Comment

Section 2 of article 38.22 of the Texas Code of Criminal Procedure addresses the requirements for admissibility of a written statement made by an accused as a result of custodial interrogation. Under section 7 of the statute, these requirements may also be the basis for a jury question regarding whether the jury may consider admitted evidence of such a statement. See Tex. Code Crim. Proc. art. 38.22.

The terms of the statute providing for jury submission raise an important initial question concerning submission of such matters. Section 2 of article 38.22 requires warnings and waivers be “shown on the face of the statement.” Should the jury instructions require this and only this, that is, that warnings and waivers are “shown” on the face of the document? Or should the instructions—perhaps in addition—require that the jury address whether the state has proved that in fact the required warnings were given and the necessary waivers made? In practice, jury instructions sometimes, and perhaps often, require the state to prove that adequate warnings were in fact given. Contreras v. State, 312 S.W.3d 566, 572 (Tex. Crim. App. 2010) (instructions on written statement required jury to find that “prior [to making the statement] the Defendant had been warned by the person to whom the statement was made [of certain specified matters]”). This, of course, goes beyond the literal requirements of the statute.

The Committee concluded that the case law has functionally approved submission in terms of whether warnings were actually given and waivers actually and effectively made. Hence, jury submission should be in such terms. Several considerations support this approach.

First, submission of whether the required matters are simply shown by the document admitted into evidence would often be quite meaningless. It is unlikely the legislature intended for juries to simply scrutinize the faces of admitted statements. Second, as discussed in CPJC 3.15, in the recorded oral statement situation the statute explicitly requires proof that sufficient warnings were actually given and waivers actually and effectively made. It is quite unlikely the legislature intended the state to have to prove actual warnings and waivers in recorded statement cases but not written statement ones.

The Committee therefore followed common practice and provided for submission of whether the state has proved warnings were actually given and waivers actually and effectively made.

Submission is then required as a general matter, only if the evidence establishes a factual dispute. The Committee could not determine whether a somewhat different standard would apply if a defendant challenged the state’s evidence that his waivers were knowing, intelligent, and voluntary. Submission of the state law voluntariness of the statement itself—as discussed in CPJC 3.3—does not require a contested question of historical fact. Would the propriety of submission be determined under this more relaxed standard if the defendant challenged the voluntariness of his waiver of the right to counsel? The Committee was not certain.