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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

ACCEPTED

13-15-00054-CR

THIRTEENTH COURT OF APPEALS

CORPUS CHRISTI, TEXAS

7/13/2015 8:27:14 AM

CECILE FOY GSANGER

CLERK

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