pigott-motion for en banc reconsideration

8/3/2019 Pigott-Motion for en Banc Reconsideration

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NO. 13-10-00234-CR

SHIRLEY PERSONS PIGOTT'

IN THE COURT OF APPEALS

VS.

STATE OF TEXAS

'

FOR THE 13

th

JUDICIAL

DISTRICT

APPELLANTS MOTION FOR EN BANC RECONSIDERATION

Statement of Case

Appellant, a 60 year old lady, is sentenced to 2 years in TDC for attempting to

drive to a safer place, after being stopped on a dark highway for speeding 9 miles

per hour over the speed limit.

This Courts previous decisions and the extraordinary circumstances of this

case require en banc review.

Status of Trial Prior to Prosecutors Conduct

Appellants Stipulations

Prior to the cross-examination of Appellant, Appellant had stipulated all the facts

necessary for a conviction on the charge of fleeing, subject to the defense of

necessity. After Appellants stipulations, the crucial jury issue became whether

Appellants fear, after being stopped on the dark highway, caused her to try to go to

a safer place or whether she was just arrogant and uncooperative. (Appellants

Brief, pg. 12)


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Medical Testimony on Appellants Disability

Prior to the cross-examination of Appellant, Dr. Matthew Brams, a psychiatrist on

the faculty of the University of Baylor Medical School and Appellants treating

psychiatrist, testified about Appellants medical disability. Dr. Brams testified that

Appellants disability caused her to have uncontrollable fear on the dark highway.

Dr. Brams testimony also indicated that stress from participating in the trial could

cause Appellant to seize up and be unable to process information. (Appellants

Brief, pgs. 12-13)

Prosecutors Strategy

The above circumstances were used by the prosecutor to inflame and prejudice the

jury against Appellant.

Constitutional Error

The Record shows that the prosecutor, through a carefully planned series of acts,

intentionally inflamed and prejudiced the jury against Appellant. As the prosecutor

began his cross-examination of Appellant, he was aware that the crucial question

for the jury was whether Appellant was arrogant and uncooperative on the

highway OR whether she was afraid, when she tried to go to a safer place. As an

intentional strategy, the prosecutor leveraged Appellants medical disability during

cross-examination to make Appellant appear arrogant and uncooperative. Then the

prosecutor, during final argument, told the jury that Appellants arrogance and lack


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of cooperation during cross-examination is proof that she was arrogant and

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

follow the rules like the rest of us, because she is a doctor.

Courts Opinion Sidesteps Constitutional issue

This Courts opinion ignores the claim of constitutional error by separating the

components of the prosecutors strategy into separate events and analyzing each

event separately, instead of as part of the prosecutors effort to intentionally

prejudice the jury against Appellant.

Appellants 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 prosecutors cross-examination can

create constitutional error. These authorities include cases similar 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. (Reply brief, pgs.11-15)

Both the State and this Court ignored these authorities. The State has not disputed

the authorities that require an examination of the entire picture. This Court failed to


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respond or even acknowledge Appellants argument or authorities. Instead, the

Court sidestepped the authorities requiring an examination of the entire picture of

the prosecutors strategy; separated the components into separate events and

analyzed each event separately.

Prosecutors Improper Jury Argument

The Court refused to consider the prejudicial effect of the prosecutors jury

argument. Instead, the Court concluded that Appellant waived the error by failing

to object to the argument. However, Appellant preserved the error for appeal.

The requirements for preserving improper jury argument for appeal are set out in

the case ofYoung v. State, 137 SW3d 65 (Tex. Crim. App., En Banc, 2004). In an

en banc decision by the Texas Court of Criminal Appeals, the court sets out the

requirements for preserving error under the circumstances in this case. The Young

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 prosecutors argument was not curable by

instructions to the jury. After the jury left the courtroom, Appellant timely moved

for mistrial.


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Courts Erroneous Analysis on Preservation of Error

As a component of the Courts decision to sidestep Appellants claim of

constitutional error, the Court cites the case ofThreadgill v. State as authority for

summarily rejecting Appellants claim of improper jury argument. (Ct. Opinion,

pg. 21) However, the Threadgillcase is not relevant to this case.

Threadgill v. State: In Threadgillthe 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. The Threadgill courtcited and quoted the case ofMathis v. State, 67

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

Appellants Objections and Motions to Preserve Error

First Phase: Appellant objected to the prosecutors conduct during the first phase of

his strategy. During cross-examination the prosecutor began leveraging Appellants

medical disability to create an image of arrogance and uncooperativeness.

Appellant made multiple objections, which were overruled.


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(Reply Brief, pg. 6)

Second Phase: During final argument, the prosecutor told the jury that Appellants

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. (Reply

Brief, pg. 6)

Appellants Motion for Mistrial

After the jury retired, Appellant moved for mistrial, based on the prosecutors

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

Appellant obtained the trial courts consent to present an oral motion, which

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

the Record for the specifics of the prosecutors conduct. The outline included (a)

prosecutorial misconduct during cross-examination by leveraging Appellants

disability to make Appellant appear arrogant and uncooperative (b) the

prosecutors final argument referring to his cross-examination to prejudice the jury

against Appellant. The trial court was fully aware of the basis for Appellants oral

motion for mistrial. The trial court overruled the motion. Appellant later filed her

written motion for mistrial, which included detailed specifics of the prosecutors

intentional misconduct, previously outlined in the oral motion. (Ct. Rep. R, Vol. 5,


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pgs. 1-4)(Appellants Brief, pgs.16-19)

Appellants 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 Appellants motion for new trial, wherein evidence was heard in support

of the MNT. The trial court overruled the MNT on 3/26/10. (Appellants Brief, pg.

20)

Error Not Curable by Instructions

The combined prejudicial effect of the first and second phases of the prosecutors

intentional effort to prejudice the jury 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 afraid on the highway, the appearance of arrogance and

uncooperativeness during cross, combined with the argument that the arrogance

during cross is proof of her arrogance on the highway, clearly was not curable by

instructions to the jury.

Extraordinary Circumstances

Under ordinary circumstances, the prosecutors conduct is presumed to be for the

purpose of seeking justice, not for the purpose of intentionally prejudicing the jury.


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However, the extraordinary circumstances of this case provide significant evidence

that the prosecutors conduct was intentional, for the purpose of inflaming and

prejudicing the jury against Appellant.

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

by the prosecutor and the DPS officers in trying to confiscate her car. (Appellants

Brief, pgs. 9-10)

2. The prosecutor admitted his vindictive motivation toward Appellant.

(Appellants Brief, pgs. 10-11)

3. The prosecutor refused to testify, during Appellants motion for new trial, in

denial of the evidence exposing his admission of vindictiveness toward Appellant.

(Reply Brief, pgs. 9-10)


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4. After being put on notice of Appellants medical disability, the prosecutor

leveraged Appellants disability for the objective of making Appellant appear

arrogant and uncooperative during cross-examination.

5. During final argument the prosecutor admitted being hell bent on a conviction

as opposed to see that justice is done.

6. During final argument, the prosecutor intentionally inflamed and prejudiced the

jury by arguing that Appellants 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.

(Reply brief, pgs. 7-10)

The evidence set out above shows vindictiveness by the prosecutor toward

Appellant. This series of events is compelling evidence that the prosecutors

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

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


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CONCLUSION

This Courts previous decisions do not include sidestepping constitutional issues

involving criminal defendants.

The extraordinary circumstances of this case negate the ordinary presumption

that the prosecutors conduct was for the purpose of seeking justice. In this case,

the prosecutor admitted his intent to retaliate against Appellant because Appellant,

while acting as her own attorney, filed motions claiming that the prosecutor and the

DPS officers were acting illegally in trying to steal her car. The prosecutor

admitted that his objectives in handling the case were to defend the DPS officers

against Appellants claims of illegal conduct. (SOF, pg. 10-11)

In the case of Rougeau v. State, 783 SW2d 651, 657 (Tx. Cr. App, En Banc, 1987)

the court stated as follows:

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 5th Circuit has said that it is a due process violation of the most basic sort to

retaliate against a criminal defendant because the defendant made claims against


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the prosecution during the process of defending his case. (Salazar v. Estelle, 547

F2d 1226, (C.A.5 1977).

This case justifies en banc reconsideration.

Respectfully Presented

Jerry S. PayneSBN#15658000

11505 Memorial Dr.

Houston, Texas 77024

713-785-0677

Fax-713-781-8547

CERTIFICATE OF SERVICE

I certify that I served Rob Ramsey with a copy of this motion

by electronic means on 9/30/11

_________________

Jerry S. Payne


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pigott-motion for en banc reconsideration

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