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Dismiss Superseding Indictment w Prejudice (Dessie Andrews)

Dismiss Superseding Indictment w Prejudice (Dessie Andrews)

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Published by Shirley Pigott MD

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Published by: Shirley Pigott MD on Jul 29, 2009
Copyright:Attribution Non-commercial

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01/16/2011

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THE
 
STATE
 
OF
 
TEXAS §
 
IN
 
THE
 
DISTRICT
 
COURT
 
§
 
v
 
§
 
OF
 
WHARTON
 
COUNTY,
 
TEXAS
 
§
 
SHIRLEY
 
PERSONS
 
PIGOTT
 
§
 
329th
 
JUDICIAL
 
DISTRICT
 
§
 
§
 
MOTION
 
TO
 
DISMISS
 
SUPERCEDING
 
INDICTMENT WITH PREJUDICE
 COMES NOW, Shirley Persons Pigott and moves this court to dismiss the SUPERCEDINGINDICTMENT WITH PREJUDICE issued in this case and would show the court the following:1. The indictment is defective on its face because it does not rise to the mandatory felonyrequirements of Texas Penal Code 38.04, to wit.Sec. 38.04. EVADING ARREST OR DETENTION. (a) A person commits an offense if heintentionally flees from a person he knows is a peace officer attempting lawfully to arrest or detain him.(b) An offense under this section is a Class B misdemeanor, except that the offense is:(1) a state jail felony if the actor uses a vehicle while the actor is in flight and the actor hasnot been previously convicted under this section;(2) a felony of the third degree if:(A) the actor uses a vehicle while the actor is in flight and the actor has been previouslyconvicted under this section; or (B) another suffers serious bodily injury as a direct result of an attempt by the officer fromwhom the actor is fleeing to apprehend the actor while the actor is in flight; or (3) a felony of the second degree if another suffers death as a direct result of an attempt by theofficer from whom the actor is fleeing to apprehend the actor while the actor is in flight.(c) In this section, "vehicle" has the meaning assigned by Section 541.201, TransportationCode.(d) A person who is subject to prosecution under both this section and another law may be prosecuted under either or both this section and the other law.
 
2. Shirley Pigott, on the night of September 29, 2007, was not and did not operate a “motor vehicle” or “vehicle” as that term is described by Section 541.201(23) of the Texas TransportationCode.
TRANSPORTATION
 
CODE
 
TITLE
 
7.
 
VEHICLES
 
AND
 
TRAFFIC
 
SUBTITLE
 
C.
 
RULES
 
OF
 
THE
 
ROAD
 
CHAPTER 
 
541.
 
DEFINITIONS
 
SUBCHAPTER 
 
A.
 
PERSONS
 
AND
 
GOVERNMENTAL
 
AUTHORITIES
 541.201(23) "Vehicle" means a device that can be used to transport or draw persons or  property on a highway. The term does not include:(A) a device exclusively used on stationary rails or tracks; or (B) manufactured housing as that term is defined by Chapter 1201, Occupations Code.3. At no time was the private car in which Shirley Pigott was traveling ever used for thetransport of fare paying passengers, nor the delivery, for hire, of property or freight.4. Shirley Pigott, did not know and could not have known that Daniel Terronez was a peaceofficer. Terronez was not in uniform and drove an unmarked car. Shirley Pigott, a woman alone atnight, was terrorized and threatened with assault by Terronez, a man unknown to her, and fled for her life.5. Count Three of the SUPERCEDING INDICTMENT charges no crime which isrecognizable under Texas law. AUTOMOBILE and CAR are not "weapons" as that term is describedin the Texas penal code.
TITLE
 
10.
 
OFFENSES
 
AGAINST
 
PUBLIC
 
HEALTH,
 
SAFETY,
 
AND
 
MORALS
 
CHAPTER 
 
46.
 
WEAPONS
 
Sec.
 
46.01.
 
DEFINITIONS.
 
In
 
this
 
chapter:
 (1) "Club" means an instrument that is specially designed, made, or adapted for the purpose of inflicting serious bodily injury or death by striking a person with the instrument, and includes but is notlimited to the following:(A) blackjack;(B) nightstick;(C) mace;(D) tomahawk.(2) "Explosive weapon" means any explosive or incendiary bomb, grenade, rocket, or mine, that isdesigned, made, or adapted for the purpose of inflicting serious bodily injury, death, or substantial property damage, or for the principal purpose of causing such a loud report as to cause undue publicalarm or terror, and includes a device designed, made, or adapted for delivery or shooting an explosiveweapon.(3) "Firearm" means any device designed, made, or adapted to expel a projectile through a barrel byusing the energy generated by an explosion or burning substance or any device readily convertible tothat use. Firearm does not include a firearm that may have, as an integral part, a folding knife blade or other characteristics of weapons made illegal by this chapter and that is:
 
(A) an antique or curio firearm manufactured before 1899; or (B) a replica of an antique or curio firearm manufactured before 1899, but only if the replica does notuse rim fire or center fire ammunition.(4) "Firearm silencer" means any device designed, made, or adapted to muffle the report of a firearm.(5) "Handgun" means any firearm that is designed, made, or adapted to be fired with one hand.(6) "Illegal knife" means a:(A) knife with a blade over five and one-half inches;(B) hand instrument designed to cut or stab another by being thrown;(C) dagger, including but not limited to a dirk, stiletto, and poniard;(D) bowie knife;(E) sword; or (F) spear.(7) "Knife" means any bladed hand instrument that is capable of inflicting serious bodily injury or death by cutting or stabbing a person with the instrument.(8) "Knuckles" means any instrument that consists of finger rings or guards made of a hard substanceand that is designed, made, or adapted for the purpose of inflicting serious bodily injury or death bystriking a person with a fist enclosed in the knuckles.(9) "Machine gun" means any firearm that is capable of shooting more than two shots automatically,without manual reloading, by a single function of the trigger.(10) "Short-barrel firearm" means a rifle with a barrel length of less than 16 inches or a shotgun with a barrel length of less than 18 inches, or any weapon made from a shotgun or rifle if, as altered, it has anoverall length of less than 26 inches.(11) "Switchblade knife" means any knife that has a blade that folds, closes, or retracts into the handleor sheath, and that:(A) opens automatically by pressure applied to a button or other device located on the handle; or (B) opens or releases a blade from the handle or sheath by the force of gravity or by the application of centrifugal force.(12) "Armor-piercing ammunition" means handgun ammunition that is designed primarily for the purpose of penetrating metal or body armor and to be used principally in pistols and revolvers.(13) "Hoax bomb" means a device that:(A) reasonably appears to be an explosive or incendiary device; or (B) by its design causes alarm or reaction of any type by an official of a public safety agency or avolunteer agency organized to deal with emergencies.(14) "Chemical dispensing device" means a device, other than a small chemical dispenser soldcommercially for personal protection, that is designed, made, or adapted for the purpose of dispensing asubstance capable of causing an adverse psychological or physiological effect on a human being.(15) "Racetrack" has the meaning assigned that term by the Texas Racing Act (Article 179e, Vernon'sTexas Civil Statutes).

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