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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

CLERK

 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 12/1/2015 3:37:07 PM JEFFREY D. KYLE Clerk
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Villalva v. State, 08-13-00219-CR, 2015 WL 4134531, at *5-6 (Tex. App.—El 

Paso July 8, 2015, no pet.) (mandate issued Sept. 29, 2015) (not designated for 

publication) (internal citations omitted).

Double Jeopardy:

To prevail, the claimant 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 same.

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, 169-72 (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.) (per curiam order for rebriefing) (not designated for

publication).

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

conduct, (b) the required culpability, (c) any required result, and (d) 

the negation of any exception to the offense. Tex. Pen Code Ann. § 

1.07(a)(22) (Vernon 1994).

Sheppard v. State, 5 S.W.3d 338, 340 (Tex. App.—Texarkana 1999, no pet.).
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if the two offenses have different elements under the Blockburger test, 

the judicial presumption is that the offenses are different for doublejeopardy 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 factors 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 unrebutted. 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, 89 (Tex. Crim. App. 2015), reh’g denied

(May 20, 2015) (internal citations omitted).

 

Respectfully submitted,

/s/ Joshua D. Presley

Joshua D. Presley SBN: 24088254

preslj@co.comal.tx.us

Comal Criminal District Attorney’s Office 

150 N. Seguin Avenue, Suite 307

New Braunfels, Texas 78130

Ph: (830) 221-1300 / Fax: (830) 608-2008
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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 State’s Letter of

Additional Authorities has been delivered to 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

By 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