Case Information
*1
SCHNEIDER &; McKINNEY, P. Cansmitted 12/14/2015 10:44:38 AM ATTORNEYS AT LAW 440 Louisiana, Suite 800 Houston, Texas 77002 (713) 951 -9994
Telecopier: (713) 224-6008
December 11, 2015
FILED IN
COURT OF CRIMINAL APPEALS
Abel Acosta, Clerk Texas Court of Criminal Appeals 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 [1 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.
*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