Russell Wayne McSland v. State ( 2015 )

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
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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.
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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
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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
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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
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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
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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
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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.
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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
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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
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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
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