                                                                                   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


                                     Page 17 of 35
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


                                     Page 19 of 35
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.




                                     Page 24 of 35
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
                                     Page 25 of 35
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
                                     Page 35 of 35
