                                   In The
                              Court of Appeals
                     Seventh District of Texas at Amarillo
                                ________________________

                                     No. 07-18-00208-CR
                                     No. 07-18-00209-CR
                                ________________________

                         JADE DERRICK SCALES, APPELLANT

                                            V.

                           THE STATE OF TEXAS, APPELLEE



                          On Appeal from the 181st District Court
                                   Potter County, Texas
        Trial Court No. 70,813-B (Counts I & II); Honorable John B. Board, Presiding


                                    December 18, 2018

                                ORDER FOR REBRIEFING
                   Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.


       Appellant, Jade Derrick Scales, was charged by an amended indictment with two

counts of cruelty to non-livestock animals. See TEX. PENAL CODE ANN. § 42.092(b)(1)

(West Supp. 2018). Each count of the amended indictment contained the identical

charging information, to-wit:
       The Grand Jurors for Potter County, Texas, duly organized and sworn as
       such at the July Term A.D., 2015, of the District Court of the 47th Judicial
       District, in and for Potter County, Texas, upon their oaths in that Court at
       that term present that JADE DERRICK SCALES, hereinafter styled
       Defendant, on or about the 8th day of February, 2015, and before the
       presentment of this indictment, in Potter County, Texas, did then and there,
       intentionally, knowingly, or recklessly in a cruel manner kill or in a cruel
       manner cause serious bodily injury to an animal, namely, a dog, by stabbing
       or cutting it or a combination thereof, and the Defendant's conduct was not
       a generally accepted and otherwise lawful form of conduct occurring solely
       for the purpose of or in support of fishing, hunting, or trapping; or wildlife
       management, wildlife or depredation control, or shooting to preserve
       practices as regulated by state and federal law; or animal husbandry or
       agriculture practice involving a livestock animal.



       In addition, the amended indictment contained a Deadly Weapon Notice alleging

that during the commission of each offense, Appellant did use or exhibit a deadly weapon,

namely, a knife. Finally, the amended indictment contained an Enhancement Paragraph

alleging that before the commission of the primary offense, Appellant was finally convicted

of the felony offense of burglary of a habitation.


       In our review of this case, two unbriefed issues of potential fundamental error have

arisen—one pertaining to the number of offenses committed and the other pertaining to

the appropriate range of punishment.


       As to the first issue, in the prosecution of an offense under section 42.092(b),

where the object of the alleged unlawful conduct in each case is identically described as

“an animal, namely, a dog,” does the prosecution for multiple offenses violate principles

of due process or double jeopardy? And, where the two offenses are alleged to have

occurred during the same criminal episode, is each animal the appropriate subject of a




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separate unit of prosecution? Finally, if Appellant is subject to prosecution for more than

one offense, did the indictment in this case provide adequate notice of multiple offenses?


       As to the second issue, where the offense in question was a state jail felony at the

time of the commission of the offense, what was the appropriate range of punishment

under the facts of this case? Specifically, in light of Prichard v. State, 533 S.W.3d 315

(Tex. Crim. App. 2017) (holding the Legislature intended to permit a deadly-weapon

finding only if the recipient of the use or exhibition of the deadly weapon was a human),

where the indictment does not allege a human recipient in the prosecution of an offense

under section 42.092(b), is the offense punishable as a third degree felony based upon

the use of a deadly weapon? See TEX. PENAL CODE ANN. § 12.35(c)(1) (West Supp. 2018).

And, finally, is a state jail felony offense, similar to the one in this case, subject to

enhancement based upon a single prior felony offense? See TEX. PENAL CODE ANN. §

12.425 (West Supp. 2018).


       Because these questions are of paramount importance to the just and right

disposition of this matter and because the court desires to have the input of the parties in

resolving these unassigned issues, the court hereby orders Appellant to consider these

issues and to file a supplemental brief within thirty days of the date of this order,

addressing these questions only. Upon the filing of Appellant’s Supplemental Brief, the

State shall have thirty days to file a responsive brief. In their discussion of the identified

issues, the parties shall address whether each issue requires preservation under Rule

33.1 of the Texas Rules of Appellate Procedure and, if so, whether the issues were

preserved for review. Each party may also avail itself of any applicable Rule of Appellate

Procedure, as needed.

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      It is so ORDERED.


                              Per Curiam


Do not publish




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