MCDONALD v. STATE (2025)

Reconsideration En Banc Denied.

DISSENTING OPINION FROM DENIAL OF EN BANC RECONSIDERATION

“We are deeply troubled with the process by which Dr. Compton came to conduct the insanity evaluation and the district attorney's office's handling of the matter.”

I share the panel's concern about the process by which the State's insanity evaluation was conducted and believe that process directly violated Madison McDonald's Fifth Amendment rights when Dr. Kristi Compton was chosen by the state to testify. The record indicates the trial court shared that concern. Where I part from the panel, and perhaps from the trial court, is in my belief McDonald's objection to the State's insanity expert was brought timely; my belief her objections were properly preserved and presented to this court; and, my belief that harm, both of a constitutional and an actual nature, was demonstrated. For these reasons, I respectfully dissent from the court's refusal to rehear this appeal en banc.

Nothing I write here suggests ill intent on the part of any participant involved in this litigation to this point. The district attorney's office made a mistake, and it is not obvious that the prosecutor who tried the case was even aware of the mistake until the trial commenced. The trial court was presented a “Sophie's choice” and made, in the middle of trial, the decision which seemed least problematic. The panel – of which my predecessor was a member – gave considerable thought to the problem and simply resolved the issues differently than I may have were I a member of the original panel.

I believe these issues should be considered by the full court before this case moves to the Court of Criminal Appeals – which certainly will be the next stop. Because that is not the court's choice, I write separately to record my observations from the record presented us.

I. BACKGROUND

This case concerns the April 5, 2021 deaths of A.H. and L.M., both minors, by asphyxiation at the hands of their mother, Madison McDonald. On June 14, 2021, McDonald was indicted for the capital murder of A.H. and subsequently pled not guilty by reason of insanity. Psychological examinations, at the request of both parties, occurred while McDonald was in the Dallas County Jail. McDonald was ultimately deemed competent to stand trial, tried, found guilty, and sentenced to life imprisonment without the possibility of parole.

McDonald raised a number of issues on appeal. The panel rejected her appeal on all counts and affirmed the judgment of conviction. I write to address only McDonald's sixth point of error – related to the retention of, and testimony by, Dr. Compton – and the panel's disposition of same.

II. CRITICAL DATES RELATING TO DR. COMPTON

In reviewing the record, it is unclear when or how Dr. Compton was initially retained by the district attorney's office. The first recorded interaction was on June 11, 2021, when the district attorney's office sent an e-mail to Dr. Compton and/or her office stating, “It's my understanding that Dr. Compton has been retained by my office to do an assessment of Madison McDonald for insanity, etc.” Dr. Compton's office responded with a request to be added to the associated Techshare account, whereby she could access discovery materials related to McDonald.

Three days later, McDonald was indicted for the capital murder of A.H.

On July 23, 2021, Dr. Compton's office e-mailed the district attorney's office about the need for a retention letter to gain access to McDonald at the Dallas County Jail and whether she should wait until after the defense experts see McDonald. The prosecutor responded, “I'll work on figuring that out and get back to you.”

On July 26, 2021, the prosecutor e-mailed Dr. Compton's office stating, “So I think it would be best to wait for now. Since the case is newly indicted, we haven't finished ordering the records that we'd like her to review. I'll reach out when it looks like we're farther along.” Dr. Compton's office responded with a reminder about the need for a retention letter.

On July 30, 2021, McDonald filed a motion with an accompanying affidavit from Dr. Lisa Clayton suggesting McDonald was incompetent to stand trial.

In August of 2021, McDonald's counsel spoke with the prosecutor and agreed to Dr. Compton performing a competency evaluation.

On August 4, 2021, the district attorney's office sent a retention letter to the Dallas County Sheriff's Department stating, “Kristi Compton, Ph.D. has been retained by the state to conduct a psychological evaluation of Madison McDonald.” This letter was forwarded by the district attorney's office to Dr. Compton by e-mail. Additionally, this email explained the “ADA did talk to defense and explain their report was expired and you could see her on Thursday and get us new evaluation. Defense counsel was fine with that.”

On August 10, 2021, Dr. Compton examined McDonald to determine her competency. During the examination, Dr. Compton asked McDonald specific questions about the offense. McDonald's counsel was not present. Dr. Compton did not advise McDonald she had a right to remain silent. From the record, it is unclear when this report from the examination was sent to the district attorney's office and McDonald's counsel.

On October 4, 2021, the prosecutor e-mailed Dr. Compton's office inquiring about the status of her competency report.

On October 25, 2021, Dr. Compton asked the prosecutor “when or if” they wanted her to proceed with an insanity evaluation.

On November 4, 2021, the prosecutor e-mailed Dr. Compton and/or her office stating they were “waiting for defense to let me know how they want to proceed. Once I hear back, I'll be able to update yall about how we're proceeding. [sic]”

On November 9, 2021, Dr. Compton's office e-mailed the prosecutor asking, “if there is a hearing to contest her competency findings that she is made known in advance so she can meet with her again (prior to the hearing) to make sure she is still comp[etent] and doing well on her meds.”

On November 11, 2021, the prosecutor e-mailed Dr. Compton stating, “Defense is asking for another competency evaluation, I presume from Dr. Clayton, before proceeding. They tell me Dr. Clayton should meet with the defendant next week.” Dr. Compton thanked them for the update.

On April 4, 2022, the district attorney's office e-mailed Dr. Compton stating Dr. Clayton determined McDonald was insane at the time of the offense but her report was not finished.

On June 14, 2022, McDonald gave written notice of her intent to raise an insanity defense at trial.

On June 22, 2022, the State filed a motion to appoint Dr. Compton as a disinterested expert for the purpose of a court-ordered insanity examination pursuant to Article 46C.101(a). On June 23, 2022, the court appointed Dr. Compton to examine McDonald and to prepare a written report.

On July 25, 2022, the prosecutor e-mailed Dr. Compton for an update on the status of her report.

On July 26, 2022, Dr. Compton responded that she would be going to see McDonald for a sanity evaluation on July 27, her findings would be e-mailed, but the full report would not be ready until August 1. The prosecutor forwarded this e-mail to McDonald's counsel.

On July 27, 2022, Dr. Compton e-mailed the district attorney's office to state “McDonald will not meet legal criteria for NGRI” based on McDonald's confession to a detective and that her opinion “will not change” after seeing McDonald.

On August 3, 2022, Dr. Compton performed an insanity evaluation.

On August 12, 2022, Dr. Compton e-mailed her full report to the district attorney's office, stating a caveat that she wanted to schedule a time to discuss additional information “not needed for the insanity opinion.” It is unclear when or if this was forwarded to McDonald's counsel.

On April 5, 2023, the district attorney's office sent an e-mail to Dr. Compton and McDonald's counsel recapping a phone conversation Dr. Compton and the prosecutor had. The e-mail requested Dr. Compton bring to court all notes or drafts she produced in the process of completing her insanity evaluation. The e-mail continued, “you were retained to complete the competency evaluation of this defendant only, but were not retained to complete the insanity evaluation of this defendant.” Dr. Compton was requested to forward all information about invoices, her retention by the State, and handwritten notes to all parties. McDonald's counsel did not receive a responsive e-mail.

On April 10, 2023, a pre-trial hearing was held.

On April 11, 2023, voir dire commenced.

On April 12, 2023, trial began.

On April 15, 2023, McDonald filed a motion to suppress and disqualify Dr. Compton.

III. HEARING ON THE MOTION TO SUPPRESS

On April 17, 2023, McDonald's counsel presented their argument that McDonald's Fifth Amendment rights were violated and Dr. Compton was a state agent, not a “disinterested expert.”

Following testimony from Dr. Compton, largely focused on the timeline above, and from Dr. Clayton, McDonald's counsel summarized her request to the trial court with the following:

We're asking you to disqualify Dr. Compton for two reasons: one, that she violated Madison's Fifth Amendment rights, and two, that she was not a disinterested expert. She never was. There was no way she could have become a disinterested expert, and it never happened, and that's what 46C.101 requires. We're asking you to -- to disqualify her.

In response, the State was focused on the 46C problem, stating:

So really what we're dealing with is that we have a Court order appointing Compton under 46C, and their position is she shouldn't have been appointed under 46C. The remedy -- the easiest remedy is, okay, she hasn't submitted a bill. We will retain Dr. Compton for purposes of insanity. We will pay her. She will be the State's expert, and we can rescind the Court's order under 46C.

The State continued, arguing this was “literally a paper error,” noting that McDonald's counsel were “the ones that brought this to our attention, which is the only reason we went searching for the e-mails that we found.”

The discussion then moved to what is the crux of this author's opinion: Dr. Compton's discussion with McDonald, during the competency exam, about the facts of the underlying offense. Earlier, during the testimonial phase of the hearing, Dr. Clayton testified that, in her forensic training, she was “trained not to [ask about the specific facts of the offense and the individual's commission of the offense] because that would be a violation of the person's Fifth Amendment rights.” She testified she never does that and it's not necessary to form an opinion about competency. She testified it is not the accepted practice in forensic psychiatry to ask about the specifics of the offense in a competency exam. The court then asked Dr. Clayton, “in your opinion, does this violate the Fifth Amendment rights for a psychiatrist to be interviewing someone about competency to delve deeper into the facts of the case and ask about the nature of the offense?” Dr. Clayton answered in the affirmative, adding a caveat (“without explaining and Mirandizing them and know their – that their attorney is aware of it”) in a follow up question by the court.

Dr. Clayton was cross-examined by counsel for the State. She testified that she did not inquire about the facts of the offense during the first competency exam, stating she “did not because [McDonald] was incompetent and delusional, and she would not have had her Fifth Amendment rights.” After the second competency exam showed McDonald was competent, Dr. Clayton advised McDonald she would be moving to a sanity evaluation, and “this was a whole different ball game, and I kind of remirandized her that I would be getting information from her that I would be sharing with her attorney, and then at her attorney's discretion, I might submit a report, and then at her attorney's discretion, I might testify, and on that reason that the other side, you or the prosecutor, might be using the things she's telling me against her.”

Returning to the discussion with counsel portion of the suppression hearing, after the State's “paper error” argument, the State argued that Dr. Compton “represented to the Court that it is her usual practice to [inquire about the facts of the offense] in order to accurately determine whether the Defendant was competent.” The prosecutor noted that Dr. Compton purposely did “not include any of the Defendant's statements in her report to protect her Fifth Amendment rights.” The prosecutor concluded, “[s]o there is nothing that says she can't do that,” and he noted that Chapter 46B ¹ authorizes the examining professional to “consider anything else that she deems as relevant.”

The trial court clearly understood the dual problem presented: (1) that Dr. Compton had obtained information protected by the Fifth Amendment during her competency examination, and (2) Dr. Compton was not a disinterested expert for purposes of section 46C.101 at the time of her appointment. Yet, she was called to testify that McDonald did not suffer from insanity at the time of the offense, and Dr. Compton had in fact obtained information from McDonald about the facts of the offense without Fifth Amendment protection.

The argument then turned to the potential remedies. The parties could not agree on a remedy, so the trial court announced her ruling: “Okay. Defense motion denied.”

The court then granted McDonald a “running objection to everything Dr. Compton says and testifies to for all the reasons we've been talking about this morning.”

IV. ARGUMENT

By her Issue Six, McDonald argued through multiple sub-points that the trial court erred “by permitting the State to use rebuttal evidence that was illegally obtained by the State's expert in forming her opinion about McDonald's reliance on the Insanity defense.” Much of the briefing on this point focused on the Article 46B appointment of Dr. Compton for competency purposes, and her Article 46C appointment as a “disinterested expert” on insanity. This author believes those arguments have merit; but, I am focused on the Fifth Amendment aspect. Dr. Compton clearly was an agent of the State for Fifth Amendment purposes. She clearly saw herself as retained by the State as early as June 11, 2021. Per my reading of the record, McDonald presented her Fifth Amendment arguments timely. The trial court understood the arguments but overruled the objection when neither party would agree to the proposed cure – discharging the jury and starting all over again. McDonald preserved her error. She presented that argument on appeal. Harm is presumed, for constitutional reasons, and harm was demonstrated – without Dr. Compton's testimony, the State had no evidence to rebut McDonald's evidence that she was insane at the time of the offense. My reasoning is laid out below.

A. Preservation and Presentation of Error

A party may claim error in the admission of evidence “only if the error affects a substantial right of the party” and the party timely objects or moves to strike and states the specific ground, unless it was apparent from the context. Tex. R. Ev. 103(a); see also Tex. R. App. P. 33.1(a)(1). “When the court hears a party's objections outside the presence of the jury and rules that evidence is admissible, a party need not renew an objection to preserve a claim of error for appeal.” Tex. R. Ev. 130(b).

McDonald explicitly presented the trial court with an objection that Dr. Compton's insanity testimony should be excluded because Dr. Compton obtained evidence forming a basis of that testimony in violation of the Fifth Amendment. The trial court considered that objection in a lengthy, middle of trial hearing, and the trial court expressly overruled the objection.

The more difficult question is whether the claimed error was properly presented to this court. My read of the briefing is that the claimed error was presented. Admittedly, most of McDonald's brief on Issue Six focused on the statutory problems with Dr. Compton's appointment. However, McDonald clearly argued her Fifth Amendment objection to the admission of Dr. Compton's testimony. She quoted Estelle v. Smith, 451 U.S. 454 (1981) on issues related to the privilege against self-incrimination, and she distinguished Penry v. State, 903 S.W.2d 715 (Tex. Crim. App. 1995) on the question of a witness being an agent for the state for Fifth Amendment purposes. Three full paragraphs of the brief were focused on Article 38.21 ² of the Texas Code of Criminal Procedure, which is the remedy for a Fifth Amendment violation, namely exclusion of the evidence.

In fact, McDonald's cite to Estelle was explicitly a constitutional argument. McDonald quoted Chief Justice Burger's opinion for the proposition that the Fifth Amendment “privilege is fulfilled only when a criminal defendant is guaranteed the ‘right to remain silent unless he chooses to speak in the unfettered exercise of his own will, and to suffer no penalty ․ for such silence.’ ” Estelle at 468.

For those reasons, this author believes the constitutional error was both preserved and properly presented to this court. And, for reasons explained below, Estelle is so factually on point that it may require reversal.

B. Timeliness of Objection.

An element of error preservation is the timeliness of the objection: “A proper objection is one that is specific and timely.” Martinez v. State, 98 S.W.3d 189, 193 (Tex. Crim. App. Feb. 12, 2003). “To be timely, the objection should, if possible, be made before the evidence is actually admitted.” Id. at *1 (citing Ethington v. State, 819 S.W.2d 854, 858 (Tex. Crim. App. Nov. 6, 1991)).

The panel opinion, and much of the argument in the trial court, focused on the lapse of ten days between McDonald being advised that Dr. Compton might testify for the state on the insanity issue and McDonald's filing her motion to suppress. I believe that argument is misplaced.

(1) Unquestionably, McDonald's Fifth Amendment objection was made before Dr. Compton testified. In my opinion, that fact alone ends this inquiry.

(2) A motion to suppress was not required. McDonald could have simply objected at the time Dr. Compton was presented with the first question about her opinion regarding McDonald's sanity. See Ethington at 858 (“the defense must have objected to the evidence, if possible, before it was actually admitted. If this was not possible, the defense must have objected as soon as the objectionable nature of the evidence became apparent and must have moved to strike the evidence”).

(3) On June 14, 2022, McDonald provided notice of her intent to raise an insanity defense at trial. Nine days later, Dr. Compton was appointed to conduct the insanity exam. On August 3, 2022, Dr. Compton performed the insanity exam. On August 12, 2022, Dr. Compton provided her report to the district attorney along with the cryptic comment that she wanted to schedule a time to discuss additional information “not needed for the insanity opinion.” Then, nothing on this front occurred for almost eight full months, until six days before voir dire, when the state copied McDonald's counsel on an email possibly suggesting that Dr. Compton would provide rebuttal testimony on the insanity issue. When I look at that timeline, and the delays effectuated by the State in deciding whether Dr. Compton would testify for the State, I simply cannot stretch logic to conclude that McDonald is the one failing to timely raise these issues.

On this record, as I see it through this stage of briefing, McDonald timely made her objections to Dr. Compton's testimony.

C. Harm

Assuming McDonald has properly preserved her objection on Fifth Amendment grounds and the trial court abused its discretion in denying her motion to suppress, this error cannot be deemed harmless. See Chapman v. California, 386 U.S. 18, 23 (1967) (“An error in admitting plainly relevant evidence which possibly influenced the jury adversely to a litigant cannot ․ be conceived of as harmless.”); see also Fahy v. State of Conn., 375 U.S. 85, 86-87 (1963) (“The question is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction.”). In Scott v. State, the Court of Criminal Appeals expressed that “the emphasis of a harm analysis pursuant to Rule 44.2(a)³ ․ is not whether the jury verdict was supported by evidence. Instead, the question is the likelihood that the constitutional error was actually a contributing factor in the jury's deliberations in arriving at the verdict ․” Scott v. State, 227 S.W.3d 670, 690 (Tex. Crim. App. June 6, 2007) (emphasis added); see also Fahy, at 86 (“We are not concerned here with whether there was sufficient evidence on which the petitioner could have been convicted without the evidence complained of.”).

Because McDonald pled not guilty by reason of insanity, the critical evidence presented at trial would center on whether she was sane at the time of the offense. Multiple witnesses were presented and questioned about McDonald's actions and thought processes before, during, and after the offense. Of these, only two were specifically trained in interpreting mental illness diagnoses and symptoms and applying them in conjunction with legal statutes: forensic psychiatrist Dr. Clayton and forensic psychologist Dr. Compton. Had Dr. Compton's testimony been excluded, the jury would be left with only testimony of Dr. Clayton that McDonald met the legal criteria for the insanity defense on April 5, 2021. Dr. Clayton's testimony included the following assertions on McDonald's sanity at the time of the offense:

• McDonald “totally” believed she was only temporarily sending her daughters to heaven and, after she exposed a child pornography conspiracy, “God would send them back down to her”;

• An auditory hallucination, “Mark”, told her the only way to save her children from being caught in a “sex ring” was to send them to heaven;

• McDonald “believed it would not be wrong or thought of as wrong by individuals who were not part of the conspiracy, so by the good people”;

• McDonald was manic, psychotic, and had not slept in days;

• “the case of Ms. McDonald is the most preoffense evidence of her having a severe mental illness prior to committing the offense. I mean it was evident to everybody”.

Comparatively, the following testimony of Dr. Compton would not have been heard by the jury and would not have been the final words from an expert witness before their deliberation:

• McDonald did not meet the criteria for the insanity defense;

• McDonald “retained the ability to understand the wrongfulness”;

• McDonald “may have believed [her delusions] after the [offense]” and engaged in “revisionist history”;

• Dr. Compton's opinion McDonald was not insane “was cemented after [her] review of the police interview and [McDonald's] statements as close to the time of the offense as [she] could get”;

• McDonald's “thought processes were organized. She was able to complete linear, goal-directed, coherent sentences ․ she probably wasn't having an[y] auditory or visual hallucinations during [the police] interview”.

Accordingly, the erroneous admission of Dr. Compton's unconstitutionally obtained testimony possibly contributed to McDonald's conviction and is, thus, reversible. See Tex. R. App. P. 44.2(a) (“If the appellate record in a criminal case reveals constitutional error that is subject to harmless error review, the court of appeals must reverse a judgment of conviction or punishment unless the court determines beyond a reasonable doubt that the error did not contribute to the conviction or punishment.”).

V. CLOSING THOUGHTS

Forty-five years ago, the Supreme Court of the United States was faced with a competency/sanity scenario quite similar to that before the court today, arising also out of Dallas County. Estelle, supra. While Estelle reached the Supreme Court on federal habeas, Chief Justice Burger's opinion is instructive and, in the opinion of this author, mandates reversal and remand for a new trial without the State relying on testimony by Dr. Compton.

Ernest Smith was indicted for murder. The trial court ordered a psychiatric examination of Smith to determine competency. The psychiatrist conducted a ninety-minute examination of Smith without advising him that he had a right to remain silent. Id. at 460. The psychiatrist found Smith competent to stand trial. Id. at 457.

Smith was tried and convicted of capital murder. During the penalty phase, the psychiatrist was called to testify. Among other things, the psychiatrist testified Smith was a sociopath, with no regard for another human being's life, and with no remorse for what he had done. Id. at 459-60. The psychiatrist's testimony was based on information derived from the ninety-minute competency examination. Id. at 460. Smith was then sentenced to death.

The Supreme Court answered in the affirmative the question whether the psychiatrist's testimony “violated [Smith's] Fifth Amendment privilege against compelled self-incrimination because [Smith] was not advised before the pretrial psychiatric examination that he had a right to remain silent and that any statement he made could be used against him at a sentencing proceeding.” Id. at 461. The Court concluded, “The Fifth Amendment privilege, therefore, is directly involved here because the State used as evidence against [Smith] the substance of his disclosures during the pretrial psychiatric examination.” Id. at 464-65.

Estelle involved testimony offered by the State in the penalty phase, whereas this court today is confronted with testimony offered in the guilt/innocence phase. That is a difference without a distinction. In fact, in Estelle, the State argued that Smith “was not entitled to the protection of the Fifth Amendment because [the psychiatrist's] testimony was used only to determine punishment after conviction, not to establish guilt,” Id. at 462. This argument was soundly rejected by the Supreme Court: “the availability of the [Fifth Amendment] privilege does not turn upon the type of proceeding in which its protection is invoked, but upon the nature of the statement or admission and the exposure which it invites.” Id. (citation omitted).

Whether intentionally or accidently, McDonald's Fifth Amendment rights were violated when Dr. Compton testified for the State that McDonald was not insane at the time of the offense, basing at least some of that opinion on information obtained from McDonald during the initial competency examination. For that reason, I believe the court should rehear the case en banc. I recognize that no one wants to retry this case, albeit with a different State's expert on the issue of McDonald's state of mind at the time of the offense. I note that this is the very option offered by the trial court upon consideration of the motion to suppress, an offer rejected by McDonald. A retrial is the likely result were the court to agree with me. Because a retrial is the only solution that protects McDonald's Fifth Amendment rights, I respectfully dissent from the court's denial of the motion for rehearing en banc.

FOOTNOTES

1.   Tex. Code Crim. Proc. Ann. art. 46B (dealing with incompetency to stand trial).

2.   Tex. Code Crim. Proc. Art. 38.21.

3.   Tex. R. App. P. 44.2(a).

Lewis, J., joins in this dissenting opinion.