                                                                           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
                                         RECEIVED IN
                                        13th COURT OF APPEALS
                                     CORPUS CHRISTI/EDINBURG, TEXAS
                 CORPUS CHRISTI,   TEXAS
                                         7/13/2015 8:27:14 AM
                                          CECILE FOY GSANGER
                                                 Clerk



                                                              FILED
           RUSSELL WAYNE MCSLAND, APPELLANT         IN THE 13TH COURT OF APPEALS


                                                           07/16/15
                          VS.

             THE STATE OF TEXAS, APPELLEE                     CLERK




                   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
                           1
            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.




                           2
                      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




                              3
                 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




                           4
                    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


                             5
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


                             6
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


                           7
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.




                              8
    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




                            9
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

                            10
                                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 13th 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




                           11
