Case Information

*0 RECEIVED IN 13th COURT OF APPEALS CORPUS CHRISTI/EDINBURG, TEXAS 7/13/2015 8:27:14 AM CECILE FOY GSANGER Clerk *1 ACCEPTED 13-15-00054-CR THIRTEENTH COURT OF APPEALS CORPUS CHRISTI, TEXAS 7/13/2015 8:27:14 AM CECILE FOY GSANGER CLERK CAUSE 13-15-00054-CR IN THE THIRTEENTH SUPREME JUDICIAL DISTRICT OF TEXAS AT

CORPUS CHRISTI, TEXAS RUSSELL WAYNE MCSLAND, APPELLANT VS.

THE STATE OF TEXAS, APPELLEE APPELLANT’S BRIEF Trial Cause 14-5-9239 Jackson Co. District Court Submitted by

W. A. (BILL) WHITE Attorney for Appellant POB 7422, Victoria, TX 77903 (361) 575-1774 voice & fax TBN 00788659

ORAL ARGUMENT NOT REQUESTED *2 IDENTITY OF PARTIES AND COUNSEL Appellant was represented at trial by Ms. Joyce M.

Leita, Attorney at Law, 115 S. Main Street, Victoria,

TX 77901. Appellant is represented on appeal by Mr. W.

A. (Bill) White, Attorney at Law, POB 7422, Victoria,

TX 77903-7422.

During trial, appellant was a resident of Jackson County, Texas. Appellant is now in IDTDCJ.

The State was represented at trial by Mr. Robert E.

Bell, D.A. and Ms. Pam Guenther, A.D.A. of the Jackson

County District Attorney’s Office, 115 W. Main Street,

Room 205, Edna, TX 77957. Appellant anticipates that

Mr. Jim Vollers, Attorney at Law, 2201 Westover Road,

Austin, TX 78703, will handle the State’s reply brief

in this cause.

TABLE OF CONTENTS Page Index of Authorities 4

Appellant’s Brief 5

Statement of Case and Statement of Facts 5

Issue Presented 7

THE TRIAL COURT ERRED BY ALLOWING EVIDENCE ON HOW

METHAMPHETAMINE IS MANUFACTURED

Summary of Argument 7

Argument 7

Sole Issue 7

Prayer 10

Certificate of Service 11

Certificate of Compliance 11

INDEX OF AUTHORITIES Cases Page

Fuller v. State, 829 S.W.2d 191 (Tex.Crim.App. 1992) 9

Levario v. State, 964 S.W.2d 290 (Tex.App.-El Paso

1997) 9

Statutes

Tex. H&S Code Ann., sec. 481.112(c)(Vernon 2013) 8

CAUSE 13-15-00054-CR Trial Cause 14-5-9239 RUSSELL WAYNE MCSLAND IN THE THIRTEENTH

VS. COURT OF APPEALS AT

THE STATE OF TEXAS CORPUS CHRISTI, TEXAS

APPELLANT’S BRIEF

TO THE HONORABLE JUSTICES OF SAID COURT:

COMES NOW APPELLANT, RUSSELL WAYNE MCSLAND, through counsel, W. A. (BILL) WHITE, Attorney at Law, showing:

STATEMENT OF CASE AND STATEMENT OF FACTS Appellant was formally charged in May 2014 with a two-count indictment. Count I alleged possession with

intent to deliver 1 to 4 grams of a controlled

substance (PG 1; methamphetamine), a second degree

felony. Count II alleged possession of 1 to 4 grams of

a controlled substance (PG 1; methamphetamine), a third

degree felony. The indictment also alleged two prior

felony convictions, alleged to have occurred on

separate dates, in enhancement paragraphs. If found

true, these two convictions enhanced each count to the

habitual felon range of punishment of 25 to 99 years in

prison and up to a $10,000 fine. (RR Vol. 2, p. 25;

Vol. 3, pp. 7-9). Both offenses were alleged to have

occurred on 4/05/14 in Jackson County, Texas. The

contraband was found in appellant’s vehicle during a

traffic stop.

Appellant entered pleas of “not guilty” to both counts. Jury selection began on 1/12/15, but trial on

the merits began on 1/14/15, with a one-day hiatus on

1/13/15. Appellant’s jury convicted him of count I on

1/14/15 (all three paragraphs). (RR Vol. 3, p. 158).

This was the second degree felony count and the more

serious of the two counts alleged.

Appellant’s punishment trial began before his jury on 1/15/15. Appellant pled “true” to both enhancement

paragraphs, one alleging a felony drug crime and the

other a felony theft. (RR Vol. 4, p. 6)

Ultimately, appellant’s jury found both enhancement paragraphs to be true and assessed his punishment at 99

years in prison. (RR Vol. 4, p. 79). Appellant timely

appealed.

ISSUE PRESENTED

THE TRIAL COURT ERRED BY ALLOWING EVIDENCE OF HOW METHAMPHETAMINE IS MANUFACTURED SUMMARY OF ARGUMENT Testimony and documentary evidence was admitted at the punishment phase, over defense counsel’s objection,

of how methamphetamine is manufactured or created. This

was irrelevant because appellant was only convicted of

possessing said controlled substance with intent to

deliver it, not for actually making or manufacturing it

himself.

ARGUMENT

SOLE ISSUE

After appellant was convicted of count I of his indictment (possession with intent to deliver a

controlled substance, 1 to 4 grams; methamphetamine),

the punishment phase proceeded before his jury. The

State offered SX-37 and SX-38 through Deputy Gary

Smejkal of the Jackson County Sheriff’s Office. (RR

Vol. 4, pp. 33-35; pp. 32-41). Both exhibits contained

information about the chemical contents of “meth”.

Information was also contained about the process of

actually making or creating meth (manufacturing).

Appellant realizes that the name of his convicted offense is “ manufacture or delivery of a controlled

substance”. See Tex. H&S Code Ann., sec. 481.112(c)

(Vernon 2013). However, trial evidence did not show

that he was actually creating meth at home or in a meth

lab. It only showed that he was carrying it in amounts

and in a manner suggesting that he intended to deliver

it to others.

Defense counsel objected timely to these two exhibits, and to Smejkal’s proffered testimony on these

subjects, but her objection was overruled. (RR Vol. 4,

pp. 33-35; Vol. 5, SX-37 & SX-38). Defense counsel

objected on relevancy grounds, and was given a running

objection by the trial judge.

Evidence not excludable on policy grounds may properly be received over a relevancy objection if it

has any tendency at all, even potentially, to make a

fact of consequence more or less likely than it would

be without the evidence.

But if, after all proof on the subject has been received, the evidence does not in the aggregate

support a rational finding that such matter of

consequence is true, the factfinder should not be

allowed to pass upon it. Fuller v. State, 829 S.W.2d

191, 198 (Tex.Crim.App. 1992); see also Levario v.

State, 964 S.W.2d 290, 297 (Tex.App.-El Paso 1997, no

pet. )

SX-37 is a compilation of color photos from a meth lab bust that Deputy Smejkal “participated in” months

or even years earlier, unconnected to appellant or his

case. (RR Vol. 4, p. 38, lines 4-5; pp. 38-39; Vol. 5,

SX-37). Thus, the State introduced, and the trial

court admitted, photos from another crime, committed by

other, unconnected persons not acting in concert with

appellant, with no evidence tying same to him.

This sort of evidence is completely irrelevant and totally prejudicial. It is like introducing photos at

the punishment trial of a burglary case which show

ransacked homes totally unconnected to the accused’s

burglary, in order to show the “effects” of burglary

upon American homeowners in general. It is far too

generalized to be relevant to appellant’s actual,

convicted crime in the case at bar and thus is

impermissibly prejudicial against him, because he is

not connected to those crimes, and cannot be held

criminally liable for crimes committed by others when

no criminal nexus has been shown or demonstrated.

PRAYER

Appellant prays that sentence be vacated and this cause rendered for new punishment trial.

Respectfully submitted, /s/ W. A. White W. A. (BILL) WHITE *11 ATTORNEY FOR APPELLANT POB 7422, Vict., TX 77903 (361) 575-1774 voice/fax TBN 00788659 CERTIFICATE OF SERVICE I certify that a true and correct copy or duplicate original of the foregoing has been provided to Mr.

Robert E. Bell, D.A., Jackson Co. District Attorney’s

Office, 115 W. Main Street, Room 205, Edna, TX 77957

via U.S. mail, fax, electronic delivery, or hand-

delivery on this the 13 th day of July 2015.

/s/ W. A. White W. A. White CERTIFICATE OF COMPLIANCE I certify that this brief contains 1,220 words. /s/ W. A. White W. A. White