# State v. Frye

> Court of Appeals of Texas · December 31, 1992 · 846 S.W.2d 443

URL: https://www.frixlaw.com/law-library/cases/9644737

## Case

- **Full name:** The STATE of Texas, Appellant, v. Cameron Edward FRYE, Appellee
- **Court:** Court of Appeals of Texas
- **Decided:** December 31, 1992
- **Citations:** 846 S.W.2d 443; 1992 Tex. App. LEXIS 3248; 1992 WL 387211
- **Precedential status:** Published
- **Opinion:** Dissent by Robertson
- **Judges:** Junell, Robertson and Draughn
- **Cited by:** 7 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9644737

## Opinion text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9644737. Public record. Not legal advice.