Comment

Oursbourn v. State, 259 S.W.3d 159 (Tex. Crim. App. 2008), described a Texas Code of Criminal Procedure article 38.23, section 7 instruction as a “general” one. Thus the instruction should not focus the jury’s attention on the disputed factual question that generated jury submission but rather should set out the requirements and ask the jury to determine whether the state has proved those met. See Oursbourn, 259 S.W.3d at 173–74.

Burden of Proof.  Section 7 of Tex. Code Crim. Proc. art. 38.22 does not specify the burden of proof. This is in contrast to section 6 of article 38.22 and article 38.23, both of which place the burden of proof on the state and specify that it is beyond a reasonable doubt. See Tex. Code Crim. Proc. art. 38.22–.23. Case law does not resolve the matter. The Committee concluded the instruction should follow general practice, which is to assume the burden is on the state to prove compliance with the statutory requirements by proof beyond a reasonable doubt.

Custodial Interrogation. The statutory requirements apply only if the statement at issue was the result of custodial interrogation. Should the instructions state explicitly that the jury need not address whether the requirements are met if it concludes the statement was not the result of custodial interrogation? If that is in doubt, must the state prove either custody or interrogation or both were lacking? The Committee concluded an instruction should simply make clear that custodial interrogation is required but not address the matter further.

Evidence Obtained as Result of Statement. Section 6 of Tex. Code Crim. Proc. art. 38.22, as explained earlier, explicitly provides that when the voluntariness of a statement is submitted to the jury, the instructions are to tell the jury that if it does not find the statement voluntary it is not to consider the statement “nor any evidence obtained as a result thereof.” See Tex. Code Crim. Proc. art. 38.22, § 6. Section 7 of the statute does not contain similar language. Does section 7 somehow incorporate the “fruit of the poisonous tree” aspect of section 6? Most likely not. The section 7 instructions therefore do not include this. See Tex. Code Crim. Proc. art. 38.22, § 7.

Possible Right to Counsel Aspects. Should a jury ever be instructed under article 38.22 of the Texas Code of Criminal Procedure to disregard a statement because law enforcement officers continued questioning the defendant after the defendant requested counsel? Contreras commented that “Article 38.22 . . . is the appropriate vehicle for obtaining a jury instruction regarding a purported violation of Miranda, to the extent such a vehicle is available.” Contreras v. State, 312 S.W.3d 566, 583 (Tex. Crim. App. 2010).

In Contreras, the evidence before the jury was that the written statement signed by the defendant was the product of a three-hour process. This process included a two-hour oral interview and a one-hour process of writing out, reviewing, and signing the statement. The defendant testified that during the interview he said, “I need to speak to an attorney,” but the officers kept questioning him. An officer testified Contreras did not invoke any of his rights.

Would the defendant in Contreras in fact have been entitled to a jury instruction under article 38.22? There seems no basis for him to argue that a violation of Supreme Court Miranda case law itself generates an article 38.22 issue. But perhaps article 38.22 adopts as part of Texas statutory law some requirements (other than warning ones) similar or identical to those the Supreme Court Miranda case law establishes as part of federal law.

The underlying issues are, first, whether article 38.22 establishes or at least recognizes a state law right to counsel. Second, if so, does that right include Miranda-like right aspects such as the right to have custodial interrogation cease if and when a suspect expresses a desire for counsel? The terms of sections 2 and 3 of article 38.22 do not, of course, explicitly recognize anything beyond rights to the warnings. Perhaps, however, it is unlikely the legislature intended to confer a state law right to warnings of certain rights but not those rights themselves. See Tex. Code Crim. Proc. art. 38.22, §§ 2, 3.

The literal terms of the statute require warnings only before the making of the statement offered into evidence and not before interrogation that leads to making of the statement. One of the required warnings, however, is “the right to have a lawyer present to advise [the defendant] prior to and during any questioning.” See Tex. Code Crim. Proc. art. 38.22, § 2(a)(4). Perhaps this language of the statute can be read as embodying Miranda-like rights applicable before custodial interrogation. It is very unlikely the legislature intended to create a state law right to be warned of a right to counsel applicable before and during custodial interrogation but not also a state law right to counsel during that activity.

Of course, it is also unlikely the legislature intended to create a state law right to counsel applicable before and during custodial interrogation, but a right to be warned of this only after considerable custodial interrogation yet before making the incriminating statement sought by law enforcement to offer at trial. The warning of the right to counsel during interrogation can only be effective if it is required before interrogation.

It may be that article 38.22 incorporates only Miranda-like rights to warnings and waivers. Or it may be that any state law right to counsel during custodial interrogation does not include a Miranda-like state law right to have interrogation cease on a request for counsel. The statute might be read, for example, as including a right to have interrogation cease only if the suspect invokes the statutory right to terminate the interview.

If article 38.22 establishes rights beyond those to warnings and waivers, should or must an article 38.22, section 7 instruction set out those rights and require the jury to find the state has proved those rights were respected? Perhaps evidence that officers continued custodial interrogation after the suspect requested counsel—as a matter of article 38.22 law—goes only to whether any waivers made by the suspect after that time were knowing, intelligent, and voluntary as is required by the statute. If this is the case, the next question is whether this may, should, or must be reflected in the jury instructions.

The Committee was unable to agree on whether article 38.22 would be construed as creating a Miranda-like right to counsel that might trigger a defendant’s right to a jury instruction on whether that right was violated as, for example, by officers’ continued questioning after the defendant invoked the right to the presence and assistance of counsel. Some members of the Committee believed the Committee should not offer instructions based on legal grounds not clearly established. They opposed inclusion of an instruction based on the assumption that article 38.22 creates a Miranda-like right to counsel. A majority of the Committee, however, decided the Committee could usefully offer an instruction possibly appropriate to enforce any such statutory right as might exist. Such a draft might stimulate resolution of the underlying question of whether Texas law does in fact establish a right to counsel applicable during custodial interrogation.

Effectiveness of Waivers Required by Article 38.22 of the Texas Code of Criminal Procedure. When the issue is the admissibility of a statement under either section 2 or section 3 of Texas Code of Criminal Procedure article 38.22, the effectiveness of a waiver required by the statute is determined by state law that differs in some degree from the law that determines the effectiveness of waiver required by Miranda law. The court of criminal appeals explained:

Leza v. State, 351 S.W.3d 344, 352 (Tex. Crim. App. 2011) (quoting Oursbourn, 259 S.W.3d 159).

Insofar as jury submission of statement issues requires juries to address whether waivers were in fact voluntary, state law as set out in Oursbourn and Leza would seem to govern. Whether jury instructions should address this has not been addressed in the case law. The Committee chose not to speculate on whether in such cases the jury instructions should go beyond the general ones that mention but do not elaborate on the need for knowing, intelligent, and voluntary waivers.