                                                                                            ACCEPTED
                                                                                        04-14-00908-CR
                                                                            FOURTH COURT OF APPEALS
                                                                                 SAN ANTONIO, TEXAS
                                                                                   10/5/2015 4:35:05 PM
                                                                                         KEITH HOTTLE
                                                                                                 CLERK

                          Cause No. 04-14-00908
                  IN THE FOURTH COURT OF APPEALS
                         SAN ANTONIO, TEXAS                            FILED IN
                                                                4th COURT OF APPEALS
                                                                 SAN ANTONIO, TEXAS
                                                                10/05/15 4:35:05 PM
KIT SHUM,                                 §                       KEITH E. HOTTLE
        Appellant,                        §                             Clerk
                                          §         On Appeal From the
         v.                               §         290th Judicial District Court
                                          §         Bexar County, Texas
THE STATE OF TEXAS,                       §         Cause No. 2014-CR-1592
        Appellee.                         §


              STATE’S MOTION TO AMEND ARGUMENT

TO THE HONORABLE JUSTICES OF THE COURT:

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

cause, by and through the undersigned Assistant Criminal District Attorney,

pursuant to Rule of Appellate Procedure 38.7, and respectfully seeks to amend the

argument presented in its Brief in Response as follows:

                       GROUNDS FOR AMENDMENT

   1. The State’s Brief in Response contends that Appellant was never offered a

      misdemeanor plea bargain and that the record does not reflect the offer of a

      misdemeanor plea bargain. (State’s Brief at 22-25) The State’s assertions in

      this respect were based on a review of the State’s file (which did not indicate

      a misdemeanor offer) and a conversation with the trial prosecutor (who

      represented that no misdemeanor was offered).


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   2. After filing its Brief in Response, the undersigned prosecutor was contacted

      by counsel for Appellant and provided with an email from the trial

      prosecutor which clearly offers a misdemeanor plea bargain agreement.

      That email is attached to the filing of this Motion. The undersigned then

      spoke with the trial prosecutor (who now works for the Kendal County

      Attorney’s Office), who said that she does not remember making the offer

      but acknowledges that the email appears to have been authored by herself.

   3. While the email in question does not appear in the record of the case, the

      undersigned prosecutor does not wish to advance an argument contrary to

      known facts.

                           NATURE OF AMENDMENT

   1. The State seeks by this motion to modify its argument by withdrawing the

      assertion that the prosecution never offered Appellant a misdemeanor plea

      bargain agreement.

   2. The State maintains all remaining points of argument and authority in its

      Brief in Response.

                                     PRAYER

      BY THE FOREGOING REASONS AND AUTHORITIES, the State of

Texas respectfully prays this Honorable Court permit the State to amend the

argument presented in its Brief in Response as described above.

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                                            Respectfully Submitted:



                                            ______________________________
                                            S. Patrick Ballantyne
                                            Assistant Criminal District Attorney
                                            Bexar County, Texas
                                            State Bar # 24053759
                                            101 W. Nueva St., 7th floor
                                            San Antonio, Texas 78205
                                            210-335-2277 (phone)
                                            sballantyne@bexar.org




                        CERTIFICATE OF SERVICE

      I, S. Patrick Ballantyne, hereby certify that a true and correct copy of this
Brief was transmitted this 5th day of October, 2015, to Michael Gross, attorney of
record for Appellant by electronic service through a court-approved eFiling
system.



                                            ______________________
                                            S. Patrick Ballantyne




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       FILED IN
4th COURT OF APPEALS
 SAN ANTONIO, TEXAS
10/05/15 4:35:05 PM
  KEITH E. HOTTLE
        Clerk
