Eric Byron Crayton v. State

Opinion

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.

2

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