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GROUNDS

FOR REVIEW 1. The decision misconstrues TRAP 33.1 by refusing to review Appellants claim of denial of due process by improper, incurable jury argument, done with the objective of inflaming and prejudicing the jury. (Appendix, A. Opinion, pgs. 20, 21) 2. The decision conflicts with applicable decisions of the Court of Criminal Appeals and the U.S. Supreme Court concerning the requirements to preserve for appeal improper, incurable argument by the prosecutor, done with the objective of inflaming and prejudicing the jury. 3. The decision misconstrues TRAP 38.1 by refusing to review Appellants claim of constitutional error caused by the prosecutors intentional misconduct for the objective of inflaming and prejudicing the jury. (Appendix, A, pgs. 15-17, 21) 4. The decision conflicts with applicable decisions of the Court of Criminal Appeals and the U.S. Supreme Court concerning claims of constitutional error. The decision ignores the claim of constitutional error by separating the components of the prosecutors intentional misconduct into separate events and analyzing each event separately, instead of reviewing the whole picture and evaluating whether each component is part of the prosecutors intentional effort to prejudice the jury against Appellant. (Appendix, A. Opinion of C.A, pgs. 15-22)
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ARGUMENT BASIS FOR APPEAL During closing argument the prosecutor intentionally inflamed and prejudiced the jury by arguing outside the Record that Appellant was not afraid on the highway, instead she was arrogant and uncooperative on the highway because she thinks she does not have to follow the rules since she is a doctor. The prosecutor 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). Intentional misconduct by the prosecution for the objective of prejudicing and/or inflaming the jury is a constitutional error. (Stahl v State, 749 S.W.2d 826 (Tx.Cr.App, 1988). When constitutional error occurs, there is a presumption of harm, requiring a new trial. (TRAP 44.2(a); Appellants Brief, pg. 34) The prosecutor admitted that he was vindictive toward Appellant; that his conduct was retaliation for Appellants accusations, made while she was defending herself pro se, that the prosecutor and the officers were illegally keeping her car. In the case of Rougeau v. State, 783 SW2d 651, 657 (Tx. Cr. App, En Banc, 1987) the court stated as follows:
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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. The due process concept of prosecutorial misconduct or vindictiveness holds that it is a due process violation of the most basic sort to punish a criminal defendant because he has done what the law plainly allows him to do, and that it is patently unconstitutional for a prosecutor to pursue a course of action with the objective of penalizing the defendant for relying on his legal rights in the processes of his case. (Salazar v. Estelle, 547 F2d 1226, (C.A.5 1977). APPELLANTS BRIEFS First Brief claims: that the prosecutors misconduct during final argument was intentional, for the objective of prejudicing the jury; that the series of acts by the prosecutor, prior to the final argument, show that the prosecutors intentional misconduct was retaliation for Appellants accusations, made while pro se, that the prosecutor and the officers were illegally keeping her car; that a review of the entire Record shows that the prosecutors misconduct resulted in a denial of fundamental fairness. (Appellants Brief, pgs., vii, 21-30, 33) Pages 31-33 of Appellants Brief argue insufficiency of evidence and ambiguity of verdict on the issue of Deadly Weapon. (Appellants Reply brief clarified and conceded that the Deadly Weapon verdict is not the basis for this appeal.)
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Reply Brief clarifies and condenses Appellants first brief by eliminating four Errors Presented, by eliminating sufficiency of evidence issues and by arguing the relevancy of the facts to the constitutional error. (Appendix B, Reply Brief) Condensed Errors Presented Errors Presented 1-4 and 7 were restated so as to clearly indicate that each component was involved in the prosecutors intentional effort to prejudice the jury. Errors Presented 5&6 (trial court allowing prosecutors cross-examination) were conceded. Errors Presented 8&9 (Deadly Weapon issues) were conceded.

Sufficiency of evidence is not the basis for this appeal either on the Deadly Weapon issue or on the Guilty Verdict issue. At the beginning of the trial Appellant stipulated that she failed to follow the rule allowing a police officer to undertake his investigation; that she drove off. Appellant presented the defense of necessity, claiming that her disability led to overwhelming fear; that the intense fear overcame her ability to handle the situation. Before the prosecutor began his cross-examination of Appellant, the primary issue for the jury was whether Appellant was afraid on the highway OR whether she was just arrogant and uncooperative. We do not know what the jurys verdict would have been had the prosecution not inflamed and prejudiced the jury. (Appendix B, pgs., 1-4, 17-18)

COURT OF APPEALS OPINION (Appendix A)


The opinion discusses: I. Background (pgs. 2-3); II. Deadly Weapon Findings (pgs. 3-15); III. Denial of Fair Trial and Due Process (pgs. 15-21); IV. Denial of Motion for Mistrial (pgs. 21-22) II. DEADLY WEAPON FINDINGS (Appendix A, pgs. 3-15) The court of appeals ignored the Reply Brief. A clear example is that the opinion focuses most of its analysis on the Deadly Weapon Findings, which Appellants brief clearly concedes. The only relevancy of the Deadly Weapon issue is set out in the Reply Brief. (Appendix B, pgs. 3-4, 17-18) As argued by Appellant, the jury verdict on Deadly Weapon after the 1st stop is relevant only as evidence of harm caused by the prosecutors intentional misconduct to prejudice the jury. III. DENIAL OF FAIR TRIAL AND DUE PROCESS (Appendix A, pgs. 1521) Prosecutors Improper Jury Argument (Appendix A, pgs. 20-21) Appellant argues that during closing argument the prosecutor intentionally inflamed and prejudiced the jury; that this intentional misconduct by the prosecutor is constitutional error, requiring a new trial. The court of appeals refused to consider the prejudicial effect of the prosecutors closing argument. Instead, the court concluded that Appellant waived the error by

failing to object to the argument. However, Appellant preserved the error for appeal The requirements for preserving improper jury argument for appeal are set out in the case of Young v. State, 137 SW3d 65 (Tex. Crim. App., En Banc, 2004). The decision in the Young case is applicable to the circumstances in this case. In Young this Court held that an objection to the argument is not required to preserve the error for appeal; that a motion for mistrial is sufficient to preserve the error if the prejudicial harm caused by the error cannot be cured by instructions to disregard. In this case the prejudicial effect of the prosecutors argument was not curable by instructions to the jury and Appellant timely moved for mistrial. Court of Appeals Erroneous Analysis on Preservation of Error The court of appeals cites the case of Threadgill v. State, 146 S.W.3d 654, 670 (Tex.Crim. App., 2004) as authority for summarily rejecting Appellants claim of improper jury argument. (Ct. Opinion, pg. 21) However, the Threadgill case is not relevant to this case. Threadgill v. State: In Threadgill the defendant did not object or file a motion for mistrial. He did not bring the error to the attention of the trial court as required by TRAP 33.1(a). The Threadgill court cited and quoted the case of Mathis v. State, 67 S.W.3d 918, 927 (Tex. Crim. App. 2002), stating that even if argument is such
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that it could not be cured by an instruction, defendant is required to object and request a mistrial. These holdings are consistent with TRAP 33.1(a), which requires that a party bring an error to the attention of the trial court by objection or motion in order to preserve the error for appeal. In this case, Appellant timely brought the error to the attention of the trial court by her motion for mistrial. Appellants Objections and Motions to Preserve Error During cross-examination of Appellant, the prosecutor began trying to leverage Appellants medical disability and make her seize up, to create an image of arrogance and uncooperativeness. Appellant made multiple objections to the prosecutors conduct, which were overruled. Then, during final argument, the prosecutor told the jury that Appellants arrogance and lack of cooperation during cross-examination is proof of her arrogance and uncooperativeness on the highway; that Appellant thinks that she does not have to follow the rules because she is a doctor. After this argument, grounds for mistrial became apparent. Appellant then moved for mistrial. (Appendix B, Reply Brief, pg. 6) Appellants Motion for Mistrial After the jury retired, Appellant moved for mistrial, based on the prosecutors misconduct during cross-examination and final argument. Due to time restrictions, Appellant obtained the trial courts consent to present an oral motion, which
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outlined the basis for the motion for mistrial, with the trial court taking notice of the Record for the specifics of the prosecutors conduct. The outline included (a) misconduct during cross-examination by leveraging Appellants disability to make Appellant appear arrogant and uncooperative and (b) the final argument claiming that Appellant is an arrogant, uncooperative doctor, while referring to his crossexamination to prejudice the jury. The trial court was fully aware of the basis for Appellants oral motion for mistrial. The trial court overruled the motion. Appellant later filed her written motion for mistrial, which included detailed specifics of the prosecutors intentional misconduct, previously outlined in the oral motion. (Ct. Rep. R, Vol. 5, pgs. 1-4)(Appellants Brief, pgs.16-19) Appellants Motion for New Trial After the trial court entered a Judgment of Conviction, Appellant filed her motion for new trial, which again set out the basis for the motion. The trial court held a hearing on Appellants motion for new trial, wherein evidence was heard in support of the MNT. The trial court overruled the MNT on 3/26/10. (Appellants Brief, pg. 20) Error Not Curable by Instructions The prosecutors intentional effort to prejudice the jury during final argument could not be cured by instructions from the trial court. Since the crucial jury issue was whether Appellant was arrogant and uncooperative on the highway OR
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afraid on the highway, the prosecutors argument that Appellants appearance of arrogance and uncooperativeness during cross-examination is proof that she was arrogant and uncooperative on the highway and that she thinks she does not have to follow the rules because she is a doctor, clearly was not curable by instructions to the jury. Vindictiveness and Improper Cross-Examination (Appendix A, pgs. 15-20) The court of appeals, after evaluating each of these components separately, concluded that Appellants brief presented nothing for review, due to inadequate argument. The court cites TRAP 38.1(i) and Busby v. State, 253 S.W.3d 661, 673 (Tex. Crim. App. 2008). Neither TRAP 38 nor the Busby case supports the court of appeals conclusion. It is clear that the issues that the court of appeals finds inadequately argued are not the issues presented by Appellant. The issues that the court concludes are not properly argued are the separate components carved out by the Court. Appellants brief cites numerous authorities holding that a combination of acts by the prosecution that function together can have a synergistic effect in prejudicing the jury; that such a combination requires an examination of the entire picture, rather than an examination of each component separately; that the synergistic effect of a jury argument improperly referring to the prosecutors crossexamination can create constitutional error. These authorities include cases similar
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to this case, where the prosecution improperly orchestrated outbursts from a witness during trial, followed by the prosecutor referring to the outburst in final argument to prejudice the jury against the defendant. (Appendix B, pgs.11-15)

The court of appeals ignored the Reply Brief and failed to respond or even acknowledge Appellants argument or authorities. The court ignored the authorities requiring an examination of the entire picture of the prosecutors strategy; separated the components into separate events and concluded that Appellants argument presented nothing for review.

The court of appeals decision conflicts with decisions of this Court and the Texas Supreme Court in construing TRAP 38. Under Rules 38.1(i) and 38.9 substantial compliance is the requirement. If the appellate court is able to locate the pertinent portions of the brief relating to appellants claimed error, the error should be reviewed. (Bufkin v. State, 179 S.W.3d 166, 173-74, 14th C.A. (2005), affirmed 207 S.W.3d 779, Tx.Ct.Cr.App. (2006). In Republic Underwriters v. Mex-Tex, Inc., 150 S.W.3d 423, 427, Tex (2004), while interpreting the argument and authorities requirements under TRAP 38.1, the Texas Supreme Court stated:

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We have instructed the courts of appeals to construe the Rules of Appellate Procedure reasonable, yet liberally, so that the right to appeal is not lost by imposing requirements not absolutely necessary to effect the purpose of a rule In Verburgt v. Dorner, 959 S.W.2d 615, 616-17, Tex (1997), the court stated: appellate courts should not dismiss an appeal for a procedural defect whenever any arguable interpretation of the Rules of Appellate Procedure would preserve the appealWe decline to elevate form over substance.

The court of appeals erroneously relied on Busby v. state. Busby has no relevancy to this case. The error claimed by the appellant in Busby was not a constitutional error and was not briefed at all. The brief did not include issues, facts and arguments with appropriate citations to authorities and to the record. (Busby, pg. 673) Prosecutors Vindictiveness: The following facts support the conclusion that the prosecutor was vindictive toward Appellant throughout the entire proceeding; that the prosecutor intentionally inflamed and prejudiced the jury in cross-examination and final argument. The Record shows the following: 1. The prosecutor obtained a 2nd indictment, adding a 1st degree felony (aggravated assault with a deadly weapon, against a public servant) almost a year after the event on the highway. The 2nd indictment was filed in response to and right after Appellant, while acting as her own attorney, filed motions alleging illegal conduct
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by the prosecutor and the officers in confiscating her car. (Appellants Brief, pgs. 9-10) 2. The prosecutor admitted his vindictive motivation toward Appellant. (Appellants Brief, pgs. 10-11) 3. During the hearing on MNT, the prosecutor refused to deny that he confessed his vindictiveness toward Appellant, caused by Appellants accusations that the prosecutor and the officer were illegally keeping her car. (Appendix B, pgs. 9-10) 4. After hearing testimony from Appellants doctor that her medical disability causes her to seize up under pressure, leveraging Appellants disability to make her appear arrogant and uncooperative during cross-examination. 5. Admitting being hell bent on a conviction as opposed to see that justice is done, in final argument. 6. Intentionally inflaming and prejudicing the jury by arguing that Appellants arrogance and uncooperativeness in cross-examination is proof of her arrogance and uncooperativeness on the highway; that Appellant thinks she does not have to follow the rules, because she is a doctor. (Appendix B, pgs. 7-10)

The evidence set out above shows vindictiveness by the prosecutor toward Appellant. This series of events is compelling evidence that the prosecutors

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conduct, during cross-examination and during closing argument, was intentional, for the purpose of inflaming and prejudicing the jury against Appellant.

IV. DENIAL OF MOTION FOR MISTRIAL (Appendix A, pgs. 21-22) Appellants briefs argue that the trial court erred in denying her motion for mistrial and her motion for new trial, which are based on the prosecutors intentional misconduct in inflaming and prejudicing the jury during closing argument; that the prosecutors conduct was, admittedly, vindictive throughout the entire proceedings; that the intentional misconduct constitutes constitutional error.

The court of appeals refused to review Appellants claim that the trial court erred in denying the motions for mistrial and for new trial because Appellant did not repeat her arguments in the Argument and Authorities section of her brief.

The court of appeals says although Appellant listed her position in the Errors Presented section of her brief and.in the Summary of Argument section. the issue is not addressed.in the Argument and Authorities section of the brief. Accordingly, appellants has presented nothing for review. See Tex. R. App. p. 38.1(i); Busby.... This decision conflicts with decisions of this Court and the Texas Supreme Court.
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In Verburgt v. Dorner, 959 S.W.2d 615, 616-17, Tex (1997), the court stated: appellate courts should not dismiss an appeal for a procedural defect whenever any arguable interpretation of the Rules of Appellate Procedure would preserve the appealWe decline to elevate form over substance. PRAYER FOR RELIEF Appellant prays that this Court set aside the conviction because of the prosecutor intentional conduct inflaming and prejudicing the jury. The prosecutors misconduct is constitutional error, which requires a new trial. In the alternative, Appellant prays that this Court remand the case to the court of appeals with instructions that Appellant preserved the prosecutors closing argument for appeal by presenting her motion for mistrial; that Appellants brief s are in substantial compliance with TRAP 38.1(i).

Respectfully Submitted,

Jerry S. Payne S.B.No. 15658000 11505 Memorial Dr. Houston, Texas 77024 713-785-0677 Fax-713-781-8547 CERTIFICATE OF SERVICE I certify that I served the attorney for the State by electronic means and by mail on 12/14/11. _____________ Jerry S. Payne
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APPENDIX

A. COURT OF APPEALS OPINION B. REPLY BRIEF

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