                       PD-1094-15                                      PD-1094-15
                                                     COURT OF CRIMINAL APPEALS
                                                                      AUSTIN, TEXAS
                                                     Transmitted 8/21/2015 1:49:34 PM
                                                       Accepted 8/25/2015 4:26:51 PM
                                                                       ABEL ACOSTA
                          No. 07-13-00297-CR                                   CLERK

                  TO THE COURT OF CRIMINAL APPEALS

                       OF THE STATE OF TEXAS



CHRISTOPHER EARL DARCY,                                    Appellant

v.

THE STATE OF TEXAS,                                         Appellee



                       Appeal from MOORE County




                              * * * * *

            STATE’S PETITION FOR DISCRETIONARY REVIEW


                              * * * * *


                            LISA C. McMINN
                        State Prosecuting Attorney
                          Bar I.D. No. 13803300

                              P.O. Box 13046
                           Austin, Texas 78711
                        information@spa.texas.gov
                        512/463-1660 (Telephone)
                            512/463-5724 (Fax)
August 25, 2015
                                        TABLE OF CONTENTS

INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

STATEMENT REGARDING ORAL ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF PROCEDURAL HISTORY. . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

GROUNDS FOR REVIEW.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

         1) Does a defendant forfeit a Sixth Amendment complaint about the
         State’s attempt to communicate with him without counsel at a critical
         stage if he offers evidence of the communication and does not object
         to further testimony about it, and must a court of appeals address
         preservation of error before reversing a conviction on this basis?

         2) If the State violates a defendant’s Sixth Amendment rights by
         attempting to communicate with him without counsel at a critical
         stage but no evidence of any incriminating response is offered, does
         reversible occur when evidence of the mere fact of the violation is
         admitted?

         3) Is it proper to consider unpreserved error in the analysis of harm
         from a separate error?


ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

PRAYER FOR RELIEF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

CERTIFICATE OF COMPLIANCE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

APPENDIX (Opinion of the Court of Appeals)

                                                           i
                        IDENTITY OF THE PARTIES

Appellant: Christopher Earl Darcy.

Appellee: The State of Texas.

Trial Judge: Hon. Ron Enns.

Trial counsel for Appellant: D. Dale Stemple, P.O. Box 1878, Dumas, Texas
79029.

Appellate Counsel for Appellant: R. Walton Weaver, Herman & Weaver, 320
South Polk, Ste. 902, Amarillo, Texas 79101.

Trial counsel for the State: Timohty D. Salley, Assistant District Attorney, 715 S.
Dumas Ave., Room 304, Dumas, Texas 79029.

Appellate counsel for the State: David M. Green, District Attorney, 715 S. Dumas
Ave., Room 304, Dumas, Texas 79029 and Lisa C. McMinn, State Prosecuting
Attorney, P.O. Box 13046, Capitol Station, Austin, Texas 78711.




                                         ii
                                     INDEX OF AUTHORITIES

Cases

Blackshear v. State, 385 S.W.3d 589 (Tex. Crim. App. 2012). .. . . . . . . . . . . . . . . 4

Carter v. State, 309 S.W.3d 31 (Tex. Crim. App. 2010) . . . . . . . . . . . . . . . . . . . . . 6

Chamberlain v. State, 998 S.W.2d 230 (Tex. Crim. App. 1999)... . . . . . . . . . . . . 8n

Darcy v. State, No. 07-13-00297-CR
(Tex. App.–Amarillo June 25, 2015). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 4, 6, 8

Gilley v. State, 418 S.W.3d 114 (Tex. Crim. App. 2014) . . . . . . . . . . . . . . . . . . . . 6

Kansas v. Ventris, 556 U.S. 586 (2009) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7n

Lackey v. State, 364 S.W.3d 837 (Tex. Crim. App. 2012). . . . . . . . . . . . . . . . . . . . 4

United States v. Morrison, 449 U.S. 361 (1981). . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Oliver v. State, 872 S.W.2d 713 (Tex. Crim. App. 1994).. . . . . . . . . . . . . . . . . . . . 5

Peyronel v. State, __S.W.3d __, No. PD-1274-14 (Tex. Crim. App. 2015). . . . . . 5

Reyna v. State, 168 S.W.3d 173 (Tex. Crim. App. 2006).. . . . . . . . . . . . . . . . . . . . 5

Reynolds v. State, 423 S.W.377 (Tex. Crim. App. 2014). . . . . . . . . . . . . . . . . . . . . 5

Rubalcado v. State, 424 S.W.3d 560 (Tex. Crim. App. 2014). . . . . . . . . . . . . . . 6, 7

Codes and Rules

TEX. CODE CRIM. PROC. 38.23.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

TEX. R. EVID. 404(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8


                                                          iii
                               No. 07-13-00297-CR

                  TO THE COURT OF CRIMINAL APPEALS

                          OF THE STATE OF TEXAS



CHRISTOPHER EARL DARCY,                                                    Appellant

v.

THE STATE OF TEXAS,                                                        Appellee


                                    * * * * *

          STATE’S PETITION FOR DISCRETIONARY REVIEW

                                    * * * * *

TO THE HONORABLE COURT OF CRIMINAL APPEALS:

      The State of Texas, by and through its State Prosecuting Attorney, respectfully

urges this Court to grant discretionary review of the above named cause.

              STATEMENT REGARDING ORAL ARGUMENT

      The State does not request oral argument.

                         STATEMENT OF THE CASE

        A jury convicted Appellant of burglary of a habitation and assessed his

punishment at twelve years’ confinement and a fine. In an unpublished opinion, the


                                         1
court of appeals reversed the conviction, holding that Appellant was deprived of his

Sixth Amendment right to counsel when an agent of the State attempted to

communicate with Appellant without counsel during a critical stage of the

proceeding. Darcy v. State, No. 07-13-00297-CR (Tex. App.–Amarillo June 25,

2015).

                 STATEMENT OF PROCEDURAL HISTORY

         The court of appeals reversed the conviction on June 25, 2015. The State

filed a motion for rehearing on July 6, 2015, which was denied on July 22, 2015.

                          QUESTIONS FOR REVIEW

1) Does a defendant forfeit a Sixth Amendment complaint about the State’s attempt
to communicate with him without counsel at a critical stage if he offers evidence of
the communication and does not object to further testimony about it, and must a court
of appeals address preservation of error before reversing a conviction on this basis?

2) If the State violates a defendant’s Sixth Amendment rights by attempting to
communicate with him without counsel at a critical stage but no evidence of any
incriminating response is offered, does reversible occur when evidence of the mere
fact of the violation is admitted?

3) Is it proper to consider unpreserved error in the analysis of harm from a separate
error?


                                  ARGUMENT

      While Appellant was in jail pending trial on this charge, State’s witness,

Rebecca Morris, wrote him a letter, offering to “help” him and asking him to

                                         2
respond.1 RR 3: 136-37. Appellant responded to her letter with a message from his

brother, Pat, but the contents of his message were not disclosed. RR 3: 140.2

       Morris’s letter was written at the request of an investigator in the D.A.’s office,

who was investigating communications being improperly smuggled in and out of the

jail. RR 3: 139-40, 143-44. Under the investigator’s direction, Morris had written

the letter and asked the jail’s cook to deliver it to Appellant. RR 3: 139-40. The

letter wound up in defense counsel’s hands, and he confronted Morris with it on

cross-examination, asking her to read it aloud. RR 3: 136-37.3

       The court of appeals reversed, holding that because the letter was sent at the

State’s behest, after indictment and without the presence of counsel, the State violated

Appellant’s Sixth Amendment right to counsel at a critical stage of the proceedings.


   1
    The note said, “Chris, I know you are going to court Monday. And I have been
asked to be a witness. I have talked to [Appellant’s brother] & told him I have not
given them a statement. Is there anything I can do to help you[?] Please get a note
back to me as soon as possible. Rebecca.” SX 17.
   2
     Morris testified that Pat told her Appellant had given a message to the cook to
give him to relay to Morris. RR 3: 140.
   3
    Counsel was apparently unaware of the State’s involvement with the letter at the
time he raised the issue on cross-examination of Morris. He had presumably intended
to expose Morris’s willingness to change her testimony on the eve of trial. When
Morris explained the origin of the letter on redirect, counsel changed his tack and
elicited testimony from Morris that the prosecutor “assisted in the ruse” and stated,
“[T]he 69th district attorney had you write a letter to take to the jail to see if my client
would ask you to do something unethical.” RR 3: 140-142.

                                             3
Darcy, Slip op. at 7-8.      It further held that testimony about the smuggling

investigation created the impression that Appellant was involved in wrongdoing,

which contributed to the harmfulness of the Sixth Amendment violation. Id. at 8.

Preservation

      Appellant’s counsel introduced the existence of the letter and its contents

before the jury, stated he had no objection when the State offered the actual letter, did

not object to testimony about why the letter was written, and asked Morris if

Appellant had responded to it. RR 3: 136-44. Counsel never argued that the

communication violated Appellant’s Sixth Amendment right to counsel or that

testimony about the smuggling investigation was improper extraneous offense

evidence.

a. Court of appeals’ duty to address

      “Preservation of error is a systemic requirement which a court of appeals

should review on its own motion.” Blackshear v. State, 385 S.W.3d 589, 590 (Tex.

Crim. App. 2012). “[A] court of appeals may not reverse a conviction without first

addressing any potential issue of procedural default, even sua sponte.” Lackey v.

State, 364 S.W.3d 837, 844 n.28 (Tex. Crim. App. 2012).

      The court of appeals denied the State’s motion for rehearing, which argued that

error was forfeitable and was forfeited. The court of appeals may have considered it

                                           4
unnecessary to address preservation, believing this type of error is not subject to

procedural default. However, “[A]n appellate court may not reverse a conviction

without first addressing any plausible argument, whether raised by the parties or not,

that the purported error necessitating reversal is subject to error-preservation

requirements and, if so, whether that error has been preserved for appeal.” Reynolds

v. State, 423 S.W.377, 384 (Tex. Crim. App. 2014). And, as pointed out below, this

type of error requires preservation. Therefore, the court of appeals erred by failing

to address the issue.

b. Objection requirement

      Any error in this case was procedurally defaulted by Appellant’s failure to

object, especially after he became aware that Morris was acting as an agent of the

State. Some Sixth Amendment violations are subject to procedural default. See

Peyronel v. State, __S.W.3d __, No. PD-1274-14 (Tex. Crim. App. 2015) (Sixth

Amendment right to public trial is forfeitable by failure to object); Reyna v. State,

168 S.W.3d 173, 179-80 (Tex. Crim. App. 2006) (Sixth Amendment right to

confrontation is subject to procedural default). On the other hand, the total

deprivation of counsel at a critical stage of the proceedings cannot be forfeited by the

mere failure to object. See Oliver v. State, 872 S.W.2d 713, 716 (Tex. Crim. App.

1994) (indigent defendant who does not affirmatively request appointed counsel at

                                           5
pretrial hearing does not waive right to assistance of counsel); Gilley v. State, 418

S.W.3d 114, 119 (Tex. Crim. App. 2014) (failure to object to counsel’s exclusion

from in-chambers examination of child witness does not waive right to counsel).

      But, as the court of appeals acknowledged, this is not a total depravation case.

Slip op. at 9.    The issue here requires a determination of whether the State

“circumvent[ed] the defendant’s right to the assistance of counsel by using an

undisclosed government agent to deliberately elicit incriminating information.”

Rubalcado v. State, 424 S.W.3d 560, 570 (Tex. Crim. App. 2014). Whether the

investigator acted deliberately is a fact issue because it involves credibility

determinations. See Carter v. State, 309 S.W.3d 31, 40 (Tex. Crim. App. 2010)

(whether police acted deliberately in delaying Miranda warnings is dependent on

credibility determinations and therefore subject to the “great deference” standard of

review).

      Although an appellate court can review historical facts found by a trial court

to determine whether they are supported by the record, the initial determination must

be made by the trial court. It follows that an issue requiring a factual determination

by the trial court is procedurally defaulted if the appealing party does not ask the trial

court to make that determination. Had the trial judge been confronted with an

objection, he may have ruled that the letter was sent to determine whether the jail

                                            6
cook was illegally smuggling communications in and out of the jail. Or he may have

found that the smuggling investigation was a ruse and the letter was an attempt to get

Appellant to incriminate himself.         Either way, the initial determination of

deliberateness was for the trial judge, and an objection was required to enable him to

make that determination.

Reversible Error

      If the State “circumvent[ed] the defendant’s right to the assistance of counsel

by using an undisclosed government agent to deliberately elicit incriminating

information” under Rubalcado, it violated the Sixth Amendment.4 But the remedy

for a Sixth Amendment violation is to suppress incriminating information obtained

from the defendant in the absence of his counsel or order a new trial if the evidence

was wrongfully admitted. United States v. Morrison, 449 U.S. 361, 365 (1981). No

self-incriminating evidence was elicited or admitted as a result of any violation in this

case. In other words, no evidence obtained in violation of the law was admitted. TEX.

CODE CRIM. PROC. 38.23. So even if a Sixth Amendment violation occurred when

Morris’s letter was delivered to Appellant, no trial error occurred when evidence of

the letter was admitted. It is not error for the jury to know that the State engaged in

  4
     See Kansas v. Ventris, 556 U.S. 586, 592 (2009) (the Sixth Amendment violation
occurs at the time of the interrogation, not when the incriminating response is offered
at trial).

                                           7
misconduct.

        And even if a Sixth Amendment violation translates to trial error, without any

fruit of the violation, it was harmless.

Cumulative harm from unpreserved error

        The court of appeals believed the testimony about the reason for the letter

suggested that Appellant was involved in a smuggling operation at the jail, and this

rendered the error harmful. Slip op. at 8-9. But this evidence should not be factored

into the harm analysis of the alleged Sixth Amendment violation. To the extent the

evidence showed that Appellant was involved in smuggling, it was an extraneous act

that violated TEX. R. EVID. 404(b). But Appellant did not object to it.

        Although this Court has recognized the doctrine of cumulative harm,5 it has not

addressed whether an unpreserved error can render another error harmful, or whether

the cumulative effect of several unpreserved errors requires reversal. It seems

unlikely that such an application would be recognized, given the systemic nature of

error preservation. If the merits of an unpreserved issue cannot be addressed in its

own right, it should not be addressed within the harm analysis of a separate issue.




   5
       Chamberlain v. State, 998 S.W.2d 230, 238 (Tex. Crim. App. 1999).

                                           8
Conclusion

      Appellant objected to neither the basis of his complaint on appeal nor the

separate alleged error that the court of appeals found contributed to harm. Both errors

are forfeitable, and neither should have been addressed on the merits. Further, there

can be no actionable Sixth Amendment violation without an incriminating response

from Appellant. And even if the technical Sixth Amendment violation constitutes

trial error and was not forfeited, it was harmless, and a separate, unpreserved

evidentiary error should not be used to bootstrap it into harmful error. This Court

should grant review.




                                          9
                             PRAYER FOR RELIEF

      WHEREFORE, the State of Texas prays that the Court of Criminal Appeals

grant this Petition for Discretionary Review, that the case be set for submission, and

that after submission, this Court reverse the decision of the Court of Appeals.



                                         Respectfully submitted,




                                       /s/ LISA C. McMINN
                                        LISA C. McMINN
                                        State Prosecuting Attorney
                                        Bar I.D. No. 13803300

                                        P.O. Box 13046
                                        Austin, Texas 78711
                                        information@spa.texas.gov
                                         512/463-1660 (Telephone)
                                        512/463-5724 (Fax)




                                         10
                     CERTIFICATE OF COMPLIANCE

      The undersigned certifies that according to the WordPerfect word count tool

this document contains 2500 words.




                                     /s/ LISA C. McMINN
                                     LISA C. McMINN
                                     State Prosecuting Attorney




                                       11
                         CERTIFICATE OF SERVICE

      The undersigned certifies that on this 21st day of August, 2015, the State’s

Petition for Discretionary Review was served via certified electronic service provider

to:

David M. Green
69th Judicial District Attorney
715 S. Dumas Avenue, Room 304
Dumas, Texas 79029
69thda@moore-tx.com

R. Walton Weaver
HERRMANN & WEAVER
320 South Polk, Ste. 902
Amarillo, Texas 79101
waltlawoffice@gmail.com




                                         /s/ LISA C. McMINN
                                         LISA C. McMINN
                                         State Prosecuting Attorney




                                              12
APPENDIX
                                   In The
                              Court of Appeals
                     Seventh District of Texas at Amarillo
                               ________________________

                                    No. 07-13-00297-CR
                               ________________________

                      CHRISTOPHER EARL DARCY, APPELLANT

                                                V.

                           THE STATE OF TEXAS, APPELLEE



                           On Appeal from the 69th District Court
                                    Moore County, Texas
                    Trial Court No. 4750; Honorable Ron Enns, Presiding


                                         June 25, 2015

                             MEMORANDUM OPINION
                   Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.


      “[W]hat use is a defendant’s right to effective counsel at every stage of a criminal
      case if, while he is held awaiting trial, he can be questioned in the absence of
      counsel . . . ?”
                                    Spano v. New York, 360 U.S. 315, 326, 79 S. Ct. 1202, 3 L. Ed. 2d
                                    1265 (1959) (William O. Douglas, concurring)


      In this appeal, we are confronted with, among other issues, whether an

accused’s Sixth Amendment right to counsel was violated when an agent of the District

Attorney’s office covertly contacted Appellant, Christopher Earl Darcy, after judicial
proceedings had been initiated and while Appellant was represented by counsel.

Finding his right to counsel was violated, we reverse and remand.


                                           BACKGROUND


       Richard and Brenda Kiewiet were in the process of remodeling a house.1 Just

prior to leaving town for four or five days, Brenda drove by the house and noticed a

vehicle parked in the carport. Realizing there was a woman in the car, she approached

the vehicle. The woman in the vehicle identified herself as Rebecca Morris and inquired

whether the house was for sale or rent. Brenda obtained Rebecca’s phone number

and, after explaining that she would be out of town for a few days, told her she would

contact her at a later date.


       When Richard and Brenda returned from being out of town, Richard went to the

house to continue his remodeling project. When he could not locate his drill, he realized

his tool box and tools were missing. He observed a broken storm window at the back of

the house and wheel tracks from his missing tool box leading to the back gate.


       Nine or ten days later, Brenda was driving around when she observed Rebecca’s

vehicle parked at a house on a different street. Also parked at the house was a green

pickup with a tool box in the back. Because the tool box resembled Richard’s missing

tool box, she reported her observation to Richard, who then called the police.


       Sergeant Kerry Hayes of the Dumas Police Department was dispatched to the

scene on a stolen property call. When he arrived, Sergeant Hayes observed Appellant


       1
         Although the house was not their personal residence, it was a structure “adapted for overnight
accommodation of persons,” and was, therefore, a “habitation” for purposes of the offense at issue. See
TEX. PENAL CODE ANN. § 30.01 (1) (West 2011).
                                                  2
exit the house while carrying a large Rubbermaid bin containing items he was moving

into the green pickup.          Sergeant Hayes advised Appellant he was there on a call

concerning the possibility of stolen property having been seen in the pickup. Appellant

informed the officer that the pickup belonged to his nephew, Wesley, and he had merely

borrowed it to move. Appellant consented to a search of the pickup and then asked if

he could return to the house to continue moving items.                       Appellant then confronted

Rebecca in her garage and accused her of calling the police. When she denied having

done so, he left and did not return to the pickup. When Sergeant Hayes realized that

Appellant was not returning, he asked about his whereabouts and was told Appellant

had left through the back of the house.


       Because Sergeant Hayes did not have any backup to pursue Appellant, he

proceeded to search the pickup. There he found a tool box, tools, a red Marlboro duffle

type bag containing Appellant’s name and various other items of personal property,

including a bong.2 Richard later identified the tool box and some of the tools as his.

Appellant was eventually arrested and charged with burglary of a habitation.3 A jury trial

commenced on June 17, 2013, and Appellant entered a plea of not guilty.


       During trial, Rebecca testified she knew Appellant through his brother, Pat, who

was a former classmate of hers. Rebecca explained that Pat, Pat’s son Wesley, and

Appellant would occasionally stay at her home. She testified she was looking at houses

for her guests to move into because her home could not accommodate both her family

and Appellant’s family. She also testified she told Appellant about the Kiewiets’ house

       2
           Photos were taken at the scene, but no fingerprints were taken.
       3
           See TEX. PENAL CODE ANN. § 30.02 (a)(3) (West 2011). As charged, an offense under this
section is a second degree felony. See id. at § 30.02 (c)(2).

                                                     3
being available. According to Rebecca’s testimony, Appellant explained to her he had

been by the house and that the owners were “stupid” for leaving the house open.


       The jury convicted Appellant of burglary of a habitation and sentenced him to

twelve years confinement and a fine of $10,000. After sentence was pronounced, the

trial court entered an order requiring Appellant to pay restitution of $2,237.94. Appellant

advances five points of error challenging his conviction and the resultant order of

restitution. By his first three issues, he questions the sufficiency of the evidence to

support his conviction. By his fourth issue, he maintains his due process right to a fair

trial was violated by the State creating “evidence” intended to “open the door” to the

introduction of extraneous offenses. His fifth and final issue alleges a violation of his

Sixth Amendment right to counsel as a result of the District Attorney’s office contacting

him while awaiting trial, without the benefit of having his counsel present.


                         ISSUES FOUR & FIVE—RIGHT TO COUNSEL


       In addressing Appellant’s issues, we do so in a logical rather than sequential

order. Issue four, by which Appellant asserts his due process right to a fair trial was

violated by the State creating “evidence” intended to “open the door” to extraneous

offenses is inextricably tied to his fifth issue, by which he contends his Sixth

Amendment right to counsel was violated when an agent of the District Attorney’s office

surreptitiously contacted him during adversarial proceedings without the benefit of his

counsel being present. Agreeing Appellant’s rights were violated, we sustain issues

four and five.


       During Rebecca’s testimony, the defense questioned her concerning prior

convictions for theft and possession, implying she had concocted a plan to burglarize
                                             4
the Kiewiets’ house because she knew they would be out of town.              After several

exchanges, during recross-examination, defense counsel approached her and asked

her to identify the handwriting on a note which was read to the jury. In its entirety, the

note provided as follows:


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

The prosecutor stated “No objection,” to which the court responded, “I don’t think it was

offered . . . .” Defense counsel expressed his intent not to offer the note into evidence.

The prosecutor then insisted on offering it because Rebecca had read it in the jury’s

presence. The note was marked and admitted as State’s Exhibit 17.


      Rebecca confirmed the note was in her handwriting. She further stated Terry

Vogel, an investigator for the Moore County District Attorney’s office, had asked her to

write it and send it to Appellant. According to instructions from Vogel, she gave the note

to the jail cook to deliver to Appellant. Rebecca also testified that Pat informed her

Appellant received the note, but the record is unclear concerning whether Appellant

actually replied using Pat as a courier. Defense counsel then questioned Rebecca

concerning her attempt to solicit a response from Appellant, and she answered

affirmatively when asked whether the State assisted in the “ruse.”


      During his testimony, Vogel explained that he asked Rebecca to write the note to

Appellant as part of a separate investigation concerning illicit activities being conducted

at the Moore County Jail facility, including an illegal smuggling network. Vogel testified




                                            5
that his review of jail phone calls verified that Rebecca’s note was delivered to

Appellant.


                          SIXTH AMENDMENT RIGHT TO COUNSEL


       One of the primary purposes of the Sixth Amendment right to counsel is to

preserve the integrity of the attorney-client relationship once it has been established.

Patterson v. Illinois, 487 U.S. 285, 108 S. Ct. 2389, 101 L. Ed. 2d 261 (1988). The Sixth

Amendment right to counsel is triggered “at or after the time that judicial proceedings

have been initiated” against an accused “whether by way of formal charge, preliminary

hearing, indictment, information or arraignment.” Brewer v. Williams, 430 U.S. 387,

398, 97 S. Ct. 1232, 51 L. Ed. 2d 424 (1977). Once the adversarial judicial process has

been initiated, the right to counsel guarantees an accused the right to have counsel

present at all “critical” stages of the criminal proceeding. United States v. Wade, 388

U.S. 218, 227-28, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967).            The period from

arraignment to trial is “perhaps the most critical period of the proceedings . . . during

which the accused requires the guiding hand of counsel . . . .” Id. at 226. Interrogation

by police, after charges have been brought, is such a critical stage. Brewer, 430 U.S. at

401.


       Concerning Vogel’s claim that the note was part of an investigation involving a

separate offense, we note the Sixth Amendment right to counsel is offense specific.

Rubalcado v. State, 424 S.W.3d 560, 570 (Tex. Crim. App. 2014). In determining what

constitutes an “offense” for Sixth Amendment right-to-counsel purposes, and

consequently, whether a separate offense is involved, the Supreme Court has resorted

to double jeopardy law.     Id.   Offenses are considered separate if they would be

                                            6
considered separate under the Blockburger same-elements test.                         Id. at 571 (citing

Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932)).


                                                ANALYSIS


        Here, Appellant’s right to counsel for burglary of a habitation had attached prior

to the time Vogel asked Rebecca to contact Appellant. Rebecca was a key witness for

the State in Appellant’s case. Vogel, as an investigator for the Moore County District

Attorney’s office, was an agent of the State.4 Rebecca likewise acted as an agent of the

State under Vogel’s direction to deliberately elicit incriminating statements from

Appellant. See Rubalcado, 424 S.W.3d at 576 (concluding that sexual assault victim

was a government agent where she was recruited by law enforcement to record

conversations intended to deliberately elicit incriminating responses from her assailant).


        In its defense of Vogel’s conduct, the State maintains Rebecca was asked to

create the note as part of an on-going investigation into a separate offense (smuggling

contraband into a correctional facility) that did not pertain to the pending offense for

which the State acknowledges that Appellant’s right to counsel had already attached.

While we agree the two offenses are separate offenses for purposes of Appellant’s right

to counsel, we disagree with the State’s position that the contact in question did not

pertain to the offense at issue in this proceeding.


        The note specifically referred to Appellant’s upcoming appearance in court on the

burglary of a habitation offense that is the subject of this appeal. Rebecca indicated she


        4
         The State is responsible, in Sixth Amendment context, for the knowledge of all of its actors . . . .
Rubalcado v. State, 424 S.W.3d 560, 574-75 (Tex. Crim. App. 2014) (citing Michigan v. Jackson, 475
U.S. 625, 634, 106 S. Ct. 1404, 89 L. Ed. 2d 631 (1986), overruled on other grounds, Montejo v.
Louisiana, 556 U.S. 778, 797, 129 S. Ct. 2079, 173 L. Ed. 2d 955 (2009)).
                                                     7
was going to be a witness in that case and that she had not given authorities a

statement. She also asked Appellant what she could do to help him in that particular

case. The words written by Rebecca at Vogel’s request are specifically tied to the

pending burglary of a habitation charge and are not solely related to a separate offense

for which the right to counsel had not attached.      Furthermore, nothing in the note

supports the State’s contention that it was created solely to investigate a jail smuggling

operation. Accordingly, we find the District Attorney’s office knowingly circumvented

Appellant’s right to counsel in this case by using a government agent to elicit

incriminating information. Maine v. Moulton, 474 U.S. 159, 176, 106 S. Ct. 477, 88 L.

Ed. 2d 481 (1985); Massiah v. United States, 377 U.S. 201, 206, 84 S. Ct. 1199, 12 L.

Ed. 2d 246 (1964).


      The note also had the effect of eliciting evidence of an extraneous offense during

the State’s case-in-chief in violation of Rule 404(b) of the Texas Rules of Evidence. The

statements of defense counsel and the prosecutor made during the admission of the

note occurred in the presence of the jury.      As such, the jury heard evidence that

Appellant might possibly be involved in a jail smuggling operation.         Under these

circumstances, we conclude Appellant’s Sixth Amendment right to counsel was violated

when a State agent directed Rebecca to contact Appellant while he was represented by

counsel, but without his counsel being present. See Rubalcado, 424 S.W.3d at 578.


                                     HARM ANALYSIS


      Misconduct leading to a total deprivation of the right to counsel at trial is a

structural error that defies harmless error review. Arizona v. Fulminante, 499 U.S. 279,

309, 111 S. Ct. 1246, 113 L. Ed. 2d 302 (1991).            “The right to counsel is too

                                            8
fundamental and absolute to allow courts to indulge in nice calculations as to the

amount of prejudice arising from its denial.” Johnson v. State, 169 S.W.3d 223, 230

n.34 (Tex. Crim. App. 2005) (citing Glasser v. United States, 315 U.S. 60, 75-76, 62 S.

Ct. 457, 86 L. Ed. 680 (1942)). See Rubalcado, 424 S.W.3d at 578 (harmless error

analysis not conducted after finding a violation of appellant’s right to counsel occurred

when the State used the complainant to communicate with the accused in an attempt to

elicit incriminating statements). When, however, the misconduct leading to error does

not amount to a complete denial of counsel, some standard of prejudice or materiality is

required to establish a constitutional violation leading to the reversal of a conviction.

See Johnson, 169 S.W.3d at 229-30. In these situations, appellate courts are guided by

the principle that such a violation will lead to a reversal unless an appellate court

determines beyond a reasonable doubt that the error did not lead to the conviction or

punishment. TEX. R. APP. P. 44.2(a). Because the violation in this case did not lead to

a total deprivation of Appellant’s right to counsel, it is subject to a harm analysis.


       In that regard, Rebecca’s note was introduced into evidence at the request of the

State. The jury was present and heard the discussions between defense counsel and

the prosecutor concerning the origin of the note and its unexplained possession by

defense counsel. The note was emphasized by the prosecution during the State’s

case-in-chief. Because the State’s theory behind the note was that it was part of an

investigation into jail smuggling operations, the jury was left with the impression that

Appellant’s character was that of a criminal. The note made an impression on the jury

significant enough that, during deliberations, the jury sent a note to the trial judge asking




                                              9
“[w]hat was the response given by Pat to Rebecca from [Appellant].”5 The jury’s interest

in the note and the State’s explanation for the note informed the jury that Appellant was

in jail and was under suspicion of illegal activities while in jail. Without the constitutional

protection of his right to counsel, Appellant was subjected to incriminating himself.


       Furthermore, a violation of an accused’s Sixth Amendment right to counsel under

the guise of the State’s investigation of a separate offense “invites abuse by law

enforcement personnel . . . and risks the evisceration of the Sixth Amendment right

recognized in Massiah.”        Rubalcado, 424 S.W.3d at 569.           Given the totality of the

circumstances surrounding this case, we cannot say beyond a reasonable doubt that

the violation of Appellant’s right to counsel just days before his trial did not contribute to

his conviction. Accordingly, we conclude the State’s violation of Appellant’s right to

counsel amounted to reversible error. Issues four and five are sustained.


                       ISSUES ONE, TWO & THREE—LEGAL SUFFICIENCY


       Although we find issues four and five dispositive of this appeal, we nevertheless

consider Appellant’s sufficiency claims because, if successful, such claims would result

in greater relief through a judgment of acquittal. Green v. State 434 S.W.3d 734, 739

(Tex. App.—San Antonio 2014, pet. granted Sept. 17, 2014). While trial error alone

would not bar the State from retrying the case, a finding of legal insufficiency on appeal

would interpose a jeopardy bar to retrial. Benavidez v. State, 323 S.W.3d 179, 182

(Tex. Crim. App. 2010).




       5
           The judge replied, “[t]he Court cannot answer your . . . question.   Please continue your
deliberations.”
                                                 10
       By his first three points, Appellant challenges the sufficiency of the evidence to

support his conviction.    Specifically, he maintains the finding of guilt is based on

circumstantial evidence impermissibly based on inference upon inference and the victim

did not identify any property recovered as stolen from his residence. We disagree.


                            SUFFICIENCY STANDARD OF REVIEW


       The only standard that a reviewing court should apply in determining whether the

evidence is sufficient to support each element of a criminal offense the State is required

to prove beyond a reasonable doubt is the standard set forth in Jackson v. Virginia, 443

U.S. 307, 33 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). See Brooks v. State, 323 S.W.3d

893, 912 (Tex. Crim. App. 2010). Under that standard, in assessing the sufficiency of

the evidence to support a criminal conviction, this court considers all the evidence in the

light most favorable to the verdict and determines whether, based on that evidence and

reasonable inferences to be drawn therefrom, a rational trier of fact could have found

the essential elements of the crime beyond a reasonable doubt. See Jackson, 443 U.S.

at 319; Brooks, 323 S.W.3d at 912. We measure the legal sufficiency of the evidence

by the elements of the offense as defined by a hypothetically correct jury charge. Malik

v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). In our review, we must evaluate

all of the evidence in the record, both direct and circumstantial, whether admissible or

inadmissible.   Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999), cert.

denied, 529 U.S. 1131, 120 S. Ct. 2008, 146 L. Ed. 2d 958 (2000).


       The State was required to show that Appellant, with intent to commit theft,

entered a habitation without the effective consent of the homeowner. TEX. PENAL CODE

ANN. § 30.02(a) (West 2011). “Enter” means to intrude any part of the body or any

                                            11
physical object connected with the body. Id. at (b). “Entry” is established when the

plane of the opening of a house is broken and may be accomplished by placing a foot

inside a door frame, by cutting window or door screens, or by breaking door lock or

frame. Martinez v. State, 304 S.W.3d 642, 660 (Tex. App.—Amarillo 2010, pet. ref’d).

The entry element of a burglary offense may be proven by inferences, just as inferences

may be used to prove the elements of any other offense. Lopez v. State, 884 S.W.2d

918, 921 (Tex. App.—Austin 1994, pet. ref’d).


                                              ANALYSIS


        Notwithstanding Appellant’s assertion that inference upon inference was

impermissibly used to convict him, there is direct evidence from which a reasonable

juror could infer someone entered the Kiewiets’ house, without their consent, and

removed Richard’s tool box and tools from the premises.                      Appellant admitted to

Rebecca that he had been by the Kiewiets’ house. Richard testified a window at the

back of the house had been broken to gain entry, and both he and Brenda testified that

Appellant did not have their consent to enter the house. Appellant told Sergeant Hayes

he had borrowed Wesley’s pickup to move, and upon consenting to a search, he fled.

The pickup contained Richard’s stolen tool box and tools co-mingled with Appellant’s

belongings.6     Instead of providing a reasonable explanation for possessing recently

stolen property,7 Appellant fled from Sergeant Hayes after misrepresenting that he was


        6
         Richard described the stolen red and black tool box, Craftsman saws and drills, and an Ideal
bag containing a multimeter as some of the items stolen from his house. Brenda testified she observed
what looked like Richard’s tool box in the green pickup. See Luckett v. State, 586 S.W.2d 524, 526 (Tex.
Crim. App. 1979) (identification of stolen property necessary when the only proof of burglary is
possession of stolen property).
        7
         Where there is independent evidence of a burglary, the unexplained possession of recently
stolen goods may constitute sufficient evidence of guilt to support a conviction. Buchanan v. State, 780
S.W.2d 467, 469 (Tex. Crim. App. 1989).
                                                  12
going inside the house to continue moving.8 The jury was the exclusive judge of the

facts, the credibility of the witnesses, and the weight to be given all testimony. Brooks,

323 S.W.3d at 899. Because this Court must resolve evidentiary inconsistencies in

favor of the judgment, id., viewing the evidence in a light most favorable to the verdict

and drawing all reasonable inferences therefrom, we conclude Appellant’s challenge to

the sufficiency of the evidence fails. Issues one, two, and three are overruled.


                                            CONCLUSION


       Having found that Appellant’s due process rights and Sixth Amendment right to

counsel were violated, we reverse the trial court’s judgment and remand this cause for

further proceedings.




                                                        Patrick A. Pirtle
                                                         Justice


Do not publish.




       8
           Flight is admissible as a circumstance from which an inference of guilt may be drawn. Clayton
v. State, 235 S.W.3d 772, 780 (Tex. Crim. App. 2007).
                                                  13
