violation of Texas constitution when prosecutor contacted defendant and elicited incriminating information without notifying defense counsel
How later courts described this case
- violation of Texas constitution when prosecutor contacted defendant and elicited incriminating information without notifying defense counsel
Written by the judges who cited it.
Distinguished
Distinguished by Dunn v. State, 1994 Tex. App. LEXIS 475 (1994)
Id. at 451-52. Frye is distinguishable from the case before us.
The opinion
ROBERTSON, Justice,
dissenting.
I dissent because the trial court was without authority — whether statutory, con *453 stitutional or at common law — to order dismissal of the indictment. Apparently the majority concedes there is neither statutory law nor common law rules authorizing the dismissal. The majority, however, concludes that the contact of appellee by the prosecution authorities violated this Sixth Amendment right, and his corresponding state constitutional right, to counsel. I believe the majority errs.
It is well-settled that one’s Sixth Amendment right to counsel does not attach until the accused is the subject of “adversary criminal judicial proceedings.” Appellee simply was not the subject of an adversary criminal judicial proceeding because no charges were then pending. The misdemeanor charge had long before been dismissed at the time the prosecution authorities contacted him. The majority’s attempt to stretch adversarial criminal proceedings to cover any situation where an accused becomes the subject of criminal investigation simply won’t wash. Moran v. Burbine, 475 U.S. 412 , 106 S.Ct. 1135 , 89 L.Ed.2d 410 (1986). Appellee had no Sixth Amendment, nor corresponding state constitutional, right to counsel.
But even if there was authority for finding such a protected right, the majority errs in affirming the dismissal, with prejudice, of the indictment. First, the evidence does not show that the prosecution authorities learned from appellee any information about the subject matter of the indictment which was not already known to them. Finally, and probably most important, even if the prosecution authorities had learned new information from appellee, the remedy would be “to identify and then neutralize the taint by tailoring relief appropriate in the circumstances to assure the defendant the effective assistance of counsel and a fair trial.” United States v. Morrison, 449 U.S. 361 , 101 S.Ct. 665 , 66 L.Ed.2d 564 (1981).
The order of the trial court dismissing the indictment should be reversed.