                                                                                                    ACCEPTED
                                                                                                03-14-00617-CR
                                                                                                        8038070
                                                                                     THIRD COURT OF APPEALS
                                                                                                AUSTIN, TEXAS
                                                                                           12/1/2015 3:37:07 PM
                                                                                              JEFFREY D. KYLE
                                                                                                         CLERK
                                NO. 03-14-00617-CR

NATHANIEL PAUL FOX                          §         IN THE THIRD FILED IN
                                                               3rd COURT OF APPEALS
                                            §                      AUSTIN, TEXAS
V.                                          §         DISTRICT 12/1/2015
                                                                COURT3:37:07
                                                                           OF PM
                                            §                    JEFFREY D. KYLE
THE STATE OF TEXAS                          §         APPEALS OF TEXAS Clerk


            STATE’S LETTER OF ADDITIONAL AUTHORITIES

TO THE HONORABLE JUSTICES OF SAID COURT:

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

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

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

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

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

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

relevant cases:

Extraneous offense evidence:

      In an analogous situations involving extraneous offense evidence,
      virtually all courts have declined to make a finding of ineffective
      assistance of counsel on direct appeal based on a trial attorney’s
      failure to request a limiting instruction even when an instruction
      would have been required if requested.
      ….
      Further, several courts have noted that a trial attorney may reasonably
      decide, as part of her trial strategy, not to request a limiting instruction
      because a limiting instruction may actually have the effect of bringing
      unwanted attention to the extraneous offense evidence, and thereby
      have a negative impact on the defendant’s case.


                                           1
Villalva v. State, 08-13-00219-CR, 2015 WL 4134531, at *5-6 (Tex. App.—El
Paso July 8, 2015, no pet.) (mandate issued Sept. 29, 2015) (not designated for
publication) (internal citations omitted).


Double Jeopardy:

           To prevail, the claimant must prove legal sameness and factual
      sameness.
      ….

      …there are two relevant inquiries in a double-jeopardy analysis. The
      legal-sameness inquiry depends on only the pleadings and statutory
      law—not the record—to ascertain whether two offenses are the same.
      The factual-sameness inquiry requires a reviewing court to examine
      the entire record to determine if the same offenses have been alleged.

Ex Parte Castillo, 469 S.W.3d 165, 169-72 (Tex. Crim. App. 2015), reh’g denied
(Oct. 7, 2015).

      An element of the offense of aggravated assault domestic violence is
      that the victim of the offense be “a person whose relationship to or
      association with the defendant is described by § 71.0021(b), 71.003,
      or 71.005, of the Texas Family Code....”See Tex. Penal Code Ann. §
      22.02(b)(1) (West 2011).

Cobbs v. State, 07-11-0201-CR, 2011 WL 6347518, at *1 (Tex. App.—Amarillo
Dec. 19, 2011, no pet.) (per curiam order for rebriefing) (not designated for
publication).

      The Penal Code defines elements of the offense as (a) the forbidden
      conduct, (b) the required culpability, (c) any required result, and (d)
      the negation of any exception to the offense. Tex. Pen Code Ann. §
      1.07(a)(22) (Vernon 1994).

Sheppard v. State, 5 S.W.3d 338, 340 (Tex. App.—Texarkana 1999, no pet.).




                                        2
     if the two offenses have different elements under the Blockburger test,
     the judicial presumption is that the offenses are different for double-
     jeopardy purposes and that cumulative punishment may be imposed.
     This presumption can be rebutted by a showing, through various
     factors, that the legislature “clearly intended only one” punishment.
     ….

     Even if an analysis of the Ervin factors were inconclusive, applicant’s
     double-jeopardy claim would fail, because the presumption
     established by the offenses having different elements under the
     Blockburger analysis would remain unrebutted. When the
     Blockburger same-elements test indicates that the offenses are
     different, the evidence that the legislature intended only one
     punishment must be clear in order to rebut that presumption.

Ex parte Benson, 459 S.W.3d 67, 72, 89 (Tex. Crim. App. 2015), reh’g denied
(May 20, 2015) (internal citations omitted).



                                     Respectfully submitted,

                                     /s/ Joshua D. Presley
                                     Joshua D. Presley SBN: 24088254
                                     preslj@co.comal.tx.us
                                     Comal Criminal District Attorney’s Office
                                     150 N. Seguin Avenue, Suite 307
                                     New Braunfels, Texas 78130
                                     Ph: (830) 221-1300 / Fax: (830) 608-2008




                                       3
                         CERTIFICATE OF SERVICE

      I, Joshua D. Presley, Assistant District Attorney for the State of Texas,

Appellee, hereby certify that a true and correct copy of this State’s Letter of

Additional Authorities has been delivered to Appellant NATHANIEL PAUL

FOX’s attorney in this matter:

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

By electronically sending it to his above-listed email address through

efile.txcourts.gov, this 1st day of December, 2015.


                                             /s/ Joshua D. Presley
                                              Joshua D. Presley




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