ACCEPTED
03-14-00617-CR
8024723
THIRD COURT OF APPEALS
AUSTIN, TEXAS
12/1/2015 9:12:51 AM
JEFFREY D. KYLE
CLERK
NO. 03-14-00617-CR
NATHANIEL PAUL FOX § IN THE THIRD FILED IN
3rd COURT OF APPEALS
§ AUSTIN, TEXAS
V. § DISTRICT 12/1/2015
COURT9:12:51
OF AM
§ JEFFREY D. KYLE
THE STATE OF TEXAS § APPEALS OF TEXAS Clerk
STATE’S MOTION TO FILE AMENDED BRIEF
TO THE HONORABLE JUSTICES OF SAID COURT:
Now comes the State of Texas, Appellee in the above-styled and -numbered
cause, and moves this Honorable Court to accept the filing of Appellee’s amended
brief, and for good cause would show the following:
I.
Appellant was indicted by a grand jury on March 13, 2013 for the charges of
Murder and Aggravated Assault of a Family or Household Member with a Deadly
Weapon in CR2013-091. He was subsequently convicted for both offenses.
Appellant filed his brief on January 22, 2015. The State filed its brief on April 13,
2015 at 11:22 p.m. No other briefs have been filed.
II.
I am handling the appeal for the State in this case. While reviewing the
briefs in this case in preparation for oral argument tomorrow, December 2nd, I
observed that although Appellant requested that the Court return the conviction for
the more serious offense and set aside the lesser conviction in the event it found a
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double jeopardy violation (Brief for Appellant at 9), the State’s brief through an
apparent oversight omitted a corresponding explicit prayer for such alternative
relief. See Ex parte Cavazos, 203 S.W.3d 333, 337 (Tex. Crim. App. 2006); see
also Tex. R. App. P. 43.3 (“When reversing a trial court’s judgment, the court must
render the judgment that the trial court should have rendered….”). Accordingly,
the State moves the Court to accept its amended brief – submitted along with the
instant motion – for filing in this case. See Tex. R. App. P. 38.7 (“A brief may be
amended or supplemented whenever justice requires, on whatever reasonable terms
the court may prescribe”); Majeed v. Hussain, 03-08-00679-CV, 2010 WL
4137472, at *9 (Tex. App.—Austin Oct. 22, 2010, no pet.) (mem. op.) (not
designated for publication) (allowing for the amendment of a brief to add an
explicit alternative prayer); Lopez-Juarez v. Kelly, 348 S.W.3d 10, 15 (Tex.
App.—Texarkana 2011, pet. denied) (holding that “[w]e agree with the Austin
Court of Appeals that a prayer can be amended”); Tex. R. App. P. 38.9. The only
changes in the State’s amended brief are the explicit additions to the prayer for
relief and corresponding changes to the certificates of service and compliance.1
III.
WHEREFORE, PREMISES CONSIDERED, the State’s counsel
respectfully prays that this Honorable Court accept and file its amended brief,
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Although the State has located some additional authorities for some issues since the original
filing of its brief, it will file these separately in a “letter of additional authorities.”
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submitted alongside the instant motion, as justice requires.
Respectfully submitted,
/s/ Joshua D. Presley
Joshua D. Presley SBN: 24088254
preslj@co.comal.tx.us
Comal Criminal District Attorney’s Office
150 N. Seguin Avenue, Suite 307
New Braunfels, Texas 78130
Ph: (830) 221-1300 / Fax: (830) 608-2008
CERTIFICATE OF SERVICE
I, Joshua D. Presley, Assistant District Attorney for the State of Texas,
Appellee, hereby certify that a true and correct copy of this State’s Motion to File
Amended Brief has been delivered to Appellant NATHANIEL PAUL FOX’s
attorney in this matter:
Paul A. Finley
pfinley@reaganburrus.com
Reagan Burrus PLLC
401 Main Plaza, Suite 200
New Braunfels, TX 78130
Counsel for Appellant on Appeal
By electronically sending it to his above-listed email address through
efile.txcourts.gov, this 1st day of December, 2015.
/s/ Joshua D. Presley
Joshua D. Presley
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