No. 14-14-00427-CR

In the

Court of Appeals

For the 

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

ACCEPTED

14-14-00427-CR

FOURTEENTH COURT OF APPEALS

HOUSTON, TEXAS

4/9/2015 9:37:11 AM

CHRISTOPHER PRINE

CLERK

 FILED IN 14th COURT OF APPEALS HOUSTON, TEXAS 4/9/2015 9:37:11 AM CHRISTOPHER A. PRINE Clerk
i

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
ii

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
iii

STATEMENT OF FACTS.......................................................... 3

SUMMARY OF ARGUMENT.................................................... 23

ARGUMENT AND AUTHORITIES.............................................. 23

PRAYER FOR RELIEF............................................................ 35

CERTIFICATE OF COMPLIANCE ............................................ 35

CERTIFICATE OF SERVICE.................................................... 35
iv

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 
v

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
Page 1 of 35

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 2 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 3 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 4 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 5 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 6 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 7 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 8 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 9 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 10 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 1⁄2 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 11 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 12 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 13 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 14 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 15 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, nonmotivated, 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 16 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 17 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 18 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 19 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 20 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 21 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 22 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 23 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 24 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 25 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 lifewithout-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 26 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 27 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 28 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 29 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 30 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 31 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 32 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 33 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 34 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 35 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 

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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