NO. 12-15-00031 CR 

NO. 12-15-00032 CR

IN THE 

TWELFTH COURT OF APPEALS 

SITTING AT TYLER, TEXAS 

___________________________

 

MITZI GAIL ALLGOR, 

Appellant, 

v.

THE STATE OF TEXAS, 

Appellee. 

 

Appealed from the County Court at Law of

Nacogdoches County, Texas 

Trial Court Nos. CF1302373 and CF1302374 

APPELLANT’S BRIEF

Noel D. Cooper 

Texas Bar No. 00796397 

LAW OFFICES OF NOEL D. COOPER

117 North St., Suite 2 

Nacogdoches, Texas 75961 

Telephone: (936) 564-9000 

Telecopier: (936) 715-6022 

Email: noelcooper@noelcooper.com 

ATTORNEY FOR APPELLANT, 

MITZI GAIL ALLGOR 

ORAL ARGUMENT REQUESTED 

ACCEPTED

12-15-00032-CR

TWELFTH COURT OF APPEALS

TYLER, TEXAS

5/20/2015 4:20:40 PM

CATHY LUSK

CLERK

 FILED IN 12th COURT OF APPEALS TYLER, TEXAS 5/20/2015 4:20:40 PM CATHY S. LUSK Clerk
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NO. 12-15-00031 CR

NO. 12-15-00032 CR

MITZI GAIL ALLGOR,

Appellant,

v.

THE STATE OF TEXAS,

Appellee.

 

IDENTITY OF PARTIES & COUNSEL

Appellant certifies that the following is a complete list of the parties, 

attorneys, and any other person who has any interest in the outcome of this 

lawsuit:

Noel D. Cooper

Texas Bar No. 00796397

LAW OFFICES OF NOEL D. COOPER

117 North St., Suite 2

Nacogdoches, Texas 75961

Telephone: (936) 564-9000

Telecopier: (936) 715-6022

Email: noelcooper@noelcooper.com

ATTORNEY FOR APPELLANT,

MITZI GAIL ALLGOR

Stephanie Stephens

State Bar No. 19160055

NACOGDOCHES COUNTY ATTORNEY

101 W. Main, Suite 233

Nacogdoches, Texas 75961

Telephone: (936) 560-7789

Fax: (936) 560-7809

Email: sstephens@co.nacogdoches.tx.us

ATTORNEY FOR APPELLEE
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MITZI GAIL ALLGOR

APPELLANT
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TABLE OF CONTENTS

IDENTITY OF PARTIES & COUNSEL.......................................................... 2

TABLE OF CONTENTS................................................................................. 4

INDEX OF AUTHORITIES ........................................................................... 5

STATEMENT OF THE CASE ........................................................................ 7

ISSUES PRESENTED ...................................................................................8

STATEMENT OF FACTS...............................................................................8

SUMMARY OF THE ARGUMENT...............................................................13

ARGUMENT AND AUTHORITIES..............................................................13

Issue 1: Was Appellant’s trial counsel ineffective in his 

representation of the Appellant? .....................................13

CONCLUSION............................................................................................. 18

PRAYER .......................................................................................................19

CERTIFICATE OF COMPLIANCE...............................................................19

CERTIFICATE OF SERVICE.......................................................................20
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INDEX OF AUTHORITIES

Case Law

Bell v. Cone, 535 U.S. 685, 152 L Ed 2d 914 

(2002).................................................................................................15

Brooks v. State, 957 S.W.2d 30

(Tex. Crim. App. 1997)........................................................................17

Bryant v. State, 187 S.W.3d 397

(Tex. Crim. App. 1995)........................................................................15

Hernandez v. State, 988 S.W.2d 770

(Tex. Crim. App. 1996)........................................................................14

Hudson v. State, 145 S.W.3d 323

(Tex. App.—Fort Worth 2004, pet. ref’d) ...........................................17

Sanchez v. State, 222 S.W.3d 85

(Tex. Crim. App. 2006).......................................................................14

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052

(1984)............................................................................................ 13, 14

United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657

(1984)..................................................................................................15

United States v. Williamson, 53 F.3d 1500

(10th Cir. 1995)...................................................................................15

Statutes

TEX. CODE CRIM. PROC. 

Article 42.12 .................................................................................. 16, 17

TEX. HEALTH & SAFETY CODE

Section 481.121................................................................................7, 16
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TEX. PENAL CODE 

Section 12.43.......................................................................................17

Section 38.03 .............................................................................7, 16, 17
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NO. 12-15-00031 CR

NO. 12-15-00032 CR

MITZI GAIL ALLGOR,

Appellant,

v.

THE STATE OF TEXAS,

Appellee.

APPELLANT’S BRIEF

COMES NOW, Noel D. Cooper, court-appointed counsel for

Appellant, MITZI GAIL ALLGOR, in the above numbered cause, and files 

this Appellant’s Brief and would show this Honorable Court as follows:

STATEMENT OF THE CASE

Nature of the Case. Appellant was charged by information with 

Resisting Arrest under TEX. PENAL CODE §38.03, a Class A misdemeanor. 

The case was filed in the Nacogdoches County Court at law under Cause 

Number CF1302373. Appellant was charged by information in a companion 

case CF1302374 with Possession of Marijuana of an amount under two 

ounces under TEX. HEALTH & SAFETY CODE §481.121, a Class B 

misdemeanor. 

Course of Proceedings. On October 13, 2014, a jury was selected, and 

evidence was opened and closed on November 20, 2014. The punishment 

hearing was held on January 8, 2015.
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Trial Court Disposition. The jury found Appellant guilty of Resisting 

Arrest and Possession of Marijuana. The trial court assessed punishment at 

240 days and 120 days, respectively, to run concurrently.

ISSUES PRESENTED

Issue 1: Was Appellant’s trial counsel was ineffective in his 

representation of the Appellant during the jury trial?

STATEMENT OF FACTS

Jury Selection.

Appellant’s trial counsel made no objections during the voir dire. RRS 

passim. 

Opening Statements

Appellant’s trial counsel did not make any objections to the State’s 

opening statement. RR 1:passim. During his opening statement, 

Appellant’s trial counsel was into his fourth sentence, 41 words, when the 

State’s objection to the argumentative nature of the opening was sustained. 

RR 1:14. After the objection was sustained, Appellant’s trial counsel said 

three more sentences, 17 words, and ceased. RR 1:15. 

Brett Ayers

The state’s first witness was Brett Ayers, a police officer for the City of 

Nacogdoches. RR 1:15. Officers with the Nacogdoches Police Department 
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are allowed to work extra duty jobs and wear their uniform. RR 1:18. On 

October 8, 2013, Officer Ayers was working as a security guard at Eastwood 

Terrace Apartments in the City of Nacogdoches. RR 1:19-20. Mr. Ayers 

identified Ms. Allgor. RR 1:20-21. Mr. Ayers noticed a vehicle operating at a 

high rate of speed. RR 1:21. He pursued it in his private vehicle, and while 

doing so observed the other vehicle drive through parking spaces to avoid 

speed bumps. RR 1:22-23. When the vehicle stopped he pulled in behind 

and determined that it was operated by Ms. Allgor. RR 1:23. 

There was one other person with Ms. Allgor who he allowed to go, but 

he said Ms. Allgor was not free to go. RR 1:24. While talking to Ms. Allgor, 

she became very excited. RR 1:25. She told Mr. Ayers that she believed she 

had a warrant for her arrest. RR 1:26. Ms. Allgor began yelling at a female 

person to come and get her purse. RR 1:27. Mr. Ayers told her that the 

other person could not come and get her purse. RR 1:27. After the other 

person who was identified as Ms. Allgor’s teenage daughter complied with 

Mr. Ayers, Ms. Allgor began dropping the contents of her purse on the 

floorboard of her vehicle and began reaching down to the contents. RR 

1:27-28. Mr. Ayers told her to show her hands, but she pressed something 

against her leg. RR 1:29. He told her to show what was in her hands and she 

wouldn’t comply. RR 1:30. Ms. Allgor took her left hand and tried to roll up 
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the car window, and Mr. Ayers stopped her. RR 1:31. Ms. Ayers then threw 

the object in her right hand out the passenger window. RR 1:31. Mr. Ayers 

illuminated the ground with his flashlight and observed a clear plastic bag 

that contained what he thought was marijuana. RR 1:31-32. 

Ms. Allgor began to “struggle” to stay in the vehicle. RR 1:32. While 

trying to get her out, she threw out her purse, too. RR 1:32. Mr. Ayers 

grabbed her left arm to try to pull her out, and she starting twisting and 

turning, and she kicked him in his legs. RR 1:33. Mr. Ayers was able to cuff 

Ms. Allgor’s hands behind her back while she was standing. RR 1:34. 

During this time, Ms. Allgor was calling on the young man and woman on 

the passenger’s side of her vehicle to “get it.” RR 1:35. Mr. Ayers pulled Ms. 

Allgor around to the passenger side of her vehicle and discovered two 

baggies. RR 1:36-37. Ms. Allgor then put her foot on one of the baggies and 

started grinding it into the ground, destroying one of the two baggies. RR 

1:37-38. After putting Ms. Allgor on the ground, he was required to 

threaten the young male with pepper spray to back off. RR 1:38-39. 

After Ms. Ayers’s backup arrived, he searched Ms. Allgor’s vehicle and 

discovered a cigar filled with a green leafy substance which he believed to 

be marijuana in the closed, front middle console. RR 1:40-41. Inside State’s 

Exhibit 2 was a green leafy substance that he believed was marijuana. RR 
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1:42. State’s Exhibit 3 appeared to be a hand rolled cigarette or cigar. RR 

1:44. Mr. Ayers testified that both State’s Exhibits 2 and 3 were a usable 

quantity of marijuana. RR 1:45. 

Mr. Ayers testified that Eastwood Terrace was in the City of 

Nacogdoches. RR 1:72.

Christy Bruton

The state’s next witness was Christy Bruton, an officer with the 

Nacogdoches Police Department who handles evidence. RR 1:62. 

Misdemeanor amounts of marijuana are not sent to the DPS crime lab for 

analysis but instead stored in the evidence drug room. RR 1:63-64. State’s 

Exhibits 1, 2, and 3 were logged in and stored by Ms. Bruton. RR 1:64. Once 

this matter was set for trial, Ms. Bruton transported State’s Exhibits 1, 2, 

and 3 to the DPS crime lab in Tyler. RR 1:64-65.

Caroline Allen

Caroline Allen was a forensic scientist employed by the DPS crime lab 

in Tyler, Texas. RR 1:66. She testified as to the chain of custody of Exhibits 

1, 2, and 3. RR 1:66-68. Exhibit 2 weighed 8.2 grams. RR 1:69. After 

weighing Exhibit 2, she confirmed that it contained marijuana. RR 1:70. 

Exhibit 3 contained 1.28 grams of marijuana. RR 1:70. 

Mitzi Gail Allgor
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During the punishment hearing, Ms. Allgor took the stand. RR 2:8. 

She testified that she was living with her three children and a grandchild. 

RR 2:8. She testified that her two oldest children have schizophrenia and a 

heart condition, respectively. RR 2:8-9. Ms. Allgor was responsible for the 

wellbeing of four minor children. RR 2:11. There were no other adults who 

could help her take care of her children. RR 2:12. Ms. Allgor testified that 

she had been to prison and had some misdemeanor trouble, but she had 

mostly stayed out of trouble. RR 2:13-14. Ms. Allgor’s son with 

schizophrenia required constant watching. RR 2:16. 

On cross examination, Ms. Allgor conceded that she had been 

arrested and convicted on several occasions between 1993 and 2014. RR 

2:17-22. She would not concede that she was guilty of the offenses in this 

appeal. RR 2:22-23. Ms. Allgor said that she was sorry. RR 2:26. 

Closing Argument

During his closing argument, Ms. Allgor’s trial counsel, Lee 

Westmoreland, told that trial court that punishment was warranted , and 

he requested that she be sentenced to 30 days in jail. RR 2:28. During a 

discussion with the trial court judge, the following exchange took place:

THE COURT: . . .All right. Your client, based on the argument is to go 

to jail today, is that what you're saying?

MR. WESTMORELAND: Obviously.
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THE COURT: You say go to jail for 30 days and she is saying 300 

days, or whatever. Doesn't matter how long, she is going to jail.

MR. WESTMORELAND: She is not eligible for probation.

RR 2:32 (emphasis added). 

After a recess, the trial court came back on the record for his ruling 

and stated on the record that “the law doesn’t allow you any probation. And 

I believe resisting arrest with priors is a minimum of 90 days. It can’t be 30 

days.” RR 2:34. There was no objection by Mr. Westmoreland to the trial 

court’s comments on the law. RR 2:34. 

SUMMARY OF THE ARGUMENT

Appellant’s sole issue is that Appellant’s trial counsel was ineffective. 

Assuming that trial counsel’s failure to contest the State’s case in chief 

during the guilt/innocence stage of the trial, Appellant’s trial counsel was 

ineffective by not understanding the law, making an erroneous judicial 

admission, and failing to correct errors of the trial court regarding 

Appellant’s probation eligibility.

ARGUMENT AND AUTHORITIES

Issue 1: Appellant’s trial counsel was ineffective in his 

representation of the Appellant during the jury trial.

Argument & Authorities

The adequacy of counsel’s representation is evaluated using the twopart standard articulated by Strickland v. Washington, 466 U.S. 668, 694, 
-14-

104 S.Ct. 2052, 2068 (1984) and adopted by Hernandez v. State, 988 

S.W.2d 770, 772 (Tex. Crim. App. 1996). Sanchez v. State, 222 S.W.3d 85, 

90 (Tex. Crim. App. 2006). The test is: 1) whether the attorney’s 

performance fell below an objective standard of reasonableness under 

prevailing professional norms, and 2) whether there is a reasonable 

probability that, but for counsel’s unprofessional errors, the results of the 

proceedings could have been different. Id. Reasonable probability is a 

probability sufficient to undermine confidence in the outcome. Hernandez 

v. State, 726 S.W.2d 53, 55 (Tex. Crim. App. 1986). 

The reviewing court begins with the presumption that counsel’s 

actions and decisions were reasonably professional and motivated by sound 

trial strategy. Sanchez, 222 S.W.3d at 90. The party challenging counsel’s 

effectiveness has the burden to rebut the presumption by presenting 

evidence. Id. at 90. 

Appellant’s trial counsel was ineffective.

In the present case, the record shows that trial counsel’s performance 

affected the outcome of the case as required by the Strickland test. See 

Strickland v. Washington, 466 U.S. 668, 694-95, 104 S.Ct. 2052, 2068 

(1984). Strickland requires that, to show ineffective assistance of counsel, 

an appellant must prove that his attorney’s representation fell below an 
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objective standard of reasonableness under the prevailing professional 

norms and that there is a reasonable probability that, but for those 

unprofessional errors, the result of the proceeding would have been 

different. Id. at 694-95. 

The United States Supreme Court recognized a limited exception to 

Strickland, holding that “if counsel entirely fails to subject the 

prosecution's case to meaningful adversarial testing, then there has been a 

denial of Sixth Amendment rights that makes the adversary process itself 

presumptively unreliable.” United States v. Cronic, 466 U.S. 648, 658-59, 

104 S.Ct. 2039, 80 L.Ed.2d 657 (1984). For Cronic to apply, however, the 

attorney's failure to test the prosecutor's case "must be complete." Bell v. 

Cone, 535 U.S. 685, 696-97, 152 L Ed 2d 914 (2002). Courts have

sometimes found this complete failure where counsel abandons his client in 

closing argument by conceding his guilt. See United States v. Williamson, 

53 F.3d 1500, 1511 (10th Cir. 1995) (collecting cases in which closing 

statements admitting guilt on the only disputed fact issues was Cronic

error).

“A defendant in a criminal case may stipulate to evidence against him. 

If the defendant elects to do this, his stipulation is a kind of judicial 

admission.” Bryant v. State, 187 S.W.3d 397, 400 (Tex. Crim. App. 1995). 
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“Judicial admissions are not evidence at all. Rather, they are formal 

concessions in the pleadings in the case or stipulations by a party or counsel 

that have the effect of withdrawing a fact from issue and dispensing wholly 

with the need for proof of the fact.” Id. (citing 2 JOHN W. STRONG, ET AL.,

MCCORMICK ON EVIDENCE § 255 (5th ed.1999)).

An express waiver, made in court or prepatory to trial, by the party or 

his attorney, conceding for the purposes of the trial the truth of some 

alleged fact, has the effect of a confessory pleading, in that the fact is 

thereafter to be taken for granted; so that the one party need offer no 

evidence to prove it, and the other is not allowed to disprove it. This is 

what is commonly termed a solemn — i.e., ceremonial or formal — or 

judicial admission, or stipulation. It is, in truth, a substitute for 

evidence, in that it does away with the need for evidence.

Id. (citing 9 WIGMORE ON EVIDENCE § 2591 (3d ed.1940) (emphasis 

deleted)).

Irrespective of trial counsel’s performance or lack thereof during the 

guilt-innocence stage of the trial, it was during the punishment hearing that 

the ineffectiveness became readily apparent. As discussed above, Ms. 

Allgor’s trial counsel told the trial court that she was not eligible for 

probation from the judge. RR 2:32. This is a complete misstatement of the 

law. Resisting Arrest is a Class A misdemeanor. TEX. PENAL CODE §38.03(c). 

Possession of Marijuana in an amount of two ounces or less is a Class B 

misdemeanor. TEX. HEALTH & SAFETY CODE § 481.121(b)(1). Neither offense 

is a “3g” offense. See TEX. CODE CRIM. PROC. art. 42.12 §3g. Accordingly, Ms. 
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Allgor was eligible for probation from the trial court. See TEX. CODE CRIM.

PROC. art. 42.12 §3(a). However, the trial court took Mr. Westmoreland and 

his word and told Ms. Allgor that she was not eligible for probation. RR 

2:34. 

Further, the trial court misstated the law with regard to the minimum 

sentence for resisting arrest. Specifically, the trial court stated, “I believe 

resisting arrest with priors is a minimum of 90 days. It can’t be 30 days.” 

RR 2:34. This is a misstatement of law. Nowhere in the statute dealing with

Resisting Arrest does it state that the minimum confinement for a 

subsequent offense is 90 days in jail. TEX. PENAL CODE §38.03 passim. The 

likely basis of this assertion is that, under certain circumstances, the 

minimum confinement for a Class A misdemeanor can be increased to 90 

days. TEX. PENAL CODE §12.43(a)(2). However, that minimum confinement 

is not the only allowable punishment. TEX. PENAL CODE §12.43(a)(1),(3). 

More importantly, the State did not provide Ms. Allgor or her trial counsel 

with any notice that it was seeking to enhance the punishment under 

Section 12.43. CR passim. Because she was not provided with any notice 

that the State sought to enhance her punishment as to either charge, her 

prior convictions did not operate to change the minimum punishments. See 

Brooks v. State, 957 S.W.2d 30, 33 (Tex. Crim. App. 1997); Hudson v. 
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State, 145 S.W.3d 323, 326 (Tex. App.—Fort Worth 2004, pet. 

ref’d)(holding that notice given to defendant before punishment hearing 

but after commencement of guilt-innocence was untimely). Ms. Allgor’s 

trial counsel made no objections to the trial court’s statements about the 

minimum confinements or probation eligibility when it could have changed 

the outcome. RR 2:passim. 

CONCLUSION

By telling the trial court that Ms. Allgor was not eligible for probation, 

he effectively took that issue out of contention, and failed to subject the 

State’s case to adversarial testing. Ms. Allgor was already on probation in 

another case. RR 2:31. Further, there was discussion back and forth 

regarding what types of conditions could be placed on Ms. Allgor should 

she receive probation on this matter. RR 2:31. However, based on Mr. 

Westmoreland’s statements, the trial court told Ms. Allgor that she could 

only go to jail. RR 2:32. It was clear from Ms. Allgor’s testimony that she 

wanted probation, and it is inconceivable that a misstatement of law would 

be trial strategy. As such, Ms. Allgor was undoubtedly harmed, and the 

performance of her trial counsel unfortunately had a profound effect upon 

the outcome of the case.
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PRAYER

Appellant prays that the Court reverse the judgment of the trial court 

convicting her of Resisting Arrest and Possession of Marijuana and remand 

this matter to trial court for a new trial. In the alternative, Appellant prays 

that the Court reverse the judgment of the trial court and remand this 

matter to the trial court for a new trial on punishment. Appellant prays for 

any further relief to which she is entitled.

Respectfully submitted,

/s/Noel D. Cooper 

Noel D. Cooper

Texas Bar No. 00796397

LAW OFFICES OF NOEL D. COOPER

117 North St., Suite 2

Nacogdoches, Texas 75961

Telephone: (936) 564-9000

Telecopier: (936) 715-6022

Email: noelcooper@noelcooper.com

ATTORNEY FOR APPELLANT,

MITZI GAIL ALLGOR

CERTIFICATE OF COMPLIANCE

Pursuant to TEX. R. APP. P. 9.4(i)(3), I certify that this document is 

computer generated and contains 2,463 words based on a computer word 

count. 

/s/Noel D. Cooper 

NOEL D. COOPER
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CERTIFICATE OF SERVICE

I certify that I delivered a copy of this Appellant’s Brief to each 

attorney of record or party in accordance with the Texas Rules of Appellate 

Procedure on May 20, 2015, at the addresses and manners below.

Stephanie Stephens

State Bar No. 19160055

NACOGDOCHES COUNTY ATTORNEY

101 W. Main, Suite 233

Nacogdoches, Texas 75961

Telephone: (936) 560-7789

Fax: (936) 560-7809

Email: sstephens@co.nacogdoches.tx.us

Via Electronic Filing Manager

/s/Noel D. Cooper

Noel D. Cooper

Attorney for Appellant