IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-0147-25
MADISON McDONALD, Appellant
v.
THE STATE OF TEXAS
ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
FROM THE FIFTH COURT OF APPEALS
DALLAS COUNTY
PARKER, J., filed a concurring opinion in which YEARY, J., joined.
CONCURRING OPINION
No one disputes that Appellant killed her daughters. The only issue at the
guilt stage of trial was whether she was insane at the time. Although Appellant
presented expert testimony on the issue of insanity—based in part on interviews
with her—she claimed on appeal that her rights were violated when the State
presented rebuttal expert testimony that was also based on interviews with her.
McDONALD CONCURRENCE— 2
The court of appeals ultimately held that her claims were not preserved and that
any error was harmless under the standard for non-constitutional errors. Now,
Appellant contends that the court of appeals misunderstood the nature of her
claims—that they were constitutional claims involving the admission of evidence—
and that error was both preserved and harmful. But it is Appellant who
misunderstands the nature of the error here—she waived any Fifth-Amendment
claim by presenting her expert testimony on insanity, and what remains is a failure
to follow statutory procedure involving the appointment of a disinterested expert.
As the Court’s Rule 44.2(b) discussion shows, that statutory error was harmless.1
The Court holds that Appellant’s Fifth-Amendment claim lacks merit
because no statements from Appellant were introduced. While I do not necessarily
disagree with that conclusion, we need not reach out to decide that issue when the
court of appeals correctly held that Appellant had waived her Fifth-Amendment
claim. As a result of that holding, there is no Fifth-Amendment error analysis left
for the court of appeals to conduct and the constitutional harm standard does not
apply to this case. It doesn’t matter how diligent Appellant was in raising her
Fifth-Amendment claim; she waived it when she introduced her own expert
1
I disagree with any suggestion that Appellant’s statutory claim was preserved, but the Court’s finding of harmlessness moots that disagreement.
McDONALD CONCURRENCE— 3
testimony.
I. BACKGROUND
A. The Murders
On April 5, 2021, Appellant intentionally killed her daughters by smothering
them. Afterwards, she walked into an Irving police station and called 911 from the
lobby. She told the 911 operator that she wanted to report “child pornography and
murder.” When asked who was murdered, she said, “My children.” When asked
when they were murdered, she said, “Today.” When asked who murdered them,
she responded, “I sedated them and smothered them to protect them.”
A few minutes into the call, officers made contact in the lobby, where
Appellant told them that her children were being sexually abused by her
ex-husband and that she had filed reports but nothing had been done. She said that
she would do anything to protect her children, including eliminating them and
paying the price for the rest of her life. Officers found the children’s bodies in her
apartment.
The morning after Appellant turned herself in, Irving Police Detective Adam
Mayorga and another detective interviewed her. Detective Mayorga read the
McDONALD CONCURRENCE— 4
warnings prescribed by Article 38.222 (also satisfying the requirements of
Miranda3). After reading each warning, he stopped and asked if Appellant
understood it, and she said she did. After that, he interviewed her on why she killed
her children. During this discussion, Appellant made a number of statements that
indicated her awareness that what she did was morally wrong and against the law:
1. (3:11-3:33) Shortly after being read her Miranda rights and in
response to being asked why she was arrested, she responded, “I felt
like I did what I had to do to protect my kids and it was not what I
wanted to do. I don’t – I’m not okay with it. I don’t think that it’s
right. I think I do deserve to be arrested and serve time.”
2. (5:14-5:17) “And you know, after I hurt them – it’s hard to say that
I killed them – I know I did.”
3. (5:24-5:33) “After I hurt them, I wanted to just hurt myself, but I
thought I’ve gotta have one last chance. I’ve gotta go talk to someone
and I’ve got to admit to what I did too to make it right.”
4. (5:35-5:51) “Because I do understand morals and values and ethics
and respecting, and I mean I get right from wrong, but it’s been eating
me alive so I don’t know if that made any sense.”
5. (28:59-29:03) After asked how she felt after her children were gone,
she said,“You know what I mean, like I knew I would spend the rest
of my life in prison.”
6. (35:06-35:14) When pressed about proof of her claims that her
2
TEX. CODE CRIM. PROC. art. 38.22, § 2(a).
3
Miranda v. Arizona, 384 U.S. 436 (1966).
McDONALD CONCURRENCE— 5
ex-husband was using her children in child pornography, she said,
“Okay, well, I’m gonna preface with this, first off, this is now a mental
health crisis because I have murdered my children, okay?”
7. (44:26-44:31) “I was in a hurry, was trying to get to here so I could
turn myself in.”
8. (53:57-54:05)When asked if she felt like she was bipolar or had
mental episodes, she responded, “Some days I feel like I just have
depression and that life is getting me and then some days like today I
feel like something’s wrong. But I also did just kill my children.”
9. (57:16-57:35)“So you’re gonna have to bear with me because this is
the most overwhelming thing I’ve felt or will ever feel and I feel like
I’m gonna live the rest of my life knowing that everyone’s gonna be
labeling me as a murderer and that’s hard. Capital murderer at that.”
10. (1:10:36-1:10:47)“I’m - this is - this has killed me – it’s taken my
soul. And I just think now it’s time for me to serve my time.”
11. (1:15:20-1:15:28) “Well, I meant that as like I’m not - I don’t
believe I was in a form of psychosis or anything when I did it because
I’m aware that it was wrong.”
12. (1:18:06-1:18:28) “I don’t think um ... I don’t think ... marrying
someone who’s a ... who’s a predator and abuser and finding out and
finding out that there’s a connection to your family for some reason
and reporting them and them harassing you until you end up
committing capital murder – I don’t think that’s hard to understand
from a psychological point at all.”
13. (1:19:12-1:19:17) In response to Detective Mayorga asking if she
had any more questions, she asked, “I’m assuming capital murder is a
life sentence?”
B. Competency Examinations and Evaluations
McDONALD CONCURRENCE— 6
On July 1, 2021, Dr. Lisa Clayton, an expert hired by the defense,
interviewed Appellant and concluded that she was incompetent to stand trial. On
July 30, Appellant’s attorneys filed a suggestion with the trial court that Appellant
was incompetent to stand trial.
The State hired Dr. Kristi Compton to conduct a competency evaluation. A
series of back and forth emails between June and August addressed Dr. Compton
being hired by the State and needing a retention letter from the State to have access
to Appellant at the jail. The District Attorney’s Office ultimately issued a letter to
that effect. On August 10, Dr. Compton interviewed Appellant. This interview
included questions to Appellant about the offense and her mental state at the time.
From this interview, Dr. Compton produced a report concluding that
Appellant was competent to stand trial. The first page of the report says, “The
State requested an evaluation to assess Ms. McDonald’s competency to stand trial
and/or if Ms. McDonald is a person with mental illness.”4 In addition to various
other matters, the report included a discussion of what Appellant thought and did
in the days leading up to the day the children were killed. Regarding the day of the
children’s deaths, the report said the following:
4
Emphasis added.
McDONALD CONCURRENCE— 7
She [Appellant] described in detail her actions, mental state at the
time of the offenses, and her beliefs of what would transpire after
going to the police. She reports going to a different Irving PD station
than when she has made prior complaints because she thought that
officers at a different station may listen to her.
Her description of her mental state will not be detailed in this report as it is
competency exam but will be if an insanity evaluation is requested.5
The report included a statement regarding the admissibility of its contents:
A statement made by a defendant during an examination or trial on
Ms. McDonald’s incompetency, the testimony of an expert based on
that statement, and evidence obtained as a result of that statement
may not be admitted in evidence against Ms. McDonald in any
criminal proceeding, other than at:(1) a trial on Ms. McDonald's
incompetency; or 2) any proceeding at which Ms. McDonald first
introduces into evidence a statement, testimony, or evidence
described by this article).6
Dr. Compton’s report was sent to the prosecutors and defense counsel.
On February 27, 2022, Dr. Clayton issued a report concluding that
Appellant had “regained her mental competency.” This report said that Dr.
Clayton had re-evaluated Appellant on December 2nd, 9th, and 30th of 2021, and
on January 27, 2022.
C. Insanity Examinations and Evaluations
5
Italics in original.
6
See TEX. CODE CRIM. PROC. art. 46B.007.
McDONALD CONCURRENCE— 8
On March 17, 2022, a pass slip indicated that the parties agreed to a
continuance to March 31, 2022, “pending insanity evaluation results.”7
On April 1, 2022, Dr. Clayton sent the defense a report concluding that
Appellant was insane at the time of the offenses. This report said its conclusion
was based on the December 2021 and January 2022 interviews—the same ones
from which Dr. Clayton said she derived her conclusion of competency. The
report noted that Dr. Clayton concluded that Appellant was competent 20 minutes
into the December 2nd interview and that the expert thereafter began to evaluate
Appellant’s mental state at the time of the offense.
On June 2, after receiving a copy of a videotaped police interview of
Appellant, Dr. Clayton interviewed Appellant again. On June 10, the expert sent
the defense a supplemental report saying her opinion as to insanity remained
unchanged.
On June 14, 2022, the defense filed a “notice of insanity defense.” On June
22, the State requested the appointment of Dr. Compton as a “disinterested”
expert to evaluate Appellant on the issue of insanity. The trial court granted the
State’s request.
7
Capitalization at beginning of each word converted to lowercase.
McDONALD CONCURRENCE— 9
On July 27, 2022, Dr. Compton sent an email to the District Attorney’s
office saying that Appellant would not meet the standard for insanity. The expert
based her conclusion on ten statements Appellant made during a police interview.
The expert referred to the fact that she had conducted an inquiry into Appellant’s
mental state at the time of the offense during the competency exam but did not
include it in the report. Dr. Compton said that she still needed to see Appellant
“to clarify a few things,” but that her opinion would not change, as Appellant’s
“statements during the police interview clearly show she knew that murdering her
children was wrong.”
On August 3, 2022, Dr. Compton interviewed Appellant for the second
time, this time for the express purpose of determining insanity. She issued a report
concluding that Appellant was sane at the time of the offenses. For the “date of
service,” the report listed both of the expert’s interviews with Appellant—i.e., her
competency and insanity interviews. Under a “referral” heading, the report said,
“The State requested an insanity evaluation.” Among the items reviewed for the
insanity evaluation, the report included the 911 call, the police interview with
Appellant, and Dr. Clayton’s insanity evaluation. In concluding that Appellant
was sane at the time of the offense, Dr. Compton relied heavily on the police
McDONALD CONCURRENCE— 10
interview with Appellant and cited thirteen statements she made during that
interview, detailed in Part I.A. of this opinion, that showed she understood her
conduct of killing her children was wrong.
D. Email on Dr. Compton’s Employment Status
On March 19, 2023, the State included Dr. Compton on its witness list. On
April 5, 2023, one of the prosecutors sent an email to Dr. Compton and to the
defense attorneys discussing a defense contention that Dr. Compton was not
appointed but was hired by the State to perform the evaluations in the case. The
prosecutor maintained that Dr. Compton had indeed been hired by the State to
perform her competency evaluation of Appellant but had not been hired to perform
her insanity evaluation.
E. Voir Dire
Voir dire occurred on April 11, 2023. During voir dire, a venireperson asked
if the State can keep “looking at experts until they find one that says what they
want?” Defense counsel answered affirmatively, and a prosecutor objected. After
an off-the-record discussion, defense counsel said:
All right, everybody. I wanna clarify something that I just said. The
law says that the Court has to pick the other expert. Right? We pick
our own expert on our side, and then the Court meaning the judge,
has to pick an expert, okay? That’s the law.
McDONALD CONCURRENCE— 11
F. Suppression Hearing at Trial
1. Parties’ Initial Arguments
On April 15, the defense filed a motion to suppress Dr. Compton’s
testimony. That motion does not appear to be in the record, but was referred to by
the trial judge two days later. On April 17, during the defendant’s case-in-chief at
the guilt stage of trial, the trial judge held a hearing on the suppression motion.
There was a great deal of back-and-forth discussion between defense counsel, the
prosecutors, and the trial court, but the next four paragraphs summarize the
essential points made.
Defense counsel made two complaints: (1) that Dr. Compton committed a
“Fifth Amendment violation” by soliciting information about the offense from
Appellant during the competency hearing, and (2) that Dr. Compton was not in
fact a “disinterested” expert, under Code of Criminal Procedure Article 46C.101,
when she was appointed by the trial court as such for the purpose of conducting an
insanity evaluation.
The defense took the position that Dr. Compton conducted a competency
and an insanity evaluation at the time of her competency interview and that
questions during that interview about the offense were insanity-related questions
McDONALD CONCURRENCE— 12
that occurred after her competency evaluation. The State took the position that
Dr. Compton conducted only a competency evaluation and that questions about
the offense were relevant to that evaluation. The State also pointed out that the
expert omitted the answers to the questions about the offense from her
competency report, and thus, claimed there was “no disclosure of any Fifth
Amendment information in the competency report.” Defense counsel contended
that the expert not disclosing the offense statements in the competency interview
“doesn’t make it any better” and that the expert still “violated [Appellant’s] Fifth
Amendment rights, right there in that moment.”
The State also contended that, once Appellant put insanity in issue, it had
the right to have its own expert interview Appellant under Lagrone.8 The defense
contended that a State’s expert had no right to do so until after a disinterested
expert conducted an interview under Article 46C.101. The State contended that
procedures under that statute were optional. The defense contended that Dr.
Compton was appointed under that statute as a “disinterested” expert and that
designation was in fact “false.”
The parties seemed to agree on the following timeline: The lead prosecutor
8
Lagrone v. State, 942 S.W.2d 602 (Tex. Crim. App. 1997).
McDONALD CONCURRENCE— 13
originally assigned to the case told the defense that it was sending Dr. Compton to
conduct a competency evaluation, and the defense agreed to that.9 Shortly after
Dr. Compton conducted her competency interview, she sent her report to the
prosecutors and defense counsel.10 The current prosecutors were assigned to the
case sometime after Dr. Compton’s competency interview. They were under the
impression that Dr. Compton had been appointed as a neutral expert for
competency purposes when they asked the trial court to appoint her as a neutral
expert for an insanity evaluation. Defense counsel did not object to this
appointment at the time it was requested and made. But on March 31, 2023,
defense counsel “casually” referred to Dr. Compton as the “State’s expert.” The
prosecutors began an investigation and later uncovered the emails that showed that
Dr. Compton had been hired by the State to conduct the competency examination.
On April 5, these emails were disclosed to defense counsel.
2. Dr. Compton’s Testimony
At the suppression hearing, Dr. Compton testified that she had been
retained by the Dallas County District Attorney’s Office for the purpose of
9
Defense counsel said, “So we spoke with the previous prosecutor who was Yael – and just said, “Hey, we’re sending – or that Dr. Compton is going to go do a competency evaluation. We said fine, okay?”
10
Defense counsel admitted to receiving the report “soon after.”
McDONALD CONCURRENCE— 14
conducting an insanity evaluation of Appellant before Appellant was indicted. She
confirmed emails passed between her and the State, after Appellant’s indictment,
about conducting a competency interview and obtaining a retention letter.
Before conducting the interview, Dr. Compton said Appellant’s responses
“cannot be used against him [sic] per statute.” When asked whether “that’s in
accordance with the competency statute that outlines what the admonishments
are,” she responded affirmatively. She also said that Appellant consented to the
competency evaluation after receiving those admonishments.
When asked whether she asked during the competency interview about
Appellant’s mental state during the offense, Dr. Compton said she did, because “I
always ask that in a competency exam.” Dr. Compton also affirmed that “of
course” she asked specific questions about Appellant’s commission of the offense.
The expert testified that she always asked such questions “to ensure that they can
assist in their defense.” She wanted to ensure that the person could “fully
describe without intrusion from any mental illness, their thoughts, motives,
behaviors at the time of the offense.” Dr. Compton acknowledged that the
answers to the offense-specific questions were part of the basis for her later opinion
that Appellant was sane at the time of the offense. However, the expert said that,
McDONALD CONCURRENCE— 15
while she noted that she asked Appellant questions about the offense in the report,
she did not include the answers to those questions “because that’s a violation of
the Fifth Amendment rights.” She also testified that she did not form a definitive
opinion about Appellant’s sanity at the time.
She further testified that on April 4, 2022, the District Attorney’s office
emailed her to say that Dr. Clayton had evaluated Appellant and would be making a
finding that she was insane at the time of the offenses. Although the trial court
appointed her to conduct an insanity evaluation, her understanding was that she
was hired as the State’s expert. Dr. Compton began making an evaluation of
insanity in early to middle July, after she “got all the discovery and really started to
have the ability to see everything that was included in the case.” A key item was
Appellant’s interview with Detective Mayorga, which the expert had not possessed
at the time she conducted her competency evaluation. Dr. Compton relied heavily
on that interview in her July 27th email to the District Attorney’s Office that
concluded that she would find Appellant to be sane at the time of the offenses. She
acknowledged that her opinion on Appellant’s insanity “was cemented in place”
before she conducted the insanity interview. Nevertheless, she conducted the
insanity interview to give Appellant the “benefit of the doubt.”
McDONALD CONCURRENCE— 16
Dr. Compton also testified that, regardless of who hired her, her approach to
conducting a mental evaluation was “absolutely the same.” When asked whether
she had formed an opinion on whether she thought Appellant would meet the
criteria for insanity, she responded, “I was 95 percent certain that she would meet
criteria for insanity after the initial competency evaluation.” However, after she
received additional discovery in the case, her opinion changed. Dr. Compton also
said that the District Attorney’s office paid for her competency evaluation but that
the court would be paying for her insanity evaluation.
3. Dr. Clayton’s Testimony
When asked whether it was “necessary to ask a person, during a competency
evaluation, about the specific facts of the offense and their commission of the
offense,” Dr. Clayton answered, “In my forensic training, we were trained not to
because that would be a violation of the person’s Fifth Amendment rights.” Dr.
Clayton further testified that she never did that and that it was not necessary to ask
such questions to form an opinion as to competency. She also testified that it was
not accepted practice in forensic psychiatry. When asked if she asked such
questions during her initial competency interview with Appellant, Dr. Clayton said
she did not. When asked if she asked such questions during her second interview,
McDONALD CONCURRENCE— 17
Dr. Clayton said that she determined after the first 30 minutes that Appellant was
competent and then, after telling Appellant she would do so, proceeded to evaluate
insanity.
4. Discussion After Testimony
The trial court pointed out that defense counsel knew about any issues with
Dr. Compton’s testimony on April 5—before trial—but waited ten days later, as
testimony was winding down at trial, to raise the issue. The trial court suggested
that defense counsel had engaged in “sandbagging.” Defense counsel suggested
that the State withheld the information for two years and that the defense could not
be faulted for not coming up with an argument within five days of trial. The
defense also said that it was not asking the trial court to reset the case; it was asking
the trial court to disqualify Dr. Compton.
The State said it had the right to an expert and the trial court could remedy
any problem with the appointment by rescinding it and making Dr. Compton the
State’s expert, to be paid by the District Attorney’s Office. The trial court asked
more questions about what remedy the defense sought. The defense maintained
that the remedy was to exclude Dr. Compton’s testimony but still allow the
defense to present Dr. Clayton’s testimony. With that clarification, the trial court
McDONALD CONCURRENCE— 18
denied the defense’s motion.
G. Testimony on Insanity
Dr. Clayton testified for the defense on the issue of insanity. Her testimony
was long and involved, but to cut to the chase, she testified that, in her opinion,
Appellant was insane when she killed her children. During her testimony on direct
examination, she discussed Dr. Compton’s competency report. One of the
questions asked by the State on cross-examination was, “You’re aware that, as far
as the legal standard goes by which you’re doing these insanity evaluations,
wrongfulness means legally wrong?” Dr. Clayton answered, “Yes.” After Dr.
Clayton finished testifying, the defense rested.
The State called Dr. Compton as a rebuttal witness. She testified that she
had been retained by the State to conduct a competency evaluation. The State
asked her whether she had later been “appointed by the Court to conduct an
insanity evaluation.” Without any objection from the defense, she answered, “I
was.”
Among other things, she also testified that Appellant had a mental disorder:
schizoaffective disorder, bipolar type. And she testified that psychotic symptoms
were a feature of that disorder. But she also testified that someone can be
McDONALD CONCURRENCE— 19
psychotic and still know that the conduct at issue was legally wrong. And she
testified that the issue of insanity was “[l]egal right from wrong. Not if something
was moral. Not if you didn’t have volitional control. It’s really the standard of
right or wrong, legally.” Immediately after this explanation, the prosecutor asked,
“What were your opinions and conclusions as to whether or not the Defendant in
this case was insane at the time of the offenses—the offense on trial today?” Dr.
Compton responded that Appellant was sane at the time:
My opinion was that she was mentally ill, and I believe that the mental
ill -- illness undergirded the offense. I don’t think there’s any doubt
about that. But it does not render her to the point that she did not
understand that her conduct was wrong or illegal, and therefore, my
opinion was she did not meet the criteria for not guilty by reason of
insanity.
When asked for the basis for her conclusion, Dr. Compton articulated two
things: (1) Appellant turned herself in, and (2) in Mayorga’s interview with her,
Appellant made multiple statements that “she knew that she would spend the rest
of her life in prison, or she was going to be arrested, etc.” For this second basis,
Dr. Compton referred to the thirteen statements to law enforcement listed earlier
in this opinion.
H. Appeal
The court of appeals held that Appellant’s complaints about Dr. Compton
McDONALD CONCURRENCE— 20
were untimely because she was aware of the basis for those complaints, at the
latest, on April 5, 2023, but did not raise the complaints until April 15, 2023, which
was well into trial.11 The appellate court further held that, even if Appellant had
timely complained at trial, her complaints on appeal did not comport with her trial
complaints.12 The court of appeals concluded that her trial and appellate
complaints differed because her trial complaints were about whether Dr. Compton
should have been appointed for the insanity evaluation while her appellate
complaints addressed whether the expert’s testimony should be excluded as
illegally obtained pursuant to Article 38.23.13
Citing Rule 44.2(b), containing the harm standard for non-constitutional
errors, the court of appeals held that, even if her complaints had been preserved,
appellant had not been harmed for two reasons.14 First, the court held that she
waived her Fifth Amendment rights when she presented expert testimony on
insanity, and consequently, even if Dr. Compton should have been designated a
11
McDonald v. State, — S.W.3d —, No. 05-23-00419-CR, 2024 WL 4784421, *12 (Tex. App.—Dallas November 14, 2024).
12
Id.
13
Id. (citing TEX. CODE CRIM. PROC. art. 38.23).
14
Id. at *13 (citing Tex. R. App. P. 44.2(b)).
McDONALD CONCURRENCE— 21
State’s expert rather than a disinterested expert, the State was nevertheless
entitled to present testimony from a rebuttal witness.15 Second, the court held that
“the evidence concerning appellant’s awareness of the wrongfulness of her actions
at the time of the offense was overwhelming, the most compelling of which were
the statements she made to the 9-1-1 operator and to the police immediately after
the murders.”16
II. ANALYSIS
A. Sixth Amendment
For the first time, in her brief on discretionary review, Appellant suggests in
passing that Dr. Compton violated Appellant’s Sixth Amendment right to
counsel.17 She presents this complaint entirely too late. In complaining about Dr.
Compton, her trial attorneys never mentioned the Sixth Amendment or the right to
counsel. The sole bases for the defense challenge to Dr. Compton’s testimony was
15
Id.
16
Id.
17
See Appellant’s brief at 48 (citing Estelle v. Smith, 451 U.S. 454, 469-471 (1981), for its holding on an expert’s examination violating a defendant’s Sixth Amendment right to counsel) (also saying, “McDonald never had the opportunity to discuss with her trial attorneys the fact that Compton would be asking her questions that go to the insanity defense. Compton greatly exceeded the scope of the competency examination without defense counsel knowing.”), 51 (“The State may present rebuttal expert testimony. However, in doing so, the State cannot ignore the Fifth, Sixth, and Fourteenth Amendments.”).
McDONALD CONCURRENCE— 22
the Fifth Amendment right against self-incrimination and the statute regarding the
appointment of a disinterested expert to conduct an insanity evaluation. Although
the right to counsel is a waivable-only right in some circumstances, a complaint
that evidence is inadmissible because it was obtained in violation of the right to
counsel is forfeitable error that must be preserved by an objection.18
Moreover, Appellant did not raise a Sixth-Amendment claim on appeal, and
the court of appeals did not purport to address such a claim. As this Court has said
on numerous occasions, this Court ordinarily “reviews only ‘decisions’ of the
courts of appeals.”19 And while there are exceptions to that principle, none apply
here.20 Moreover, Appellant made no mention of the Sixth Amendment or the
right to counsel in her petition for discretionary review. So, we did not grant
18
Darcy v. State, 488 S.W.3d 325, 329-30 (Tex. Crim. App. 2016) (“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
Osorio-Lopez v. State, 663 S.W.3d 750, 757 (Tex. Crim. App. 2022). See also Gilley v. State, 418 S.W.3d 114, 119 (Tex. Crim. App. 2014).
20
The oft-cited exception is if the resolution of an issue that was decided by the court of appeals creates a “remaining issue” and the proper resolution of that remaining issue is clear. Osorio-Lopez, supra. Another possible exception would be a systemic issue such as a lack of jurisdiction.
Of course, even if the court of appeals had raised the claim on its own, doing so would have been improper because the claim was not preserved at trial. Sanchez v. State, 209 S.W.3d 117, 121 (Tex. Crim. App. 2006) (“But errors that are subject to procedural default may not be remedied by the appellate court as unassigned error unless the error was in fact preserved in the trial court.”).
McDONALD CONCURRENCE— 23
review of that question, and it is not before us. Thus, for multiple reasons,
Appellant’s Sixth Amendment claim has been procedurally defaulted.
B. No Completed Fifth Amendment Violation
Appellant claims that “during both examinations on August 10, 2021 and
August 3, 2022, Compton illegally obtained information used in reaching her
conclusions about McDonald’s sanity.” Thus, Appellant contends that Dr.
Compton’s testimony was “the product of illegally obtained evidence.”
Appellant’s contention is incorrect.
As Appellant acknowledges, her Fifth Amendment claim derives from Estelle
v. Smith—barring the admission of statements obtained from a State’s expert in a
competency hearing for purposes other than competency when the defendant was
not warned beforehand that the statements could be used for such other purposes.21
This type of claim is ultimately based on the prophylactic rule articulated in
Miranda v. Arizona,22 conditioning, with exceptions, the admissibility of a custodial
statement by a defendant on the prior giving of warnings regarding the right to
21
See Estelle, 451 U.S. at 461-69.
22
384 U.S. at 467.
McDONALD CONCURRENCE— 24
remain silent and the right to counsel.23
As the Court explains, even if we were to conclude that Dr. Compton’s
questioning during the competency interview ran afoul of Miranda, this Court has
held that a failure to give Miranda warnings during a custodial interrogation does
not by itself give rise to a Fifth Amendment violation, with a violation occurring, if
it does, only upon the admission of the evidence in court:
In Baker, we indicated that the latter was the case: “[Q]uestioning in
violation of Miranda is not itself illegal . . . . [T]he Miranda
requirements embody an exclusionary rule or remedy rather than a
substantive right or entitlement.”
This distinction may be illustrated by contrasting Fourth Amendment
search and seizure protections with Miranda protections. If a
violation of the Fourth Amendment occurs because a search is
conducted without probable cause, the search itself is the
constitutional violation, regardless of whether any evidence obtained
in the search is admitted in a judicial proceeding. A civil rights lawsuit
could, in fact, be founded solely upon the unconstitutional search,
even if no evidence were discovered. In contrast, Baker suggests that
police officers do not commit a constitutional violation simply by
failing to give Miranda warnings during a custodial interrogation. A
constitutional violation is established only if the evidence obtained is
23
See Estelle, 451 U.S. at 466-67, 469 (discussing Miranda and basing its holding thereon); see also White v. Woodall, 572 U.S. 415, 424 n.4 (2014) (“Rather, it [Estelle] held that the defendant’s Fifth Amendment ‘rights were abridged by the State’s introduction of’ a pretrial psychiatric evaluation that was administered without the preliminary warning required by Miranda v. Arizona.”) (bracketed material added for clarity).
McDONALD CONCURRENCE— 25
later admitted in a judicial proceeding.24
We have further explained that because evidence obtained by an interrogator in
violation of Miranda is not “illegally obtained,” the Texas exclusionary rule found
in Article 38.23 cannot be used to enforce Miranda claims.25 The proper vehicle
for enforcing a Miranda claim is Miranda itself or Article 38.22.26
How Miranda is enforced matters because Article 38.23, with its “illegally
obtained” rubric, results in broader suppression consequences than the Miranda
caselaw or Article 38.22. For example, under Miranda and Article 38.22, physical
fruits of a statement cannot be suppressed, and there is an “impeachment”
exception for the statements themselves.27 Thus, we have tacitly recognized that
Article 38.23, which admits of neither of these exceptions, is a blunter instrument
than the more finely-tuned Miranda doctrine.
24
Contreras v. State, 312 S.W.3d 566, 580-81 (Tex. Crim. App. 2010) (discussing and quoting from Baker v. State, 956 S.W.2d 19, 24 (Tex. Crim. App. 1997)).
25
Id. at 582 (“Since the failure of police officers to honor the invocation of rights under Miranda is not itself a violation of the United States Constitution, it cannot be a basis for invoking article 38.23.”) (referring to TEX. CODE CRIM. PROC. art. 38.23).
26
Id. at 583 (referring to TEX. CODE CRIM. PROC. art. 38.22).
27
Id. at 582 & nn.58, 59 (citing Harris v. New York, 401 U.S. 222 (1971) (impeachment) and Michigan v. Tucker, 417 U.S. 433 (1974) (physical fruits)); Art. 38.22, passim (no provision for excluding physical evidence) and § 5 (“Nothing in this article precludes the admission . . . of a voluntary statement, whether or not the result of custodial interrogation, that has a bearing upon the credibility of the accused as a witness”).
McDONALD CONCURRENCE— 26
Our view of Miranda has been vindicated by the subsequent Supreme Court
decision in Vega v. Tekoh, which held that the Miranda rule was “prophylactic”
and the failure to comply with it during interrogation was not itself a violation of
the Fifth Amendment:
In this case, the Ninth Circuit held—and Tekoh now argues, that a
violation of Miranda constitutes a violation of the Fifth Amendment
right against compelled self-incrimination, but that is wrong.
Miranda itself and our subsequent cases make clear that Miranda
imposed a set of prophylactic rules. Those rules, to be sure, are
“constitutionally based,” but they are prophylactic rules nonetheless.
***
At no point in the opinion did the Court state that a violation of its
new rules constituted a violation of the Fifth Amendment right
against compelled self-incrimination. Instead, it claimed only that
those rules were needed to safeguard that right during custodial
interrogation.28
And in emphasizing the “prophylactic” nature of Miranda protections, the
Supreme Court expressly pointed to the caselaw as creating a nuanced balancing
scheme, mentioning both the physical-fruits exclusion and the impeachment
exception.29
Appellant wants the blunter instrument provided by Article 38.23 and a
28
597 U.S. 134, 142 (2022).
29
Id. at 144-45 (discussing Harris and Tucker).
McDONALD CONCURRENCE— 27
determination that evidence is “illegally obtained.” She wants us to believe that
the status of the evidence as inadmissible was irrevocably fixed when the first and
second interviews were conducted, so that she can claim that any later waiver of
her Fifth Amendment privilege doesn’t matter. But that is not how Miranda
works, and consequently, it is not how a Miranda-based Estelle claim works. As I
shall next address, Appellant signaled her waiver of any Fifth Amendment claim
before trial, and waived it through her own expert testimony at trial, which means
there was never a Fifth Amendment violation.
C. Fifth Amendment Protection Was Waived
“When a defendant presents evidence through a psychological expert who
has examined him, the government is likewise permitted to use the only effective
means of challenging that evidence: testimony from an expert who has examined
him.”30 In this situation, by essentially testifying through her own expert, the
defendant effectuates at least a limited “constructive waiver” of her Fifth
Amendment privilege.31 And in Lagrone this Court held that, once the defendant
makes known that she plans to introduce such expert testimony, she commits an
30
In re Medina, 475 S.W.3d 291, 302 (Tex. Crim. App. 2015).
31
Id.; Lagrone, 942 S.W.2d at 610 (“[A] defendant waives his Fifth Amendment rights to a limited extent by presenting psychiatric testimony on his behalf.”) (quoting Soria v. State, 933 S.W.2d 46, 53 (Tex. Crim. App. 1996)).
McDONALD CONCURRENCE— 28
anticipatory waiver that permits the State to have its own expert examine the
defendant.32 Of course, the defendant still has to “pull the trigger” on the actual
waiver, by presenting her expert testimony at trial, to open the door to State expert
testimony based on an examination of the defendant.33
Before Dr. Compton was appointed to examine Appellant for insanity,
Appellant had filed a notice of her intent to pursue an insanity defense and had
obtained an expert evaluation from Dr. Clayton, based on interviews with
Appellant, that Appellant was insane when she killed her children. By April 4,
2022, the State was aware of Dr. Clayton’s evaluation, and Dr. Compton had that
evaluation in hand when she conducted her own insanity evaluation. So, when Dr.
Compton interviewed Appellant for the insanity evaluation, it was already apparent
that the State was entitled to have its own expert examine Appellant in anticipation
32
Lagrone, supra at 611 (“After further consideration of the issue, however, we feel compelled to expand the scope of our rule in Soria to allow trial courts to order criminal defendants to submit to a state-sponsored psychiatric exam on future dangerousness when the defense introduces, or plans to introduce, its own future dangerousness expert testimony. Prohibiting the trial court from ordering a psychiatric exam until after the defense has actually presented his own expert testimony is bound to work against the State in almost every case. Indeed, we have already recognized that a trial court cannot actually force the defendant to cooperate with the State’s expert, and the sanction of limiting the testimony of further defense witnesses is virtually worthless since the defense has already had the benefit of their own expert's testimony.”).
33
See id. (“We are fully aware that the defendant has not actually waived his Fifth Amendment rights until he has actually presented expert testimony on the issue of future dangerousness at trial.”).
McDONALD CONCURRENCE— 29
of Appellant’s future presentation of Dr. Clayton’s testimony.
Appellant suggested at trial that the State had no right to have its own expert
evaluate Appellant for insanity until a “disinterested” expert did so pursuant to
statute. I agree with the State that the statute was optional. The appointment-of-adisinterested-expert statute provides:
(a) If notice of intention to raise the insanity defense is filed under
Article 46C.051, the court may, on its own motion or motion by the
defendant, the defendant’s counsel, or the attorney representing the
state, appoint one or more disinterested experts to:
(1) examine the defendant with regard to the insanity defense; and
(2) testify as to the issue of insanity at any trial or hearing involving
that issue.34
The word “may” in this statute appears to give the trial court authority to appoint
a disinterested expert, the discretion to do so, or both.35 However the language is
interpreted, it does not purport to preclude or limit the State from exercising its
constitutional authority to have its own expert examine a defendant when the
defendant has anticipatorily waived his right against self-incrimination in
34
TEX. CODE CRIM. PROC. art. 46C.101.
35
See In re State ex rel. Wice, 668 S.W.3d 662, 678 (Tex. Crim. App. 2923) (“may” permissive in context of the statute at issue); Stredic v. State, 663 S.W.3d 646, 654 (Tex. Crim. App. 2022) (“This use of ‘may’ here is not to confer discretion but to describe what is permitted.”).
McDONALD CONCURRENCE— 30
accordance with Lagrone.36
In any event, once Dr. Clayton testified, based upon her examination of
Appellant, that Appellant was insane, the State had the right to have its own expert
testify in rebuttal based on an examination of Appellant.37 And that right was
unaffected by any purported failure of Dr. Compton to comply with Miranda. As I
alluded to earlier, the Supreme Court recognizes an exception to Miranda that is
relevant here: impeachment.38 And in Estelle, the Supreme Court recognized that “a
different situation arises where a defendant intends to introduce psychiatric
evidence.”39
Appellant contends that there was impropriety in appointing Dr. Compton
as a “disinterested” expert and in Appellant learning only after the insanity
interview that Dr. Compton was in fact a state agent. This would appear to be an
36
Indeed, construing the statute to circumscribe the State’s authority in that respect would appear to violate the Separation of Powers provision of the Texas Constitution by infringing on the prerogative of the prosecutor. See Meshell v. State, 739 S.W.2d 246, 257 (Tex. Crim. App. 1987) (Separation of Powers provision protects prosecuting attorney’s power to control preparation for trial from legislative encroachment.). If the statute were ambiguous about whether it proscribed prosecutorial authority, we would need to construe it to avoid a constitutional violation. See State v. Cortez, 543 S.W.3d 198, 206 (Tex. Crim. App. 2018) (“We have a duty to narrowly construe statutes to avoid a constitutional violation.”).
37
See supra at nn.30, 31.
38
See supra at nn.27, 29.
39
451 U.S. at 472.
McDONALD CONCURRENCE— 31
argument that Dr. Compton’s status as a state agent was masked at the time she
conducted her insanity interview with Appellant. Appellant does not explain in
any clear way how this purported masking affected her right against selfincrimination, and any such masking would seem to cut against the notion that
Appellant was subjected to custodial interrogation.40 The closest analogue I see
involves an undercover informant deliberately eliciting statements in violation of
the right to counsel,41 the analogy is not entirely apt, and in any event, Appellant
procedurally defaulted any right-to-counsel argument.42
Even if “masking” were somehow a factor in assessing a Fifth Amendment
violation, I find Appellant’s contention to be utterly hollow. The designation of
Dr. Compton as a “disinterested” expert for the purpose of an insanity evaluation
could not retroactively affect any statements by Appellant in the earlier competency
interview. And as to the insanity interview, Appellant seems to be taking the
position that Dr. Compton’s opinion about Appellant was cemented even before
she ever conducted that interview. If that is true, then her designation as a
40
See Illinois v. Perkins, 496 U.S. 292, 299 (1990) (“Where the suspect does not know that he is speaking to a government agent there is no reason to assume the possibility that the suspect might feel coerced.”).
41
See Maine v. Moulton, 474 U.S. 159, 173, 176 (1985).
42
See supra at Part II.A.
McDONALD CONCURRENCE— 32
“disinterested” expert would have had no effect on her later opinion about
Appellant’s insanity. And in fact, Dr. Compton said that it was Appellant’s
admissions to the police that were crucial to her opinion as to sanity, and the expert
learned of those admissions after the competency interview and before the insanity
interview. So the admissions did not affect how she conducted the competency
interview, and they set her view of sanity before the insanity interview.
Moreover, Appellant knew that Dr. Compton was not a defense expert, so
she knew or should have known that her statements to Dr. Compton during the
insanity interview would not be covered by attorney-client privilege. And the
whole point of having an insanity interview and evaluation by a non-defense
expert—after asserting an intent to pursue an insanity defense—was that Appellant
was intending to waive her Fifth Amendment privilege by presenting expert
evidence of insanity.
Further, the defense had been aware that Dr. Compton had been procured
by the State for the purposes of a competency interview even before the competency
interview took place.43 And in her competency report, received by defense counsel
within days of its issuance, Dr. Compton said her services had been requested by
43
See supra at n.9.
McDONALD CONCURRENCE— 33
the State. So, nearly a year before Dr. Compton was appointed to conduct an
insanity evaluation, the defense already knew that she had been previously
affiliated with the State in this case. And the defense also knew that this Stateaffiliated expert had asked and received answers to questions about the offense and
Appellant’s mental state during it because she said so in her competency report and
even said that those answers were omitted from that report but would be
considered in any insanity evaluation. As such, I find disingenuous any claim that
Appellant was surprised that Dr. Compton was a state expert. And in fact, defense
counsel said she was a state expert to the surprise of the new prosecutors on the
case.
As I have explained earlier, a Miranda-based Estelle irregularity produces a
constitutional violation only when evidence is admitted at trial in violation of the
intricate rules created by Miranda and its progeny. Because Appellant had waived
her right against self-incrimination by that time, there was never a completed
constitutional violation. Thus, there was no “illegally obtained” evidence to
suppress because Appellant had waived her Fifth Amendment privilege. The court
of appeals correctly rejected Appellant’s Fifth Amendment claim on the basis of
waiver.
McDONALD CONCURRENCE— 34
Perhaps it could be said that the court of appeals’s analysis of Appellant’s
Fifth-Amendment claim was less than ideal because the claim was addressed in a
backhanded way—as part of a harm analysis of Appellant’s statutory
“disinterested expert” claim.44 It would have been better for the court of appeals
to have recognized that its holding on waiver resolved the preservation or merits of
Appellant’s Fifth-Amendment claim. If Appellant waived her Fifth-Amendment
right, then she did not preserve it, since waiver is inconsistent with preservation.
Also, since Appellant’s waiver of her Fifth-Amendment right meant that the
evidence was admissible, there was no error in admitting the evidence. And
because waiver occurred before any Fifth-Amendment violation, there never was a
Fifth-Amendment violation. Nevertheless, regardless of how the court of appeals
framed the issue, it concluded that Appellant waived her Fifth-Amendment right
by introducing the testimony of her expert on the issue of insanity, and that
conclusion fully disposes of her Fifth-Amendment claim. And as I have explained,
that conclusion is correct.
With these comments, I join the Court’s opinion on the non-constitutional
harm analysis and its discussion on the nature of Miranda and otherwise concur in
44
See supra at n.15.
McDONALD CONCURRENCE— 35
the Court’s judgment.
Filed: September 17, 2026
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