                                                                                             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,
1
  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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