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8/8/2019 PIGOTT-Texas Court of Criminal Appeals Brief
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STATEMENT OF FACTS
DR. PIGOTTSMEDICALPRACTICE
Appellant is a 62 year old lady who has operated her medical practice as a
primary care physician in Victoria, Texas for 26 years. She is well respected
by her community and by her medical peers. She has resided in Victoria,
Texas with her husband and three children. (
During 2006, Appellant made changes in the manner that she handled her
patients. She set up an Ideal Micro Medical Practice. This approach
requires spending more time with each patient and focusing on the patients
overall health, instead of just focusing on their current symptoms. (Ct. Rep.
R., Vol. 4, pgs. 40-42)
APPELLANTSMEDICALDISABILITY
Appellant suffers from Bi Polar Disorder and Attention Deficient
Hyperactivity Disorder. Dr. Pigott has not allowed these disabilities to
interrupt her life. She has been successful in functioning at a high level of
ability. She has been successful as a wife and mother; as a respected family
doctor (delivered over 3000 babies); as a productive member of her
community.
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Post Traumatic Stress Disorder
Because of Appellants underlying Bi Polar Disorder and ADHD, stress can
inhibit Appellants ability to channel and compute information. Under
intense stress, Appellant suffers from Post Traumatic Stress Disorder.
(PTSD).
PTSD causes one to be over-sensitive to their environment; the illness
causes one to perceive fear, even when there is no reason to be fearful. In a
situation where one could rationally be fearful, the PTSD will result in the
fear being heightened by many magnitudes. PTSD causes ones brain to be
on hyper alert status; ones pulse goes up; blood pressure goes up; one
sweats more; one has extreme fear of harm to ones self.
To an outside observer, one suffering from PTSD can look irrational, crazy.
However, the person with PTSD is reacting to the extreme amount of
anxiety; to a panic attack. (Dr. Brams testimony and written evaluation:
Ct Rep R, Vol 4, pgs 9-39; Vol 8, D-6)
APPELLANTSACTIVISMTOWARDTEXASMEDICALBOARD
As a result of Appellants change to an Ideal Micro Medical Practice, she
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had problems with Blue Cross Blue Shield (BCBS). BCBS refused to pay
some of the costs incurred by Appellants patients that were associated with
the new system. BCBS sought the support of the Texas Medical Board. The
TMB backed BCBS, which led to Appellants activism against the TMB and
board members who were on BCBS payroll. Appellant felt compelled to
resist Blue Cross Blue Shields effort to control the medical treatment
she provided for her patients. As a result of Appellants activism, the
TMB raised issues that threatened to impact Appellants medical license.
Appellants activism also focused on Dr. Keith Miller, who was a member
of the Texas Medical Board. Dr. Miller was also on BCBS payroll.
Appellant focused on Dr. Doug Curran, President of Texas Academy of
Family Physicians (TAFP). Dr. Curran was also on BCBS payroll. (Ct Rep
R, Vol 4,pgs 42-50)
AFFECTOF APPELLANTS DISABILITY DURING HIGHWAY EVENT
While driving on the highway the night of 9/29/07, Appellant was suffering
from the following traumatic stresses:
A. Her husband of many years had been diagnosed with Alzheimers, with
rapid decay.
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B. Appellants activism had become very tense and stressful, which included
confrontations with Dr. Miller and Dr. Curran. As a result of Appellants
activism, Dr. Miller was forced to resign from the TMB in August, 2007
(one month before the event on the highway).
On the night of 9/29/07, Appellant was pulled over on her way to a meeting
with Dr. Curran. The meeting included a discussion with Dr. Curran about
Appellants criticism and claims that Dr. Curran has a conflict of interest
when acting as President of TAFP and, at the same time, being on BCBS
payroll.
Due to Appellants disability, these stresses and the manner in which the
DPS officers handled the event, Appellants ability to channel and process
information was inhibited. (Ct Rep R, Vol 4, pgs 9-39; Vol 8, D-6)
EVENTONTHE HIGHWAY (9/29/07)
Appellant was pulled over by the state police, on a dark highway, for going
74mph in a 65mph zone. Appellants disability, stressful state of mind and
the circumstances that unfolded caused Appellant to panic. She was not able
to process information; she could not think clearly; she was afraid that she
would be harmed.
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Specific Facts
Appellant was trying to relax while on her way to meet Dr. Curran. She was
listening to a CD; driving in the left lane. The DPS officer startled Appellant
when he turned on his siren and flashing lights when the DPS car was close
behind her. Appellant was not able to move to the right lane. She pulled off
the road to the left, onto the medium, stopped and turned on her emergency,
flashing lights. Appellant expected the DPS car to pass by. (Ct Rep R, Vol 4,
pgs 50-55)
Instead of passing by Appellant, the DPS car stopped about 30 yards back
and began using a bull horn instructing Appellant to drive to the right side of
the highway. This action further intensified Appellants stress. Cars and
trucks were passing every 5 seconds, so Appellant waited. After a few
minutes, the DPS officer zipped his car across the highway behind
Appellant.
By this time, Appellants stress level was high. Appellant became confused
and fearful. She locked her doors and got her drivers license out and put it
against the window. The DPS officer would not read the information on the
drivers license. (Ct Rep R, Vol 4, pgs 55-63)
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The DPS officer told Appellant to roll down her window. Appellant told the
officer that she was afraid. The officer said, Do you want to go to jail?
Appellant asked to see the officers identification. The officer replied
negative. Appellant asked if the officer would call another officer to the
scene. The officer replied negative. Appellant asked the officer if she
could drive to a lighted, public location. The officer replied negative. Do
you want to go to jail? (Ct Rep R, Vol 4, pgs 55-69).
Appellants stress level continued to intensify. She began honking her horn,
but no one stopped. Appellant told the officer that she had to drive to the
next lighted area and asked the officer to follow her. Appellant drove off
slowly. She was driving within the speed limit, with the DPS car following
her. She thought that the officer was going to allow her to go to the next
lighted place. No person was put in actual danger because of Appellants
use of her car.
As Appellant was trying to drive to a lighted area, an unmarked car came up
quickly next to her car. The car was too close and was crowding her off of
the highway. Appellant pulled over off the highway because it was not safe
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to keep driving. Appellant had not reached a lighted area. Her stress
continued to elevate. (Ct Rep R, Vol 4, pgs 69-75)
When the officer from the unmarked car came toward her car, Appellant put
her drivers license against the window. The officer would not look at the
drivers license. The officer told Appellant If you dont open the door, Im
going to break out the window and take you out by force. Appellant replied
Dont do that. Ill have to leave if you do that. Appellants stress level
elevated significantly. She began honking her horn to get attention.
The officer began smashing Appellants window. Appellant began inching
toward the highway. As the officer knocked the window out, Appellant
panicked. She drove onto the highway. Appellant was speeding for 93
seconds before she realized how fast she was going. She then slowed down
to the speed limit. No person was put in actual danger because of
Appellants use of her car.
When Appellant was getting close to the city of Wharton,
she saw Wharton police cars and pulled over. (Ct Rep R, Vol 4, pgs 75-91;
Vol 8, SX-1, 2)
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APPELLANTSCONVERSATIONWITHDPSOFFICERAFTERARREST
After pulling over, Appellant got out of her car and was arrested. The DPS
officer asked Why would you take off. Appellant replied Because you
scared me. You terrified me. (Def Exh D-1, pg 5-20:39:25; pg 11-21:18:32)
When officer Ochoa was driving Appellant to the hospital to get a blood test,
Appellant and Ochoa discussed what happened on the highway:
Pigott: Im not mad at yaOchoa: OK, Im not mad at you either, at all. OK?
Pigott: OK. I know. I can see that now. You scared me.
Ochoa: No, we are not trying to scare you out there. But next time youre
driving and somebody pulls you over just make sure you pull over to the
right side.
Pigott: OK, I didnt realize that.
Ochoa: Thats why I was trying to get on the P.A. to let you know to just
pull over on the right side.
Pigott: Uh-huh. (Def Exh D-1, pg 15-21:36:53)
After Appellants blood test, Appellant requested to speak to a doctor at the
hospital. Ochoa asked why she wanted to talk to a doctor. Appellant replied
Something happened that caused me to want to do that. Appellant wanted
a doctor to give her an examination, get a history of the events, her disability
and her medication, for later medical analysis. (Def Exh D-1, pg 18-
22:02:18; pg 19-22:06:34)
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JANUARY 7, 2008-INDICTMENTANDSUICIDE
On January 7, 2008, Wharton County District Attorney, Josh McCown,
obtained a two count felony Indictment against Appellant for Fleeing in a
Motor Vehicle, using the vehicle as a deadly weapon. (R, pg 6)
On January 7, 2008, Appellants husband committed suicide. (R, pg 15)
EVENTS, ACTIONSANDREACTIONSBYAPPELLANTAND MCCOWN
As Appellant and District Attorney, Josh McCown moved forward into this
case, each side acted and reacted in response to the other. Set out below are
some of the highlights of the events, actions and reaction, in the order that
they occurred.
McCown: On Oct. 29, 2007, McCown filed suit to seize Appellants car. (R,
pg 42)
Texas Medical Board: In March, 2008, Appellants medical license is
suspended as a result of information from McCown to the TMB about the
Indictment. (R, pg 286)
Appellant: In March, 2008, Appellants attorney withdrew from her case,
because Appellant insisted that the DPS altered the video of the event; that
there was a conspiracy among the Texas Medical Board, DPS and Josh
McCown. (R, pg 17)
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Appellant: In May and June, 2008, Appellant filed multiple documents
attacking the honesty and integrity of the DPS officers and Josh McCown.
Copies of the claims of illegal conduct were sent to the head of Department
of Public Safety. . (R, pgs 29-56)
McCown: On July 1, 2008, McCown obtained a Superseding Indictment that
added a 1st degree felony, Aggravated Assault With a Deadly Weapon,
Against a Public Servant. (R, pg 58)
Appellant: On 12/8/08, Appellant claimed that McCown obtained the 2nd
Indictment, which added a 1st degree felony, as part of his plan to take
Appellants car. (R, pgs 142-148)
Appellant: On 2/12/09, Appellant claims that McCown tried to bribe her by
offering to reduce the three felony counts to one misdemeanor, with a fine;
that McCowns condition for the plea agreement was that Appellant agree to
donate her car to McCown. Appellant declares that she will not give in to
McCowns illegal bribe, even if she has to go to prison. (R, pgs 171-176).
MEETINGBETWEENMCCOWNANDAPPELLANTSATTORNEY
In June, 2009, Jerry Payne became Appellants attorney. When Payne first
became involved in this case, he went to Wharton, Texas for a hearing on his
motion for continuance. Payne met with Josh McCown, the District Attorney
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and asked for McCowns agreement on the continuance. McCown agreed to
the continuance. In exchange, Payne agreed not to oppose Mr. McCowns
motion in limine to keep Appellants claims of conspiracy and illegal
conduct by the Texas Medical Board from being mentioned in front of the
jury. Payne agreed to limit the focus of the trial to the events on the
highway on 9/29/07, rather than on the claims of conspiracy or the hearings
before the Texas Medical Board.
At the meeting, Payne asked Mr. McCown to recognize that Appellant has a
medical disability; that her conduct was influenced by her disability. Payne
asked McCown to dismiss the charges since Appellant did not intend to
commit a crime. Mr. McCown rejected Paynes request and told Payne that
he was going forward with the case. Mr. McCown told Payne that he has a
personal distaste and anger toward Appellant; that he has strong
relationships with the DPS officers involved. McCown stated that he intends
to go forward and prosecute Appellant for the purpose of defending the
reputation and honor of the officers; that Appellant insulted the officers in
the motions she filed when she was acting as her own attorney. (R, pgs 323-
326; Ct Rep R, Vol 10, pgs 2-4,15-17)
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TRIAL OF THE CASE
JURYISSUEONFLEEING-STIPULATIONSANDDEFENSE
Due to Appellants stipulations and her defense on the charges of fleeing, the
only questions for the jury on the fleeing charges were (a) whether
Appellant was fearful that harm would occur to her if she did not go to
a lighted area before opening her car door and (b) whether an ordinary,
prudent 60 year old lady could have been afraid, under the same
circumstances.
Appellants Stipulations
Subject to her defense of necessity, Appellant stipulated to the facts
necessary for a conviction on fleeing. Appellant stipulated that DPS stop of
her was proper because she was speeding; that she drove off, knowing
Ochoa was a police officer. (R, pg 259)
Appellants Defense
Appellants defense to the charges of fleeing is the affirmative defense of
Necessity. (R, pg 240).
MEDICALTESTIMONYON NECESSITY ISSUES
Dr. Brams testified on the issue of whether Appellant drove off because she
was afraid and on the issue of whether an ordinary, prudent 60 year old lady,
under the same circumstances, could have been afraid. Dr. Brams testimony
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was the only expert, medical evidence on these subjects. Dr. Brams testified
that Appellant was afraid and that an ordinary, prudent 60 year old lady
could be afraid, under the same circumstances. (Ct Rep R, Vol 4, pgs 9-39;
Vol 8, D-6)
The State did not produce any evidence countering Dr. Brams testimony on
these issues. Instead, the States approach at trial was to demonstrate, during
cross-examination and closing argument, that Appellant was not really
afraid; that Appellant is an arrogant and uncooperative person; that
Appellant did not follow the instructions of the DPS officers on the highway
because she thinks she does not have to follow the same rules as the rest of
us, because she is a doctor. (Ct Rep R, Vol 4, pgs 92-125, 157, 162)
STATESMOTIONINLIMINE
The State filed its motion in limine, which was agreed to by Payne. Neither
party was to talk about the testimony or documents involved in the Texas
Medical Board hearings or the complaints against the Texas Medical Board;
talk about Appellants claims of conspiracies involving the DPS and the
TMB. (R, 182)
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Pursuant to the trial courts order, Appellants attorney told Appellant that
she was not to violate the Courts order; that she was not to talk about the
specifics of her whistleblower activity against the Texas Medical Board or
against doctors at the TMB; that she was not to refer to any testimony or
documents that involved her proceeding at the Texas Medical Board; that
she was to focus on the events on the highway. (R, pg 323-326)
PLANTOAVOIDDESTRUCTIONDURINGCROSS-EXAMINATION
Appellants disability was a problem if she testified, especially on cross-
examination. Appellant is unable to process information in a stressful
situation. As the stress elevates, her ability to process information declines.
The district attorney would be able to destroy Appellants ability to testify
by asking vague, unclear questions during cross-examination. (Ct Rep R,
Vol 4, pgs 9-39; Vol 8, D-6)).
To overcome this problem, Appellants attorney attempted to structure and
limit the areas on which Appellant would testify. This effort included (a)
preparation of a Summary Statement of Appellants testimony, which limits
the subject areas of her testimony (b) presenting the Summary Statement to
the trial court and the D.A., requesting that Appellants testimony be limited
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to the areas in the summary (c) presentation of the testimony of Dr. Brams,
describing Appellants disability (d) followed by Appellants testimony,
within the areas set out in the Summary Statement submitted.
Summary Statement of Appellants Testimony
Appellant submitted a two page written Summary Statement of Appellants
testimony concerning the event on the highway. (Ct Rep R, Vol 8, Exh D-7)
Appellant proposed, to the district attorney and the trial court, that the
summary be admitted into evidence; that both sides be limited to questions
about the subject areas in the summary. Appellant argued that her disability
would prevent her from functioning unless she knew ahead of time the
issues on which she must give testimony. The district attorney refused to
agree to the request. (Ct Rep R, Vol 4, 1,2)
Dr. Brams Testimony Describing Appellants Disability
Appellants first witness was Dr. Matthew Brams, Appellants treating
psychiatrist. He testified about Dr. Pigotts disability. He specifically
informed the district attorney and the trial court of Appellants disability. Dr.
Brams testified that Appellants PTSD, with her underlying bipolar disorder
and her attention deficit hyperactivity disorder, prevented her from
processing information under stress; that intense stress disables Appellant.
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The district attorneys cross-examination of Dr. Brams was minimal, with no
cross that challenged Dr. Brams conclusions. However, the district attorney
did obtain a confirmation from Dr. Brams that Appellants disability was
present during the trial. (Ct Rep R, Vol 4, pgs 9-39; Vol 8, D-6)
Effort to Use Summary Statement
After Dr. Brams testimony, before taking the stand, Appellant again
tendered the Summary Statement of her testimony, so as to allow her to
testify without being inhibited by her disability. Again the district attorney
objected and the Court denied Appellants effort to limit cross-examination
to the areas in the Summary Statement. (Ct Rep R, Vol 4, pgs 45-47, 309-
326)
CROSS-EXAMINATIONOFAPPELLANT(Ct Rep R, Vol 4, pgs 92-129)
The States cross-examination did not focus on the facts that occurred on the
highway on 9/29/07. Instead, the cross asked about things on which
Appellant had not testified.
Over the objections of Appellants attorney, the cross-examination presented
general, unclear questions asking for opinions. The objective of the cross-
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examination appears to be to demonstrate to the jury that Appellant is
arrogant and uncooperative. The D.A. turned each question into a debate
over semantics. Examples of the D.A.s approach are set out below:
1. Pages 93-100 are the beginning of the D.A.s cross-examination. This first
set of questions displays the D.A.s methodology. The D.A. asks whether
Appellant was speeding when pulled over on the highway; whether speeding
is a violation of the law; whether Appellant violated the law; whether
Appellant thinks Ochoa was truthful when he testified that he was intending
to give a warning ticket. (Appellant had already stipulated to speeding
earlier in the trial).
2. On page 98 (line 10), is the first of many times that the D.A. called the
jurys attention to Appellants posture and demeanor (asking Appellant to
lean forward).
3. The D.A. asked Appellants opinion about Dr. Brams analysis of her
disability; asked Appellant to explain how her disability is affecting her
testimony. (pgs 100-106).
4. Page 103: D.A.: Are you having a problem formulating appropriate
responses to your environment today? Appellant: With PTSD one is
hyper-vigilant.....Im hyper-vigilant from what I am concerned that you may
try to do. D.A.: So, you think I may try to trick you? Appellant: Yes
sir.
5. D.A. asks Appellant to lean forward again. (pg 104)
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6. In the middle of a confrontational debate between Appellant and the D.A.,
Appellants attorney instructed Appellant, in front of the jury, to lean
forward; try not to be afraid; you look like you are being uncooperative; try
to answer the D.A.s questions. (pg 105)
7. Over the objections of Appellants attorney, the D.A. asked a serious of
questions about Appellants previous claims of conspiracy between the DPS
and the Texas Medical Board; about testimony from the TMB hearing; about
conflicts between Appellant and the TMB; about conflicts with Dr. Miller;
about conflicts with Dr. Curran; about conflicts with Blue Cross Blue
Shield; about details of things prohibited by the trial courts order. (pgs 107-
124).
8. When the D.A. asked questions prohibited by the States motion in limine,
Appellant told the D.A. that her attorney said not to talk about the TMB
hearings and the claims of conspiracies. The trial court instructed Appellant
to disregard her attorneys instructions and to answer the questions. (pgs
116-117)
9. Appellants attorney was forced to ask the trial court to stop the
proceedings, because Appellant was not able to accurately process any of
what was going on. (pg 121).
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10. The visual picture of Appellant on the witness stand, during cross
examination, was that of a person who did not want to answer the D.A.s
questions. The picture got so bad that Appellants attorney was forced to
interrupt the cross examination by telling the Appellant, in front of the jury,
that she looked as if she was not being cooperative. When Appellant was
told that she appeared to be uncooperative, she made every effort to respond.
She leaned forward, held the microphone and tried hard to correct her image.
However, when the district attorney continued his cross, Appellant reverted
back to the previous image.
Appellants attorney was forced, a second time, to interrupt the cross
examination and request that the cross examination be stopped so that he
could try to help Appellant regain her ability to testify. (Ct Rep R, Vol 10,
pgs 4-5; R, pgs 323-325)
STATESCLOSINGARGUMENT
In closing, the D.A. told the jury:
I have a job under the law to see that justice is done. Not to be hell-bent onconvictions. Now I will concede in this case, based on what this defendant
did and what she put those officers through, yeah, Im hell-bent on a
conviction in this case. But Im going to do it the right way. (Ct Rep R, Vol
4, pg 157)
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The D.A. argued that Appellant was not afraid on the highway, just arrogant
and uncooperative:
I have no idea why the defendant did what she did. Was she under somesort of mental influence? I dont think weve seen any real credible evidence
of that. Was she ticked off? This cop had the nerve to stop her and demand
that she present her drivers license, a lowly police officer daring to confront
a medical doctor? Youve seen her attitude. Shes arrogant with me. What
do you think she treated him like? (Ct Rep R, Vol 4, pg 162)
MOTIONFORMISTRIAL
After the jury retired to deliberate, Appellant presented a Motion for Mistrial
based on: Prosecutorial misconduct; Leveraging Appellants disability to
obtain a conviction; Improper jury argument; Denial of constitutional right
to a fair trial. The trial court Denied the Motion for Mistrial. (Ct Rep R, Vol
5, pgs 1-4)
VERDICT
Not Guilty on count 3: Aggravated Assault with Deadly Weapon, Against a
Public Servant.
Guilty on counts 1 and 2: Fleeing, with use of deadly weapon on both
counts. (R, pgs 265-274)
SENTENCE-2 YEARSAT TDC (R, pg 299)
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SUMMARY OF ARGUMENT
CONSTITUTIONALERRORDENIALOFFUNDAMENTALFAIRNESS
Appellant was denied Fundamental Fairness through a series of improper
acts by the district attorney, which the trial court allowed to occur over
Appellants objections. The district attorneys improper acts included:
prosecutorial vindictiveness; leveraging Appellants medical disability
during cross-examination to obtain a conviction; incurable, improper jury
argument. The trial court erred in denying Appellants motion for mistrial.
FACTS
1. Appellant suffers from a disability that inhibited her ability to testify in
defense of the charges against her.
2. The Americans With Disabilities Act requires that reasonable
accommodations be made when necessary for criminal defendants to
exercise their constitutional right to be heard in defense of the charges.
3. Appellant requested that she be allowed to use a Summary Statement to
organize and limit the areas of her testimony. This reasonable
accommodation would allow Appellant to testify without being inhibited
by her disability.
4. Appellants request for reasonable accommodations was denied.
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5. Appellant previously acted as her own attorney in this case. During this
time she filed motions claiming conspiracies and illegal conduct among the
district attorney and the DPS officers. Appellant sent copies of her motions
to the head of the DPS.
6. Right after Appellants claims of illegal conduct by the D.A. and the
police officers, the district attorney sought and obtained a superseding
indictment which added a 1st degree felony: AGGRAVATEDASSAULTWITHA
DEADLYWEAPON, AGAINSTAPUBLICSERVANT. The D.A. admitted personal
vindictiveness toward Appellant. He openly stated his goal in prosecuting
this case was to vindicate the honor of the DPS officers, who Appellant had
insulted with her claims.
7. During cross-examination, the District Attorney made no effort to provide
Appellant with reasonable accommodations that would allow her to testify
without being inhibited by her disability. Instead, the D.A., with knowledge
of Appellants disability, leveraged her disability, causing Appellant to seize
up and appear arrogant and uncooperative in front of the jury.
8. In closing argument, the D.A. told the jury that the reason Appellant drove
off was not because she was afraid; that the reason she did not cooperate
with the DPS officers is because she is an arrogant, uncooperative person;
that she thinks she does not have to follow the same rules as the rest of us,
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because she is a doctor; that her arrogance and lack of cooperation during
cross-examination is proof that she was not afraid on the highway.
9. The trial court erroneously denied Appellants motion for mistrial, which
alleged the series of improper acts by the D.A.
10. The trial court sentenced Appellant to 2 years at TDC.
LEGALANDFACTUALINSUFFICIENCYOFEVIDENCE, FATALINCONSISTENCYOFVERDICT
ANDAMBIGUITYOFVERDICT
The jurys verdict, that Appellant used a Deadly Weapon, when fleeing
should be set aside on the basis oflegal insufficiency of evidence, factual
insufficiency of evidence, fatal inconsistency of verdict and/or ambiguity
of verdict.
STATEHAS BURDENOF PROOFONHARMLESSNESSOF ERRORS
When constitutional error is involved, TRAP 44.2(a) controls this Courts
review of the error to determine if the error adversely affected the integrity
of the conviction.
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ARGUMENT AND AUTHORITIES
CONSTITUTIONALERRORDENIALOFFUNDAMENTALFAIRNESS
Denial of fundamental fairness, in the context of a series of improper acts, is
an inference drawn from the totality of the facts in a particular case, in light
of reason, precedent, history, private interests at stake, governments interest
and the risk that the procedures employed will lead to erroneous
decisions. (12A TJ3d 599)
In the case ofMenzies v. Procunier, 743 F.2d 281, 288, (5th Cir. 1994), the
court explained the meaning of an unfair trial as follows:
An unfair trial has been characterized as one that has been largely robbed
of dignity due a rational process. Whether a criminal defendant has received
such dignified or fair trial, as mandated by the 14th amendment, must be
determined by examining the particular facts of each case. A trial that is
unfair, whatever the cause of such unfairness, violates Fourteenth
Amendment due process
In this case, the district attorneys vindictiveness toward Appellant led to
improper cross-examination and improper closing argument to the jury. The
totality of the facts show that Appellant was denied fundamental fairness
in the trial of this case.
DENIALOFDUEPROCESS-PROSECUTORIALVINDICTIVENESS
Prosecutorial misconduct or vindictiveness, which denies a defendant
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fundamental fairness, is a violation of due process rights under the
Constitution.
TEXASLAW-DUTYOFAPROSECUTINGATTORNEY
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 hisjudgment..A prosecuting attorney must assume the position of an
impartial representative of justice, not that of counsel for the complainant.
In this case, the District Attorney Josh McCown openly declared
vindictiveness toward Appellant. He stated his intent to retaliate because
Appellant, while acting as her own attorney, filed motions claiming
illegal conduct by the DPS officers. McCown stated that his objective in
prosecuting Appellant was to defend the DPS officers. (SOF, pg 10-11)
The 5th Circuit has said that 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
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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).
The methods used by McCown to effectuate his vindictiveness include
leveraging Appellants medical disability during cross-examination and
improper closing argument to the jury.
DENIALOFDUEPROCESS-IMPROPERCROSS-EXAMINATION
The district attorneys cross-examination of Appellant was crafted for the
purpose of taking advantage of her disability. The cross-examination did not
seek to discover any facts that were not already known. The objective was to
create stress so that Appellant would appear arrogant and uncooperative.
AMERICANSWITHDISABILITIESACT--REASONABLEACCOMMODATIONSREQUIRED
The ADA requires that one with a disability have the same rights as others.
The Due Process Clause of the Constitution requires the States to afford
defendants in criminal cases a meaningful opportunity to be heard by
removing obstacles to their full participation in the judicial proceeding. By
the enactment of the ADA, Congress requires the States to take reasonable
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measures to remove barriers to a disabled persons ability to participate. The
ADA requires State prosecutors and State courts to provide reasonable
accommodations for a defendant who is disabled. (42 U.S.C. Sec. 12101 et
seq.; Tennessee v. Lane, 541 U.S. 509, 2004).
The D.A. ignored Appellants requests for reasonable accommodations
that would have allowed her to testify without being dismantled during
cross-examination. Instead, the D.A. intentionally leveraged Appellants
disability to obtain a conviction.
STATESMOTIONINLIMINE
As part of the D.A.s technique to leverage Appellants disability, the D.A.,
without notice, began asking about testimony and documents that were part
of the Texas Medical Board hearings and other things that were prohibited
by the trial courts order.
Appellants attorney objected regularly that the prosecutor was trying to
confuse Appellant; that the questions were prohibited by the trial courts
order; that the questions were unclear and confusing, causing the appellant
to seize up. The Court overruled the objections to the District Attorneys
conduct.
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Appellant told the D.A. that her attorney told her not to talk about the details
of the TMB hearings. In response to Appellants statement, the trial court
told Appellant not to follow the instructions of her attorney; that she was to
answer the D.A.s questions.
Appellant lost her ability to accurately process the questions and respond to
the situation. As she displayed her lack of ability to function by leaning back
in the witness stand, the District Attorney repeatedly told Dr. Pigott, in front
of the jury, that she should sit up, lean forward so he could hear her. The
clear intent was to get the jury to focus on what appeared to be a lack of
willingness to cooperate.
On two occasions Appellants attorney found it necessary to intervene. On
one occasion he told Appellant, in front of the jury, to try to relax, sit up and
lean forward so that you look like you are trying to answer the questions.
Later, Appellants Attorney had to stop the cross-examination because
Appellants ability to function was gone. Nevertheless, the District Attorney
continued his abuse. The success of the district attorneys plan was clear;
Appellant appeared arrogant, uncooperative and unwilling to try to answer
the questions. (SOF, pg 16-19)
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DENIALOFDUEPROCESS-JURYARGUMENT
The next step in the D.A.s vindictive effort to convict Appellant was his
final argument to the jury. After using cross-examination to create an image
of Appellant being arrogant and uncooperative, the D.A. finished his effort
with his argument to the jury:
I have a job under the law to see that justice is done. Not to be hell-bent on
convictions. Now I will concede in this case, based on what this defendant
did and what she put those officers through, yeah, Im hell-bent on a
conviction in this case. But Im going to do it the right way. (Ct Rep R, Vol
4, pg 157)
I have no idea why the defendant did what she did. Was she under some
sort of mental influence? I dont think weve seen any real credible evidence
of that. Was she ticked off? This cop had the nerve to stop her and demand
that she present her drivers license, a lowly police officer daring to confront
a medical doctor? Youve seen her attitude. Shes arrogant with me. What
do you think she treated him like? (Ct Rep R, Vol 4, pg 162
D.A. ACTINGASCOUNSELFORTHEDPSOFFICERS
The D.A. admits that he is hell-bent on a conviction....based on what...she
put those officers through. The D.A. admitted that his motivation is to
defend the DPS officers; that the motions Appellant filed accusing the DPS
officers of illegal conduct is the reason he is hell-bent on a conviction.
It is a violation of Texas law for a prosecutor to function as counsel for the
complainant. (Rougeau v State, pg 25 of brief).
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According to the 5th Circuit, it is a due process violation for a prosecutor to
pursue a course of action to penalize a defendant for exercising his legal
rights in the processes of the case. (Salazar v Estel, pg 26 of brief).
D.A.SCLAIMTHATAPPELLANTISARROGANTBECAUSESHEISADOCTOR
The D.A. 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).
There is no evidence in the record that Appellant is arrogant and
uncooperative because she is a medical doctor; that she thinks she does not
have to follow the same rules that the rest of us have to follow, because she
is a doctor.
This argument by the D.A. is inflammatory. A common, prejudicial
statement is Doctors think they are gods. The D.A.s argument was for the
purpose of inflaming the jury against Appellant, based on Appellant being a
doctor and on Appellants image of being arrogant and uncooperative during
cross-examination.
DEADLYWEAPON
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The jurys verdict that Appellant used her car as a Deadly Weapon when
fleeing from both her 1st stop and from her 2nd stop, should be set aside on
the basis oflegal insufficiency of evidence, factual insufficiency of
evidence, fatal inconsistency of verdict and/or ambiguity of verdict.
Penal Code
The definition of Deadly Weapon is set out in Section 1.07 (a) (17) (A)
(B). Section 1.07 (a) (17) (B), which is applicable in this case, requires an
evaluation of the use and intendeduse of the car to determine if the car
qualifies as a Deadly Weapon.
Use of a Car as a Deadly Weapon
For Appellants car to qualify as a Deadly Weapon under Section 1.07 (a)
(17) (B), the evidence must show, beyond a reasonable doubt, that there
was actual danger to other persons, not just hypothetical risks or
evidence of what might have happened if the facts were different.
(Drichas v. State, 187 SW3d 161, CA, 6th Dist., 2006).
In this case the evidence does not support the jurys verdict on Deadly
Weapon. There is no evidence of actual danger to other persons. The verdict
is a clear indication of the jurys prejudice; that the jury did not follow the
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trial courts charge when concluding that the car was used as a deadly
weapon.
Appellants use of her car when driving off from her 1st stop is void of any
evidence that the car was used as a deadly weapon. Appellant did not even
break the speed limit.
Appellants use of her car when driving off from the 2nd stop is void of
evidence that she used her car as a deadly weapon. Although Appellant
panicked when the DPS officer smashed out her window and drove over the
speed limit for 93 seconds, she did not use her car as a weapon. There is no
evidence of actual danger to a person; no evidence that a person was put at
risk of harm from Appellants use of her car. (SOF, pgs 6-7)
Ambiguity of Verdict
There is uncertainty as to the intent of the jurys verdict that Appellant used
a deadly weapon under count 1 and under count 2. This uncertainty raises
questions as to what the jury intended in its verdict and whether the verdict
was influenced by the D.A.s effort to prejudice the jury against Appellant
by arguing that she thinks doctors do not have to follow the rules.
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Both the State and the defense presented argument to the jury that the issue
of deadly weapon under count 1 asks about use of the car when driving off
from the 1st stop and that the issue of deadly weapon under count 2 asks
about use of car when driving off from the 2nd stop.
However, the trial court concluded that the jurys verdict of deadly
weapon under count 1 and the verdict of deadly weapon under count 2
were both intended as a verdict that Appellant used the car as a deadly
weapon when driving off from the 2nd stop. (Ct Rep R, Vol 10, pgs 8-15)
DENIAL OF A FAIR TRIAL
The accumulative affect of the D.A.s misconduct denied Appellant her
constitutional right to a fair trial. (Stahl v. State, 749 S.W.2d 826, Tx Cr Ap,
1988).
STANDARDOFREVIEWFORCONSTITUTIONALERRORS
When a Constitutional Error occurs in a criminal case, the Court must
reverse the judgment of conviction and grant a new trial unless the Court
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determines, beyond a reasonable doubt, that the error did not contribute to
the conviction. (TRAP 44.2(a)). The Texas Court of Criminal Appeals
stated:
In determining whether a constitutional error may be declared harmless
beyond a reasonable doubt, the focus should not be on whether the jury
verdict was supported by the evidence. Instead, the question is the likelihood
that the error was a contributing factor in the jurys deliberations in reaching
its verdict
. . . . . .
In reaching its decision, the Court may also consider the source and nature
of the error and to what extent it was emphasized by the State..
. . . . .With these considerations in mind, the Court must ask itself whether there is
a reasonable possibility that the error moved the jury from a state of non-
persuasion to one of persuasion. (Scott v. State, 227 S.W.3d 670, 690-91
(Tx.Crim.App. 2007)
In this case, the controlling issue for the jury was whether Appellant was
really afraid on the highway or just arrogant and uncooperative. (SOF, pgs
11-13)
There can be little doubt that the D.A.s argument that Appellant was
arrogant and uncooperative on the highway, based on Appellants image
during cross-examination, created a reasonable possibility that the error
moved the jury from a state of non-persuasion to one of persuasion.
CONCLUSION
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What was Mr. McCowns motivation for obtaining a superseding
indictment, 10 months after the event on the highway, adding the 1st degree
felony ofAggravated Assault with a Deadly Weapon, Against a Public
Servant? Clearly, there is no evidence that Appellant intended to harm
anyone.
Is it only a coincidence that right before McCown sought the 2nd indictment,
Appellant filed motions claiming that McCown and the DPS officers were
guilty of illegal conduct? We know it wasnt just a coincidence. McCown
has admitted his anger and his vindictiveness toward Appellant.
Some of Appellants claims against McCown and the DPS officers may very
well be invalid. It is reasonable that any invalid claims could make McCown
angry. However, it is not acceptable for Mr. McCown to use the power of
the State of Texas to vent his anger.
Our system of justice requires that a prosecuting attorney assume the
position of an impartial representative of justice, not that of counsel for the
complainant.
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The district attorneys vindictive conduct has infected the entire prosecution
of this case. Our Constitution requires that the conviction be reversed.
Respectfully Submitted,
Jerry S. Payne
SBN 15658000
11505 Memorial Dr.
Houston, Texas 77024
713-785-0677Fax-713-781-8547
CERTIFICATE OF SERVICE
I certify that a copy of this brief was served on Robinson Ramsey by
electronic service on 10/20/10.
______________
Jerry S. Payne