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.

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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

2
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.

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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.

4
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)

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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

6
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)

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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)

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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)

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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

10
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)

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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

12
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)

13
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

14
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.

15
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-

16
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)

17
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).

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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)

19
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)

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 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.

21
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,

22
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.

23
 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

24
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

25
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

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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.

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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)

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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).

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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

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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

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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.”

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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

33
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

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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.”

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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

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