Comment

Jury submission of issues relating to out-of-court statements by the defendant is governed by articles 38.21, 38.22, and 38.23 of the Texas Code of Criminal Procedure, as construed by two decisions of the court of criminal appeals: Oursbourn v. State, 259 S.W.3d 159 (Tex. Crim. App. 2008) and Contreras v. State, 312 S.W.3d 566 (Tex. Crim. App. 2010). Tex. Code Crim. Proc. art. 38.21–.23.

Oursbourn indicated that there are three types of jury submissions, distinguished by the source of the possible legal bar to the jury’s consideration of the state’s evidence that the defendant admitted incriminating facts. These three types of submissions are (1) a claim that the statement is involuntary under Texas state law; (2) a claim that the statement is tainted by a lack of the warning or waiver required by article 38.22(b) or (c) of the Texas Code of Criminal Procedure; and (3) a claim that the statement is involuntary under federal due-process standards.

“General” and “Specific” Instructions. Oursbourn distinguished between “general” and “specific” instructions. Instructions under sections 6 or 7 of article 38.22 of the Texas Code of Criminal Procedure are to be general ones, while normal due- process instructions under article 38.23(a) are to be specific ones. Tex. Code Crim. Proc. art. 38.22–.23; Oursbourn, 259 S.W.3d at 174. A general instruction is one that sets out a general legal standard and poses for the jury the question of whether that standard has been met. A specific instruction, in contrast, focuses the jury’s attention on whether a specific factual matter has been proved. It does not focus the jury’s attention on applying the legal standard making the factual issue determinative.

Matters Not for Jury Submission. Jury submission is appropriate only when there is authority in statutory or case law for submission of the matter at issue. Several matters are clearly ones not appropriate for jury submission.

Compliance with Miranda Requirements. Oursbourn in some places seemed to equate or at least relate the requirements of federal Fifth Amendment law as construed by Miranda v. Arizona, 384 U.S. 436 (1966), and its progeny and the requirements of Texas Code of Criminal Procedure article 38.22. Oursbourn, 259 S.W.3d at 169 (“A defendant may claim that his statement was not freely and voluntarily made and thus may not be used as evidence against him under several different theories: . . . (2) Miranda v. Arizona as expanded in Article 38.22, §§ 2 and 3 (the Texas confession statute). . . .”).

The court of criminal appeals has held, however, that a statement tainted by a violation of Miranda requirements is not obtained in violation of the Constitution. Thus exclusion is not required by article 38.23(a). Baker v. State, 956 S.W.2d 19, 23–24 (Tex. Crim. App. 1997); Contreras, 312 S.W.3d at 580–81. Contreras specifically commented:

Contreras, 312 S.W.3d at 583.

In Contreras, the defendant “received instructions regarding the administration of warnings and waiver of rights, including the right to counsel, under article 38.22.” Contreras, 312 S.W.3d at 580. He was held not entitled to an additional instruction under article 38.23 that would have required the jury to disregard his confession if it determined that he had requested an attorney but interrogation continued nevertheless.

The bottom line is that jury submission is only available on the basis of facts showing noncompliance with the requirements of article 38.22. Evidence that officers failed to give warnings required by Miranda but not by article 38.22 cannot require jury submission.

Exceptions to Oral Statement Rule. Whether the jury may or should consider evidence that a defendant, as a result of custodial interrogation, made an oral self--incriminating statement, given the oral nature of that statement, is not a matter for jury submission. See Moon v. State, 607 S.W.2d 569, 572 (Tex. Crim. App. 1980) (whether oral statement has been partially corroborated under section 3(c) of article 38.22 is not for the jury). If evidence of an oral statement comes in under section 3(a)(1) of article 38.22 of the Texas Code of Criminal Procedure because the statement was recorded, the trial judge may in a proper case submit to the jury whether the defendant was warned of his rights and voluntarily waived those rights as required by section 2(b) of article 38.22. Tex. Code Crim. Proc. art. 38.22, § 3(b). If a statement is admissible under section 3(c) of article 38.22, the only warnings and waivers required are those mandated by Miranda. Robertson v. State, 871 S.W.2d 701, 714 (Tex. Crim. App. 1993) (“The only warnings which must precede an oral confession admitted under section 3(c) are the Miranda warnings.”). The same is true if the statement is admitted under the res gestae exceptions. These requirements cannot generate jury submission.

Statutory Requirement for Recordings of Oral Statements. When evidence of an oral statement is held admissible because the trial judge finds the statement meets section 3(a)’s requirements for a recorded oral statement, what issues might be appropriate for jury consideration? Maldonado v. State, 998 S.W.2d 239, 246 (Tex. Crim. App. 1999), held no jury instruction was appropriate concerning whether the recording was accurate and had not been altered as required by section 3(a)(3) of article 38.22. However, Maldonado may have addressed only an instruction under article 38.23(a) and thus left open whether section 7 of article 38.22 may permit a jury instruction.

Most likely, however, the court of criminal appeals would apply Maldonado’s reasoning to an argument for submission based on section 7 of article 38.22. Thus a defendant has no right to jury submission of whether—

1. the recording device was capable of making an accurate recording (as required by Tex. Code Crim. Proc. art. 38.22, § 3(a)(3));
2. the operator was competent (as required by Tex. Code Crim. Proc. art. 38.22, § 3(a)(3));
3. the recording is accurate and has not been altered (as required by Tex. Code Crim. Proc. art. 38.22, § 3(a)(3));
4. all voices on the recording are identified (as required by Tex. Code Crim. Proc. art. 38.22, § 3(a)(4)); or
5. the attorney representing the defendant is timely provided with a true, complete, and accurate copy of all recordings of the defendant made under article 38.22 (as required by Tex. Code Crim. Proc. art. 38.22, § 3(a)(5)).

See Tex. Code Crim. Proc. art. 38.22, §§ 3(a)7.

Unanimity. The Committee was unaware of case law addressing whether juries must be unanimous regarding whether the state has proved what it needs to establish in order to permit the juries to consider out-of-court statements. Traditionally, instructions have often told jurors they must agree this is the case, apparently pursuant to a general assumption that jurors must be unanimous on most matters submitted to them. The instructions in this chapter therefore are designed to convey to jurors they must be unanimous on statement-related matters. This is done by telling jurors they must all agree on the critical matter.