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Sunday, May 1, 2016

Objection re Right to Trial Counsel in Proceeding Must Be Asserted to Overturn Judgment

Darcy v. State, No. PD-1094-15 (Tex. Crim. App. Apr. 27, 2016)  (Keller, P.J. writing for Keasler, Hervey, Alcala, Richardson, and Yeary, JJ.) Meyers, J., filed a concurring
opinion. Johnson, J., filed a concurring opinion. Newell, J., concurred. (no pet. h.).
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.
 The State suspected that unauthorized messages were being smuggled into and out of the jail. As part of his investigation, Christopher Earl Darcy's friend Rebecca Morris was asked to write a note to him and pass it to the jail cook, which she did.
 Morris testified for the State at trial.. During cross-examination, defense counsel produced the note that she had written to Darcy and had her read it. The prosecutor does not object. 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. Defense did not object. The note is admitted into evidence. On redirect, the Morris says that she was asked to write the note by an d.a.'s investigator, 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-- note had not turned up until trial day and that he himself did not know how it got here.” No objection to note's admission nor any related testimony.
On appeal, Darcy complained about the State causing the note to be written and sent to him. Court of appeals said that jail smuggling investigation made appellant look like a criminal and harmed him., The court of appeals reversed the trial court and remanded. CCA said tthat it had held that the right to counsel at a critical stage of trial is a waivable-only right,  and that Darcy 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.

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