STATEMENT OF FACTS

DR. PIGOTT’S MEDICAL PRACTICE

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 patient’s overall health, instead of just focusing on

their current symptoms. (Ct. Rep. R., Vol. 4, pgs. 40-42)

APPELLANT’S MEDICAL DISABILITY

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.
Post Traumatic Stress Disorder

Because of Appellant’s underlying Bi Polar Disorder and ADHD, stress can

inhibit Appellant’s 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 one’s brain to be on hyper alert status; one’s pulse goes up;

blood pressure goes up; one sweats more; one has extreme fear of harm to one’s 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)

APPELLANT’S ACTIVISM TOWARD TEXAS MEDICAL BOARD

As a result of Appellant’s change to an “Ideal Micro Medical Practice,” she

had problems with Blue Cross Blue Shield (BCBS). BCBS refused to pay

some of the costs incurred by Appellant’s patients that were associated with

the new system. BCBS sought the support of the Texas Medical Board. The
TMB backed BCBS, which led to Appellant’s activism against the TMB and

board members who were on BCBS’ payroll. Appellant felt compelled to

resist Blue Cross Blue Shield’s effort to control the medical treatment

she provided for her patients. As a result of Appellant’s activism, the

TMB raised issues that threatened to impact Appellant’s medical license.

Appellant’s 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)

AFFECT OF APPELLANT’S 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 Alzheimer’s, with rapid decay.

B. Appellant’s activism had become very tense and stressful, which included

confrontations with Dr. Miller and Dr. Curran. As a result of Appellant’s 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 Appellant’s 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 Appellant’s disability, these stresses and the manner in which the DPS officers

handled the event, Appellant’s ability to channel and process information was inhibited.

(Ct Rep R, Vol 4, pgs 9-39; Vol 8, D-6)

EVENT ON THE HIGHWAY (9/29/07)

Appellant was pulled over by the state police, on a dark highway, for going

74mph in a 65mph zone. Appellant’s 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.

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 Appellant’s 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, Appellant’s stress level was high. Appellant became confused and fearful.

She locked her doors and got her driver’s license out and put it against the window. The

DPS officer would not read the information on the driver’s license. (Ct Rep R, Vol 4, pgs

55-63)

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

officer’s 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).

Appellant’s 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 Appellant’s 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 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 driver’s

license against the window. The officer would not look at the driver’s license. The

officer told Appellant “If you don’t open the door, I’m going to break out the window

and take you out by force.” Appellant replied “Don’t do that. I’ll have to leave if you do

that.” Appellant’s stress level elevated significantly. She began honking her horn to get

attention.

The officer began smashing Appellant’s 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 Appellant’s 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)

APPELLANT’S CONVERSATION WITH DPS OFFICER AFTER ARREST

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: I’m not mad at ya

Ochoa: OK, I’m 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 you’re driving
and somebody pulls you over just make sure you pull over to the right side.
Pigott: OK, I didn’t realize that.
Ochoa: That’s 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 Appellant’s 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)

JANUARY 7, 2008-INDICTMENT AND SUICIDE

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, Appellant’s husband committed suicide. (R, pg 15)

EVENTS, ACTIONS AND REACTIONS BY APPELLANT AND 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 Appellant’s car. (R, pg 42)

Texas Medical Board: In March, 2008, Appellant’s medical license is suspended as a

result of information from McCown to the TMB about the Indictment. (R, pg 286)

Appellant: In March, 2008, Appellant’s 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)

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 Appellant’s 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 McCown’s

condition for the plea agreement was that Appellant agree to donate her car to McCown.

Appellant declares that she “will not give in” to McCown’s illegal bribe, even if she has
to go to prison. (R, pgs 171-176).

MEETING BETWEEN MCCOWN AND APPELLANT’S ATTORNEY

In June, 2009, Jerry Payne became Appellant’s 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 and asked for

McCown’s agreement on the continuance. McCown agreed to the continuance. In

exchange, Payne agreed not to oppose Mr. McCown’s motion in limine to keep

Appellant’s 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 Payne’s 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)

TRIAL OF THE CASE

JURY ISSUE ON FLEEING-STIPULATIONS AND DEFENSE

Due to Appellant’s 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.

Appellant’s 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)

Appellant’s Defense

Appellant’s defense to the charges of fleeing is the affirmative defense of “Necessity.”

(R, pg 240).

MEDICAL TESTIMONY ON “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 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 State’s 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)

STATES MOTION IN LIMINE

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 Appellant’s claims of

conspiracies involving the DPS and the TMB. (R, 182)

Pursuant to the trial court’s order, Appellant’s attorney told Appellant 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 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)

PLAN TO AVOID DESTRUCTION DURING CROSS-EXAMINATION

Appellant’s 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

Appellant’s 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, Appellant’s attorney attempted to structure and limit the

areas on which Appellant would testify. This effort included (a) preparation of a

Summary Statement of Appellant’s testimony, which limits the subject areas of her

testimony (b) presenting the Summary Statement to the trial court and the D.A.,

requesting that Appellant’s testimony be limited to the areas in the summary (c)

presentation of the testimony of Dr. Brams, describing Appellant’s disability (d)

followed by Appellant’s testimony, within the areas set out in the Summary Statement

submitted.

Summary Statement of Appellant’s Testimony

Appellant submitted a two page written Summary Statement of Appellant’s 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 Appellant’s Disability

Appellant’s first witness was Dr. Matthew Brams, Appellant’s treating psychiatrist. He

testified about Dr. Pigott’s disability. He specifically informed the district attorney and

the trial court of Appellant’s disability. Dr. Brams testified that Appellant’s PTSD, with

her underlying bipolar disorder and her attention deficit hyperactivity disorder,

prevented her from processing information under stress; that intense stress disables

Appellant.

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 Appellant’s 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

Appellant’s effort to limit cross-examination to the areas in the Summary Statement. (Ct

Rep R, Vol 4, pgs 45-47, 309-326)

CROSS-EXAMINATION OF APPELLANT (Ct Rep R, Vol 4, pgs 92-129)

The State’s 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 Appellant’s attorney, the cross-examination presented general,

unclear questions asking for opinions. The objective of the cross-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 jury’s attention

to Appellant’s posture and demeanor (asking Appellant to lean forward).

3. The D.A. asked Appellant’s 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.....I’m 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)

6. In the middle of a confrontational debate between Appellant and the D.A., Appellant’s

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 Appellant’s attorney, the D.A. asked a serious of questions

about Appellant’s 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 court’s order. (pgs 107-124).

8. When the D.A. asked questions prohibited by the State’s 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 attorney’s instructions

and to answer the questions. (pgs 116-117)

9. Appellant’s 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).

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 Appellant’s 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.

Appellant’s 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)

STATE’S CLOSING ARGUMENT

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 on convictions.
Now I will concede in this case, based on what this defendant did and what she put those
officers through, yeah, I’m hell-bent on a conviction in this case. But I’m going to do it
the right way.” (Ct Rep R, Vol 4, pg 157)

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 some sort of mental
influence? I don’t think we’ve 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 driver’s license,
a lowly police officer daring to confront a medical doctor? You’ve seen her attitude.
She’s arrogant with me. What do you think she treated him like?” (Ct Rep R, Vol 4, pg
162)

MOTION FOR MISTRIAL

After the jury retired to deliberate, Appellant presented a Motion for Mistrial based on:

Prosecutorial misconduct; Leveraging Appellant’s 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 YEARS AT TDC (R, pg 299)

SUMMARY OF ARGUMENT

CONSTITUTIONAL ERROR – DENIAL OF FUNDAMENTAL FAIRNESS

Appellant was denied Fundamental Fairness through a series of improper acts by the

district attorney, which the trial court allowed to occur over Appellant’s objections. The

district attorney’s improper acts included: prosecutorial vindictiveness; leveraging

Appellant’s medical disability during cross-examination to obtain a conviction;

incurable, improper jury argument. The trial court erred in denying Appellant’s 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. Appellant’s request for “reasonable accommodations” was denied.

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 Appellant’s 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: AGGRAVATED ASSAULT WITH A DEADLY WEAPON, AGAINST A PUBLIC SERVANT. 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 Appellant’s 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, 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 Appellant’s 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.

LEGAL AND FACTUAL INSUFFICIENCY OF EVIDENCE, FATAL INCONSISTENCY OF VERDICT AND

AMBIGUITY OF VERDICT

The jury’s verdict, that Appellant used a “Deadly Weapon,” when fleeing 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.

STATE HAS BURDEN OF PROOF ON HARMLESSNESS OF ERRORS

When constitutional error is involved, TRAP 44.2(a) controls this Court’s review of the

error to determine if the error adversely affected the integrity of the conviction.

ARGUMENT AND AUTHORITIES

CONSTITUTIONAL ERROR – DENIAL OF FUNDAMENTAL FAIRNESS

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, government’s interest and the risk that the

procedures employed will lead to erroneous decisions. (12A TJ3d 599)

In the case of Menzies 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 attorney’s 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.
DENIAL OF DUE PROCESS-PROSECUTORIAL VINDICTIVENESS

Prosecutorial misconduct or vindictiveness, which denies a defendant

fundamental fairness, is a violation of due process rights under the Constitution.

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.”

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 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

Appellant’s medical disability during cross-examination and improper closing argument

to the jury.

DENIAL OF DUE PROCESS-IMPROPER CROSS-EXAMINATION

The district attorney’s 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.

AMERICANS WITH DISABILITIES ACT--REASONABLE ACCOMMODATIONS REQUIRED

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 measures to remove barriers to a disabled person’s

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 Appellant’s requests for “reasonable accommodations” that would

have allowed her to testify without being dismantled during cross-examination. Instead,

the D.A. intentionally leveraged Appellant’s disability to obtain a conviction.

STATE’S MOTION IN LIMINE

As part of the D.A.’s technique to leverage Appellant’s 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 court’s order.

Appellant’s attorney objected regularly that the prosecutor was trying to confuse

Appellant; that the questions were prohibited by the trial court’s order; that the questions

were unclear and confusing, causing the appellant to seize up. The Court overruled the

objections to the District Attorney’s conduct.

Appellant told the D.A. that her attorney told her not to talk about the details of the

TMB hearings. In response to Appellant’s 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 Appellant’s 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, Appellant’s Attorney had to stop

the cross-examination because Appellant’s ability to function was gone. Nevertheless,

the District Attorney continued his abuse. The success of the district attorney’s plan was

clear; Appellant appeared arrogant, uncooperative and unwilling to try to answer the

questions. (SOF, pg 16-19)

DENIAL OF DUE PROCESS-JURY ARGUMENT

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, I’m hell-bent on a conviction in this case. But I’m 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 don’t think we’ve 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 driver’s license,
a lowly police officer daring to confront a medical doctor? You’ve seen her attitude.
She’s arrogant with me. What do you think she treated him like?” (Ct Rep R, Vol 4, pg
162

D.A. ACTING AS COUNSEL FOR THE DPS OFFICERS

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).

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.’S CLAIM THAT APPELLANT IS ARROGANT BECAUSE SHE IS A DOCTOR

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 Appellant’s image

of being arrogant and uncooperative during cross-examination.

DEADLY WEAPON

The jury’s 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 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 Appellant’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 the evidence does not support the jury’s verdict on Deadly Weapon. There is

no evidence of actual danger to other persons. The verdict is a clear indication of the

jury’s prejudice; that the jury did not follow the trial court’s charge when concluding that

the car was used as a deadly weapon.

Appellant’s 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.

Appellant’s 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 Appellant’s use of her car. (SOF, pgs 6-7)

Ambiguity of Verdict

There is uncertainty as to the intent of the jury’s 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.”

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 jury’s 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).

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 jury’s 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 Appellant’s 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

What was Mr. McCown’s motivation for obtaining a superseding indictment, 10 months

after the event on the highway, adding the 1st degree felony of Aggravated 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 wasn’t just a coincidence. McCown has admitted his anger and his

vindictiveness toward Appellant.

Some of Appellant’s 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.”

The district attorney’s 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
713-785-0677
Fax-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