pigott-grounds for review

8/3/2019 Pigott-grounds for Review

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GROUNDSFORREVIEW

1.ThedecisionmisconstruesTRAP33.1byrefusingtoreviewAppellant’sclaimof

denialofdueprocessbyimproper,incurablejuryargument,donewiththe

objectiveofinflamingandprejudicingthejury.(Appendix,A.Opinion,pgs.20,21)

2.ThedecisionconflictswithapplicabledecisionsoftheCourtofCriminalAppeals

andtheU.S.SupremeCourtconcerningtherequirementstopreserveforappeal

improper,incurableargumentbytheprosecutor,donewiththeobjectiveof

inflamingandprejudicingthejury.

3.ThedecisionmisconstruesTRAP38.1byrefusingtoreviewAppellant’sclaimof

constitutionalerrorcausedbytheprosecutor’sintentionalmisconductforthe

objectiveofinflamingandprejudicingthejury.(Appendix,A,pgs.15-17,21)

4.ThedecisionconflictswithapplicabledecisionsoftheCourtofCriminalAppeals

andtheU.S.SupremeCourtconcerningclaimsofconstitutionalerror.The

decision ignores the claim of constitutional error by separating the components of

the prosecutor’s intentional misconduct into separate events and analyzing each

event separately, instead of reviewing the whole picture and evaluating whether

each component is part of the prosecutor’s intentional effort to prejudice the jury

against Appellant. (Appendix, A. Opinion of C.A, pgs. 15-22)



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ARGUMENT

BASIS FOR APPEAL

During closing argument the prosecutor intentionally inflamed and prejudiced the

jury by arguing outside the Record that Appellant was not afraid on the

highway, instead she was arrogant and uncooperative on the highway because

she thinks she does not have to follow the rules since she is a doctor.

The prosecutor is not allowed to use closing argument to get evidence before the

jury which is outside the Record and prejudicial to Appellant. ( Holliman v State,

879 S.W.2d 85, 88, 14th

C.A, 1994). Intentional misconduct by the prosecution for

the objective of prejudicing and/or inflaming the jury is a constitutional error.

(Stahl v State, 749 S.W.2d 826 (Tx.Cr.App, 1988). When constitutional error

occurs, there is a presumption of harm, requiring a new trial. (TRAP 44.2(a);

Appellant’s Brief, pg. 34)

TheprosecutoradmittedthathewasvindictivetowardAppellant;thathis

conductwasretaliationforAppellant’saccusations,madewhileshewas

defendingherselfprose,thattheprosecutorandtheofficerswereillegally

keepinghercar.In the case of Rougeau v. State, 783 SW2d 651, 657 (Tx. Cr. App,

En Banc, 1987) the court stated as follows:



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“One of the duties of a prosecuting attorney in a criminal case in this State, no

matter how repulsive the accused person may be to him, is to deal justly with that

person, and he should never let zeal get the better of his judgment…..A

prosecuting attorney must assume the position of an impartial representative of

justice, not that of counsel for the complainant.”

The due process concept of prosecutorial misconduct or vindictiveness holds that

it is a due process violation of the most basic sort to punish a criminal defendant

because he has done what the law plainly allows him to do, and that it is patently

unconstitutional for a prosecutor to pursue a course of action with the objective of

penalizing the defendant for relying on his legal rights in the processes of his case.

(Salazar v. Estelle, 547 F2d 1226, (C.A.5 1977).

APPELLANT’S BRIEFS

First Brief claims: that the prosecutor’s misconduct during final argument was

intentional, for the objective of prejudicing the jury; that the series of acts by the

prosecutor, prior to the final argument, show that the prosecutor’s intentional

misconduct was retaliation for Appellant’s accusations, made while pro se, that the

prosecutor and the officers were illegally keeping her car; that a review of the

entire Record shows that the prosecutor’s misconduct resulted in a denial of

fundamental fairness. (Appellant’s Brief, pgs., vii, 21-30, 33)

Pages 31-33 of Appellant’s Brief argue “insufficiency of evidence” and “ambiguity

of verdict” on the issue of “Deadly Weapon.” (Appellant’s Reply brief clarified

and conceded that the “Deadly Weapon” verdict is not the basis for this appeal.)



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Reply Brief clarifies and condenses Appellant’s first brief by eliminating four

“Errors Presented,” by eliminating “sufficiency of evidence” issues and by arguing

the relevancy of the facts to the constitutional error. (Appendix B, Reply Brief)

Condensed “Errors Presented”

“Errors Presented” 1-4 and 7 were restated so as to clearly indicate that each

component was involved in the prosecutor’s intentional effort to prejudice the jury.

“Errors Presented 5&6” (trial court allowing prosecutor’s cross-examination) were

conceded. “Errors Presented 8&9” (“Deadly Weapon” issues) were conceded.

“Sufficiency of evidence” is not the basis for this appeal either on the “Deadly

Weapon” issue or on the “Guilty Verdict” issue. At the beginning of the trial

Appellant stipulated that she failed to follow the rule allowing a police officer to

undertake his investigation; that she drove off. Appellant presented the defense of

“necessity,” claiming that her disability led to overwhelming fear; that the intense

fear overcame her ability to handle the situation.

Before the prosecutor began his cross-examination of Appellant, the primary issue

for the jury was whether Appellant was afraid on the highway OR whether she was

just arrogant and uncooperative. We do not know what the jury’s verdict would

have been had the prosecution not inflamed and prejudiced the jury. (Appendix B,

pgs., 1-4, 17-18)



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COURT OF APPEALS OPINION (Appendix A)

The opinion discusses: I. Background (pgs. 2-3); II. Deadly Weapon Findings

(pgs. 3-15); III. Denial of Fair Trial and Due Process (pgs. 15-21); IV. Denial

of Motion for Mistrial (pgs. 21-22)

II. DEADLY WEAPON FINDINGS (Appendix A, pgs. 3-15)

The court of appeals ignored the Reply Brief. A clear example is that the opinion

focuses most of its analysis on the “Deadly Weapon Findings,” which Appellant’s

brief clearly concedes. The only relevancy of the “Deadly Weapon” issue is set out

in the Reply Brief. (Appendix B, pgs. 3-4, 17-18) As argued by Appellant, the jury

verdict on “Deadly Weapon” after the 1st

stop is relevant only as evidence of harm

caused by the prosecutor’s intentional misconduct to prejudice the jury.

III. DENIAL OF FAIR TRIAL AND DUE PROCESS (Appendix A, pgs. 15-21)

Prosecutor’sImproperJuryArgument(AppendixA,pgs.20-21)

Appellant argues that during closing argument the prosecutor intentionally

inflamed and prejudiced the jury; that this intentional misconduct by the prosecutor

is constitutional error, requiring a new trial.

Thecourtofappealsrefusedtoconsidertheprejudicialeffectoftheprosecutor’s

closingargument.Instead,thecourtconcludedthatAppellantwaivedtheerrorby



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failingtoobjecttotheargument.However,Appellantpreservedtheerrorfor

appeal

Therequirementsforpreservingimproperjuryargumentforappealaresetout in

the case of Young v. State, 137 SW3d 65 (Tex. Crim. App., En Banc, 2004). The

decision in the Young case is applicable to the circumstances in this case. In Young

this Court held that an objection to the argument is not required to preserve the

error for appeal; that a motion for mistrial is sufficient to preserve the error if the

prejudicial harm caused by the error cannot be cured by instructions to disregard.

In this case the prejudicial effect of the prosecutor’s argument was not curable by

instructions to the jury and Appellant timely moved for mistrial.

Court of Appeals’ Erroneous Analysis on Preservation of Error

The court of appeals cites the case of Threadgill v. State, 146 S.W.3d 654, 670

(Tex.Crim. App., 2004) as authority for summarily rejecting Appellant’s claim of

improper jury argument. (Ct. Opinion, pg. 21) However, the Threadgill case is not

relevant to this case.

Threadgill v. State: In Threadgill the defendant did not object or file a motion for

mistrial. He did not bring the error to the attention of the trial court as required by

TRAP 33.1(a). The Threadgill court cited and quoted the case of Mathis v. State,

67 S.W.3d 918, 927 (Tex. Crim. App. 2002), stating that “even if argument is such



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that it could not be cured by an instruction, defendant is required to object and

request a mistrial.” These holdings are consistent with TRAP 33.1(a), which

requires that a party bring an error to the attention of the trial court by objection or

motion in order to preserve the error for appeal. In this case, Appellant timely

brought the error to the attention of the trial court by her motion for mistrial.

Appellant’s Objections and Motions to Preserve Error

During cross-examination of Appellant, the prosecutor began trying to leverage

Appellant’s medical disability and make her seize up, to create an image of

arrogance and uncooperativeness. Appellant made multiple objections to the

prosecutor’s conduct, which were overruled.

Then, during final argument, the prosecutor told the jury that Appellant’s

arrogance and lack of cooperation during cross-examination is proof of her

arrogance and uncooperativeness on the highway; that Appellant thinks that she

does not have to follow the rules because she is a doctor. After this argument,

grounds for mistrial became apparent. Appellant then moved for mistrial.

(Appendix B, Reply Brief, pg. 6)

Appellant’s Motion for Mistrial

After the jury retired, Appellant moved for mistrial, based on the prosecutor’s

misconduct during cross-examination and final argument. Due to time restrictions,

Appellant obtained the trial court’s consent to present an oral motion, which



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outlined the basis for the motion for mistrial, with the trial court taking notice of

the Record for the specifics of the prosecutor’s conduct. The outline included (a)

misconduct during cross-examination by leveraging Appellant’s disability to make

Appellant appear arrogant and uncooperative and (b) the final argument claiming

that Appellant is an arrogant, uncooperative doctor, while referring to his cross-

examination to prejudice the jury. The trial court was fully aware of the basis for

Appellant’s oral motion for mistrial. The trial court overruled the motion.

Appellant later filed her written motion for mistrial, which included detailed

specifics of the prosecutor’s intentional misconduct, previously outlined in the oral

motion. (Ct. Rep. R, Vol. 5, pgs. 1-4)(Appellant’s Brief, pgs.16-19)

Appellant’s Motion for New Trial

After the trial court entered a Judgment of Conviction, Appellant filed her motion

for new trial, which again set out the basis for the motion. The trial court held a

hearing on Appellant’s motion for new trial, wherein evidence was heard in

support of the MNT. The trial court overruled the MNT on 3/26/10. (Appellant’s

Brief, pg. 20)

Error Not Curable by Instructions

The prosecutor’s intentional effort to prejudice the jury during final argument

could not be cured by instructions from the trial court. Since the crucial jury issue

was whether Appellant was arrogant and uncooperative on the highway OR



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afraid on the highway, the prosecutor’s argument that Appellant’s appearance

of arrogance and uncooperativeness during cross-examination is proof that

she was arrogant and uncooperative on the highway and that she thinks she

does not have to follow the rules because she is a doctor, clearly was not curable

by instructions to the jury.

Vindictiveness and Improper Cross-Examination (Appendix A, pgs. 15-20)

The court of appeals, after evaluating each of these components separately,

concluded that Appellant’s brief presented nothing for review, due to inadequate

argument. The court cites TRAP 38.1(i) and Busby v. State, 253 S.W.3d 661, 673

(Tex. Crim. App. 2008). Neither TRAP 38 nor the Busby case supports the court

of appeals’ conclusion.

It is clear that the issues that the court of appeals finds inadequately argued are not

the issues presented by Appellant. The issues that the court concludes are not

properly argued are the separate components carved out by the Court.

Appellant’s brief cites numerous authorities holding that a combination of acts by

the prosecution that function together can have a synergistic effect in prejudicing

the jury; that such a combination requires an examination of the entire picture,

rather than an examination of each component separately; that the synergistic

effect of a jury argument improperly referring to the prosecutor’s cross-

examination can create constitutional error. These authorities include cases similar



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to this case, where the prosecution improperly orchestrated outbursts from a

witness during trial, followed by the prosecutor referring to the outburst in final

argument to prejudice the jury against the defendant. (Appendix B, pgs.11-15)

The court of appeals ignored the Reply Brief and failed to respond or even

acknowledge Appellant’s argument or authorities. The court ignored the authorities

requiring an examination of the entire picture of the prosecutor’s strategy;

separated the components into separate events and concluded that Appellant’s

argument presented nothing for review.

The court of appeals decision conflicts with decisions of this Court and the Texas

Supreme Court in construing TRAP 38. Under Rules 38.1(i) and 38.9 substantial

compliance is the requirement. If the appellate court is able to locate the pertinent

portions of the brief relating to appellant’s claimed error, the error should be

reviewed. ( Bufkin v. State, 179 S.W.3d 166, 173-74, 14th

C.A. (2005), affirmed 207

S.W.3d 779, Tx.Ct.Cr.App. (2006).

In Republic Underwriters v. Mex-Tex, Inc., 150 S.W.3d 423, 427, Tex (2004),

while interpreting the “argument and authorities” requirements under TRAP 38.1,

the Texas Supreme Court stated:



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“We have instructed the courts of appeals to construe the Rules of Appellate

Procedure reasonable, yet liberally, so that the right to appeal is not lost by

imposing requirements not absolutely necessary to effect the purpose of a rule…”

In Verburgt v. Dorner, 959 S.W.2d 615, 616-17, Tex (1997), the court stated:

“…appellate courts should not dismiss an appeal for a procedural defect whenever

any arguable interpretation of the Rules of Appellate Procedure would preserve the

appeal…We decline to elevate form over substance….

The court of appeals’ erroneously relied on Busby v. state. Busby has no relevancy

to this case. The error claimed by the appellant in Busby was not a constitutional

error and was not briefed at all. The brief did not include “issues, facts and

arguments with appropriate citations to authorities and to the record.” ( Busby, pg.

673)

Prosecutor’s Vindictiveness: The following facts support the conclusion that the

prosecutor was vindictive toward Appellant throughout the entire proceeding; that

the prosecutor intentionally inflamed and prejudiced the jury in cross-examination

and final argument. The Record shows the following:

1. The prosecutor obtained a 2nd

indictment, adding a 1st

degree felony (aggravated

assault with a deadly weapon, against a public servant) almost a year after the

event on the highway. The 2nd

indictment was filed in response to and right after

Appellant, while acting as her own attorney, filed motions alleging illegal conduct



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by the prosecutor and the officers in confiscating her car. (Appellant’s Brief, pgs.

9-10)

2. The prosecutor admitted his vindictive motivation toward Appellant.

(Appellant’s Brief, pgs. 10-11)

3. During the hearing on MNT, the prosecutor refused to deny that he confessed

his vindictiveness toward Appellant, caused by Appellant’s accusations that the

prosecutor and the officer were illegally keeping her car. (Appendix B, pgs. 9-10)

4. After hearing testimony from Appellant’s doctor that her medical disability

causes her to seize up under pressure, leveraging Appellant’s disability to make her

appear arrogant and uncooperative during cross-examination.

5. Admitting being “hell bent on a conviction” as opposed “to see that justice is

done,” in final argument.

6. Intentionally inflaming and prejudicing the jury by arguing that Appellant’s

arrogance and uncooperativeness in cross-examination is proof of her arrogance

and uncooperativeness on the highway; that Appellant thinks she does not have to

follow the rules, because she is a doctor. (Appendix B, pgs. 7-10)

The evidence set out above shows vindictiveness by the prosecutor toward

Appellant. This series of events is compelling evidence that the prosecutor’s



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conduct, during cross-examination and during closing argument, was intentional,

for the purpose of inflaming and prejudicing the jury against Appellant.

IV. DENIAL OF MOTION FOR MISTRIAL (Appendix A, pgs. 21-22)

Appellant’s briefs argue that the trial court erred in denying her motion for mistrial

and her motion for new trial, which are based on the prosecutor’s intentional

misconduct in inflaming and prejudicing the jury during closing argument; that the

prosecutor’s conduct was, admittedly, vindictive throughout the entire

proceedings; that the intentional misconduct constitutes constitutional error.

The court of appeals refused to review Appellant’s claim that the trial court erred

in denying the motions for mistrial and for new trial because Appellant did not

repeat her arguments in the “Argument and Authorities” section of her brief.

The court of appeals says although Appellant “listed her position in the ‘Errors

Presented’ section of her brief and….in the ‘Summary of Argument’ section…. the

issue is not addressed….in the ‘Argument and Authorities’ section of the brief.

Accordingly, appellant’s has presented nothing for review. See Tex. R. App. p.

38.1(i); Busby....”

This decision conflicts with decisions of this Court and the Texas Supreme Court.



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In Verburgt v. Dorner, 959 S.W.2d 615, 616-17, Tex (1997), the court stated:

“…appellate courts should not dismiss an appeal for a procedural defect whenever

any arguable interpretation of the Rules of Appellate Procedure would preserve the

appeal…We decline to elevate form over substance….

PRAYER FOR RELIEF

Appellant prays that this Court set aside the conviction because of the prosecutor

intentional conduct inflaming and prejudicing the jury. The prosecutor’s

misconduct is constitutional error, which requires a new trial.

In the alternative, Appellant prays that this Court remand the case to the court of

appeals with instructions that Appellant preserved the prosecutor’s closing

argument for appeal by presenting her motion for mistrial; that Appellant’s brief s

are in substantial compliance with TRAP 38.1(i).

Respectfully Submitted,

Jerry S. Payne

S.B.No. 15658000

11505 Memorial Dr.

Houston, Texas 77024

713-785-0677Fax-713-781-8547

CERTIFICATE OF SERVICE

I certify that I served the attorney for the State by electronic means

and by mail on 12/14/11.

_____________

Jerry S. Payne



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APPENDIX

A. COURT OF APPEALS OPINION

B. REPLY BRIEF

pigott-grounds for review

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