NO. 13-10-00234-CR ' SHIRLEY PERSONS PIGOTT IN THE COURT OF APPEALS ' VS.

FOR THE 13th JUDICIAL STATE OF TEXAS 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)

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

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

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 of Young 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.

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 of Threadgill v. State as authority for summarily rejecting Appellants 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. 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 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.

(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,

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.

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)

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 crossexamination 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.

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

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. Payne SBN#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