No. 03-14-00617-CR

__________________________________________________________ 

IN THE COURT OF APPEALS FOR THE THIRD 

DISTRICT OF TEXAS 

__________________________________________________________ 

NATHANIEL PAUL FOX, Appellant 

v.

THE STATE OF TEXAS, Appellee

__________________________________________________________ 

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

 Cause No. CR2013-091 

Honorable Bruce Boyer, District Judge Presiding 

__________________________________________________________ 

 

BRIEF FOR THE STATE 

__________________________________________________________ 

Jennifer Tharp 

Criminal District Attorney 

By

Joshua D. Presley 

SBN: 24088254 

Assistant District Attorney 

150 N. Seguin Avenue, Suite #307 

(830) 221-1300 

Fax (830) 608-2008 

New Braunfels, Texas 78130 

E-mail: preslj@co.comal.tx.us 

Attorney for the State 

Oral Argument Is Requested 

ACCEPTED

03-14-00617-CR

4872841

THIRD COURT OF APPEALS

AUSTIN, TEXAS

4/13/2015 11:22:09 PM

JEFFREY D. KYLE

CLERK

 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 4/13/2015 11:22:09 PM JEFFREY D. KYLE Clerk
ii

Identity of Parties and Counsel

Attorneys for the Appellant Nathaniel Paul Fox

AT TRIAL

Roy L. Warren

SBN: 20888685

1775 Oakwood Loop

San Marcos, TX 78666

Telephone: (512) 392-5188

Facsimile: (512) 847-6901

ON APPEAL

Paul A. Finley

401 Main Plaza, Suite 200

New Braunfels, Texas 78130

Telephone: (830) 625-8026

Facsimile: (830) 625-4433

Email: pfinley@reaganburrus.com

Attorneys for the Appellee, The State of Texas

AT TRIAL 

Sammy McCrary

Chief Felony Prosecutor

COMAL COUNTY CRIMINAL DISTRICT ATTORNEY’S OFFICE

150 N. Seguin Avenue, Suite 307

New Braunfels, Texas 78130

Telephone: (830) 221-1300

Facsimile: (830) 608-2008

Email: mccras@co.comal.tx.us

Jennifer Tharp

Comal County Criminal District Attorney

COMAL COUNTY CRIMINAL DISTRICT ATTORNEY’S OFFICE

150 N. Seguin Avenue, Suite 307

New Braunfels, Texas 78130

Telephone: (830) 221-1300

Facsimile: (830) 608-2008

Email: tharpj@co.comal.tx.us
iii

ON APPEAL

Joshua D. Presley

Assistant District Attorney

COMAL COUNTY CRIMINAL DISTRICT ATTORNEY’S OFFICE

150 N. Seguin Avenue, Suite 307

New Braunfels, Texas 78130

Telephone: (830) 221-1300

Facsimile: (830) 608-2008

Email: preslj@co.comal.tx.us
iv

Table of Contents

Index of Authorities...................................................................................................v

Statement of the Case.................................................................................................1

Issues Presented .........................................................................................................1

Statement of Facts......................................................................................................2

 Appellant’s Convictions Did Not Violate Double Jeopardy ......................9

Summary of the Argument....................................................................9

Argument...............................................................................................9

Appellant Cannot Show Ineffective Assistance of Counsel .....................16

Summary of the Argument..................................................................16

Ineffective Assistance of Counsel Standard of Review on Appeal ......17

Argument.............................................................................................20

Counsel Was Not Ineffective for Failing to Object to

Admissible Evidence............................................................................20

A More Specific Limiting Instruction Might Have Harmed

Appellant in the Circumstances of His Case.......................................31

Prayer .......................................................................................................................36

Certificate of Service ...............................................................................................37

Certificate of Compliance ........................................................................................38
v

Index of Authorities

Statutes & Rules

Tex. Crim. Proc. Code Ann. § art. 37.09 ...............................................................11

Tex. Pen. Code Ann. § 19.02...................................................................................12

Tex. Pen. Code Ann. § 22.02...................................................................................10

Cases

Agbogwe v. State, 414 S.W.3d 820 (Tex. App.—

Houston [1st Dist.] 2013, no pet.)............................................................................31

Alvarez v. State, 511 S.W.2d 493 (Tex. Crim. App. 1973) .....................................29

Bigon v. State, 252 S.W.3d 360 (Tex. Crim. App. 2008)..................................13, 14

Blockburger v. United States, 284 U.S. 299 (1932) ................................................12

Childress v. State, 285 S.W.3d 544 (Tex. App.—Waco 

2009, pet. ref’d)........................................................................................................14

Colburn v. State, 966 S.W.2d 511 (Tex. Crim. App. 

1998) ........................................................................................................................14

Delrio v. State, 840 S.W.2d 443 (Tex. Crim. App. 1992).................................18, 34

Duvall v. State, 59 S.W.3d 773 (Tex. App.—Austin 2001, 

pet. ref’d)..................................................................................................................12

Ervin v. State, 991 S.W.2d 804 (Tex. Crim. App. 1999).........................................15

Ex parte Torres, 991 943 S.W.2d 469 (Tex. Crim. App. 

1997) ........................................................................................................................19

Garcia v. State, 57 S.W.3d 436 (Tex. Crim. App. 2001) ........................................18

Gilbert v. State, 808 S.W.2d 467 (Tex. Crim. App. 1991) .....................................30
vi

Girdy v. State, 213 S.W.3d 315 (Tex. Crim. App. 2006) ........................................11

Gonzales v. State, 304 S.W.3d 838 (Tex. Crim. App. 

2010) ............................................................................................................13, 14, 15

Goodspeed v. State, 187 S.W.3d 390 (Tex. Crim. App. 

2005) ........................................................................................................................20

Hall v. State, 225 S.W.3d 524 (Tex. Crim. App. 2007) ....................................10, 14

Halliburton v. State, 528 S.W.2d 216 (Tex. Crim. App. 

1975) ......................................................................................................22, 23, 29, 30

Hernandez v. State, 726 S.W.2d 53 (Tex. Crim. App. 

1986) ........................................................................................................................35

Jacob v. State, 892 S.W.2d 905 (Tex. Crim. App. 1995) .......................................11

Lemmons v. State, 75 S.W.3d 513 (Tex. App.—San 

Antonio 2002, pet. ref’d). ........................................................ 21, 22, 27, 29, 31, 34

Littrell v. State, 271 S.W.3d 273 (Tex. Crim. App. 2008) ......................................10

Lopez v. State, 343 S.W.3d 137 (Tex. Crim. App. 2011)..................................17, 18

Mallett v. State, 65 S.W.3d 59 (Tex. Crim. App. 2001)..........................................19

Mata v. State, 226 S.W.3d 425 (Tex. Crim. App. 2007).......................18, 19, 20, 31

McCrary v. State, 327 S.W.3d 165 (Tex. App.—

Texarkana 2010, no pet.)....................................................................................10, 12

Missouri v. Hunter, 459 U.S. 359 (1983) ............................................................... 10

Oakes v. State, 07-07-0128-CR, 2010 WL 668541, at *1 

(Tex. App.—Amarillo Feb. 25, 2010, no pet.) (mem. op., 

not designated for publication) ............................................................................... 21

Ortiz v. State, 93 S.W.3d 79 (Tex. Crim. App. 2002) ...................................... 20, 31
vii

Patrick v. State, 906 S.W.2d 481 (Tex. Crim. App. 1995)..................................... 18

Perez v. State, 310 S.W.3d 890 (Tex. Crim. App. 2010) ........................................18

Perry v. State, 06-13-00051-CR, 2014 WL 3973929 (Tex. 

App.—Texarkana Aug. 15, 2014), reh’g overruled (Sept. 

15, 2014), petition for discretionary review refused (Jan. 

14, 2015) (mem. op., not designated for publication) .............................9, 12, 13, 31

Ruiz v. State, 579 S.W.2d 206 (Tex. Crim. App. 1979) ..........................................29

Russell v. State, 113 S.W.3d 530 (Tex. App.—Fort Worth 

2003, pet. ref’d)..................................................................................................21, 30

Rylander v. State, 101 S.W.3d 107 (Tex. Crim. App. 2007).............................20, 31

Skillern v. State, 890 S.W.2d 849 (Tex. App.—Austin 

1994, pet. ref’d) .......................................................................................................27

Smith v. State, 286 S.W.3d 333 (Tex. Crim. App. 2009) ........................................34

Strickland v. Washington, 466 U.S. 668 (1984) ......................................................17

Thompson v. State, 9 S.W.3d 808 (Tex. Crim. App. 1999).....................................18

Tong v. State, 25 S.W.3d 707 (Tex. Crim. App. 2000) ...........................................19

Turner v. State, 4 S.W.3d 74 (Tex. App.—Waco 1999, no 

pet.)...........................................................................................................................27

Zuliani v. State, 383 S.W.3d 289 (Ct. App.—Austin 2012, 

pet. ref’d)............................................................................................................14, 15
1

Statement of the Case

Appellant was indicted by a grand jury on March 13, 2013, for Murder and 

Aggravated Assault of a Family or Household Member with a Deadly Weapon, 

both first-degree felonies (I C.R. at 6). After pleading “not guilty” to each count, a

jury returned judgments of conviction against Appellant for both offenses on 

August 22, 2014 (id. at 34-36). On August 29, 2014, the trial court sentenced 

Appellant to 60 years in the Texas Department of Criminal Justice – Institutional 

Division on each count, to be served concurrently (id. at 37, 41). Appellant timely 

filed his notice of appeal on September 14, 2014 (id. at 160). 

Issues Presented

1. Is Appellant subjected to Double Jeopardy for multiple punishments when 

his offenses each require proof of an element which the other does not, and 

the Ervin factors seem to indicate a legislative intent to impose multiple 

punishments?

2. Is counsel ineffective for failing to object to evidence which Texas case law 

holds is admissible to rebut Appellant’s claim of self-defense?

3. Is counsel’s performance deficient for failing to request a limiting 

instruction when the instruction itself might be harmful to the Appellant? 

Further, assuming arguendo that counsel’s performance was deficient, can 

Appellant obtain reversal where he cannot demonstrate a reasonable 

probability that the result would have been different even with such an 

instruction?
2

Statement of Facts

The Appellant, Nathaniel Paul Fox, had an “[u]p and down” relationship 

with his live-in girlfriend Melissa Eason, the victim in the instant case (V R.R. at 

172). In the early part of 2011, Appellant and Melissa were living with her sister 

Alicia (id. at 34). Alicia said that Appellant and Melissa had a bad relationship (id. 

at 35). Alicia had observed bruises on her sister’s arm on multiple occasions (id. at 

36-37). Late one night – on April 2, 2011 – Melissa ran into Alicia’s room; Melissa 

was screaming that Appellant “was trying to kill her, he tried to strangle her” (id. at 

35). Alicia saw rug burns on Melissa’s face, blood from her ear, and marks around 

her sister’s neck (id. at 36). 

Responding officers found Melissa shaken and crying (III R.R. at 25). 

Melissa told Sergeant Nelms that Appellant – an aspiring mixed martial arts fighter 

– had assaulted her after she returned home from hanging out with her friends (id.; 

id. at 121; V R.R. at 182-83). Melissa said Appellant held her down with her arms 

behind her back, lifting her arms and forcing her head into the ground for around 

30 minutes (III R.R. at 26). She complained of pain in her shoulder, left ear and 

neck; Nelms observed that her left ear was bleeding “from where it was tearing 

from... her head” (id. at 26).1 Officers arrested Appellant after learning he had 

 

1

Photos of Melissa’s injuries were later shown to the jury (id. at 27-28; see also VIII R.R. at 10-

17). 
3

violated a New York protective order which prohibited him from being in contact 

with Melissa (id. at 28). Alicia thereafter refused to allow Appellant to live in her 

home with Melissa (id. at 36). Alicia was “worried about the safety of my own 

family with my young daughter” as well as Melissa (id.).

Subsequently, Appellant resided with Melissa at 211 East Merriweather (id. 

at 39). On November 1, 2012, New Braunfels Police Officer Derrick Bobo 

responded to a call at 211 East Merriweather (id.). Melissa reported Appellant had 

pushed her down on October 30th, bruising her in the process (id. at 39-40). The 

officer observed and photographed one of Melissa’s injuries (id. at 40). Appellant 

had told Melissa that if she ever left him he would kill her (id. at 41). Melissa 

appeared to be afraid of Appellant (id.). Melissa told the officer that “she didn’t 

feel like she’d be alive past February and that [Appellant] had a shotgun on layaway” (id.). 

Mallory Eason likewise testified that her sister Melissa and Appellant had a 

bad relationship (id. at 48). Mallory had seen Appellant physically abuse Melissa 

(id.). In a conversation with Mallory on New Year’s Eve – December 31, 2012 –

Melissa said she was planning to leave Appellant (id. at 48). Melissa said that “she 

needed to leave and get away because she feared that she was going to wake up 

dead one day” (id. at 49). Although at the time Mallory joked that Melissa could 

not “wake up dead,” she asked her sister not to go back to Appellant’s residence 
4

without a police escort (id.). Melissa assured Mallory that she would spend the 

night at her friend Jessica’s house, and that she would see Mallory again the next 

day (id.). 

Appellant planned to spend New Year’s Eve with another girl (V R.R. at 

188). Melissa found out about the date; she knew the girl, and went to talk to her 

about Appellant (id. at 189). As a result, Appellant spent New Year’s Eve alone 

(id. at 188). In a later conversation with an ex-girlfriend, Appellant would say that 

he was “looking forward to the date and then Melissa went and found her and had 

a fucking chat with her” (id. at 190). During cross-examination, when asked if 

during this same conversation he had said “[f]uck you, Bitch. You don’t get to 

decide who I fucking talk to,” Appellant claimed he could not recall (id. at 190-

91). 

Melissa stayed at Jessica Villareal’s house on the night of December 31, 

2012 (III R.R. at 52-53). Jessica said that Melissa was planning on leaving 

Appellant, and that she spent the night at Jessica’s house because Melissa “didn’t 

know what [Appellant] would do if he got drunk” (id. at 53). Melissa had a new 

residence she planned to move into about two weeks after New Year’s Eve (id. at 

53). The next morning on New Year’s Day, Melissa told Jessica good-bye and left 

her house around 6:30 a.m. (id. at 54). 
5

Appellant’s neighbor heard Appellant’s distinctive car door slam around 

11:00 a.m. on New Year’s Day (id. at 67). Appellant drove to and from his New 

Braunfels apartment two to three times that morning (id. at 68). Though the 

neighbor asked Appellant what he was doing during Appellant’s final stop at his 

apartment, Appellant drove off without answering (id. at 67-68). Appellant’s 

mother called police after Appellant told her over the phone that he had been in a 

disturbance with his girlfriend, and that his girlfriend was dead (VIII R.R. State’s 

Ex. 12 at 00:25; III R.R. 177). Police arrived at Melissa and Appellant’s apartment 

around 20 to 30 minutes after Appellant left, at about 2 p.m. (III R.R. at 68, 77). 

After gaining entry to the apartment, officers found Melissa dead, her body lying 

face down (III R.R. at 86). Corporal Fuller observed that Melissa’s body was 

strangely positioned on a neatly laid-out jacket (id. at 88-89).

Meanwhile, Appellant drove to a co-worker’s girlfriend’s house (V R.R. at 

16). Once he reached the house, Appellant did not immediately get out of his truck 

– he sat in his vehicle until his co-worker, Leslie Schmidt, approached him (id. at 

29). Appellant looked visibly upset (id. at 17). Appellant said that Melissa had 

shown up at their apartment, and that during a fight he had “choked her out” (id. at 

18, 30). Schmidt’s girlfriend Raulings was standing outside the house, away from 

the initial conversation (id. at 29). Schmidt approached her and told her that 

“[Appellant] might really have messed up this time” (id. at 30). Raulings said
6

“[Appellant] was worried that he’d hurt his girlfriend in a... bad way. He basically 

said that he thought maybe she was dead” (id. at 30). Raulings also heard 

Appellant say “maybe he should run, [to] Mexico, maybe he should take his own 

life” (id. at 31). 

Around 2:26 p.m., Officer Sabedra tried calling Appellant’s phone (III R.R. 

at 101; V R.R. at 72-73). Appellant apparently answered the phone (see III R.R. at 

102). When the officer identified himself and asked if the Appellant would mind 

talking with him, Appellant responded “Yeah, I do,” and hung up (id.). When 

Sabedra redialed the number, no one answered the phone (id.). Appellant then 

drove his truck to Landa Park and “ripped the battery out of his cell phone” so the 

police could not track it (id. at 157). After abandoning his truck, Appellant either 

walked or rode back to Rauling’s house with Schmidt (V R.R. at 35). Officers later 

received a report that Appellant’s unoccupied truck had been left in Landa Park (III 

R.R. at 103). Officers found Appellant’s cell phone with the battery disconnected 

inside the truck (id. at 145). Detective Hobbs knew that people would sometimes 

remove batteries from their cell phones to try to avoid being tracked by the police

(id. at 146). 

Appellant stayed with Raulings over the next few days (V R.R. at 33). From 

time to time, he would “hang his head and say that he didn’t mean to do it” (id.). 

After a warrant was issued for Appellant’s arrest, Raulings insisted on going to the 
7

police station (id. at 37). Appellant said “It’s time to pay the piper,” and Raulings

dropped him off in front of the station (id. at 37, 36). Appellant did not enter the 

police station, however, and he was eventually taken into custody at Bob’s 

Billiards (id. at 36). 

At trial, a forensic scientist testified that DNA under Melissa’s fingernails 

was consistent with Appellant’s DNA (id. at 143, 144, 146). Photos of Appellant –

taken four days after Melissa’s death – showed scratch marks on his right arm and 

shoulder (III R.R. at 92-93; VIII R.R. at 39-55). There was also testimony that 

Melissa had been struck on the head (V R.R. at 92). A forensic pathologist testified 

that the hyoid bone in Melissa’s neck had been broken, and the cause of Melissa’s 

death was asphyxia by strangulation (id. at 101; 90). The manner of death was 

homicide (id. at 102). 

Appellant tried to elicit from witnesses that Melissa had been the aggressor 

in previous incidents (see III R.R. at 30, 70). He elicited from Schmidt that 

Appellant was “mellow” and did not lose his temper (V R.R. at 23). During 

Appellant’s cross-examination of Schmidt, he introduced testimony that Melissa 

was “vicious,” and that Appellant may have lacked the intent to kill her (id. at 24-

25). Appellant further elicited that a neighbor had never seen him “lose his cool” 

with Melissa, even after she slapped him (id. at 156). Appellant emphasized that 

“she was the fighter” (id.). When Appellant took the stand, he testified about a 
8

“blood choke” move he had learned in the Marines (id. at 179). He said he used the 

move against Melissa in self-defense, to give himself time to escape her assault (id. 

at 184-85, 192-93). He testified that he was worried Melissa was going to beat him 

to death (id. at 194). The State then cross-examined Appellant with aggressive 

statements he made about other inmates (id. at 197-98, 200-02, 206). 

Appellant asked for and received a jury charge instruction on self-defense 

(id. at 28). He argued self-defense to the jury in closing (VI R.R. at 39-40, 46). 

The jury returned guilty verdicts on Count I, Murder, and Count II, Aggravated 

Assault of a Family or Household Member with a Deadly Weapon (id. at 68-69). 

The Court sentenced Appellant to concurrent sentences of 60 years for each count 

(VII R.R. at 39). 
9

Appellant’s Convictions Did Not Violate Double Jeopardy

Summary of the Argument

Appellant contends that his convictions for Murder and Aggravated Assault 

violated his right against Double Jeopardy under the Fifth Amendment of the

United States Constitution. See Brief for Appellant at 7. However, the Legislature 

may impose multiple punishments for the same conduct consistent with the 

Constitution. Because Appellant’s aggravated assault as charged is not a lesserincluded offense of the charged murder, and because the Blockburger analysis and 

Ervin factors indicate the Legislature intended to impose multiple punishments for 

his conduct, the Court should overrule Appellant’s first point of error.

Argument

The Double Jeopardy guarantee against multiple punishments for the same 

offense is not absolute; it is designed to prevent courts from prescribing greater 

punishment than the Legislature has intended. Perry v. State, 06-13-00051-CR, 

2014 WL 3973929, at *5 (Tex. App.—Texarkana Aug. 15, 2014), reh’g overruled

(Sept. 15, 2014), petition for discretionary review refused (Jan. 14, 2015) (mem. 

op., not designated for publication) (citing McCrary v. State, 327 S.W.3d 165, 171-

72 (Tex. App.—Texarkana 2010, no pet.). “When the Legislature specifically 

authorizes multiple punishments under two statutes, even if those two statutes 

proscribe the same conduct, ‘a court’s task of statutory construction is at an end 
10

and the prosecutor may seek and the trial court or jury may impose cumulative 

punishment under such statutes in a single trial.’” McCrary v. State, 327 S.W.3d 

165, 172 (Tex. App.—Texarkana 2010, no pet.) (citing Missouri v. Hunter, 459 

U.S. 359, 368-69 (1983)). However, when one charged act is a lesser-included 

offense of another, absent a clear expression of legislative intent to the contrary, 

they are considered the same for Double Jeopardy purposes. Littrell v. State, 271 

S.W.3d 273, 279 (Tex. Crim. App. 2008). 

To determine whether an offense is a “lesser-included offense” of murder, 

courts now examine the required elements of the offenses charged, and not the 

evidence proved at trial. Hall v. State, 225 S.W.3d 524, 535 (Tex. Crim. App. 

2007).2 Appellant was charged with Murder and Aggravated Assault of a Family or 

Household Member with a Deadly Weapon (hereinafter “aggravated assault”). 

Appellant’s aggravated assault as charged required the State to prove that 

Appellant used a deadly weapon during the commission of the offense, and that 

Appellant caused serious bodily injury to Melissa Eason, whose relationship to the 

defendant was described by 71.0021(b) or 71.005 of the Family Code. See Tex. 

Pen. Code Ann. § 22.02(a), (b); VI R.R. at 21-22. The relationship element was not 

a required element of Appellant’s murder charge. Because proof of such a

 

2 Hall noted that although the evidence in that murder trial may have shown “threatening and 

display,” these were not required elements of the murder, and aggravated assault by threat was 

therefore not a lesser-included offense. Id. at 537.
11

relationship is not required to be proved for the offense of murder, it cannot be 

said that the aggravated assault as alleged “is established by proof of the same or 

less than all the facts required to establish the commission of the offense 

charged.”3See Tex. Crim. Proc. Code Ann. § art. 37.09 (West, Westlaw through 

2013 Sess); see also Jacob v. State, 892 S.W.2d 905, 908 (Tex. Crim. App. 1995) 

(“The State argues this focuses on the evidence the State presented to prove the 

charged offense. But such interpretation negates the language of Article 37.09(1) 

by changing ‘facts required’ into ‘facts presented.’ ‘Facts required’ means the 

evidence legally required to prove the elements.”). Accordingly, as charged in this 

particular case, aggravated assault is not a lesser-included offense of murder.4See 

id; see also VI R.R. at 15-17, 21-22.

The Blockburger test is one tool used to determine if the Legislature 

intended multiple punishments. “When the same act or transaction violates two 

 

3

In citing Girdy v. State, Appellant overlooks that case’s language which held that if the State 

“in proving the elements of one charged offense, also necessarily proves another charged 

offense, then that other offense is a lesser-included offense.” 213 S.W.3d 315, 319 (Tex. Crim. 

App. 2006) (emphasis in original). Girdy found the particular offense at issue in that case to be a 

lesser included offense because it was “established by proof of the same or less than all the facts 

required to establish the commission” of the greater offense. Id. Even if Girdy stood for the 

proposition that “in proving the elements of one charged offense [the State] also proves another 

charged offense the other offense is a lesser included” (Brief for Appellant at 8), the later Hall

case would have overruled it. See 225 S.W.3d at 535, supra (at 10). 

4 Appellant’s citation of Langs v. State for the proposition that multiple punishments for both a 

greater offense and a lesser included offense violate Double Jeopardy is therefore inapposite; as 

in Hall, the particular aggravated assault in Appellant’s case is not a lesser included offense of 

the murder. Brief for Appellant at 7; see also 225 S.W.3d at 537.
12

different penal statutes, the two offenses are the same for double jeopardy purposes 

if one of the offenses contains all the elements of the other; they are not the same if 

each offense has a unique element.” Duvall v. State, 59 S.W.3d 773, 777 (Tex. 

App.—Austin 2001, pet. ref’d) (citing Blockburger v. United States, 284 U.S. 299 

(1932)). As noted supra, the State was not required to prove the relationship 

element for the murder offense. Conversely, to prove the murder in Appellant’s 

case, the State was required to prove that Appellant caused the victim’s death (I 

C.R. at 29-30); Tex. Pen. Code Ann. § 19.02 (West, Westlaw through 2013 Sess.). 

This was not a required element to prove Appellant’s aggravated assault (I C.R. at 

33-34). Because each offense requires proof of an element the other does not, 

applying the Blockburger test to Appellant’s case establishes a presumption that 

“the Legislature intended to authorize punishments under both.” See Perry, 2014 

WL 3973929, at *6 (citing McCrary, 327 S.W.3d at 172). That is not the end of the 

analysis, however. Courts must next consider:

[1] whether [the] offenses are in the same statutory section; [2] 

whether the offenses are phrased in the alternative; [3] whether the 

offenses are named similarly; [4] whether the offenses have common 

punishment ranges; [5] whether the offenses have a common focus; 

[6] whether the common focus tends to indicate a single instance of 

conduct; [7] whether the elements that differ between the two offenses 

can be considered the same under an imputed theory of liability that 

would result in the offenses being considered the same under 

Blockburger; and [8] whether there is legislative history containing an 

articulation of an intent to treat the offenses as the same or different 

for double-jeopardy purposes.
13

Id. (citing Bigon v. State, 252 S.W.3d 360, 370 (Tex. Crim. App. 2008)).

Murder and Aggravated Assault are located in different chapters of the Penal 

Code. Accordingly, they cannot be phrased in the alternative, and this factor is 

inapplicable. The two offenses are not named similarly. Murder is a first-degree 

felony, as is the particular aggravated assault charged. The “imputed theory” factor 

is inapplicable to Appellant’s case.

Although both offenses are result-oriented crimes, Gonzales v. State noted

that “[i]f the focus of the offense is the result—that is, the offense is a ‘result of 

conduct’ crime—then different types of results are considered to be separate 

offenses, but different types of conduct are not.” 304 S.W.3d 838, 848 (Tex. Crim.

App. 2010) (emphasis added). Appellant cites Bigon v. State. Brief for Appellant at 

8. In that particular case, the Court observed “[t]he focus of [murder and 

intoxication manslaughter] is the same: the death of an individual. Both offenses 

are result oriented and punish one for causing the death of another....the sameness 

of the result is an indication that the Legislature did not intend to impose multiple 

punishments.” 252 S.W.3d at 371 (emphasis added). 

By contrast, in Appellant’s case, the focus and ultimate results of his 

offenses are different. The result contemplated and proscribed by the aggravated 

assault of a family or household member statute is the “harm inflicted to a victim 

in the same household.” See Perry, 2014 WL 3973929, at *7. The result 
14

contemplated and proscribed by the murder statute is causing the death of an 

individual. That there was overlap in the evidence used to establish Appellant 

caused the death of an individual and inflicted harm to a victim in the same 

household is not determinative; as Appellant correctly states, “[t]he focus is on the 

elements in the charging instrument.” Brief for Appellant at 7 (citing Bigon, 252 

S.W.3d at 370); see also Hall, 225 S.W.3d at 535; Cf. Childress v. State, 285 

S.W.3d 544, 549 (Tex. App.—Waco 2009, pet. ref’d) (focus is on element, not 

proof of the offense; “the Supreme Court eliminated the ‘same conduct’ rule—the 

idea that just because [appellant] engaged in one ‘culpable act,’ he cannot be 

convicted of more than one offense) (citing United States v. Dixon, 509 U.S. 688 

(1993)). Because the Legislature was concerned with different types of results, 

factor five also supports the determination that Appellant’s offenses are different.

Because the focus is different, factor six does not indicate the Legislature viewed 

the offenses as the same for Double Jeopardy purposes. 

Finally, there does not appear to be any legislative history containing an 

articulation of an intent to treat the offenses as the same or different. The Court in 

Zuliani v. State found the lack of any clear legislative history was a factor which 

did not favor multiple punishments. 383 S.W.3d 289, 294 (Ct. App.—Austin 2012, 

pet. ref’d) (“[the] legislature must ‘make manifest its intention’ to punish single act 

twice”) (citing Gonzales, 304 S.W.3d at 846). Gonzales does not broadly hold that 
15

the “legislature must ‘make manifest its intention’ to punish a single act twice”; 

rather, the Court in the particular context of that case observed that “[a]n accused

may be punished for two offenses even though they would be regarded as the same 

under a Blockburger analysis if the Legislature has otherwise made manifest its 

intention that he should be.” Id. at 845 (emphasis added). Notably, both Zuliani

and Gonzales followed offenses which the Blockburger analysis indicated were the 

same. 383 S.W.3d at 294; 304 S.W.3d at 845. When comparing Zuliani and 

Gonzalez to Appellant’s case, Blockburger indicates Appellant’s offenses are not

the same. Because the presumption is reversed in Appellant’s case, the lack of 

legislative history should favor treating the offenses as different. Cf. Zuliani, 383 

S.W.3d at 294; Gonzales, 304 S.W.3d at 845; see also Ervin v. State, 991 S.W.2d 

804, 814 (Tex. Crim. App. 1999) (“whether there is legislative history containing 

an articulation of an intent to treat the offenses as the same or different for double 

jeopardy purposes”) (emphasis added). 

Factors one, three, five and eight indicate the Legislature intended to treat 

the offenses as different for purposes of Double Jeopardy; only factor four 

(common punishment ranges) supports treating the offenses as the same. If 

anything, the presumption established by the Blockburger analysis in Appellant’s 

case – that the Legislature intended multiple punishments – is only strengthened by 

the Ervin factor analysis. See Gonzales, 304 S.W.3d at 848 (“we have signaled that 
16

the ‘focus’ or ‘gravamen’ of a penal provision [factor five] should be regarded as 

the ‘best’ indicator when it comes to determining whether the Legislature intended 

to define more than one offense.”).

Appellant Cannot Show Ineffective Assistance of Counsel

Summary of the Argument

Appellant claims his counsel was ineffective for failing to object to the 

State’s cross-examination using Appellant’s statements to others in recorded jail 

phone calls. Because the record on appeal generally lacks counsel’s motivations 

and reasoning, claims of ineffective assistance are not usually appropriate matters 

for appeal. In any event, defense counsel was not ineffective for failing to object to 

evidence which became admissible once Appellant raised issues related to his 

intent and self-defense. Furthermore, counsel may have had strategic reasons for 

failing to request a limiting instruction: in the particular circumstances of 

Appellant’s case, it may have been preferable to convince the jury to disregard the 

complained-of evidence entirely, rather than direct its application in a manner 

which would be most damaging to Appellant. Alternatively, even if a limiting 

instruction should have been requested, in light of the other evidence introduced –

and the relatively innocuous nature of the complained-of evidence compared to the 
17

actual charged conduct – Appellant cannot show a reasonable probability that a 

limiting instruction would have changed the outcome of the trial. 

Ineffective Assistance of Counsel Standard of Review on Appeal

The Sixth Amendment right to effective assistance of counsel does not 

provide a right to errorless counsel; it is a right to objectively reasonable 

representation. Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011) (citing

McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970); Strickland v. Washington, 

466 U.S. 668, 686 (1984)). To prevail on a claim of ineffective assistance of 

counsel, an appellant must satisfy both prongs of Strickland, demonstrating both 

deficient performance by counsel as well as prejudice suffered by the defendant 

because of counsel’s alleged deficient performance. 466 U.S. at 687; Menefield v. 

State, 363 S.W.3d 591, 592 (Tex. Crim. App. 2012). 

Under the first prong, the Applicant must demonstrate that counsel’s 

performance fell below an objective standard of reasonableness under prevailing 

professional norms. Strickland, 466 U.S. at 687–88. To satisfy the second prong of 

Strickland, the Applicant has to show the existence of a reasonable probability –

one sufficient to undermine confidence in the outcome – that but for counsel’s 

deficient performance, the result of the proceeding would have been different. 

Strickland, 466 U.S. at 694. Failure to make the required showing of either 

deficient performance or sufficient prejudice defeats the ineffectiveness claim. 
18

Strickland, 466 U.S. at 700; see Perez v. State, 310 S.W.3d 890, 893 (Tex. Crim. 

App. 2010).

“It is not sufficient that the appellant show, with the benefit of hindsight, that 

his counsel’s actions or omissions during trial were merely of questionable 

competence.” Mata v. State, 226 S.W.3d 425, 430 (Tex. Crim. App. 2007). In 

making its assessment of counsel’s assistance, the reviewing court examines the 

totality of the representation and the circumstances of each case without the benefit 

of hindsight. Lopez, 343 S.W.3d at 142-43; Thompson v. State, 9 S.W.3d 808, 813 

(Tex. Crim. App. 1999); Garcia v. State, 57 S.W.3d 436, 430 (Tex. Crim. App. 

2001). The reviewing court must presume that counsel is better positioned to judge 

the pragmatism of the particular case, and that he “made all significant decisions in 

the exercise of reasonable professional judgment.” Delrio v. State, 840 S.W.2d 

443, 447 (Tex. Crim. App. 1992) (citing Strickland v. Washington, 466 U.S. at 

690).

Reviewing courts will indulge in a strong presumption that trial counsel’s 

performance was reasonable. Patrick v. State, 906 S.W.2d 481, 495 (Tex. Crim. 

App. 1995). The “[a]ppellant has the burden of proving ineffective assistance by a 

preponderance of the evidence.” Id. (citing Cannon v. State, 668 S.W.2d 401 (Tex. 

Crim. App. 1984)). The Court has also noted that “the presumption that trial 

counsel’s performance was reasonably based in sound trial strategy, coupled with 
19

the absence of any supporting evidence in the record of unreasonableness, compels 

a reviewing court to consider ways in which trial counsel’s actions were within the 

bounds of professional norms.” Mata, 226 S.W.3d at 431.

To prevail on a claim of ineffective assistance of counsel, an appellant must 

provide a record that affirmatively demonstrates that defense counsel’s 

performance was not based on sound strategy. Mallett v. State, 65 S.W.3d 59, 63 

(Tex. Crim. App. 2001). If the appellate record is silent regarding the reasons for 

defense counsel’s conduct, then it is insufficient to overcome the presumption that 

counsel was following a legitimate strategy. Tong v. State, 25 S.W.3d 707, 714 

(Tex. Crim. App. 2000); Thompson, 9 S.W.3d at 813–14; Jackson v. State, 877 

S.W.2d at 771 (refusing to hold counsel’s performance deficient given the absence 

of evidence concerning counsel’s reasons for choosing the course he did). 

As the Court stated in Ex parte Torres, “[i]n most instances, the record on 

direct appeal is inadequate to develop an ineffective assistance claim.” 943 S.W.2d 

469, 475 (Tex. Crim. App. 1997) (internal citations omitted). The Court has noted 

that “trial counsel should ordinarily be afforded an opportunity to explain his 

actions before being denounced as ineffective. Absent such an opportunity, an 

appellate court should not find deficient performance unless the challenged 

conduct was ‘so outrageous that no competent attorney would have engaged in it.’” 
20

Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005) (quoting 

Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2007)). 

Accordingly, the Court has repeatedly held that post-conviction writs of 

habeas corpus are the more appropriate or preferable means of raising a claim of 

ineffective assistance of counsel. See, e.g., Rylander, 101 S.W.3d at 110-11; 

Jackson v. State, 973 S.W.2d 954, 957 (Tex. Crim. App. 1998); Mata, 226 S.W.3d 

at 430 (“[t]he lack of a clear record usually will prevent the appellant from meeting 

the first part of the Strickland test, as the reasonableness of counsel’s choices and 

motivations during trial can be proven deficient only through facts that do not 

normally appear in the appellate record”). 

Argument

Counsel Was Not Ineffective for Failing to Object to Admissible

Evidence 

Even if the Court determines the record is sufficient to fairly evaluate 

counsel’s choices as they relate to his failure to object to the evidence, case law 

demonstrates that such evidence was admissible in the circumstances of 

Appellant’s case. To show deficient performance of counsel for a failure to object, 

an appellant must show that the unobjected-to evidence was inadmissible. Ortiz v. 

State, 93 S.W.3d 79, 93 (Tex. Crim. App. 2002). It is the trial court’s responsibility

to determine whether extraneous offense evidence is relevant for a purpose other 
21

than the propensity of an appellant to commit bad acts. Russell v. State, 113 

S.W.3d 530, 535 (Tex. App.—Fort Worth 2003, pet. ref’d). “So long as the trial 

court’s decision to admit or exclude evidence falls in the zone within which 

reasonable minds may differ, appellate courts should refrain from disturbing the 

trial court’s decision on appeal.” Id. (citing Montgomery v. State, 810 S.W.2d 372, 

390 (Tex. Crim. App. 1990), on reh’g (June 19, 1991). Finally, “[a]n extraneous 

offense may be used to rebut a defensive theory, such as self-defense, even though 

this purpose is not mentioned in Rule 404(b).” Oakes v. State, 07-07-0128-CR, 

2010 WL 668541, at *1 (Tex. App.—Amarillo Feb. 25, 2010, no pet.) (mem. op., 

not designated for publication) (citing Crank v. State, 761 S.W.2d 328, 341 (Tex. 

Crim. App. 1988).

The court in Lemmons v. State detailed a particularly pertinent use for 

extraneous conduct evidence: to rebut the appellant’s theory of self-defense. 75 

S.W.3d 513, 523 (Tex. App.—San Antonio 2002, pet. ref’d). In Lemmons, while 

the appellant did not take the stand himself during his capital murder trial, he 

introduced some evidence of self-defense through other witnesses. Id. The State 

then argued the appellant had opened the door on the issue of self-defense, and was 

allowed to call three witnesses to testify about an extraneous robbery at gunpoint. 

Id. at 522. On appeal, the Lemmons court observed that the appellant had 

introduced evidence of self-defense and had obtained an instruction on self-defense 
22

in the charge. The court of appeals then held that “the extraneous robbery offense 

was relevant under rule 401 to rebut [the appellant’s] self-defense theory.” Id.

5

In 

Appellant’s case, not only did he likewise attempt to elicit evidence of and obtain a 

jury charge instruction on self-defense, he expressly testified on cross-examination 

that he was acting in self-defense (V R.R. at 184-85, 218; VI R.R. at 13-14). 

Halliburton v. State is even more on point with the facts of Appellant’s case. 

In Halliburton, the appellant testified that she shot the deceased in self-defense 

after he threatened her with a gun. 528 S.W.2d 216, 217 (Tex. Crim. App. 1975). 

The State then called another man who testified that appellant had pulled up beside 

him while he was walking down the street and demanded money he owed her. Id. 

at 217. When he told her he did not have any money, the appellant got out of her 

car and shot him as he tried to run away. Id. Notably, this happened around five 

weeks after the shooting for which the appellant was on trial. Id. When the 

appellant complained about the admission of the extraneous shooting evidence, the 

Court of Criminal Appeal observed that the appellant had raised the issue of selfdefense and no intent to kill. Id. The Court first noted its prior case law allowed for 

the introduction of an extraneous offense to refute a defensive theory. Id. at 218 

(citing Ratcliff v. State, 504 S.W.2d 883 (Tex. Crim. App. 1974)). Applying that 

and other precedents, Halliburton stated that “[t]he appellant testified to self-

 

5

See also Santellan v. State, 939 S.W.2d 155, 168 (Tex. Crim. App.1997) (holding extraneous 

conduct subsequent to the charged offense was admissible).
23

defense and that she had no intent to kill. She wanted the jury to believe her 

testimony. The State was authorized to show that she shot another man some time 

later to show her intent which tended to disprove her testimony.” Id. 

In the instant case, from the beginning of the State’s case in chief, Appellant 

attempted to construct a narrative of cool, reactive self-defense in the face of the 

victim’s dangerous aggression. On cross-examination of the State’s first witness, 

Appellant elicited that he had been the one to call police during a prior domestic 

incident (III R.R. at 30), and tried to show that the victim, Melissa, had inflicted 

physical injuries on Appellant (id.). After stressing that one of Melissa’s sisters had 

never seen a physical fight between Appellant and Melissa (id. at 55), Appellant 

elicited from his neighbor that the victim had once “slapped [Appellant] so hard his 

glasses flew off” (id. at 70). Appellant sought to present himself to the jury as a 

passive, collected individual who at worst had inadvertently killed Melissa:

[Defense:] You said you’ve known [Appellant] for about six 

months?

[Schmidt:] Yes, I – guess so.

[Defense:] Before this?

[Schmidt:] I don’t know.

[Defense:] Did you ever see him lose his temper?

[Schmidt:] No, very mellow.
24

[Defense:] Okay. Did he ever lose his temper with you or 

threaten you?

[Schmidt:] No. 

....

[Defense:] How did you feel about Melissa Eason?

[Schmidt:] She was vicious. 

....

[Defense:] Do you think [Appellant] loved Melissa Eason?

[Schmidt:] He did at one time.

[Defense:] And do you think he intentionally tried to kill her?

[Schmidt:] No. 

(V R.R. at 23-25) (emphasis added). At the beginning of Appellant’s case in chief, 

he recalled his neighbor John Gomez to further emphasize that he had never seen 

Appellant be physically aggressive, even after Melissa had slapped him:

[Gomez:] ...she had already slapped him and his glasses 

were on the ground. 

[Defense:] And he didn’t do anything back?

[Gomez:] I just seen him grab her and I turned away and 

that’s it....

[Defense:] Did you ever see [Appellant] lose his cool?

[Gomez:] Not, no, not – no. 
25

[Defense:] And just to be clear... you said the only fights you 

saw were where she was the fighter. 

(id. at 156) (emphasis added). 

Once on the stand, Appellant again portrayed himself as cool and reactive, 

employing his military training to humanely incapacitate the enraged victim and 

escape her unending physical onslaught. Appellant first gave his account of the 

events leading up to the Melissa’s death on cross-examination, in response to 

mostly non-leading questions (see, e.g., id. at 192-93). He claimed he was sleeping 

when Melissa came in “screaming, yelling, throwing stuff, [and] breaking stuff” 

(id. at 192). Appellant said that once he sat up on the bed, she punched him in the 

face – with a right, and a left, and another right (id. at 192-93). Appellant claimed 

he then tried to put his pants on, and while he was bent over she hit him with a 

“hammer fist in the back of the head” (id. at 193). Appellant then stated that “I 

know that there are knives all around the house and I know she’s very dangerous, 

so I figured it [was] in my best interests to not be beaten to death. I needed to.... 

restrain her” (id.). When the State questioned whether a trained Marine could 

really be worried that “a girl” was going to beat him to death, Appellant again 

insisted that he was in fear for his life (id. at 194). 6It was at this point in 

 

6 Appellant would later claim that the victim became violent when drinking, that she outweighed 

him by 30 pounds and was around three inches taller (id. at 210-11). He would claim that he was 

“afraid for [his] life” (id. at 210), that he left because he was afraid she was going to wake up and 

continue attacking him (id. at 215), and again that he was “terrified she was going to kill [him]” 

(id.). Appellant stressed self-defense in closing (VI R.R. at 38-40) (“[the witness] saw her slap 
26

Appellant’s constructed narrative that he claimed he calmly used his Marine 

training to defuse the situation (see id.). 

Appellant had earlier testified about his prior military experience in choking

a person into an unconscious state without harming him (see id. at 179). Appellant 

claimed that his “technique” was not dangerous (id. at 184). He asserted that he 

choked Melissa in measured and limited self-defense: “I choked her out for ten 

seconds till she was unconscious, long enough .... for me .... [to] get away” (id. at 

184-85). Appellant claimed that his DNA ended up under Melissa’s fingernails as 

she struggled against his restraint (id. at 195). Appellant continued to build on 

earlier-elicited testimony of his docile temperament, presenting himself to the jury 

as a controlled pacifist: 

[State:] You just kept choking her; didn’t you?

[Appellant:] I needed the violence to stop.

[State:] Why didn’t you just leave?

[Appellant:] I was trying to. 

(id.). When confronted with the Melissa’s protective order against him in New 

York, Appellant insisted that the incident from which the order arose involved the 

victim attacking him (id. at 185-86). At one point, Appellant even claimed that –

 

him so hard, his glasses flew across. What did he do? He didn’t respond. He didn’t get mad. He 

didn’t get upset. He just – you know, whenever he was trying to fight with her, he tried to subdue 

her.”). 
27

though he had choked the victim – he was not the person who strangled her to 

death (id. at 191-92). Appellant said he loved Melissa “[m]ore than life itself” (id. 

at 196). 

Only after Appellant had presented such a narrative to the jury – of the 

physically violent and aggressive victim, his fear for his life, his calm self-defense 

response, and the theory that the death might have been an unfortunate accident –

did the State introduce the complained-of evidence to rebut these false 

impressions. See Brief for Appellant at 10. Throughout the trial to that point, 

Appellant had incessantly emphasized his peaceful, non-violent demeanor and 

state of mind, even claiming he was only trying to put his pants on while the victim 

was beating him to death. As the court noted in Lemmons: 

[w]hen the accused claims self-defense or accident, the State, in order 

to show the accused’s intent, may show other violent acts where the 

defendant was an aggressor. Halliburton v. State, 528 S.W.2d 216, 

217-218 (Tex. Crim. App. 1975). This is the converse of the rule that 

allows a defendant to show extraneous acts of violence by the 

deceased in a murder case when the defendant claims self-defense and 

that the deceased was the first aggressor.

75 S.W.3d at 523 (some internal citations omitted) .

7

 

7

See also Skillern v. State, 890 S.W.2d 849, 864 (Tex. App.—Austin 1994, pet. ref’d) (declined 

to be followed on other grounds by Ex part Jones, 440 S.W.3d 628, 636 (Tex. Crim. App. 2014) 

(“When the defendant ‘opens the door’ on an issue by attempting to present an incomplete 

picture of an incident, the State is permitted to complete the picture by presenting evidence that 

would have otherwise been inadmissible.”) (citing Lucas v. State, 791 S.W.2d 35, 53, 54 (Tex. 

Crim. App. 1989)); Turner v. State, 4 S.W.3d 74, 79 (Tex. App.—Waco 1999, no pet.) (“As with 

any other witness, when an accused testifies gratuitously as to some matter that is irrelevant or 
28

Because Appellant presented evidence of both self-defense and accident, the 

State was entitled to establish several statements Appellant made in recorded jail 

phone calls during its cross-examination of Appellant (see, e.g., id. at 197-98). In 

the calls, Appellant stated that he was having issues with another inmate (id.). 

Appellant stated that he planned to let the other inmate take the first swing “and 

then I’ll fuck him up if I don’t break his neck” (id. at 197-98). Less than a month 

after his arrest for the victim’s murder, Appellant said he would claim self-defense 

after his planned fight with the inmate (see id. at 197-98). In another conversation, 

Appellant told his ex-girlfriend that he was not simply going to fight another 

inmate – he was going to “fucking break him” and “leave him with physical 

injuries he’ll never recover from,” that “he will walk with a limp for the rest of his 

life,” and that Appellant would “break his arm, leg, jaw and a couple of ribs” (id. at 

200-01). Appellant added that he was “going to try to leave him conscious through 

the whole thing because I want him to feel every bit of pain” (id. at 201). Appellant 

stated he would “start smashing people” if his case’s outcome looked bad, and that 

he would get violent if he was not moved (id.). He further said that he was “going 

to try to save somebody a trip to the hospital” and that he was going to “beat the 

shit” out of two other inmates (id. at 202; see also id. at 206). 

 

collateral to the proceeding, he may be impeached by a showing that he has lied or is in error as 

to that matter.”) (citing Hammett v. State, 713 S.W.2d 102 (Tex. Crim. App. 1986)).
29

“Given [Appellant’s] introduction of self-defense as an issue, the State 

needed to rebut [Appellant’s] claim that he was not the first aggressor.” See 

Lemmons, 75 S.W.3d at 523-24. The foregoing was relevant and admissible to 

rebut the false impression Appellant gave to the jury – that he was a nonviolent 

recipient of the first-aggressor victim’s attack, that he feared for his life, and that 

he intended no harm when he choked the victim unconscious. See Halliburton, 528 

S.W.2d at 218 (State could use subsequent offense to show appellant’s intent and 

disprove testimony). 

Appellant points to the general rule against the introduction of extraneous 

offenses, and observes that such evidence “may be inadmissible when its only 

relevance is to show that a person is of a particular character.” Brief for Appellant 

at 11. Appellant relies upon Texas Rule of Evidence 404(b) in arguing that an 

objection to the admission of the extraneous conduct would have been successful. 

Id. However, the case law cited in Appellant’s brief is distinguishable from 

Appellant’s case. See id.

In Ruiz v. State, the Court observed that there was “no disputed or contested 

factual issue to which the prior extraneous murder offense was relevant, material, 

and admissible.” 579 S.W.2d 206, 210 (Tex. Crim. App. 1979). Alvarez v. State

involved an extraneous offense “wholly disconnected” from the offense for which 

the appellant was on trial; intent was not even at issue in that case. 511 S.W.2d 
30

493, 495 (Tex. Crim. App. 1973). In Russell v. State, the court of appeals actually 

deferred to the trial court’s 404(b) determination, acknowledging that it could not 

“say that the trial court abused its discretion by concluding that the [extraneous] 

offense bore some relevance to the issue of [the appellant’s] specific intent in the 

capital murder of [the victim].” 113 S.W.3d at 540.

Finally, although the Appellant’s cited case Gilbert v. State found that the 

extraneous offense in that particular case was not relevant, it outlined situations 

where such offenses could be admissible: 

the State may introduce such evidence where it logically serves “to 

make ... more probable” an elemental fact; where it serves “to make ... 

more probable” an evidentiary fact that inferentially leads to an 

elemental fact; or where it serves “to make ... less probable” 

defensive evidence that undermines an elemental fact. Illustrative of 

the permissible “purposes” to which evidence of “crimes, wrongs, or 

acts” may be put are “proof of motive, opportunity, intent, 

preparation, plan, knowledge, identity, or absence of mistake or 

accident [.]” Extraneous offense evidence that logically serves any of 

these purposes is “relevant” beyond its tendency “to prove the 

character of a person to show that he acted in conformity therewith.” 

808 S.W.2d 467, 472 (Tex. Crim. App. 1991) (first emphasis added) (internal 

citations omitted). 

In Appellant’s case, the extraneous remarks served to make less probable 

defensive evidence related to self-defense and accident. As the Halliburton Court

remarked, “[i]f the extraneous offense is relevant in tending to disprove the 

defensive theory, it should be admissible.” 528 S.W.2d at 219 (op. on reh’g); see 
31

also Lemmons, 75 S.W.3d at 523-24. Because the evidence was relevant and 

admissible to rebut Appellant’s self-defense claims and to show his intent,

Appellant cannot cite to authority to show the evidence would have been

inadmissible over his 404(b) objection, and his ineffective assistance claim based 

on his counsel’s failure to object must fail. See Ortiz, 93 S.W.3d at 93; Brief for 

Appellant at 11. 

A More Specific Limiting Instruction Might Have Harmed Appellant in 

the Circumstances of His Case 

Because the record does not clearly indicate counsel’s reasons for not 

requesting a limiting instruction, Appellant cannot prove his counsel’s strategy was

not reasonable. See, e.g., Rylander, 101 S.W.3d at 110-11; Jackson v. State, 973 

S.W.2d at 957; Mata, 226 S.W.3d at 430. “[T]he failure of defense counsel to 

request a limiting instruction is not, by itself, ineffective assistance.” Perry, 2014 

WL 3973929, at *17 (citing Agbogwe v. State, 414 S.W.3d 820, 832 (Tex. App.—

Houston [1st Dist.] 2013, no pet.). “Although ‘hindsight speculation may suggest a 

limiting instruction of some nature’ should have been given, a reasonable 

explanation for counsel’s actions can be that, ‘as a trial tactic, counsel did not wish 

to remind the jury of those matters.’” Agbogwe, 414 S.W.3d at 837 (citing Webb v. 

State, 995 S.W.2d 295, 300-01 (Tex. App.—Houston [14th Dist.] 1999, no pet.)). 
32

Without the benefit of hindsight, a more particular limiting instruction might have 

worked against Appellant in the particular circumstances of his case. 

After Appellant’s remarks were introduced by the State, defense counsel 

immediately sought to explain the comments away as mere bravado (V R.R. at 

209). Appellant testified that he had never actually hurt anyone in the way he 

threatened to hurt other inmates (id. at 210). He also testified that fellow inmates 

could overhear his phone conversations (id. at 211), and that it was important to act 

“tough” in front of them (id. at 209). Defense counsel spent a significant amount of 

time on the theme in closing: 

Men like to talk big. You guys know that.... You know, he had to talk 

that way. In prison, you don’t talk like that, you’re not going to get 

out alive.... he was doing what he thought he had to do. You know, 

look at the evidence. If he had been beating people up and shooting 

people, being a real problem, you would have heard about it. He 

didn’t. What, are you going to convict [him] of a crime he might 

commit in the future because they said he would? Because he’s trying 

to keep people off his back? That’s just ridiculous.... He was talking 

big. He was a big fighter, or trying to make it seem that way anyway, 

so people wouldn’t mess with him.

(VI R.R. at 41-42) (emphasis added). Counsel was plainly trying to convince the 

jury to dismiss the evidence altogether as entirely irrelevant. 

Hostile prison conditions are well known, and the jury would have been 

generally familiar with them. In light of defense counsel’s explanation of the 

threats as bluster, the threat of future harm against other inmates – perhaps 

justifiable in such conditions – was not overly inflammatory in and of itself. 
33

Because there was no true risk the jury would convict Appellant for merely 

threatening future harm to fellow jail inmates instead of for his conduct of actually 

strangling the victim, the danger typically addressed by limiting instructions was 

not present. Indeed, the threats’ most prejudicial aspect in regards to Appellant was 

their proper application. In light of the Appellant’s claims of fear and self-defense, 

the threats helped demonstrate that he would not be afraid of the victim, 

contradicted the ‘cool, collected, non-aggressive warrior monk’ persona he tried to 

construct, and helped to rebut his claimed intent during the charged conduct.

Defense counsel may well have preferred the general jury instruction8to the more 

particular instruction given in Lemmons: 

You are further instructed that if there is any evidence before you in 

this case regarding the defendant’s committing an alleged offense 

other than the offense alleged against him in the indictment in this 

case, you cannot consider such evidence for any purpose, unless you 

find and believe beyond a reasonable doubt that the defendant 

committed such other offense... and even then you may only consider 

the same in determining whether the defendant acted in self-defense 

... regarding the charges set out in the indictment in this cause.

75 S.W.3d at 525 (emphasis added). Given defense counsel’s explanation of the 

prison threats as mere bluster and his attempt to convince the jury to disregard 

 

8

In its charge, the trial court generally instructed the jury that its “sole duty is to determine the 

guilt or innocence of the defendant under the indictment in this case, restrict your deliberations 

solely to the guilt or innocence of the defendant” (VI R.R. at 12). See Colburn v. State, 966 

S.W.2d 511, 520 (Tex. Crim. App. 1998) (“We generally presume the jury follows the trial 

court’s instructions in the manner presented.”).
34

them entirely, such an instruction would only serve to focus the jury’s attention on 

the threats’ most damaging application. 

Courts presume that counsel is in the best position to determine the 

appropriate strategy for trial. Delrio, 840 S.W.2d at 447 (citing Strickland v. 

Washington, 466 U.S. at 690). In the particular circumstances of Appellant’s case, 

and without the benefit of hindsight, it cannot be said that no reasonable attorney 

would have failed to request a more specific limiting instruction. See Smith v. 

State, 286 S.W.3d 333, 342 (Tex. Crim. App. 2009). 

Furthermore, it is notable that the complained-of evidence was elicited near 

the end of the guilt-innocence phase of Appellant’s trial. The evidence took very 

little time to develop – the State elicited briefly elicited the evidence during its 

cross-examination of Appellant (see V R.R. at 197-207). The evidence closed on 

page 217 of that same volume. See Lemmons, 75 S.W.3d at 525 (observing the 

short lapse of time between the introduction of evidence and the limiting 

instruction). The jury was generally instructed to determine Appellant’s guilt or 

innocence under the indictment, and there was no evidence to show that the jury 

formed an opinion prior to the time it began its deliberation. See id. (where the 

court noted factors which indicated any error did not affect a substantial right). 

The same facts and issues detailed supra likewise demonstrate that there is 

not a reasonable probability that the result of the trial would have been different 
35

with a more specific – perhaps detrimental – limiting instruction. See Hernandez v. 

State, 726 S.W.2d 53, 58 (Tex. Crim. App. 1986). Even with such an instruction, 

other evidence introduced at trial would have ensured the same result See

Statement of Facts, supra (at 2-8). In light of all the other evidence, there is no 

danger the jury convicted Appellant for threatening unaccomplished future harm 

to hostile prison inmates instead of the charged conduct of actually strangling the 

young girl. Accordingly, because Appellant cannot show a reasonable probability 

that the result of the proceeding would have been different, his ineffective 

assistance claim related to the failure to request a limiting instruction must also 

fail.
36

Prayer

Wherefore, premises considered, Appellee respectfully prays that this 

Honorable Court of Appeals affirm in all matters the judgment of the trial court in 

this case.

JENNIFER THARP

Criminal District Attorney

 By 

/s/ Joshua D. Presley

Joshua D. Presley

SBN: 24088254

Assistant District Attorney

150 N. Seguin Avenue, Ste. #307

New Braunfels, Texas 78130

(830) 221-1300

Fax (830) 608-2008

E-mail: preslj@co.comal.tx.us

Attorney for the State
37

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 Brief for the State has 

been delivered to Appellant NATHANIEL PAUL FOX’s attorney of record in this 

matter:

Paul A. Finley

401 Main Plaza, Suite 200

New Braunfels, Texas 78130

Telephone: (830) 625-8026

Facsimile: (830) 625-4433

Email: pfinley@reaganburrus.com

Attorney for Appellant on Appeal

By electronically sending it through efile.txcourts.gov to the above-listed email 

address, this the 13th day of April, 2015.

/s/ Joshua D. Presley

Joshua D. Presley
38

Certificate of Compliance

I hereby certify, pursuant to Rule 9.4(i)(2)(B) and Rule 9.4(i)(3) of the Texas 

Rules of Appellate procedure that the instant brief is computer-generated using 

Microsoft Word and said computer program has identified that there are 8,478

words within the portions of this brief required to be counted by Rule 9.4(i)(1) & 

(2) of the Texas Rules of Appellate Procedure. 

The document was prepared in proportionally-spaced typeface using Times 

New Roman 14 for text and Times New Roman 12 for footnotes. 

/s/ Joshua D. Presley

Joshua D. Presley