MCDONALD v. STATE (2026)

OPINION

We are being asked to answer whether the court of appeals erred when it affirmed the trial court's decision to allow a State-sponsored expert to testify. Appellant, Madison McDonald, claims that (1) the expert violated her Fifth Amendment rights during a competency evaluation by asking her about her mens rea during the commission of the offense, even though the expert was hired by the State, and (2) the trial court incorrectly appointed the expert as a disinterested expert for her insanity exam. See Tex. Code Crim. Proc. Ann. art. 46C.101(a).

The Fifth District Court of Appeals held that Appellant failed to preserve her arguments. McDonald v. State, No. 05-23-00419-CR, ––– S.W.3d ––––, ––––, 2024 WL 4784421, at *12 (Tex. App.—Dallas Nov. 14, 2024, pet. granted). But it then stated that even if Appellant had preserved her claims, and even if the trial court abused its discretion by allowing the expert to testify, Appellant failed to show she was harmed, and the expert's testimony did not have a “substantial and injurious” effect on the jury's verdict. Id. at –––– – ––––, 2024 WL 4784421, at *12–13; see Tex. R. App. P. 44.2(b).

After a review of the record, we find that Appellant preserved both her constitutional and statutory arguments. Nevertheless, we agree with the Fifth District Court of Appeals that even if it was error to allow the State's expert to testify, that error did not affect Appellant's substantial rights. Additionally, we hold that even though the constitutional Fifth Amendment question was preserved, there was no constitutional error.

I — Background Facts

On April 5, 2021, Appellant killed her two daughters, A.H. and L.M., by asphyxiation after attempting to sedate them with various medications. A.H. was six-years-old and L.M. was almost two-years-old at the time of their deaths.

Afterward, Appellant drove to the Irving Police Department where she used a phone in the lobby to call 911. She told the dispatcher that she wanted to report “child pornography and murder.” Appellant said she had sedated and smothered her daughters to protect them from being forced to make child pornography. Police approached Appellant while she was in the lobby still on the phone with 911. She was subsequently arrested.

The next day, detectives interviewed Appellant. She again admitted to the killings and described the events of the day before. Appellant stated she killed the girls to protect them from her ex-husband sexually abusing them, but she could not provide proof of any abuse or wrongdoing.

Unquestionably, Appellant has an extensive history of mental health issues. She was diagnosed with schizoaffective disorder, bipolar type, which causes Appellant to manifest both schizophrenic and bipolar disorder symptoms, including auditory hallucinations, manic episodes, depression, obsession, paranoia, and insomnia. In the months before the murders, Appellant had been experiencing extreme paranoia and delusions. She was convinced that her ex-husband was abusing her daughters and was trying to sell them into sex-slavery in Europe; that her ex-husband and her mother were forcing the girls to participate in child pornography; and that her ex-husband was filming sexual videos of Appellant without her consent and was uploading the videos to the dark web. Also, Appellant believed her house had been broken into, her medications were being tampered with, and her technological devices had been hacked and bugged.

Months before the killings, Appellant made several reports to the Irving Police Department about the illegal actions she believed her ex-husband and mother were perpetuating. The police investigated the complaints and determined the allegations were not true. Instead, the police felt Appellant's beliefs were part of a mental health crisis. This led to Appellant being involuntarily hospitalized in November 2020, and A.H. and L.M. were removed from her custody. In February 2021, after intensive inpatient and outpatient treatment, the girls were returned to Appellant's care. Two months later, Appellant took their lives.

II — Competency and Insanity Issues Before and During Trial

At the outset, the defense hired Dr. Lisa Clayton, a psychiatrist, to evaluate Appellant's competency to stand trial. In July 2021, Dr. Clayton determined that Appellant was not competent. But Dr. Clayton's report was untimely filed. The State suggested that Dr. Kristi Compton, a forensic psychologist, could perform a second competency exam instead. The defense agreed.

In August 2021, Dr. Compton met with Appellant after several months of her being on consistent medications while awaiting trial. During the competency exam, Dr. Compton asked Appellant about her state of mind during the commission of the offense. Ultimately, Dr. Compton found Appellant was competent to stand trial. Dr. Clayton reevaluated Appellant and agreed.

Then, on June 14, 2022, Appellant filed her notice of intent to raise an insanity defense at trial. In response, the State filed a motion for a court-ordered insanity examination and report. See Tex. Code Crim. Proc. Ann. art. 46C.101(a). It requested that Dr. Compton perform the insanity evaluation as a disinterested expert. Id. (“If notice of intention to raise the insanity defense is filed ․ 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.”) (emphasis added). The trial court granted the motion. In her insanity report, Dr. Compton found that Appellant was not legally insane at the time of the offense. See Tex. Penal Code Ann. § 8.01(a) (“as a result of severe mental disease or defect, [the actor] did not know that [her] conduct was wrong”).

Before trial was set to begin, the State and Appellant's defense counsel discussed the competency and insanity exams. The conversation raised questions about who had actually hired Dr. Compton for the competency exam, the trial court or the State. The State investigated the issue and learned that the previous prosecutor who had been handling the case had authorized the State itself to retain Dr. Compton for competency. On April 5, 2023, the State confirmed to defense counsel that it, not the trial court, had hired and paid for Dr. Compton's opinion.

On April 11, 2023, a jury was picked, and trial began the next day. Then, on April 15, during its case-in-chief, the record indicates the defense filed a motion to suppress Dr. Compton's testimony.¹ Specifically, the defense asserted that (1) while acting as an agent of the State, Dr. Compton violated Appellant's Fifth Amendment rights during the competency exam by asking about her mental state at the time of the offense without proper Miranda admonishments;² and (2) Dr. Compton was not a disinterested expert when she was appointed by the trial court for the insanity exam because she had been hired and paid for by the State.³ The parties had a hotly contested hearing on the issue, but Appellant's motion was overruled when the parties and the court could not agree on a proper remedy.

After the ruling, Dr. Clayton testified for the defense. She first recounted Appellant's initial competency exam, when she determined Appellant was not competent to stand trial. Dr. Clayton also discussed Appellant's mental health history and the process in which she was restored to competency. On the issue of insanity, Dr. Clayton believed Appellant was insane at the time of the offense because her actions were the result of her mental illness and Appellant believed the killings would not be wrong or thought of as wrong by individuals who were not part of the sexual abuse conspiracy. She testified that Appellant had thought the only possible way to protect her daughters was to take their lives, but she also believed that the girls would eventually come back to life because they were not permanently dead. It was not until eight months after the offense that Appellant fully understood the gravity of her actions and that her girls were not coming back.

As a State's rebuttal witness, Dr. Compton agreed that Appellant suffered a mental defect (schizoaffective disorder, bipolar type), but advanced that she did not meet the legal definition for not guilty by reason of insanity because Appellant was able to appreciate the wrongfulness of her actions at the time of the offense, despite her delusions. Dr. Compton's opinion was highly influenced by the 911 call that Appellant made, the police body cam footage that captured Appellant's conversation with officers in the police station lobby, the interview that Appellant had with the detectives the day after the killings, and the fact that Appellant turned herself in, at all. Overall, Dr. Compton opined that her interpretation of Appellant's actions indicated an awareness or knowledge of wrongdoing. Dr. Compton also told the jury that she had been hired by the State when she conducted the competency exam and then was later hired by the court for an opinion on insanity.

Ultimately, the jury found Appellant guilty of committing capital murder against A.H.⁴ Because the State had waived the death penalty, Appellant was automatically sentenced to life in prison without the possibility of parole.

III — The Court of Appeals

On direct appeal, the Fifth District Court of Appeals held that Appellant had failed to preserve her complaints for review. McDonald, ––– S.W.3d at ––––, 2024 WL 4784421, at *12. First, it found that Appellant's motion was untimely because she did not object pre-trial to Dr. Compton's testimony. Id. As early as April 5, Appellant was put on notice that the State, not the trial court, had hired Dr. Compton for the competency exam. Id. Appellant then waited ten days, until the middle of trial, to contest Dr. Compton's testimony. Id. This delay prevented the trial court from having the ability to appoint a different expert in Dr. Compton's place. Id.

Additionally, the court of appeals found Appellant's arguments on appeal did not comport with those made at trial. Id. It stated that her arguments related to evidentiary claims arising under Article 38.23(a) of the Code of Criminal Procedure ⁵ and Texas Rule of Evidence 703 ⁶ , rather than the Fifth Amendment and Article 46.101C(a). Id. Because the grounds raised at trial were not the same as those on appeal, Appellant had failed to properly present her issues for review. Id.

Finally, the court of appeals held that even if the claims were preserved, and even if it was error to allow Dr. Compton to testify, Appellant's substantial rights were not harmed. Id. at ––––, 2024 WL 4784421, at *12–13; see Tex. R. App. P. 44.2(b). We granted discretionary review.

IV — Preservation

We first answer the question of preservation. To preserve a complaint for appellate review, a “timely request, objection, or motion” must have been made to the trial court. Tex. R. App. P. 33.1(a)(1). The complaining party must have stated its position with sufficient specificity “to make the trial court aware of the complaint,” and the trial court must have ruled on it. Tex. R. App. P. 33.1(a)(1)(A), (a)(2)(A). The complaining party should “let the trial judge know what he wants, why he thinks he is entitled to it, and to do so clearly enough for the judge to understand him at a time when the trial court is in a proper position to do something about it.” Everitt v. State, 407 S.W.3d 259, 263 (Tex. Crim. App. 2013) (quoting Layton v. State, 280 S.W.3d 235, 239 (Tex. Crim. App. 2009)). After reviewing the record, we believe Appellant's objection was timely and her arguments on appeal comported with those raised at trial.

IV(A) — Appellant's objection to Dr. Compton's testimony was timely.

In general, an objection “is timely if the party makes the complaint as soon as the grounds for it become apparent.” Gillenwaters v. State, 205 S.W.3d 534, 537 (Tex. Crim. App. 2006). An objection must be lodged before the evidence is admitted. Ethington v. State, 819 S.W.2d 854, 858 (Tex. Crim. App. 1991). The purpose is to give the opposing party the opportunity to respond and the trial court an opportunity to correct potential error. Gillenwaters, 205 S.W.3d at 537.

Here, because Appellant made her objection before Dr. Compton testified, her complaint was timely. Appellant filed her motion to suppress on April 15, 2023, during her case-in-chief, right before she called Dr. Clayton. The State presumably intended to call Dr. Compton in rebuttal. At this moment, the issue was “apparent” for preservation purposes. The motion to suppress gave the trial court the opportunity to prevent potential error and make a ruling before either expert testified before the jury. Additionally, the State had an opportunity to respond, and it did so at length. In Appellant's case, this process was sufficient.

The court of appeals relied on Loredo v. State to determine that Appellant's complaint was not timely. McDonald, ––– S.W.3d at ––––, 2024 WL 4784421, at *12 (citing Loredo v. State, 159 S.W.3d 920, 923 (Tex. Crim. App. 2004)). But Appellant's case differs from Loredo. There, the defendant's claim was found to be waived because he remained silent and failed to draw the trial court's attention to an error. Loredo, 159 S.W.3d at 923–24. In contrast, here, Appellant did object and she drew the trial court's attention to the error—a hearing was held on the motion to suppress before either expert testified.

While Appellant could have lodged a complaint as early as April 5 once she was on notice that the State had retained Dr. Compton, and making these arguments pre-trial would have better ensured judicial economy, she was not explicitly required to object at this point. The State understandably was concerned that the mid-trial motion to suppress was filed to “sandbag” its case. And while we never condone such a strategy, the specific timeline in this case supports that Appellant raised her objection when the issue became apparent. Thus, Appellant's objection to Dr. Compton's testimony was timely.

IV(B) — Appellant properly presented her arguments to the court of appeals.

A complaint is made with sufficient specificity when “the party lets the trial judge know what he wants and why he is entitled to it.” Gillenwaters, 205 S.W.3d at 537. To be preserved, the party's arguments must comport with those made before the trial court. Pena v. State, 285 S.W.3d 459, 464 (Tex. Crim. App. 2009). In determining if arguments to the court of appeals are properly presented, “we consider the context in which the complaint was made and the parties’ shared understanding at that time.” Id.

Here, the court of appeals should have understood the context of Appellant's complaints to be about her Fifth Amendment rights being violated and Dr. Compton's appointment violating Article 46C.101(a). At trial, these were explicitly the grounds Appellant maintained during the motion to suppress hearing. To the Fifth District Court of Appeals, Appellant clearly argued that Dr. Compton was not a disinterested expert. But she went further, citing Estelle v. Smith to say the privilege against self-incrimination applies to psychiatrists and psychologists who disclose information to the State about a defendant's mental state. 451 U.S. 454, 467–69, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981). In Smith, the Supreme Court answered a Fifth Amendment question about a State-sponsored expert witness who examined the defendant without admonishments and testified during punishment about statements the defendant made about the crime. Id. at 458–60, 101 S.Ct. 1866. Appellant analogized her case to Smith, aiding her overall Fifth Amendment argument.⁷

The court of appeals believed that Appellant's arguments centered primarily around Article 38.23(a) of the Code of Criminal Procedure and Texas Rule of Evidence 703. McDonald, ––– S.W.3d at ––––, 2024 WL 4784421, at *12. And while Appellant does use these provisions to lend support to her position, the court of appeals's interpretation ignored the heart of her argument. She has always alleged that when Dr. Compton interviewed her, Dr. Compton illegally obtained mens rea evidence while acting as an agent of the State which violated Appellant's Fifth Amendment rights, and thus Dr. Compton's testimony should have been suppressed. Appellant's arguments were properly presented to the court of appeals. Therefore, Appellant's claims were preserved for appellate review.

V — Reviewing error and harm.

Again, Appellant raises two issues for our review: (1) whether her Fifth Amendment rights were violated when Dr. Compton asked her questions about her mens rea during the offense; and (2) whether it was error to appoint Dr. Compton as a disinterested expert under Article 46C.101(a).

V(A) — Dr. Compton's testimony did not cause substantial harm.

First, we address Appellant's claim that Dr. Compton was improperly appointed as an expert pursuant to Article 46C.101(a) because she was not disinterested as required by the statute. Declining to answer the question of error, the court of appeals found that even if error occurred, Appellant's substantial rights would not have been harmed by Dr. Compton's testimony, despite her not being a disinterested expert. See Tex. R. App. P. 44.2(b). We agree.

An alleged statutory error—one that is not constitutional in nature—must be disregarded if it does not affect the defendant's substantial rights. Tex. R. App. P. 44.2(b). A defendant's substantial rights are affected if “the error had a substantial and injurious effect or influence in determining the jury's verdict.” King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). The potential error has “a substantial and injurious effect or influence if it substantially swayed the jury's judgment.” Thomas v. State, 505 S.W.3d 916, 926 (Tex. Crim. App. 2016). But, if the alleged error did not influence the jury or only had a “slight effect,” the verdict should stand. Id.; see also Kotteakos v. United States, 328 U.S. 750, 765, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946) (explaining that the issue is “whether the error itself had substantial influence,” not merely whether there was enough without the evidence to support the result). Neither party has the burden to show harm under the substantial rights test—it is the court which must conduct a record review to determine if the error influenced the jury's decision in light of the remaining evidence. Thomas, 505 S.W.3d at 926.

To evaluate harm, we consider the following non-exhaustive list of factors: the testimony and physical evidence admitted for the jury's consideration; the nature of the evidence supporting the verdict; the character of the alleged error and how it might be considered in connection to other evidence; whether the State emphasized the complained-of error; the theory of the case; closing arguments; the jury instructions; and relevant voir dire if applicable. Id. at 927; Motilla v. State, 78 S.W.3d 352, 355–56 (Tex. Crim. App. 2002); Schutz v. State, 63 S.W.3d 442, 444–45 (Tex. Crim. App. 2001). We also consider the overwhelming evidence of guilt in our Rule 44.2(b) analysis. See Motilla, 78 S.W.3d at 357 (discussing the standard under former Rule 81(b)(2)).

Here, the Fifth District Court of Appeals held that Dr. Compton's testimony did not have a substantial and injurious effect or influence on the jury's verdict. McDonald, ––– S.W.3d at ––––, 2024 WL 4784421, at *13. It reasoned that there was overwhelming evidence that Appellant knew her actions were wrong, particularly based on Appellant's statements in the 911 call and from her interactions with police. Id. We agree with the court of appeals's finding of no substantial harm.⁸

It is undisputed that Appellant killed A.H. The defense conceded as much throughout the trial. Rather, the jury was tasked with having to determine if Appellant met the legal definition for insanity. Insanity is an affirmative defense. Tex. Penal Code Ann. § 8.01(a). A person is legally insane when “at the time of the conduct charged, the actor, as a result of severe mental disease or defect, did not know that his conduct was wrong.” Id. “[W]rong in this context means illegal.” Ruffin v. State, 270 S.W.3d 586, 592 (Tex. Crim. App. 2008) (internal quotations omitted). To support a verdict of not guilty by reason of insanity, after the State has proven the offense was committed beyond a reasonable doubt, the defense must show by a preponderance of the evidence that the defendant was “insane at the time of the alleged conduct.” Tex. Code Crim. Proc. Ann. art. 46C.153(a).

The State did not contest that Appellant had a mental disease or defect. She undeniably had a lengthy history of mental health struggles relating to her bipolar disorder, schizoaffective type diagnosis. Appellant was actively prescribed medications for the disease, and consistently exhibited symptoms of her illness, including paranoia, delusions, obsession, mania, and depression. In the battle of the experts, both Dr. Clayton and Dr. Compton came to virtually the same conclusion regarding Appellant's mental health history. The case turned on whether, at the time Appellant committed the offense, she knew her conduct was wrong, or rather whether she knew her conduct was illegal. See Ruffin, 270 S.W.3d at 592 (“Thus, the question for deciding insanity is this: Does the defendant factually know that society considers this conduct against the law, even though the defendant, due to his mental disease or defect, may think that the conduct is morally justified?”) Where allegedly erroneously admitted expert testimony is at issue, each case must be evaluated on its own set of facts, “taking into account the specific evidence and the probable impact of the erroneously admitted” testimony. Coble v. State, 330 S.W.3d 253, 281 (Tex. Crim. App. 2010).

V(A)(1) — The expert testimony.

The competing expert testimony implicates at least three of the substantial rights factors: the character of the error, how it might be considered in relation to the other evidence, and the theories of the case. See Motilla, 78 S.W.3d at 355–56. Each expert presented her own theory, and it is likely that the jury would have assigned at least some weight to each expert's opinion. At a minimum, the experts were standing on equal footing with their conflicting opinions.

In the defense's case-in-chief, Dr. Clayton stated that she believed Appellant did not know her conduct was wrong at the time of the offense because Appellant only believed people who were part of the sexual abuse conspiracy would find her actions to be wrong. Appellant had explained to Dr. Clayton that initially she did not believe she would be arrested when she went to the police station. She thought the police would investigate the child pornography allegation and take her accusations against her ex-husband and her mother seriously.

Dr. Clayton further testified that Appellant told her that she believed her children would eventually come back to life. Dr. Clayton acknowledged that Appellant did not tell police this, but explained that Appellant omitted the information because she then started to believe that the police were “part of the conspiracy” once they arrested her. A large portion of Dr. Clayton's testimony highlighted Appellant's mental health history.

Dr. Clayton also suggested potential explanations for Appellant's actions: Appellant believed killing the girls was the only way to protect them; a voice named Mark told Appellant that death was the only way to protect the girls; Appellant was not reliable during her interview with detectives because of her mental health issues; and Appellant did not understand the seriousness of her actions until after she became lucid from the continuous administration of medication while in jail awaiting trial. These apparent justifications do not necessarily contradict whether or not Appellant believed killing her daughters was wrong at the time of the offense. Even if Appellant simultaneously held these beliefs, her own moral justification does not negate her knowledge of wrongdoing. See Ruffin, 270 S.W.3d at 592.

Dr. Compton, as a rebuttal witness, took the opposite stance and testified that she believed Appellant knew her actions were wrong at the time of the offense. She explained that she came to this conclusion after watching the digital evidence—the 911 call, the police body cam footage, and the video footage of Appellant's interview with detectives. Dr. Compton testified to the exact statements from Appellant's interview with detectives which informed her opinion on insanity.

It is unclear how much of an impact Dr. Compton's testimony actually had in light of all of the evidence presented at trial. The same evidence that Dr. Compton said caused her to not believe Appellant was insane was independently presented to the jury. The jury heard the 911 call and saw the police station lobby footage. It watched the entirety of Appellant's interview with the police. Dr. Compton's testimony merely readdressed the same evidence the jury had already seen. Because Dr. Compton's testimony largely reemphasized the evidence already before the jury, it is unlikely that it would have unduly impacted the jury's perception of the wrongfulness of Appellant's actions.

Further, Dr. Compton never testified about what mens rea evidence she obtained from Appellant during the competency exam. Her testimony focused primarily on the digital evidence that she independently reviewed after the competency evaluation, and that digital evidence is what ultimately swayed her. Even though the jury was faced with a battle-of-the-experts problem in an insanity case where jurors were surely putting stock into both experts’ opinions, it is unlikely Dr. Compton's testimony would have had a “substantial or injurious effect or influence” on the jury's verdict. See King, 953 S.W.2d at 271.

V(A)(2) — The digital evidence.

We also consider the overwhelming degree of additional evidence indicating guilt in a substantial rights analysis. Motilla, 78 S.W.3d at 357. Because guilt itself was not at issue, we review the evidence the jury considered in deciding whether Appellant was insane at the time of the offense. Relevant here, we look at the digital evidence—Appellant's 911 call, her interactions with police at that time through the police's body cam footage, and Appellant's interview with detectives the day after the murders.

First, on the 911 call that Appellant made while in the Irving Police Station lobby, Appellant told the dispatcher she was calling to report “child pornography and murder.” She stated that she had murdered her daughters to protect them from being forced to make child pornography. Appellant said the killings had happened about an hour before.⁹ During the call, Appellant mentioned that she was not hearing voices, and she knew for certain that both children were deceased. She also told dispatch that she had left the door unlocked for police to be able to enter her apartment.

The jury then saw police body cam footage of officers confronting Appellant in the station lobby while she talked with 911. After hanging up, she told officers, “This is unfortunate, and no one will understand, but as a mother, you'd do anything in this world that you can do to keep them safe, and if that means I had to eliminate them and then pay the price for the rest of my life I will.” Appellant stated she did what she felt like she needed to do and there were no other options because time was running out before her mom and ex-husband were going to try to take the kids again. During that interaction, Appellant directed officers to where they would find A.H. and L.M.’s bodies in her apartment and gave them keys for entry.

Both the 911 call and body cam evidence indicate that Appellant knew her actions were “legally” wrong. The very act of seeking out the police and calling 911 to turn herself in shows that she knew her actions were criminal and warranted police involvement. Many times in the past, Appellant had called police requesting their help in situations where she believed a crime had been committed, namely for the alleged sexual abuse. Here, Appellant reported “child pornography and murder”—lumping together what she knows is a crime (child pornography) with another crime that she had committed an hour earlier (murder). This showed an awareness that Appellant knew both were crimes and people typically call the police to report crimes.

Additionally, she told the dispatcher that she had left the door unlocked for police to get inside, and she gave officers her keys when they confronted her in the lobby. This further indicates that Appellant anticipated police involvement; she wanted to assist the police in being able to easily access her home and daughters. Finally, by Appellant's own admission, she told officers that she had to “eliminate” her children, and she knew that it might mean that she would “pay the price” for the rest of her life. She knew unequivocally that both girls were dead, that their deaths were caused by her own hand, and that there might be consequences because of her actions.

Nobody but Appellant truly knows for certain what her thoughts were during the killings. But the 911 call and the events that occurred at the police station are the most contemporaneous evidence to the time of the offense that the jury was able to consider. By at least this time, approximately an hour after having killed A.H., the evidence shows Appellant knew her actions constituted a legal wrong. Appellant knew that people report crimes to the police and that the police would likely get involved based on her report. And she knew she might have to “pay the price.”

Additionally, the jury was shown video footage from the interview Appellant had with detectives the day after the murders and her arrest. There, Appellant made numerous references to knowledge of wrongdoing, including:

• “I felt like I did what I had to do to protect my kids, and it is not what I wanted to do. I don't - I'm not okay with it, I don't think it's right. I think I do deserve to be arrested and serve time. But I couldn't go another day knowing they were in harm.”

• “I felt I had no other option. I mean, it's like I literally every single night would stay up as late as I could, even if I was lying in bed, mentally I would stay up and just think what I could do better, what can we do more, what can I show them, who can I call, how can I tell somebody that we're in danger and it's just like no one listened. And you know, after I hurt them – it's hard to say that I killed them – I know I did. But, after I hurt them, I wanted to just hurt myself, but I thought I've gotta have one last chance. And I've gotta go talk to someone and I've got to admit to what I did to make it right. 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 ․”

• “I do know who they are in my heart and soul, I'll never be able to prove it. And by the time I'm done being in prison for the rest of my life, it'll never be proven. But I at least spoke it.”

• “So we were gonna have a day. I thought, okay, well I have a Xanex prescription. So, I'll just put them to sleep. You know, just overdose them. Quick and easy. Again, I know it's wrong, but all I wanted to do was the calmest and kindest thing.”

• “I don't think you – you don't feel. You're numb, you're aware, but it's like everything's just floating and you don't know where to go from there because you know there is no more. You know what I mean, like I knew I would spend the rest of my life in prison.”

• “Okay, well, I'm gonna preface with this, first off, this is now a mental health crisis because I have murdered my children, okay?”

• “I do sound crazy. If you thought I was sane right now, you'd probably be crazy. But I'm not. The sad thing is something is happening and has been happening to me, and then affecting my children, and then to my children. And I think that they thought I would just go crazy and they'd get the kids, and unfortunately that didn't happen. Unfortunately, I hurt them instead.”

• “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.”

• “I remember, yes, there were specific things, but I don't remember what they are now, like I said, I'm kind of in a haze. So, you're gonna have to bear with me because this is the most overwhelming thing I've ever 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.”

• “Maybe if we can start with some smaller things and it wouldn't be so hard to think because I guess committing murder takes a toll.”

• “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 and I don't know what else to say because everybody around me already knows and they've seen and I've tried to get help, like I said.”

• “Well they – they didn't do anything last time, so they won't do anything this time. And I know that. I'll just get charged and I'll go. And they'll never get caught and they'll continue doing what they're doing. But my kids won't be a part of it anymore.”

• “Well, I meant that as in like I'm not – I don't believe I was in like a form of psychosis or anything when I did it because I'm aware that it was wrong but my mental state – like I do need help, I mean, and I'm not gonna lie, I kind of assumed that I would end up being forced there because of my diagnosis like I was forced into the hospital last time.”

• “I don't think, I don't think ․ marrying someone who is a ․ who's a predator and an abuser and finding out then and finding out that there's a connection to your family for some reason and then 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.”

• “I'm assuming capital murder is a life sentence?”

This evidence supports the inference that Appellant likely knew her conduct was wrong. She knew it was wrong to hurt and murder her children, and by hurting and murdering her children, it would result in her being potentially charged with and convicted of capital murder.

Further contributing to the evidence of her knowledge, Appellant stated she had a harder time with A.H. than she had with L.M., because A.H. was her oldest and she was still in shock at what she had done to L.M. Appellant also said she knew she should have “called it in” once she killed L.M., but chose not to and waited until it was time to put A.H. to bed to take her life too.

It is true that Appellant expressed that she committed the crime because she wanted to protect her children from the abuse that her delusions had convinced her was happening. The paranoia caused by her severe mental illness permeated every aspect of the crime and as a result made Appellant feel like there was no other option. But moral justification does not affect the question of insanity. See Ruffin, 270 S.W.3d at 592. Despite feeling like there was no other option, Appellant still made several statements indicating her awareness that her actions were legally wrong at the time of the offense.

Together, the 911 call, the lobby body cam footage, and the police interview show a cumulation of overwhelming evidence that Appellant knew her conduct was legally wrong. In the Rule 44.2(b) analysis, the overwhelming evidence of Appellant's guilt, or rather her knowledge that her conduct was wrong at the time of the offense, heavily weighs in favor of no substantial harm. See Motilla, 78 S.W.3d at 357.

V(A)(3) — Additional considerations.

Finally, we evaluate the remaining relevant substantial rights factors. To be sure, during voir dire, several venire members asked questions about possible expert testimony and indicated they would want to hear from experts. See Coble, 330 S.W.3d at 281 (noting that juror reliance on expert testimony can be particularly persuasive). But again, because of the battle-of-the-experts nature of the testimony, it is unlikely that Dr. Compton's testimony itself affected the jury's verdict, especially because the State clarified with Dr. Compton during her testimony that it, not the trial court, had hired her. The jury knew that Dr. Compton was a State-sponsored expert.

Lastly, we look at whether the error was emphasized by the State. The State never referenced Dr. Compton's testimony in closing arguments. It used Dr. Compton exclusively as a rebuttal witness. Instead, in closing arguments, the State highlighted the digital evidence. It emphasized that Appellant made several statements showing knowledge of wrongdoing, that she attached child pornography to murder as a crime, and that much of the evidence about Appellant believing that the children were coming back had not been mentioned to anyone until months after the crimes when Dr. Clayton interviewed Appellant. The defense was the only party that mentioned Dr. Compton's testimony during closing arguments, and the defense attacked her credibility. We cannot say that the error was emphasized by the State here.

Overall, the Fifth District Court of Appeals's finding that Appellant's substantial rights were not affected by Dr. Compton's testimony was correct. Even if error occurred by allowing Dr. Compton to testify in violation of Article 46C.101(a), that alleged error could not have “had a substantial and injurious effect or influence” on the jury's verdict and did not affect Appellant's substantial rights. Tex. R. App. P. 44.2(b); King, 953 S.W.2d at 271.

V(B) — No constitutional error.

Appellant also urges this Court to find that Dr. Compton violated her Fifth Amendment rights during the competency exam by inquiring into her mens rea at the time of the offense. Specifically, Appellant takes issue with the fact that Dr. Compton “delved into the subject of insanity when she was supposed to be evaluating competency.” She refers to this information as “illegally obtained.” She argues that “[t]he privilege against self-incrimination applies in the setting that Compton created. Compton was effectively engaged in custodial interrogation.” As a result, Appellant believes Dr. Compton should not have been permitted to testify at all; her goal at the motion to suppress hearing was to have Dr. Compton's testimony excluded. Appellant asserts that Dr. Compton's overall testimony “tipped the scale heavily in the State's favor,” and thus, her Fifth Amendment rights were harmed.

It is important to keep this issue distinct from the previously discussed statutory Article 46C.101(a) issue. Appellant's Fifth Amendment argument is narrowly directed at the competency evaluation. Notably, Appellant's defense counsel agreed to and knew that Dr. Compton would be evaluating Appellant for competency. After Dr. Clayton's report was untimely filed, the defense agreed to the State's request that Dr. Compton come in to do a secondary competency exam. Also, Appellant has raised no issue with the ultimate competency findings—that Appellant was competent to stand trial. Any grievances Appellant has with Dr. Compton's actions stems only from her venturing into potential mens rea and insanity-based information at that time.

Although the court of appeals did not address the merits of the constitutional issue (because of its preservation holding), we analyze it now despite the ordinary rule that this Court only reviews decisions from the courts of appeals. See Tex. R. App. P. 66.1; Osorio-Lopez v. State, 663 S.W.3d 750, 757 (Tex. Crim. App. 2022). An exception to that general rule is to further judicial economy when “the proper resolution of the remaining issue is clear.” Osorio-Lopez, 663 S.W.3d at 757 (quoting Davison v. State, 405 S.W.3d 682, 691–92 (Tex. Crim. App. 2013)). Here, the answer to the Fifth Amendment question has already been established through the resolution of the Article 46C.101(a) statutory issue.

The Fifth Amendment protects persons from being “compelled in any criminal case to be a witness against himself.” U.S. Const. amend. V. If a defendant is compelled to incriminate herself, that statement may not be used against her in a criminal prosecution. Miranda, 384 U.S. at 479, 86 S.Ct. 1602. Appellant contends that because Dr. Compton was hired by the State, she was a state actor for Miranda purposes. She also does not believe that the admonishments Dr. Compton gave Appellant before the competency interview amounted to Miranda’s requirements.¹⁰ For today's purposes only, without ruling on either proposition, will we assume that Appellant's beliefs on these points are correct.

The Fifth Amendment prohibits the use of compelled testimony by the prosecution in its case. Oregon v. Elstad, 470 U.S. 298, 306–307, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985). Miranda warnings have developed as a prophylactic rule that safeguards defendants’ constitutional rights; custodial statements obtained without Miranda warnings are subject to exclusion. Baker v. State, 956 S.W.2d 19, 24 (Tex. Crim. App. 1997); see also Henderson v. State, 962 S.W.2d 544, 553 (Tex. Crim. App. 1997) (“As for the Miranda rule, it does not actually prohibit law enforcement officers from eliciting statements without the appropriate warnings; the rule merely prevents the admission of such statements into evidence.”)

We explored this rule in Contreras v. State, 312 S.W.3d 566, 580–83 (Tex. Crim. App. 2010). There, we reviewed a suggestion from Baker which noted that a police officer's failure to give Miranda warnings in of itself does not amount to a constitutional violation—the violation occurs when that illegally obtained evidence is admitted “in a judicial proceeding.” Id. at 580–81 (citing Baker, 956 S.W.2d at 24).¹¹ We explained:

Miranda does not set forth substantive constitutional rights with regard to interrogations; rather, that decision and its progeny set up rules for the admission of certain statements by the accused—excluding a statement under certain conditions when it is determined that law enforcement failed to observe certain practices during a custodial interrogation. The failure to observe those practices—give warnings, honor warnings, etc.—is not itself a constitutional violation, but the admission, in certain circumstances, of a statement that was taken without observing those practices is. Miranda is not violated until the statement is admitted into evidence in a criminal proceeding, and then only if an “exception” to Miranda does not apply. Although we have sometimes referred to the bare failure to give warnings, or to honor an invocation of rights, as a violation of Miranda, such references are not technically accurate. Police officers may fail to follow guidelines set forth in Miranda, but they cannot, properly speaking, violate Miranda. Only a court, by admitting evidence that Miranda proscribes, can violate Miranda.

Id. at 582 (footnotes omitted). Thus, a Fifth Amendment violation occurs not when the statement is taken, but rather when that statement is used by the State against the defendant in a criminal proceeding. See id.

Turning to the case at hand, Appellant believes that her constitutional rights were violated and Dr. Compton's testimony should have been wholly excluded. Miranda’s principles may have been offended (though, we decline so hold so), but the right against self-incrimination would have only been contravened if those “illegally obtained” statements were introduced by the State at trial and admitted by the trial court. That did not happen here.

As previously stated, Dr. Compton never testified on direct or re-direct about the statements Appellant made during the competency exam regarding her mens rea at the time of the offense. We found no State-sponsored statements that were elicited, and Appellant identifies none. In regard to competency, during her State led testimony, Dr. Compton proffered her credentials, what she reviewed prior to the evaluation, and that she was retained by the State. In giving her own opinion, she stated that while Appellant was having a “little bit of delusions,” she was “organized and coherent” and ultimately Dr. Compton believed Appellant was competent. The State's direct examination of Dr. Compton did not reveal to the jury that, during the competency evaluation, she explored whether Appellant was insane at the time of the offense. Instead, that information was revealed by Appellant's questioning.

Thus, while there may have been a Miranda violation, those concerns were futile because the State never actually offered the “illegally obtained” statements against Appellant at trial. The State's non-use cannot be said to be an infringement of the principles of the Fifth Amendment, and so there was no error.

VI — Conclusion

Based on a review of the record, we reverse the Fifth District Court of Appeals's finding that Appellant had failed to preserve her issues for appellate review. On her statutory issue, assuming, without deciding, that Article 46C.101(a) was violated by the appointment of Dr. Compton, we hold that the introduction of Dr. Compton's testimony did not harm Appellant's substantial rights. Additionally, we find no Constitutional error. The judgment of the court of appeals is affirmed.

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. 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 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 warnings prescribed by Article 38.22 ² (also satisfying the requirements of Miranda ³ ). 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 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

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:

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

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.

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 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.

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 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 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 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, 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.”

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, 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 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 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 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 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 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 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 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 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.

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 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 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 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-a-disinterested-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 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 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 self-incrimination, 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 “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 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 State-affiliated 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.

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 the Court's judgment.

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, No. PD-0538-25, ––– S.W.3d ––––, ––––, 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.   As a note, the actual motion to suppress is not available in the Clerk's Record. Though, the trial transcript indicates that a motion was filed, a lengthy hearing was held on the motion, and neither party disputes that a motion was filed. (See 7RR175–8RR66).

2.   Miranda v. Arizona, 384 U.S. 436, 467–68, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

3.   See Tex. Code Crim. Proc. Ann. art. 46C.101(a).

4.   Appellant was tried in April 2023 only for killing A.H. There has not been a trial for L.M.’s death.

5.   “No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.” Tex. Code Crim. Proc. Ann. art. 38.23(a).

6.   “An expert may base an opinion on facts or data in the case that the expert has been made aware of, reviewed, or personally observed. If experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted.” Tex. R. Evid. 703.

7.   Appellant also distinguished her case from Kansas v. Cheever, 571 U.S. 87, 134 S.Ct. 596, 187 L.Ed.2d 519 (2013) and Penry v. State, 903 S.W.2d 715 (Tex. Crim. App. 1995). These cases both address Fifth Amendment issues. See Cheever, 571 U.S. at 89–90, 134 S.Ct. 596; Penry, 903 S.W.2d at 758–60.

8.   The court of appeals also held that the State could have nonetheless presented Dr. Compton as a rebuttal witness, even if she was found to be an interested expert. McDonald, ––– S.W.3d at ––––, 2024 WL 4784421, at *13 (citing Lagrone v. State, 942 S.W.2d 602, 609–12 (Tex. Crim. App. 1997); and then Polvon v. State, 682 S.W.3d 651, 660–61 (Tex. App.—Eastland 2024, pet. ref'd)). We decline extend this holding, as the issue can be resolved using the traditional Rule 44.2(b) factors.

9.   The 911 call was made at 10:10 PM. The jury later heard evidence that Appellant had killed L.M. earlier in the day, at approximately 1:36 PM. For the rest of the day, she stayed with A.H. while they did all of A.H.’s favorite things and ordered her favorite foods. So, while Appellant told the dispatcher that the murders had happened an hour earlier, it is only A.H.’s murder that happened approximately an hour before the 911 call.

10.   Dr. Compton testified that before the competency exam she gave Appellant admonishments. The admonishments from her report read as follows:Informed Consent: Ms. McDonald was informed that the purpose of the evaluation was to assess her mental competency to stand trial. She was advised of the following:1. A finding of incompetency neither hurt or helped her criminal case and that any statements made during the course of a competency examination could not be used against her. Please see Art. 46B.007.2. The evaluation would be provided to her attorney, the prosecutor, and the court, and;3. No treatment would be provided.Ms. McDonald acknowledged an understanding of the scope of the evaluation as well as the limits of confidentiality and voluntarily agreed to proceed.

11.   Also citing Chavez v. Martinez, 538 U.S. 760, 123 S.Ct. 1994, 155 L.Ed.2d 984 (2003), we observed that the Supreme Court has embraced the same proposition. Contreras, 312 S.W.3d at 581–82. In Chavez, Justice Thomas, speaking for a plurality of the Court, stated, “Statements compelled by police interrogations of course may not be used against a defendant at trial ․ but it is not until their use in a criminal case that a violation of the Self-Incrimination Clause occurs.” Chavez, 538 U.S. at 767, 123 S.Ct. 1994 (citing U.S. v. Verdugo-Urquidez, 494 U.S. 259, 264, 110 S.Ct. 1056, 108 L.Ed.2d 222 (1990)) (“Although conduct by law enforcement officials prior to trial may ultimately impair that right, a constitutional violation occurs only at trial.”)

1.   I disagree with any suggestion that Appellant's statutory claim was preserved, but the Court's finding of harmlessness moots that disagreement.

2.   Tex. Code Crim. Proc. art. 38.22, § 2(a).

3.   Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

4.   Emphasis added.

5.   Italics in original.

6.   See Tex. Code Crim. Proc. art. 46B.007.

7.   Capitalization at beginning of each word converted to lowercase.

8.   Lagrone v. State, 942 S.W.2d 602 (Tex. Crim. App. 1997).

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.”

11.   McDonald v. State, No. 05-23-00419-CR, ––– S.W.3d ––––, ––––, 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 ––––, 2024 WL 4784421, at *13 (citing Tex. R. App. P. 44.2(b)).

15.   Id.

16.   Id.

17.   See Appellant's brief at 48 (citing Estelle v. Smith, 451 U.S. 454, 469-471, 101 S.Ct. 1866, 68 L.Ed.2d 359 (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.”).

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.”).

21.   See Estelle, 451 U.S. at 461-69, 101 S.Ct. 1866.

22.   384 U.S. at 467, 86 S.Ct. 1602.

23.   See Estelle, 451 U.S. at 466-67, 469, 101 S.Ct. 1866 (discussing Miranda and basing its holding thereon); see also White v. Woodall, 572 U.S. 415, 424 n.4, 134 S.Ct. 1697, 188 L.Ed.2d 698 (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).

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, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971) (impeachment) and Michigan v. Tucker, 417 U.S. 433, 94 S.Ct. 2357, 41 L.Ed.2d 182 (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”).

28.   597 U.S. 134, 142, 142 S.Ct. 2095, 213 L.Ed.2d 479 (2022).

29.   Id. at 144-45, 142 S.Ct. 2095 (discussing Harris and Tucker).

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)).

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.”).

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. 2023) (“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.”).

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, 101 S.Ct. 1866.

40.   See Illinois v. Perkins, 496 U.S. 292, 299, 110 S.Ct. 2394, 110 L.Ed.2d 243 (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, 106 S.Ct. 477, 88 L.Ed.2d 481 (1985).

42.   See supra at Part II.A.

43.   See supra at n.9.

44.   See supra at n.15.

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, ––– S.W.3d ––––, ––––, 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 ––––, 2024 WL 4784421, 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 ––––, 2024 WL 4784421, 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 ––––, 2024 WL 4784421, 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.

Walker, J., delivered the opinion of the Court in which Schenck, P.J., and Richardson, Newell, and McClure JJ., joined. Yeary and Parker, JJ., joined Part V only. Finley, J., joined Parts I–IV and V(A)(1)–(3).

Parker, J., filed a concurring opinion, in which Yeary, J., joined. Finley, J., filed a concurring and dissenting opinion. Keel, J., concurred.