1 NO. 03

- 14 -00617- CR

NATHANIEL PAUL FOX § IN THE THIRD §

V. § DISTRICT COURT OF §

THE STATE OF TEXAS § APPEALS OF TEXAS

STATE’S LETTER OF ADDITIONAL AUTHORITIES

TO THE HONORABLE JUSTICES OF SAID COURT:

Now comes the State of Texas, Appellee in the above-styled and -numbered

cause, and files this its Letter of Additional Authorities. Some of the following

cases were released after the State filed its original brief. The attorney for the State

bookmarked them for later review, and upon further analysis beginning this

Monday found that: 1) rehearing has since been denied, and that 2) they might be

relevant to the Court ’ s decision. The following are excerpts from potentially

relevant cases:

Extraneous offense evidence :

In an analogous situations involving extraneous offense evidence, virtually all courts have declined to make a finding of ineffective assistance of counsel on direct appeal based on a trial attorney ’ s failure to request a limiting instruction even when an instruction would have been required if requested.

.... Further, several courts have noted that a trial attorney may reasonably decide, as part of her trial strategy, not to request a limiting instruction because a limiting instruction may actually have the effect of bringing unwanted attention to the extraneous offense evidence, and thereby have a negative impact on the defendant ’ s case. ACCEPTED
03-14-00617-CR

8038070
THIRD COURT OF APPEALS

AUSTIN, TEXAS
12/1/2015 3:37:07 PM

JEFFREY D. KYLE

CLERK2

Villalva v. State , 08

- 13

- 00219

- CR, 2015 WL 4134531, at *5

- 6 (Tex. App.

— El Paso July 8, 2015, no pet.) ( m a n d a t e i s s u e d S e p t

. 2 9

, 2 0 1 5 ) (not designated for publication) ( i n t e r n a l c i t a t i o n s o m i t t e d )

.

D o u b l e J e o p a r d y :

To prevail, the clai mant must prove legal sameness and factual

sameness

.

... .

... there are two relevant inquiries in a double

- jeopardy analysis. The legal

- sameness inquiry depends on only the pleadings and statutory

law

— not the record

— to ascertain whether two offenses are the s ame. The factual

- sameness inquiry requires a reviewing court to examine the entire record to determine if the same offenses have been alleged.

Ex Parte Castillo , 469 S.W.3d 165, 1 6 9

- 72 (Tex. Crim. App. 2015), reh ’ g denied (Oct. 7, 2015)

.

An element of the offense of aggravated assault domestic violence is that the victim of the offense be “a person whose relationship to or association with the defendant is described by § 71.0021(b), 71.003,

or 71. 005, of the Texas Family Code....” See Tex. Penal Code Ann. § 22.02(b)(1) (West 2011).

Cobbs v. State , 07

- 11

- 0201

- CR, 2011 WL 6347518, at *1 (Tex. App.

— Amarillo Dec. 19, 2011, no pet.) ( p e r c u r i a m o r d e r f o r r e b r i e f i n g ) ( n o t d e s i g n a t e d f

o r

p u b l i c a t i o n )

.

The Penal Code defines elements of the offense as (a) the forbidden

co nduct, (b) the required culpability, (c) any required result, and (d) the negation of any exception to the offense

. T ex. Pen Code Ann. § 1.07(a)(22) (Vernon 1994).

Sheppard v. State , 5 S.W.3d 338, 340 (Tex. App.

— Texarkana 1999, no pet.)

.3

if the two offenses have different elements under the Blockburger test, the judicial presumption is that the offenses are different for double

jeopardy purposes and that cumulative punishment may be imposed

. This presumption can be rebutted by a showing, through various factors, that the legislature “clearly intended only one” punishment

.

... .
Even if an analysis of the Ervin facto rs were inconclusive, applicant ’ s double

- jeopardy claim would fail, because the presumption established by the offenses having different elements under the Blockburger analysis would remain unre butted

. When the Blockburger same

- elements test indicates that the offenses are different, the evidence that the legislature intended only one punishment must be clear in order to rebut that presumption

.

Ex parte Benson , 459 S.W.3d 67, 72

, 8 9 (Tex. Crim. App. 2015), reh ’ g denied (May 20, 2015) ( i n t e r n a l c i t a t i o n s o m i t t e d )

.

R espectfully submitted,

/s/ Joshua D. Presley Joshua D. Presley SBN: 24088254 preslj@co.comal.tx.us

Comal Criminal District Attorney ’s Office 150 N. Segu in Avenue, Suite 307 New Braunfels, Texas 78130

Ph: (830) 221

- 1300 / Fax: (830) 608

- 20084 CERTIFICATE OF SERVICE

I, Joshua D. Presley

, Assistant D istrict A ttorney for the State of Texas,

Appellee, hereby certify that a true and correct copy of this State’s L e t t e r o f

A d d i t i o n a l A u t h o r i t i e s has been delivered t o Appellant NATHANIEL PAUL

FOX ’s attorney in this matter :

Paul A. Finley pfinley@reaganburrus.com Reagan Burrus PLLC 401 Main Plaza, Suite 200 New Braunfels, TX 78130 Counsel for Appellant on Appeal

B y electronically sending it to his above

- listed email address through

efile.txcourts .gov , this 1 st day of December

, 2015

.

/s/ Joshua D. Presley Joshua D. Presley