                                                                                                 ACCEPTED
                                                                                             03-14-00617-CR
                                                                                                     8042921
                                                                                  THIRD COURT OF APPEALS
                                                                                             AUSTIN, TEXAS
                                                                                        12/1/2015 7:13:13 PM
                                                                                           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
                                                              COURT7:13:13
                                                                         OF PM
                                          §                    JEFFREY D. KYLE
THE STATE OF TEXAS                        §         APPEALS OF TEXAS Clerk


      STATE’S SECOND LETTER OF ADDITIONAL AUTHORITIES

TO THE HONORABLE JUSTICES OF SAID COURT:

      Now comes the State of Texas, Appellee in the above-styled and -numbered

cause, and files this its Second Letter of an Additional Authority. After further

review of the opinions issued after the State submitted its original brief, an

additional case cited in Ex parte Castillo may be relevant to the Court’s decision in

that it may be contrary to part of the State’s argument regarding an Ervin factor:



Double Jeopardy:

      Although it properly observed that the primary consideration is the
      intent of the Legislature, the court of appeals erred by mistakenly
      identifying the focus or gravamen of the two offenses as being distinct
      and in relying upon that erroneous conclusion as the basis for its
      ruling. Of all the factors listed in Ervin, this Court has found that the
      focus, or “gravamen,” of the two offenses is the best indicator of the
      Legislature’s intent to treat the offenses as the same or different for
      double jeopardy purposes.
      ….

      The indictment that charged appellant with aggravated assault with a
      deadly weapon against a public servant alleged that appellant caused
      bodily injury to Trooper Hoppas under Section 22.01(a)(1) of the
      Penal Code. Therefore, the gravamen of aggravated assault with a

                                          1
      deadly weapon against a public servant, as charged in the indictment,
      was causing bodily injury.
      The court of appeals’s opinion suggests that causing bodily injury,
      using a deadly weapon, and injuring a public servant are all
      gravamen of the offense of aggravated assault with a deadly weapon
      against a public servant. This is so, it suggests, because appellant
      could not have completed the offense as charged without all three
      elements being present. In determining the gravamen of this result-
      oriented offense, however, the question is not based on a
      consideration of most or all of the particular elements, but instead on
      the result of appellant’s action, bodily injury. See Landrian, 268
      S.W.3d at 537 (“ ‘The precise act or nature of conduct in this result-
      oriented offense [aggravated assault] is inconsequential. What matters
      is that the conduct (whatever it may be) is done with the required
      culpability to effect the result the Legislature has specified.’ ”)).

      Like aggravated assault with a deadly weapon against a public
      servant, intoxication assault is a result-oriented offense with the
      gravamen of causing bodily injury.

Shelby v. State, 448 S.W.3d 431, 438-39 (Tex. Crim. App. 2014) (some internal
citations omitted) (emphasis added); see also Ex Parte Castillo, 469 S.W.3d 165,
171 (Tex. Crim. App. 2015), reh’g denied (Oct. 7, 2015) (“death is a type of bodily
injury”).




                                      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




                                        2
                         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 Second Letter of

Additional Authorities 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




                                          3
