                                                                                      ACCEPTED
                                                                                 03-14-00617-CR
                                                                                        4872841
SEE AMEND BRF FILED                                                    THIRD COURT OF APPEALS
                                                                                  AUSTIN, TEXAS
ON 12/2/15                                                                 4/13/2015 11:22:09 PM
                                                                               JEFFREY D. KYLE
                                                                                          CLERK
                       No. 03-14-00617-CR
   __________________________________________________________
                                                        FILED IN
                                                 3rd COURT OF APPEALS
          IN THE COURT OF APPEALS FOR THE THIRD       AUSTIN, TEXAS
                      DISTRICT OF TEXAS          4/13/2015 11:22:09 PM
   __________________________________________________________
                                                     JEFFREY D. KYLE
                                                          Clerk
                   NATHANIEL PAUL FOX, Appellant

                                    v.

                  THE STATE OF TEXAS, Appellee
   __________________________________________________________

  On Appeal from the 207th Judicial District Court of Comal County, Texas
                         Cause No. CR2013-091
             Honorable Bruce Boyer, District Judge Presiding
   __________________________________________________________

                     BRIEF FOR THE STATE
   __________________________________________________________

                                                            Jennifer Tharp
                                                  Criminal District Attorney

                                                                          By
                                                          Joshua D. Presley
                                                            SBN: 24088254
                                                 Assistant District Attorney
                                           150 N. Seguin Avenue, Suite #307
                                                             (830) 221-1300
                                                         Fax (830) 608-2008
                                                New Braunfels, Texas 78130
                                              E-mail: preslj@co.comal.tx.us
                                                      Attorney for the State


                    Oral Argument Is Requested
                     Identity of Parties and Counsel

              Attorneys for the Appellant Nathaniel Paul Fox

AT TRIAL
Roy L. Warren
SBN: 20888685
1775 Oakwood Loop
San Marcos, TX 78666
Telephone: (512) 392-5188
Facsimile: (512) 847-6901

ON APPEAL
Paul A. Finley
401 Main Plaza, Suite 200
New Braunfels, Texas 78130
Telephone: (830) 625-8026
Facsimile: (830) 625-4433
Email: pfinley@reaganburrus.com

               Attorneys for the Appellee, The State of Texas

AT TRIAL
Sammy McCrary
Chief Felony Prosecutor
COMAL COUNTY CRIMINAL DISTRICT ATTORNEY’S OFFICE
150 N. Seguin Avenue, Suite 307
New Braunfels, Texas 78130
Telephone: (830) 221-1300
Facsimile: (830) 608-2008
Email: mccras@co.comal.tx.us

Jennifer Tharp
Comal County Criminal District Attorney
COMAL COUNTY CRIMINAL DISTRICT ATTORNEY’S OFFICE
150 N. Seguin Avenue, Suite 307
New Braunfels, Texas 78130
Telephone: (830) 221-1300
Facsimile: (830) 608-2008
Email: tharpj@co.comal.tx.us
                                     ii
ON APPEAL
Joshua D. Presley
Assistant District Attorney
COMAL COUNTY CRIMINAL DISTRICT ATTORNEY’S OFFICE
150 N. Seguin Avenue, Suite 307
New Braunfels, Texas 78130
Telephone: (830) 221-1300
Facsimile: (830) 608-2008
Email: preslj@co.comal.tx.us




                           iii
                                                Table of Contents

Index of Authorities ...................................................................................................v

Statement of the Case.................................................................................................1

Issues Presented .........................................................................................................1

Statement of Facts ......................................................................................................2

         Appellant’s Convictions Did Not Violate Double Jeopardy ......................9

                   Summary of the Argument ....................................................................9

                   Argument ...............................................................................................9

         Appellant Cannot Show Ineffective Assistance of Counsel .....................16

                   Summary of the Argument ..................................................................16

                   Ineffective Assistance of Counsel Standard of Review on Appeal ......17

                   Argument .............................................................................................20

                   Counsel Was Not Ineffective for Failing to Object to
                   Admissible Evidence ............................................................................20

                   A More Specific Limiting Instruction Might Have Harmed
                   Appellant in the Circumstances of His Case .......................................31

Prayer .......................................................................................................................36

Certificate of Service ...............................................................................................37

Certificate of Compliance ........................................................................................38




                                                              iv
                                              Index of Authorities
                                                  Statutes & Rules

Tex. Crim. Proc. Code Ann. § art. 37.09 ............................................................... 11
Tex. Pen. Code Ann. § 19.02 ................................................................................... 12
Tex. Pen. Code Ann. § 22.02 ................................................................................... 10


                                                           Cases

Agbogwe v. State, 414 S.W.3d 820 (Tex. App.—
Houston [1st Dist.] 2013, no pet.) ............................................................................ 31

Alvarez v. State, 511 S.W.2d 493 (Tex. Crim. App. 1973) ..................................... 29

Bigon v. State, 252 S.W.3d 360 (Tex. Crim. App. 2008) ..................................13, 14

Blockburger v. United States, 284 U.S. 299 (1932) ................................................ 12

Childress v. State, 285 S.W.3d 544 (Tex. App.—Waco
2009, pet. ref’d) ........................................................................................................ 14

Colburn v. State, 966 S.W.2d 511 (Tex. Crim. App.
1998) ........................................................................................................................ 14

Delrio v. State, 840 S.W.2d 443 (Tex. Crim. App. 1992) .................................18, 34

Duvall v. State, 59 S.W.3d 773 (Tex. App.—Austin 2001,
pet. ref’d) .................................................................................................................. 12

Ervin v. State, 991 S.W.2d 804 (Tex. Crim. App. 1999) ......................................... 15

Ex parte Torres, 991 943 S.W.2d 469 (Tex. Crim. App.
1997) ........................................................................................................................ 19

Garcia v. State, 57 S.W.3d 436 (Tex. Crim. App. 2001) ........................................ 18

Gilbert v. State, 808 S.W.2d 467 (Tex. Crim. App. 1991) ..................................... 30

                                                               v
Girdy v. State, 213 S.W.3d 315 (Tex. Crim. App. 2006) ........................................ 11

Gonzales v. State, 304 S.W.3d 838 (Tex. Crim. App.
2010) ............................................................................................................13, 14, 15

Goodspeed v. State, 187 S.W.3d 390 (Tex. Crim. App.
2005) ........................................................................................................................ 20

Hall v. State, 225 S.W.3d 524 (Tex. Crim. App. 2007) ....................................10, 14

Halliburton v. State, 528 S.W.2d 216 (Tex. Crim. App.
1975) ......................................................................................................22, 23, 29, 30

Hernandez v. State, 726 S.W.2d 53 (Tex. Crim. App.
1986) ........................................................................................................................ 35

Jacob v. State, 892 S.W.2d 905 (Tex. Crim. App. 1995) ....................................... 11

Lemmons v. State, 75 S.W.3d 513 (Tex. App.—San
Antonio 2002, pet. ref’d). ........................................................ 21, 22, 27, 29, 31, 34

Littrell v. State, 271 S.W.3d 273 (Tex. Crim. App. 2008) ...................................... 10

Lopez v. State, 343 S.W.3d 137 (Tex. Crim. App. 2011) ..................................17, 18

Mallett v. State, 65 S.W.3d 59 (Tex. Crim. App. 2001) .......................................... 19

Mata v. State, 226 S.W.3d 425 (Tex. Crim. App. 2007) .......................18, 19, 20, 31

McCrary v. State, 327 S.W.3d 165 (Tex. App.—
Texarkana 2010, no pet.)....................................................................................10, 12

Missouri v. Hunter, 459 U.S. 359 (1983) ............................................................... 10

Oakes v. State, 07-07-0128-CR, 2010 WL 668541, at *1
(Tex. App.—Amarillo Feb. 25, 2010, no pet.) (mem. op.,
not designated for publication) ............................................................................... 21

Ortiz v. State, 93 S.W.3d 79 (Tex. Crim. App. 2002) ...................................... 20, 31


                                                              vi
Patrick v. State, 906 S.W.2d 481 (Tex. Crim. App. 1995) ..................................... 18

Perez v. State, 310 S.W.3d 890 (Tex. Crim. App. 2010) ........................................ 18

Perry v. State, 06-13-00051-CR, 2014 WL 3973929 (Tex.
App.—Texarkana Aug. 15, 2014), reh’g overruled (Sept.
15, 2014), petition for discretionary review refused (Jan.
14, 2015) (mem. op., not designated for publication) .............................9, 12, 13, 31

Ruiz v. State, 579 S.W.2d 206 (Tex. Crim. App. 1979) .......................................... 29

Russell v. State, 113 S.W.3d 530 (Tex. App.—Fort Worth
2003, pet. ref’d) ..................................................................................................21, 30

Rylander v. State, 101 S.W.3d 107 (Tex. Crim. App. 2007) .............................20, 31

Skillern v. State, 890 S.W.2d 849 (Tex. App.—Austin
1994, pet. ref’d) ....................................................................................................... 27

Smith v. State, 286 S.W.3d 333 (Tex. Crim. App. 2009) ........................................ 34

Strickland v. Washington, 466 U.S. 668 (1984) ...................................................... 17

Thompson v. State, 9 S.W.3d 808 (Tex. Crim. App. 1999) ..................................... 18

Tong v. State, 25 S.W.3d 707 (Tex. Crim. App. 2000) ........................................... 19

Turner v. State, 4 S.W.3d 74 (Tex. App.—Waco 1999, no
pet.)........................................................................................................................... 27

Zuliani v. State, 383 S.W.3d 289 (Ct. App.—Austin 2012,
pet. ref’d) ............................................................................................................14, 15




                                                               vii
                               Statement of the Case

      Appellant was indicted by a grand jury on March 13, 2013, for Murder and

Aggravated Assault of a Family or Household Member with a Deadly Weapon,

both first-degree felonies (I C.R. at 6). After pleading “not guilty” to each count, a

jury returned judgments of conviction against Appellant for both offenses on

August 22, 2014 (id. at 34-36). On August 29, 2014, the trial court sentenced

Appellant to 60 years in the Texas Department of Criminal Justice – Institutional

Division on each count, to be served concurrently (id. at 37, 41). Appellant timely

filed his notice of appeal on September 14, 2014 (id. at 160).


                                  Issues Presented

   1. Is Appellant subjected to Double Jeopardy for multiple punishments when
      his offenses each require proof of an element which the other does not, and
      the Ervin factors seem to indicate a legislative intent to impose multiple
      punishments?

   2. Is counsel ineffective for failing to object to evidence which Texas case law
      holds is admissible to rebut Appellant’s claim of self-defense?

   3. Is counsel’s performance deficient for failing to request a limiting
      instruction when the instruction itself might be harmful to the Appellant?
      Further, assuming arguendo that counsel’s performance was deficient, can
      Appellant obtain reversal where he cannot demonstrate a reasonable
      probability that the result would have been different even with such an
      instruction?




                                          1
                                      Statement of Facts

       The Appellant, Nathaniel Paul Fox, had an “[u]p and down” relationship

with his live-in girlfriend Melissa Eason, the victim in the instant case (V R.R. at

172). In the early part of 2011, Appellant and Melissa were living with her sister

Alicia (id. at 34). Alicia said that Appellant and Melissa had a bad relationship (id.

at 35). Alicia had observed bruises on her sister’s arm on multiple occasions (id. at

36-37). Late one night – on April 2, 2011 – Melissa ran into Alicia’s room; Melissa

was screaming that Appellant “was trying to kill her, he tried to strangle her” (id. at

35). Alicia saw rug burns on Melissa’s face, blood from her ear, and marks around

her sister’s neck (id. at 36).

       Responding officers found Melissa shaken and crying (III R.R. at 25).

Melissa told Sergeant Nelms that Appellant – an aspiring mixed martial arts fighter

– had assaulted her after she returned home from hanging out with her friends (id.;

id. at 121; V R.R. at 182-83). Melissa said Appellant held her down with her arms

behind her back, lifting her arms and forcing her head into the ground for around

30 minutes (III R.R. at 26). She complained of pain in her shoulder, left ear and

neck; Nelms observed that her left ear was bleeding “from where it was tearing

from… her head” (id. at 26).1 Officers arrested Appellant after learning he had

1
 Photos of Melissa’s injuries were later shown to the jury (id. at 27-28; see also VIII R.R. at 10-
17).



                                                2
violated a New York protective order which prohibited him from being in contact

with Melissa (id. at 28). Alicia thereafter refused to allow Appellant to live in her

home with Melissa (id. at 36). Alicia was “worried about the safety of my own

family with my young daughter” as well as Melissa (id.).

      Subsequently, Appellant resided with Melissa at 211 East Merriweather (id.

at 39). On November 1, 2012, New Braunfels Police Officer Derrick Bobo

responded to a call at 211 East Merriweather (id.). Melissa reported Appellant had

pushed her down on October 30th, bruising her in the process (id. at 39-40). The

officer observed and photographed one of Melissa’s injuries (id. at 40). Appellant

had told Melissa that if she ever left him he would kill her (id. at 41). Melissa

appeared to be afraid of Appellant (id.). Melissa told the officer that “she didn’t

feel like she’d be alive past February and that [Appellant] had a shotgun on lay-

away” (id.).

      Mallory Eason likewise testified that her sister Melissa and Appellant had a

bad relationship (id. at 48). Mallory had seen Appellant physically abuse Melissa

(id.). In a conversation with Mallory on New Year’s Eve – December 31, 2012 –

Melissa said she was planning to leave Appellant (id. at 48). Melissa said that “she

needed to leave and get away because she feared that she was going to wake up

dead one day” (id. at 49). Although at the time Mallory joked that Melissa could

not “wake up dead,” she asked her sister not to go back to Appellant’s residence


                                         3
without a police escort (id.). Melissa assured Mallory that she would spend the

night at her friend Jessica’s house, and that she would see Mallory again the next

day (id.).

       Appellant planned to spend New Year’s Eve with another girl (V R.R. at

188). Melissa found out about the date; she knew the girl, and went to talk to her

about Appellant (id. at 189). As a result, Appellant spent New Year’s Eve alone

(id. at 188). In a later conversation with an ex-girlfriend, Appellant would say that

he was “looking forward to the date and then Melissa went and found her and had

a fucking chat with her” (id. at 190). During cross-examination, when asked if

during this same conversation he had said “[f]uck you, Bitch. You don’t get to

decide who I fucking talk to,” Appellant claimed he could not recall (id. at 190-

91).

       Melissa stayed at Jessica Villareal’s house on the night of December 31,

2012 (III R.R. at 52-53). Jessica said that Melissa was planning on leaving

Appellant, and that she spent the night at Jessica’s house because Melissa “didn’t

know what [Appellant] would do if he got drunk” (id. at 53). Melissa had a new

residence she planned to move into about two weeks after New Year’s Eve (id. at

53). The next morning on New Year’s Day, Melissa told Jessica good-bye and left

her house around 6:30 a.m. (id. at 54).




                                          4
      Appellant’s neighbor heard Appellant’s distinctive car door slam around

11:00 a.m. on New Year’s Day (id. at 67). Appellant drove to and from his New

Braunfels apartment two to three times that morning (id. at 68). Though the

neighbor asked Appellant what he was doing during Appellant’s final stop at his

apartment, Appellant drove off without answering (id. at 67-68). Appellant’s

mother called police after Appellant told her over the phone that he had been in a

disturbance with his girlfriend, and that his girlfriend was dead (VIII R.R. State’s

Ex. 12 at 00:25; III R.R. 177). Police arrived at Melissa and Appellant’s apartment

around 20 to 30 minutes after Appellant left, at about 2 p.m. (III R.R. at 68, 77).

After gaining entry to the apartment, officers found Melissa dead, her body lying

face down (III R.R. at 86). Corporal Fuller observed that Melissa’s body was

strangely positioned on a neatly laid-out jacket (id. at 88-89).

      Meanwhile, Appellant drove to a co-worker’s girlfriend’s house (V R.R. at

16). Once he reached the house, Appellant did not immediately get out of his truck

– he sat in his vehicle until his co-worker, Leslie Schmidt, approached him (id. at

29). Appellant looked visibly upset (id. at 17). Appellant said that Melissa had

shown up at their apartment, and that during a fight he had “choked her out” (id. at

18, 30). Schmidt’s girlfriend Raulings was standing outside the house, away from

the initial conversation (id. at 29). Schmidt approached her and told her that

“[Appellant] might really have messed up this time” (id. at 30). Raulings said


                                           5
“[Appellant] was worried that he’d hurt his girlfriend in a… bad way. He basically

said that he thought maybe she was dead” (id. at 30). Raulings also heard

Appellant say “maybe he should run, [to] Mexico, maybe he should take his own

life” (id. at 31).

       Around 2:26 p.m., Officer Sabedra tried calling Appellant’s phone (III R.R.

at 101; V R.R. at 72-73). Appellant apparently answered the phone (see III R.R. at

102). When the officer identified himself and asked if the Appellant would mind

talking with him, Appellant responded “Yeah, I do,” and hung up (id.). When

Sabedra redialed the number, no one answered the phone (id.). Appellant then

drove his truck to Landa Park and “ripped the battery out of his cell phone” so the

police could not track it (id. at 157). After abandoning his truck, Appellant either

walked or rode back to Rauling’s house with Schmidt (V R.R. at 35). Officers later

received a report that Appellant’s unoccupied truck had been left in Landa Park (III

R.R. at 103). Officers found Appellant’s cell phone with the battery disconnected

inside the truck (id. at 145). Detective Hobbs knew that people would sometimes

remove batteries from their cell phones to try to avoid being tracked by the police

(id. at 146).

       Appellant stayed with Raulings over the next few days (V R.R. at 33). From

time to time, he would “hang his head and say that he didn’t mean to do it” (id.).

After a warrant was issued for Appellant’s arrest, Raulings insisted on going to the


                                         6
police station (id. at 37). Appellant said “It’s time to pay the piper,” and Raulings

dropped him off in front of the station (id. at 37, 36). Appellant did not enter the

police station, however, and he was eventually taken into custody at Bob’s

Billiards (id. at 36).

       At trial, a forensic scientist testified that DNA under Melissa’s fingernails

was consistent with Appellant’s DNA (id. at 143, 144, 146). Photos of Appellant –

taken four days after Melissa’s death – showed scratch marks on his right arm and

shoulder (III R.R. at 92-93; VIII R.R. at 39-55). There was also testimony that

Melissa had been struck on the head (V R.R. at 92). A forensic pathologist testified

that the hyoid bone in Melissa’s neck had been broken, and the cause of Melissa’s

death was asphyxia by strangulation (id. at 101; 90). The manner of death was

homicide (id. at 102).

       Appellant tried to elicit from witnesses that Melissa had been the aggressor

in previous incidents (see III R.R. at 30, 70). He elicited from Schmidt that

Appellant was “mellow” and did not lose his temper (V R.R. at 23). During

Appellant’s cross-examination of Schmidt, he introduced testimony that Melissa

was “vicious,” and that Appellant may have lacked the intent to kill her (id. at 24-

25). Appellant further elicited that a neighbor had never seen him “lose his cool”

with Melissa, even after she slapped him (id. at 156). Appellant emphasized that

“she was the fighter” (id.). When Appellant took the stand, he testified about a


                                         7
“blood choke” move he had learned in the Marines (id. at 179). He said he used the

move against Melissa in self-defense, to give himself time to escape her assault (id.

at 184-85, 192-93). He testified that he was worried Melissa was going to beat him

to death (id. at 194). The State then cross-examined Appellant with aggressive

statements he made about other inmates (id. at 197-98, 200-02, 206).

      Appellant asked for and received a jury charge instruction on self-defense

(id. at 28). He argued self-defense to the jury in closing (VI R.R. at 39-40, 46).

The jury returned guilty verdicts on Count I, Murder, and Count II, Aggravated

Assault of a Family or Household Member with a Deadly Weapon (id. at 68-69).

The Court sentenced Appellant to concurrent sentences of 60 years for each count

(VII R.R. at 39).




                                         8
      Appellant’s Convictions Did Not Violate Double Jeopardy

                            Summary of the Argument

      Appellant contends that his convictions for Murder and Aggravated Assault

violated his right against Double Jeopardy under the Fifth Amendment of the

United States Constitution. See Brief for Appellant at 7. However, the Legislature

may impose multiple punishments for the same conduct consistent with the

Constitution. Because Appellant’s aggravated assault as charged is not a lesser-

included offense of the charged murder, and because the Blockburger analysis and

Ervin factors indicate the Legislature intended to impose multiple punishments for

his conduct, the Court should overrule Appellant’s first point of error.

                                     Argument

      The Double Jeopardy guarantee against multiple punishments for the same

offense is not absolute; it is designed to prevent courts from prescribing greater

punishment than the Legislature has intended. Perry v. State, 06-13-00051-CR,

2014 WL 3973929, at *5 (Tex. App.—Texarkana Aug. 15, 2014), reh’g overruled

(Sept. 15, 2014), petition for discretionary review refused (Jan. 14, 2015) (mem.

op., not designated for publication) (citing McCrary v. State, 327 S.W.3d 165, 171-

72 (Tex. App.—Texarkana 2010, no pet.). “When the Legislature specifically

authorizes multiple punishments under two statutes, even if those two statutes

proscribe the same conduct, ‘a court’s task of statutory construction is at an end

                                          9
and the prosecutor may seek and the trial court or jury may impose cumulative

punishment under such statutes in a single trial.’” McCrary v. State, 327 S.W.3d

165, 172 (Tex. App.—Texarkana 2010, no pet.) (citing Missouri v. Hunter, 459

U.S. 359, 368-69 (1983)). However, when one charged act is a lesser-included

offense of another, absent a clear expression of legislative intent to the contrary,

they are considered the same for Double Jeopardy purposes. Littrell v. State, 271

S.W.3d 273, 279 (Tex. Crim. App. 2008).

       To determine whether an offense is a “lesser-included offense” of murder,

courts now examine the required elements of the offenses charged, and not the

evidence proved at trial. Hall v. State, 225 S.W.3d 524, 535 (Tex. Crim. App.

2007).2 Appellant was charged with Murder and Aggravated Assault of a Family or

Household Member with a Deadly Weapon (hereinafter “aggravated assault”).

Appellant’s aggravated assault as charged required the State to prove that

Appellant used a deadly weapon during the commission of the offense, and that

Appellant caused serious bodily injury to Melissa Eason, whose relationship to the

defendant was described by 71.0021(b) or 71.005 of the Family Code. See Tex.

Pen. Code Ann. § 22.02(a), (b); VI R.R. at 21-22. The relationship element was not

a required element of Appellant’s murder charge. Because proof of such a


2
  Hall noted that although the evidence in that murder trial may have shown “threatening and
display,” these were not required elements of the murder, and aggravated assault by threat was
therefore not a lesser-included offense. Id. at 537.
                                             10
relationship is not required to be proved for the offense of murder, it cannot be

said that the aggravated assault as alleged “is established by proof of the same or

less than all the facts required to establish the commission of the offense

charged.”3See Tex. Crim. Proc. Code Ann. § art. 37.09 (West, Westlaw through

2013 Sess); see also Jacob v. State, 892 S.W.2d 905, 908 (Tex. Crim. App. 1995)

(“The State argues this focuses on the evidence the State presented to prove the

charged offense. But such interpretation negates the language of Article 37.09(1)

by changing ‘facts required’ into ‘facts presented.’ ‘Facts required’ means the

evidence legally required to prove the elements.”). Accordingly, as charged in this

particular case, aggravated assault is not a lesser-included offense of murder.4 See

id; see also VI R.R. at 15-17, 21-22.

       The Blockburger test is one tool used to determine if the Legislature

intended multiple punishments. “When the same act or transaction violates two


3
  In citing Girdy v. State, Appellant overlooks that case’s language which held that if the State
“in proving the elements of one charged offense, also necessarily proves another charged
offense, then that other offense is a lesser-included offense.” 213 S.W.3d 315, 319 (Tex. Crim.
App. 2006) (emphasis in original). Girdy found the particular offense at issue in that case to be a
lesser included offense because it was “established by proof of the same or less than all the facts
required to establish the commission” of the greater offense. Id. Even if Girdy stood for the
proposition that “in proving the elements of one charged offense [the State] also proves another
charged offense the other offense is a lesser included” (Brief for Appellant at 8), the later Hall
case would have overruled it. See 225 S.W.3d at 535, supra (at 10).
4
  Appellant’s citation of Langs v. State for the proposition that multiple punishments for both a
greater offense and a lesser included offense violate Double Jeopardy is therefore inapposite; as
in Hall, the particular aggravated assault in Appellant’s case is not a lesser included offense of
the murder. Brief for Appellant at 7; see also 225 S.W.3d at 537.


                                               11
different penal statutes, the two offenses are the same for double jeopardy purposes

if one of the offenses contains all the elements of the other; they are not the same if

each offense has a unique element.” Duvall v. State, 59 S.W.3d 773, 777 (Tex.

App.—Austin 2001, pet. ref’d) (citing Blockburger v. United States, 284 U.S. 299

(1932)). As noted supra, the State was not required to prove the relationship

element for the murder offense. Conversely, to prove the murder in Appellant’s

case, the State was required to prove that Appellant caused the victim’s death (I

C.R. at 29-30); Tex. Pen. Code Ann. § 19.02 (West, Westlaw through 2013 Sess.).

This was not a required element to prove Appellant’s aggravated assault (I C.R. at

33-34). Because each offense requires proof of an element the other does not,

applying the Blockburger test to Appellant’s case establishes a presumption that

“the Legislature intended to authorize punishments under both.” See Perry, 2014

WL 3973929, at *6 (citing McCrary, 327 S.W.3d at 172). That is not the end of the

analysis, however. Courts must next consider:

      [1] whether [the] offenses are in the same statutory section; [2]
      whether the offenses are phrased in the alternative; [3] whether the
      offenses are named similarly; [4] whether the offenses have common
      punishment ranges; [5] whether the offenses have a common focus;
      [6] whether the common focus tends to indicate a single instance of
      conduct; [7] whether the elements that differ between the two offenses
      can be considered the same under an imputed theory of liability that
      would result in the offenses being considered the same under
      Blockburger; and [8] whether there is legislative history containing an
      articulation of an intent to treat the offenses as the same or different
      for double-jeopardy purposes.


                                          12
Id. (citing Bigon v. State, 252 S.W.3d 360, 370 (Tex. Crim. App. 2008)).

      Murder and Aggravated Assault are located in different chapters of the Penal

Code. Accordingly, they cannot be phrased in the alternative, and this factor is

inapplicable. The two offenses are not named similarly. Murder is a first-degree

felony, as is the particular aggravated assault charged. The “imputed theory” factor

is inapplicable to Appellant’s case.

      Although both offenses are result-oriented crimes, Gonzales v. State noted

that “[i]f the focus of the offense is the result—that is, the offense is a ‘result of

conduct’ crime—then different types of results are considered to be separate

offenses, but different types of conduct are not.” 304 S.W.3d 838, 848 (Tex. Crim.

App. 2010) (emphasis added). Appellant cites Bigon v. State. Brief for Appellant at

8. In that particular case, the Court observed “[t]he focus of [murder and

intoxication manslaughter] is the same: the death of an individual. Both offenses

are result oriented and punish one for causing the death of another….the sameness

of the result is an indication that the Legislature did not intend to impose multiple

punishments.” 252 S.W.3d at 371 (emphasis added).

      By contrast, in Appellant’s case, the focus and ultimate results of his

offenses are different. The result contemplated and proscribed by the aggravated

assault of a family or household member statute is the “harm inflicted to a victim

in the same household.” See Perry, 2014 WL 3973929, at *7. The result


                                         13
contemplated and proscribed by the murder statute is causing the death of an

individual. That there was overlap in the evidence used to establish Appellant

caused the death of an individual and inflicted harm to a victim in the same

household is not determinative; as Appellant correctly states, “[t]he focus is on the

elements in the charging instrument.” Brief for Appellant at 7 (citing Bigon, 252

S.W.3d at 370); see also Hall, 225 S.W.3d at 535; Cf. Childress v. State, 285

S.W.3d 544, 549 (Tex. App.—Waco 2009, pet. ref’d) (focus is on element, not

proof of the offense; “the Supreme Court eliminated the ‘same conduct’ rule—the

idea that just because [appellant] engaged in one ‘culpable act,’ he cannot be

convicted of more than one offense) (citing United States v. Dixon, 509 U.S. 688

(1993)). Because the Legislature was concerned with different types of results,

factor five also supports the determination that Appellant’s offenses are different.

Because the focus is different, factor six does not indicate the Legislature viewed

the offenses as the same for Double Jeopardy purposes.

      Finally, there does not appear to be any legislative history containing an

articulation of an intent to treat the offenses as the same or different. The Court in

Zuliani v. State found the lack of any clear legislative history was a factor which

did not favor multiple punishments. 383 S.W.3d 289, 294 (Ct. App.—Austin 2012,

pet. ref’d) (“[the] legislature must ‘make manifest its intention’ to punish single act

twice”) (citing Gonzales, 304 S.W.3d at 846). Gonzales does not broadly hold that


                                          14
the “legislature must ‘make manifest its intention’ to punish a single act twice”;

rather, the Court in the particular context of that case observed that “[a]n accused

may be punished for two offenses even though they would be regarded as the same

under a Blockburger analysis if the Legislature has otherwise made manifest its

intention that he should be.” Id. at 845 (emphasis added). Notably, both Zuliani

and Gonzales followed offenses which the Blockburger analysis indicated were the

same. 383 S.W.3d at 294; 304 S.W.3d at 845. When comparing Zuliani and

Gonzalez to Appellant’s case, Blockburger indicates Appellant’s offenses are not

the same. Because the presumption is reversed in Appellant’s case, the lack of

legislative history should favor treating the offenses as different. Cf. Zuliani, 383

S.W.3d at 294; Gonzales, 304 S.W.3d at 845; see also Ervin v. State, 991 S.W.2d

804, 814 (Tex. Crim. App. 1999) (“whether there is legislative history containing

an articulation of an intent to treat the offenses as the same or different for double

jeopardy purposes”) (emphasis added).

      Factors one, three, five and eight indicate the Legislature intended to treat

the offenses as different for purposes of Double Jeopardy; only factor four

(common punishment ranges) supports treating the offenses as the same. If

anything, the presumption established by the Blockburger analysis in Appellant’s

case – that the Legislature intended multiple punishments – is only strengthened by

the Ervin factor analysis. See Gonzales, 304 S.W.3d at 848 (“we have signaled that


                                         15
the ‘focus’ or ‘gravamen’ of a penal provision [factor five] should be regarded as

the ‘best’ indicator when it comes to determining whether the Legislature intended

to define more than one offense.”).


       Appellant Cannot Show Ineffective Assistance of Counsel

                            Summary of the Argument

      Appellant claims his counsel was ineffective for failing to object to the

State’s cross-examination using Appellant’s statements to others in recorded jail

phone calls. Because the record on appeal generally lacks counsel’s motivations

and reasoning, claims of ineffective assistance are not usually appropriate matters

for appeal. In any event, defense counsel was not ineffective for failing to object to

evidence which became admissible once Appellant raised issues related to his

intent and self-defense. Furthermore, counsel may have had strategic reasons for

failing to request a limiting instruction: in the particular circumstances of

Appellant’s case, it may have been preferable to convince the jury to disregard the

complained-of evidence entirely, rather than direct its application in a manner

which would be most damaging to Appellant. Alternatively, even if a limiting

instruction should have been requested, in light of the other evidence introduced –

and the relatively innocuous nature of the complained-of evidence compared to the




                                         16
actual charged conduct – Appellant cannot show a reasonable probability that a

limiting instruction would have changed the outcome of the trial.

        Ineffective Assistance of Counsel Standard of Review on Appeal

      The Sixth Amendment right to effective assistance of counsel does not

provide a right to errorless counsel; it is a right to objectively reasonable

representation. Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011) (citing

McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970); Strickland v. Washington,

466 U.S. 668, 686 (1984)). To prevail on a claim of ineffective assistance of

counsel, an appellant must satisfy both prongs of Strickland, demonstrating both

deficient performance by counsel as well as prejudice suffered by the defendant

because of counsel’s alleged deficient performance. 466 U.S. at 687; Menefield v.

State, 363 S.W.3d 591, 592 (Tex. Crim. App. 2012).

      Under the first prong, the Applicant must demonstrate that counsel’s

performance fell below an objective standard of reasonableness under prevailing

professional norms. Strickland, 466 U.S. at 687–88. To satisfy the second prong of

Strickland, the Applicant has to show the existence of a reasonable probability –

one sufficient to undermine confidence in the outcome – that but for counsel’s

deficient performance, the result of the proceeding would have been different.

Strickland, 466 U.S. at 694. Failure to make the required showing of either

deficient performance or sufficient prejudice defeats the ineffectiveness claim.


                                        17
Strickland, 466 U.S. at 700; see Perez v. State, 310 S.W.3d 890, 893 (Tex. Crim.

App. 2010).

        “It is not sufficient that the appellant show, with the benefit of hindsight, that

his counsel’s actions or omissions during trial were merely of questionable

competence.” Mata v. State, 226 S.W.3d 425, 430 (Tex. Crim. App. 2007). In

making its assessment of counsel’s assistance, the reviewing court examines the

totality of the representation and the circumstances of each case without the benefit

of hindsight. Lopez, 343 S.W.3d at 142-43; Thompson v. State, 9 S.W.3d 808, 813

(Tex. Crim. App. 1999); Garcia v. State, 57 S.W.3d 436, 430 (Tex. Crim. App.

2001). The reviewing court must presume that counsel is better positioned to judge

the pragmatism of the particular case, and that he “made all significant decisions in

the exercise of reasonable professional judgment.” Delrio v. State, 840 S.W.2d

443, 447 (Tex. Crim. App. 1992) (citing Strickland v. Washington, 466 U.S. at

690).

        Reviewing courts will indulge in a strong presumption that trial counsel’s

performance was reasonable. Patrick v. State, 906 S.W.2d 481, 495 (Tex. Crim.

App. 1995). The “[a]ppellant has the burden of proving ineffective assistance by a

preponderance of the evidence.” Id. (citing Cannon v. State, 668 S.W.2d 401 (Tex.

Crim. App. 1984)). The Court has also noted that “the presumption that trial

counsel’s performance was reasonably based in sound trial strategy, coupled with


                                            18
the absence of any supporting evidence in the record of unreasonableness, compels

a reviewing court to consider ways in which trial counsel’s actions were within the

bounds of professional norms.” Mata, 226 S.W.3d at 431.

      To prevail on a claim of ineffective assistance of counsel, an appellant must

provide a record that affirmatively demonstrates that defense counsel’s

performance was not based on sound strategy. Mallett v. State, 65 S.W.3d 59, 63

(Tex. Crim. App. 2001). If the appellate record is silent regarding the reasons for

defense counsel’s conduct, then it is insufficient to overcome the presumption that

counsel was following a legitimate strategy. Tong v. State, 25 S.W.3d 707, 714

(Tex. Crim. App. 2000); Thompson, 9 S.W.3d at 813–14; Jackson v. State, 877

S.W.2d at 771 (refusing to hold counsel’s performance deficient given the absence

of evidence concerning counsel’s reasons for choosing the course he did).

      As the Court stated in Ex parte Torres, “[i]n most instances, the record on

direct appeal is inadequate to develop an ineffective assistance claim.” 943 S.W.2d

469, 475 (Tex. Crim. App. 1997) (internal citations omitted). The Court has noted

that “trial counsel should ordinarily be afforded an opportunity to explain his

actions before being denounced as ineffective. Absent such an opportunity, an

appellate court should not find deficient performance unless the challenged

conduct was ‘so outrageous that no competent attorney would have engaged in it.’”




                                        19
Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005) (quoting

Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2007)).

      Accordingly, the Court has repeatedly held that post-conviction writs of

habeas corpus are the more appropriate or preferable means of raising a claim of

ineffective assistance of counsel. See, e.g., Rylander, 101 S.W.3d at 110-11;

Jackson v. State, 973 S.W.2d 954, 957 (Tex. Crim. App. 1998); Mata, 226 S.W.3d

at 430 (“[t]he lack of a clear record usually will prevent the appellant from meeting

the first part of the Strickland test, as the reasonableness of counsel’s choices and

motivations during trial can be proven deficient only through facts that do not

normally appear in the appellate record”).

                                     Argument

     Counsel Was Not Ineffective for Failing to Object to Admissible
                               Evidence

      Even if the Court determines the record is sufficient to fairly evaluate

counsel’s choices as they relate to his failure to object to the evidence, case law

demonstrates that such evidence was admissible in the circumstances of

Appellant’s case. To show deficient performance of counsel for a failure to object,

an appellant must show that the unobjected-to evidence was inadmissible. Ortiz v.

State, 93 S.W.3d 79, 93 (Tex. Crim. App. 2002). It is the trial court’s responsibility

to determine whether extraneous offense evidence is relevant for a purpose other


                                         20
than the propensity of an appellant to commit bad acts. Russell v. State, 113

S.W.3d 530, 535 (Tex. App.—Fort Worth 2003, pet. ref’d). “So long as the trial

court’s decision to admit or exclude evidence falls in the zone within which

reasonable minds may differ, appellate courts should refrain from disturbing the

trial court’s decision on appeal.” Id. (citing Montgomery v. State, 810 S.W.2d 372,

390 (Tex. Crim. App. 1990), on reh’g (June 19, 1991). Finally, “[a]n extraneous

offense may be used to rebut a defensive theory, such as self-defense, even though

this purpose is not mentioned in Rule 404(b).” Oakes v. State, 07-07-0128-CR,

2010 WL 668541, at *1 (Tex. App.—Amarillo Feb. 25, 2010, no pet.) (mem. op.,

not designated for publication) (citing Crank v. State, 761 S.W.2d 328, 341 (Tex.

Crim. App. 1988).

      The court in Lemmons v. State detailed a particularly pertinent use for

extraneous conduct evidence: to rebut the appellant’s theory of self-defense. 75

S.W.3d 513, 523 (Tex. App.—San Antonio 2002, pet. ref’d). In Lemmons, while

the appellant did not take the stand himself during his capital murder trial, he

introduced some evidence of self-defense through other witnesses. Id. The State

then argued the appellant had opened the door on the issue of self-defense, and was

allowed to call three witnesses to testify about an extraneous robbery at gunpoint.

Id. at 522. On appeal, the Lemmons court observed that the appellant had

introduced evidence of self-defense and had obtained an instruction on self-defense


                                        21
in the charge. The court of appeals then held that “the extraneous robbery offense

was relevant under rule 401 to rebut [the appellant’s] self-defense theory.” Id.5 In

Appellant’s case, not only did he likewise attempt to elicit evidence of and obtain a

jury charge instruction on self-defense, he expressly testified on cross-examination

that he was acting in self-defense (V R.R. at 184-85, 218; VI R.R. at 13-14).

       Halliburton v. State is even more on point with the facts of Appellant’s case.

In Halliburton, the appellant testified that she shot the deceased in self-defense

after he threatened her with a gun. 528 S.W.2d 216, 217 (Tex. Crim. App. 1975).

The State then called another man who testified that appellant had pulled up beside

him while he was walking down the street and demanded money he owed her. Id.

at 217. When he told her he did not have any money, the appellant got out of her

car and shot him as he tried to run away. Id. Notably, this happened around five

weeks after the shooting for which the appellant was on trial. Id. When the

appellant complained about the admission of the extraneous shooting evidence, the

Court of Criminal Appeal observed that the appellant had raised the issue of self-

defense and no intent to kill. Id. The Court first noted its prior case law allowed for

the introduction of an extraneous offense to refute a defensive theory. Id. at 218

(citing Ratcliff v. State, 504 S.W.2d 883 (Tex. Crim. App. 1974)). Applying that

and other precedents, Halliburton stated that “[t]he appellant testified to self-

5
 See also Santellan v. State, 939 S.W.2d 155, 168 (Tex. Crim. App.1997) (holding extraneous
conduct subsequent to the charged offense was admissible).
                                             22
defense and that she had no intent to kill. She wanted the jury to believe her

testimony. The State was authorized to show that she shot another man some time

later to show her intent which tended to disprove her testimony.” Id.


      In the instant case, from the beginning of the State’s case in chief, Appellant

attempted to construct a narrative of cool, reactive self-defense in the face of the

victim’s dangerous aggression. On cross-examination of the State’s first witness,

Appellant elicited that he had been the one to call police during a prior domestic

incident (III R.R. at 30), and tried to show that the victim, Melissa, had inflicted

physical injuries on Appellant (id.). After stressing that one of Melissa’s sisters had

never seen a physical fight between Appellant and Melissa (id. at 55), Appellant

elicited from his neighbor that the victim had once “slapped [Appellant] so hard his

glasses flew off” (id. at 70). Appellant sought to present himself to the jury as a

passive, collected individual who at worst had inadvertently killed Melissa:

      [Defense:]          You said you’ve known [Appellant] for about six
                          months?

      [Schmidt:]          Yes, I – guess so.

      [Defense:]          Before this?

      [Schmidt:]          I don’t know.

      [Defense:]          Did you ever see him lose his temper?

      [Schmidt:]          No, very mellow.


                                          23
      [Defense:]         Okay. Did he ever lose his temper with you or
                         threaten you?

      [Schmidt:]         No.

                                       ….

      [Defense:]         How did you feel about Melissa Eason?

      [Schmidt:]         She was vicious.

                                       ….

      [Defense:]         Do you think [Appellant] loved Melissa Eason?

      [Schmidt:]         He did at one time.

      [Defense:]         And do you think he intentionally tried to kill her?

      [Schmidt:]         No.

(V R.R. at 23-25) (emphasis added). At the beginning of Appellant’s case in chief,

he recalled his neighbor John Gomez to further emphasize that he had never seen

Appellant be physically aggressive, even after Melissa had slapped him:

      [Gomez:]           …she had already slapped him and his glasses
                         were on the ground.

      [Defense:]         And he didn’t do anything back?

      [Gomez:]           I just seen him grab her and I turned away and
                         that’s it….

      [Defense:]         Did you ever see [Appellant] lose his cool?

      [Gomez:]           Not, no, not – no.



                                        24
       [Defense:]              And just to be clear… you said the only fights you
                               saw were where she was the fighter.

(id. at 156) (emphasis added).

       Once on the stand, Appellant again portrayed himself as cool and reactive,

employing his military training to humanely incapacitate the enraged victim and

escape her unending physical onslaught. Appellant first gave his account of the

events leading up to the Melissa’s death on cross-examination, in response to

mostly non-leading questions (see, e.g., id. at 192-93). He claimed he was sleeping

when Melissa came in “screaming, yelling, throwing stuff, [and] breaking stuff”

(id. at 192). Appellant said that once he sat up on the bed, she punched him in the

face – with a right, and a left, and another right (id. at 192-93). Appellant claimed

he then tried to put his pants on, and while he was bent over she hit him with a

“hammer fist in the back of the head” (id. at 193). Appellant then stated that “I

know that there are knives all around the house and I know she’s very dangerous,

so I figured it [was] in my best interests to not be beaten to death. I needed to….

restrain her” (id.). When the State questioned whether a trained Marine could

really be worried that “a girl” was going to beat him to death, Appellant again

insisted that he was in fear for his life (id. at 194). 6 It was at this point in

6
  Appellant would later claim that the victim became violent when drinking, that she outweighed
him by 30 pounds and was around three inches taller (id. at 210-11). He would claim that he was
“afraid for [his] life” (id. at 210), that he left because he was afraid she was going to wake up and
continue attacking him (id. at 215), and again that he was “terrified she was going to kill [him]”
(id.). Appellant stressed self-defense in closing (VI R.R. at 38-40) (“[the witness] saw her slap
                                                25
Appellant’s constructed narrative that he claimed he calmly used his Marine

training to defuse the situation (see id.).

       Appellant had earlier testified about his prior military experience in choking

a person into an unconscious state without harming him (see id. at 179). Appellant

claimed that his “technique” was not dangerous (id. at 184). He asserted that he

choked Melissa in measured and limited self-defense: “I choked her out for ten

seconds till she was unconscious, long enough …. for me …. [to] get away” (id. at

184-85). Appellant claimed that his DNA ended up under Melissa’s fingernails as

she struggled against his restraint (id. at 195). Appellant continued to build on

earlier-elicited testimony of his docile temperament, presenting himself to the jury

as a controlled pacifist:

       [State:]               You just kept choking her; didn’t you?

       [Appellant:]           I needed the violence to stop.

       [State:]               Why didn’t you just leave?

       [Appellant:]           I was trying to.

(id.). When confronted with the Melissa’s protective order against him in New

York, Appellant insisted that the incident from which the order arose involved the

victim attacking him (id. at 185-86). At one point, Appellant even claimed that –



him so hard, his glasses flew across. What did he do? He didn’t respond. He didn’t get mad. He
didn’t get upset. He just – you know, whenever he was trying to fight with her, he tried to subdue
her.”).
                                               26
though he had choked the victim – he was not the person who strangled her to

death (id. at 191-92). Appellant said he loved Melissa “[m]ore than life itself” (id.

at 196).

       Only after Appellant had presented such a narrative to the jury – of the

physically violent and aggressive victim, his fear for his life, his calm self-defense

response, and the theory that the death might have been an unfortunate accident –

did the State introduce the complained-of evidence to rebut these false

impressions. See Brief for Appellant at 10. Throughout the trial to that point,

Appellant had incessantly emphasized his peaceful, non-violent demeanor and

state of mind, even claiming he was only trying to put his pants on while the victim

was beating him to death. As the court noted in Lemmons:

       [w]hen the accused claims self-defense or accident, the State, in order
       to show the accused’s intent, may show other violent acts where the
       defendant was an aggressor. Halliburton v. State, 528 S.W.2d 216,
       217-218 (Tex. Crim. App. 1975). This is the converse of the rule that
       allows a defendant to show extraneous acts of violence by the
       deceased in a murder case when the defendant claims self-defense and
       that the deceased was the first aggressor.

75 S.W.3d at 523 (some internal citations omitted) .7



7
  See also Skillern v. State, 890 S.W.2d 849, 864 (Tex. App.—Austin 1994, pet. ref’d) (declined
to be followed on other grounds by Ex part Jones, 440 S.W.3d 628, 636 (Tex. Crim. App. 2014)
(“When the defendant ‘opens the door’ on an issue by attempting to present an incomplete
picture of an incident, the State is permitted to complete the picture by presenting evidence that
would have otherwise been inadmissible.”) (citing Lucas v. State, 791 S.W.2d 35, 53, 54 (Tex.
Crim. App. 1989)); Turner v. State, 4 S.W.3d 74, 79 (Tex. App.—Waco 1999, no pet.) (“As with
any other witness, when an accused testifies gratuitously as to some matter that is irrelevant or
                                               27
       Because Appellant presented evidence of both self-defense and accident, the

State was entitled to establish several statements Appellant made in recorded jail

phone calls during its cross-examination of Appellant (see, e.g., id. at 197-98). In

the calls, Appellant stated that he was having issues with another inmate (id.).

Appellant stated that he planned to let the other inmate take the first swing “and

then I’ll fuck him up if I don’t break his neck” (id. at 197-98). Less than a month

after his arrest for the victim’s murder, Appellant said he would claim self-defense

after his planned fight with the inmate (see id. at 197-98). In another conversation,

Appellant told his ex-girlfriend that he was not simply going to fight another

inmate – he was going to “fucking break him” and “leave him with physical

injuries he’ll never recover from,” that “he will walk with a limp for the rest of his

life,” and that Appellant would “break his arm, leg, jaw and a couple of ribs” (id. at

200-01). Appellant added that he was “going to try to leave him conscious through

the whole thing because I want him to feel every bit of pain” (id. at 201). Appellant

stated he would “start smashing people” if his case’s outcome looked bad, and that

he would get violent if he was not moved (id.). He further said that he was “going

to try to save somebody a trip to the hospital” and that he was going to “beat the

shit” out of two other inmates (id. at 202; see also id. at 206).




collateral to the proceeding, he may be impeached by a showing that he has lied or is in error as
to that matter.”) (citing Hammett v. State, 713 S.W.2d 102 (Tex. Crim. App. 1986)).
                                               28
      “Given [Appellant’s] introduction of self-defense as an issue, the State

needed to rebut [Appellant’s] claim that he was not the first aggressor.” See

Lemmons, 75 S.W.3d at 523-24. The foregoing was relevant and admissible to

rebut the false impression Appellant gave to the jury – that he was a nonviolent

recipient of the first-aggressor victim’s attack, that he feared for his life, and that

he intended no harm when he choked the victim unconscious. See Halliburton, 528

S.W.2d at 218 (State could use subsequent offense to show appellant’s intent and

disprove testimony).

      Appellant points to the general rule against the introduction of extraneous

offenses, and observes that such evidence “may be inadmissible when its only

relevance is to show that a person is of a particular character.” Brief for Appellant

at 11. Appellant relies upon Texas Rule of Evidence 404(b) in arguing that an

objection to the admission of the extraneous conduct would have been successful.

Id. However, the case law cited in Appellant’s brief is distinguishable from

Appellant’s case. See id.

      In Ruiz v. State, the Court observed that there was “no disputed or contested

factual issue to which the prior extraneous murder offense was relevant, material,

and admissible.” 579 S.W.2d 206, 210 (Tex. Crim. App. 1979). Alvarez v. State

involved an extraneous offense “wholly disconnected” from the offense for which

the appellant was on trial; intent was not even at issue in that case. 511 S.W.2d


                                          29
493, 495 (Tex. Crim. App. 1973). In Russell v. State, the court of appeals actually

deferred to the trial court’s 404(b) determination, acknowledging that it could not

“say that the trial court abused its discretion by concluding that the [extraneous]

offense bore some relevance to the issue of [the appellant’s] specific intent in the

capital murder of [the victim].” 113 S.W.3d at 540.

      Finally, although the Appellant’s cited case Gilbert v. State found that the

extraneous offense in that particular case was not relevant, it outlined situations

where such offenses could be admissible:

      the State may introduce such evidence where it logically serves “to
      make ... more probable” an elemental fact; where it serves “to make ...
      more probable” an evidentiary fact that inferentially leads to an
      elemental fact; or where it serves “to make ... less probable”
      defensive evidence that undermines an elemental fact. Illustrative of
      the permissible “purposes” to which evidence of “crimes, wrongs, or
      acts” may be put are “proof of motive, opportunity, intent,
      preparation, plan, knowledge, identity, or absence of mistake or
      accident [.]” Extraneous offense evidence that logically serves any of
      these purposes is “relevant” beyond its tendency “to prove the
      character of a person to show that he acted in conformity therewith.”

808 S.W.2d 467, 472 (Tex. Crim. App. 1991) (first emphasis added) (internal

citations omitted).

      In Appellant’s case, the extraneous remarks served to make less probable

defensive evidence related to self-defense and accident. As the Halliburton Court

remarked, “[i]f the extraneous offense is relevant in tending to disprove the

defensive theory, it should be admissible.” 528 S.W.2d at 219 (op. on reh’g); see


                                        30
also Lemmons, 75 S.W.3d at 523-24. Because the evidence was relevant and

admissible to rebut Appellant’s self-defense claims and to show his intent,

Appellant cannot cite to authority to show the evidence would have been

inadmissible over his 404(b) objection, and his ineffective assistance claim based

on his counsel’s failure to object must fail. See Ortiz, 93 S.W.3d at 93; Brief for

Appellant at 11.


 A More Specific Limiting Instruction Might Have Harmed Appellant in
                    the Circumstances of His Case

      Because the record does not clearly indicate counsel’s reasons for not

requesting a limiting instruction, Appellant cannot prove his counsel’s strategy was

not reasonable. See, e.g., Rylander, 101 S.W.3d at 110-11; Jackson v. State, 973

S.W.2d at 957; Mata, 226 S.W.3d at 430. “[T]he failure of defense counsel to

request a limiting instruction is not, by itself, ineffective assistance.” Perry, 2014

WL 3973929, at *17 (citing Agbogwe v. State, 414 S.W.3d 820, 832 (Tex. App.—

Houston [1st Dist.] 2013, no pet.). “Although ‘hindsight speculation may suggest a

limiting instruction of some nature’ should have been given, a reasonable

explanation for counsel’s actions can be that, ‘as a trial tactic, counsel did not wish

to remind the jury of those matters.’” Agbogwe, 414 S.W.3d at 837 (citing Webb v.

State, 995 S.W.2d 295, 300-01 (Tex. App.—Houston [14th Dist.] 1999, no pet.)).




                                          31
Without the benefit of hindsight, a more particular limiting instruction might have

worked against Appellant in the particular circumstances of his case.

      After Appellant’s remarks were introduced by the State, defense counsel

immediately sought to explain the comments away as mere bravado (V R.R. at

209). Appellant testified that he had never actually hurt anyone in the way he

threatened to hurt other inmates (id. at 210). He also testified that fellow inmates

could overhear his phone conversations (id. at 211), and that it was important to act

“tough” in front of them (id. at 209). Defense counsel spent a significant amount of

time on the theme in closing:

      Men like to talk big. You guys know that…. You know, he had to talk
      that way. In prison, you don’t talk like that, you’re not going to get
      out alive…. he was doing what he thought he had to do. You know,
      look at the evidence. If he had been beating people up and shooting
      people, being a real problem, you would have heard about it. He
      didn’t. What, are you going to convict [him] of a crime he might
      commit in the future because they said he would? Because he’s trying
      to keep people off his back? That’s just ridiculous…. He was talking
      big. He was a big fighter, or trying to make it seem that way anyway,
      so people wouldn’t mess with him.

(VI R.R. at 41-42) (emphasis added). Counsel was plainly trying to convince the

jury to dismiss the evidence altogether as entirely irrelevant.

      Hostile prison conditions are well known, and the jury would have been

generally familiar with them. In light of defense counsel’s explanation of the

threats as bluster, the threat of future harm against other inmates – perhaps

justifiable in such conditions – was not overly inflammatory in and of itself.
                                          32
Because there was no true risk the jury would convict Appellant for merely

threatening future harm to fellow jail inmates instead of for his conduct of actually

strangling the victim, the danger typically addressed by limiting instructions was

not present. Indeed, the threats’ most prejudicial aspect in regards to Appellant was

their proper application. In light of the Appellant’s claims of fear and self-defense,

the threats helped demonstrate that he would not be afraid of the victim,

contradicted the ‘cool, collected, non-aggressive warrior monk’ persona he tried to

construct, and helped to rebut his claimed intent during the charged conduct.

Defense counsel may well have preferred the general jury instruction8 to the more

particular instruction given in Lemmons:

       You are further instructed that if there is any evidence before you in
       this case regarding the defendant’s committing an alleged offense
       other than the offense alleged against him in the indictment in this
       case, you cannot consider such evidence for any purpose, unless you
       find and believe beyond a reasonable doubt that the defendant
       committed such other offense… and even then you may only consider
       the same in determining whether the defendant acted in self-defense
       … regarding the charges set out in the indictment in this cause.
75 S.W.3d at 525 (emphasis added). Given defense counsel’s explanation of the

prison threats as mere bluster and his attempt to convince the jury to disregard




8
 In its charge, the trial court generally instructed the jury that its “sole duty is to determine the
guilt or innocence of the defendant under the indictment in this case, restrict your deliberations
solely to the guilt or innocence of the defendant” (VI R.R. at 12). See Colburn v. State, 966
S.W.2d 511, 520 (Tex. Crim. App. 1998) (“We generally presume the jury follows the trial
court’s instructions in the manner presented.”).
                                                33
them entirely, such an instruction would only serve to focus the jury’s attention on

the threats’ most damaging application.

      Courts presume that counsel is in the best position to determine the

appropriate strategy for trial. Delrio, 840 S.W.2d at 447 (citing Strickland v.

Washington, 466 U.S. at 690). In the particular circumstances of Appellant’s case,

and without the benefit of hindsight, it cannot be said that no reasonable attorney

would have failed to request a more specific limiting instruction. See Smith v.

State, 286 S.W.3d 333, 342 (Tex. Crim. App. 2009).

      Furthermore, it is notable that the complained-of evidence was elicited near

the end of the guilt-innocence phase of Appellant’s trial. The evidence took very

little time to develop – the State elicited briefly elicited the evidence during its

cross-examination of Appellant (see V R.R. at 197-207). The evidence closed on

page 217 of that same volume. See Lemmons, 75 S.W.3d at 525 (observing the

short lapse of time between the introduction of evidence and the limiting

instruction). The jury was generally instructed to determine Appellant’s guilt or

innocence under the indictment, and there was no evidence to show that the jury

formed an opinion prior to the time it began its deliberation. See id. (where the

court noted factors which indicated any error did not affect a substantial right).

      The same facts and issues detailed supra likewise demonstrate that there is

not a reasonable probability that the result of the trial would have been different


                                          34
with a more specific – perhaps detrimental – limiting instruction. See Hernandez v.

State, 726 S.W.2d 53, 58 (Tex. Crim. App. 1986). Even with such an instruction,

other evidence introduced at trial would have ensured the same result See

Statement of Facts, supra (at 2-8). In light of all the other evidence, there is no

danger the jury convicted Appellant for threatening unaccomplished future harm

to hostile prison inmates instead of the charged conduct of actually strangling the

young girl. Accordingly, because Appellant cannot show a reasonable probability

that the result of the proceeding would have been different, his ineffective

assistance claim related to the failure to request a limiting instruction must also

fail.




                                        35
                                     Prayer

      Wherefore, premises considered, Appellee respectfully prays that this

Honorable Court of Appeals affirm in all matters the judgment of the trial court in

this case.


                                                             JENNIFER THARP
                                                        Criminal District Attorney

                                                                                By

                                                             /s/ Joshua D. Presley
                                                               Joshua D. Presley
                                                                   SBN: 24088254
                                                       Assistant District Attorney
                                                 150 N. Seguin Avenue, Ste. #307
                                                     New Braunfels, Texas 78130
                                                                   (830) 221-1300
                                                              Fax (830) 608-2008
                                                   E-mail: preslj@co.comal.tx.us
                                                            Attorney for the State




                                        36
                              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 Brief for the State has
been delivered to Appellant NATHANIEL PAUL FOX’s attorney of record in this
matter:

      Paul A. Finley
      401 Main Plaza, Suite 200
      New Braunfels, Texas 78130
      Telephone: (830) 625-8026
      Facsimile: (830) 625-4433
      Email: pfinley@reaganburrus.com
      Attorney for Appellant on Appeal

By electronically sending it through efile.txcourts.gov to the above-listed email
address, this the 13th day of April, 2015.

                                                                /s/ Joshua D. Presley
                                                                  Joshua D. Presley




                                         37
                           Certificate of Compliance

       I hereby certify, pursuant to Rule 9.4(i)(2)(B) and Rule 9.4(i)(3) of the Texas
Rules of Appellate procedure that the instant brief is computer-generated using
Microsoft Word and said computer program has identified that there are 8,478
words within the portions of this brief required to be counted by Rule 9.4(i)(1) &
(2) of the Texas Rules of Appellate Procedure.
       The document was prepared in proportionally-spaced typeface using Times
New Roman 14 for text and Times New Roman 12 for footnotes.

                                                                /s/ Joshua D. Presley
                                                                  Joshua D. Presley




                                         38
