                                                                                                ACCEPTED
                                                                                            03-14-00570-CR
                                                                                                  12977510
                                                                                 THIRD COURT OF APPEALS
                                                                                            AUSTIN, TEXAS
                                                                                       9/29/2016 2:22:40 PM
                                                                                          JEFFREY D. KYLE
                                                                                                     CLERK
                                  03-14-00570-CR

ERIC BYRON CRAYTON                         §              IN THE THIRD
                                                                    FILED IN
                                                               3rd COURT OF APPEALS
                                           §                       AUSTIN, TEXAS
V.                                         §              COURT9/29/2016
                                                                 OF APPEALS
                                                                         2:22:40 PM
                                           §                     JEFFREY D. KYLE
THE STATE OF TEXAS                         §              AUSTIN, TEXASClerk


          STATE’S LETTER OF AN ADDITIONAL AUTHORITY

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 Letter of an Additional Authority.  The State submitted its

brief on July 3, 2015.  In both Appellant’s Brief (February 2, 2015) and Reply Brief

(August 17, 2015), Appellant relied in part on Pannell v. State, 7 S.W.3d 222, 223

(Tex.  App.—Dallas 1999, pet.  ref’d), arguing that “the defendant [must] be aware

that the thing he altered, destroyed or concealed was evidence in the investigation

as it existed at the time....” Reply Brief at 12.  Although Pannell is not ‘red flagged’

in Westlaw, while researching another case today, the State located the Court of

Criminal Appeals case Williams v. State, in which the Court stated:

      Pannell grafts a fourth element onto section 37.09(a)(1), and a narrow
      reading of the statute does not support Pannell’s conclusion that a
      person must be “aware that the thing he altered, destroyed, or
      concealed was evidence in the investigation as it existed at the time of
      the alteration, destruction, or concealment.” ....  By not requiring an
      exercise in evidentiary theory, the statute is more reflective of
      investigatory reality, envisioning an offender who intends for, but is
      not necessarily aware of, the impairment of something's role as
      evidence in the investigation. 


                                          1
      In conclusion, Appellant’s challenge depends upon an additional
      element to section 37.09(a)(1), introduced by Pannell.  This element is
      not supported by the language of the statute and, therefore,
      Appellant’s challenge has no statutory foundation.  Moreover,
      Pannell’s fourth element renders the statute impractical and unfit for
      its purpose. 

270 S.W.3d 140, 144 (Tex.  Crim.  App.  2008).  Accordingly, the State submits the

foregoing Letter of an Additional Authority in the instant case. 


                                       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 Letter of an
Additional Authority has been delivered to Appellant ERIC BYRON CRAYTON’s
attorney in this matter:

      Richard E. Wetzel
      wetzel_law@1411west.com
      1411 West Avenue
      Austin, TX 78701
      Counsel for Appellant on Appeal

by electronically sending it to the foregoing              email   address   through
efile.txcourts.gov, this 29th day of September, 2016. 

                                              /s/ Joshua D. Presley
                                               Joshua D. Presley

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