## IN THE COURT O F CRIMINAL APPEALS OF TE XAS

N O
. P D

- 1 0 9 4

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C H R I S T O P H E R E A R L D A R C Y , A p p e l l a n t

v .
T H E S T A T E O F T E X A S

O N S T A T E ’ S P E T I T I O N F O R D I S C R E T I O N A R Y R E V I E W F R O M T H E S E V E N T H C O U R T O F A P P E A L S

M O O R E C O U N T Y

K E L L E R , P
. J
. , d e l i v e r e d t h e o p i n i o n o f t h e C o u r t i n w h i c h K E A S L E R , H E R V E Y , A L C A L A , R IC H A R D S O N , a n d Y EA R Y , J J
. , j o i n e d
. M E Y E R S , J
. , f i l e d a c o n c u r r i n g o p i n i o n . J O H N S O N , J
. , f i l e d a c o n c u r r i n g o p i n i o n . N E W E L L , J
. , c o n c u r r e d
.
During the trial of this case , defe n s e co u n sel lear ned about a possible rig ht-to-counse l
violation that occur

red befor e trial. Evidence involving and rela ting to the alleg ed violation was
admitted at trial, but counsel did not complain until appea l. The court of appea l s re v er sed appellant’ s conviction without considering prese rvation of err or. We conclude that the court of

appea ls err ed in faili n g t o address prese rvation of err or, and we hold that appellant forf eited his complaints by

failing to raise them a t trial.DARCY — 2
I. BACKG ROUND
A. Before Trial
An investiga tor for the State suspected t h at a s mugg ling network was transmitting
unauthorized messag es to and from the jail. As part of his investiga tion, he asked Rebec ca
Morris—a friend of appellant’ s—to write a note to appellant and pass it to the jail cook, which she
did.
B. Trial
At ap p el l an t ’s trial, his onetime friend Morris testified as a witness for the State. During

cross-e x amination, perha

ps in an attempt to impeach Morris, defe nse counsel produce d the note that
she had w ritten to appellant a nd asked he r to rea d it: Chris, I know y ou are g oing to court Monday and I have been asked to be a witness. I have talked to Pat and told him I have not g iven them a statement. I s there any thing I can do to he lp? Please g et a note ba ck to me as soon a s possible. Rebecc a.
After Morris rea d the note, the prosec utor said, “No objection.” The trial court and defe nse counsel
clar ified that defe nse counsel was not offe ring the note into evidenc e. The prosec utor then said that
the State would offe r the note into evidenc e. Asked by the trial court if he had any objection to the
exhibi t, de fense counsel said, “No objection, Your Honor .” The note was a dmitted into evidenc e.
On redire ct, the pro s ec u t o r questioned Morris about the circ umstances surrounding the writing of the note. Morris explained that she was asked to write the note by an investiga tor for the
district attorney ’s office and that the note was mere ly a ruse , d esi g ned to deter mine whether a
messag e would g et throug h to appellant while he was residing in the county jail. On further crossexamination, defe nse counsel questioned Morris about the fac t that the note was a ruse and that the

prosec utor’s off

ice a ssisted in the ruse.DARCY — 3

The State then called the investiga tor, who corr oborate d what Morris had said about the note.
Def ense counsel questioned the investiga tor about whether the police found the note in the jail. The investiga tor responde d, “No one has sear ched for the letter. I n fac t, it has not turned up until today
and I ’m rather cu ri o us my self about how it g ot here .” Def ense counsel did not object to the
admission of the note into evidenc e or to a ny of the testimony

about the note. C. Appeal On appe al, appe llant complained about the S tate causing the not e to be wr itten and sent to
him. He arg ued that his “due proce ss rig ht to a fair trial was violated by the State cre ating ‘evide nce’
intended to open the door to extraneous offe nses,” and that his “Six th Amendment rig ht to counsel

was violated by the District Attorney ’s Offic e contac ting him during adver sarial proce eding s while

repr esente d by counsel.” Sustaining these complaints, the court of appea ls held that appel l an t ’s
“Six th Amendment rig ht to counsel was violated when a State ag ent d i re ct ed [Morris] to contac t [a] ppellant while he w as re prese nted by counsel, but without his counsel pre sent.” Conducting a 1
harm analy sis, the court of appea ls observe d that the note was introduced into evidenc e by the State,
that the jury hear d the testimony conce rning the orig in of the note, that the evidenc e of investiga tion
into jail-smugg ling operations m ade appellant look like a cr i m i n al, and that the j ury asked during
delibera tions about any response by appellant to the note. Concluding that appellant suffe red harm, 2

Darcy v. State , No. 07-1 3 -0 0 2 9 7 -C R, 2015 Tex. App. L EXI S 6593, *10 (Tex. 1 App.–Amar illo J une 25, 2015) (not desig nated for publication) (citing, among other authorities, Massiah v. United States , 377 U.S. 201 (1964)).
Id. at *11-13. The jury asked t h e t ri al court two questions on a single sheet of paper
. 2 These questions and the t ri al co u rt ’s response s are in the cler k’s rec ord, but not in the repor ter’s
rec ord, and there is no rec ord of any response by the par ties to the questions. The trial court said, in answe r to a question about appellant’ s re s p o n s e to the note, “The Court cannot answe r y our second que stion. P lease continue y our deliber ations.” See also id. at *12 n.5.DARCY — 4

the court of appea ls reve rsed the trial court’s judgme nt and rema nded the case for further

proce eding s.
II. ANALYSIS

I n its first g round for revie w, the State contends that appellant failed to prese rve his complaint and that the court of appea ls err ed to reve rse the trial court’s judgme nt without addre ssing the issue of pre serva tion. We ag ree
. 3

A. P rese rvation Shou ld Have Been Add resse d
Preser vation of err or is a sy stemic require ment. The sy stemic nature of the require ment 4

means that a first -tier appellate court may not reve rse a judgme nt of conviction without first
addre ssing any issue of err or prese rvation. This is true reg ardle ss of whether the issue is raised by 5
either of the parties. And when a first-tier appellate court fa i l s t o address a preserva tion issue as 6 require d, “this Court c an and should do so when confr onted with a prese rvation question.” I n the 7

prese nt case , the court of appea ls reve rsed the trial court’s judgme nt withou t addre ssing whether

The S tate’s first g round reads as follows: “Doe s a defenda nt forf eit a S ix th Amendment 3 complaint about the State’s attempt to c ommunicate with him without c ounsel at a c ritical stag e if he offe rs evidenc e of the communication and does not object to further testimony about it, and must a cour t of appe als addre ss preser vation of er

ror be fore reve rsing a convic tion on this basis? ”
Bek endam v. State , 441 S.W .3d 295, 299 (Tex. Crim. App. 2014); Blackshe ar v. State , 385 4 S.W .3d 589, 590 (Tex. Crim. App. 2012); Gipson v. State , 383 S.W .3d 152, 159 (Tex. Crim. App. 2012); Meadoux

v. State , 325 S.W .3d 189, 193 n.5 (Tex. Crim. App. 2010). Gipson , 383 S.W .3d at 159; Meadoux , 325 S.W .3d at 193 n.5. 5
Bek endam , 441 S.W .3d at 299; Blackshe ar , 385 S.W .3d at 590; Gipson , 383 S

. W

. 3 d at 6 159.
Blackshe ar , 385 S.W .3d at 590-91; Ford v. State , 305 S.W .3d 530, 533 (Tex. Crim. App.

7 2009).DARCY — 5

err or wa s prese rved or

neede d to be pre serve d.

B. Th e Allege d Error is the Adm ission of E vidence
Ordina ri ly , err or occur s only when the trial court makes a mistake. The court of appea ls 8
found that appellant’ s rig ht to counsel was violated when an ag ent of the State contac ted appellant
while he wa s repr esente d by counsel, but that is not a mistake that wa s made by the trial cour

t.
Nor is it one of those few situations that could result in the reve rsal of a conviction when the
trial court has done nothing wrong
. Those fe w situations ge nera lly occur only when “ neither the 9
trial court nor the defendant has any control over

the eve nts.” Her e, any

violation of t he right t o 1 0
counsel rela ting to Mor

ris’s note would have been immater ial to appellant’s c onviction if the note
and the testimony about i t had not bee n ad m i t t ed into evidenc e at trial, or i f t he admissi on of t hat
evidenc e wer e cure d in some fashion (via instruction to disreg ard or a mistrial). Def ense counsel 1 1 1 2

Johnson v. State , 169 S.W .3d 223, 228-29 (Tex. Crim. App. 2005); Hawkins v. State , 135 8 S.W .3d 72, 76-77 (Te x . Crim. App. 2004).
See J ohnson , 169 S.W .3d at 229. 9
Id. (“The re are just a few situations in which a conviction can be overturne d even though 1 0 the trial court has done nothing wrong
. Misconduct by the prosec utor, alone, can be g ro u n d s for such an oc curr ence if perjur ed testimony is knowingly

used . . . .”)

. An instruction to disreg ard is the usual reme dy for “har m or prejudice re s ulting from 1 1 events that ha ve alr eady

occur red.” Y oung v. State , 137 S.W .3d 65, 69 (Tex. Crim. App. 2004).
Even a mistrial “ser

ves a corr ective function,” conser ving “re source s that would be 1 2 expended in completing the trial as well as those require d for an appea l should a conviction occur .” Id. The requireme nt that a defenda nt obtain an adverse ruling includes asking for a mistrial if the
err or or impropriety is otherwise incura ble. Cockrell v. State , 933 S.W .2d 73, 89 (Tex. Crim. App. 1996). This is true even though a defe ndant who reque sts a mistrial “g ener ally does fac e a ‘Hobso n ’s choice’ betwee n g iving up his first jury and continuing a trial tainted by prejudicia l judicial or prosec utorial err or.” See United States v. Dinitz , 424 U.S. 600, 609 (1975); see also Ex parte Lewis , 219 S.W .3d 335, 358 (Tex. Crim. App. 2007) (citing Dinitz ).DARCY — 6

and the trial court both participa ted in the proce eding s in which the note and testimony about it wer e
admitted into evidenc e—and in which the rele vant fac ts reg arding the alleg ed ri gh t -t o-counse l
violation came to light. I f err or occur red, it was upon the admission of Morris’s note and testimony
about it—a conclusion that is further buttressed by the court of ap p ea l s ’s harm analy sis, which is
based on the eff

ect of the admission of that evidenc e.
C. Adm ission of E vidence Obtained i n Violation of Righ t to Counsel is F orfeitable Error
Ordinar ily , the appea ling party must have raised a particula r complaint at trial befor e he can
raise it on appea l. Although most rig hts a re forf eited by inaction, a few rig hts a re waivable only , 1 3
and a few matters are absolute require ments or prohibitions that cannot be waived. We have held 1 4
that the rig ht to counsel at a critica l stag e of trial is a waivable -only rig ht, but the same is not true 1 5 of the rig ht to prevent the a dmission of evidence obtained in violation of the rig ht to c ounsel. We
have consistently held that a party forf eits a complaint that evidenc e was obtained in violation of the rig ht to counsel if no objection is lodg ed at tria l. This treatment of the rig ht to e x clude e vidence 1 6

T E X

. R. A P P

. P. 33.1(a) (1)( A) (“A s a prer equisite to prese nting a complaint for appellate 1 3 revie w, the rec ord must show that

. . . the complaint was made to the trial court by a timely reque st, objection, or motion that

. . . stated the g rounds for the ruling that the complaining party soug ht from the t rial cou rt wi t h sufficie nt specific ity to make the trial court aware of t he complaint, unless the specific g rounds wer e appa rent fr om the context.”).
See M arin v. State , 851 S.W .2d 275, 279 (Tex. Crim. App. 1993). 1 4
Id. 1 5
See Lucio v

. State , 351 S.W .3d 878, 909 (Tex. Crim. App. 2011) (“ Her objections in no 1 6 way al er t ed the trial court to any claim that the State’s use of this information violated her Six th Amendment rig ht to counsel, her Six th Amendment rig ht to confr ont the witnesses ag ainst her or any other of her constitutional rig hts. Appellant, there fore , failed to prese rve these claims for appellate revie w.”) ; Swain v. State , 181 S.W .3d 359, 365 (Tex. Crim. App. 2005) (“I n his first four points of
err or, appellant contends that his oral statement to Gag e and Aug us t i n e an d his third writtenDARCY — 7

that was obtained in violation of the rig ht to counsel makes sense beca use, ordinarily , the defe ndant
has counsel at trial (or has validly waived counsel) when the evidenc e is offe red and admitted, and
counsel can assess whether raising a complaint about the evidenc e would serve his client’s interests.

Moreove r, the S u p re m e Court has held that evidenc e obtained in violation of the rig ht to counsel

rema ins admissible for impe ac h m en t purposes —an indication that the admission of evidenc e 1 7
obtained in violatio n of the rig ht to counsel does not occupy the same status as a violation of the rig ht to counsel. And finally , we have g ener ally trea ted err ors in the admission of evidenc e as being subject to proce dural defa ult, reg ardle ss of the constitutional ri gh t involved. Consequently , the 1 8 alleg ed er ror a t issue in this case —the admission of evidenc e that wa s obtained in violation of the rig ht to counsel—is of the ty pe of c laim that is forfeited by inaction. 1 9

statement wer e obtained in violation o f h i s ri g ht to counsel.

. . . under the Fifth and Six th Amendments.

. . . Appellant’s g lobal statements in his pret ri al motion to suppress wer e not suff i ci entl y specific to prese rve the arg uments he now makes on appea l.”); Ripkowski v. Stat e , 61 S.W .3d 378, 386 (Tex. Crim. App. 2001) (“I n Smith , the violation of the Six th Amendment’s rig ht to counsel turned upon the State’s fa ilure to inform def ense c ounsel reg arding one of the topics of the examination.

. . . Be cause the Six th Amendment claim was not arti cu l ated ‘with sufficie nt specific ity to make the trial court awa re of the complaint,’ the Six th Amendment aspec t of Smith was proce durally defa

ulted.”); W

ilkens v. State , 847 S.W .2d 547, 550 (Tex. Crim. App. 1992) (“ Ap p el lant did not object that this testimony violated his Six th Amendment rig ht to counsel

. There fore , appellant has not prese rved h i s co n t ention conce rning a violation of his rig ht to counsel.” ). See also People v. W ilson , 36 Cal. 4th 309, 348, 114 P.3d 758, 785 (2005) (“D efe ndant forf eited this Massiah claim bec ause he failed to objec t on this ground a t the retria l.”).
Kansas v. Ventris , 556 U.S. 586, 593-94 (2009) ( addre ssing Massiah claim). 1 7
Saldano v. State , 70 S

. W

. 3 d 873, 889 (Tex. Crim. App. 2002) (“We have consistently 1 8 held that the failure to object in a timely and specific manner during trial forf eits complaints about the admissibili ty of evidenc e. This is true even though the err or may conce rn a constitutional rig ht of the de fenda

nt.”). Given our discussion, it logic ally follows that appellant’ s due proc ess claim conc erning 1 9 the admissibili ty of the evidenc e, to the extent that it might be viewed as separ ate from his rig ht-tocounsel c laim, is also of the ty pe that is forf

eited by inaction.DARCY — 8
D. Circ um stances Surroundi ng the Adm ission of the Evi dence Did Not Excuse Appellan t’s F ailure to Com plain to the Trial Court Appellant contends that he was not required to object to the admission of Morris’s note
b ec ause he was unawa

re that it was a “counte rfe it document” at the time it was adm i t t ed i n t o
evidenc e. B ut after

defe nse counsel beca

me aware of t he facts concerning the note, he still raised

no complaint. And he failed to object as even more evidenc e reg arding the note was elicited. I f an objectionable event occur s that a party could not have rea sonably fore seen, the party must still seek

to cure any prejudice flowing from that event by reque sting an instruction to disreg ard or a mistrial. 2 0
And t he party must lodge an objection if neede d to cu t off discussion of t he objectionable s ubject

matter a nd preve nt the further

acc umulation of harm. I f appe llant had made a bela ted complaint 2 1

to the trial court, we would need to assess whether his initial unawa rene ss of the char acte r of the note

Y oung , 137 S.W .3d at 69-70. See also Estrada v. State , 313 S.W .3d 274, 303 (Tex. Crim. 2 0 App. 2010) (“Mor eover , assuming, as appellant arg u es , that ‘the prosec ution’s arg ument was so eg reg ious that no instruction to disreg ard could possibly [have] cure [d] the harm,’ then appellant should hav e m oved for a mistrial to prese rve this err or.”) (citing Y oung ); Buchanan v. State , 207 S.W .3d 772, 7 7 5 n.9 (Tex. Crim. App. 2006) (citing Geor g e E. Dix & Robert O. Dawson, 43A TEXAS PRACTI CE: CRI MI NAL PRACTI CE AND PROCEDURE § 42.03, p. 230 (2d ed. 2001) (“Pre serva tion of err or is require d, the Court of Criminal Appea ls has fre quently indicated, in order to provide trial courts or opposing counsel with opportunities to preve nt or cure err ors so as to permit trial proce eding s to continue to a final conclusion fre e from attack and reve rsal on appea l.”); Loredo
v. State , 159 S.W .3d 920, 9 2 3 (T ex
. C ri m
. App. 2004) (“Pre serva tion of err or is not mere ly a technica l proce dural matter by which appellate courts seek to overr ule poi nts of error in a cur sory manner
. Fa irness to all parties require s a party to advanc e his complaints at a time when there is an opportunity

to respond or cure them.”). I f a defe ndant does not w ish to g ive up his valued rig ht to have his cas e d ec i d ed by the first tribunal selec ted, he could ask for the lesser reme dy of an instruction to disreg ard, and if that reme dy is denied, then he has prese rved err or without having to seek a mistrial. See supra this footnote and n.11. I f an instruction to disreg ard is g rante d, then the defe ndant would have to decide whether sacr ificing his rig ht to the first tribunal constitutes the lesser of t wo evils

. See supra this footnote and n.12

. But appellant was never called upon to make that choice beca

use the defe nse did absolutely nothing to a ttempt to cure err or or to pr event the further commission of the alleg ed er ror.
Y oung , 137 S.W .3d at 70. 2 1DARCY — 9

as a ruse would sufficie ntly excuse the lateness of his complaint so as to make it timel y
. But appellant failed to raise any complaint to the trial court with res p ec t to Morris’s note and soug ht
relief for the f irst time on appeal. He has fa iled to preser ve er ror.
We reve rse the judgme nt of the court of appea ls and aff irm the judgme nt of the trial court. 2 2
Deliver ed: April 27, 2016 Publis h

Be ca u s e t he court of appea ls reje cted appellant’ s first three points of err or, which

2 2 challeng ed the sufficie ncy of the evidenc e, there are no rema ining issues to be resolved. See Darcy , 2015 Tex. App. L EXI S 6593, at *13-16.