MADISON McDONALD v. THE STATE OF TEXAS (2026)

CONCURRING & DISSENTING OPINION

I join Parts I–IV and V(A)(1)–(3) of the Court's opinion. I write separately to briefly explain my disagreement with Parts V(B) and VI of the Court's opinion and the Court's disposition of Appellant's Fifth Amendment claim.

Having properly concluded that Appellant preserved a Fifth Amendment objection, we should simply remand this cause to the court of appeals for it to decide the merits of Appellant's Fifth Amendment claim in the first instance. “[T]his Court reviews only decisions of the courts of appeal unless ‘the proper resolution of the remaining issue is clear.’ ” Osorio-Lopez v. State, 663 S.W.3d 750, 757 (Tex. Crim. App. 2022); State v. Barber, 735 S.W.3d 41, 46 n.9 (Tex. Crim. App. 2026).

The court of appeals never rendered a “decision” on the merits of Appellant's Fifth Amendment challenge.¹ Furthermore, the sharp contrast in the reasoning between the Court's disposition of Appellant's Fifth Amendment challenge and the reasoning employed by the concurring opinion shows why “the proper resolution” of Appellant's Fifth Amendment challenge is not “clear.”

This Court has unnecessarily spilled a lot of ink in recent months on whether—and to what extent—it should be deciding the issues before it. See, e.g., State v. Young, 734 S.W.3d 911, 920 (Tex. Crim. App. 2026); and id. at 925 (Schenck, P.J., concurring and dissenting); Columbus v. State, — S.W.3d —, No. PD-0538-25, 2026 WL 1852097, at *5 (Tex. Crim. App. June 25, 2026) (Schenck, P.J., concurring); Barber, 735 S.W.3d at 58 (Finley, J., concurring); and id. at 64 n.6 (Schenck, P.J., dissenting). This case is yet another chapter in that saga.

Having held that the Fifth Amendment objection was preserved, we should proceed with prudence and remand this case for the court of appeals to address the merits of Appellant's Fifth Amendment claim in the first instance. Because the Court does not, I respectfully dissent.

FOOTNOTES

1.   To be clear, the court of appeals’ opinion recognized that “[w]hen a defendant introduces or plans to introduce an insanity defense and is examined by his own mental-health expert to support his claim, he waives his Fifth Amendment privilege against self-incrimination for the purpose of rebutting the defense.” McDonald v. State, No. 05-23-00419-CR, 2024 WL 4784421, at *13 (Tex. App.—Dallas Nov. 14, 2024). But this statement (and the paragraph that follows) is in a section titled “3. No Harm.” In this section, the court of appeals applied the standard for nonconstitutional harmless error, id. at *12 (citing Tex. R. App. P. 44.2(b)), to conclude that “any error in appointing Dr. Compton as an expert pursuant to Article 46C.101(a) of the Code of Criminal Procedure did not have a substantial and injurious effect or influence in determining the jury's verdict,” id. at *13. Furthermore, the court of appeals in the preceding subsections—(b)(1) and (b)(2)—held that Appellant's Fifth Amendment challenge was not preserved. See id. at *11–12. It does not make sense to say that the court of appeals, after holding that error was not preserved, went on to address the merits of unpreserved error without explicitly saying so.

Finley, J., filed a concurring and dissenting opinion.