           IN THE COURT OF CRIMINAL APPEALS
                       OF TEXAS
                                         NO. PD-1094-15



                        CHRISTOPHER EARL DARCY, Appellant

                                                  v.

                                    THE STATE OF TEXAS

             ON STATE’S PETITION FOR DISCRETIONARY REVIEW
                  FROM THE SEVENTH COURT OF APPEALS
                             MOORE COUNTY

        J OHNSON, J., filed a concurring opinion.

                            CONCURRING OPINION

        I concur in the judgment of the Court.

        Appellant was charged with burglary of a habitation. The bogus note was part of an unrelated

investigation into security issues in the county jail. It appears from the record that the state’s agent

asked Morris to send a note merely to see if the note would help track down the smuggling network

and that she was asked solely because she knew an inmate, not because she specifically knew

appellant. The note contained no information about the offense charged against appellant. It did not

ask him to reveal information about the offense, nor did it purport to expose his involvement in an
                                                                                                                          2

extraneous offense. It did not purport to offer a benefit if he took a proposed action. If it had been

mailed to him, it would likely have made it past the censors unscathed, nor would anyone consider

such a communication a breach of appellant’s right to counsel.

         It had little if any impeachment value, especially because there was no testimony that he

responded to the note, that he received it, or even that he knew of the existence of the suspected

smuggling network,1 and the investigator verified Morris’s testimony about the note. In sum, the

note was neither relevant nor material and probably should not have been admitted into evidence.

But it was.

         Still, being in evidence did not change the note’s nature: no content about the charged offense

or any extraneous offenses, no request for information. The only possible negative inference that

could be drawn would occur if appellant had sent a note back through the illicit network but, again,

there is no evidence that appellant knew of the smuggling network.

         In these circumstances, even assuming that admitting the note was error, I do not think that

appellant can show harm.



Filed: April 27, 2016
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         1
             Testimony of the investigator who asked Morris to write the note: “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.”
