NO.

16,263
STATE OF TEXAS VS. SHIRLEY PERSONS PIGOTT
EXHIBIT A
SUMMARY OF GROUNDS FOR NEW TRIAL
1. Prosecutorial Misconduct
2. Incurable Jury Argument
3. Legal and Factual insufficiency of the Evidence
4. Fatal Inconsistency in the Jury’s Verdict
5. Ambiguity of Verdict
6. Errors by the Court that Injured Defendant’s Rights

Prosecutorial Misconduct and incurable jury argument

District Attorney Josh McCown, in violation of both state and federal

law, engaged in prosecutorial misconduct. Mr. McCown intentionally
took advantage of Defendant’s disabilities to obtain a conviction. The
district attorney’s conduct is motivated by his stated intent to retaliate
against Defendant to vindicate the state police officers. This conduct
violates the duty of a prosecuting attorney under Texas law AND
violates The Americans with Disability Act, which makes the district
attorney’s conduct illegal under federal law.

AMERICANS WITH DISABILITIES ACT

Congress’ objective in passing this Act is to insure that persons with disabilities receive fair
treatment. The Act includes a federal mandate prohibiting a state district attorney from taking
advantage of a defendant’s disability to obtain a conviction.

TEXAS LAW-DUTY OF A PROSECUTING ATTORNEY

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.”
SPECIFIC FACTS:

Event of the Highway (9/29/07)

Defendant, a 60 year old lady, was pulled over by the state police, on a dark highway, for
going 74mph in a 65mph zone. Because of the circumstances, Defendant told the officers that
she was scared and attempted to go to a public, lighted place before opening her car door. As
a result of Defendant’s action, Wharton County District Attorney, Josh McCown, sought and
obtained three felony Indictments against Defendant. A conviction of the charges requires
prison, without the option to seek probation.

Dr. Pigott’s Disability

At the time when she was stopped on the highway and while she was acting as her own
attorney to defend the felony charges, Defendant was suffering from a medical disability
which effected her perception. (See attached Exhibit A (1) Summary of Dr. Brams
Testimony).

Dr. Pigott’s Claim of Conspiracy

Dr. Pigott is a whistleblower who has made public claims of unethical conduct by the Texas
Medical Board and by Dr. Keith Miller, who was a member of the TMB.
While acting as her own attorney in this case, Defendant became outraged when she
discovered that District Attorney, Josh McCown was coordinating with Dr. Keith Miller in
an effort to send her to prison. (See attached Exhibit A (2), Summary of Dr. Miller’s attacks
on Defendant)

After discovering that the District Attorney was working with Dr. Miller, Defendant made
accusations of illegal conduct and conspiracies among the state police officers and District
Attorney Josh McCown. These accusations were made during the time Dr. Pigott was acting
as her own attorney in this case.

After Defendant’s claims of an illegal conspiracy, the district attorney

openly stated and declared that he intended to retaliate against
Defendant because of her claims against the police officers; that he
feels personal vindictiveness toward Defendant because she insulted
the state police officers; that his goal is to vindicate the state police
officers involved because he has a long relationship with the officers.
 Dr. Pigott’s Effort to Prevent Illegal leveraging of her disability
Dr. Pigott’s disability creates a problem for her if she testifies in her case. Dr. Pigott is unable
to process information when she is in a stressful situation. Once the stress elevates, she is
unable to process information. Her ability to testify shuts down. (Ex. A(1) Summary of Dr.
Brams Testimony).

Testifying in her criminal case is a stressful situation, especially if on cross-examination the

prosecutor attempts to create a stressful situation by asking unclear, confusing questions. In
an effort to prevent the district attorney from taking advantage of Dr. Pigott’s disability
during cross-examination, Defendant’s attorney attempted to create a situation under which
Dr. Pigott could function without being inhibited by her disability. This effort included a)
structuring her testimony by submitting a written summary for her to follow and for the
District Attorney to use on cross examination, b) presentation of the testimony of Dr. Brams
describing Dr. Pigott’s disability, c) followed by Dr. Pigott’s testimony.

Effort to Structure Testimony with Summary

At the beginning of the defense’s presentation of evidence, the defense attorney submitted a
two page written summary of Dr. Pigott’s testimony concerning the event on the highway.
The attorney proposed, to the district attorney and the Court, that the summary of Dr.
Pigott’s testimony be admitted into evidence; that both sides be limited to ask questions
about the facts in the summary. Defendant’s attorney argued that Dr. Pigott’s disability
would prevent her from being able to function unless she knew ahead of time the issues on
which she must give testimony. The district attorney argued against the proposal.

Presentation of Dr. Brams Testimony Describing Dr. Pigott’s Disability

Defendant’s first witness was Dr. Matthew Brams. He testified about Dr. Pigott’s disability.
He specifically informed the district attorney and the Court of Dr. Pigott’s disability; he
testified that Dr. Pigott’s PTSD, with her underlying bipolar disorder and her attention deficit
hyperactivity disorder prevented Dr. Pigott from processing information under stress; that
stress ( such as the district attorney’s cross-examination with unclear, confusing questions)
would disable Dr. Pigott. (Ex A(1).
The district attorney’s 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 Dr, Pigott’s disability was still present during the trial.
2nd Effort to Structure Testimony with Summary
Before taking the stand to testify and after Dr. Brams testimony, Defendant again tendered
the summary of her testimony, so as to allow her to testify without being inhibited by her
disability. Defendant’s attorney argued that the use of the summary to limit her testimony
would lessen the stress and allow her to function on the stand. Again the district attorney
objected and the Court denied Defendant’s request to admit the summary and limit her
testimony to the facts in the summary.

District Attorney Leveraged Dr. Pigott’s Disability to Acquire a Conviction

The district attorney’s cross-examination of Dr. Pigott 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 in Dr. Pigott; to tense her up; to
“push her buttons.”

The district attorney’s plan worked. Dr. Pigott ceased up, appeared stubborn and
uncooperative. Defendant’s attorney objected regularly that the prosecutor was trying to
confuse Dr. Pigott; that the questions were unclear and confusing, causing the Defendant to
seize up. However, the prosecutor continued to “push her button” successfully. The Court
overruled the objections to the District Attorney’s conduct. On two occasions Defendant’s
attorney found it necessary to stand up, in front of the jury, and tell Dr. Pigott to “try to relax,
sit up and lean forward so that you look like you are trying to answer the questions.”
Nevertheless, the District Attorney continued his abuse.
The success of the district attorney’s plan was clear; Dr. Pigott appeared uncooperative,
stubborn and unwilling to try to answer the prosecutor’s questions.

DISTRICT ATTORNEY’S USE OF MOTION IN LIMINE AND COURT’S ORDER

ON MOTION IN LIMINe TO OBTAIN A CONVICTION
The district attorney sought an order from the Court prohibiting testimony or documents
about the specifics of Dr. Pigott’s whistleblower activity, including testimony and documents
from hearings before the Texas Medical Board. The Court granted the District Attorney’s
request and ordered that documents and specific testimony presented to the TMB were not to
be mentioned in front of the jury.
As required by the Court order, Dr. Pigott’s attorney told her that she was not to violate the
Court’s order; that she was not to talk about the specifics of her whistleblower activity
against the Texas Medical Board or against Dr. Miller; that she was not to refer to any
testimony or documents that involved her proceeding at the Texas Medical Board; that if the
district attorney asked her questions about the testimony or documents that were part of the
hearings before the Texas Medical Board that she was to tell the District Attorney that her
attorney told her not to talk about that.
 As part of his technique to use Defendant’s disability to convict her, the District Attorney,
without any notice to the Court or to Defendant’s attorney, began asking Dr. Pigott about
testimony and documents that were part of the Texas Medical Board hearings. Dr. Pigott told
the District Attorney that her attorney told her not to talk about that subject (as per the
Court’s order).
In response to Dr Pigott’s statement, the Court told Dr. Pigott that she was not to follow the
instructions of her attorney; that she was to answer the District Attorney’s questions.
At this point, Dr. Pigott had lost all of her ability to process the questions and to 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. The District Attorney then finished his plan
to obtain a conviction by leveraging Defendant’s disability with his closing argument to the
jury.

DISTRICT ATTORNEY’S Closing ARGUMENT TO the jury

“the reason Dr. Pigott did not cooperate with the officers on the highway is the same
reason that she refused to cooperate with me during cross-examination”--“she thinks
she doesn’t have to follow the same rules that the rest of us have to follow , because
she’s a doctor.”

LEGAL AND FACTUAL INSUFFICIENCY OF EVIDENCE, FATAL

INCONSISTENCY OF VERDICT AND AMBIGUITY OF VERDICT
The jury’s verdicts that Defendant used a “Deadly Weapon” when fleeing after her 1st stop and
when fleeing after her 2nd stop should be set aside on the basis of legal 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
intended use of the car to determine if the car qualifies as a “Deadly Weapon.”

Use of a Car as a Deadly Weapon

For Defendant’s 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 there is insufficient evidence to support
the jury’s verdicts on Deadly Weapon, beyond a reasonable doubt. The verdicts are clear
indications that the jury did not follow the Court’s charge when concluding, beyond a reasonable
doubt, that the car was used as a deadly weapon.

Fatal Inconsistency in Jury’s Verdict

The jury’s verdicts on the issues of deadly Weapon show that the jury did not follow the Court’s
charge when deciding on its verdict.

Defendant’s use of her car when fleeing after her 1st stop is totally void of any evidence that the
car was used as a deadly weapon. Defendant’s use of the car after the 2nd stop is void of
sufficient evidence for a verdict, beyond a reasonable doubt, concluding that the car was used as
a deadly weapon.
The jury’s outrageous verdict that defendant used her car as a deadly Weapon after the 1st stop is
a clear indication that the jury’s verdict on both the Deadly Weapon issues must be set aside.

The law is well settled that when a jury displays inconsistency in following the Court’s charge
due to passion, prejudice, partiality or other reasons, such as prosecutorial misconduct, that the
verdict must be set aside on all issues closely related. (Lee v. Hunstville Livestock, 934 SW2d
158, (14th CA, 1996).

Ambiguity of Verdict

The Court ruled at the sentencing hearing on 1/25/10 that there would be a fatal inconsistency in
the jury’s verdict, requiring the Court to set aside the jury’s findings of “Deadly Weapon,” if the
jury’s verdict was intended to find that Defendant used a “Deadly Weapon” under Count 1, when
fleeing from the first stop. However, the Court found that the jury finding of “Deadly Weapon”
under Count 1 was referring to the 2nd fleeing, after the 2nd stop by Defendant. The structure of
the indictment, the structure of the charge, the State’s presentation of the evidence and the
State’s argument to the jury indicate the jury was to decide if Defendant used a “Deadly
Weapon” when fleeing after the 1st stop. At the very least, the intent of the jury’s finding as to
use of a “Deadly Weapon” under Count 1 is ambiguous and uncertain and must be set aside.

ERRORS BY THE COURT

The errors made by the Court that injured Defendant’s rights are as follows:
1. Denying Defendant’s request to admit her summary of evidence to help her testify
without being inhibited by her disability.
2. Overruling Defendant’s objections to the District Attorney’s efforts to leverage
Defendant’s disability to obtain a conviction during cross examination of Defendant.
3. Overruling Defendant’s objections to vague and unclear questions by the State
during cross of Defendant.
 4. Overruling Defendant’s objections to the State asking Defendant questions about
documents and/or testimony from the TMB hearings, in violation of the Court’s order on
the State’s motion in limine.
5. Instructing Defendant to ignore the instructions of her attorney not to talk about the
testimony or documents that involved the TMB hearings.
6. Allowing the State to abuse Defendant during cross examination by intentionally
making her look uncooperative.
7. Overruling Defendant’s motion for mistrial, based on prosecutorial misconduct and
improper jury argument.
8. Overruling Defendant’s claims of legal and factual insufficiency of evidence on the
jury’s findings of “Deadly Weapon.”
9. Overruling Defendant’s claim of fatal inconsistency in the jury’s finding on
“Deadly Weapons.”
10. The Court’s ruling on 1/25/10 that the jury finding of “Deadly Weapon” under Count
1 was referring to the 2nd fleeing.
11. Failing to set aside the jury’s findings on “Deadly Weapons” due to the uncertainty of
the jury’s intent in its findings.