                                                                                   ACCEPTED
                                                                              03-14-00617-CR
                                                                                      3855582
                                                                     THIRD COURT OF APPEALS
                                                                               AUSTIN, TEXAS
                                                                         1/22/2015 9:18:19 AM
                                                                             JEFFREY D. KYLE
                                                                                        CLERK
                 IN THE THIRD COURT OF APPEALS

                     FOR THE STATE OF TEXAS                    FILED IN
                                                        3rd COURT OF APPEALS
                                                            AUSTIN, TEXAS
                                                        1/22/2015 9:18:19 AM
NATHANIEL PAUL FOX,                                       JEFFREY D. KYLE
Appellant                                                       Clerk


                                                  NO. 03-14-00617-CR
V.

THE STATE OF TEXAS,
Appellee


                         APPELLANT’S BRIEF


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


Paul A. Finley
State Bar No. 07023300
Reagan Burrus, PLLC
401 Main Plaza, Suite 200
New Braunfels, Texas 78130
Telephone:       (830) 625-8026
Facsimile:       (830) 625-4433
Email:           pfinley@reaganburrus.com




               Oral Argument is Respectfully Requested
                IDENTITIES OF PARTIES AND COUNSEL

     Pursuant to the provisions of Rule 38.1(a), Texas Rules of Appellate
Procedure, a complete list of the names of all parties to this action and
counsel are as follows:

Parties:                         Nathaniel Paul Fox, Appellant

                                 State of Texas, Appellee

Attorney for the Appellant:      Paul A. Finley
                                 State Bar No. 07023300
                                 Reagan Burrus PLLC
                                 401 Main Plaza, Suite 200
                                 New Braunfels, Texas 78130
                                 Telephone: (830) 625-8026
                                 Facsimile: (830) 625-4433
                                 Email: pfinley@reaganburrus.com

Attorney for the State:          Joshua Presley
                                 State Bar No. 24088254
                                 Assistant Criminal District Attorney
                                 150 N. Seguin Avenue, Suite 307
                                 New Braunfels, Texas 78130
                                 Telephone: (830) 221-1300
                                 Facsimile: (830) 608-2008
                                 Email: presleyjo@co.comal.tx.us




                                    i
                                     TABLE OF CONTENTS

IDENTITIES OF PARTIES AND COUNSEL .............................................i

TABLE OF CONTENTS ........................................................................... ii

INDEX OF AUTHORITIES ...................................................................... iii

STATEMENT OF THE CASE ................................................................. 1

STATEMENT REGARDING ORAL ARGUMENT ................................... 1

SUMMARY OF FACTS ........................................................................... 3

SUMMARY OF ARGUMENT .................................................................. 6

ISSUE ONE:               THE CONVICTION AGAINST THE APPELLANT
                         FOR THE CHARGES OF BOTH MURDER AND
                         FOR AGGRAVATED ASSAULT SUBJECTED
                         APPELLANT TO DOUBLE JEOPARDY...................... 6

ISSUE TWO:               COUNSEL FOR APPELLANT RENDERED
                         INEFFECTIVE ASSISTANCE TO THE APPELLANT
                         FOR THE FAILURE TO OBJECT TO THE STATE’S
                         CROSS EXAMINATION OF APPELLANT WITH
                         EVIDENCE OF EXTRANEOUS OFFENSES ............ 10


PRAYER ............................................................................................... 14

CERTIFICATE OF COMPLIANCE ........................................................ 15

CERTIFICATE OF SERVICE ................................................................ 15




                                                      ii
                                  INDEX OF AUTHORITIES


Alvarez v. State, 511 S.W.2d 493 (Tex. Crim. App. 1973) .................... 11
Blockburger v. United States, 284 U.S. 299 (1932) ................................ 7
Brigon v. State, 252 S.W.3d 360 (Tex. Crim. App. 2008) ....................... 8
Ex parte Cavazos, 203 S.W.3d 333 (Tex. Crim. App. 206) ..................... 9
Gilbert v. State, 808 S.W.2d 467 (Tex. Crim. App. 1991) ..................... 11
Gundy v. State, 213 S.W. 3d 315 (Tex. Crim. App. 2006) ...................... 8
Langs v. State, 183 S.W.3d 680 (Tex. Crim. App. 2006) ........................ 7
Ortiz v. State, 93 S.W.3d 79 (Tex. Crim. App. 2002) ............................ 11
Ramirez v. State, 873 S.W.2d 757 (Tex. App. – El Paso 1994) ............ 12
Ruiz v. State, 579 S.W.2d 206 (Tex. Crim. App. 1979) ......................... 11
Russell v. State, 113 S.W.3d 530 (Tex. App. – Fort Worth 2003) ......... 11
Strickland v. Washington, 466 U.S. 668 (1984) .................................... 12


STATUTES AND RULES

Tex. R. Evid. § 404(b) ........................................................................... 11
Tex. Pen. Code § 19.02 .......................................................................... 8
Tex. Pen. Code § 22.02 .......................................................................... 8

U.S. Const. Amend. V. ............................................................................ 7
U.S. Const. Ament. XIV........................................................................... 7




                                                   iii
TO THE HONORABLE JUSTICES OF THE THIRD COURT OF APPEALS:

      COMES NOW NATHANIEL PAUL FOX, Appellant in this case, by

and through his attorney of record, PAUL A. FINLEY, and, pursuant to the

provisions of Tex. R. App. Pro. 38, et. seq., files this brief on appeal.

                        STATEMENT OF THE CASE

      Appellant was indicted in Cause No. CR 2013-091 for the offense of

Murder and Aggravated Assault (CR Vol. 1, pp. 6-7). He entered pleas of

Not Guilty to both charges. A jury found Appellant guilty of both Murder

and Aggravated Assault of a Family or Household member with a deadly

weapon on August 22, 2014, (CR Vol. 1, pp. 35-36). The Court assessed

punishment at sixty years confinement in the Texas Department of Criminal

Justice—Institutional Division on both charges with sentences to run

concurrently, (CR Vol. 1, pp. 37-43). Appellant gave notice of appeal on

September 14, 2014, (CR Vol. 1, p. 160).

              STATEMENT REGARDING ORAL ARGUMENT

      Appellant requests oral argument in this case. Oral argument will aid

the Court’s decisional process in this case.

                            ISSUES PRESENTED

ISSUE ONE:        THE CONVICTION AGAINST THE APPELLANT FOR
                  THE CHARGES OF BOTH MURDER AND FOR
                  AGGRAVATED ASSAULT SUBJECTED APPELLANT
                  TO DOUBLE JEOPARDY.

                                       1
ISSUE TWO:   COUNSEL      FOR    APPELLANT     RENDERED
             INEFFECTIVE ASSISTANCE TO THE APPELLANT FOR
             THE FAILURE TO OBJECT TO THE STATE’S CROSS
             EXAMINATION OF APPELLANT WITH EVIDENCE OF
             EXTRANEOUS OFFENSES.




                           2
                           SUMMARY OF FACTS

      On January 1, 2013, the New Braunfels, Texas, Police Department

received a telephone call from Appellant’s mother alerting that Melissa

Eason, Appellant’s girlfriend, may be deceased at 211 E. Merriweather

Street in New Braunfels. In response, the New Braunfels Police conducted

a welfare check at an apartment at said address. Upon gaining entry,

police officers discovered Melissa Eason deceased.          Testimony from

Jessica Villarreal indicated that the deceased had spent the night at Ms.

Villarreal’s home before departing the next morning.           According to

Villarreal, Eason was uncertain what the Appellant would do if drunk and

had been concerned about returning to the apartment that she and the

Appellant shared.

      According to testimony from various witnesses, the Appellant and the

deceased had a volatile relationship. The decedent’s sister testified that

the deceased told her that the deceased needed to leave the Appellant or

she would “wake up dead.” The deceased made a similar statement to

Officer BoBo of the New Braunfels Police Department that the Appellant

told her if she ever left him he would kill her.   Law enforcement had been

called previously to the residence of the couple for disturbances and




                                       3
Appellant, on one occasion, was arrested for the violation of a protective

order that the deceased had entered against him the State of New York.

     The Appellant testified that on January 1, 2013, the deceased had

returned to the residence that the Appellant and the deceased shared in

New Braunfels. The Appellant said he was sleeping when the deceased

came in “screaming, yelling, throwing stuff, breaking stuff.” Appellant said

after he awoke the deceased punched him in the face. Appellant testified

he was worried that the deceased could beat him to death and so he put

the deceased in a rear naked choke hold and “choked her out.” Appellant

testified that he put on his clothes and left the apartment.      However,

Appellant said before he left, the deceased, who he did not intend to kill,

had a strong pulse and was breathing.      Later that morning he said he

returned to the apartment and the deceased was stiff and he then left. That

afternoon according to witnesses Leslie Schmidt and Lisa Raulings the

Appellant also admitted to them that he had “choked out” the deceased.

     The medical examiner testified that the cause of death was homicide

and that the decedent died of asphyxiation by strangulation.      Appellant

denied that he had crushed the throat of deceased.

     The State’s attorney attacked Appellant in cross examination and

called attention to the Appellant’s training as a Marine and a mixed martial


                                     4
arts participant. The prosecutor also questioned about telephone calls from

the jail involving Appellant after his arrest when Appellant boasted he would

seriously injure any inmate who would dare fight him.

     At the conclusion of the presentation of the evidence the jury

convicted Appellant of both charges of Murder and Aggravated Assault.

The Court sentenced Appellant to sixty years confinement in the

Institutional Division of the Texas Department of Criminal Justice on both

charges with the sentences to run concurrently.




                                     5
                       SUMMARY OF ARGUMENT

     Appellant was convicted of two offenses arising out of the same

criminal episode, Murder and Aggravated Assault of a Family or Household

Member. Appellant was sentenced to sixty years confinement in the Texas

Department of Criminal Justice – Institutional Division with the sentences to

run concurrently. Appellant contends that the dual convictions subjected

the Appellant to double jeopardy and that the Aggravated Assault

conviction should be set aside.

     Additionally, during the guilt-innocence stage of the proceedings,

Appellant took the stand on his own defense.        Without objection from

defense counsel, the State cross-examined the Appellant over extraneous

offenses and threats that Appellant made from the jail while awaiting trial

for the case. No limiting instruction on these other acts was requested by

Appellant’s trial counsel.    Appellant contends that trial counsel was

ineffective for failing to object to the introduction of said extraneous

offenses or to request a limiting instruction being given to the jury on the

consideration of said acts or offenses.




                                      6
ISSUE NO. ONE (RESTATED): THE CONVICTION AGAINST THE
APPELLANT FOR THE CHARGES OF BOTH MURDER AND FOR
AGGRAVATED ASSAULT SUBJECTED APPELLANT TO DOUBLE
JEOPARDY.

      At the conclusion of the trial the Appellant was found guilty by the jury

of both the offenses of Murder and Aggravated Assault of a Family or

Household member with a deadly weapon, (CR Vol. 1, pp. 35-36).

Judgment and sentence was assessed by the Court at sixty years

confinement in the Institutional Division of the Texas Department of

Criminal Justice. Both convictions were from charges brought against the

Appellant growing out of a single transaction and involving the same victim

(CR Vol. 1, pp. 6-7).

      Multiple punishments for the same offense are prohibited by the

United States Constitution. U.S. Const. Amend. V. This double jeopardy

clause is made applicable to the states. U.S. Const. Amend. XIV. If both

a greater and a lesser included offense are alleged and the same conduct

is punished once for the greater offense and a second time for the lesser

offense then a multiple punishment double jeopardy violation has occurred.

Langs v. State, 183 S.W.3d 680 (Tex. Crim. App. 2006). Even where there

is a violation of two distinct statutory provisions there still may only be one

offense for the double jeopardy review. Blockburger v. United States, 284

U.S. 299 (1932). The focus is on the elements in the charging instrument
                                      7
when determining whether crimes are the same for double jeopardy

purposes. Brigon v. State, 252 S.W.3d 360 (Tex. Crim. App. 2008).

     The elements of Murder as defined in the Texas Penal Code are by a

person either 1) intentionally or knowingly causing the death of an

individual or 2) intending to cause serious bodily injury and committing an

act clearly dangerous to human life that causes the death of an individual

Tex. Pen. Code §19.02.

      The elements of Aggravated Assault of a Family or Household

member with a deadly weapon as defined by the Texas Penal Code occur

when a person commits assault as defined in the Texas Penal Code and

the person causes serious bodily injury to another, including the person’s

spouse, uses or exhibits a deadly weapon during the commission of the

assault, and the person assaulted is in a relationship or association with the

defendant as described by section 71.0021(b), 71.003, or 71.005 of the

Texas Family Code. Tex. Pen. Code § 22.02.

      If the prosecution in proving the elements of one charged offense

also proves another charged offense the other offense is a lesser included

offense. Gundy v. State, 213 S.W. 3d 315 (Tex Crim. App. 2006). Unless

there is clear legislative intent to punish the offenses separately then

multiple punishments for the same criminal act are barred. Gundy, Ibid.


                                      8
The remedy In the situation where multiple corrections are obtained and

double jeopardy provisions are violated is to return the conviction for the

most serious offense and to set aside the other conviction. Ex parte

Cavazos, 203 S.W.3d 333 (Tex. Crim. App. 206).

     Aggravated Assault is a lesser included offense of Murder as plead in

the charging instrument in this case and as such on this issue the less

serious charge of Aggravated Assault should be set aside.




                                     9
ISSUE NO. TWO (RESTATED):       COUNSEL FOR APPELLANT
RENDERED INEFFECTIVE ASSISTANCE TO THE APPELLANT FOR
THE FAILURE TO OBJECT TO THE STATE’S CROSS EXAMINATION OF
APPELLANT WITH EVIDENCE OF EXTRANEOUS OFFENSES.

      The Appellant testified on his own behalf at the guilt- innocence stage

of the proceedings. During cross examination of the Appellant by the State

the Appellant was questioned about a telephone call he made to his sister

(R.R. Vol. 5 p. 198). The prosecution elicited testimony without objection

from the Appellant’s counsel that while incarcerated at the jail he would

“fuck some guy up” if he didn’t break his neck. (R.R. Vol. 5 p. 198).

Appellant was questioned again about a telephone call to his sister and his

intention to do harm to another inmate he was having trouble with (Vol. 5,

p. 200) and how he wanted to “break him.”

      Appellant conceded when asked that he would leave that inmate

“with physical injuries he’d never recover from” and that he would “walk

with a limp the rest of his life” (R.R. Vol. 5, p. 201). The inmate would have

a “break…(to) his arms, leg, jaw, and a couple of ribs.” (R.R. Vol. 5, p.

201). Again without objection he was asked to concede if he admitted to

his sister on October 6, 2013, that he would start “smashing people,” “come

in with a wrath,” and to “get violent” if he wasn’t moved (R.R. Vol. 5, p.

201). Again he was questioned without objection and conceded he was

going to “beat the shit out of…two inmates.” (R.R. Vol. p. 202). Likewise, no

                                     10
limiting instruction was requested by Appellant’s counsel regarding the

admission of the extraneous offenses.

      Evidence of other crimes, wrongs, or acts is not admissible to prove

the character of a person in order to show action in conformity therewith.

Tex. R. Evid. § 404(b). There is a general rule against the introduction of

extraneous offenses to show character conformity. Ruiz v. State, 579 S.W.

2d 206 (Tex. Crim. App. 1979). Evidence tending to show that a defendant

committed other offenses wholly disconnected with that for which he is on

trial should not be admitted. Alvarez v. State, 511 S.W. 2d 493 (Tex. Crim.

App. 1973). Extraneous evidence may be inadmissible when its only

relevance is to show that a person is of a particular character. Gilbert v.

State, 808 S. W. 2d 467 (Tex. Crim. App. 1991). Indeed the prejudicial

impact of admitting extraneous offenses can outweigh their probative value

particularly when there is other evidence of intent available. Russell v.

State, 113 S.W. 3d 530 (Tex. App. – Fort Worth 2003).

      In order for a defendant to prove ineffective assistance of counsel for

failing to make an objection at trial, the defendant must identify the specific

objection that should have been made at trial and to cite authority that the

objection would have been successful Ortiz v. State, 93 S.W. 3d 79 (Tex.

Crim. App. 2002); Mallet v. State, 9 S.W. 3d 56 (Tex. App.- Fort Worth


                                      11
2000). Likewise failing to request a limiting instruction regarding admission

of an extraneous offense can cause trial counsel’s performance to fall

below   an    objective   standard   of    reasonableness   under    prevailing

professional norms. Ramirez v. State, 873 S.W. 2d 757 (Tex. App. –El

Paso 1994).

      Ineffective assistance of counsel claims are weighed against the

standard set by the Strickland case. Strickland v. Washington, 466 U.S.

668 (1984). Strickland established that the ineffective assistance inquiry is

measured by two standards, the performance of counsel and the prejudice

to the defendant as a result.

      Appellant’s counsel’s trial performance was deficient in failing to

object to the introduction against Appellant of the extraneous offenses

which prejudiced the jury. It allowed the jury to consider acts unrelated to

the crime charged made more particularly erroneous in light of the lack of a

limiting instruction given to the jury which prejudiced the Appellant.




                                      12
___________________________________________________________

                                  PRAYER



     WHEREFORE, PREMISES CONSIDERED, Appellant respectfully

prays that his conviction in the above-entitled and numbered cause be

reversed and that the case be remanded to the trial court for a new trial.

                                   Respectfully submitted,

                                   REAGAN BURRUS PLLC
                                   401 Main Plaza, Suite 200
                                   New Braunfels, Texas 78130
                                   Telephone: (830) 625-8026
                                   Facsimile: (830) 625-4433
                                   Email: pfinley@reaganburrus.com


                                   By:    Paul A. Finley        /s/


                                          PAUL A. FINLEY
                                          State Bar No. 07023300

                                   ATTORNEY FOR APPELLANT,
                                   NATHANIEL PAUL FOX




                                     13
                    CERTIFICATE OF COMPLIANCE

     By affixing my signature below, I PAUL A. FINLEY, hereby certify that
Appellant’s Brief contains 2690 words.


on the 21st day of January, 2015.

                                          Paul A. Finley     /s/


                                          PAUL A. FINLEY




                       CERTIFICATE OF SERVICE

      By affixing my signature below, I, PAUL A. FINLEY, hereby certify
that a true copy of “Appellant’s Brief” has been served by electronic
delivery to:

Joshua Presley
Comal County District Attorney’s Office
150 North Seguin, Suite 307
New Braunfels, Texas 78130



on the 21st day January, 2015.


                                          Paul A. Finley     /s/


                                          PAUL A. FINLEY




                                    14
