NO.

13-09-00234-CR

IN THE COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI, TEXAS

SHIRLEY PERSONS PIGOTT

Appellant,

v.

THE STATE OF TEXAS,

Appellee

STATE'S BRIEF

ROBINSON C. RAMSEY State Bar No. 16523700 Trinity Plaza II, Suite 900 745 E. Mulberry

San Antonio, Texas 78212 Telephone: (210) 736:-6600 Telecopier: (210) 736-5889

JOSHUA W. McCOWN State Bar No. 13466400 ROSS KURTZ

State Bar No. 24052908 Wharton County Courthouse 100 S. Fulton, Suite 100 Wharton, Texas 77488 Telephone: (979) 532-8051 Telecopier: (979) 532-8467

ATTORNEYS FOR THE STATE OF TEXAS

STATE DOES NOT REQUEST ORAL ARGUMENT

IDENTITY OF PARTIES AND COUNSEL

The following is a complete list of the names and addresses of all parties to the trial court's final judgment and their counsel in the trial and appellate courts:

Appellant:

Name:

Shirley Persons Pigott

Trial Counsel:

Jerry S. Payne

11505 Memorial Drive Houston, Texas 77024

Dennis W. Craggs

917 Franklin, 4th Floor Houston, Texas 77002

Appellate Counsel:

Jerry S. Payne

11505 Memorial Drive Houston, Texas 77024

State:

Trial Counsel:

Gordon Dudley

Assistant District Attorney Wharton County Courthouse 100 S. Fulton, Suite 100 Wharton, Texas 77488

Appellate Counsel:

Joshua W. McCown District Attorney

Wharton County Courthouse 100 S. Fulton, Suite 100 Wharton, Texas 77488

Robinson C. Ramsey

745 E. Mulberry, Suite 900 San Antonio, Texas 78212

Trial Judge:

Hon. Randy Clapp, 329th Judicial District Court Wharton Court Courthouse

100 Milam

Wharton, Texas 77488

1

TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL 1

INDEX OF AUTHORITIES v-vi

STATEMENT OF THE CASE vii

STATEMENT REGARDING ORAL ARGUMENT vii

ISSUES PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. V111

ISSUE ONE: DEADLY WEAPON. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. viii

The evidence is sufficient to support Pigott's dual convictions for evading arrest and using her motor vehicle as a deadly weapon.

ISSUE Two: ATTACKS ON PROSECUTOR

Vl11

Pigott's convictions were not the result of prosecutorial vindictiveness, but rather of own violations of the law by speeding, then twice evading the arresting officers.

A. Pigott waived her prosecutorial retaliation complaint by not urging it until after her conviction.

B.

The prosecutor's closing argument 'that he was determined to obtain a conviction did not express an intent to retaliate, but rather reflected a proper plea for law enforcement to set a community standard that would not tolerate the kind of conduct that Pigott had engaged Ill.

I"

C. Determination to obtain a conviction is not inconsistent with seeking justice, especially when, as here, the conviction is warranted.

D. If the prosecutor had been motivated by vindictiveness, he would not have offered Pigott a plea bargain (which she rejected) nor would he have declined to make a punishment recommendation.

11

ISSUE THREE: "DISABILITY" CLAIMS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. IX

Pigott's convictions did not result from any alleged disability, but rather from her own actions in violating the law.

A. The jury, as the exclusive factfmder, was entitled to disbelieve Pigott's claims that her alleged mental disability excused her criminal conduct.

B. The Americans with Disabilities Act does not include any provision requiring the prosecution to allow a defendant to dictate the subject-matter or scope of crossexamination.

C. The trial court accommodated Pigott's alleged "disability" request to refer to her summary statement as she testified.

D. Having elected to waive her constitutional right not to testify, Pigott is not entitled to complain that she does not like the results of her testimony.

E. Pigott's claim that she was harmed by her own testimony is belied by the jury's acquitting her of the most serious charge and the judge's assessing the minimum sentence.

ISSUE FOUR: FINAL ARGUMENT IX

The prosecutor's fmal argument reminding the jury of the arrogance that Pigott had displayed in her testimony was a proper summation of the evidence and a reasonable deduction therefrom.

STATEMENTOFFACTS 1

SUMMARY OF TIIE ARGUMENT 9

111

ARGUMENT 11

DEADLY WEAPON .

The evidence is sufficient to support Pigott's dual convictions for evading motor vehicle by use of a deadly weapon.

ATTACKSONPROSECUTOR 16

Pigott's convictions were not the result ofprosecutorial vindictiveness, but rather of her violating the law.

"DISABILITY" CLAIMS .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Pigott's convictions did not result from any alleged disability, but rather from her own actions in violating the law.

FINAL ARGUMENT 29

The prosecutor's final argument reminding the jury of Pigott's arrogance was a proper summation of and reasonable deduction from the evidence.

PRAYER 30

CERTIFICATE OF SERVICE 31

IV

INDEX OF AUTHORITIES

Cases:

Bignall v. State, 887 S.W.2d 21 (Tex. Crim. App. 1994) 18,22

Brooks v.State, 323 S.W.3d 893 (Tex. Crim. App. 2010) 12

Brown v. State, 270 S.W.3d 564 (Tex. Crim. App. 2008),

cert. denied, 129 S. Ct. 2075, (2009) 18

Castleberry v. State, 704 S.W.2d 21 (Tex. Crim. App. 1984) 19

Cockrell v. State, 933 S.W.2d 73 (Tex. Crim. App. 1996) 30

Curry v. State, 30 S.W.3d 394 (Tex. Crim. App. 2000) 12

Dinkins v. State, 894 S.W.2d 330 (Tex. Crim. App. 1995) 25

Ex parte McKithan, 838 S.W.2d 560 (Tex. Crim. App. 1992) 13

Gonzales v. State, No. 13-09-00287-CR (Tex. App.-Corpus Christi

Dec. 15,2010, no pet. h.) (not designated for publication) 12

Heidelberg v. State, 144 S.W.3d 535 (Tex. Crim.App. 2004) ~ 16

Jackson v. State, 17 S.W.3d 664 (Tex. Crim. App. 2000) 12, 30

Jackson v. Virginia, 443 U.S. 307 (1979) 9, 12, 15,22

Jones v. State, 984 S.W.2d 254 (Tex. Crim. App. 1998) 22

Lagrone v. State, 942 S.W.2d 602 (Tex. Crim. App. 1997) ~ 25

Laster v. State, 275 S.W.3d 512 (Tex. Crim. App. 2009) ~ 12, 22

Layton v. State, 280 S.W.3d 235 (Tex. Crim. App. 2009) 16,29

Lugo v. State, 732 S.W.2d 662 (Tex. App.-Corpus Christi 1987,

no pet.) 15

v

Neal v. State, 150 S.W.3d 169 (Tex. Crim. App. 2004) 17, 18

Penry v. State, 903 S.W.2d 715 (Tex. Crim. App. 1995) 15

Rocha v. State, 16 S.W.3d 1 (Tex. Crim. App. 2000) 26,27

Salazar v. Estelle, 547 F.2d 1226 (5th Cir. 1977) 19,20

State v. Thirty Thousand Six Hundred Sixty Dollars & noll 00,

136 S. W.3d 392 (Tex, App.-Corpus Christi 2004, pet. denied) 26

Tennessee v. Lane, 541 U.S. 509 (1978) 24

Tyra v. State, 897 S.W.2d 796 (Tex. Crim. App. 1995) 13

u s. v. Goodwin, 457 U.S. 368 (1982) 19

Rules:

TEx.R.APp.P.33.1 16,17,25,27-29

TEx. R APP.P. 38.1(i) 11, 15,24-27

TEx. R. APP. P. 44.2 10, 11, 16,30

Statutes:

TEX. CODE CRIM. PROC. art. 38.04 (West Supp. 2010) 12

TEx. PEN. CODE § 1.07 (West Supp. 2010) " 13

Vl

STATEMENT OF THE CASE

This is a criminal case in which a jury acquitted Appellant Shirley Pigott of aggravated assault, but convicted her on two counts of evading arrest, for which the trial court assessed the minimum sentence of two years in prison. 5 RR 5; 7 RR 17.

STATEMENT REGARDING ORAL ARGUMENT

The State does not believe that oral argument would materially aid this Court in reaching its decision. Therefore, the State waives oral argument.

Vll

ISSUES PRESENTED

ISSUE ONE: DEADLY WEAPON (Germane to Appellant's Issues 7, 8, and 9)

The evidence is sufficient to support Pigott's dual convictions for evading arrest and using her motor vehicle as a deadly weapon.

ISSUE Two: ATTACKS ON PROSECUTOR (Germane to Appellant's Issues 1, 2, 3, and 7)

Pigott's convictions were not the result of prosecutorial vindictiveness, but rather of own violations of the law by speeding, then twice evading the arresting officers.

A. Pigott waived her prosecutorial retaliation complaint by not urging it until after her conviction.

B. The prosecutor's closing argument that he was determined to obtain a conviction did not express an intent to retaliate, but rather reflected a proper plea for law enforcement to set a community standard that would not tolerate the kind of conduct that Pigott had engaged Ill.

c. Determination to obtain a conviction is not inconsistent with seeking justice, especially when, as _here, the conviction is warranted.

D. If the prosecutor had been motivated by vindictiveness, he would not have offered Pigott a plea bargain (which she rejected) nor would he have declined to make a punishment recommendation.

V111

ISSUE THREE: "DISABILITY" CLAIMS (Germane to Appellant's Issues 1,3,5,6, and 7)

Pigott's convictions did not result from any alleged disability, but rather from her own actions in violating the law.

A. The jury, as the exclusive factfinder, was entitled to disbelieve Pigott's claims that her alleged mental disability excused her criminal conduct.

B. The Americans with Disabilities Act does not include any provision requiring the prosecution to allow a defendant to dictate the subject-matter or scope of crossexamination.

C. The trial court accommodated Pigott's alleged "disability" request to refer to her summary statement as she testified.

D. Having elected to waive her constitutional right not to testify, Pigott is not entitled to complain that she does not like the results of her testimony.

E. Pigott's claim that she was harmed by her own testimony is belied by the jury's acquitting her of the most serious charge and the judge's assessing the minimum sentence.

ISSUE FOUR: FINAL ARGUMENT (Germane to Appellant's Issue 4)

The prosecutor's final argument reminding the jury of the arrogance that Pigott had displayed in her testimony was a proper summation of the evidence and a reasonable deduction therefrom.

IX

STATEMENT OF FACTS

When Trooper Alfred Ochoa Jr. stopped Shirley Pigott for a summer evening speeding violation, all he intended to do was write her a warning ticket-until she fled from him. 3 RR 32-33, 35-39,54-55.

Twice. 3 RR 61-67.

The highway speed limit was 65 miles per hour, but Ochoa's radar clocked Pigott at 74. 3 RR 29, 36~ So did her own speedometer, which she had locked in on cruise control. 4 RR53.

Pigott admitted that she knew Ochoa was a law enforcement officer when he stopped her. SX 3; 3 RR 29. It was easy to tell: he was driving a marked patrol unit "with lights, sirens, stickers, Texas Department of Public Safety State Trooper on the side, all of that." 3 RR 38. He was also wearing the standard issue DPS uniform, with short sleeves, which he explained that every trooper wears in the summertime "unless they have tattoos or something like that." 3 RR 39 .

. She did not believe that Ochoa was out to harm her either. 4 RR 125. Nevertheless, she refused to cooperate with him after he stopped her for a speeding violation to which she admitted. 3 RR 52, 55, 56, 59, 69.

The jury was able to view this encounter because Ochoa's patrol car was equipped with a video camera, which automatically activated when he turned on his overhead light and made a visual and audio recording of the encounter, which turned out to be far from routine.

3RR40.

He came up as closely as he could behind Piggot's silver Prius "to run a 28," trooper lingo for a driver's license check. 3 RR 50.

"[J]ust in case something occurs, I get shot, something happens," he explained, "communication will have the license plate; and they'll be able to tell other cars ... what the license plate is." 3 RR 50-51.

Another reason he routinely followed cars closely before stopping them was "to be able to see what's going on in the vehicle" in case "[t]hey're reaching around, hiding something, or they're going to grab something that's going to harm me." 3 RR 51.

Pigott herself was doing a lot of reaching around inside her car as Ochoa approached on foot. 3 RR 55. This increased the concern that had seeped into his assessment of the situation as a result of her disobeying his loudspeaker instructions and pulling over to the left side of the road, rather than the right. 3·RR 52.

Her refusal to lower her window to talk to him made him even more leery, as he strained to hear what she said, and raised his voice to try to make sure she heard him through the tightly rolled-up windows. 3 RR 55.

Although he had difficulty hearing everything Pigott said through the closed window, he could see her moving, and that there was "all kind of shuffling going on." 3 RR 55, 56. This caused his caution level to elevate because he had "no idea what's going on in the vehicle." 3 RR 55.

"It's not a regular traffic stop anymore," he said. "I'm worried about safety." 3 RR 52.

2

In a regular traffic stop, motorists cooperate by pulling over as directed, rolling down their windows, and showing their ill's. None of that happened here. 3 RR 52, 55, 69.

"I don't know where they're getting that she ... was showing me her driver's license and telling me to show my identification," he said. "I don't know where they got that from."

3 RR 55.

What he did know was that this was no normal stop because Piggot "was not doing the things that a normal person would do at that point." 3 RR 55, 87.

That was why he feared for his safety. 3 RR 55.

"I'm just trying to make sure that there's nothing that's going to harm me that she's reaching for or anything like that," he explained. "And I'm trying to ask her to roll down the window and just be cautious at the same time without overreacting. Because, I mean, it's a split-second decision. If somebody draws a gun on you, that's a split second." 3 RR 55-56.

That was why he was trying to see her hands: because "that's what's going to hurt you, whatever they got in their hand. If they got a gun, knife, something is going to hurt you. And so I'm looking for her hands, and I can't-I mean, she's got them shuffling around. She's got so much stuff in the car." 3 RR 56.

The fact that he was dealing with a woman rather than a man did not lessen his apprehension. 3 RR 57.

"[A]n older lady can harm you just as well as a 25-year-old male," he explained.

"Anybody can pull a trigger or stab you." 3 RR 57.

3

As a precaution against the potential danger that the situation presented, Ochoa contacted his sergeant, Daniel Terronez, to assist him. 3 RR 59.

By the time Terronez arrived, though, Pigott had fled the scene of the initial stop and was back on the highway, this time traveling in the righthand lane. Terronez eventually pulled even with her in the Iefthand lane, where he remained until Pigott slowed down and stopped on the shoulder. 3 RR 68.

"In no way did he force her off the road," Ochoa contradicted Pigott's claim. 3 RR 68. The state-issued vehicle that Terronez was driving was unmarked, but he was in full uniform. 3 RR 152-53.

"I was in short sleeves," he said, "being that time of year." 3 RR 152. He must not have had any tattoos. 3 RR 39.

Terronez made eye contact with Pigott, who "started honking her hom and waving at me, like, to pull over, making gestures for me to pull over." 3 RR 153.

He did. 3 RR 153.

After Pigott slowed down and moved to the right shoulder, he followed her and parked in front of her to the left. 3 RR 153.

"Now," the prosecutor asked, "what level of cooperation, if any, did you receive from the defendant?" 3 RR 155.

"None at all," Terronez told him. "She was uncooperative, blowing the hom, would not exit the vehicle, would not even talk to us, would not answer to any of our commands, anything like that." 3 RR 159-60.

4

She would not roll down her window either, or even crack it slightly. 3 RR. "At that time I'm thinking in my mind we're going to have to knock a because at some point we're going to have to stop again," Terronez recalled. "Either going to run out of gas or we're going to try to set up spikes. It was my decision at to try to knock the glass out so if we did get her stopped, we could extract her vehicle." 3 RR 167.

After she refused to respond to his warning that if she did not open the would have to break a window to get in, Terronez finally began hitting the glass flashlight. 3 RR 171. Before he could complete his task, though, Pigott fled a forcing Ochoa out of the way and almost causing a crash with an I8-wheeler as out. 3 RR 61, 64-65; 4 RR 86-87.

"[W]hat's going through your mind at this point?" the prosecutor asked Ochoa

64.

"Oh, my God," he exclaimed. "She's going to cause a crash, and she's some innocent people and herself and possibly me or my sergeant." 3 RR 64.

"So at this point, when the. defendant is pulling her vehicle, edging out Highway 59 from the righthand shoulder, you're standing in front of her car. What do you have?" 3 RR 65.

"The only options I had was move out of the way or get pushed into traffic over, or not move out of the way and she's going to run me over," he answered. "That '3 .

3RR65.

5

"So, based on the threat of that, what choice did you have?" 3 RR 65-66. "I had to get out of the way so I didn't get killed or injured." 3 RR 66.

As she was pulling out, he yelled after her, "Ma'am, there is an 18-wheeler coming ... it's dangerous." He also warned Terronez to "watch it" because of the oncoming truck.

3 RR 66-67.

Terronez was concerned for Ochoa's safety as well. 3 RR 166.

"Could this incident have caused bodily injury to Trooper Ochoa as it occurred?" the prosecutor asked. 3 RR 166.

"Yes, sir, it could," Ochoa replied. "It had a potential for him to be seriously injured."

3 RR 166.

I-

"In your career have you seen officers injured in similar circumstances?" 3 RR 166. "Yes, sir. I've actually seen them killed also." 3 RR 166.

"Now, at this point had you determined the defendant to be a threat to the safety of

your officers and others?" 3 RR 166-67.

"Yes, sir, I did. 3 RR 167. It got worse. 3 RR 61.

During the second pursuit, Pigott's car reached a speed of overlOO miles per hour, slowing down only after she and the 18-wheeler nearly crashed into each other. 3 RR 61; 4 RR86-87.

Terronez estimated that her speed was over 105 miles per hour because he was traveling that fast trying to catch her "and she was leaving me." 3 RR 169.

6

Pigott herself admitted that she had been traveling over 100 miles per hour for over a minute and a half. 4 RR 86-87.

"And then I slowed back just a tiny amount and looked at the speedometer, and was a hundred and seven miles an hour," she said. "And I thought, my God, I'd better slow down." 4 RR 87.

Terronez thought so too. 3 RR 166-67.

"Now, operating that vehicle at that rate of speed with those then-existing traffic an and weather conditions," the prosecutor inquired, "does that present a risk of bodily injury or death to others?" 3 RR169.

"Yes, sir, it does," Terronez confirmed. "She could have had a blowout. Untrained at driving at high speeds, she could have lost control of car .... Just a realm of safety issues." 3 RR 169.

Those issues included a near-fatal collision with the I8-wheeler before she fmally slowed down and stopped a few miles down the highway when she saw that there were five law enforcement vehicles parked perpendicular to the highway. 3 RR 62, 66; 486-87,89-90.

The excuse she gave for having twice fled was that she wanted to find a well-lit place because she was fearful. 4 RR 90. But she had already admitted that she knew both Ochoa and Terronez were law enforcement officers and that they were not trying to harm her. 4 RR 94, 125. Therefore, the prosecutor was skeptical of Pigott's story. 3 RR 61-62.

"Now, are there any locations that are well-lit public places," he asked Ochoa, ''where she could have pulled off for assistance, if that' s really what she wanted, along that route you

7

were traveling?" 3 RR 61-62.

"Yes," he replied. "There [ are] several locations, starting with the City of El Campo, just south of here. The EI Campo Truck Stop is a well-lit area, open 24 hours. She was across from the DPS station ... just south of the Precinct 4 Bam, the airport at Wharton, Junior's Smokehouse. She could have [taken] the Wharton exit. Plenty of places in Wharton. There [are] several places she could have stopped." 3 RR 62.

But she did not. 3 RR 68; 4 RR 90.

Another excuse she gave for her behavior came through the testimony of Matthew Bram, her treating psychiatrist, who said that she suffered from bipolar, attention-deficit, and post-traumatic-stress disorders. 4 RR 20-22. According to him, these conditions can make sufferers oversensitive to their environment, causing them to "perceive fear even when [they] may not [have any] reason to be fearful." 4 RR 20. Furthermore, this fear "is heightened by many magnitudes," putting the brain "on hyper-altert status" so that a "startled response becomes more intense." 4 RR 20.

"The only really medically probable reason that someone would act like this," said Bram, "is they have an extreme anxiety attack due to post-traumatic stress disorder." 4 RR

22.

But Pigott admitted that she herselfhad acknowledged another reason: "intense anger can cause mood destabilization" in a person diagnosed with a bipolar disorder. 4 RR 119.

Furthermore, she had offered the testimony of another psychiatrist, Safaa Hakim, in another hearing in an unrelated matter to state that Pigott had never been impaired. 4 RR

8

108-09.

"My life is complex," she told the prosecutor. 4 RR 114. "It is for us all," he rejoined. 4 RR 114.

But the verdict was not. Although the jury did not convict Pigott of aggravated assault on an officer with a deadly weapon, they found her guilty on both counts of evading arrest and doing it in a deadly manner. 5 RR 5. She waived ajury on punishment, and the judge assessed the minimum sentence: two years in prison. 7 RR 17.

SUMMARY OF THE ARGUMENT

Deadly Weapon. "Evading arrest. Pretty simple," the prosecutor put it. "She knew the police were trying to stop her; she ran away; she used a car." 4 RR 163. And she used it in a deadly manner, placing an officer, herself, and other drivers in danger of death or serious bodily injury. 3 RR 61, 65-67; 4 RR 86-87. The evidence, when considered under the proper legal sufficiency standard of viewing it in the light most favorable to the judgment, rather than (as Pigott presents it) in the light most favorable to the defendant, provides ample support for her convictions. Jackson v. Virginia, 443 U.S. 307, 318-19

(1979).

Attacks on Prosecutor. Although Pigott complains of prosecutorial retaliation, she did not present this complaint to the trial court until after her conviction, which was untimely . and, therefore, did not preserve any alleged error for review. 10 RR 1-6. Furthermore, she was acquitted of the only charge that she claimed was the result of prosecutorial

9

vindictiveness. Therefore, she suffered no harm or deprivation of any substantial right. 5 RR 5; CR 142-47. TEX. R. APP. P. 44.2.

A prosecutor's expressed determination to obtain a conviction does not equate to prosecutorial vindictiveness. A conscientious prosecutor should be determined to do his best, particularly if, as here, a conviction would be just.

If the prosecutor had been motivated solely by vindictiveness, he would not have offered Pigott a plea bargain (which she rejected) nor would he have declined to make a punishment recommendation. CR 172; 7 RR 17. By not seeking a higher sentence, the prosecutor increased Pigott's chances of receiving a lower-end punishment-in fact, that is what happened: the trial court assessed the minimum sentence. 7 RR 17.

Alleged Disability. The centerpiece of Pigott's defense was her argument that she suffered from the "disability" of several mental disorders. 4 RR 17-21. But the jury did not have to believe her testimony or that of her expert in determining whether her alleged "disability" excused her conduct. They also did not have to agree with his opinion that a normal 60-year-old woman would have been reasonable inreacting as Pigott did. 4 RR 16.

Although she invoked the Americans with Disabilities Act in support of her defense, the purpose of that act is to put impaired defendants on a level playing field, not to allow them to skew the justice system by dictating (as Pigott proposed) to the trial court and the prosecutor the subject-matter and scope of cross-examination in an effort to tilt the field in favor of the defendant.

10

The trial court accommodated all of Pigott' s reasonable requests, such as allowing her

to refer to a summary during her testimony, and permitting her to take a break to talk to her

attorney during cross examination. 4 RR 46, 122. The judge even allowed her attorney to

openly coach her during the time the prosecutor was cross-examining her. 4 RR 117, 119.

But her request to limit the prosecutor's cross-examination to topics of her choosing was not

reasonable-nor has she cited any authority that would support such a request. TEx. R. APP.

P.38.1(i).

Furthermore, regardless of how bad she may have come across as a witness, it did not

hurt her in the end: the jury acquitted her of the most serious charge and she received the

minimum punishment. 5 RR 5; 7 RR 17; TEX. R. APP. P. 44.2.

Final Argument. The prosecutor's final argument reminding the jury of the

arrogant manner in which Pigott had testified was a proper summation of the evidence, as

well as a reasonable deduction therefrom. 4 RR 162. And again, it is difficult for her to

claim harm when the jury found her not guilty of the most serious charge and the judge gave

her the minimum punishment on the other two. 5 RR 5; 7 RR 17.

ARGUMENT

DEADLY WEAPON

The evidence is sufficient to support Pigott's dual convictions for evading motor vehicle by use of a deadly weapon.

Pigott does deny that she is guilty of evading arrest. Her only complaint is that, in

doing so, she did not use her vehicle in a manner that qualified it as a "deadly weapon." She

couches her complaint in terms of legal as well as factual insufficiency. However, the Texas

11

Court of Criminal Appeals recently abandoned the factual-sufficiency standard of review in favor of a return to legal sufficiency as the sole standard of measuring evidence. Brooks v. State, 323 S.W.3d 893,894-95 (Tex. Crim. App. 2010). The Court did so because it could not find any meaningful distinction between these two standards, which "have become indistinguishable." Id. at 895, 902; see also Gonzales v. State, No. 13-09-00287-CR (Tex. App.-Corpus Christi Dec. 15, 2010, no pet. h.) (not designated for publication) ("[I]n light of the Texas Court of Criminal Appeals's recent Brooks v. State opinion, we construe factual sufficiency challenges as challenges to the legal sufficiency of the evidence.").

In a legal-sufficiency review, courts examine the evidence in the light most favorable to the verdict to determine whether "any rational fact finder could have found guilt beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 318-19 (1979) (emphasis in original). Under this standard, courts must view all of the evidence in the light most favorable to the verdict to determine whether a rational trier of fact could have found all of

. the essential elements of the crime beyond a reasonable doubt. Laster v. State, 275 S.W.3d 512,517 (Tex. Crim. App. 2009); see also Jackson v. State, 17 S.W.3d 664,669 (Tex. Crim. App. 2000) ("Although our evaluation considers all evidence presented at trial, we may not re-weigh the evidence and substitute our judgment for that of the jury.").

This standard requires reviewing courts to resolve any evidentiary inconsistencies in favor of the judgment, keeping in mind that the factfinder is the exclusive judge of the facts, the credibility of the witnesses, and the weight to give their testimony. TEx. CODE CRlM. PROC. art. 38.04 (West Supp. 2010); Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App.

12

2000). Pigott's highlighting the testimony she likes while glossing over the evidence that goes against her contravenes these principles.

A "deadly weapon" can be "anything that in the manner of its use or intended use is capable of causing death or serious bodily injury." TEX. PEN. CODE § 1.07(a)(17)(B) (West Supp. 2010); see also Tyra v. State, 897 S.W.2d 796, 799 (Tex. Crim. App. 1995) ("The statute expressly includes in the definition of deadly weapons those things which are capable of causing death in the manner of their. use, not just those things which are manifestly designed to cause death or which will cause death if used as intended."). "A motor vehicle, in the manner of its use or intended use, is clearly capable of causing death or serious bodily injury and therefore can be a deadly weapon." Ex parte McKithan, 838 S.W.2d 560, 561 (Tex. Crim. App. 1992).

In bold-font fashion, Pigott asserts that she did not use her vehicle in a deadly manner because "[n]o person was put in actual danger because of Appellant's use of her car." Appellant's Br. at 6, 7. Actually, there was lots of actual danger-to Ochoa as a pedestrian, as well as to Pigott herself and the drivers of other vehicles, such as the 18-wheeler with which she nearly fatally collided. 3 RR 64-66, 4 RR 86-87.

Pigott argues that, for her car to qualify as a deadly weapon, there must have been "actual danger to other persons, not just hypothetical risks." Appellant's Br. at 31. But the oncoming traffic that Officer Ochoa warned her about was real-not hypothetical. 4 RR 84, 87.

13

She pulled out anyway, then reached a speed of over 100 miles per hour, which she maintained for over a minute and a half. 4 RR 86-87.

"As soon as I got on the highway," she said, "barreling down at me was an 18- wheeler. And that scared the living daylights out of me. He turned and I turned, and he came within a few feet of killing me." 4 RR 86.

Or she came within a few feet of killing him. 4 RR 86.

"And I was petrified then," she continued. "I floored it then .... I was terrified." 4 RR

86.

Her terror was real because the danger was real-not hypothetical. 4 RR 86-87. Finally, she "slowed back just a tiny amount and looked at the speedometer, and was a hundred and seven miles an hour," at which point, she thought, "[M]y God, I'd better slow down." 4 RR 87.

That was after she had endangered herself and the truck driver, as well the other drivers who Ochoa had warned her were coming. 4 RR 64-66, 86-87, 169.

She placed Ochoa in danger too. When she pulled out, she forced him to "get out of the way so [he] didn't get killed or injured." 3 RR 66.

"The only options I had was move out of the way or get pushed into traffic and run over," he testified, "or not move out of the way and she's going to run me over." 3 RR 65.

The fact that he was able to escape unharmed does not lessen the danger Pigott put

him in.

14

Viewed under the proper legal-sufficiency standard, rather than Pigott's inverse application of that test, the evidence is abundantly sufficient to support her convictions. Jackson, 443 U.S. at 318-19.

As a fallback, Pigott asserts that the jury's verdict is ambiguous as to whether the "deadly weapon" fmding applied to count 1 or count 2 and that this alleged ambiguity creates an "uncertainty" that "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. '" Appellant's Br. at 32. But the only uncertainty lies in the manner in which Pigott has structured this argument. One thing is certain, though: she has not cited any authority in support of these claims. Appellant's Br. at 32-33. Therefore, she has waived them. See TEX. R. APP. P. 38.1(i) (requiring briefs to support arguments with appropriate authority); Penry v. State, 903 S.W.2d 715, 727 (Tex. Crim. App. 1995) (holding that failure to provide appropriate authority in support of an argument constitutes inadequate briefing and presents nothing for review). Another thing is also certain: she did not object to the jury charge-in fact, she affmnatively stated she had no objections; therefore, she cannot complain about it now. 4 RR 134; see Lugo v. State, 732 S.W.2d 662, 666 (Tex. App.-Corpus Christi 1987, no pet.) (holding that failure to object to a jury charge waives any alleged error).

15

ATTACKS ON PROSECUTOR

Pigott's convictions were not the result of prose cut oria I vindictiveness, but rather of her own violations of the law.

Pigott boldly proclaims (in substance and typeface) that the prosecutor said he

intended to retaliate against her "because Appellant, while acting as her own attorney, filed

motions claiming illegal conduct by the DPS officers." Appellant's Br. at 25. But she did not

present this complaint to the trial court until after her conviction. It was not until the hearing

on her motion for new trial that her attorney testified to these accusations. Appellant's Br.

at 25; 10 RR 2-4, 15-17. Therefore, Pigott has waived this complaint because she did not

present it in timely fashion. See TEX. R. APP. P. 33.1(a) (requiring that to preserve error for

appeal a party must make a timely objection, complaint, or request); Layton v. State, 280

S.W.3d 235,238-39 (Tex. Crim. App. 2009) ("In order to preserve an issue for appellate

review, a timely and specific objection is required.").

The only pretrial motion she made relating to alleged retaliation was her motion to

dismiss the aggravated assault count of the indictment, CR 142-46. But she was acquitted

of that charge. 5 RR 5. Therefore, she suffered no harm or deprivation of substantial rights

as a result of any alleged vindictiveness regarding the prosecution of that count. TEx. R. APP.

P.44.2. Furthermore, her requested relief on appeal (reversal of the judgment) does not

match her request at trial (dismissal of the indictment). CR 142-46; Appellant's Br. at 36.

Therefore, she has waived this complaint. See Heidelberg v. State, 144 S.W.3d 535, 537

16

(Tex. Crim. App. 2004) ("[I]t is well settled that the legal basis of a complaint raised on appeal cannot vary from that raised at trial.").

She did not claim that the initial charges of evading arrest were the result of prosecutorial retaliation until after she had been convicted, which was to late to preserve any alleged error. See TEX. R. APP. P. 33.1(a) (requiring a timely objection, motion, or request to preserve alleged error for appeal); Neal v. State, 150 S.W.3d 169, 176-77 (Tex. Crim. App. 2004) ("[A]ppellant had ample time and opportunity to include any pertinent legal claim of vindictiveness in his pretrial motions. Because appellant did not raise any prosecutorial vindictiveness claim at the pretrial hearing, that claim-based on events that occurred before trial and were known to appellant before trial-was untimely. "). Regardless, those charges had already been filed before the time that Pigott claims the prosecutor retaliated by filing an additional charge. CR 6, 142-46.

"The Texas Code of Criminal Procedure requires that, if a defendant seeks dismissal of an indictment as the remedy for his constitutional or statutory claim, the Rule 33.1 requirement of timeliness means that the claim generally must be raised and ruled upon before trial."). Neal, 150 S.W.3d at 176~77. Pigott made no such claim and obtained no such ruling regarding the filing of the original charges. CR 6. Instead, she waited until after her conviction to make her complaint, which not only lacked substantive merit, but also was also procedurally precluded. As the Court of Criminal Appeals pointed out in Neal:

17

A motion to set aside, dismiss, or quash an indictment should be made at the first opportunity, and must be presented to the trial court prior to an announcement by that party that it is ready for trial. ... It would make little sense to wait until after a trial is complete before complaining that the trial should never have taken place because the indictment was defective or should have been dismissed or quashed.

Neal, 150 S.W.3d at 177.

Even at the post-conviction hearing, the only evidence Pigott offered was her own

attorney's testimony, which the trial court, as the exclusive factfinder, was free to reject in

whole or in part for lack of credibility. Brown v. State, 270 S.W.3d 564, 568 (Tex. Crim.

App. 2008), cert. denied, 129 S. Ct. 2075, (2009) (holding that the factfinder is "the

exclusive judge of the credibility" of witnesses and the weight to give their testimony);

Bignall v. State, 887 S.W.2d 21, 24 (Tex. Crim. App. 1994) (holding that a trier of fact is

entitled to believe or disbelieve "all or part of the evidence admitted at trial."). As part of

that assessment, at her own attorney's request, the judge took judicial notice of the trial

proceedings, wherein that same attorney was forced to admit that he had made multiple

misstatements of fact to the jury. 4 RR 75, 80-81; 10 RR 6.

"I've been wrong before," he noted. 4 RR 75.

He certainly had been. 4 RR 35, 80-81. And the trial court was entitled to fmd that

he was wrong again when he recited his biased recollection of a conversation with the district

attorney. 10 RR 1-5.

Even ifhe had been right, the State's decision to go forward with prosecution-or

even to add a charge-after a defendant has rejected a plea bargain offer does not

18

· ,

demonstrate prosecutorialvindictiveness. See Castleberry v. State, 704 S.W.2d 21,25 (Tex. Crim. App. 1984) ("[I]t is constitutionally permissible for the prosecutor to exercise his discretion by 'punishing' a defendant who insists on asserting his right to trial in spite of concessions offered; indeed, it is the threat of this very sanction which supplies the strength ofthe prosecutor's bargaining position during negotiations. "); see also U. S. v. Goodwin, 457 U.S. 368, 380 (1982) ("Forjust as a prosecutor may forgo legitimate charges already brought in an effort to save the time and expense of trial, a prosecutor may file additional charges if an initial expectation that a defendant would plead guilty to lesser charges proves unfounded.").

If defendants like Pigott were allowed to reject plea-bargain offers, go to trial, then come back later crying "prosecutorial misconduct" after an on-second-thought assessment of their mistake, then convictions could be reversed on nothing more than plea-bargainer's remorse. That would certainly change the face of Texas criminal jurisprudence as courts and practitioners now know it. The plea-bargain process would collapse completely because prosecutors would be forced to stop offering plea bargains altogether for fear of being unfairly accused of vindictiveness if a defendant did not accept the offer and was later convicted.

In Salazar v. Estelle, the very case on which Pigott purports to rely, the court of appeals rejected the defendant's claim that he had been "deprived of due process oflaw, and punished for having exercised his right to a trial by jury" in retaliation for having turned down the prosecution's plea-bargain offer. 547 F.2d 1226, 1227-28 (5th Cir. 1977). Like

19

Pigott, the defendant there ''was found guilty by a jury and, after a separate punishment

proceeding" was sentenced to prison "well within the statutory limits." Id. Therefore, the

court found "no evidence of prosecutorial misconduct" and that the defendant's claims

"lack[ ed] merit." Id. at 1228.

If the prosecutor here was really as vindictive as Pigott claims, the State would not

have offered her a no-jail-time misdemeanor plea bargain (which she rejected), nor would

he have declined to make a punishment recommendation. CR 172; 7 RR 17. By not arguing

for a higher sentence, the prosecutor helped pave the way for the judge to impose the

\

minimum possible punishment, which is what Pigott received. 7 RR 17. But no good

punishment deed goes unchallenged on appeal, as demonstrated by Pigott's attacking the

prosecutor for making the following statement during his closing argument at the guilt-

innocence phase of the trial:

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 cause, 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. 4RR 157.

According to Pigott, this statement demonstrates that the prosecutor's intent was to

punish her "for what she put these officers through," rather than for breaking the law. But

by the time she had put them through a trial in which she (falsely) accused them of

wrongdoing (including everything from claimed violations of policy to allegations of

videotape tampering) the prosecution had already begun. Therefore, the prosecutor may very

20

well not have become "hell-bent" on a conviction until after Pigott had rejected the plea-

bargain offer in favor of making unfounded attacks on the officers at trial.

If the prosecutor had been intent on taking Pigott to trial for the sole purpose of

punishing her for any previous accusations against the officers, he would not have offered

her the no-jail-time misdemeanor plea bargain, which she rejected. CR 172. It was her own

determination to go to trial that got her there.

The only sense in which the prosecutor was "defending" the officers was to

demonstrate their credibility, which was critical to the State's case. It was Pigott's own

"hell-bent" desire for vindication-not the prosecutor's or the officers '-that led to the trial.

Besides, the concepts of "doing justice" and being determined to prosecute a crime

are not mutually exclusive. In fact, persistence and determination are virtues in a prosecutor,

just as they are ina defense attorney. The prosecutor here was "hell-bent" for the right

reason: to establish a community standard that will not tolerate drivers' evading officers who

are doing their duty. 4 RR 170.

The prosecutor was doing his duty too, and, as he told the jury, he was "hell-bent" on

doing it ''the right way." 4 RR 157-58.

"DISABILITY" CLAIMS

Pigott's convictions did not result from any alleged disability, but rather from her own actions in violating the law.

Pigott wanted the benefits of being able to testify on direct examination, but she did

not want to accept the downside of being subject to traditional cross examination. Instead,

21

she proposed that her own written summary of events be admitted into evidence and that the prosecutor be restricted from cross-examining her on any topics except the ones she dictated. Appellant's Br. at 15; 4 RR 46.

"The district attorney refused to agree to that request," Pigott complains. Appellant's Br. at 15.

The district attorney would also have refused to agree to a request for Pigott to participate in jury deliberations.

Her statement that she "argued that her disability would prevent her from functioning unless she knew ahead of time the issues on which she must give testimony" misses an important point: neither the judge nor the jury had to believe that claim. Appellant's Br. at 15; See Bignall v. State, 887 S.W.2d 21,24 (Tex. Crim. App. 1994) (holding that a trier of fact is entitled to believe or disbelieve "all or part of the evidence admitted at trial."). It also misses another obvious point: her request was unreasonable.

In continuing to claim that she had a disability that inhibited her in testifying (which she herself nevertheless elected to do), Pigott persists in her pattern of trying to reshape the legal-sufficiency standard by painting the facts in the light she perceives to be most favorable to her rather than in support of the judgment. Jackson, 443 U.S. at 318-19; Laster, 275 S.W.3d at 517.

For example, notwithstanding the assertions that she and her expert witness made regarding her alleged "disability," the judge and the jury were free to disbelieve all or any partofthistestimony. SeeJonesv. State, 984 S.W.2d254, 258 (Tex. Crim.App.1998)("[A] 22

a jury is permitted to believe or disbelieve any part of a witness' testimony, including a defendant."). Therefore, instead of accepting Pigott's theory, the judge and jury could very well have viewed it as a crock of the well-known article-especially when other evidence (such as a contrary expert opinion presented in anotherhearing and Pigott's own admission that she knew the officers were genuine and had a legitimate reason to stop her) conflicted with her "disability" claim. 4 RR 108-09, 111-12.

"It's for you to judge," Pigott's attorney told the jury. "It's for you to judge who's being honest here, and who is being dishonest in presenting the evidence in this case." 3 RR

19-20.

The jury made that judgment: guilty on two counts of evading arrest. 5 RR 5.

Even assuming solely for the sake of argument that Pigott did suffer from some type of testimonial impairment, the judge accommodated her by granting her request to refer to her notes. 4 RR 46. He also granted her attorney's request for a break, presumably for some witness coaching from her attorney. 4 RR 122. He even allowed her attorney to coach her during the State's cross examination. 4 RR 117, 119. Her own attorney told her that "[t]he judge is being very patient with you and very patient with me, and we're going to have to not push his patience here." 4 RR 117.

She complains that she wanted "equal treatment" to compensate for her alleged "disability." But she received equal treatment: like any other person, disabled or not, she had the right not to testify; she just chose not to exercise that right. What she really wanted was special treatment.

23

According to Pigott, the Americans with Disabilities Act requires "reasonable accommodations" for disabled defendants. Appellant's Br. at 21. The key word there is "reasonable." That Act may provide for accommodations such as wheelchair access for persons with physical disabilities, and translators for the hearing-impaired, but it does not authorize the restriction of the State's ability to cross examine a witness within the rules of evidence once that witness elects to testify-nor has Pigott cited any authority to support such a claim. See TEX. R. APP. P. 38.1(i) (requiring briefs to cite appropriate authority in support of arguments).

In Tennessee v. Lane, the case upon which Pigott relies, the defendants were wheelchair-bound paraplegics who were "compelled to appear to answer as set of criminal charges on the second floor of a county courthouse that had not elevator." 541 U.S. 509, 513 (1978). They were not trying to dictate to the trial court the manner in which the prosecution could cross-examine them. Id.

The "constitutional right to be heard" in defense of charges does not include the right to dodge cross-examination after choosing to testify. Appellant's Br. at 21. Stripped of all pretense and reduced to its essence, Pigott's position is this: she wants an opportunity to testify, but she wants to do it free from any cross examination that she deems to be detrimental to her case.

If she or her attorney felt that she would not do well on cross examination, she had the Fifth Amendment right not to testify. But having elected to waive that right, she cannot have

24

her cross examination and edit it too by reaping the benefit of giving her version of the events, then restricting the prosecutor's ability to test her credibility.

Pigott claims that her attorney "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." Appellant's Br. at 11. If so, he violated that agreement by introducing evidence of Pigott's alleged concerns stemming from her encounters with the Medical Board and making that one of the main points of her defense. 3 RR 11-13; 4 RR 20, 27. His complaint that the State's cross examination of Pigott "asked about things on which Appellant had not testified," is not only invalid, but also incorrect because this was one of the pillars of her defense. 3 RR 11-13; 4 RR 20,27. Therefore, she not only opened the door to this topic, she yelled "Come on in."

Pigott complains that the prosecutor "presented general, unclear questions asking for opinions." Appellant's Br. at 16. But she does not include any specific record citations demonstrating that she timely objected on this basis. Appellant's Br. at 16. Therefore, she has waived this complaint. See TEX.R. APP. P. 38.1(i) (requiring briefs to include appropriate record citations in support of arguments); see also TEX.R.APp.P. 33.1(a) (requiring a timely objection, motion, or request to preserve alleged error); Lagrone v. State, 942 S.W.2d 602, 618 (Tex. Crim. App. 1997) (holding that "[a]n objection should be made as soon as the ground for objection becomes apparent,"and that an untimely objection waives any alleged error); Dinkins v. State, 894 S.W.2d 330,355 (Tex. Crim. App. 1995) ("A defendant must make a timely objection in order to preserve an error in the admission of evidence.").

25

She surmises that "[t]he objective of the cross-examination appears to be to demonstrate to the jury that Appellant is arrogant and uncooperative." Appellant's Br. at 16-17. She was. 4 RR 17, 128. But that was not the object of the cross-examination; it was just one of the results that stemmed from responses such as "I'm no going to answer it" and "I'm sorry I have to teach you the law." 4 RR 117, 128.

Regardless, Pigott cites no authority in support of the proposition that exposing a witness as being arrogant, uncooperative, or incredible is improper. Therefore, she has waived this complaint too. TEXR. APP. P. 38.I(i); see also Rocha v. State, 16 S.W.3d 1,20 (Tex. Crim. App. 2000) ("An argument that fails to cite supporting authority presents nothing for review."); State v. Thirty Thousand Six Hundred Sixty Dollars & no/100, 136 S.W.3d 392,405 (Tex. App.-Corpus Christi 2004, pet. denied) ("Failure to cite authority in support of a point of error on appeal waives the complaint.").'

Pigott complains that the prosecutor "called the jury's attention to Appellant's posture and demeanor" by asking her "to lean forward." Appellant's Br. at 17. But he only did that in an effort to bring her closer to the microphone so that she could be heard. 4 RR 104. Even the judge had expressed difficulty in being able to hear witnesses (not just Pigott) testify. 4 RR 91. Furthermore, her attorney did not object to this questioning at that time-in fact, he himself instructed her "sit up to the microphone and be more willing to answer his questions." 4 RR 104, 105. Therefore, Pigott waived this complaint. See TEx. R. APP.

! All internal citations and quotations omitted unless otherwise noted.

26

33.1(A) ("[A] prerequisite to presenting a complaint for appellate review" is that "the complaint was made to the trial court by a timely request, objection, or motion"). Furthermore, she compounded that waiver by not citing any authority in support of her assertion. See TEx. R. APP. 38.1(i); Rocha, 16 S.W.3d at 20.

She also complains that the prosecutor asked her questions "about testimony from the [Texas Medical Board] hearing," which she claims were prohibited by a motion in limine. Appellant's Br. at 18. But it was only the fact that the hearing was before the Medical Board-not the substance of the testimony-that was the subject ofthe in limine discussion. 2 RR 6-7.

"Dr. Pigott had her medical license suspended" after than hearing, her attorney told the trial court. 2 RR 5.

"I don't think I want to get into that," the judge said. 2 RR 6.

"As close as I would get to touching that," the prosecutor responded, "is if the defendant chooses to testify, she's certainly made some statements during the course of that hearing which I believe will be relevant to this case. I don't intend to reference what type of hearing it was for that purpose." 2 RR 6.

"She's going to testify," her attorney committed at that point. "And are you telling me that you're going to raise issues about the Texas Medical Board hearing?" 2 RR 6.

"I'm going to raise statements she made during the course of that hearing ... " 2 RR

6.

27

"Are you going to do it without identifying it as a hearing before the Texas Medical Board?" 2 RR 6.

"[W]hat 1 would do is: 'Ma'am, in the course of a previous hearing in March, have you said 'X'?" 2 RR 6.

"That's fine," her attorney confirmed. 2 RR 7.

And that is all the prosecutor did-to which Piggot' s attorney did not object-in fact, he agreed. 2 RR 7. Therefore, having not timely objected to this testimony, Pigott has once again waived any complaint. TEx. R. APP. 33.1(a); see also Layton, 280 S.W.3d at 238-39 (holding that "to preserve an issue for appellate review, a timely and specific objection is required. ").

The only reason Pigott is complaining now is that in hindsight she does not like the way her testimony turned out. According to her, "[t]he 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." Appellant's Br. at 19.

That picture was accurate. 4 RR 117, 128. Furthermore, it was not just visual; her stated refusal to answer certain questions, as well as her telling the prosecutor that she knew more about the law than he did, confrrmed that her attitude was uncooperative and arrogant. 4 RR 117, 128.

"I appreciate it if you have some tips for me," he told her. 4 RR 128.

He could have probably given her some tips too, like "next time take the plea

bargain."

28

According to her attorney, her testimony "got so bad" that he "was forced to interrupt

cross examination by telling the Appellant, in front of the jury, that she looked as if she were

not being cooperative." Appellant's Br. at 19.

She looked that way because that is the way she was. Furthermore, her attorney was

not "forced," but instead chose, to try to coach her during cross examination-an improper

technique that the judge and the prosecutor nevertheless permitted him to employ. 4 RR 117,

119. Not only do these unobjected-to interruptions demonstrate that the prosecutor was

being tolerant-not vindictive-it shows that Pigott did not obj ect to this questioning (in fact,

her own attorney affrrmatively called attention to her uncooperativeness), which waived any

complaint. 4 RR 104-105; 10 RR 4; See TEX. R.MP. P. 33.1(a) (requiring a timely objection

to preserve an alleged error for appeal); Layton, 280 S.W.3d at 238-39 (holding that the

failure to make a timely and specific objection waives appellate review of an issue).

Regardless, Pigott has not demonstrated that her testimonial performance harmed her.

In fact, it very well may have helped, considering that the jury acquitted her of the most

serious charge, and the trial court assessed the minimum sentence. 5 RR 5; 7 RR 17.

FINAL ARGUMENT

The prosecutor's final argument reminding the jury of Pigott's arrogance was a proper summation of and reasonable deduction from the evidence.

Pigott further faults the prosecutor for referring to her arrogance during fmal

argument. Appellant's Br. at 30. But that was a reasonable deduction from the evidence,

particularly in view of her own attorney's pointing out the fact that even he admitted she

29

came across that way. 10 RR 4-5. See Jackson v. State, 17 S.W.3d 664, 673 (Tex. Crim. App. 2000) ("Proper jury argument includes four areas: (1) summation of the evidence presented at trial, (2) reasonable deduction drawn from that evidence, (3) answer to the opposing counsel's argument, or (4) a plea for law enforcement.").

She complains that there was no evidence that the reason for her arrogance and uncooperative attitude was that she was medical doctor. Appellant's Br. at 30. But that too is a reasonable deduction from the evidence. Furthermore, she did not object to this argument. 4 RR 162. Therefore, she has waived this complaint. See Cockrell v. State, 933 S.W.2d 73,89 (Tex. Crim. App. 1996) ("[A] defendant's failure to object to ajury argument or a defendant's failure to pursue to an adverse ruling his objection to a jury argument forfeits his right to complain about the argument on appeaL").

Regardless, the partial acquittal demonstrates that she suffered no harm or deprivation of substantial rights as a result of the complained-of-argument. TEx. R. APP. P. 44.2.

PRAYER

For these reasons, the State asks this Court to:

• affirm the trial court's judgment and sentence in all respects;

• deny all relief that Appellant has requested; and

• grant the State all other relief to which it is entitled.

30

Respectfully submitted,

ROBINSON C. RAMSEY State Bar No. 16523700 Trinity Plaza, Suite 900 745 E. Mulberry

San Antonio, Texas 78212 Telephone: (210) 736-6600 Telecopier: (210) 735-6889

JOSHUA W. McCOWN State Bar No. 13466400 GORDON DUDLEY

State Bar No. 24034423 Wharton County Courthouse 100 S. Fulton

Wharton, Texas 77488 Telephone: (409) 532-8051 Telecopier: (409) 532-8467

ATTORNEYS FOR THE STATE OF TEXAS

CERTIFICATE OF SERVICE

A true and correct copy of the foregoing document was deposited in an official depository of the United States Postal Service, in a postage-paid wrapper, properly addressed to the following:

Jerry S. Payne Attorney at Law

11505 Memorial Drive Houston, Texas 77024

on December 22,2010.

ROBINSON C. RAMSEY

W:\Ibclient\07514\0033\L0483358. WPD

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