ACCEPTED
03-14-00617-CR
8038070
THIRD COURT OF APPEALS
AUSTIN, TEXAS
12/1/2015 3:37:07 PM
JEFFREY D. KYLE
CLERK
NO. 03-14-00617-CR
NATHANIEL PAUL FOX § IN THE THIRD FILED IN
3rd COURT OF APPEALS
§ AUSTIN, TEXAS
V. § DISTRICT 12/1/2015
COURT3:37:07
OF PM
§ JEFFREY D. KYLE
THE STATE OF TEXAS § APPEALS OF TEXAS Clerk
STATE’S LETTER OF ADDITIONAL AUTHORITIES
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 Additional Authorities. Some of the following
cases were released after the State filed its original brief. The attorney for the State
bookmarked them for later review, and upon further analysis beginning this
Monday found that: 1) rehearing has since been denied, and that 2) they might be
relevant to the Court’s decision. The following are excerpts from potentially
relevant cases:
Extraneous offense evidence:
In an analogous situations involving extraneous offense evidence,
virtually all courts have declined to make a finding of ineffective
assistance of counsel on direct appeal based on a trial attorney’s
failure to request a limiting instruction even when an instruction
would have been required if requested.
….
Further, several courts have noted that a trial attorney may reasonably
decide, as part of her trial strategy, not to request a limiting instruction
because a limiting instruction may actually have the effect of bringing
unwanted attention to the extraneous offense evidence, and thereby
have a negative impact on the defendant’s case.
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Villalva v. State, 08-13-00219-CR, 2015 WL 4134531, at *5-6 (Tex. App.—El
Paso July 8, 2015, no pet.) (mandate issued Sept. 29, 2015) (not designated for
publication) (internal citations omitted).
Double Jeopardy:
To prevail, the claimant must prove legal sameness and factual
sameness.
….
…there are two relevant inquiries in a double-jeopardy analysis. The
legal-sameness inquiry depends on only the pleadings and statutory
law—not the record—to ascertain whether two offenses are the same.
The factual-sameness inquiry requires a reviewing court to examine
the entire record to determine if the same offenses have been alleged.
Ex Parte Castillo, 469 S.W.3d 165, 169-72 (Tex. Crim. App. 2015), reh’g denied
(Oct. 7, 2015).
An element of the offense of aggravated assault domestic violence is
that the victim of the offense be “a person whose relationship to or
association with the defendant is described by § 71.0021(b), 71.003,
or 71.005, of the Texas Family Code....”See Tex. Penal Code Ann. §
22.02(b)(1) (West 2011).
Cobbs v. State, 07-11-0201-CR, 2011 WL 6347518, at *1 (Tex. App.—Amarillo
Dec. 19, 2011, no pet.) (per curiam order for rebriefing) (not designated for
publication).
The Penal Code defines elements of the offense as (a) the forbidden
conduct, (b) the required culpability, (c) any required result, and (d)
the negation of any exception to the offense. Tex. Pen Code Ann. §
1.07(a)(22) (Vernon 1994).
Sheppard v. State, 5 S.W.3d 338, 340 (Tex. App.—Texarkana 1999, no pet.).
2
if the two offenses have different elements under the Blockburger test,
the judicial presumption is that the offenses are different for double-
jeopardy purposes and that cumulative punishment may be imposed.
This presumption can be rebutted by a showing, through various
factors, that the legislature “clearly intended only one” punishment.
….
Even if an analysis of the Ervin factors were inconclusive, applicant’s
double-jeopardy claim would fail, because the presumption
established by the offenses having different elements under the
Blockburger analysis would remain unrebutted. When the
Blockburger same-elements test indicates that the offenses are
different, the evidence that the legislature intended only one
punishment must be clear in order to rebut that presumption.
Ex parte Benson, 459 S.W.3d 67, 72, 89 (Tex. Crim. App. 2015), reh’g denied
(May 20, 2015) (internal citations omitted).
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
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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
Additional Authorities 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 1st day of December, 2015.
/s/ Joshua D. Presley
Joshua D. Presley
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