In The 

Court of Appeals 

Seventh District of Texas at Amarillo

________________________

No. 07-18-00208-CR 

No. 07-18-00209-CR 

________________________

JADE DERRICK SCALES, APPELLANT 

 

V. 

 

THE STATE OF TEXAS, APPELLEE 

 

 

On Appeal from the 181st District Court 

Potter County, Texas 

Trial Court No. 70,813-B (Counts I & II); Honorable John B. Board, Presiding 

 

December 18, 2018 

 

ORDER FOR REBRIEFING 

 

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ. 

Appellant, Jade Derrick Scales, was charged by an amended indictment with two 

counts of cruelty to non-livestock animals. See TEX. PENAL CODE ANN. § 42.092(b)(1) 

(West Supp. 2018). Each count of the amended indictment contained the identical 

charging information, to-wit:
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The Grand Jurors for Potter County, Texas, duly organized and sworn as 

such at the July Term A.D., 2015, of the District Court of the 47th Judicial 

District, in and for Potter County, Texas, upon their oaths in that Court at 

that term present that JADE DERRICK SCALES, hereinafter styled 

Defendant, on or about the 8th day of February, 2015, and before the 

presentment of this indictment, in Potter County, Texas, did then and there, 

intentionally, knowingly, or recklessly in a cruel manner kill or in a cruel 

manner cause serious bodily injury to an animal, namely, a dog, by stabbing 

or cutting it or a combination thereof, and the Defendant's conduct was not 

a generally accepted and otherwise lawful form of conduct occurring solely 

for the purpose of or in support of fishing, hunting, or trapping; or wildlife 

management, wildlife or depredation control, or shooting to preserve 

practices as regulated by state and federal law; or animal husbandry or 

agriculture practice involving a livestock animal.

In addition, the amended indictment contained a Deadly Weapon Notice alleging 

that during the commission of each offense, Appellant did use or exhibit a deadly weapon, 

namely, a knife. Finally, the amended indictment contained an Enhancement Paragraph

alleging that before the commission of the primary offense, Appellant was finally convicted 

of the felony offense of burglary of a habitation.

In our review of this case, two unbriefed issues of potential fundamental error have 

arisen—one pertaining to the number of offenses committed and the other pertaining to 

the appropriate range of punishment.

As to the first issue, in the prosecution of an offense under section 42.092(b), 

where the object of the alleged unlawful conduct in each case is identically described as 

“an animal, namely, a dog,” does the prosecution for multiple offenses violate principles 

of due process or double jeopardy? And, where the two offenses are alleged to have 

occurred during the same criminal episode, is each animal the appropriate subject of a 
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separate unit of prosecution? Finally, if Appellant is subject to prosecution for more than 

one offense, did the indictment in this case provide adequate notice of multiple offenses?

As to the second issue, where the offense in question was a state jail felony at the 

time of the commission of the offense, what was the appropriate range of punishment

under the facts of this case? Specifically, in light of Prichard v. State, 533 S.W.3d 315 

(Tex. Crim. App. 2017) (holding the Legislature intended to permit a deadly-weapon 

finding only if the recipient of the use or exhibition of the deadly weapon was a human), 

where the indictment does not allege a human recipient in the prosecution of an offense 

under section 42.092(b), is the offense punishable as a third degree felony based upon 

the use of a deadly weapon? See TEX. PENAL CODE ANN. § 12.35(c)(1) (West Supp. 2018). 

And, finally, is a state jail felony offense, similar to the one in this case, subject to 

enhancement based upon a single prior felony offense? See TEX. PENAL CODE ANN. §

12.425 (West Supp. 2018). 

Because these questions are of paramount importance to the just and right 

disposition of this matter and because the court desires to have the input of the parties in 

resolving these unassigned issues, the court hereby orders Appellant to consider these 

issues and to file a supplemental brief within thirty days of the date of this order, 

addressing these questions only. Upon the filing of Appellant’s Supplemental Brief, the 

State shall have thirty days to file a responsive brief. In their discussion of the identified 

issues, the parties shall address whether each issue requires preservation under Rule 

33.1 of the Texas Rules of Appellate Procedure and, if so, whether the issues were 

preserved for review. Each party may also avail itself of any applicable Rule of Appellate 

Procedure, as needed.
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It is so ORDERED.

Per Curiam

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