Case Information
*0 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 12/1/2015 7:13:13 PM JEFFREY D. KYLE Clerk NO. 03-14-00617-CR THIRD COURT OF APPEALS 12/1/2015 7:13:13 PM JEFFREY D. KYLE AUSTIN, TEXAS 03-14-00617-CR *1 ACCEPTED [8042921] CLERK NATHANIEL PAUL FOX § IN THE THIRD
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V. § DISTRICT COURT OF
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THE STATE OF TEXAS § APPEALS OF TEXAS
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
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, 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 *3 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 1 st day of December, 2015.
Joshua D. Presley