Kit Shum v. State

Opinion

ACCEPTED

04-14-00908-CR

FOURTH COURT OF APPEALS

SAN ANTONIO, TEXAS

10/5/2015 4:35:05 PM

KEITH HOTTLE

CLERK

Cause No. 04-14-00908

IN THE FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS FILED IN 4th COURT OF APPEALS SAN ANTONIO, TEXAS 10/05/15 4:35:05 PM

KIT SHUM, § KEITH E. HOTTLE Appellant, § Clerk § On Appeal From the v. § 290th Judicial District Court § Bexar County, Texas THE STATE OF TEXAS, § Cause No. 2014-CR-1592 Appellee. §

STATE’S MOTION TO AMEND ARGUMENT

TO THE HONORABLE JUSTICES OF THE COURT:

Now comes the State of Texas, Appellee in the above styled and numbered

cause, by and through the undersigned Assistant Criminal District Attorney,

pursuant to Rule of Appellate Procedure 38.7, and respectfully seeks to amend the

argument presented in its Brief in Response as follows:

GROUNDS FOR AMENDMENT

1. The State’s Brief in Response contends that Appellant was never offered a

misdemeanor plea bargain and that the record does not reflect the offer of a

misdemeanor plea bargain. (State’s Brief at 22-25) The State’s assertions in

this respect were based on a review of the State’s file (which did not indicate

a misdemeanor offer) and a conversation with the trial prosecutor (who

represented that no misdemeanor was offered).

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2. After filing its Brief in Response, the undersigned prosecutor was contacted

by counsel for Appellant and provided with an email from the trial

prosecutor which clearly offers a misdemeanor plea bargain agreement.

That email is attached to the filing of this Motion. The undersigned then

spoke with the trial prosecutor (who now works for the Kendal County

Attorney’s Office), who said that she does not remember making the offer

but acknowledges that the email appears to have been authored by herself.

3. While the email in question does not appear in the record of the case, the

undersigned prosecutor does not wish to advance an argument contrary to

known facts.

NATURE OF AMENDMENT

1. The State seeks by this motion to modify its argument by withdrawing the

assertion that the prosecution never offered Appellant a misdemeanor plea

bargain agreement.

2. The State maintains all remaining points of argument and authority in its

Brief in Response.

PRAYER

BY THE FOREGOING REASONS AND AUTHORITIES, the State of

Texas respectfully prays this Honorable Court permit the State to amend the

argument presented in its Brief in Response as described above.

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Respectfully Submitted:

______________________________

S. Patrick Ballantyne Assistant Criminal District Attorney Bexar County, Texas State Bar # 24053759 101 W. Nueva St., 7th floor San Antonio, Texas 78205 210-335-2277 (phone) sballantyne@bexar.org

CERTIFICATE OF SERVICE

I, S. Patrick Ballantyne, hereby certify that a true and correct copy of this Brief was transmitted this 5th day of October, 2015, to Michael Gross, attorney of record for Appellant by electronic service through a court-approved eFiling system.

______________________

S. Patrick Ballantyne

FILED IN 4th COURT OF APPEALS SAN ANTONIO, TEXAS 10/05/15 4:35:05 PM KEITH E. HOTTLE Clerk