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 REHEARING

SUMMARY OF MOTION 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 disability during crossexamination to make Appellant appear arrogant and uncooperative. Then the prosecutor, during final argument, told the jury that Appellants arrogance and failure to cooperate during cross-examination is proof of her guilt; that Appellant thinks that she does not have to follow the rules like the rest of us, because she is a doctor. This conduct represents constitutional error. After constitutional error there is an assumption of harm, with the burden of proof on the harm analysis shifted to the State.
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The Court failed to recognize or address Appellants constitutional claims. Instead, the Court focused most of its analysis on the Deadly Weapon issue, which Appellants brief clearly states is not the basis for this appeal. (Reply Brief, pg. 3-4, 17-18)

Courts Analysis of Constitutional Claims

The erroneous methodologies used by the Court to summarily reject the Appellants constitutional claims include the following: 1. Separating the components of the prosecutors strategy into separate events and analyzing each event separately, instead of as part of the strategy. 2. After viewing each component separately, concluding that Appellants brief violated TRAP 38.1(i); that Appellants brief fails to present anything for review. 3. Failing to consider the prosecutors admissions of vindictiveness as evidence that the prosecutors misconduct during trial was intentional. 4. Relying on arguments and authorities that are not applicable when a prosecutor intentionally inflames and prejudices the jury against a defendant. 5. Failing to recognize that before cross-examination of Appellant, the crucial issue for the jury was whether Appellant was arrogant and uncooperative on the dark highway OR whether she was afraid, when she tried to go to a safer place.

DISCUSSION OF COURTS OPINION Deadly Weapon Issue (CTs. Opinion, pgs. 3-15) The jury verdict on Deadly Weapon is not significant to the issues in this appeal. The only relevancy of this issue is set out in the Reply Brief on pages 3-4, 17-18. As argued by Appellant, the jury verdict on Deadly Weapon is relevant only as evidence of harm caused by the prosecutors effort to prejudice the jury. Prosecutors Strategy Analyzed as Separate Events (Cts Opinion, pgs. 15-22) The Court begins its analysis of the constitutional issues by separating the components of the prosecutors strategy into separate events. The Court then proceeds to view and evaluate each event separately, while overlooking the relationship of the separate components to the prosecutors intentional effort to inflame and prejudice the jury.

Appellants brief cites numerous authorities, none of which have been disputed by this Court or by the State, 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
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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)

Courts Error in Use of TRAP 38.1(i) (Cts Opinion, pgs. 16-21) After the Court separates the prosecutors conduct into separate events , with no relation to one another, the Court concludes that Appellant has presented no clear and concise argument in support of her contentions; that each of Appellants sub-issues are inadequately briefed; that Appellant has presented nothing for review. The Court cites TRAP 38.1(i) and Busby v. State, 253 S.W.3d 661, 673 (Tex. Crim. App. 2008). Neither TRAP 38 nor the Busby case supports the Courts conclusion.

It is clear that the issues that the Court finds inadequately briefed are not the issues presented by Appellant. The issues that the Court concludes are not properly briefed are the issues carved out by the Court, in violation of the authorities requiring a review of the whole picture in determining whether Appellants due process rights have been violated. TRAP 38.9: The Court ignored TRAP 38.9, which requires the Court to construe the structure and content requirements of briefs liberally. TRAP 38.9 sets out the
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proper course of action if the Court concludes that Rule 38.1(i) has been flagrantly violated or that a brief has substantive defects. Rule 38.9 provides options for the Court to resolve the defect while preserving the rights of the parties. Clearly, the Court should make an effort to avoid using Rule 38.1(i) to deny a criminal defendant his constitutional right to due process of law.

Busby v. State: The Busby case has no relevancy to this case. It certainly is not authority for the Court to summarily reject Appellants claims of denial of due process. The error claimed by the appellant in Busby was not a constitutional error and was not briefed at all. The brief did not include issues, facts, and arguments with appropriate citations to authorities and to the record. (Busby, pg. 673)

Courts Analysis of Cross-Examination (Cts. Opinion, pgs. 17-20) The Court begins its analysis of the prosecutors cross-examination by declaring Appellants brief defective, in violation of TRAP 38.1(i). After carving out components of Appellants argument, the Court then proceeds to analyze each carved out component separately. Instead of analyzing the whole picture, the Court cites cases that hold that a prosecutor has the right to ask a defendant about his disability; cases that give the prosecutor discretion as to what specific question to ask on cross-examination.
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The Court rejects the possibility that a prosecutor should allow reasonable accommodation to a defendant with a medical disability and not intentionally leverage their disability to obtain a conviction. Ironically, the Court cites Appellants appearance of arrogance and Appellant counsels effort to correct the appearance of arrogance during cross-examination, as a basis for rejecting Appellants claim that she was set up by the prosecutor. While ignoring what happened, the Court states Appellant provides no authority supporting her argument that the prosecutors questions were improper.

However, Appellant has not argued that the carved out components, analyzed separately, represent constitutional error. Appellants argument is that the prosecutors strategy to use cross-examination, followed by his prejudicial argument to the jury, represents constitutional error. This argument was ignored by the Court. Courts Analysis of Prosecutors Final Argument (Cts. Opinion, pgs. 20-21) The Court begins its analysis of the prosecutors improper jury argument by separating the issue from the whole picture. The Court refers to the third sub-issue of her second issue. Then the Court refuses to consider the prejudicial effect of the jury argument, concluding that Appellant waived the error by failing to object to the argument. The Court cites the case of Threadgill v. State as authority for
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summarily rejecting Appellants claim of constitutional error. 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. The facts in the case before this Court are quite different than in Threadgill. Appellants Objections and Motions to Preserve Constitutional Error First Phase: Appellant objected to the prosecutors conduct began during the first phase of the prosecutors strategy. The prosecutor, in cross-examination, began leveraging Appellants 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 guilt; that Appellant thinks that she does not have to follow the rules because she is a
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doctor. At this point 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
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support of the MNT. The trial court overruled the MNT on 3/26/10. (Appellants Brief, pg. 20)

Rules on Preserving Error for Appeal In the case of Young v. State, 137 SW3d 65 (Tex. Crim. App., En Banc, 2004), the court sets out the requirements for preserving error under the circumstances in this case. The 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. Error Not Curable by Instructions The combined prejudice 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. The crucial jury issue was whether Appellant was arrogant and uncooperative on the highway OR afraid on the highway.

Circumstances When the Prosecutor Began Cross-examination Appellant had stipulated all the facts necessary for her conviction, subject to the defense of necessity. The crucial jury issue became whether Appellants fear caused her to try to go to a safer place. (Appellants Brief, pg. 12) Dr. Brams had
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testified about Appellants disability; that Appellants disability had caused her to have uncontrollable fear on the dark highway. Dr. Brams also testified that stress during the trial would cause Appellant to seize up and be unable to process information. (Appellants Brief, pgs. 12-13) Prosecutors Strategy With knowledge of these circumstances, the prosecutor undertook an intentional strategy to inflame and prejudice the jury against Appellant. The strategy was (a) create stress in Appellant during cross-examination and thereby cause her to seize up and create an image of Appellant being arrogant and uncooperative (b) tell the jury during final argument that Appellants arrogance and refusal to cooperate during cross-examination is proof of her guilt (c) tell the jury that Appellant thinks she does not have to follow the rules, because she is a doctor.

Courts Analysis of Prosecutors Vindictiveness (Cts. Opinion, pgs. 15-17) The Court begins its analysis of Appellants claims about the prosecutors vindictiveness by misstating Appellants arguments. The Court carves out and discusses the 2nd indictment obtained by the prosecutor after Appellant, acting as her own attorney, filed motions accusing the police officers of illegal conduct. Then the Court declares that Appellants brief presents nothing for review; that Appellants brief violates TRAP 38.1(i).
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The Court then cites the case of Neal v. State, and discusses the case law applicable to claims of prosecutorial vindictiveness when a prosecutor increases the severity of the charges after a defendant appeals, asks for a jury or takes other action during the proceedings which the prosecutor does not like. These cases are only indirectly relevant to this appeal.

Appellant brief has used the word vindictive as meaning intended for, or involving revenge. Appellant has used the word prosecution as meaning the institution and continuation of a criminal suit involving the process of pursuing formal charges to final judgment. Appellant has not claimed that the 2nd indictment, alone, is sufficient to create a presumption of violation of due process. Appellants argument, supported by the Record, is that the series of acts, when viewed together, show that the prosecutors conduct during cross-examination and during final argument was intentionally done to inflame and prejudice 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.
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1. Adding a 2nd indictment right after Appellant filed motions alleging illegal conduct by the DPS officers. 2. The prosecutors admission of his vindictive motivation. 3. The prosecutors refusal to testify at the hearing on the MNT in denial of the evidence exposing his admission of vindictiveness. 4. After being put on notice of Appellants disability, leveraging Appellants disability for the intentional objective of making Appellant appear arrogant and uncooperative during cross-examination. 5. Final argument wherein the prosecutor again admitted being hell bent on a conviction as opposed to see that justice is done. 6. During final argument, intentionally inflaming and prejudicing the jury by arguing that Appellants arrogance and uncooperativeness in cross-examination is proof of her guilt; that Appellant thinks she does not have to follow the rules, because she is a doctor. (Reply brief, pgs. 7-9)

Evidence of a series of acts that tend to show vindictiveness constitute 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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Courts Analysis of Trial Courts Denial of Mistrial and Motion for New Trial (Cts Opinion, pgs. 21-22) The Court begins its analysis of the trial courts denial of Appellants motions for mistrial and for a new trial by concluding the Appellant presents nothing for review, in violation of TRAP 38.1(i). Then the Court summarily concludes that Appellants arguments that the prosecutor acted improperly are rejected, therefore the conviction is affirmed.

As set out above, the Court has failed to properly review and analyze Appellants claims of constitutional error.

STANDARD OF REVIEW FOR CONSTITUTIONAL ERRORS

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 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.. . . . . .
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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 afraid on the highway or just arrogant and uncooperative. There can be little doubt that the prosecutors 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 nonpersuasion to one of persuasion.

CONCLUSION Appellant respectfully requests that the Court take another look at the constitutional issues presented; that the Court reverse the conviction and remand the case to the trial court for further proceedings.

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 7/25/11. Jerry S. Payne
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