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Chapter 3

Charges

Chapter 3

Evidentiary Instructions—Confessions

3.16  Instruction—Warnings and Waiver Required for Recorded Oral Statement

[Insert instructions for underlying offense.]

Admissibility of Oral Statement

You have heard evidence that the defendant made an oral and recorded statement [describe statement, e.g., to Detective [name] on [date]].

If you find the defendant did make the statement, you may consider that statement against the defendant only if you resolve a preliminary question in favor of the state.

An oral recorded statement by a defendant made as a result of custodial interrogation may be considered against the defendant only if before the statement but during the recording—

  1. the defendant was warned that:
    1. he has the right to remain silent and not make any statement at all and that any statement he makes may be used against him at his trial;
    2. any statement he makes may be used as evidence against him in court;
    3. he has the right to have a lawyer present to advise him before and during any questioning;
    4. if he is unable to employ a lawyer, he has the right to have a lawyer appointed to advise him before and during any questioning; and
    5. he has the right to terminate the interview at any time; and
  2. the defendant knowingly, intelligently, and voluntarily waived the rights set out in the warning.

Therefore, you may consider any statement [describe statement, e.g., to Detective [name] on [date]] you believe the defendant made only if you first all agree the state has proved, beyond a reasonable doubt, that before the statement but during the recording the defendant was given the warnings set out above and knowingly, intelligently, and voluntarily waived the rights set out in the warning.

If you do not find the state has proved these things beyond a reasonable doubt, you must disregard and not consider for any purpose any statement the defendant may have made.

If you do find the state has proved these things beyond a reasonable doubt, you may consider the evidence that the defendant made the statement and give that evidence whatever weight you believe appropriate.

[Insert any other instructions raised by the evidence. Then continue with the verdict form found in CPJC 2.1, the general charge.]

Comment

The general statutory requirement that a statement of an accused may be used in evidence against him only if freely and voluntarily made is set out in Tex. Code Crim. Proc. art. 38.21. Tex. Code Crim. Proc. art. 38.22, § 3(a)(1) requires that, to be admissible, an oral statement made as a result of custodial interrogations must be recorded. In addition, for a recorded oral statement by an accused to be admissible, the accused must have received notice of his state statutory rights under Tex. Code Crim. Proc. art. 38.22, § 2(a); the accused must have knowingly, intelligently, and voluntarily waived those rights under Tex. Code Crim. Proc. art. 38.22, § 2(b); and the warnings given and waivers made must be recorded as required by Tex. Code Crim. Proc. art. 38.22, § 3(a)(2). The submission of jury instructions when the evidence raises an issue of the voluntariness of out-of-court statements generally is governed by Tex. Code Crim. Proc. art. 38.22, § 7.