## In The Court of Appeals Seventh District of Texas at Amarillo

________________________ No. 07 - 18 - 00 208 - CR No. 07 - 18 - 00 209 - 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 , 201 8 

### ORDER FOR REBRIEFING Before QUINN, C.J., and CAMPBELL and PIRTLE, J J . Appellant, Ja de Derrick Scales, was charged by an amended indictment with two counts of cruelty to non - livestock animals
. See T EX . P ENAL C ODE A NN . § 42.092( b)(1) (West Supp. 2018). Each count of the amended indictment contained the identical charging information, to - wit:2

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 47 th 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 8 t h 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 p urpose 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 husbandr y or agriculture practice involving a livestock an imal. 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 — o ne pertaining to the number of offenses committed and the other pertaining to the appropriate range of punishment. As to the first i ssue , i n the prosecution of an offense under section 42.092(b), where the object of the alleged unlawful conduct in each c ase 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 eac h animal the appropriate subject of a3

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) (holdin g 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 T EX . P ENAL C ODE A NN . § 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 T EX . P ENAL C ODE A NN . § 12.425 (West Supp. 2018). Because these questions are of paramount importance to the just and right disposition of this matter and because the c ourt desires to have the input of the parties in resolving these unassigned issues , the c ourt hereby orders Appellant to consider these i ssues 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 avai l itself of any applicable Rule of Appellate Procedure, as needed.4

It is so ORDERED. Per Curiam Do not publish