Chapter 3
Evidentiary Instructions—Confessions
3.9 Instruction—Possible State Law Right to Counsel During Custodial Interrogation
[Insert instructions for underlying offense.]
Right to Counsel
You have heard evidence that the defendant made a written 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.
A person who is in custody and is interrogated by law enforcement officers has a right to have a lawyer present to advise him before and during the questioning. If during custodial interrogation the person invokes his right to the assistance of a lawyer, this right to counsel means that no further interrogation by law enforcement officers may take place until a lawyer representing the person is present.
A statement given as a result of custodial interrogation cannot be considered against the person making it if, during that custodial interrogation, the person invoked his right to a lawyer but the officers continued the interrogation while no lawyer representing the person was present to advise him.
Therefore, you may consider any statement you believe the defendant made only if you first all agree the state has proved, beyond a reasonable doubt, either—
- the defendant did not, during the custodial interrogation that resulted in the statement, indicate he wished the assistance of a lawyer; or
- after the defendant indicated he wished the assistance of a lawyer, interrogating officers did not continue the interrogation without the presence of a lawyer representing the defendant.
If you do not find the state has proved one of 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 at least one of 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. The requirement that, before a written statement by an accused is admissible, the accused must receive notice of a state statutory right to counsel and the accused must knowingly, intelligently, and voluntarily waive that right, is found in Tex. Code Crim. Proc. art. 38.22, § 2(a), (b). The submission of jury instructions when the evidence raised an issue of the voluntariness of out-of-court statements generally is governed by Tex. Code Crim. Proc. art. 38.22, § 7.