1 

NO. 03-14-00617-CR

NATHANIEL PAUL FOX § IN THE THIRD 

§ 

V. § DISTRICT COURT OF 

§ 

THE STATE OF TEXAS § APPEALS OF TEXAS 

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 

ACCEPTED

03-14-00617-CR

8024723

THIRD COURT OF APPEALS

AUSTIN, TEXAS

12/1/2015 9:12:51 AM

JEFFREY D. KYLE

CLERK

 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 12/1/2015 9:12:51 AM JEFFREY D. KYLE Clerk
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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 1

st

day of December, 2015.

 /s/ Joshua D. Presley

 Joshua D. Presley