                                          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
