AFFIRMED and Opinion Filed January 24, 2022 

S 

In The 

Court of Appeals 

Fifth District of Texas at Dallas 

No. 05-20-00391-CR 

No. 05-20-00392-CR 

NATHANAEL JACE MIXON, Appellant 

V. 

THE STATE OF TEXAS, Appellee 

On Appeal from the 195th Judicial District Court 

Dallas County, Texas 

Trial Court Cause Nos. F-1542179-N and F-1641127-N 

MEMORANDUM OPINION 

Before Justices Myers, Partida-Kipness, and Carlyle 

Opinion by Justice Partida-Kipness 

Nathanael Jace Mixon appeals his convictions for continuous sexual abuse of 

a child under the age of fourteen and aggravated sexual assault of a child. In four 

issues, Mixon contends the trial court erred in not charging the jury to find the date 

the indictments were returned, the evidence was factually insufficient to support the 

convictions, and his court-appointed appellate attorney provided ineffective posttrial assistance. We affirm the trial court’s judgment. 
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BACKGROUND 

Mixon is the second cousin of the two complainants in these cases: E.M. and 

R.H. E.M. was born in 2004 and visited Mixon’s house regularly for extended 

periods in 2009. In December 2015, E.M. told her stepfather that Mixon had 

“touched” her. E.M.’s stepfather informed E.M.’s mother, who filed a police report 

and took E.M. to the Dallas Children’s Advocacy Center (DACA) for a forensic 

interview. In that interview, E.M. described multiple incidents in which Mixon 

touched her vagina with his hand and had sexual intercourse with her. In June 2016, 

while police were investigating E.M.’s allegations, R.H. told her mother, who is also 

E.M.’s mother, that Mixon had also sexually assaulted her by holding her to a bed 

with his hands over her eyes while putting his penis in her mouth. R.H., who was 

born in 2005, said the incident happened when she was four years old. R.H.’s mother 

filed a police report, and R.H. was interviewed by a DACA forensic interviewer. 

Mixon was subsequently indicted for continuous sexual abuse of a child under the 

age of fourteen for incidents involving E.M. and aggravated sexual assault of a child 

for the incident involving R.H. 

At trial, the jury heard E.M.’s testimony and testimony of Mike Margolis, the 

DACA forensic interviewer who interviewed E.M. E.M. described multiple 

incidents in which Mixon attempted to put his penis in her vagina and touched her 

vagina with his hand. Margolis likewise testified that during the interview, E.M. 

discussed several incidents in which Mixon allegedly exposed himself, touched 
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E.M., and penetrated her vagina with his penis. R.H. testified to an incident in which 

Mixon lured her with M&Ms into a bedroom and told her to open her mouth and 

close her eyes. When she complied, Mixon inserted his penis into her mouth. E.M. 

was fifteen and R.H. was fourteen at the time of trial. Neither E.M. nor R.H. were 

able to testify as to exactly when the incidents occurred, but E.M.’s testimony 

indicated the incidents occurred when she was between four and six years old. R.H. 

testified that she was “five or six” when Mixon sexually assaulted her. 

During a break in trial testimony, the State asked the trial court to take judicial 

notice of the indictment date in both cases. The indictment in the first count alleged 

the offense occurred “on or about the 2nd day of August, 2010,” and was returned 

on February 22, 2016. The second indictment alleged the offense occurred “on or 

about the 1st day of September, 2013,” and was returned on August 15, 2016. Mixon 

did not object and the court took judicial notice of the indictment dates. The trial 

court subsequently instructed the jury that the State was not required to prove the 

exact date of the offense but could prove it occurred at any time between the date 

alleged in the indictment and the indictment return date. Mixon did not object to this 

instruction. 

The jury found Mixon guilty as charged in the indictments. The trial court 

sentenced Mixon to twenty-five years’ confinement for continuous sexual abuse of 

a child under the age of fourteen and twenty years’ confinement for aggravated 

sexual assault of a child. Three days after the trial court entered its judgment in each 
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case, Mixon’s trial counsel filed a form motion for new trial and notice of appeal. 

The trial court appointed appellate counsel the next day. Mixon’s motion for new 

trial was denied by operation of law and this appeal followed. 

ANALYSIS 

In four issues, Mixon asserts on appeal that the trial court erred in failing to 

charge the jury to find the indictment return date on both charges, the evidence was 

factually insufficient to support the jury’s verdict on the charge for continuous sexual 

abuse, and his court-appointed appellate attorney provided ineffective post-trial 

assistance. We address each issue in turn. 

A. Jury Charge 

In his first issue, Mixon contends the trial court was required to charge the 

jury to find the indictment return date on the charge of continuous sexual abuse. He 

makes the same argument in his second issue with respect to the charge of sexual 

assault. Thus, we will address both issues together. 

In each charge, the trial court instructed the jury that the State “is not required 

to prove the exact date alleged in the indictment.” Relying on each indictment’s use 

of the phrase “on or about,” the trial court instructed the jury that the State had only 

to prove that the offense alleged was committed between the date alleged and the 

indictment return date. Mixon contends that by failing to charge the jury to find the 

indictment return dates, the trial court failed to charge the jury on each “essential 

element[] of [the] offense.” According to Mixon, the State must prove that the 
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offense alleged was committed before the indictment was returned and within the 

limitations period. Although a trial court may take judicial notice of certain facts, 

judicial notice is not binding on a jury in a criminal case. See TEX. R. EVID. 201(f). 

Thus, Mixon contends the trial court erred by instructing the jury as to the indictment 

return dates of which the court took judicial notice and not charging the jury to find 

the dates. 

Our disposition of this issue turns on whether the return date was an 

“adjudicative fact” on which the trial court was required to give a permissive 

instruction under rule 201(f). See id. “[A]djudicative facts are those to which the law 

is applied in the process of adjudication.” Thatcher v. State, 615 S.W.3d 333, 337 

(Tex. App.—Amarillo 2020, no pet.) (quoting In re Graves, 217 S.W.3d 744, 750 

(Tex. App.—Waco 2007, orig. proceeding)). They “relate to the parties, their 

activities, their properties, their businesses” and normally go to the jury in a jury 

trial. Id. Adjudicative facts that may be judicially noticed, however, are relevant to 

the ultimate issue in dispute but are not themselves the subject of any controversy. 

Watts v. State, 99 S.W.3d 604, 610 (Tex. Crim. App. 2003) (noting it “would waste 

limited judicial resources and defy common sense” to insist that a party prove 

commonly known or readily ascertainable facts, such as a city’s location). 

The indictment return dates at issue here are not adjudicative facts requiring a 

permissive instruction because they are not relevant to any issue in dispute. Mixon 

did not assert a limitations defense at trial, and the charges did not condition a guilty 
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verdict on a finding that the charged offense was committed before the indictment 

was presented and within any limitations period. Indeed, there is no limitations 

period on either of the offenses charged here. See TEX. CODE CRIM. PRO. art. 

12.01(1)(B), (D). 

Moreover, Mixon failed to object when the State asked the trial court to take 

judicial notice of the return dates and did not object to the trial court’s instruction. 

Thus, even if the trial court erred in giving the instruction, we would reverse only if 

the error “is so egregious and created such harm that he ‘has not had a fair and 

impartial trial’—in short ‘egregious harm.’” Almanza v. State, 686 S.W.2d 157, 171 

(Tex. Crim. App. 1985) (op. on reh’g); see also Agent v. State, No. 05-15-00430-

CR, 2016 WL 2627580, at *3 (Tex. App.—Dallas May 5, 2016, no pet.) (mem. op., 

not designated for publication) (same). We cannot conclude that any harm from the 

instruction, even if erroneous, would rise to that level. Accordingly, we overrule 

Mixon’s first and second issues. 

B. Factual Sufficiency

In his third issue, Mixon challenges the factual sufficiency of the evidence 

supporting the jury’s verdict on the charge of continuous sexual abuse of a child 

under fourteen. Although he acknowledges that factual sufficiency review was 

abolished in Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010) (plurality 

op.), he contends the court of criminal appeals disregarded constitutional due process 

mandates by doing so. 
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Whether there is any merit to Mixon’s argument is not for us to decide. Rather, 

we are bound by the court of criminal appeals’s precedent, and we decline to accept 

Mixon’s invitation to deviate from it. The court of criminal appeals has made clear 

that we must “review the sufficiency of the evidence establishing the elements of a 

criminal offense for which the State has the burden of proof under the single 

sufficiency standard set out in Jackson v. Virginia.” Matlock v. State, 392 S.W.3d 

662, 667 (Tex. Crim. App. 2013) (citing Jackson v. Virginia, 443 U.S. 307, 319 

(1979), as defining the legal sufficiency standard). Accordingly, we are prohibited 

from conducting a factual sufficiency review, as Mixon proposes, and we overrule 

his third issue. 

C. Ineffective Assistance 

In his fourth issue, Mixon contends his court-appointed appellate attorney 

failed to provide effective assistance during the post-trial phase. Mixon’s trial 

counsel filed a form motion for new trial in each case three days after the trial court 

entered its judgment. The trial court appointed appellate counsel the next day. Mixon 

contends that “appointed-appellate counsel did not file an improved motion for new 

trial, set this motion for new trial for a hearing, present the motion for new trial to 

the court, etc.” Thus, Mixon argues that his appointed appellate counsel “was the 

‘inert’ or ‘potted plant’ lawyer who, although physically and mentally present, failed 

to provide any meaningful assistance.” He asserts that this is the “hypothetical 

situation posited” in United States v. Cronic, 466 U.S. 648, 658–60 (1984) (“[I]f 
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counsel entirely fails to subject the prosecution’s case to meaningful adversarial 

testing, . . . the adversary process [is] itself presumptively unreliable[, and] [n]o 

specific showing of prejudice [is] required.”).

This Court addressed similar arguments in Skinner v. State, No. 05-17-00153-

CR, 2018 WL 3545023. *9–10 (Tex. App.—Dallas July 24, 2018, pet. ref’d) (mem. 

op., not designated for publication), and Suarez v. State, No. 05-19-01035-CR, 2020 

WL 6580396, at *4 (Tex. App.—Dallas Nov. 10, 2020, pet. ref’d) (mem. op., not 

designated for publication). In both Skinner and Suarez, we concluded that Cronic

did not apply to counsel filing a “form” motion for new trial. Skinner, 2018 WL 

3545023, at *10; Suarez, 2020 WL 6580396, at *4. Rather, counsel’s failure to test 

the prosecution’s case “must be complete” and “bad lawyering, regardless of how 

bad, does not support the . . . presumption of prejudice under Cronic.” Skinner, 2018 

WL 3545023, at *10 (first citing Bell v. Cone, 535 U.S. 685, 697 (2002), and then 

citing Childress v. Johnson, 103 F.3d 1221, 1229 (5th Cir. 1997)); Suarez, 2020 WL 

6580396, at *4. Here, Mixon does not directly attack the adequacy of his trial 

counsel’s form motion, as Skinner and Suarez did. See Skinner, 2018 WL 3545023, 

at *9; Suarez, 2020 WL 6580396, at *4. Instead, Mixon collaterally attacks the 

motion by asserting his appointed appellate counsel failed to “improve” it. The effect 

is the same, thus our reasoning in Skinner and Suarez applies here. 

In situations such as this, we apply the test for ineffective assistance of counsel 

set out in Strickland v. Washington, 466 U.S. 668, 687–88 (1984). Skinner, 2018 WL 
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3545023, at *10; Suarez, 2020 WL 6580396, at *4; see also Satterwhite v. Texas, 

486 U.S. 249, 257 (1988) (deprivation of right to counsel subject to harmless error 

analysis when deprivation did not contaminate “entire criminal proceeding”); Cooks 

v. State, 240 S.W.3d 906, 911 (Tex. Crim. App. 2007) (deprivation of adequate 

counsel at motion for new trial stage subject to harmless error or prejudice analysis). 

Under Strickland, an appellant claiming ineffective assistance of counsel bears the 

burden of proving by a preponderance of the evidence that (1) counsel’s 

representation fell below an objective standard of reasonableness and (2) there is a 

reasonable probability that, but for counsel’s unprofessional errors, the results of the 

proceeding would have been different. Strickland, 466 U.S. at 687–88. Mixon has 

presented no argument to show what grounds his appointed appellate counsel should 

have raised in an “improved” motion for new trial or that the result of the proceeding 

would have been different if counsel had done so. Because Mixon has failed to meet 

his burden under Strickland, we resolve his fourth issue against him. 

CONCLUSION 

Having overruled all of Mixon’s issues on appeal, we affirm the trial court’s 

judgment. 

Do Not Publish 

TEX. R. APP. P. 47.2(b). 

200391F.U05 

 

/Robbie Partida-Kipness/

ROBBIE PARTIDA-KIPNESS 

JUSTICE 
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S 

Court of Appeals 

Fifth District of Texas at Dallas 

JUDGMENT 

NATHANAEL JACE MIXON, 

Appellant 

No. 05-20-00391-CR V. 

THE STATE OF TEXAS, Appellee 

 On Appeal from the 195th Judicial 

District Court, Dallas County, Texas 

Trial Court Cause No. F-1542179-N. 

Opinion delivered by Justice PartidaKipness. Justices Myers and Carlyle 

participating. 

 Based on the Court’s opinion of this date, the judgment of the trial court is 

AFFIRMED. 

Judgment entered January 24, 2022 

 
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S 

Court of Appeals 

Fifth District of Texas at Dallas 

JUDGMENT 

NATHANAEL JACE MIXON, 

Appellant 

No. 05-20-00392-CR V. 

THE STATE OF TEXAS, Appellee 

 On Appeal from the 195th Judicial 

District Court, Dallas County, Texas 

Trial Court Cause No. F-1641127-N. 

Opinion delivered by Justice PartidaKipness. Justices Myers and Carlyle 

participating. 

 Based on the Court’s opinion of this date, the judgment of the trial court is 

AFFIRMED. 

Judgment entered January 24, 2022