in this case, particularly the strong

expert testimony contrary to the fact finder's verdict. There, the

Kansas appellate court held that the evidence was insufficient to

support the physician-defendant's convictions for murder. Id. at 223.

The court stated,

This is not a situation where the evidence in the defendant's favor is

trifling. It is extremely strong. When there is such strong evidence

supporting a reasonable, noncriminal explanation for the doctor's

actions, it cannot be said that there is no reasonable doubt of

criminal guilt. This is particularly true in a situation as we are

faced with here, where the only way the defendant's actions may be

found to be criminal is through expert testimony, and that testimony

is strongly controverted in every detail.

We do not say that a physician can always escape criminal conviction

for reckless or purposeful homicidal behavior through friendly medical

testimony on his or her behalf. But there is a reason why there has

yet to be in Anglo-American law an affirmed conviction of a physician

for homicide arising out of medical treatment based on such highly

controverted evidence as here.

Id. at 223-24.

[20]We also note that Grotti's argument under her third issue seems to

be a challenge, though not worded as such, to the jury charge. Grotti

appears to be advocating that the requirements for expert testimony

and a physician-based standard of care in a civil medical malpractice

case be applied in this case. There, expert testimony is required to

establish the governing standard of care and to determine whether the

standard has been breached. See Hood v. , 554 S.W.2d 160,

165-66 (Tex. 1977). But here, Grotti did not assert any objection to

the trial court's charge as worded, which was based upon the penal

code's definition of gross deviation from the standard of care. This

definition provided that the risk that the defendant fails to perceive

must 'constitute[] a gross deviation from the standard of care that an

ordinary person would exercise under all the circumstances as viewed

from the actor's standpoint.' Tex. Penal Code Ann. ' 6.03(d); Tello,

180 S.W.3d at 156. To the extent that Grotti makes this argument, it

is unclear and waived. See Tex. R. App. P. 38.1(h); Tong v. State, 25

S.W.3d 707, 710 (Tex. Crim. App. 2000), cert. denied, 532 U.S. 1053

(2001). Further, we cannot say that any unobjected-to charge error

existed since the trial court's charge tracked the law applicable to

the case. See Tex. Code Crim. Proc. Ann. arts. 36.14-.15 (Vernon

Supp. 2006), arts. 36.16-.19 (Vernon 1981); Bluitt v. State, 137

S.W.3d 51, 53 (Tex. Crim. App. 2004); Almanza v. State, 686 S.W.2d

157, 171‑72 (Tex. Crim. App. 1985) (op. on reh'g).

[21]Grotti filed a pretrial motion to dismiss the indictment on the

same grounds, which the trial court denied. She does not argue that

her prosecution violates the double jeopardy provision found in

article I, section 14 of the Texas Constitution.

[22]We compare the offense charged, murder, as opposed to the offense

that Grotti was convicted of, criminally negligent homicide, because

Grotti sought to dismiss the indictment pretrial on double jeopardy

grounds. Moreover, as we indicate below, Grotti does not conduct a

same-elements examination in her brief. The State, however, does,

arguing that a comparison of the elements of the offenses considered

in the administrative proceeding with the elements of the offense

contained in the indictment shows that Grotti has not been subjected

to double jeopardy.

[23]See Vineyard v. State, 958 S.W.2d 834, 836 n.5 (Tex. Crim. App. 1998).

[Guest guest]

This is a WONDERFUL case that every medic ought to read. It's not easy

reading, because the formatting is skewed, but you can get through it. It

shows

several things that I harp on incessantly in these forums, the first of which

is to do good documentation. As you read this case, consider how much of it

is based upon documentation.

Second, notice how maladroit the witnesses are in explaining their actions.

Communication is everything, and when I read the statements of the experts

and other witnesses, I wonder what school of communication they went to. Can

you imagine the jury's confusion? The witnesses didn't do a very good job

of teaching the jury, and that's what you have to do. The jurors come to the

case knowing nothing. As a witness, whether you're a fact witness, an

expert, or the defendant, your job is to teach the jury about the case in ways

that

they can understand. None of the witnesses who were quoted did a passable

job.

Third, notice how the lawyers and the court dissect the issues down to the

cellular level. Everything gets the microscope. Be prepared to have your

writing and testimony dissected.

Fourth, it is the FACTS that finally determine the case. And it is the jury

that determines the facts. In this case, the appeals court decided that

there were enough conflicts in the facts to require a retrial. The court

believed that the testimony about the meaning of the patient's respirations,

whether

agonal, spinal, or real, was sufficiently diverse to require another look by

another jury.

This case shows how the system works as well as any that I have read lately.

Apropos to this case, I will relate a case that I had which had similar

problems.

A 21 year old male put a 12 gauge shotgun to his forehead just above the nose

and blew the top of his head off. The blast created a perfect " V " in his

forehead, and all of the top of his skull was either on the ceiling or wall, as

was much of his brain. The remainder of his brain was in the scalp which was

lying posteriorly to his head like a sort of " purse. " The brain pan was

open to view, with little bleeding, I could see the sella turcica and the

orbital

openings, and the lower portions of the brain, which were still intact.

The patient had a regular pulse of 72 beats per minute and respirations of

anywhere from 1 to 4 breaths per minute for 52 minutes after my arrival on

scene.

This is the power of the medulla oblongata. Was this patient alive?

Technically yes, because he had a pulse and respirations. He also had a blood

pressure, although I cannot remember what it was now.

But was he a viable patient with any hope of recovery? Of course not. So

was he functionally dead?

Yes. But he still had vital signs.

The mistake that Dr. Grotti made, in my judgment, was in occluding the tube.

She should have simply adopted benign neglect and let nature take its

course, and she wouldn't have been subjected to the criminal indictment and

conviction.

There are protocols in place for discontinuing life support, and she failed

to use any of them. I cannot imagine why she did, but she has paid the price

for it many times over, I am sure.

What can be learned from this case? Lots, but I'll leave it to each of you

to decide.

Gene G.

>

> As if by magic, the courts in Texas have issued a ruling that mirrors

> our discussion last week of " when is dead, dead? "

>

> In this case a physician was indicted for murder, convicted of

> criminally negligent homicide ( " misdemeanor murder " ) and sentenced to

> two years in jail. The conviction was overturned on appeal, as

> presented below, for " factual insufficiency " regarding the alive/dead

> status of the patient and includes relevant sections involving EMT's

> and nurses working in the ER.

>

> From: <

> http://www.2ndcoa.http://www.2nhttp://www.2ndchttp://www.2http://www.2ndhttp:>

>

> Mike

>

> ************ ******** ******** ******** ******** ******** ******** ********

> ********

>

>