PD-1452-15 COURT OF CRIMINAL APPEALS
PD-1452-15
AUSTIN, TEXAS
SCHNEIDER & McKINNEY, P.C. Transmitted 12/14/2015 10:44:38 AM
Accepted 12/15/2015 3:55:33 PM
ATTORNEYS AT LAW
440 Louisiana, Suite 800 ABEL ACOSTA
Houston, Texas 77002 CLERK
(713) 951-9994
Telecopier: (713) 224-6008
Stanley G. Schneider° & ° Board Certified Criminal Law- Texas Board of Legal Specialization
W. Troy McKinney°‡ & & Board Certified Criminal Appellate Law - Texas Board of Legal Specialization
Thomas D. Moran ‡ Board Certified DWI Defense - National College for DUI Defense
December 11, 2015
Abel Acosta, Clerk
Texas Court of Criminal Appeals December 15, 2015
P.O. Box 12308
Austin, Texas 78711
BY E-FILING
RE: State of Texas v. Brittany Wyatt, No. PD-1452-15, now pending in the
Texas Court of Criminal Appeals
Dear Sir:
The petition for discretionary review is currently before the Court. Please
distribute this citation to additional authority and letter brief to the members of the
Court for their consideration on the petition.
Since the petition was filed, the First Court of Appeals has delivered a new
opinion which is relevant to Issue One, whether the courts of appeals can consider
materials outside the appellate record such as attachments to briefs or factual claims
by parties which are not part of the appellate record.
In Schrock v. City of Baytown, No. 01-13-00618-CV (Tex. App. – Houston [1st
Dist.] December 10, 2015) (opinion on rehearing), the court considered exactly that
issue. The First Court of Appeals wrote:
Although the City asserts that it has released its lien against the
property and has attached a copy of a lien release to its brief, the City
concedes that it did not file the lien release in the trial court, did not
present it to the trial court, and has not made the lien release part of
the record in this appeal. We must determine a case on the record as
filed, and may not consider documents attached as exhibits to briefs.
Page 2 of 2
See Till v. Thomas, 10 S.W.3d 730, 733 (Tex. App.—Houston
[1st Dist.] 1999, no pet.).
Slip op., n. 8 at 5.
Although Schrock is a civil case, it is just the most recent in a long line of cases
holding appellate courts must decide cases based on the appellate record, not on
factual assertions or documents attached to briefs or motions filed in the appellate
court.
This decision is relevant to Appellee's assertion in Issue One of her petition
that review is proper pursuant to TEX. R. APP. P. 66.3(a) in that the decision of the
Court of Appeals is contrary to another decision of the First Court of Appeals in
addition to the one cited on page 2 of her petition.
Sincerely,
/s/ W. Troy McKinney
W. Troy McKinney
c.c. by electronic filing and U.S. mail to
Nueces County District Attorney’s Office
901 Leopard, Room 206,
Corpus Christi, Texas
by e-mail to bill.ainsworth@ co.nueces.tx.us
State Prosecuting Attorney,
P.O. Box 13046
Austin, Texas 78711-3046