McDonald v. State - No Sixth Amendment Counsel Right After No-Bill

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April 16, 2026 Get Citation Alerts Download PDF Add Note

MCDONALD, AMANDA v. the State of Texas

Court of Criminal Appeals of Texas

• Citations: None known
• Docket Number: PD-0006-25
• Nature of Suit: PDR Case Type

• Disposition: Reversed COA & Trial Court; Remand to Trial Court

• Opinion

• Authorities (15)

• Cited By (0)

• Summaries (0)

• Similar Cases (22.7K)

• PDF

Disposition

Reversed COA & Trial Court; Remand to Trial Court

Lead Opinion

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-0006-25

STATE OF TEXAS

v.

AMANDA MCDONALD, Appellee

ON STATE’S PETITION FOR DISCRETIONARY REVIEW
FROM THE 13TH COURT OF APPEALS
BEXAR COUNTY

MCCLURE, J., delivered the opinion of the Court in which SCHENCK,
P.J., RICHARDSON, YEARY, KEEL, WALKER, and PARKER, JJ., joined. NEWELL,
J., concurred. FINLEY, J., joined except as to Part I. iii.

OPINION

In 2007, the State charged Appellee with intoxication manslaughter and

failure to stop and render aid for her role in a fatal car accident. Appellee immediately

retained counsel after being charged. The following year, in 2008, the grand jury no-

billed and dismissed the charges. Ten years later, in 2018, police re-approached her
MCDONALD — 2

to ask her questions about the car accident. In 2020, Appellee was again charged with

one count of failure to stop and render aid and one count of intoxication

manslaughter, as she was previously charged in 2007. Appellee filed a motion to

suppress alleging that police had violated her Sixth Amendment right to counsel

when police questioned her ten years after the case was first no-billed. The trial court

granted the motion to suppress, and the State appealed.

We granted review in this case to determine whether Appellee still enjoyed a

Sixth Amendment right to counsel after a grand jury no-billed the intoxication

manslaughter and failure to stop and render aid charges brought against her. We hold

that she did not.

BACKGROUND

In 2007, Brandon Fletcher was fatally injured in a hit-and-run collision. San

Antonio Police Officer Brian Sullivan served as the lead detective in the investigation.

Over the years, Appellee’s case “stuck” with Sullivan because Appellee was his

prime suspect, and the investigation ultimately did not result in a conviction. Even

though nobody asked Sullivan to re-investigate the case, Sullivan felt compelled to

investigate it again. Therefore, in 2018, Sullivan went to Appellee’s house and

questioned her about the 2007 car accident. Officer Jeremy Goodwin accompanied

Sullivan, and Goodwin’s body cam recorded the visit. During the interview,
MCDONALD — 3

Appellee ended up talking to Goodwin about the accident. This questioning resulted

in Appellee being reindicted.

After being charged, Appellee filed a motion to suppress the statements she

made to the officers. She argued that Sullivan and Goodwin violated her Sixth

Amendment right to counsel because the right to counsel had attached in 2007 and

was still intact when she was questioned in 2018. At a hearing on the motion, Sullivan

testified that no one at the District Attorney’s Office or SAPD asked him to resume

the investigation. He also testified that although he knew Appellee was represented

by counsel back in 2007, he did not know whether she was still represented by

counsel when he questioned her ten years later.

Defense counsel questioned Sullivan about what he remembered from the day

he questioned Appellee:

Q: [D]o you remember telling [Appellee] [“]you stopped talking to
me?[”]
A: Yes.
Q: Okay. And she said she couldn’t. Right?
A: Yes.
Q: You asked her why. Right?
A: Like I said, I don’t remember my words, but I will say yes.
Q: Okay. And she said [“]my lawyer.[”] Right?
A: I guess that’s a yes. If that’s what the words are.
Q: And then you said, [“]You still could have talked all you wanted, so
I am just trying to go back to that point where you were talking to me.[”]
A: Right.
Q: Do you remember saying that?
MCDONALD — 4

A: I don’t remember, but I will acknowledge that I did say that. Yes.
Q: So in effect, did you say, [“]I am just trying to get around this whole
attorney-client nonsense.[”] Right?
A: I was referring to . . . the interrogation at the time of the custodial
arrest in 2007. That’s what I was referring to just to that point.

The attorney who served as Appellee’s defense counsel in the 2007 cases also

testified at the hearing. He told the trial court that although he did not presently

represent Appellee, he believed the original attorney-client relationship was still

intact when Sullivan questioned her in 2018.

After the hearing, the trial court granted the motion to suppress, concluding

that Appellee’s Sixth Amendment right to counsel was violated. The trial court

made the following findings (among others):

• According to Goodwin’s body cam, Sullivan tried to talk to Appellee
at one point and she said, “I couldn’t! My lawyer!” Appellee’s
father, who was in the house that day, then mentioned the names of
defense counsel, and Appellee reiterated who her lawyers were at
the time.
• At about 20 minutes into the interview, Appellee said, “I don’t have
to talk to you.” She walked away and could be heard shouting in the
hallway, “. . . not without my lawyer.”
• At about 1 hour and 14 minutes into the interview, as Sullivan and
Goodwin were leaving, Appellee’s father asked them if it would be
okay if they contacted their attorney to tell him the police had been
there and that “you [the police] had checked this out.”
• Appellee’s father was very soft-spoken and had initially hired
defense counsel in 2007. Although it could not be heard on the
video, it is “hard to believe that the father never mentioned them
having a lawyer during the 1 hour and 15 minutes Sullivan and
Goodwin were at Appellee’s house.”
MCDONALD — 5

• When Appellee was questioned in 2018, she continued to be
represented by the same counsel she retained in 2007 for the original
charges. That attorney-client relationship didn’t end until new
counsel was appointed in 2020.
• The trial court found the following parts of Sullivan’s testimony not
to be credible: (a) that Sullivan did not remember talking to defense
counsel in 2007 and 2008; (b) that Sullivan did not contact
Appellee’s 2007-2008 defense counsel before questioning Appellee
in 2018 because he did not know who her attorney was; and (c) that
when Sullivan went to Appellee’s house in 2018, Sullivan was not
aware or did not believe that Appellee was still represented by
defense counsel.”
• Even though formal charges weren’t pending when Appellee was
questioned in 2018, it was clear from Sullivan’s hearing testimony
that his investigation of the case was “ongoing.”
• Although Appellee wasn’t in custody when the officers questioned
her in 2018, she was questioned for the purpose of acquiring enough
incriminating information so she could be re-charged for the
offenses from 2007, “offenses for which she had retained legal
counsel and who she specifically named at least twice during the
interview.”

After the trial court granted the motion to suppress,1 the State appealed. The

State argued that Appellee did not possess a Sixth Amendment right to counsel when

she was questioned in 2018 because that right terminated after her charges were no-

billed in 2008 and remained dormant for ten years.

1
In Frye, we observed that the United States Supreme Court has held that when a Sixth
Amendment violation has occurred, the trial court must “identify and then neutralize the taint by
tailoring relief appropriate in the circumstances to assure the defendant effective assistance of
counsel and a fair trial.” State v. Frye, 897 S.W.2d 324, 330 (Tex. Crim. App. 1995) (citing U.S. v.
Morrison, 449 U.S. 361, 365 (1981)). A dismissal may be proper when “a defendant suffers
demonstrable prejudice, or a substantial threat thereof, and where the trial court is unable to
identify and neutralize the taint by other means.” Id.
MCDONALD — 6

The Thirteenth Court of Appeals rejected that argument and concluded that

Appellee’s Sixth Amendment right to counsel, which attached in 2007, remained in

effect at the time of the 2018 questioning. The court considered Frye and concluded

that Appellee’s right to counsel remained intact in 2018 because (1) the original right

had attached in 2007, (2) she remained represented after the charges were no-billed,

(3) the attorney-client relationship remained intact, and (4) the renewed investigation

was ongoing and known to the officers. The court further rejected the State’s claim

that Appellee’s Sixth Amendment right expired merely by the passage of time. For

the reasons discussed below, we disagree.

THE SIXTH AMENDMENT RIGHT TO COUNSEL

The Sixth Amendment states:

In all criminal prosecutions, the accused shall enjoy the right to a speedy
and public trial, by an impartial jury of the state and district wherein the
crime shall have been committed, which district shall have been
previously ascertained by law, and to be informed of the nature and
cause of the accusation; to be confronted with the witnesses against
him; to have compulsory process for obtaining witnesses in his favor,
and to have the assistance of counsel for his defense.

U.S. CONST. AMEND. VI.

The purpose of the Sixth Amendment right to counsel guarantee “is to

‘protect the unaided layman at critical confrontations’ with his ‘expert adversary,’

the government, after ‘the adverse positions of government and defendant have
MCDONALD — 7

solidified’ with respect to a particular alleged crime.” McNeil v. Wisconsin, 501 U.S.

171, 177–78 (1991) (quoting U.S. v. Gouveia, 467 U.S. 180, 189 (1984)). At least after

the initiation of formal charges, the Sixth Amendment guarantees an accused “the

right to rely on counsel as a ‘medium’ between him and the State.” Maine v. Moulton,

474 U.S. 159, 176 (1985).

The Sixth Amendment right to counsel attaches once a person is formally

charged with a crime. Rothgery v. Gillespie Cnty., 554 U.S. 191, 198 (2008) (citing

McNeil, 501 U.S. at 175). Accordingly, a suspect enjoys a Sixth Amendment right to

counsel during interrogations that occur after the suspect has been formally charged

with a crime. State v. Maldonado, 259 S.W.3d 184, 187 (Tex. Crim. App. 2008).

As a corollary, a suspect who is subject to a noncustodial interrogation prior to

the initiation of formal charges does not enjoy a Sixth Amendment right to counsel.

See Kirby v. Illinois, 406 U.S. 682, 688 (1972) (“[I]t has been firmly established that

a person’s Sixth and Fourteenth Amendment right to counsel attaches only at or after

the time that adversary judicial proceedings have been initiated against him.”). A

suspect’s Sixth Amendment rights attach when there are formal adversarial

proceedings. Frye, 897 S.W.2d at 327.

The Sixth Amendment right to counsel is both offense-specific and

proceeding-specific. As discussed, the right attaches only at “ʻthe initiation of
MCDONALD — 8

adversarial judicial proceedings—whether by way of formal charge, preliminary

hearing, indictment, information, or arraignment.’” Rothgery, 554 U.S. at 198

(quoting Gouveia, 467 U.S. at 188). The right is violated when the State obtains

incriminating statements by knowingly circumventing the accused’s right to have

counsel present in a confrontation between the accused and a state agent. Moulton,

474 U.S. at 171, 176; see also Westbrook v. State, 29 S.W.3d 103, 117 (Tex. Crim. App.

2000). Once charges are dismissed, however, the adversarial process terminates, and

with it, the Sixth Amendment right to counsel.

Every court in this country is bound by this principle, as the United States

Supreme Court has made clear that the right to counsel “ʻcannot be invoked once

for all future prosecutions.’” Texas v. Cobb, 532 U.S. 162, 167 (2001) (quoting McNeil,

501 U.S. at 175). The right is not a free-floating entitlement that exists independent

of an active prosecution; rather, it attaches at the first formal proceeding and

generally ends with the dismissal of the charges. See Frye, 897 S.W.2d at 328

(explaining that when charges are dismissed, the parties are no longer in legally

adversarial positions).

The right is offense-specific and typically does not persist absent ongoing

charges. See Frye, 897 S.W.2d at 329 (“[T]he Sixth Amendment right to counsel is
MCDONALD — 9

offense specific and will not bar police-initiated interrogation for non-charged

crimes[.]”).

Thus, when the State dismisses a case, the prosecution ceases to exist.

Without an active criminal proceeding, the Sixth Amendment right to counsel

necessarily terminates. If charges are later re-filed, the right to counsel attaches anew

at the initiation of those new adversarial proceedings; it typically does not “carry

over” from the previously dismissed case.

ANALYSIS

I. APPELLANT’S SIXTH AMENDMENT RIGHT TO COUNSEL

i. Adversarial proceedings against Appellant terminated in 2008.

As discussed above, the Sixth Amendment is case specific and does not

continue once charges are no longer pending. Indeed, once charges are no longer

pending there is no longer a need for a legal “expert adversary” to be a “medium”

between the client and law enforcement. Here, the charge had been no-billed by a

duly appointed grand jury. In reliance upon that no-bill, the State dismissed the

charges ten years prior to the interview in question. By that time, appointed counsel

was no longer representing Appellee. Under Supreme Court precedent, Appellee’s

Sixth Amendment right to counsel had terminated.
MCDONALD — 10

ii. No evidence the State dismissed charges specifically to continue
investigating and circumvent Appellee’s right to counsel.

Appellee argues that law enforcement improperly continued their

investigation and deliberately sought to circumvent her right to counsel. For this she

relies on this Court’s decision in (and the intermediate court’s reliance on) Frye in

which we held that a mere dismissal of a misdemeanor charge while investigation

was still ongoing did not terminate the defendant’s Sixth Amendment right to

counsel. Frye, 897 S.W.2d at 329. However, Frye is factually distinguishable from the

case at hand and does not control the result in Appellee’s case.

In Frye, this Court examined whether a defendant retained his Sixth

Amendment right to counsel in the months following the dismissal of charges on the

State’s motion. Frye, 897 S.W.2d at 325–26. In that case, Frye was first charged by

misdemeanor complaint in 1988 for theft of services. Id. at 325. He retained counsel,

and the State later dismissed the misdemeanor case specifically for a “continuing

investigation.” Id. During that ongoing investigation:

• Two members of the DA’s office—an intern and an assistant district
attorney—each initiated secret, tape-recorded phone calls with
Frye. The first call took place about two months after the case was
dismissed, and the second call took place about four months after
the dismissal.
• Both knew Frye was represented by counsel.
• Both questioned him directly without notifying his lawyer.
• The calls elicited Frye’s defensive theories.
MCDONALD — 11

Id. at 326.

Three years later, in 1991, Frye was indicted for felony theft. Id. The felony

indictment alleged the same conduct as that alleged in the original 1988

misdemeanor indictment, aggregated with other offenses to elevate the charge. Id.

After learning of the tape-recorded phone calls, Frye’s counsel moved to dismiss the

case. Id. The trial court found that the State deliberately circumvented defense

counsel and engaged in covert and deceptive recorded communications. Id. In doing

so, the State violated multiple laws and ethical rules, including the Sixth Amendment

right to counsel. Id. The court of appeals affirmed. 2

On appeal to this Court, we agreed that Frye’s Sixth Amendment right to

counsel remained in effect and that the State violated Frye’s Sixth Amendment

rights by questioning him without counsel. Id. at 325. The Court noted that the trial

court found the State reinitiated contact with Frye despite knowing he was

represented and learned his defensive strategy. Id. at 331. Interrogation without

counsel after attachment is a constitutional violation. Massiah v. U.S., 377 U.S. 201,

205–06 (1964). This Court held that such conduct impermissibly circumvented the

2
The court also held that suppression was inadequate because the State had already learned Frye’s
defense strategy, which could not be unlearned and dismissed the indictment with prejudice for
prosecutorial misconduct. Frye, 897 S.W.2d at 326.
MCDONALD — 12

Sixth Amendment and affirmed the dismissal of the indictment. Frye, 897 S.W.2d at

329–30.

However, the Court did not reason that a defendant retained his Sixth

Amendment rights in perpetuity. Instead, the Court stated:

We therefore find that even though the dismissal of the misdemeanor
information and complaint altered the positions of the parties, such
dismissal was accomplished specifically for the purpose of conducting a
“continuing investigation including this transaction.”

Frye, 897 S.W.2d at 329. This Court also considered that “the charges set forth

in the misdemeanor complaint were again alleged in the felony indictment and

aggregated with other theft of services offenses in order to increase the offense grade

to a felony.” Id. However, the Court noted that it was “an important consideration”

that the State had dismissed the previous misdemeanor charges, because it meant

that the State and Appellee “were no longer in legally adversarial positions.” Id. at

328. Despite this consideration, this Court concluded that “the unique facts of this

case” merited an extension of Frye’s Sixth Amendment right to counsel. Id. at 329–

30.

Frye did not create a rule that the Sixth Amendment right to counsel remains

in perpetuity regardless of whether formal proceedings are terminated. We based the

holding in Frye on “the unique facts” of that case—namely, that the case was
MCDONALD — 13

dismissed specifically for the purpose of a “continuing investigation.” Frye, 897

S.W.2d at 329. Frye represents a narrow exception grounded in egregious

prosecutorial misconduct—specifically, a deliberate and calculated effort to

circumvent an accused’s right to counsel. There, the prosecutor’s office exploited

the dismissal of charges as a pretext to initiate interrogation on the same offense,

knowing that the accused had invoked and retained counsel, and acted with the

express purpose of obtaining incriminating statements outside counsel’s presence.

The constitutional violation in Frye flowed not from the mere fact that charges had

been dismissed, but from the State’s intentional manipulation of the criminal process

to evade the protections of the Sixth Amendment. Absent such deliberate

circumvention, the settled rule remains that the right to counsel terminates when

charges are dismissed.

Unlike the charges in Frye, the charges in Appellee’s case were not dismissed

for purposes of a “continuing investigation,” but rather because of a grand jury

determination. Nothing in the record indicates that the investigation into her case

remained, or would remain, open after the charges were dismissed. There is also no

evidence that during the ten years after the charges were dismissed, Appellee’s cases

remained active or that the State continued to investigate the car accident. While the

officers certainly reapproached Appellee for the purpose of obtaining information so
MCDONALD — 14

that Appellee could be re-charged, the termination of the criminal cases ten years

earlier was still not done specifically to continue the investigation. Consequently, the

Court of Appeals erred to rely upon Frye.

iii. No evidence that law enforcement engaged in impermissible
trickery or coercion.

This Court’s precedent explaining what does—and does not—render a

statement involuntary under due process is informative here. Texas courts have long

recognized that the use of deception during an investigation does not automatically

render a suspect’s statement “involuntary.” See, e.g., Creager v. State, 952 S.W.2d

852, 856. While coercion, threats, or promises may undermine the voluntariness of

a confession, “trickery or deception does not make a statement involuntary unless

the method was calculated to produce an untruthful confession or was offensive to

due process.” Creager, 952 S.W.2d at 856 (citing Dotsey v. State, 630 S.W.2d 343,

349 (Tex. App.—Austin 1982, no pet.)).

Thus, the mere use of investigative strategy—even when it involves

misrepresentations about facts or evidence—does not itself rise to the level of

constitutional coercion. Instead, the voluntariness inquiry turns on the totality of the

circumstances. The question is whether law enforcement employed tactics that were

so coercive as to overbear the suspect’s will or were designed to elicit a false
MCDONALD — 15

confession. See Armstrong v. State, 718 S.W.2d 686, 693 (Tex. Crim. App. 1985)

(describing relevant factors in determining whether a defendant’s will was overborne

during questioning).

Consistent with this principle, Texas courts have repeatedly acknowledged

that investigators may use strategic misrepresentations during questioning without

invalidating an otherwise voluntary statement. See, e.g., Wilson v. State, 311 S.W.3d

452, 457–58 (Tex. Crim. App. 2010) (explaining that police use of “trickery and

deception” during interrogation is generally permissible whereas fabricating

evidence is not); see also Creager, 952 S.W.2d at 856. Accordingly, the use of strategic

misrepresentations by law enforcement—standing alone—does not constitute the

type of deception that renders a statement involuntary. Absent evidence that the

deception was calculated to produce a false confession or that it otherwise overcame

the suspect’s ability to exercise free choice, such tactics fall within the range of

permissible investigative methods. Under the governing precedent of this Court, a

statement obtained through these means remains voluntary so long as the totality of

the circumstances demonstrates that the suspect’s will was not overborne.

Here, officers informed Appellee that she was not in trouble and that the

matter was not Detective Goodwin’s case. The record here contains no indication

that Detective Goodwin tricked or pressured McDonald into speaking. Instead, it
MCDONALD — 16

reflects that McDonald herself initiated the conversation after having previously

acknowledged her right to counsel. The fact that officers assured her she was “not

in trouble” does not transform an otherwise voluntary conversation into an

unconstitutional interrogation tactic.

CONCLUSION

Appellee’s Sixth Amendment right to counsel terminated in 2008.

Accordingly, the statements she made during her conversation with Detective

Goodwin in 2018 were properly admissible. We therefore reverse the judgment of

the court of appeals and reverse the trial court’s order granting the motion to

suppress and remand the case for proceedings consistent with this opinion.

Delivered: April 16, 2026

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