by David Kim

The Court of Criminal Appeals of Texas reversed a suppression order and held that a defendant’s Sixth Amendment right to counsel terminates when charges are dismissed, rejecting the argument that the right persists indefinitely after a grand jury no-bill. The Court clarified that its prior decision in Frye v. State, 897 S.W.2d 324 (Tex. Crim. App. 1995), represents a narrow exception requiring deliberate prosecutorial manipulation of the charging process to circumvent counsel, and that absent such misconduct, the settled rule applies.

Background

In 2007, Amanda McDonald was charged with intoxication manslaughter and failure to stop and render aid following a fatal hit-and-run collision. She immediately retained counsel. The grand jury no-billed the charges in 2008, and the State dismissed them. Ten years passed without further proceedings.

In 2018, San Antonio Police Detective Brian Sullivan, the original lead investigator, decided on his own initiative to revisit the case. No one directed him to do so. Sullivan and Officer Jeremy Goodwin went to McDonald’s residence and questioned her for over an hour. During the encounter, McDonald referenced her attorney multiple times, including stating that she could not speak to the officers without counsel. The conversation nonetheless continued and produced statements that led to McDonald being reindicted on the same offenses in 2020.

McDonald moved to suppress her 2018 statements, arguing the questioning violated her Sixth Amendment right to counsel because that right had attached in 2007 and remained intact. At the suppression hearing, Sullivan acknowledged knowing McDonald had been represented in 2007 but claimed he did not know she was still represented when he questioned her. McDonald’s original defense counsel testified that although he did not presently represent her, he believed the attorney-client relationship remained in effect.

The trial court granted suppression, finding that McDonald continued to be represented by her original counsel, that she had specifically invoked her right to counsel during the 2018 interview, and that portions of Sullivan’s testimony lacked credibility. The court concluded the Sixth Amendment right to counsel had been violated. The Thirteenth Court of Appeals affirmed, relying on Frye to hold that McDonald’s right to counsel persisted beyond the no-bill because the original right had attached, she remained represented, and the renewed investigation was ongoing and known to the officers.

Analysis

The Court began by articulating foundational Sixth Amendment principles. The right to counsel attaches only upon the initiation of formal adversarial proceedings – whether by formal charge, preliminary hearing, indictment, information, or arraignment. Rothgery v. Gillespie Cnty., 554 U.S. 191 (2008). Its purpose is to protect the accused during critical confrontations with the government after the adverse positions of the parties have solidified with respect to a particular alleged crime. McNeil v. Wisconsin, 501 U.S. 171 (1991). The right is both offense-specific and proceeding-specific, meaning it does not extend to uncharged conduct or attach before formal proceedings begin. Texas v. Cobb, 532 U.S. 162 (2001).

Importantly, the Court observed that the right to counsel is not a permanent entitlement that, once invoked, blankets all future interactions with law enforcement. The Supreme Court has expressly instructed that the right “cannot be invoked once for all future prosecutions.” McNeil. Based on this principle, Texas courts recognize that when charges are dismissed, the adversarial process terminates, the parties are no longer in legally adverse positions, and the Sixth Amendment right to counsel ends. Frye. If charges are later refiled, the right attaches anew at the initiation of those new proceedings and does not carry over from the dismissed case, the Court explained. See id.

Distinguishing
the Frye Exception

In the present case, the central dispute was whether Frye compelled a different result. The Court concluded it did not, characterizing Frye as a narrow exception grounded in egregious prosecutorial misconduct rather than a broad expansion of the Sixth Amendment right to counsel.

In Frye, the State dismissed a misdemeanor theft charge specifically for the purpose of a “continuing investigation.” While that investigation remained active, two members of the District Attorney’s Office initiated secret, tape-recorded phone calls with the defendant despite knowing he was represented by counsel. The calls elicited the defendant’s defensive theories. Three years later, the same conduct was aggregated with other offenses and charged as a felony. The Frye Court held that the State had deliberately circumvented the defendant’s right to counsel by using dismissal as a pretext to interrogate him without his lawyer present. The holding rested on “the unique facts of this case,” including the express purpose of the dismissal and the covert nature of the subsequent interrogation.

The Court identified material factual distinctions between Frye and McDonald’s case. McDonald’s charges were dismissed because a grand jury no-billed them, not because the State sought to continue investigating outside counsel’s presence. The record contained no evidence that the investigation remained open during the 10-year gap or that the State maintained an active investigative interest. Unlike the coordinated prosecutorial conduct in Frye, Sullivan acted on his own initiative, unprompted by anyone at the District Attorney’s Office. Most significantly, nothing suggested the 2008 dismissal was orchestrated to facilitate interrogation a decade later. The Court held that the court of appeals erred in extending Frye beyond its deliberately limited scope.

Allegations of Trickery
During Questioning

The Court separately addressed whether law enforcement’s conduct during the 2018 interview rendered McDonald’s statements involuntary. Texas precedent permits strategic misrepresentations during questioning so long as the tactics are not calculated to produce an untruthful confession or are otherwise offensive to due process. Creager v. State, 952 S.W.2d 852 (Tex. Crim. App. 1997). The inquiry turns on the totality of the circumstances and whether the suspect’s will was overborne. See Armstrong v. State, 718 S.W.2d 686 (Tex. Crim. App. 1985). The record reflected that officers told McDonald she was not in trouble and that the case did not belong to Goodwin. McDonald initiated further conversation after having acknowledged her right to counsel. Thus, the Court found no evidence of coercion or trickery that would render the statements involuntary under due process standards.

Conclusion

The Court held that McDonald’s Sixth Amendment right to counsel terminated when the charges against her were dismissed in 2008. The Frye exception did not apply because the dismissal resulted from a grand jury no-bill rather than a deliberate prosecutorial strategy to circumvent counsel. Her 2018 statements were therefore admissible, the Court ruled.

Accordingly, the Court reversed the judgment of the Court of Appeals, reversed the trial court’s suppression order, and remanded for further proceedings consistent with its opinion. See: State v. McDonald, 2026 Tex. Crim. App. LEXIS 262 (2026).

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