Darcy v. State

• Decision Date: 27 April 2016
• Docket Number: NO. PD–1094–15,PD–1094–15
• Citation: 488 S.W.3d 325
• Parties: Christopher Earl Darcy, Appellant v. The State of Texas
• Court: Texas Court of Criminal Appeals

488 S.W.3d 325

Christopher Earl Darcy, Appellant

v.The State of Texas

NO. PD–1094–15

Court of Criminal Appeals of Texas.

Delivered: April 27, 2016

R. Walton Weaver, Amarillo, for Appellant.

Lisa McMinn, State Prosecuting Attorney, Austin, for the State.

KELLER

, P.J., delivered the opinion of the Court in which KEASLER, HERVEY, ALCALA, RICHARDSON, and YEARY, JJ., joined.

During the trial of this case, defense counsel learned about a possible right-to-counsel violation that occurred before trial. Evidence involving and relating to the alleged violation was admitted at trial, but counsel did not complain until appeal. The court of appeals reversed appellant's conviction without considering preservation of error. We conclude that the court of appeals erred in failing to address preservation of error, and we hold that appellant forfeited his complaints by failing to raise them at trial.

I. BACKGROUND

A. Before Trial

An investigator for the State suspected that a smuggling network was transmitting unauthorized messages to and from the jail. As part of his investigation, he asked Rebecca 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 appellant's trial, his onetime friend Morris testified as a witness for the State. During cross-examination, perhaps in an attempt to impeach Morris, defense counsel produced the note that she had written to appellant and asked her to read it:

Chris, I know you are going to court Monday and I have been asked to be a witness. I have talked to Pat and told him I have not given them a statement. Is there anything I can do to help? Please get a note back to me as soon as possible. Rebecca.

After Morris read the note, the prosecutor said, “No objection.” The trial court and defense counsel clarified that defense counsel was not offering the note into evidence. The prosecutor then said that the State would offer the note into evidence. Asked by the trial court if he had any objection to the exhibit, defense counsel said, “No objection, Your Honor.” The note was admitted into evidence.

On redirect, the prosecutor questioned Morris about the circumstances surrounding the writing of the note. Morris explained that she was asked to write the note by an investigator for the district attorney's office and that the note was merely a ruse, designed to determine whether a message would get through to appellant while he was residing in the county jail. On further cross-examination, defense counsel questioned Morris about the fact that the note was a ruse and that the prosecutor's office assisted in the ruse.

The State then called the investigator, who corroborated what Morris had said about the note. Defense counsel questioned the investigator about whether the police found the note in the jail. The investigator responded, “No one has searched for the letter. In fact, it has not turned up until today and I'm rather curious myself about how it got here.” Defense counsel did not object to the admission of the note into evidence or to any of the testimony about the note.

C. Appeal

On appeal, appellant complained about the State causing the note to be written and sent to him. He argued that his “due process right to a fair trial was violated by the State creating ‘evidence’ intended to open the door to extraneous offenses,” and that his “Sixth Amendment right to counsel was violated by the District Attorney's Office contacting him during adversarial proceedings while represented by counsel.” Sustaining these complaints, the court of appeals held that appellant's “Sixth Amendment right to counsel was violated when a State agent directed [Morris] to contact [a]ppellant while he was represented by counsel, but without his counsel present.”¹ Conducting a harm analysis, the court of appeals observed that the note was introduced into evidence by the State, that the jury heard the testimony concerning the origin of the note, that the evidence of investigation into jail-smuggling operations made appellant look like a criminal, and that the jury asked during deliberations about any response by appellant to the note.² Concluding that appellant suffered harm, the court of appeals reversed the trial court's judgment and remanded the case for further proceedings.

II. ANALYSIS

In its first ground for review, the State contends that appellant failed to preserve his complaint and that the court of appeals erred to reverse the trial court's judgment without addressing the issue of preservation.³ We agree.

A. Preservation Should Have Been Addressed

Preservation of error is a systemic requirement.⁴ The systemic nature of the requirement means that a first-tier appellate court may not reverse a judgment of conviction without first addressing any issue of error preservation.⁵ This is true regardless of whether the issue is raised by either of the parties.⁶ And when a first-tier appellate court fails to address a preservation issue as required, “this Court can and should do so when confronted with a preservation question.”⁷ In the present case, the court of appeals reversed the trial court's judgment without addressing whether error was preserved or needed to be preserved.

B. The Alleged Error is the Admission of Evidence

Ordinarily, error occurs only when the trial court makes a mistake.⁸ The court of appeals found that appellant's right to counsel was violated when an agent of the State contacted appellant while he was represented by counsel, but that is not a mistake that was made by the trial court.

Nor is it one of those few situations that could result in the reversal of a conviction when the trial court has done nothing wrong.⁹ Those few situations generally occur only when “neither the trial court nor the defendant has any control over the events.”¹⁰ Here, any violation of the right to counsel relating to Morris's note would have been immaterial to appellant's conviction if the note and the testimony about it had not been admitted into evidence at trial, or if the admission of that evidence were cured in some fashion (via instruction to disregard¹¹ or a mistrial).¹² Defense counsel and the trial court both participated in the proceedings in which the note and testimony about it were admitted into evidence—and in which the relevant facts regarding the alleged right-to-counsel violation came to light. If error occurred, it was upon the admission of Morris's note and testimony about it—a conclusion that is further buttressed by the court of appeals's harm analysis, which is based on the effect of the admission of that evidence.

C. Admission of Evidence Obtained in Violation of Right to Counsel is Forfeitable Error

Ordinarily, the appealing party must have raised a particular complaint at trial before he can raise it on appeal.¹³ Although most rights are forfeited by inaction, a few rights are waivable only, and a few matters are absolute requirements or prohibitions that cannot be waived.¹⁴ We have held that the right to counsel at a critical stage of trial is a waivable-only right,¹⁵ but the same is not true of the right to prevent the admission of evidence obtained in violation of the right to counsel. We have consistently held that a party forfeits a complaint that evidence was obtained in violation of the right to counsel if no objection is lodged at trial.¹⁶ This treatment of the right to exclude evidence that was obtained in violation of the right to counsel makes sense because, ordinarily, the defendant has counsel at trial (or has validly waived counsel) when the evidence is offered and admitted, and counsel can assess whether raising a complaint about the evidence would serve his client's interests. Moreover, the Supreme Court has held that evidence obtained in violation of the right to counsel remains admissible for impeachment purposes¹⁷ —an indication that the admission of evidence obtained in violation of the right to counsel does not occupy the same status as a violation of the right to counsel. And finally, we have generally treated errors in the admission of evidence as being subject to procedural default, regardless of the constitutional right involved.¹⁸ Consequently, the alleged error at issue in this case—the admission of evidence that was obtained in violation of the right to counsel—is of the type of claim that is forfeited by inaction.¹⁹

D. Circumstances Surrounding the Admission of the Evidence Did Not Excuse Appellant's Failure to Complain to the Trial Court

Appellant contends that he was not required to object to the admission of Morris's note because he was unaware that it was a “counterfeit document” at the time it was admitted into evidence. But after defense counsel became aware of the facts concerning the note, he still raised no complaint. And he failed to object as even more evidence regarding the note was elicited. If an objectionable event occurs that a party could not have reasonably foreseen, the party must still seek to cure any prejudice flowing from that event by requesting an instruction to disregard or a mistrial.²⁰ And the party must lodge an objection if needed to cut off discussion of the objectionable subject matter and prevent the further accumulation of harm.²¹ If appellant had made a belated complaint to the trial court, we would need to assess whether his initial unawareness of the character of the note as a ruse would sufficiently excuse the lateness of his complaint so as to make it timely. But appellant failed to raise any complaint to the trial court with respect to Morris's note and sought relief for the first time on appeal. He has failed to preserve error.

We reverse the judgment of the court of appeals and affirm the judgment of the trial court.²²

MEYERS

, J., filed a concurring opinion.

JOHNSON

, J., filed a concurring opinion.

NEWELL

, J., concurred.

CONCURRING OPINION

MEYERS

, J., filed a concurring opinion.

During Appellant's trial, a note that was written by a testifying witness was entered into evidence by the...