Comment

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), appeared to both contemplate a second type of due-process issue. That issue involved claims of law enforcement coercive activity that would render a statement involuntary under the federal constitutional due-process standard only if the evidence showed that activity had a particular impact on the defendant. Specifically, the statement would be involuntary only if the law enforcement activity so affected the defendant as to overcome his will.

An instruction on this issue should make clear to the jury that it must address both whether the claimed law enforcement conduct occurred and—if so—whether the impact of that activity rendered the statement involuntary. Such an instruction would be a Texas Code of Criminal Procedure article 38.23(a) instruction. Consequently, submission is appropriate only when the evidence presents a contested question regarding an historical question of fact. Oursbourn, 259 S.W.3d at 173.

Burden of Proof. Texas Code of Criminal Procedure article 38.23(a)’s clear provision that the state has the burden of proof and it is proof beyond a reasonable doubt applies in this situation. Tex. Code Crim. Proc. art. 38.23(a).