McDonald, Madison

McDonald smothered her children, immediately turned herself in, and told police she did it to protect them from sexual abuse by family members.  She was found incompetent and restored during the pendency of trial, and ultimately mounted a failed insanity defense.  McDonald’s petition concerns the State’s insanity expert, Dr. Compton.  Compton was the second expert to examine McDonald for competency, and did so at the State’s request with the defense’s agreement.  After the defense filed notice of the insanity defense, the State asked for Compton to be appointed as their “disinterested expert” under Tex. Code Crim. Proc. art. 46C.101(A).  That was in June of 2022.  This was again brought to the defense’s attention in April of 2023, a week before trial.  Roughly midway through trial, McDonald objected to Compton’s anticipated testimony on two bases.  First, she was not disinterested because she had examined McDonald previously for competency at the State’s request.  Second, she had asked McDonald questions about the facts of the offense, making any opinion based on that testimony a Fifth Amendment violation.  [During that hearing, Compton testified that she typically considered a defendant’s state of mind at the time of the offense in her competency exams.  McDonald’s expert disagreed with that practice.]  The trial court pointed out that a pretrial objection would have enabled the State to request a different expert and suggested two remedies: reset the trial or proceed without experts on either side.  McDonald agreed to neither so the judge allowed Compton’s testimony.  

On appeal, McDonald argued Compton’s testimony should have been excluded as illegally obtained in violation of Art. 38.23(a) and was as such also inadmissible under Rule 703.  The court of appeals denied relief on four grounds.  First, it held McDonald’s complaint untimely.  She knew at least a week before trial commenced that this problem existed and could have raised it when the trial court could have corrected it without disrupting trial.  Second, it held the trial objections did not match the point on appeal.  Third, the announcement of an insanity defense waives privilege for the purpose of rebutting it under Lagrone v. State, 942 S.W.2d 602 (Tex. Crim. App. 1997), and art. 46C.101 is not implicated by that scheme.  Fourth, McDonald wasn’t harmed because the evidence that McDonald understood the legal wrongfulness of her actions was overwhelming.

McDonald’s motion for reconsideration en banc was denied without opinion.  Justice Lee authored a dissent.  He would have held that her objection was timely, i.e., before the evidence was offered at trial, and comported sufficiently with the argument made on appeal.  He also reduced the fight over insanity to the testimony of two experts: Compton and McDonald’s expert.  In that light, he could not find the error harmless beyond a reasonable doubt.

McDonald’s petition picks up on Justice Lee’s dissent.  She argues that those subject to improper interrogations have automatic protection from the use of their statements and that “[i]f harm wasn’t shown here, then it can never be shown.”