Comment

Under Oursbourn v. State, 259 S.W.3d 159 (Tex. Crim. App. 2008), a defendant may challenge the jury’s ability to consider a statement not on the ground that the statement is involuntary but rather on the basis that it is tainted by law enforcement’s failure to comply with the requirements of article 38.22 of the Texas Code of Criminal Procedure. Oursbourn stated clearly that an article 38.22, section 7 instruction, like an article 38.23 instruction, is appropriate only if the evidence before the jury presents “a genuine factual dispute.” Oursbourn, 259 S.W.3d at 176. Thus the less stringent standard used in section 6 cases should not be applied.

Does this standard apply if the defendant’s challenge is that his waivers were not knowing, intelligent, and voluntary as required by the statute? As discussed in CPJC 3.3, Vasquez v. State, 225 S.W.3d 541 (Tex. Crim. App. 2007), does not require a dispute regarding historical facts for submission of a general state law voluntariness question under section 6. Perhaps the rationale of Vasquez applies in section 7 cases and gives a defendant a right to jury submission where reasonable persons could differ on whether—on uncontested historical facts—the defendant’s waivers were voluntary, knowing, or intelligent. The Committee was unable to predict how this issue would be resolved if it was squarely presented to the court of criminal appeals.