Narjes Modarresi v. State

ACCEPTED
14-14-00427-CR
FOURTEENTH COURT OF APPEALS
HOUSTON, TEXAS
4/9/2015 9:37:11 AM
CHRISTOPHER PRINE
CLERK
No. 14-14-00427-CR
In the FILED IN
14th COURT OF APPEALS
HOUSTON, TEXAS
Court of Appeals
4/9/2015 9:37:11 AM
For the CHRISTOPHER A. PRINE
Clerk
Fourteenth District of Texas
At Houston
_______________________________________________________________
Trial Court Cause No. 1260243
In the 339th District Court
of Harris County, Texas
_______________________________________________________________
NARJES MODARRESI,
Appellant
v.
THE STATE OF TEXAS,
Appellee
_________________________________________________________________
APPELLANT'S BRIEF
_________________________________________________________________
VIVIAN R. KING
State Bar No. 00784399
2202 Alabama Street
Houston, Texas 77004
Tel.: (713) 222-2019
Fax: (877) 753-6706
Appointed Attorney for Appellant
ORAL ARGUMENT WAIVED
STATEMENT REGARDING ORAL ARGUMENT
Pursuant to Tex.R.App.P. 39.1 and 39.7, Appellant waives oral argument
herein since argument would not significantly aid the court in determining the legal
and factual issues presented in the appeal.
NAMES OF ALL PARTIES TO TRIAL COURT'S FINAL JUDGMENT
Pursuant to Tex.R.App.P. 38.1(a) a complete list of the names of all
interested parties is provided below.
Appellant:
NARJES MODARRESI
Counsel for Appellant on Appeal:
VIVIAN R. KING
SBN: 00784399
2202 Alabama Street
Houston, TX 77004
(713) 222-2019 Telephone
(877) 753-6706 Fax
Counsel for Appellant at Trial:
GEORGE PARNHAM
SBN: 1553200
DEE McWILLIAMS
SBN: 24009361
440 Louisiana St., Suite 200
Houston, Texas 77002
Telephone: (713) 224-3967
Counsel for the State:
DEVON ANDERSON, District Attorney of Harris County, Texas
DONNA LOGAN, Assistant District Attorney at trial
Address for the above listed State's attorneys:
HARRIS COUNTY DISTRICT ATTORNEY’S OFFICE
1201 Franklin, 6th Floor
Houston, Texas 77002
713-755-5800
Trial Judge: THE HONORABLE MARIA JACKSON, Judge Presiding
i
TABLE OF CONTENTS Page
STATEMENT REGARDING ORAL ARGUMENT……………………….. i
NAMES OF PARTIES AT TRIAL COURT'S FINAL JUDGMENT………. i
INDEX OF AUTHORITIES………………………………………………… iv-v
STATEMENT OF THE CASE………………………………………………. 1
ISSUES PRESENTED……………………………………………………… 2-3
I: THE TRIAL COURT ERRED BY DENYING APPELLANT’S
MOTION TO DECLARE TEXAS PENAL CODE 12.31(a) and
19.03(a)(8) STATUTES AS UNCONSTITUTIONAL AS
CRUEL AND UNUSUAL PUNISHMENT PROHIBITED BY
THE EIGHT AMENDMENT OF THE UNITED STATES
CONSTITUTION AND Art. 1 § 13 of THE TEXAS
CONSTITUTION AS APPLIED TO THIS DEFENDANT
WHO WAS SUFFERING FROM MENTAL ILL WHEN
INCIDENT OCCURRED…………………………………………………… 23
II. THE TRIAL COURT ERRED BY DENYING APPELLANT’S
MOTION TO DECLARE TEXAS PENAL CODE 12.31(a) and
19.03(a)(8) STATUTES AS UNCONSTITUTIONAL
BECAUSE LIFE WITHOUT PAROLE SENTENCE ON A
MENTALLY IS WOMAN CONVITED OF HOMICIDE
VIOLATES THE EQUAL PROTECTION CLAUSE OF THE
FOURTEENTH AMENDMENT OF THE UNITED STATES
CONSTITUTION AND Art. 1 §§ 3, 13 of THE TEXAS
CONSTITUTION WHICH PROHIBITS UNFAIRLY
TARGETING AN ENTIRE CLASS OF PEOPLE—women with
mental illness exacerbated by postpartum depression…... 29
III: THERE WAS INSUFFICIENT EVIDENCE TO
SUPPORT CONVICTION FOR CAPITAL MURDER……. 32
IV. THE TRIAL COURT ERRED BY DENYING THE
DEFENDANT’S MOTION FOR NEW TRIAL………….. 34
ii
STATEMENT OF FACTS…………………………………………………. 3
SUMMARY OF ARGUMENT……………………………………………. 23
ARGUMENT AND AUTHORITIES………………………………………. 23
PRAYER FOR RELIEF………………………………….……………….. 35
CERTIFICATE OF COMPLIANCE …………………………………….. 35
CERTIFICATE OF SERVICE……………………………………………. 35
iii
INDEX OF AUTHORITIES
FEDERAL SUPREME COURT CASES: PAGE:
Atkins v. Virginia, 536 U.S. 304, 319 (2002)……………………………… 28
Betts v. McCaughtry, 827 F. Supp. 1400, 1405 (W.D. Wis. 1993)………… 31
Eddings v. Oklahoma, 450 U.S. 1040 (1981)……………………………… 24,25
Harmelin v. Michigan, 501 U.S. 957 (1991)……………………………… 25
Hitchcock v. Dugger, 481 U.S. 393, (1987)……………………………….. 25
Jackson v. Virginia, 443 U.S. 307 (1979)…………………………………. 31,33
Lockett v. Ohio, 438 U.S. 586 (1978)……………………………………… 24,25
Miller v. Alabama, 132 S. Ct. 2455 (2012)………………………………… 25-28
Penry v. Lynaugh, 492 U.S. 302 (1982)…………………………………… 24
Plyler v. Doe, 457 U.S. 202 (1982)……………………………………. ….. 30
Roper v. Simmons, 543 U.S. 551, 560 (2005)……………………………... 25
Smith v. Spisak, 558 U.S. 139 (2010..............……………………………… 24
Tennessee v. Lane, 541 U.S. 509, 522 (2004)……………………………… 31
Woodson v. North Carolina, 428 U.S. 280 (1976)………………………… 25
Yick Wo v. Hopkins, 118 U.S. 386, 369 (1886)…………………………… 31
TEXAS COURT OF CRIMINAL APPEALS CASES:
Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010)…………… 33
Grice v. Alamo Cmty. College Dist., 2013 Tex. App. LEXIS 4999, 118 Fair Empl.
Prac. Cas. (BNA) 354 (Tex. App.—San Antonio Apr. 24, 2013). …………… 31
Gear v. State, 340 S.W.3d 743, 746 (Tex. Crim. App. 2011)………………. 33
iv
Holden v. State, 201 S.W.3d 761, 763 (Tex.Crim.App.2006)……………… 34
Robles v. State, 273 S.W.3d 322, 329 (Tex. Crim. App. 2008)……………. 33
State v. Rosseau, 396 S.W.3d 550, 557 (Tex. Crim. App. 2013)………….. 30
Wilkerson v. State, 347 S.W.3d 720
(Tex. App. – Houston [14th Dist.] 2011, pet. ref’d)……………………. 25,26
Wood v. State, 18 S.W.3d 642, 651 (Tex. Crim. App. 2000)………………. 30
CONSTITUTIONS:
U.S. CONST. amend VIII………………………………………………….. 25
TEX. CONST. art. 1 § 13…………………………………………………… 25
U.S. CONST. amend XIV…………………………………………………. 30
STATUTES:
TEX. PENAL CODE § 12.31(a)(2).…............................................................ 24
Texas Penal Code §19.03(a)(8)………………………………………….. 24
LEGAL ARTICLES:
APA Statement of the Insanity Defense and Mental Illness.
Release No. 02-08, Washington, DC, APA, March 2002)……………… 27
Jospeh Tussman and Jacobus tenBroek,
The Equal Protection of the Laws, 37 Cal. L. Rev. 341 (1949), available
at: http://scholarship.law.berkeley.edu/californialawreview/vol37/iss3/1
v
TO THE HONORABLE COURT OF APPEALS:
STATEMENT OF THE CASE
Narjes Modarresi, Appellant in cause number 1260243, in the 339th District
Court of Harris County, was indicted on July 20, 2010 for Capital Murder for
intentionally causing the death of Masih Golabbakhsh, an individual under six years
of age by placing his face down in the mud alleged to have occurred on April 21,
2010. [Clerk’s Record (hereinafter CR), p.23]. Defense Counsel filed a motion to
find Texas Penal Code §§12.31(a) and 19.03(a)(8) unconstitutional as applied in her
case. [CR pp. 128, 1179]. The court denied this motion. [RR vol. 4, p. 24].
Defendant Modarresi then pled not guilty and requested jury punishment on
May 14, 2014. [RR vol.4, p.12]. The jury found her guilty as charged on May 22,
2014. [CR p. 1651]. Mrs. Modarresi was automatically sentenced to Life in Prison
without parole per the Judgment and Sentence. [CR p.1653]. Notice of Appeal was
filed on May 22, 2014. [CR p.1658]. The Trial Court’s Certification of Defendant’s
Right of Appeal was filed on May 22, 2014. [CR p.1657]. Appellant was deemed
indigent. The undersigned attorney was appointed on May 28, 2014. [CR p.1661].
A Motion for New Trial was filed asking the court to hear mitigation
testimony from Harris County Jail Chaplain, Cynthia Corder, that would have been
proffered by the defense is Texas Law allowed mitigation testimony. [CR p. 1663].
Chaplain Corder testified that Appellant, while in jail awaiting trial for three years,
Page 1 of 35
converted to Christianity and was a good person and model inmate. [RR vol. 10,
p.3]. Chaplain Corder also submitted an affidavit. [CR p. 1673-1674]. The court
held a hearing and denied the Motion for New Trial. [CR p. 1670; RR vol. 10 p.11].
This appeal follows.
ISSUES PRESENTED
I: THE TRIAL COURT ERRED BY DENYING APPELLANT’S
MOTION TO DECLARE TEXAS PENAL CODE 12.31(a) and
19.03(a)(8) STATUTES AS UNCONSTITUTIONAL AS
CRUEL AND UNUSUAL PUNISHMENT PROHIBITED BY
THE EIGHT AMENDMENT OF THE UNITED STATES
CONSTITUTION AND Art. 1 § 13 of THE TEXAS
CONSTITUTION AS APPLIED TO THIS DEFENDANT
WHO WAS SUFFERING FROM MENTAL ILL WHEN
INCIDENT OCCURRED.
II. THE TRIAL COURT ERRED BY DENYING APPELLANT’S
MOTION TO DECLARE TEXAS PENAL CODE 12.31(a) and
19.03(a)(8) STATUTES AS UNCONSTITUTIONAL
BECAUSE LIFE WITHOUT PAROLE SENTENCE ON A
MENTALLY IS WOMAN CONVITED OF HOMICIDE
VIOLATES THE EQUAL PROTECTION CLAUSE OF THE
FOURTEENTH AMENDMENT OF THE UNITED STATES
CONSTITUTION AND Art. 1 §§ 3, 13 of THE TEXAS
CONSTITUTION WHICH PROHIBITS UNFAIRLY
TARGETING AN ENTIRE CLASS OF PEOPLE—women with
mental illness exacerbated by postpartum depression.
III: THERE WAS INSUFFICIENT EVIDENCE TO
SUPPORT CONVICTION FOR CAPITAL MURDER.
IV. THE TRIAL COURT ERRED BY DENYING THE
DEFENDANT’S MOTION FOR NEW TRIAL.
Page 2 of 35
STATEMENT OF FACTS
On April 21, 2010, Houston Police Officer Gonzalez testified that he was
dispatched to a location in Harris County for a welfare check. He drove to the
location and saw three women waving him down. [RR vol.4, pp.63-64]. One of the
lady’s child had been kidnapped by a black male 25-30 dark curly hair with dark
complexion wearing a t-shirt and had a tattoo on his left arm. Modarresi did not get
a good look at the second man. The men were in a beige or brown Chevy 2-door car
with the number 4 on the license plate. [RR vol. 4, pp.68-69]. A little later that day,
homicide Sergeant Rubio interviewed Defendant Modaressi at the scene but got
suspicious about her claim that the black guys took her baby. [RR, vol. 4, pp.
166,167,173]. Homicide Sergeant Chappell also made the scene of 8000 Woodway
but focused his investigation on searching the area for the baby. [RR, vol. 4, p. 182].
Sergeant Chappell didn’t find anything so he left the scene, but got a call to return
to the scene at about 2am. [RR vol. 4, p. 190]. When he arrived Defendant was at
the location with Officer Jafari, who speaks Farsi, Defendant’s first language. [RR
vol.4, pp. 190-191]. Officer Jafari led Chappell to a specific location where he saw
a mound of leaves and mud and what appeared to be the back of a human head. [RR
vol.4, p. 192]. The baby boy was found face down in mud and debris his hands
holding mud. [RR vol.4, p.p. 20207-209]. Dr. Gumpeni, assistant Deputy Chief
Medical Examiner for Harris County Institute of Forensic Sciences, performed the
Page 3 of 35
autopsy on baby Masih Golabbakhs on April 22, 2010. [RR vol. 5, p. 12]. The cause
of death was drowning and the manner of death was homicide. [RR vol.5, p26].
Amir Golabbakhsh, Modarresi’s husband testified that he and Defendant had
an arranged marriage. [RR vol.5, p. 49].They knew each other for a week before
marrying in June of 2005. [RR vol.5, p. 53]. Shortly thereafter, they moved to the
United States and lived with his parents. Defendant Modaressi was very close to her
brother Rozbeh who lives in New Jersey. [RR vol.5, pp. 54-55]. At the time of their
marriage, Amir did not know that Modaressi had bipolar disorder nor that she took
medication. [RR vol.5, p. 57]. Amir described the first year of marriage as good.
[RR vol.5, p. 64]. Their first child was Amir Mahdi. The pregnancy was normal.
Defendant seemed happy to have the child. [RR vol. 5, p. 65]. Amir worked at a
school in Clearlake. Defendant would sometimes visit Amir at his school along with
his mother or father. Amir learned something was abnormal about the Defendant
when an incident happened when Appellant and his mother visited him on campus.
[RR vol. 5, pp. 67-68]. Defendant could not be found. Baby Amir was with his
grandmother. They looked for Appellant for about 30 minutes. The campus officers
found her and brought Amir to Appellant. The campus officers told Amir she was
running after cars or waving at cars or doing something very dangerous. [RR vol.5,
p. 73]. When Amir saw her, Appellant was shivering and cold and seemed like she
was in pain. She wasn’t able to walk. [RR vol. 5, pp. 68-71]. After midnight, Amir
Page 4 of 35
decided to take her to the hospital because she started walking as a child. She was
crawling and it was if she was not there. When she was asked questions, she wasn’t
responding with correct answers. [RR vol. 5, p. 72]. The doctor’s admitted Appellant
to the psychiatric unit. [RR vol.5, p. 73]. Eventually, Modaressi’s behavior went
back to normal after about 26 days in the psychiatric unit. During this
hospitalization, Amir first learned that Appellant had bipolar disorder. The doctor’s
also said it was postpartum depression. Then Amir contacted Modaressi’s brother in
New Jersey to learn more about her past. [RR vol.5, pp. 80]. Modaressi medical
records showed that she had been treated for bipolar mood disorder in Iran by Dr.
Hatefi on September 25, 1999. [RR vol. 5, pp 132-134]. Modaressi was treated in
Iran by Dr. Hatefi for hypomanic symptoms on May 14, 2006. [RR vol. 5, p. 136].
The hospital doctors assigned Modaressi to MHMRA (Mental Health Mental
Retardation Authority). She saw Dr. Janarthanon about once a month. Modaressi
was given medicine for her episodes. Depakote and Zyprexa were two of the drugs.
[RR vol. 5, pp. 81-82]. Amir noticed that Appellant was not the same as before the
pregnancy. She slept a lot more and her motivation wasn’t there anymore. She was
able to take care of Amir Mahdi by breastfeeding him. [RR vol.5, p. 83-84].
Appellant became pregnant again in the summer of 2009 while visiting Iran. Amir
was happy to have another child, but Appellant seemed a little frightened or scared
to be pregnant. Appellant did not want to have the second child. She wanted to take
Page 5 of 35
medication to abort the pregnancy. Appellant’s Aunts, who are doctors in Iran, tried
to convince her not to abort, but she persisted and one aunt gave in. One aunt gave
Appellant the abortion pill, but then the other aunt gave Modaressi another pill to
stop the abortion. This caused complications in the pregnancy and she was put on
bed rest in Iran while Amir returned to the United States for his education. Appellant
stayed in Iran with her family until the doctor released her to travel home. [RR vol.5,
pp. 87-90]. Amir flew to Iran to escort his wife back to U.S. During the flight,
Appellant sat in first class while he was in common class. Appellant began to have
an episode so a flight attendant came to get Amir. [RR vol. 5, pp. 91-91]. Amir
found her crying and acting weird. She was kicking and laughing nonstop. She
couldn’t control her hands and feet. It had been two years since the first episode just
after the birth of her first child, Amir. [RR vol. 5. P. 93]. While in Iran, the doctors
took Modaressi off of her medication because it would have an effect on the child.
The plane landed and an ambulance was brought immediately. She was taken to the
hospital where they gave her an injection to calm her nerves. She was in the hospital
in Qatar for psychiatric treatment until she eventually returned to normal. So they
traveled back to Houston together. [RR vol.5, pp.94-95].
Their second son, Masih Golabbakhsh, the Complainant, was born on January
31, 2010. Appellant was different with Masih. She couldn’t breastfeed him. Amir’s
mother was raising Masih. Appellant mostly slept and laid down. It was like she
Page 6 of 35
was depressed. [RR vol.5, pp. 96-99]. Appellant did not want her father-in-law to be
around so they decided that he would stay in Iran to keep Appellant from stressing
during or after the delivery. [RR vol.5, p. 100]. After giving birth to Masih, the
family went to visit Appellant’s brother Robzeh in New Jersey during Spring Break.
[RR vol.5, 102]. Amir’s father returned home when Masih was two weeks old.
Appellant wanted to take her children to visit her family in Iran but Amir would not
allow her to go to Iran with the children unless he was with her. Amir was concerned
about her episodes and because she was sleeping all day, neglecting her
responsibilities. Amir gave her the option to go by herself, but she did not want to
go by herself. [RR vol.5, pp. 103-105]. Appellant was still seeing Dr. Janarthanan
(hereinafter referred to as Dr. J) at MHMRA. Amir wanted her to show some
motivation before she could go to Iran so Appellant started trying to take the baby
in her hands, getting out of bed, and cooking. [RR vol.5, pp. 107-108]. Amir had
observed that Appellant was much happier when she was in New Jersey with her
brother than she was at home. [RR vo.5, pp108]. The doctor evaluated her and said
she can travel but Amir disagreed with the doctor. [RR vol.5, p109].
On April 21, 2010, Amir walked to work. Amir has epilepsy so he was advised
not to drive. [RR vol.5, p. 111]. When Amir left for work, Appellant was still
sleeping. On April 21, 2010, Amir had a presentation to defend his thesis. But he
forgot his flash drive at home so he called Appellant to bring it to him. She seemed
Page 7 of 35
fine. She brought the flash drive within 10 or 15 minutes because she walked. [RR
vol.5, p114-115]. Around 5:30 or 6pm, Amir received a phone call from his mother
panicking saying that something happened to the baby. [RR vol.5, p.117]. When
Amir and family arrived at the site where the baby was allegedly kidnapped,
Appellant was already in the police car. [RR vol.5, p. 120]. Amir did not have contact
with Appellant until he saw her at the NPC (Neuro Psychiatric Center) locked up. It
was around 1 or 2am. By that time, they had found the baby’s body and Amir was
aware of what she had told the police. [RR vol.5, p. 121-122]. After Masih was
born, Appellant tried to kill herself by overdosing on her pills. She was taken to the
hospital. She denied taking the pills but the pill container was empty so they
determined she had overdosed. [RR vol. 5, pp 122-124]. Medical records from Iran
showed that Appellant had been treated for bipolar mood disorder by Dr. Hatefi on
September 25, 1999. [RR vol. 5, pp 134]. On May 14, 2006, she went back to Dr.
Hatefi because she was showing hypomanic symptoms. Amir never knew she was
bipolar. He thought she had a thyroid problem and she took medication treat her
thyroid problem. Amir didn’t find out she suffered from bipolar disorder and
postpartum psychosis until after he hired attorney George Parnham, who got her
medical records from Iran. [RR vol. 5, pp 136-137]. Amir recalled that after
Appellant gave birth to their first son Amir, she suffered from postpartum psychosis
and spent 26 to 28 days in Ben Taub Hospital. [RR vol. 5, p. 138]. Modaressi also
Page 8 of 35
experienced ECT. [RR vol. 5, p. 141]. After the episode at the University which
occurred after Amir’s birth, Dr. Vaughn suggested that if she was not voluntarily
admitted by her family, they were going to move for involuntary commitment into
Ben Taub because of her condition. [RR vol. 5, pp 150-151]. Appellant was
hallucinating and thinking she was receiving messages from people’s shoes. [RR
vol. 5, p. 152]. She was laughing inappropriately. [RR vol. 5, p. 153]. She was
crawling on the carpet and turning around in circles. [RR vol. 5, p. 154]. She was
saying that people were out there with negative energy, trying to hurt her with their
minds and that the evil eye was also trying to hurt her. [RR vol. 5, p. 155]. During
her high risk pregnancy when flying back to the United States, Appellant seemed
normal, having organized thoughts and not talking nonsensically. [RR vol. 5, p. 159].
Then suddenly on the flight she became hysterical. It was different from the episode
that she had after Amir’s birth. [RR vol. 5, p. 160]. For the last 3 or 4 months of the
pregnancy, Appellant did not exhibit any bizarre tendencies because she was getting
her medication (Depakote). [RR vol. 5, p. 162]. Appellant was put on antipsychotic
medication because of her illness. After Masih was born, she was put on Zyprexa.
She seemed incapable of bonding with Masih. [RR vol. 5, p. 163]. She could not
breastfeed because of the medication. She basically slept all day for two months and
had a poor appetite. [RR vol. 5, pp. 164-165]. After the birth of her first child,
Appellant almost immediately begins to act from normal to abnormal. [RR vol. 5, p.
Page 9 of 35
168]. She was then put in Ben Taub for psychiatric care for 26 or 28 days. She
became an outpatient and would go to the hospital once a month to get her
medication. On the trip back from Tehran to the United States, after Appellant was
taken off her medication, she had an episode on the airplane. She was then
hospitalized. [RR vol. 5, p. 169]. After giving birth to her second child and visiting
the doctor at MHMRA, her medication was changed from Depakote to Zyprexa. [RR
vol. 5, p. 170]. That is when she went into an abnormal state, sleeping and not caring
for Masih and was unable to bond with Complainant Masih. [RR vol. 5, p. 171].
Iranian medical records written by Dr. Salom Al-Manni, Senior Consultant of
Psychiatry from Rumailah Hospital show the medications she was given while in
Qatar. [RR vol. 5, p. 175]. Medical records from Isfahan show treatment for
Appellant in 2001 and 2004 for depression and drop in motivation. [RR vol. 5, pp.
176-177]. Defense Exhibit No. 8 shows treatment and medications of Depakene and
Risperdal were given to Appellant since September 25, 1999 for her bipolar disorder
due to psychotic symptoms. [RR vol. 5, pp. 179-180]. Appellant gave a 3 ½ hour
noncustodial tape recorded statement to Detective Miller Waters. She tearfully
discussed divorce and wanting medical help before she agreed to take police to the
baby. She wanted to go back to Iran. [RR vol. 7, pp. 9-11, vol. 5, p.192]. Detective
Walters described the second statement as custodial and it was taken after they found
the baby at 9:50pm. [RR vol. 5, p. 193]. Detective Waters took Appellant to NPC
Page 10 of 35
(Neurological Processing Unit) for an evaluation where they are trained to deal with
mental health issues. [RR vol. 7, pp. 16-17]. The next day, Walters took another
statement from Appellant to get an explanation for why she placed Masih in the mud
alive. [RR vol. 7, pp. 18-19]. Appellant never admitted to Detective Waters that she
intended to kill the child. [RR vol. 7, p. 25]. Detective Waters did not know
anything about Appellant’s mental illness or postpartum issues. [RR vol. 7, pp. 29-
30]. Appellant admitted to Waters that she had been in bed for 21 hours before
getting up to take her husband his flash drive. [RR vol. 7, p. 32].
Appellant’s father in law Amir Golabbakhsh testified that she had an episode
after the birth of her first child. He noticed that Appellant was different about eight
days after her first child was born. [RR vol. 7, pp. 58-59].
Appellant’s mother in law Doris Golabbakhsh testified about some of her
observations of Appellant’s mental illness. Doris recalled the incident at the
university when they asked the security guard to help find Appellant. The security
guard told Amir and Doris that Appellant was chasing cars and bumping the back of
the cars. [RR vol. 7, p. 109]. Doris saw Appellant shaking and she could not stop
moving her hands all around. When they got her home, Appellant was crawling on
the floor, she could not stand up. Amir took her to Ben Taub where she stayed for
26 days. Thereafter, Doris would drive Appellant to her monthly appointments at
MHMRA. Amir, her son, asked Doris had to take care of Masih because Appellant
Page 11 of 35
could not take care of him. Appellant was sleeping a lot. [RR vol. 7, pp. 113-114].
Doris recalled that Appellant seemed depressed and lethargic, sleeping a lot, and not
bonding with the baby. She was unable to care for him. [RR vol. 7, p. 134].
Defense witness Dr. Debra Osterman is a psychiatrist for MHMRA and
testified she was asked to visit Appellant since she had experience dealing with
patients with postpartum illness. [RR vol. 8, pp. 6, 11]. She treated Appellant from
April 23, 2010 in the Harris County Jail until she was released on April 16, 2012.
Dr. Osterman diagnosed Appellant with bipolar, a serious mental illness that
includes mood disorder where they are both depressive episodes and manic episodes.
Bipolar people may sleep almost 24 hours a day or may not be able to sleep at all.
Bipolar people sometimes are unable to enjoy anything. With manic episodes, a
person is very likely to do things that are very risky or that are very unusual for them
that may endanger them or others. [RR vol. 8, pp. 16-18].
Dr. Osterman became aware of Appellant’s psychotic/manic episodes with
psychotic features. Dr. Osterman described Appellant’s first episode in her late teens
when she was treated for depression in Iran. [RR vol. 8, p. 18]. The antidepressant
flipped her over into a manic episode. The next was after the birth of her first child.
Another was about four months into gestation with baby Masih when she was flying
home from Iran and she started screaming on the airplane. She was very disorganized
with hallucinations -- hearing her uncle and aunt speak to her when they were not
Page 12 of 35
there. These are psychotic and manic symptoms. [RR vol. 8, p. 19]. Dr. Osterman
gave definitions of Modaressi’s psychotic symptoms. Dr. Osterman defined
delusions are where you have the belief that something is true, but it makes no sense
to anyone else. A person in psychosis can be very disorganized in one’s thinking or
potentially be catatonic. Catatonic is where someone is unable to move or being
highly agitated and not being able to sit still. [RR vol. 8, p. 20]. Hearing voices is
an hallucination. [RR vol. 8, p. 23]. Dr. Osterman testified that Appellant’s crawling
on the floor before going to Ben Taub is an example of Catatonia, but a clearer
example is Appellant’s 21-hour sleeping in bed prior to the offense. Typically
someone suffers from 2 or 3 of these symptoms (hallucinations, delusions,
disorganized thoughts, and catatonia) for one to be considered psychotic. [RR vol.
8, p. 26]. Dr. Osterman testified that the Ben Taub medical records of Modaressi
receiving messages from people’s shoes is a strong indicator of psychosis. Dr.
Osterman diagnosed Modaressi as demonstrating both manic and depressive
psychotic symptoms. [RR vol. 8, p. 27]. A person such a Modaressi with bipolar
disorder may go into a manic depressive episode after the birth of their first child
and are at greater risk of experiencing postpartum illness. Dr. Osterman described
postpartum depression as more severe that baby blues because a postpartum manic
episode or a postpartum psychosis illness develops within the first two weeks after
delivery. Appellant actually appeared to have both the mood episode with the
Page 13 of 35
psychosis. [RR vol. 8, p. 33]. Appellant’s depressive symptoms began getting much
worse about two weeks prior to Masih’s birth. 24-hours after the birth, Modaressi
told her husband that Masih should never have been born. [RR vol. 8, p. 37]. Dr.
Osterman testified that the depression had been going on since about two weeks prior
to Masih’s birth to about 13 weeks. Modaressi had a sudden increase in her energy
level on the day of the incident. [RR vol. 8, p. 38]. Dr. Osterman testified that if
someone is very very depressed and lethargic and then suddenly they get energized
by a bit of some manic symptoms and unrealistic thoughts, they may act on the really
bad thoughts they’ve been having. And it may actually be much more dangerous to
them and or to anybody in their surroundings. [RR vol. 8, pp. 40-41].
Dr. Vasantha Janarthanan, psychiatrist for MHMRA testified that she began
seeing Appellant in March 2007. [RR vol. 8, p. 160-161]. Dr. Janarthanan testified
that Modaressi came to MHMRA after a psychiatric hospitalization after a manic
psychotic episode. She stayed for three or four weeks. Appellant’s history showed
that she was becoming hyperactive: irrational, agitated, screaming, yelling, running
around, and paranoia. She was paranoid that somebody was going to harm her child
and was making elaborate plans. [RR vol. 8, p. 162]. After the birth of her child in
2007, she experienced lots of manic symptoms. She was taking Zyprexa, Depakote,
and a small dose of Klonopine. These medications are consistent with the treatment
of Bipolar I Disorder. Dr. Janarthanan continued to see Modaressi at MHMRA for
Page 14 of 35
the next three years, about one to three times a month. [RR vol. 8, pp. 163-166].
Appellant improved for a time but returned to a major depressive state in 2008. She
was not functioning at all at that point. Over the six/seven months to a year, she
improved very slowly. But then she began to slide again. Dr. Janarthanan saw her
regularly except for when she traveled to Iran. [RR vol. 8, pp. 167-8]. Appellant
was getting psychiatric treatment in Iran. [RR vol. 8, pp. 169]. Bipolar disorder is an
episodic illness, meaning the severity of the illness can fluctuate. Episodes can be
triggered by environmental factors or by involuntary brain chemistry or changes in
a person’s physiology. [RR vol. 8, p. 171]. Appellant experienced another episode
in October 2008. Her medications were adjusted. [RR vol. 8, pp. 172-173]. In early
spring 2009, Appellant went to Iran and returned about 4 months pregnant. While in
Iran, Appellant’s medication was stopped as a result of the pregnancy so she had
been off of her medications for four months. [RR vol. 8, p. 174]. So when the
airplane stopped in Qatar, the doctors treated her with Depakene, a form of
Depakote. [RR vol. 8, pp. 176]. When she arrived in the US in September 2009,
Dr. J switched her to Zyprexa because the Depakene could be harmful to the fetus.
Two months before the birth of Masih, Dr. J starts to see depressive symptoms. In
January before Masih’s birth, Appellant was very depressed, very down again, non-
motivated, no interest, sleeping all the time, would not function at all, even in her
day-today activities. She had no energy. Appellant is so sick, Dr. Janarthanan
Page 15 of 35
changes her medication by adding Prozac to counter the depressive symptoms. When
Dr. Janartanan saw D on February 6, 2010, she stopped the Prozac and added
Lamictal since the depression was not getting any better. Her depression continued
to worsen. [RR vol. 8, pp. 178-184]. Dr. Janarthanan saw Appellant in the first week
in January 2010. [RR vol. 9, p. 6]. She was still sad and depressed, lost interest in
most activities, lost functioning in terms of taking care of herself and not just the
baby. After the baby was born, Dr. Janarthanan saw Appellant on February 16, 2010.
Then they had a telephone conversation where Modaressi said her Prozac was not
working and her depression had worsened. [RR vol. 9, p. 7]. Dr. J stopped the Prozac
with no substitute because she thought maybe taking her off Prozac would help. [RR
vol. 9, p. 8]. Dr. J constantly monitored and adjusted Appellant’s medication and
status. [RR vol. 9, p. 9]. Appellant was worse off in February with increased
depression and sadness exacerbated and elevated while having suicidal thoughts. Dr.
J started her back on Lamictal 25 milligrams which she had taken before and during
another depressive episode. The dosage increased to 50 mg while she was still taking
Zyprexa at 10mg. p.10. Dr. J saw Modaressi in mid-March and she was doing a
little better. She no longer had the suicidal thinking. [RR vol. 9, p. 11]. All of her
abnormal symptoms were still there when Dr. J saw Appellant on April 16, 2010.
She was still a long way from normal. Appellant’s Lamictal had been increased to
100mg for her bipolar depression. She was only able to stay up for a few hours a day
Page 16 of 35
and she was still very sick four days before Masih’s death. [RR vol. 9, pp. 12-13].
Dr. Janarthanan testified that according to medical reports, Modaressi had been in
bed for 21 hours the day before April 20, 2010 which is not a good sign. [RR vol. 9,
p. 14]. Dr. Janarthanan testified that Modaressi had bipolar illness, which is the
depressed mood most of the day nearly every day. Modaressi also suffered from
hypersomnia, psychomotor retardation, fatigue/loss of energy every day, feelings of
worthlessness/excessive or inappropriate guilt. Appellant had a lot of guilt about not
being able to function and take care of her child or of being useful to anyone. Dr. J
explained that some of Appellant’s symptoms are hidden because of the severity of
other symptoms. [RR vol. 9, pp. 16-18]. Dr. J testified that on their April 16, 2010
appointment, Appellant was strongly focused on going back to Iran. She presented
with motor retardation, meaning slow speech and lethargic appearance. Motor
retardation is a normal symptom of depression. Family conflict was a stressor for
Appellant. Her husband was supportive and tried to make her stress level as low as
possible. Appellant cooperated with taking her medicines. [RR vol. 9, pp. 20-24].
Dr. J testified that her medical notes shoe that on February 11, 2008, Appellant
showed bipolar disorder with psychotic features. The same diagnosis was on
February 16, 2010, even though no psychotic features were observed that day.
Following the birth of her child, she experienced postpartum psychosis, but was not
on medication. She had delusions and hallucinations, which are all the characteristic
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elements of psychosis. [RR vol. 9, pp. 28-30]. Dr. J testified that people with bipolar
disorder get racing thoughts, irrational thoughts, impulsivity that comes and goes.
Sometimes the doctor is unable to capture these psychotic features in one particular
visit. Even when people know they are sick, they are capable of hiding things from
doctors because they don’t like to let other people know that they are messed up in
the head. [RR vol. 9, p. 32].
Appellant’s brother Rozbeh Modaressi, a research scientist at Columbia
University in New York, testified that he and his sister were very close. [RR vol. 9,
pp. 36-38]. Appellant was very dependent on Rozbeh. So when he was selected best
student to get a scholarship in 1998, he left to study in Belgium. As soon as Rozbeh
left Iran for Belgium, Appellant, just 17 years old, got sick and extremely depressed.
She had to see a psychiatrist for two years. [RR vol. 9, p. 38-39]. She was treated
for depression with shock therapy, PCT. Appellant got married at 23 years old. [RR
vol. 9, p. 40]. Appellant was advised against a second pregnancy. [RR vol. 9, p. 42].
Rozbeh learned that her first pregnancy led to her illness and that the severity of her
illness increased. He was also unhappy about the second pregnancy because every
single doctor told them not to get pregnant. [RR vol. 9, p. 43]. He did not talk about
his unhappiness about the second pregnancy, but, instead, he was supportive and
visited Houston three times. [RR vol. 9, p. 44]. Rozbeh noticed that in Houston,
Appellant was micromanaged by her father-in-law and saw was not happy. He would
Page 18 of 35
micromanage how she washed the dishes. [RR vol. 9, p. 47]. Rozbeh spoke to
Appellant about four days before the incident and she was very upset. [RR vol. 9, p.
48]. When Rozbeh saw Appellant in February 2010, she was very sick with no
energy and she was sleeping a lot. [RR vol. 9, p. 63].
Defense witness Dr. David Self, a medical doctor and psychiatrist hired by
the defense to determine if Appellant was competent to stand trial. [RR vol. 9, p. 69,
85]. Dr. Self testified that he examined Appellant on August 5, 2010, March 11,
2011 and one other time. [RR vol. 9, p. 84]. Dr. Self reviewed the psychiatric
evaluations and reports by Harris County Jail Dr. Johnson dated April 22, 2010. [RR
vol. 9, p. 85]. Dr. Self reviewed the psychiatric evaluation of Appellant documented
by Dr. Ahmed when Appellant was booked into the jail. Dr. Self reviewed the
psychiatric evaluation of Appellant by jail Dr. Ostermann. Dr. Self also reviewed
the police reports and police audio/video recordings of HPD interview with
Appellant on April 21st and 22nd of 2011 (sic). Dr. Self reviewed the reports by Dr.
Salem Al-Mannai (four day hospital stay for manic psychosis in Qatar) and Dr.
Coverdale at Ben Taub. [RR vol. 9, pp. 85-86]. Dr. Self reviewed Appellant’s Jail
Psychiatric Service records for treatment from April 23, 2010 to July 23, 2010. Dr.
Self reviewed her medical records by Dr. Janarthanan at the MHMRA clinic. [RR
vol. 9, p. 87]. Dr. Self’s professional opinion was that Appellant suffered from one
of the most severe mental illnesses that we know about, Bipolar Disorder Type I in
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a depressed phase with psychotic features. He added that Bipolar Type I has a 20-
25% suicide rate. [RR vol. 9, pp. 100-101]. Dr. Self told the story of Appellant’s
psychiatric history from all of the medical records and police investigation reports
and recordings. Dr. Self testified Appellant was born in Iran, the youngest of three
children. Somewhere around fifteen Appellant started having minor mood changes.
When her brother moved to Belgium to work on his doctorate degree, she fell apart.
[RR vol. 9, p. 103]. Appellant was seen by a psychiatrist for the first time. She was
treated with antidepressants. When you give bipolar patients antidepressants
unabated by some mood stabilizer, another medicine, they flip over into mania and
that’s what she did. [RR vol. 9, p. 103]. Bipolar, in general, is a brain disorder that
causes shifts in mood. Grossly abnormal moodiness that anybody seeing them would
recognize it. This disease is also known as manic depression. A manic episode can
present with a person full of energy, abnormally happy like they are on drugs when
they are not. [RR vol. 9, p. 104]. People in mania can be very talkative where they
can’t stop talking. They easily distracted and change topics in a heartbeat. They stay
busy, busy, busy. They start a hundred projects and finish none. They get by on no
sleep sometimes for days without fatigue, without the sensation of being tired. [RR
vol. 9, p. 105]. Appellant was in this manic state after the birth of her first child, the
records from Ben Taub talk about her having been sleeping very little and staying
busy, busy, busy, cleaning the house and organizing and doing and going, finishing
Page 20 of 35
nothing, starting a hundred things. [RR vol. 9, p. 106]. She had been experiencing a
profound bipolar depression for some time. Just before the birth of baby Masih,
depressive symptoms emerged. They got bad right after the birth. She improved
slightly but went back to bad. [RR vol. 9, p. 110]. Bipolar I means they have big
depressions and big mania, and that’s what the defendant has. Appellant experienced
hallucinations when on the plane returning to the US. She was hearing an uncle of
hers lecturing in Farsi, and she felt that lecture was about her. And she was screaming
and running in a very agitated and excited state. They had to take her off the plane
and put her in a hospital in Qatar. [RR vol. 9, p. 114]. When she got sick after her
first son, she was very ill, hearing voices and displaying bizarre ideations, delusional
thinking. The Ben Taub records contained a religious flavor in her delusional
thinking. She believed she was a direct descendent of Moses, and as a result, she
could understand things that other people couldn’t. She believed the Ben Taub
doctors were all direct descendants of Jesus. She believed people were putting the
evil eye on her and were going to harm her. [RR vol. 9, p. 115]. In Iran she earned
an Associate’s degree in family health. But college was sometimes interrupted by
brief periods of hypomania and depression where she couldn’t get out of bed and go
to class or running doing a hundred thinks and completing none. [RR vol. 9, p. 116].
Dr. Self described bipolar disease as a degenerative, progressive disease and the
more sever it is, the more severe it’s going to be in the future. [RR vol. 9, p. 126].
Page 21 of 35
During flight back to US Appellant was crying and screaming and hearing voices.
She was hospitalized in Qatar for four days and given antipsychotic and mood
stabilizer medication. Then when she arrived back in Houston she started going back
to MHMRA where Dr. Janarthanan stopped the meds that she had been put on in
Qatar to stabilize her and started her on Zyprexa throughout the rest of her pregnancy
until delivery. [RR vol. 9, p. 127]. Zyprexa has potent mood stabilizing properties.
It’s a great anti-manic but only a fair antidepressant. It’s a good antipsychotic.
Lamictal is the choice drug for individual suffering from bipolar. Appellant went to
MHMRA on January 7, 2010, just prior to Masih’s birth. She was seen monthly at
MHMRA by Dr. J from September 2009 to April of 2010. After Masih was born,
her condition got worse. The MHMRA records reflect she told her husband, it’s
better he died. I cannot take care of him. She felt incapable of taking care of him and
satisfying her life demands. [RR vol. 9, pp. 129-131].
Page 22 of 35
SUMMARY OF ARGUMENT
The jury erred imposing a life without parole sentence because the sentence
is cruel and unusual punishment prohibited by the Eighth Amendment and the Texas
Constitution since the jury had no opportunity to consider mitigating evidence,
which would justify a less severe sentence. The 14th Amendment should prohibit
the life without parole punishment when a mother commits infanticide when
suffering from severe mental illness as here, bipolar and postpartum psychosis.
There was insufficient evidence to support a conviction for capital murder because
Appellant’s sick mind told her to hide or get rid of the baby, but never to kill the
baby. The motion for new trial should have been granted to allow mitigating
testimony of Appellant’s good character while in jail and properly medicated for the
three years she waited for trial.
ARGUMENT AND AUTHORITIES
I: THE TRIAL COURT ERRED BY DENYING APPELLANT’S MOTION
TO DECLARE TEXAS PENAL CODE 12.31(a) and 19.03(a)(8)
STATUTES AS UNCONSTITUTIONAL AS CRUEL AND UNUSUAL
PUNISHMENT PROHIBITED BY THE EIGHT AMENDMENT OF THE
UNITED STATES CONSTITUTION AND Art. 1 § 13 of THE TEXAS
CONSTITUTION AS APPLIED TO THIS DEFENDANT WHO WAS
SUFFERING FROM MENTAL ILL WHEN INCIDENT OCCURRED.
Appellant asks the question. Does imposition of a life-without-parole sentence
on a mentally ill woman convicted of the killing of her own precious baby during a
psychotic episode violate the Eighth Amendment and the Texas Constitution against
Page 23 of 35
cruel and unusual punishments by precluding consideration of her mental health or
any other mitigating circumstances? We submit the answer is Yes.
A. Constitutional Importance of Mitigating Evidence
A judge or jury should not be precluded from considering mitigating facts as
an aspect of the defendant’s character proffered for the basis of a sentence less than
death. Eddings v. Oklahoma, 450 U.S. 1040 (1981); see also, Lockett v. Ohio, 438
U.S. 586 (1978); Penry v. Lynaugh, 492 U.S. 302 (1982); Smith v. Spisak, 558 U.S.
139 (2010). The statute provides a mandatory sentence of life for every capital
murder, precluding any consideration of mitigating circumstances. TEX. PENAL
CODE § 12.31(a)(2). Appellant Modaressi was convicted of capital murder that was
undoubtedly occurred due to her mental illness. However as a consequence of the
Texas Penal Code’s mandatory preclusion, the jury was prevented from considering
her mental illness in commission of the crime and the consideration of the illness
during her punishment. This denial of the consideration of the mitigating illness is
categorically cruel and excessive. Because of the statute is categorically cruel and
excessiveness towards Appellant Modaressi, a woman who has committed
infanticide due to her mental illness and postpartum psychosis, the Texas Life
without Parole Statute conflicts with Supreme Court case law and Eighth
Amendment principles of Cruel and Unusual Punishment.
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B. Automatic life without parole is categorically excessive, as applied in this
case.
In Miller v. Alabama, the U.S. Supreme Court determined that mandatory life-
without-parole sentences for juveniles violates the Eight Amendment. Miller v.
Alabama, 132 S. Ct. 2455 (2012). The Eighth Amendment's prohibition of cruel and
unusual punishment “guarantees individuals the right not to be subjected to
excessive sanctions.” See, U.S. CONST. amend VIII; Miller, 132 S. Ct. 2455, 2463;
Roper v. Simmons, 543 U.S. 551, 560 (2005). The Texas Constitution provides for
a similar interpretation of stating that punishment should not be “cruel or unusual.”
TEX. CONST. art. 1 § 13. This is a right that “flows from the basic 'precept of justice
that punishment for crime should be graduated and proportioned'” to both the
offender and the offense. Miller, 132 S. Ct. 2455, 2463.
“’A capital sentence is cruel and unusual under the Eighth Amendment if it is
imposed without an individualized determination that that punishment is
‘appropriate’ -- whether or not the sentence is ‘grossly disproportionate.’” Harmelin
v. Michigan, 501 U.S. 957 (1991); Woodson v. North Carolina, 428 U.S. 280 (1976);
Lockett v. Ohio, 438 U.S. 586 (1978); Eddings v. Oklahoma, 450 U.S. 1040 (1981);
Hitchcock v. Dugger, 481 U.S. 393, (1987). Miller and Wilkerson draw categorical
distinctions, during sentencing, based on diminished culpability and prospects for
reform, and those with the diminished culpability and the prospect of reform deserve
less severe punishments. Miller, 132 S. Ct. 2455, 2463; Wilkerson v. State, 347
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S.W.3d 720 (Tex. App. – Houston [14th Dist.] 2011, pet. ref’d). Subsequently, when
considering the punishment for capital cases involving categorically distinct
individuals, the court should view the concepts “according to the evolving standards
of decency that mark the progress of a maturing society.” Miller, 132 S. Ct. 2455,
2463.
Like the Miller case, a punishment of automatic life without parole afflicted
on the severely mentally ill proves to be inconsistent the Eighth Amendment values
because the mentally ill are not culpable enough to warrant these sentences. Id. at
2464. Specifically, women like Appellant Modaressi, suffering from Bipolar
Disorder I and Postpartum Psychosis are not culpable enough to warrant such a
severe punishment, especially when Appellant was not shown to have anticipated
her crime, let alone intended that her child be killed. Mental illness and postpartum
psychosis gives women suffering from mental illness and postpartum psychosis a
categorical distinction from other culpable adult-defendants, just as juveniles “'lack
[maturity] and an underdeveloped sense of responsibility,'” leading to recklessness,
impulsivity, and heedless risk-taking.” Id. When Modaressi deteriorated into a
psychotic break-down after her first son was born, she had no sense of responsibility
evidenced by her leaving him with her in-laws when she was found at her husband’s
job running in the middle of the street. Just the same after the birth of the second
child, Modaressi showed her “heedless risk-taking” behavior when she left the house
Page 26 of 35
with her child and without a chaperon, per the instructions of her husband. She also
demonstrated a lack of mental maturity and responsibility when she left her child
buried face down in the mud in the woods. Modaressi admits to not intending to kill
the child when she buried him which, again, manifests her reckless, impulsive, and
heedless risk taking behavior. Modaressi’s illnesses indisputably show a “'lack of
maturity and an underdeveloped sense of responsibility,'” leading to recklessness,
impulsivity, and heedless risk-taking.”
Also, global societal values provide a basis for a categorical line between
those who suffer from severe mental disorders and other adult offenders. Most
science also provides a stark contrast and categorical distinction between those who
suffer from severe mental disorders and other adult offenders:
Advances in neuroscience have dramatically increased the understanding of
how the brain function is altered by mental illness, and how psychotic illness
can distort reality….A failure to appreciate the impact of mental illness on
thought and behavior often lies behind decision to convict and punish persons
with mental disorders…(APA Statement of the Insanity Defense and Mental
Illness. Release No. 02-08, Washington, DC, APA, March 2002).
During the months after her second child’s birth, Modaressi was experiencing
both mental illness and psychotic illness which would give rise to a distorted reality.
Modaressi’s failure to realize that burying her child in the woods for hours would
result in the child’s death is a clear distortion of reality, and the Texas Statutes failure
Page 27 of 35
to appreciate the impact that Modaressi’s mental illness and psychotic illness on her
thoughts and behaviors have resulted in her conviction and punishment at life in
prison without the possibility of parole.
In addition, these sentences are inconsistent with valid penological goals
because they also fail to appreciate two major delineations: 1) deterrence or
retribution and 2) cruel and/or unusual punishment. These sentences neither deter
for the 4% of women who would commit the same crime because of their mental
illness nor provide retribution for the families and friends suffering. Miller, 132 S.
Ct. 2455, 2464. “’Retribution and deterrence of capital crimes by prospective
offenders" as the social purposes served by the death penalty. Unless the imposition
of the death penalty on a mentally retarded person "measurably contributes to one
or both of these goals, it 'is nothing more than the purposeless and needless
imposition of pain and suffering,' and hence an unconstitutional punishment.’”
Atkins v. Virginia, 536 U.S. 304, 319 (2002). Appellant Modaressi is a part of this
class of women suffering from Bipolar Disorder I and postpartum psychosis who
have committed infanticide. Because of the distorted reality of Appellant Modaressi
and women suffering from these illnesses, these women have the proclivity to
commit infanticide regardless of the sentence of another, and thus the sentence does
not deter others, much less prevent sick mothers like Modaressi, from killing their
children in the future. Neither does the severe punishment of Modaressi provide
Page 28 of 35
retribution for her own family who is suffering from the loss of two family members
– Appellant and the baby.
These punishment schemes are inconsistent with contemporary values, and
the implications of the contrary are astonishing. One cannot wholly disregard the
unstable mental health of a woman suffering from Bipolar Disorder I and Postpartum
Psychosis plays a vital role in her thought process. Because automatic life without
parole is categorically excessive or “grossly disproportionate” to Appellant, a
woman suffering from these illness, this punishment scheme is inconsistent with
Eighth Amendment principles of cruel and unusual punishment. This scheme also
proves to be inconsistent with “evolving standards of decency.” Therefore, the
statute proves unconstitutional according to both federal and state provisions, as
applied.
II. THE TRIAL COURT ERRED BY DENYING APPELLANT’S MOTION
TO DECLARE TEXAS PENAL CODE 12.31(a) and 19.03(a)(8)
STATUTES AS UNCONSTITUTIONAL BECAUSE LIFE WITHOUT
PAROLE SENTENCE ON A MENTALLY IS WOMAN CONVITED OF
INFANTICIDAL HOMICIDE VIOLATES THE EQUAL PROTECTION
CLAUSE OF THE FOURTEENTH AMENDMENT OF THE UNITED
STATES CONSTITUTION AND Art. 1 §§ 3, 13 of THE TEXAS
CONSTITUTION WHICH PROHIBITS UNFAIRLY TARGETING AN
ENTIRE CLASS OF PEOPLE—women with mental illness exacerbated by
postpartum depression.
The automatic life without parole sentence is prohibited by the 14th
Amendment since the statute unfairly targets a class of women who commit
Page 29 of 35
infanticide. The Texas Penal Code §12.31(a) is unconstitutional under the 14th
Amendment as applied in this case. The statute unfairly targets a class of women
who commit infanticide when affected by Bipolar Disorder I and postpartum
psychosis because it mandates a sentence of life without parole. Women who
commit infanticide will always be found guilty of the capital murder and, thus,
mandatorily subjected to an automatic sentence of life without the possibility of
parole. The same women will not be afforded their fundamental right to equal
protection under the law even though there are mitigating factors that contributed to
their killing their own children and that explain their mental state, which should
demand a more lenient punishment. Or, in the alternative, a less severe punishment
to fit the crime—like being sentenced to a mental health facility because they are
truly insane to kill their babies.
This particular class of women are not similarly situated because they are not
provided the same laws as other adult defendants who are allowed to present
mitigating evidence during trial, especially when their mental illness plays an
extraordinary role in the commission of the crime.
The Fourteen Amendment demands that “all persons similarly situated shall
be treated alike” under the Equal Protection Clause. U.S. CONST. amend XIV; Plyler
v. Doe, 457 U.S. 202 (1982); Wood v. State, 18 S.W.3d 642, 651 (Tex. Crim. App.
2000); State v. Rosseau, 396 S.W.3d 550, 557 (Tex. Crim. App. 2013). The Equal
Page 30 of 35
Protection Clause was not intended to demand equal enforcement of the law but
rather that the law itself be equal. Jospeh Tussman and Jacobus tenBroek, The Equal
Protection of the Laws, 37 Cal. L. Rev. 341 (1949), available at:
http://scholarship.law.berkeley.edu/californialawreview/vol37/iss3/1." The equal
protection of the laws is a pledge of the protection of equal laws." Yick Wo v.
Hopkins, 118 U.S. 386, 369 (1886). (emphasis added).
If the state has no sufficiently “important” reason for treating similarly
situated people differently, the state violates the Equal Protection Clause. See, e.g.,
Tennessee v. Lane, 541 U.S. 509, 522 (2004) (citing City of Cleburne v. Cleburne
Living Center, Inc., 473 U.S. 532, 439 (1985)); Plyler v. Doe, 457 U.S. 202, 248
(1982).
To be “‘similarly situated,’ groups need not be identical in makeup, they need
only share commonalities that merit similar treatment.” Betts v. McCaughtry, 827
F. Supp. 1400, 1405 (W.D. Wis. 1993). People are “similarly situated if their
circumstances are comparable in all material respects, including similar
standards…” Grice v. Alamo Cmty. College Dist., 2013 Tex. App. LEXIS 4999,
118 Fair Empl. Prac. Cas. (BNA) 354 (Tex. App.—San Antonio Apr. 24, 2013). In
this regard, the statutes do not give the same material respects to all defendants
because they do not allow mitigating evidence to be presented for all defendants.
The state also neglected to proffer a sufficiently “important” legal reason for not
Page 31 of 35
allowing mitigating evidence when prosecuting adult-defendants with mental illness
and postpartum psychosis. Even Appellant Modaressi was not afforded the
consideration of mitigating evidence as other adult-defendants would receive if the
charge were murder instead of capital murder (non-death).
This class of women have slipped through the cracks of human decency
because society as a whole does not understand mental illnesses such as Bipolar
Disorder I coupled with postpartum psychosis bipolar. This class of women are
unprotected. They are grouped together like the average capital murder defendant,
but should not be due to their involuntary illnesses. And they are not currently
receiving the same protections as other classes; therefore, the statue violates the
Equal Protection Clause of the 14th Amendment and should be declared
unconstitutional as applied to this case.
III: THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT CONVICTION
FOR CAPITAL MURDER.
Appellant did not intend to kill her baby. The evidence did not support that
Appellant formed the intent to kill Complainant but only that she was suffering from
severe mental illness and hallucinations that told her to get rid of it.
Jackson v. Virginia, 443 U.S. 307 (1979), as the standard for reviewing the
sufficiency of evidence." In determining whether the evidence is legally sufficient
to support a conviction, a reviewing court must consider all of the evidence in the
Page 32 of 35
light most favorable to the verdict and determine whether, based on that evidence
and reasonable inferences therefrom, a rational fact finder could have found the
essential elements of the crime beyond a reasonable doubt." Gear v. State, 340
S.W.3d 743, 746 (Tex. Crim. App. 2011)."In determining whether the evidence is
legally sufficient to support a conviction, a reviewing court must consider all of the
evidence in the light most favorable to the verdict and determine whether, based on
that evidence and reasonable inferences therefrom, a rational fact finder could have
found the essential elements of the crime beyond a reasonable doubt." Gear v. State,
340 S.W.3d 743, 746 (Tex. Crim. App. 2011). “Capital murder is a result-of-conduct
offense; the crime is defined in terms of one's objective to produce, or a substantial
certainty of producing, a specified result, i.e. the death of the named decedent."
Robles v. State, 273 S.W.3d 322, 329 (Tex. Crim. App. 2008). The pertinent
question, therefore, is whether the jury could have rationally determined beyond a
reasonable doubt from the totality of the circumstantial evidence viewed in a light
most favorable to its verdict that appellant had intent to cause the death of the child.
See Jackson, 443 U.S. at 318; Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App.
2010).
Viewing the evidence in a light most favorable to the jury's verdict, the record
reflects that Appellant was suffering from severe mental illness. Hallucinations told
Appellant to get rid of the baby. No evidence, however, shows that Appellant knew
Page 33 of 35
that if she hid the baby in the mud, that she intended to kill the baby. Based on this
evidence coupled with her severe mental illness, the jury could not have reasonably
inferred that Appellant intended to cause the death of her baby.
IV. THE TRIAL COURT ERRED BY DENYING THE DEFENDANT’S
MOTION FOR NEW TRIAL.
This Court must review a trial judge's denial of a motion for new trial under an
abuse of discretion standard. This Court must decide whether the trial court's
decision was arbitrary or unreasonable. A trial judge abuses his discretion in denying
a motion for new trial when no reasonable view of the record could support his
ruling. Holden v. State, 201 S.W.3d 761, 763 (Tex.Crim.App.2006). Appellant filed
a Motion for New Trial and a hearing was conducted to ask for a new trial to offer
mitigating testimony of Appellant’s good character while housed in the Harris
County Jail for three years awaiting trial. Harris County Jail Chaplain Cynthia
Corder testified that Appellant was a model inmate with good moral character.
Chaplain Corder also testified that Appellant converted the Christianity while in jail.
The trial court abused her discretion by not allowing the mitigating evidence
at trial to support a less severe punishment than life without parole.
Page 34 of 35
PRAYER
FOR THESE MANY REASONS, the Appellant respectfully prays that this
Honorable Court find the Life without Parole Statute in non-death capital cases as
unconstitutional in cases where the Appellant is suffering from severe mental illness
and commits the crime of infanticide. Appellant prays for a reversal to allow the jury
to consider mitigating evidence.
Respectfully Submitted,
/s/ Vivian R. King
VIVIAN R. KING , Appointed Attorney
SBN: 00784399
2202 Alabama Street
Houston, TX 77004
(713) 222-2019 Telephone
(877) 753-6706 eFax
CERTIFICATE OF COMPLIANCE
Pursuant to Tex. R. App. Pro. R. 9.4(i)(3), I certify that this document this
contains 9718 words according to the word-count function of Microsoft Word 2013.
The body text is in 14 point font.
/s/ Vivian R. King
CERTIFICATE OF SERVICE
Pursuant to Tex. R. App. Pro. R. 9.5(a) & (e), I certify that on April 2, 2015,
I electronically filed a copy of the foregoing Appellant's Brief with the Clerk of the
Fourteenth Court of Appeals online, with an electronic copy designated for the
Honorable District Attorney for Harris County. In addition, I will mail a certified
copy to Appellant, Narjes Modaressi on Thursday April 2, 2015.
/s/ Vivian R. King
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