      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-14-00617-CR



                                 Nathaniel Paul Fox, Appellant

                                                 v.

                                  The State of Texas, Appellee


    FROM THE DISTRICT COURT OF COMAL COUNTY, 207TH JUDICIAL DISTRICT
        NO. CR2013-091, HONORABLE R. BRUCE BOYER, JUDGE PRESIDING



                            MEMORANDUM OPINION


               A jury found Nathaniel Paul Fox guilty of murder and aggravated assault of a family

or household member with a deadly weapon. The jury assessed a sentence of 60 years in prison for

each offense, with the sentences ordered to run concurrently. Appellant complains that his counsel

provided ineffective assistance and that the two sentences violate the constitutional prohibition

of double jeopardy. Because of the double-jeopardy violation, we will vacate the conviction for

aggravated assault and affirm the remainder of the judgment.


                                        BACKGROUND

               Witnesses testified that appellant and Melissa Eason, his victim, had a long-term,

volatile relationship. Appellant had previously been arrested for violating a court order meant

to protect Eason from him, and appellant testified that Eason had pending assault charges.

New Braunfels Police Department officer Derrick Bobo testified that he spoke with Eason after a

report of an altercation in the early hours of November 1, 2012. Bobo testified that Eason said that
Fox “had told her that if she ever left him . . . he would kill her, and that she didn’t feel like she’d

be alive past February and that Nathan Fox had a shotgun on lay-away.” Eason’s sister testified that

Eason said on December 31, 2012 that she planned to leave appellant because she feared that she

would “wake up dead one day” if she did not. Jessica Villarreal testified that Eason spent the night

with her on December 31, 2012, and was apprehensive the next morning about what appellant might

do if he was drunk when she returned home.

                Appellant testified that, on the morning of January 1, 2013, Eason entered

their apartment yelling and throwing and breaking things. He said that the noise woke him, then

she punched him in the face. Appellant testified that Eason was taller and heavier than he and was

unpredictable and violent when intoxicated. He said he wanted to leave, but Eason kept hitting him.

Worried about his safety, he testified, he then “choked [Eason] out” to unconsciousness but not

to death, leaving her dressed on the bed. He denied intending to kill her or crushing her throat.

Appellant testified that he returned the next day and found Eason dead on the floor with her pants

down. He checked her pulse, found none, and left—returning to lock the door. He testified that,

after contemplating suicide, he turned himself in two days later.

                On cross-examination, appellant testified that he had trained as a Marine and a mixed-

martial arts fighter, but said he had never killed anyone with his hands. He also testified that he

spoke on the phone while in jail and said that he would seriously injure any inmate who tried to fight

him. He testified that he boasted in order to seem tough to other inmates within earshot.

                The medical examiner testified that the cause of Eason’s death was homicide by

asphyxiation caused by strangulation. He testified that Eason tested positive for marijuana use and

had a blood-alcohol content of .099, and that her vitreous fluid indicated that she had been more

intoxicated in the immediately preceding hours.

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                                           DISCUSSION

               Appellant claims that his trial counsel was ineffective and that his punishment

violated double-jeopardy principles.


Appellant has not shown his counsel was ineffective.

               An ineffective assistance of counsel claim requires a defendant to prove by a

preponderance of the evidence that (1) counsel’s representation fell below an objective standard

of reasonableness under prevailing professional norms and (2) the deficient performance prejudiced

the defense. Strickland v. Washington, 466 U.S. 668, 687-88 (1984); Salinas v. State, 163 S.W.3d

734, 740 (Tex. Crim. App. 2005). Ineffective-assistance claims turn on the facts and circumstances

of each particular case, Johnson v. State, 691 S.W.2d 619, 626 (Tex. Crim. App. 1984), and

must be firmly founded in the record, Bone v. State, 77 S.W.3d 828, 835 (Tex. Crim. App. 2002).

An accused is not entitled to entirely errorless representation, and we look to the totality of the

representation in gauging the adequacy of counsel’s performance. Frangias v. State, 450 S.W.3d

125, 136 (Tex. Crim. App. 2013). A single instance of counsel’s error can rise to the level of

deficient performance. Id. A verdict or conclusion only weakly supported by the record is more

likely to have been affected by errors than one with overwhelming record support. Strickland,

466 U.S. at 696.

               Appellant contends that his trial counsel was ineffective for failing to object or

request a limiting instruction regarding appellant’s testimony on cross-examination about a pretrial

telephone conversation he had from jail with his sister during which he threatened to harm fellow

inmates. The State contends that his trial counsel was not ineffective as alleged because the evidence




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was admissible to rebut defensive theories and counsel might have reasonably chosen not to call

attention to the evidence.

               We conclude that, even assuming (without deciding) that trial counsel should

have objected to the testimony and that such failure made counsel’s entire performance deficient,

the record as a whole shows that the testimony did not prejudice the defense. The unchallenged

evidence shows that appellant and Eason had a history of disagreements, that Eason feared for

her life generally and on the day before she died, that appellant admitted choking appellant

to unconsciousness, and that Eason died from asphyxiation due to strangulation, evidenced in part by

damage to her throat that was not apparent externally. The only contested issue at trial was whether

appellant caused her death. In this context, appellant’s testimony during cross-examination that

he later asserted on the phone that he would seriously injure other men at the jail did not

prejudice appellant. Further, even if counsel should have objected to this evidence, the failure to do

so did not render counsel’s overall assistance ineffective.


The aggravated-assault conviction violates double-jeopardy protections.

               Appellant asserts that the concurrent 60-year sentences for aggravated assault and

murder violate protections against double jeopardy. See U.S. Const. amend. V. A double-jeopardy

claim based on multiple punishments arises when the State seeks to punish the same criminal act

twice under two distinct statutes under circumstances in which the Legislature intended the

conduct to be punished only once. Langs v. State, 183 S.W.3d 680, 685 (Tex. Crim. App. 2006).

There are two ways to assess whether the Legislature intended to authorize separate punishments:

(1) analyzing the elements of the offenses and (2) identifying the appropriate “unit of prosecution”

for the offenses. Garfias v. State, 424 S.W.3d 54, 58 (Tex. Crim. App. 2014). We use an


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“elements” analysis when the offenses in question come from different statutory sections and use

a “units” analysis when the offenses are alternate means of committing the same statutory offense.

Id. In this case, appellant complains of convictions stemming from the same title, but different

statutory sections and chapters. See Tex. Penal Code §§ 19.02 (murder), 22.02 (aggravated assault).

               In an “elements” analysis, the Blockburger test is the starting point. Shelby v. State,

448 S.W.3d 431, 436 (Tex. Crim. App. 2014) (citing Blockburger v. United States, 284 U.S. 299,

304 (1932)). Under Blockburger, two offenses are not the same if each requires proof of a fact that

the other does not. Id. We use the cognate-pleadings approach to the Blockburger test. We examine

the statutory elements in the abstract and compare the offenses as pleaded to determine if the

pleadings have alleged the same “facts required.” Id. (citing Bigon v. State, 252 S.W.3d 360, 370

(Tex. Crim. App. 2008)). But the Blockburger test is a rule of statutory construction and not

the exclusive test for determining if two offenses are the same. Id. The ultimate question is whether

the Legislature intended to allow the same conduct to be punished under both relevant statutes. Id.

               The Texas Court of Criminal Appeals has provided a non-exclusive list of factors

useful in discerning whether the Legislature intended to punish conduct under different statutes. Id.

(citing Ex parte Ervin, 991 S.W.2d 804, 814 (Tex. Crim. App. 1999)). Those factors are:


       (1) whether 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.




                                                  5
Id. The Shelby court wrote that the factor concerning the “focus” or “gravamen” of a penal provision

is the best indicator of legislative intent when determining whether a multiple-punishments violation

has occurred. Id. The sixth factor requires a court to consider the allowable unit of prosecution

for the offenses when conducting an “elements” analysis. Id.; Ex parte Benson, 459 S.W.3d 67, 73

(Tex. Crim. App. 2015).

                The offenses in this case are separate offenses under the Blockburger test because

aggravated assault of a family or household member and murder each have an element that the other

does not. As charged, aggravated assault of a family member uniquely requires a sufficient showing

that the victim was a member of the defendant’s family, while murder uniquely requires proof of

death. Compare Tex. Penal Code § 19.02(b)(1) with id. § 22.02(b)(1). This analysis gives rise to

a rebuttable judicial presumption that the offenses are separate for double-jeopardy purposes.

Benson, 459 SW.3d at 72.

                Other than the gravamen of the offenses, many of the Ervin factors are either

neutral or weigh in favor of finding an intent for separate punishments in this case. The offenses are

codified in separate sections, are not phrased in the alternative, and are not named similarly. The

elements of the offenses that differ (family member, death) cannot be considered the same and we

find no express legislative history articulating an intent to treat the offenses as the same or different

for double-jeopardy purposes. Because the aggravated assault charge included family violence

and a deadly weapon, it was a first-degree felony and had the same punishment range as murder. See

Tex. Penal Code §§ 19.02(c) (murder offense level), 22.02(b)(1) (aggravated-assault offense level).

                The offenses do have a common focus, and that common focus indicates a single

instance of conduct. The undisputed testimony is that appellant choked Eason and that strangulation

caused Eason’s death. The State never alleged or argued that appellant caused Eason’s death in any

                                                   6
way other than strangulation and never alleged or argued that appellant strangled her and killed her

on separate occasions. The only theory of the case presented in the indictment, evidence, charge,

and appeal is that appellant killed Eason by strangling her. The focus of the offenses as presented

is identical, and that common focus indicates a single instance of conduct.

               The “family violence” aspect of the aggravated assault is the only notable deviation

from the focus of both offenses on the act of strangulation, but the court of criminal appeals has

held that the victim’s specially protected status does not indicate a legislative intent for separate

punishments for identical conduct. See Shelby, 448 S.W.3d at 438-39. In Shelby, the intoxicated

defendant drove his vehicle into a peace officer’s vehicle, injuring the trooper who was seated in the

vehicle that was struck. Id. at 434. The driver was convicted of aggravated assault with a deadly

weapon against a public servant and intoxication assault. Id.; see Tex. Penal Code §§ 22.02(b)(2)

(aggravated assault), 49.07 (intoxication assault). The offenses were separate under Blockburger

because the aggravated assault had the unique elements of the victim’s employment and the use of

a deadly weapon, while the intoxication assault had the unique elements of intoxication and

operation of a motor vehicle in a public place. Id. at 436-37. But the court of criminal appeals held

that the focus of both offenses was the causation of bodily injury. Id. at 439. The court also held

that the allowable unit of prosecution for an assaultive offense in Texas is each victim. Id. at 439.

The court wrote, “This indicates that the Legislature did not intend for one instance of assaultive

conduct against a single person to yield convictions for both aggravated assault with a deadly

weapon against a public official and intoxication assault for injuring one person.” Id. at 439-40. The

court of criminal appeals held that the gravamen factor weighed heavily in favor of finding a

legislative intent that there be one punishment for these two convictions and concluded that

punishment for both offenses unconstitutionally placed Shelby in double jeopardy. Id. at 439.

                                                  7
                Because the trooper’s status in Shelby did not merit a separate punishment for the

aggravated assault, we must conclude in this case that Eason’s family-member status here does not

support separate punishments for both assault and murder. As alleged and proven, the aggravated

assault was committed in the process of the murder of the same victim. As in Shelby, the focus of

both offenses was the same conduct resulting in the same injury to the same victim (albeit serious

bodily injury in one offense and fatal injury in the other1). We conclude that the Legislature has not

shown an intent that separate punishments be imposed for these convictions in these circumstances.

We hold that under the facts of this case, the trial court violated the constitutional protections against

double jeopardy by assessing separate punishments for these two convictions.

                The appropriate remedy in this case is to affirm the conviction for the more “serious”

offense and to vacate the other conviction. Id. at 440. Murder is the more serious offense. Because

of the double-jeopardy violation, we vacate the conviction for aggravated assault of a family

or household member with a deadly weapon and the related prison sentence, and otherwise affirm

the judgment.




                                                Jeff Rose, Chief Justice

Before Chief Justice Rose, Justices Pemberton and Field

Affirmed in part; Vacated in part

Filed: January 7, 2016

Do Not Publish


        1
        Death is a form of serious bodily injury. Tex. Penal Code § 1.07(a)(46); Jackson v. State,
992 S.W.2d 469, 475 n.6 (Tex. Crim. App. 1999).

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