IN THE THIRD COURT OF APPEALS 

FOR THE STATE OF TEXAS 

NATHANIEL PAUL FOX, 

Appellant 

 NO. 03-14-00617-CR 

V. 

THE STATE OF TEXAS, 

Appellee 

APPELLANT’S BRIEF 

On appeal from the 207th Judicial District Court of Comal County, Texas 

Trial Court Cause No. CR2013-091 

Honorable Bruce Boyer, District Judge Presiding 

Paul A. Finley 

State Bar No. 07023300 

Reagan Burrus, PLLC 

401 Main Plaza, Suite 200 

New Braunfels, Texas 78130 

Telephone: (830) 625-8026 

Facsimile: (830) 625-4433 

Email: pfinley@reaganburrus.com

Oral Argument is Respectfully Requested 

ACCEPTED

03-14-00617-CR

3855582

THIRD COURT OF APPEALS

AUSTIN, TEXAS

1/22/2015 9:18:19 AM

JEFFREY D. KYLE

CLERK

 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 1/22/2015 9:18:19 AM JEFFREY D. KYLE Clerk
i 

IDENTITIES OF PARTIES AND COUNSEL 

 Pursuant to the provisions of Rule 38.1(a), Texas Rules of Appellate 

Procedure, a complete list of the names of all parties to this action and 

counsel are as follows: 

Parties: Nathaniel Paul Fox, Appellant 

 State of Texas, Appellee 

Attorney for the Appellant: Paul A. Finley 

 State Bar No. 07023300 

Reagan Burrus PLLC 

401 Main Plaza, Suite 200 

New Braunfels, Texas 78130 

Telephone: (830) 625-8026 

Facsimile: (830) 625-4433 

Email: pfinley@reaganburrus.com

Attorney for the State: Joshua Presley 

 State Bar No. 24088254 

 Assistant Criminal District Attorney 

 150 N. Seguin Avenue, Suite 307 

 New Braunfels, Texas 78130 

 Telephone: (830) 221-1300 

 Facsimile: (830) 608-2008 

 Email: presleyjo@co.comal.tx.us 
ii 

TABLE OF CONTENTS 

IDENTITIES OF PARTIES AND COUNSEL ............................................. i 

TABLE OF CONTENTS ........................................................................... ii 

INDEX OF AUTHORITIES ...................................................................... iii 

STATEMENT OF THE CASE ................................................................. 1 

STATEMENT REGARDING ORAL ARGUMENT ................................... 1 

SUMMARY OF FACTS ........................................................................... 3 

SUMMARY OF ARGUMENT .................................................................. 6 

ISSUE ONE: THE CONVICTION AGAINST THE APPELLANT 

 FOR THE CHARGES OF BOTH MURDER AND 

 FOR AGGRAVATED ASSAULT SUBJECTED 

APPELLANT TO DOUBLE JEOPARDY ...................... 6 

ISSUE TWO: COUNSEL FOR APPELLANT RENDERED 

INEFFECTIVE ASSISTANCE TO THE APPELLANT 

FOR THE FAILURE TO OBJECT TO THE STATE’S 

CROSS EXAMINATION OF APPELLANT WITH 

EVIDENCE OF EXTRANEOUS OFFENSES ............ 10 

PRAYER ............................................................................................... 14 

CERTIFICATE OF COMPLIANCE ........................................................ 15 

CERTIFICATE OF SERVICE ................................................................ 15
iii 

INDEX OF AUTHORITIES 

Alvarez v. State, 511 S.W.2d 493 (Tex. Crim. App. 1973) .................... 11 

Blockburger v. United States, 284 U.S. 299 (1932) ................................ 7 

Brigon v. State, 252 S.W.3d 360 (Tex. Crim. App. 2008) ....................... 8 

Ex parte Cavazos, 203 S.W.3d 333 (Tex. Crim. App. 206) ..................... 9 

Gilbert v. State, 808 S.W.2d 467 (Tex. Crim. App. 1991) ..................... 11 

Gundy v. State, 213 S.W. 3d 315 (Tex. Crim. App. 2006) ...................... 8 

Langs v. State, 183 S.W.3d 680 (Tex. Crim. App. 2006) ........................ 7 

Ortiz v. State, 93 S.W.3d 79 (Tex. Crim. App. 2002) ............................ 11 

Ramirez v. State, 873 S.W.2d 757 (Tex. App. – El Paso 1994) ............ 12 

Ruiz v. State, 579 S.W.2d 206 (Tex. Crim. App. 1979) ......................... 11 

Russell v. State, 113 S.W.3d 530 (Tex. App. – Fort Worth 2003) ......... 11 

Strickland v. Washington, 466 U.S. 668 (1984) .................................... 12 

STATUTES AND RULES 

Tex. R. Evid. § 404(b) ........................................................................... 11 

Tex. Pen. Code § 19.02 .......................................................................... 8 

Tex. Pen. Code § 22.02 .......................................................................... 8 

U.S. Const. Amend. V. ............................................................................ 7 

U.S. Const. Ament. XIV ........................................................................... 7
1 

TO THE HONORABLE JUSTICES OF THE THIRD COURT OF APPEALS: 

 COMES NOW NATHANIEL PAUL FOX, Appellant in this case, by 

and through his attorney of record, PAUL A. FINLEY, and, pursuant to the 

provisions of Tex. R. App. Pro. 38, et. seq., files this brief on appeal. 

STATEMENT OF THE CASE 

 Appellant was indicted in Cause No. CR 2013-091 for the offense of 

Murder and Aggravated Assault (CR Vol. 1, pp. 6-7). He entered pleas of 

Not Guilty to both charges. A jury found Appellant guilty of both Murder 

and Aggravated Assault of a Family or Household member with a deadly 

weapon on August 22, 2014, (CR Vol. 1, pp. 35-36). The Court assessed 

punishment at sixty years confinement in the Texas Department of Criminal 

Justice—Institutional Division on both charges with sentences to run 

concurrently, (CR Vol. 1, pp. 37-43). Appellant gave notice of appeal on 

September 14, 2014, (CR Vol. 1, p. 160). 

STATEMENT REGARDING ORAL ARGUMENT 

Appellant requests oral argument in this case. Oral argument will aid 

the Court’s decisional process in this case. 

ISSUES PRESENTED 

ISSUE ONE: THE CONVICTION AGAINST THE APPELLANT FOR 

THE CHARGES OF BOTH MURDER AND FOR 

AGGRAVATED ASSAULT SUBJECTED APPELLANT 

TO DOUBLE JEOPARDY. 
2 

ISSUE TWO: COUNSEL FOR APPELLANT RENDERED 

INEFFECTIVE ASSISTANCE TO THE APPELLANT FOR 

THE FAILURE TO OBJECT TO THE STATE’S CROSS 

EXAMINATION OF APPELLANT WITH EVIDENCE OF 

EXTRANEOUS OFFENSES. 
3 

SUMMARY OF FACTS 

On January 1, 2013, the New Braunfels, Texas, Police Department 

received a telephone call from Appellant’s mother alerting that Melissa 

Eason, Appellant’s girlfriend, may be deceased at 211 E. Merriweather 

Street in New Braunfels. In response, the New Braunfels Police conducted 

a welfare check at an apartment at said address. Upon gaining entry, 

police officers discovered Melissa Eason deceased. Testimony from 

Jessica Villarreal indicated that the deceased had spent the night at Ms. 

Villarreal’s home before departing the next morning. According to 

Villarreal, Eason was uncertain what the Appellant would do if drunk and 

had been concerned about returning to the apartment that she and the 

Appellant shared. 

According to testimony from various witnesses, the Appellant and the 

deceased had a volatile relationship. The decedent’s sister testified that 

the deceased told her that the deceased needed to leave the Appellant or 

she would “wake up dead.” The deceased made a similar statement to 

Officer BoBo of the New Braunfels Police Department that the Appellant 

told her if she ever left him he would kill her. Law enforcement had been 

called previously to the residence of the couple for disturbances and 
4 

Appellant, on one occasion, was arrested for the violation of a protective 

order that the deceased had entered against him the State of New York. 

The Appellant testified that on January 1, 2013, the deceased had 

returned to the residence that the Appellant and the deceased shared in 

New Braunfels. The Appellant said he was sleeping when the deceased 

came in “screaming, yelling, throwing stuff, breaking stuff.” Appellant said 

after he awoke the deceased punched him in the face. Appellant testified 

he was worried that the deceased could beat him to death and so he put 

the deceased in a rear naked choke hold and “choked her out.” Appellant 

testified that he put on his clothes and left the apartment. However, 

Appellant said before he left, the deceased, who he did not intend to kill, 

had a strong pulse and was breathing. Later that morning he said he 

returned to the apartment and the deceased was stiff and he then left. That 

afternoon according to witnesses Leslie Schmidt and Lisa Raulings the 

Appellant also admitted to them that he had “choked out” the deceased. 

The medical examiner testified that the cause of death was homicide 

and that the decedent died of asphyxiation by strangulation. Appellant 

denied that he had crushed the throat of deceased. 

The State’s attorney attacked Appellant in cross examination and 

called attention to the Appellant’s training as a Marine and a mixed martial 
5 

arts participant. The prosecutor also questioned about telephone calls from 

the jail involving Appellant after his arrest when Appellant boasted he would 

seriously injure any inmate who would dare fight him. 

At the conclusion of the presentation of the evidence the jury 

convicted Appellant of both charges of Murder and Aggravated Assault. 

The Court sentenced Appellant to sixty years confinement in the 

Institutional Division of the Texas Department of Criminal Justice on both 

charges with the sentences to run concurrently. 

 
6 

SUMMARY OF ARGUMENT 

 Appellant was convicted of two offenses arising out of the same 

criminal episode, Murder and Aggravated Assault of a Family or Household 

Member. Appellant was sentenced to sixty years confinement in the Texas 

Department of Criminal Justice – Institutional Division with the sentences to 

run concurrently. Appellant contends that the dual convictions subjected 

the Appellant to double jeopardy and that the Aggravated Assault 

conviction should be set aside. 

 Additionally, during the guilt-innocence stage of the proceedings, 

Appellant took the stand on his own defense. Without objection from 

defense counsel, the State cross-examined the Appellant over extraneous 

offenses and threats that Appellant made from the jail while awaiting trial 

for the case. No limiting instruction on these other acts was requested by 

Appellant’s trial counsel. Appellant contends that trial counsel was 

ineffective for failing to object to the introduction of said extraneous 

offenses or to request a limiting instruction being given to the jury on the 

consideration of said acts or offenses. 
7 

ISSUE NO. ONE (RESTATED): THE CONVICTION AGAINST THE 

APPELLANT FOR THE CHARGES OF BOTH MURDER AND FOR 

AGGRAVATED ASSAULT SUBJECTED APPELLANT TO DOUBLE 

JEOPARDY. 

At the conclusion of the trial the Appellant was found guilty by the jury 

of both the offenses of Murder and Aggravated Assault of a Family or 

Household member with a deadly weapon, (CR Vol. 1, pp. 35-36). 

Judgment and sentence was assessed by the Court at sixty years 

confinement in the Institutional Division of the Texas Department of 

Criminal Justice. Both convictions were from charges brought against the 

Appellant growing out of a single transaction and involving the same victim 

(CR Vol. 1, pp. 6-7). 

Multiple punishments for the same offense are prohibited by the 

United States Constitution. U.S. Const. Amend. V. This double jeopardy 

clause is made applicable to the states. U.S. Const. Amend. XIV. If both 

a greater and a lesser included offense are alleged and the same conduct 

is punished once for the greater offense and a second time for the lesser 

offense then a multiple punishment double jeopardy violation has occurred. 

Langs v. State, 183 S.W.3d 680 (Tex. Crim. App. 2006). Even where there 

is a violation of two distinct statutory provisions there still may only be one 

offense for the double jeopardy review. Blockburger v. United States, 284 

U.S. 299 (1932). The focus is on the elements in the charging instrument 
8 

when determining whether crimes are the same for double jeopardy 

purposes. Brigon v. State, 252 S.W.3d 360 (Tex. Crim. App. 2008). 

The elements of Murder as defined in the Texas Penal Code are by a 

person either 1) intentionally or knowingly causing the death of an 

individual or 2) intending to cause serious bodily injury and committing an 

act clearly dangerous to human life that causes the death of an individual 

Tex. Pen. Code §19.02. 

The elements of Aggravated Assault of a Family or Household 

member with a deadly weapon as defined by the Texas Penal Code occur 

when a person commits assault as defined in the Texas Penal Code and 

the person causes serious bodily injury to another, including the person’s 

spouse, uses or exhibits a deadly weapon during the commission of the 

assault, and the person assaulted is in a relationship or association with the 

defendant as described by section 71.0021(b), 71.003, or 71.005 of the 

Texas Family Code. Tex. Pen. Code § 22.02. 

If the prosecution in proving the elements of one charged offense 

also proves another charged offense the other offense is a lesser included 

offense. Gundy v. State, 213 S.W. 3d 315 (Tex Crim. App. 2006). Unless 

there is clear legislative intent to punish the offenses separately then 

multiple punishments for the same criminal act are barred. Gundy, Ibid. 
9 

The remedy In the situation where multiple corrections are obtained and 

double jeopardy provisions are violated is to return the conviction for the 

most serious offense and to set aside the other conviction. Ex parte 

Cavazos, 203 S.W.3d 333 (Tex. Crim. App. 206). 

Aggravated Assault is a lesser included offense of Murder as plead in 

the charging instrument in this case and as such on this issue the less 

serious charge of Aggravated Assault should be set aside. 

 
10 

ISSUE NO. TWO (RESTATED): COUNSEL FOR APPELLANT 

RENDERED INEFFECTIVE ASSISTANCE TO THE APPELLANT FOR 

THE FAILURE TO OBJECT TO THE STATE’S CROSS EXAMINATION OF 

APPELLANT WITH EVIDENCE OF EXTRANEOUS OFFENSES. 

 The Appellant testified on his own behalf at the guilt- innocence stage 

of the proceedings. During cross examination of the Appellant by the State 

the Appellant was questioned about a telephone call he made to his sister 

(R.R. Vol. 5 p. 198). The prosecution elicited testimony without objection 

from the Appellant’s counsel that while incarcerated at the jail he would 

“fuck some guy up” if he didn’t break his neck. (R.R. Vol. 5 p. 198). 

Appellant was questioned again about a telephone call to his sister and his 

intention to do harm to another inmate he was having trouble with (Vol. 5, 

p. 200) and how he wanted to “break him.” 

 Appellant conceded when asked that he would leave that inmate 

“with physical injuries he’d never recover from” and that he would “walk 

with a limp the rest of his life” (R.R. Vol. 5, p. 201). The inmate would have 

a “break...(to) his arms, leg, jaw, and a couple of ribs.” (R.R. Vol. 5, p. 

201). Again without objection he was asked to concede if he admitted to 

his sister on October 6, 2013, that he would start “smashing people,” “come 

in with a wrath,” and to “get violent” if he wasn’t moved (R.R. Vol. 5, p. 

201). Again he was questioned without objection and conceded he was 

going to “beat the shit out of...two inmates.” (R.R. Vol. p. 202). Likewise, no 
11 

limiting instruction was requested by Appellant’s counsel regarding the 

admission of the extraneous offenses. 

 Evidence of other crimes, wrongs, or acts is not admissible to prove 

the character of a person in order to show action in conformity therewith. 

Tex. R. Evid. § 404(b). There is a general rule against the introduction of 

extraneous offenses to show character conformity. Ruiz v. State, 579 S.W. 

2d 206 (Tex. Crim. App. 1979). Evidence tending to show that a defendant 

committed other offenses wholly disconnected with that for which he is on 

trial should not be admitted. Alvarez v. State, 511 S.W. 2d 493 (Tex. Crim. 

App. 1973). Extraneous evidence may be inadmissible when its only 

relevance is to show that a person is of a particular character. Gilbert v. 

State, 808 S. W. 2d 467 (Tex. Crim. App. 1991). Indeed the prejudicial 

impact of admitting extraneous offenses can outweigh their probative value 

particularly when there is other evidence of intent available. Russell v. 

State, 113 S.W. 3d 530 (Tex. App. – Fort Worth 2003). 

 In order for a defendant to prove ineffective assistance of counsel for 

failing to make an objection at trial, the defendant must identify the specific 

objection that should have been made at trial and to cite authority that the 

objection would have been successful Ortiz v. State, 93 S.W. 3d 79 (Tex. 

Crim. App. 2002); Mallet v. State, 9 S.W. 3d 56 (Tex. App.- Fort Worth 
12 

2000). Likewise failing to request a limiting instruction regarding admission 

of an extraneous offense can cause trial counsel’s performance to fall 

below an objective standard of reasonableness under prevailing 

professional norms. Ramirez v. State, 873 S.W. 2d 757 (Tex. App. –El 

Paso 1994). 

 Ineffective assistance of counsel claims are weighed against the 

standard set by the Strickland case. Strickland v. Washington, 466 U.S. 

668 (1984). Strickland established that the ineffective assistance inquiry is 

measured by two standards, the performance of counsel and the prejudice 

to the defendant as a result. 

 Appellant’s counsel’s trial performance was deficient in failing to 

object to the introduction against Appellant of the extraneous offenses 

which prejudiced the jury. It allowed the jury to consider acts unrelated to 

the crime charged made more particularly erroneous in light of the lack of a 

limiting instruction given to the jury which prejudiced the Appellant. 

 
13 

___________________________________________________________ 

PRAYER 

WHEREFORE, PREMISES CONSIDERED, Appellant respectfully 

prays that his conviction in the above-entitled and numbered cause be 

reversed and that the case be remanded to the trial court for a new trial. 

Respectfully submitted, 

REAGAN BURRUS PLLC 

401 Main Plaza, Suite 200 

New Braunfels, Texas 78130 

Telephone: (830) 625-8026 

Facsimile: (830) 625-4433 

Email: pfinley@reaganburrus.com 

By: Paul A. Finley /s/

PAUL A. FINLEY 

State Bar No. 07023300 

 ATTORNEY FOR APPELLANT, 

 NATHANIEL PAUL FOX 

 
14 

CERTIFICATE OF COMPLIANCE 

 By affixing my signature below, I PAUL A. FINLEY, hereby certify that 

Appellant’s Brief contains 2690 words. 

on the 21st day of January, 2015. 

 Paul A. Finley /s/

 PAUL A. FINLEY 

CERTIFICATE OF SERVICE 

 By affixing my signature below, I, PAUL A. FINLEY, hereby certify 

that a true copy of “Appellant’s Brief” has been served by electronic 

delivery to: 

Joshua Presley 

Comal County District Attorney’s Office 

150 North Seguin, Suite 307 

New Braunfels, Texas 78130 

on the 21st day January, 2015. 

 Paul A. Finley /s/

 PAUL A. FINLEY