                                                                           ACCEPTED
                                                                       13-15-00110-CR
                                                       THIRTEENTH COURT OF APPEALS
                                                              CORPUS CHRISTI, TEXAS
                                                                  7/2/2015 12:37:54 PM
                                                                CECILE FOY GSANGER
                                                                                CLERK

                 CAUSES 13-15-00110-CR

IN THE THIRTEENTH SUPREME JUDICIAL DISTRICT  OF TEXAS AT
                                          FILED IN
                                        13th COURT OF APPEALS
                                     CORPUS CHRISTI/EDINBURG, TEXAS
                 CORPUS CHRISTI,   TEXAS
                                         7/2/2015 12:37:54 PM
                                          CECILE FOY GSANGER
                                                 Clerk



             JAMES CORTNEY DEAN, APPELLANT


                          VS.

             THE STATE OF TEXAS, APPELLEE




                   APPELLANT’S BRIEF

               Trial Cause 14-03-27814-A

              Victoria 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 Mr. Peter W.
Justin, Attorney at Law, 405 Main Street, Suite 1120,
Houston, TX 77002. 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 Victoria
County, Texas. Appellant is currently incarcerated in
IDTDCJ.

    The State was represented at trial by Mr. Brendan
Guy, A.D.A. of the Victoria Co. District Attorney’s
Office, 205 N. Bridge Street, Suite 301, Victoria, TX
77901. Appellant anticipates that Brendan Guy, A.D.A.,
will also 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

Summary of Argument                         7

Argument                                    8

Sole Issue                                  8

Prayer                                      12

Certificate of Service                      12

Certificate of Compliance                   13




                              3
                 INDEX OF AUTHORITIES

Cases                                                Page

Gigliobianco v. State, 210 S.W.3d 641 (Tex.Crim.App.

2006)                                                10

Montgomery v. State, 810 S.W.2d 372 (Tex.Crim.App.

1990)                                                10



Statutes

Tex.R.Evid. 401 (Vernon 2014)                        8

Tex.R.Evid. 402 (Vernon 2014)                        8

Tex.R.Evid. 403 (Vernon 403)                         8




                           4
                    CAUSE 13-15-00110-CR
                 Trial Cause 14-03-27814-A

JAMES CORTNEY DEAN, Appellant       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, JAMES CORTNEY DEAN, through

counsel, W. A. (BILL) WHITE, Attorney at Law, showing:



         STATEMENT OF CASE AND STATEMENT OF FACTS

      Appellant was indicted in March 2014 for possession

(with intent to deliver) a controlled substance in

penalty group 1 (cocaine) between 4 and 200 grams. (RR

Vol. 2, p. 142).   The crime was alleged to have taken

place on or about 1/18/14 in Victoria County, Texas

during nighttime hours. (RR Vol. 2, pp. 153-164)

      Appellant was detained pursuant to a traffic stop

as he drove a vehicle with an adult female in the right

front seat.   There were two traffic violations which


                             5
led to the stop.   Appellant did not stop the car

immediately, but drove further before pulling over.

The investigating officer asked for consent to search

the car, which appellant granted.   A baggie was found

inside or behind a radio/DVD player in the car’s back

seat which was later discovered to contain cocaine. (RR

Vol. 2, pp. 165-166).

    Before appellant stopped the car, the female

passenger saw appellant abruptly swallow something

unknown before he conversed with the investigating

officer.   This female later testified as a State’s

witness at trial. (RR Vol. 3, pp. 90-93)

    A few hours later, after his arrest, appellant had

to be taken to a Victoria hospital because he began to

suffer a seizure. (RR Vol. 2, pp. 145-146)

    The indictment also alleged two previous felony

convictions as enhancements, but both convictions

occurred on the same date, raising the usual first

degree felony punishment range for this crime to that

of repeat felony offender, a range of 15 to 99 years or


                            6
life in prison and up to a $10,000 fine.   Both previous

convictions were for robbery. (RR Vol. 4, p. 133).      At

his punishment phase on 3/04/15, appellant pled “true”

to both convictions.

    Appellant’s trial lasted from 3/02/15 into 3/04/15,

with jury selection starting on 3/02/15.    Trial on the

merits commenced immediately after the jury was seated

on 3/02/15.   Appellant was convicted as indicted on

3/04/15 (RR Vol. 4, p. 130), and the jury later

assessed punishment at 35 years in prison and a $5,000

fine. (RR Vol. 4, pp. 166-167).    The trial court

pronounced this sentence.    Appellant then appealed.



                       ISSUE PRESENTED

THE TRIAL COURT ERRED BY ADMITTING IRRELEVANT EVIDENCE
 AND EVIDENCE VIOLATIVE OF TEXAS RULE OF EVIDENCE 403


                   SUMMARY OF ARGUMENT

    Applying legal standards from Gigilobianco and

Montgomery, evidence that appellant swallowed smoething




                              7
just before stopping his vehicle and talking with his

arresting officer should not have been admitted.



                       ARGUMENT

                      SOLE ISSUE

    Before the State even made opening statement during

guilt/innocence, defense counsel lodged a pre-emptive

objection to the prosecutor mentioning in same that

appellant was seen swallowing something just before he

stopped his car and interfaced with his arresting

officer. (RR Vol. 2, pp. 134-136).

    Defense counsel argued that this testimony or

evidence would be both irrelevant under rules 401 and

402 of the Texas Rules of Evidence, and that same

should be excluded under rule 403 of the same rules

because any probative value would be substantially

outweighed by the danger of unfair prejudice. See

Tex.R.Evid. 401 (Vernon 2014); Tex.R.Evid. 402 (Vernon

2014); Tex.R.Evid. 403 (Vernon 2014).   The trial court




                           8
overruled this objection, but gave appellant’s trial

lawyer a “running objection”.

    Later in the trial, defense counsel clarified and

better enunciated his objection for the record. (RR

Vol. 3, pp. 113-115).   He was again overruled.

    Defense counsel also objected still later in the

trial to written medical records and a discharge

summary offered by the State at guilt/innocence,

showing what substances were present in appellant’s

system at the hospital. (RR Vol. 3, p. 159; SX-20 and

SX-21).   This objection was also overruled.

    A similar objection was also made to SX-19, which

was also overruled. (RR Vol. 3, p. 208).   It was

shortly thereafter revealed that appellant had tested

positive at the hospital for benzodiazapines, cocaine,

and PCP. (RR Vol. 3, p. 218, lines 24-25).     Appellant

was only charged by indictment with possessing cocaine.

    A trial court, when undertaking a Rule 403

analysis, must balance (1) the inherent probative force

of the proffered item of evidence along with (2) the


                            9
proponent’s need for that evidence against (3) any

tendency of the evidence to suggest decision on an

improper basis, (4) any tendency of the evidence to

confuse or distract the jury from the main issues, (5)

any tendency of the evidence to be given undue weight

by a jury that has not been equipped to evaluate the

probative force of the evidence, and (6) the likelihood

that presentation of the evidence will consume an

inordinate amount of time or merely repeat evidence

already admitted.   Of course, these factors may blend

together in practice. Gigliobianco v. State, 210 S.W.3d

641-42 (Tex.Crim.App. 2006).

    In deciding whether a particular piece of evidence

is relevant, a trial court judge should ask “would a

reasonable person, with some experience in the real

world believe that the particular piece of evidence is

helpful in determining the truth or falsity of any fact

that is of consequence to the lawsuit.” Montgomery v.

State, 810 S.W.2d 372, 376 (Tex.Crim.App. 1990).




                            10
    The main problem with the admitted evidence about

swallowing illegal substances, including two substances

other than the cocaine appellant was accused of

possessing, fall under factors (2) and (3) of the

Gigliobianco analysis.   Under factor (2), the State did

not need to offer this evidence.   It had evidence of

possession by the presence of a baggie of cocaine in

appellant’s backseat, along with appellant’s reluctance

to stop his car as soon as the policeman initiated a

traffic stop.

    Factor (3) of Gigliobianco is more problematic.

This evidence created a grave danger that appellant’s

jury made its decision (verdict) on an improper basis.

Appellant may well have been convicted for being a

drug-user or drug-dealer in general because of this

evidence, rather than because the State proved every

element of its alleged offense beyond a reasonable

doubt.

    Under Montgomery, appellant’s hasty swallowing of

any substance, including those for which he later


                            11
tested positive, is not a fact of consequence to the

lawsuit.   It was merely an attempt to sensationalize an

otherwise factually mundane felony trial and instill

appellant’s jury with fear and disgust.



                         PRAYER

    Appellant prays that conviction be reversed.

                                 Respectfully submitted,

                                 /s/ W. A. White
                                 W. A. (BILL) WHITE
                                 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 Brendan

Guy, A.D.A., Victoria Co. District Attorney’s Office,

205 N. Bridge St., Suite 301, Victoria, TX 77901 via

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

on this the 2nd day of July 2015.

                                 /s/ W. A. White
                                 W. A. White

                            12
           CERTIFICATE OF COMPLIANCE

I certify that this brief contains 1,404 words.

                           /s/ W. A. White
                           W. A. White




                      13
