329th Judicial District Court

Criminal Division
Judge Randy Clapp

CAUSE NO. 16263

THE STATE OF TEXAS § IN THE DISTRICT COURT

§
Vs. § WHARTON COUNTY, TEXAS
§
SHIRLEY PERSONS PIGOTT § 329th JUDICIAL DISTRICT

MOTION TO DISMISS SUPERCEDING INDICTMENT

filed: June 8, 2009

COMES NOW, Shirley Persons Pigott and asks motions this court to dismiss the
SUPERCEDING INDICTMENT issued in this case and would show the court the following:

1. The indictment is defective on its face because it does not rise to the mandatory felony
requirements of Texas Penal Code 38.04, to wit.
Sec. 38.04. EVADING ARREST OR DETENTION. (a) A person commits an offense if he

intentionally flees from a person he knows is a peace officer attempting lawfully to arrest or

detain him.

(b) An offense under this section is a Class B misdemeanor, except that the
offense is:

(1) a state jail felony if the actor uses a vehicle while the actor is in
flight and the actor has not been previously convicted under this section;

(2) a felony of the third degree if:

(A) the actor uses a vehicle while the actor is in flight and the
actor has been previously convicted under this section; or
 (B) another suffers serious bodily injury as a direct result of an
attempt by the officer from whom the actor is fleeing to apprehend the actor while the
actor is in flight; or

(3) a felony of the second degree if another suffers death as a direct

result of an attempt by the officer from whom the actor is fleeing to apprehend the actor
while the actor is in flight.

(c) In this section, "vehicle" has the meaning assigned by Section 541.201,
Transportation Code.

(d) A person who is subject to prosecution under both this section and another
law may be prosecuted under either or both this section and the other law.

2. Shirley Pigott, on the night of September 29, 2007, was not and did not operate a “motor
vehicle” or “vehicle” as that term is described by Section 541.201(23) of the Texas
Transportation Code.

TRANSPORTATION CODE

TITLE 7. VEHICLES AND TRAFFIC

SUBTITLE C. RULES OF THE ROAD

CHAPTER 541. DEFINITIONS

SUBCHAPTER A. PERSONS AND GOVERNMENTAL AUTHORITIES

541.201(23) "Vehicle" means a device that can be used to transport or draw

persons or property on a highway. The term does not include:

(A) a device exclusively used on stationary rails or tracks; or

(B) manufactured housing as that term is defined by Chapter

1201, Occupations Code.

3. At no time was the private car in which Shirley Pigott was traveling ever used for the
transport of fare paying passengers, nor the delivery, for hire, of property or freight.

4. Shirley Pigott, did not know and could not have known that Daniel Terronez was a peace
officer. Terronez was not in uniform and drove an unmarked car. Shirley Pigott, a woman alone
at night, was terrorized and threatened with assault by Terronez, a man unknown to her, and fled
for her life.

5. Count Three of the SUPERCEDING INDICTMENT charges no crime which is

cognizable under Texas law. AUTOMOBILE and CAR are not weapons as that term is
described in the Texas

TITLE 10. OFFENSES AGAINST PUBLIC HEALTH, SAFETY, AND MORALS

CHAPTER 46. WEAPONS

Sec. 46.01. DEFINITIONS. In this chapter:

(1) "Club" means an instrument that is specially designed, made, or adapted for
the purpose of inflicting serious bodily injury or death by striking a person with the instrument,
and includes but is not limited to the following:

(A) blackjack;

(B) nightstick;

(C) mace;

(D) tomahawk.

(2) "Explosive weapon" means any explosive or incendiary bomb, grenade,

rocket, or mine, that is designed, made, or adapted for the purpose of inflicting serious bodily
injury, death, or substantial property damage, or for the principal purpose of causing such a loud
report as to cause undue public alarm or terror, and includes a device designed, made, or adapted
for delivery or shooting an explosive weapon.

(3) "Firearm" means any device designed, made, or adapted to expel a projectile
through a barrel by using the energy generated by an explosion or burning substance or any
device readily convertible to that use. Firearm does not include a firearm that may have, as an
integral part, a folding knife blade or other characteristics of weapons made illegal by this
chapter and that is:

(A) an antique or curio firearm manufactured before 1899; or

(B) a replica of an antique or curio firearm manufactured before 1899,

but only if the replica does not use rim fire or center fire ammunition.

(4) "Firearm silencer" means any device designed, made, or adapted to muffle
the report of a firearm.
 (5) "Handgun" means any firearm that is designed, made, or adapted to be fired
with one hand.

(6) "Illegal knife" means a:

(A) knife with a blade over five and one-half inches;

(B) hand instrument designed to cut or stab another by being thrown;

(C) dagger, including but not limited to a dirk, stiletto, and poniard;

(D) bowie knife;

(E) sword; or

(F) spear.

(7) "Knife" means any bladed hand instrument that is capable of inflicting
serious bodily injury or death by cutting or stabbing a person with the instrument.

(8) "Knuckles" means any instrument that consists of finger rings or guards
made of a hard substance and that is designed, made, or adapted for the purpose of inflicting
serious bodily injury or death by striking a person with a fist enclosed in the knuckles.

(9) "Machine gun" means any firearm that is capable of shooting more than two
shots automatically, without manual reloading, by a single function of the trigger.

(10) "Short-barrel firearm" means a rifle with a barrel length of less than 16
inches or a shotgun with a barrel length of less than 18 inches, or any weapon made from a
shotgun or rifle if, as altered, it has an overall length of less than 26 inches.

(11) "Switchblade knife" means any knife that has a blade that folds, closes, or
retracts into the handle or sheath, and that:

(A) opens automatically by pressure applied to a button or other device

located on the handle; or

(B) opens or releases a blade from the handle or sheath by the force of
gravity or by the application of centrifugal force.

(12) "Armor-piercing ammunition" means handgun ammunition that is designed

primarily for the purpose of penetrating metal or body armor and to be used principally in pistols
and revolvers.

(13) "Hoax bomb" means a device that:

 (A) reasonably appears to be an explosive or incendiary device; or

(B) by its design causes alarm or reaction of any type by an official of a

public safety agency or a volunteer agency organized to deal with emergencies.

(14) "Chemical dispensing device" means a device, other than a small chemical
dispenser sold commercially for personal protection, that is designed, made, or adapted for the
purpose of dispensing a substance capable of causing an adverse psychological or physiological
effect on a human being.

(15) "Racetrack" has the meaning assigned that term by the Texas Racing Act
(Article 179e, Vernon's Texas Civil Statutes).

(16) "Zip gun" means a device or combination of devices that was not originally
a firearm and is adapted to expel a projectile through a smooth-bore or rifled-bore barrel by using
the energy generated by an explosion or burning substance.

There being no evidence before this court of any conditions, crimes or charges against
Shirley Pigott which would rise to the level of felonies, the court must dismiss the
SUPERCEDING INDICTMENT with prejudice.

There being no evidence before this court of any evidence that 1) Alfred Ochoa witnessed
an offense which gave him probable cause to arrest or detain, and 2) that Pigott could have
possibly known Daniel Terronez was a peace officer acting in an official capacity, the court must
dismiss the SUPERCEDING INDICTMENT with prejudice.

Due to the irregularities and deficiencies in the charges, this court must dismiss the
SUPERCEDING INDICTMENT with prejudice.

Shirly Pigott asks the Honorable Judge of this court to dismiss the SUPERCEDING
INDICTMENT with prejudice.

Section 10. In the Bill of Rights of the Texas Constitution, the accused in criminal prosecutions
are guaranteed the rights of being heard by himself or counsel, or both:
Therefore Defendant submits this motion herself.

Respectfully,

____________________________

Shirley Pigott
 CERTIFICATE OF SERVICE

I, the undersigned, hereby certify that a true and correct copy of the attached Motion to
Dismiss Superceding Indictment was hand delivered on June 8, 2009, to:

Josh McCown

Wharton County District Attorney

100 W. Milam, Room 305

Wharton, TX 77488-5093

and filed with:

Denice Malota, District Clerk

Wharton County, TX

__________________________