This page of Baker's Legal Pages contains casenotes from recent decisions of the Texas Court of Criminal Appeals. This information is made available as a free public service for your personal, non-commercial use. While every effort has been made to provide accurate material at this site, it is provided "as is" and no representations are made that it is free of mistakes or inaccuracies. If you inform me of any mistake or inaccuracy that you find here, I will make every effort to determine what corrections are required and to make those changes.

Below are casenotes from recent opinions of the Texas Court of Criminal Appeals, supplementing Baker's Texas Criminal Evidence Handbook. Each casenote is linked to the text of the opinion from which it was derived.

For links to other casesnote pages supplementing Baker's Texas Criminal Evidence Handbook, see the Criminal Evidence Handbook Casenotes Listing.

For links to casesnote pages for other handbooks, see the Main Casenotes Listing.

If you already know the name of a particular recent case of interest, you may go directly to that opinion from the Table of Recent Opinions.

presenting issue to appeals court (CCP Art. 38.22: Confession of Defendant)

• It was error for court of appeals to reverse conviction on holding that trial court erred in admitting def's confession where record reflected trial court did not issue written findings of fact and conclusions of law as required by 38.22 sec. 6, and court of appeals made its decision without benefit of requisite findings and conclusions. Cause remanded with instructions to require compliance by the trial court with 38.22, sec. 6, and to reconsider the voluntariness of def's confession in light of those findings of fact and conclusions of law. Urias v State (October 20, 2004, No. PD-0335-03)

• Where def won in the trial court and the trial court made no express or written fact findings, court of appeals was required to imply all necessary fact findings that would support the trial court’s ruling. And court of appeals was required to defer to these implied fact findings that the record supports especially when these findings are based on an evaluation of credibility and demeanor. In other words, since def won in the trial court, the evidence must be viewed in the light most favorable to the trial court’s ruling that def’s statement is involuntary. State v Terrazas, 4 S.W.3d 720 (September 15, 1999)

• Where the ultimate resolution of the voluntariness question did not turn on implied fact finding, Court of Criminal Appeals may review de novo the trial court’s and the Court of Appeals’ legal ruling on the voluntariness question. State v Terrazas, 4 S.W.3d 720 (September 15, 1999)

issue not preserved (CCP Art. 38.22: Confession of Defendant)

• No merit to contention def's statements were inadmissible because they were obtained in violation of right to counsel under US and Texas constitutions and under 38.23 where global statements in his motion to suppress were not sufficiently specific to preserve arguments made on appeal, and at hearing on motion to suppress he did not complain about being questioned after asserting his right to counsel. Swain v State (November 2, 2005, No. AP-74,854)

rules on confession (CCP Art. 38.22: Confession of Defendant)

• When def claims violation of privilege against self incrimination based on requirements while on probation, the critical inquiry is whether the state has gone beyond merely requiring a probationer to appear and speak on matters relevant to his probationary status or "whether [it goes] further and require[s] him to choose between making incriminating statements and jeopardizing his conditional liberty by remaining silent." [quoting Minnesota v. Murphy, 465 U.S. 420 (1984)] Chapman v State (September 10, 2003, No. 2011-02 & 2012-02)

• Pursuant to the Code Construction Act, the sections of the Family Code relevant to confessions prevail over 38.22 CCP. Thus, it is Family Code Title 3 that controls issues concerning juvenile confessions, not 38.22. Unlike the language in 38.22, the legislature did not mandate that Family Code Title 3 be "strictly" construed. Because def was a juvenile at the time she gave her statement, its admissibility must be determined under Title 3 of the Family Code. Vega v State (June 26, 2002, No. 337-01)

• When a defendant presents evidence raising a voluntariness question, the prosecution must controvert that evidence and prove voluntariness by a preponderance of the evidence. However, the prosecution is not put to this burden unless a defendant presents evidence that raises a voluntariness question. State v Terrazas, 4 S.W.3d 720 (September 15, 1999)

rules: testimonial character (CCP Art. 38.22: Confession of Defendant)

• A voice exemplar is not testimonial, whether it is offered by the state or the defendant. Therefore, a defendant who offers a voice exemplar into evidence does not waive his Fifth Amendment rights and does not subject himself to cross-examination. Saron v State (October 1, 2003, No. 1015-02)

• In pros for capital murder as part of combination, it was not violation of privilege against self-incrimination to require def to display a Texas Mafia tattoo on his body to jury. Canales v State (January 15, 2003, No. 73,988)

rules: coercion & threats (CCP Art. 38.22: Confession of Defendant)

• Interrogator telling def in a noncustodial setting “what had to be” in her statement is not the type of practice that has been held to be inherently coercive as to make a statement involuntary. State v Terrazas, 4 S.W.3d 720 (September 15, 1999)

rules: warnings (CCP Art. 38.22: Confession of Defendant)

• When a non-law enforcement state agent conducts custodial interrogation of suspect, Miranda warnings are required only when the agent is acting in tandem with police to investigate and gather evidence for a criminal prosecution. Wilkerson v State (October 5, 2005, No. PD-1605-04)

• For the most part, CPS caseworkers, who are investigating family placement and safety matters, and police officers, who are investigating criminal matters, run on separate parallel paths. Both are interested in gathering information. While police are collecting information for an arrest and criminal prosecution, CPS workers are investigating to find safe housing and protection for abused or neglected children. When a state-agency employee is working on a path parallel to, yet separate from, the police, Miranda warnings are not required. On the other hand, if the once-parallel paths of CPS and the police converge, and police and state agent are investigating a criminal offense in tandem, Miranda warnings and compliance with article 38.22 may be necessary. At this point, a CPS worker may be viewed as an agent of the police. The term "agency" denotes a consensual relationship which exists between two persons or parties where one of them is acting for or on behalf of the other. The law does not, however, presume an agency relationship. The person alleging such a relationship has the burden of proving it. But if a defendant does prove that a particular person - whether CPS caseworker, teacher, preacher, probation officer, or mere family friend - is, in fact, working for or on behalf of the police by interrogating a person in custody, that agent is bound by all constitutional and statutory confession rules, including Miranda and Article 38.22. It is sometimes difficult to determine whether the two paths, that of the police and that of CPS, are parallel or whether they have converged in a particular case. To do so, courts must examine the entire record. Central to this evaluation are the actions and perceptions of the parties involved: the police, the CPS caseworker (or other potential agent of the police), and the defendant himself. At bottom, the inquiry is: Was this custodial interview conducted (explicitly or implicitly) on behalf of the police for the primary purpose of gathering evidence or statements to be used in a later criminal proceeding against the interviewee? Put another way, is the interviewer acting as an "instrumentality" or "conduit" for the police or prosecution? Wilkerson v State (October 5, 2005, No. PD-1605-04)

• An inquiry into the waiver of Miranda rights has two distinct dimensions. First, the waiver must be voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must be made with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it. Ripkowski v State (November 7, 2001, No. 73,590)

rules: invoking right to silence (CCP Art. 38.22: Confession of Defendant)

• In Michigan v. Mosley, 423 U.S. 98 (1975), the Supreme Court found the following factors important to analysis in situations where def is given Miranda warnings, invokes right to silence, and is subsequently interrogated: (1) whether the suspect was informed of his right to remain silent prior to the initial questioning; (2) whether the suspect was informed of his right to remain silent prior to the subsequent questioning; (3) the length of time between initial questioning and subsequent questioning; (4) whether the subsequent questioning focused on a different crime; and (5) whether police honored the suspect’s initial invocation of the right to remain silent. Thus Mosley created an ad hoc test in which courts must evaluate the facts of each case to determine if the resumption of police interrogation was consistent with scrupulous observance of the right to cut off questioning. Maestas v State, 987 S.W.2d 59 (Feb. 24, 1999)

rules: waiving right to counsel after invoked (CCP Art. 38.22: Confession of Defendant)

• A suspect's invocation of his right to counsel acts like a protective Edwards bubble, insulating him from any further police-initiated questioning. Only the suspect himself can burst that bubble by both initiating communications with police and expressly waiving his right to counsel. Once that bubble is burst, however, Edwards disappears, and the police are free to reinitiate any future communications and obtain any further statements as long as each statement is voluntarily made after the waiver of Miranda rights. Cross v State (September 15, 2004, No. 1439-03)

not error to admit confession (CCP Art. 38.22: Confession of Defendant)

• Where def made unwarned, self-incriminating statements to his therapist during his participation in a court-ordered Sexual Offender Treatment Program while on probation for a sex offense, and then repeated these statements when questioned, first by his probation officer, and second by a police officer, def's statements were not compelled in violation of his Fifth Amendment right against self-incrimination. Because def 1) failed to affirmatively invoke his Fifth Amendment privilege; and 2) was not confronted with the "classic penalty situation" which would have excused that failure, his statements were not compelled within the meaning of the Fifth Amendment. Def's probation status did not subject him to a classic penalty situation because (1) state authorities did not either expressly or impliedly state that def's probation would be revoked if he chose to invoke his Fifth Amendment privilege; and (2) def's therapist never asked def directly about his sexual history; def testified that he approached therapist with the information; there was no evid therapist ever stated or suggested he would not disclose confession of crime to probation officer or police, and treatment contract signed by def expressly warned def that police would be contacted if necessary to maintain victim or community safety, and therapists repeatedly told def they were required to tell police about any other sex offense. Chapman v State (September 10, 2003, No. 2011-02 & 2012-02)

• Admission of videotape statement def gave to reporters was not violation of Fifth & Sixth Amendment rights. Assuming def had been charged with offense at time of interview, there was no evidence that sheriff prompted the interview, reporters were not acting as state agents when they conducted the interviews and def's rights were not violated when the evidence was presented at trial. [Def was in jail, reporters arrived asking to interview def and co-def, sheriff presented request to them and told them they could accept or reject request for interview, and they both signed consent to interview and were interviewed separately. Both reporters testified that no authority ever suggested that they conduct the interview, nor did authorities suggest any questions for them to ask the suspects. Both reporters also testified that they did not provide authorities with copies of their resulting interviews.] Hall v State (January 16, 2002, No. 73,787)

• It was not error to admit def's confessions over contention they were inadmissible due to the location in which they were taken. Record showed that def voluntarily agreed to go to the justice center for questioning, was read his Miranda warnings and agreed to give a voluntary statement, and following questioning he was placed under arrest and held at justice center. Def gave his statements and was arrested in portion of building on Arkansas side of state line. No merit to contention that his arrest was illegal because the Texas police officer was outside the jurisdictional limits of his authority. Subchapter B of Chapter 361 of the Texas Local Government Code allows for and governs justice centers located on the state line, and Section 361.029 governs arrests, prosecution, extradition, and service of process at the justice center. Section 361.029(e) and (j) clearly gave the officer in question jurisdiction to arrest def inside the justice center without extradition. No merit to contention that def was denied effective assistance of counsel because a Texas attorney could not represent him in Arkansas. Def did not request counsel; therefore, because he had none, counsel could not be ineffective. Wyatt v State, 23 S.W.3d 18 (May 3, 2000)

not error to admit confession - intoxication (CCP Art. 38.22: Confession of Defendant)

• It was not error to deny motion to suppress confessions on claim def was intoxicated and tired and therefore did not know the consequences of waiving his rights, where state introduced transcripts of audio-tapes of def's confessions, and the two interrogating officers testified def appeared "wide awake," not tired or intoxicated. Wood v State, 18 S.W.3d 642 (May 24, 2000)

• It was not error to deny motion to suppress confession, on claim def was intoxicated, and that officers threatened to arrest his grandmother and girlfriend, where testimony of interrogating officers contradicted def's testimony. Dewberry v State, 4 S.W.3d 735 (October 20, 1999)

not error to admit confession - not fruit of illegal arrest (CCP Art. 38.22: Confession of Defendant)

• It was not error to deny motion to suppress statements over claim def was unlawfully arrested before making statements where conflicting evid at hearing on motion to suppress supported conclusion def was not arrested until after he admitted involvement in offense under investigation, so any prior statements by def were not fruits of arrest. Swain v State (November 2, 2005, No. AP-74,854)

not error to admit confession - no taint from illegal arrest (CCP Art. 38.22: Confession of Defendant)

• Illegal arrest under warrant that was not supported by probable cause did not taint def's subsequent statement where (1) def was informed of his rights by judge at arraignment, by officer at beginning of interview at which time he initialed each right, and before he signed statement; (2) nine hours from arrest until interview was not strong factor for state but also was not factor favorable to def; (3) most important intervening factor was arraignment, at which def was informed of his rights, inquired about procedure for appointment of attorney, was informed of procedure, and declined when judge asked def if he would like an attorney; and (4) there was no suggestion of official misconduct. Hankins v State (April 21, 2004, No. 74,369)

not error to admit confession - coercion & threats (CCP Art. 38.22: Confession of Defendant)

• It was not abuse of discretion to admit def's confession in capital case, over contention it was involuntary. Specifically, def claimed that he had expressed his desire to die rather than spend his life in prison; that officer taking statement used this knowledge to coerce def into giving the second statement - which solidified the evidence of the aggravating element of capital murder - by promising def that the confession would result in the State seeking the death penalty for the offense. Testimony of officers contested def's interpretation of his comments and contradicted def's testimony. Sells v State (March 12, 2003, No. 73,993)

• It was not error to admit def's confessions over contention they were not freely and voluntarily given, on claim that the interrogating officers yelled at him, called him a "liar," and "talked short" to him, and that this behavior made him feel threatened, scared, and intimidated, where def's testimony was contradicted by officers who took the two statements. Officer who took first statement testified that although he was upset by the death of a small child in instant case, he did not yell at, coerce, threaten, or promise def anything at any time. Although this officer did not deny that he "talked short" with def or that he told def that he thought def was a liar, he also testified that he did not do so until after def had completed his statement. He further testified that he requested that another officer take def's second statement on next day because of his feelings about the case. Officer who took second statement testified that he did not raise his voice or curse at def, and he felt that def was very cooperative during the entire process and did not appear to be scared. Wyatt v State, 23 S.W.3d 18 (May 3, 2000)

• It was not error to deny motion to suppress confession, on claim def was intoxicated, and that officers threatened to arrest his grandmother and girlfriend, where testimony of interrogating officers contradicted def's testimony. Dewberry v State, 4 S.W.3d 735 (October 20, 1999)

• Viewing the evidence in the light most favorable to the trial court’s ruling, testimony that the interrogator in noncustodial setting told def “what had to be” in her statement did not constitute wringing the statement out of def against her will, and did not support a finding or legal conclusion of “involuntariness” or state action that overbore def’s will. Also the prosecution never assumed the burden to prove voluntariness because def failed to present any evidence raising a question of voluntariness or supporting a finding of involuntariness that the prosecution was required to controvert. Court of Appeals correctly decided the trial court’s legal ruling on the voluntariness question was erroneous. State v Terrazas, 4 S.W.3d 720 (September 15, 1999)

not error to admit confession - promises (CCP Art. 38.22: Confession of Defendant)

• It was not error to admit confession over claim def made statement because of promise by officer where testimony of officer who took def's statement contradicted def's testimony. Masterson v State (February 2, 2005, No. AP-74,344)

• It was not abuse of discretion to deny motion to suppress def's oral statement under Articles 38.22 and 38.23 on claim the record showed his confession was involuntary because (1) he did not understand his rights, (2) the officer promised to help def if he did what the officer said, and (3) the officer told def what to say. The voluntariness of his statement depends upon facts that were resolved by the trial court against def's position, and evidence in the record was sufficient to support the trial court's factual rendition. Although def introduced conflicting evidence, the trial court found that evidence to be not credible. Rocha v State (April 12, 2000, No. 73,280)

• It was not error to deny motion to suppress statement, on claim it was product of promises, where officer testified and contradicted def's testimony that promises were made. Maldonado v State, 998 S.W.2d 239 (June 30, 1999)

not error to admit confession - promise of leniency (CCP Art. 38.22: Confession of Defendant)

• It was not error to admit written confession over contention it was procured by police officers with promises of leniency. Officer's testimony* was not an implied representation that def's honesty would or could result in state deciding not to seek the death penalty. Officer plainly told def that the police could make no guarantees. Moreover, def initiated the idea of a deal to avoid the death penalty. Further, officer's comments indicated that the police were without authority to make deals but instead could only relay information to the court and prosecutor. Johnson v State (January 30, 2002, No. 73,765)

not error to admit confession - alleged promise was not promise (CCP Art. 38.22: Confession of Defendant)

• It was not error to deny motion to suppress confession. Though not clear, it appeared that the court of appeals may have upheld the admissibility of def's confession because def did not show that his confession was false. This would have been error because the truth or falsity of a confession is irrelevant to a voluntariness determination not only under federal constitutional law but also under state law. However, the evidence supported the implied finding that no positive promise was ever made by the detective to def. Martinez v State February 18, 2004, No. 0761-02 & 1123-02)

not error to admit confession - warnings (CCP Art. 38.22: Confession of Defendant)

• Where there was no evidence that Child Protective Services worker was acting in tandem with police officers when she interviewed def, it was not abuse of discretion to admit def's statements made during interview over objection that CPS worker did not give def Miranda warnings or follow procedures in 38.22. Wilkerson v State (October 5, 2005, No. PD-1605-04)

• No merit to contentions that def's Miranda rights were violated and was error to admit non-recorded oral statement he made to the police concerning the location of the victim's body and to admit def's videotaped confession. It was not abuse of discretion to find def understood his rights and the effect of waiving those rights: Various law enforcement officials testified that def appeared to comprehend the warnings and the questions asked during interrogation, def was coherent and gave appropriate answers to questions, and def did not appear to be intoxicated by alcohol or under the influence of any drugs; although def presented expert testimony to the contrary, trial court was entitled to believe state's witnesses rather than def's expert. Ripkowski v State (November 7, 2001, No. 73,590)

not error to admit confession - right to counsel (CCP Art. 38.22: Confession of Defendant)

• It was not error to admit testimony of two jail psychiatrists who interviewed def while he was in custody, over contentions that, because he was given no Miranda warnings before the interviews and because counsel was not notified that the interviews would occur, admission of the psychiatric testimony violated his Fifth Amendment right against self-incrimination and his Sixth Amendment right to counsel. No merit to Fifth Amendment claim: def initiated the contact with the jail psychiatrists and his discussions with them were a necessary part of determining whether he needed treatment, and state introduced the testimony for the limited purpose of countering def's expert testimony, which was based in part on a personal interview of def. No merit to Sixth Amendment claim: def effectively relinquished his counsel's assistance by seeking out mental health treatment on his own. Def did not allege he was ever denied the opportunity to consult with counsel before he sought such treatment, and def's claim was undermined by the fact that the evidence was used for impeachment, rather than in the State's case-in-chief. [Facts: The interviews with jail psychiatrists occurred because def requested treatment; at the guilt stage def offered expert testimony (to support def's contention that his oral statements were obtained without a knowing, intelligent, and voluntary waiver of his Miranda rights - an issue that was submitted to the jury) that def suffered from bipolar disorder, based on a sixteen-hour personal interview of def, standardized psychological testing, a review of def's medical records, and a review of def's videotaped confession. In response to def's expert testimony, state presented testimony from the jail psychiatrists outlining their opinions that def did not suffer from bipolar disorder and the reasons behind those opinions. State's proposed testimony was limited in scope, as evidenced by prosecutor's statement that she would not "go into any questions regarding the offense."] Ripkowski v State (November 7, 2001, No. 73,590)

• It was not error to admit def's confessions, over contention they were taken in violation of his Sixth Amendment right to counsel. Def was in custody for aggravated robbery when questioned by police about the instant capital offense. When def was charged with aggravated robbery, his Sixth Amendment right to counsel attached with respect to that offense. His invocation of his Sixth Amendment right to counsel with respect to the robbery offense did not extend to the capital offense. No Sixth Amendment right to counsel had attached to the capital murder offense at the time of his interrogation concerning it. No merit to contention that def was entitled, under the Sixth Amendment, to have his attorney in the robbery case present at his interrogation concerning the capital offense because the matters inquired into by police as to the capital murder were intertwined with the matters involved in the aggravated robbery case. Guidry v State, 9 S.W.3d 133 (Dec. 15, 1999)

• It was not error to admit def's confessions, over contention they were taken in violation of his Fifth Amendment right to counsel, where there was conflicting testimony as to whether def requested his attorney during the interrogation. Guidry v State, 9 S.W.3d 133 (Dec. 15, 1999)

not error to admit confession - whether right to counsel invoked (CCP Art. 38.22: Confession of Defendant)

• It was not error to admit confession over claim def invoked right to counsel where officer who took def's statement testified def did not ask for an attorney. Masterson v State (February 2, 2005, No. AP-74,344)

• It was not error to deny motion to suppress confessions on claim police refused def's request for counsel, where state introduced transcripts of audio-tapes of def's confessions, and def could be heard on each tape stating he understood and voluntarily waived his right to counsel, and all officers involved in def's arrest and interrogation contradicted def's testimony at hearing on motion to suppress that he requested counsel. Wood v State, 18 S.W.3d 642 (May 24, 2000)

• It was not error to admit def's confessions, over contention that his requests for counsel went unanswered, where officers who took the statements each testified he read def his warnings and def signed an acknowledgment form, and def did not request an attorney nor did he ask for the interview to cease at any time. Wyatt v State, 23 S.W.3d 18 (May 3, 2000)

• It was not error to deny motion to suppress confession, over contention that def's request to speak to his father was equivalent to a request for an attorney. They are not equivalent, and record failed to show def requested the assistance of counsel. Evidence from the suppression hearing demonstrated that one of the interrogators told def he could call an attorney if he wanted, and def responded, by stating that he had not “done anything wrong. I don’t need a lawyer.” Dewberry v State, 4 S.W.3d 735 (October 20, 1999)

not error to admit confession - after right to counsel invoked (CCP Art. 38.22: Confession of Defendant)

• It was not error to admit confession obtained after def invoked right to counsel, where def was given Miranda warnings and immediately expressed his desire to deal with police only through counsel, but before counsel was made available to def, def himself initiated further communications with a different police officer and during that interview made a written statement, and three days later that same officer approached def again, read him is Miranda rights which def waived and gave second written statement. Once def initiated conversation and waived Miranda rights, police were free to reinitiate further conversations with def. Cross v State (September 15, 2004, No. 1439-03)

• It was not error to admit confession over contention it was obtained in violation of Edwards v Arizona, 451 U.S. 477 (1981), because def had previously invoked right to counsel, where record supported trial court's finding that def initiated second interview, so under Edwards def waived his previously asserted right to counsel for the purposes of that interview. Herron v State (October 9, 2002, No. 73,455)

not error to admit confession - after counsel appointed on other charges (CCP Art. 38.22: Confession of Defendant)

• It was not error to admit def's confession in pros for capital murder over contention it was obtained in violation of his Fifth Amendment right to counsel because he had previously been appointed counsel in burglary case arising from same incident; burglary and murder are not the same offense, so invocation of right to counsel in one case did not invoke right to counsel in other. Same rule applies under Texas constitutional provisions. Cobb v State (May 29, 2002, No. 72,807)

not error to admit confession - right to silence (CCP Art. 38.22: Confession of Defendant)

• It was not error to admit def's confession over her claim that the police violated her Fifth Amendment right to remain silent by subsequent interrogation after initially invocating right to silence, even though subsequent questioning did not focus on a different crime, where (1) police informed def of her rights prior to the initial questioning as well as prior to each subsequent questioning; (2) police stopped interrogating def as soon as she said she wished to invoked her right to remain silent; once def began to talk to the officers, she did not try to re-invoke her right to remain silent, to end the interrogation, or to speak with an attorney; (3) def appeared to be intoxicated when she was arrested and initially read her Miranda rights, and she was read her rights again after she had slept and appeared to be sober, and she indicated she wished to remain silent; approximately nine hours later, officer confronted def with additional information discovered during his investigation, and Mirandized def, who indicated that she understood her rights and then signed a statement waiving those rights; def’s conversation with the officer at this time lasted several hours, and def then waited several hours for interrogating officer to prepare a written version of her statement, which she signed (4) def was not coerced, threatened, or promised anything for talking with officers; def had access to necessities such as food, water, and restroom facilities; although officers initiated the questioning that resulted in def’s statement, ongoing investigations provided them with additional information which tended to show that def was present at the scene of the murder. Maestas v State, 987 S.W.2d 59 (Feb. 24, 1999)

error to exclude - appeal by state (CCP Art. 38.22: Confession of Defendant)

• It was error to grant motion to suppress def's recorded statements to co-def while in custody, on def's claim he had reasonable expectation of privacy and that statements were obtained through an unlawful interception and recording of an oral communication in violation of 16.02 PC and def's federal and Texas constitutional rights. Def and co-def, after being arrested, were placed in separate rooms at county law enforcement building; co-def requested that he be permitted to speak alone with def; deputy agreed, moved def into the room where co-def sat, and left them alone in that room, whereupon def and co-def discussed their actions in alleged offense; unknown to def, their conversation was recorded. Although def had subjective expectation of privacy, that expectation was not objectively reasonable by societal standards, and the excluded statements were admissible. [Opinion did not explicitly address issue under 16.02 PC.] State v Scheineman (June 12, 2002, No. 1196-01)

error to admit confession: right to counsel (CCP Art. 38.22: Confession of Defendant)

• It was error to admit def's custodial statement in evid over def's objection where record showed def had invoked right to counsel when interrogated by officer A, who ceased interrogation, and later def gave statement to officer B, and it was officer B, not def, who initiated the further interrogation and was no evid def had consulted with counsel before interrogation by officer B. No merit to state's contention that officer B did not, in fact, coerce or badger def into making a written statement, and therefore, the underlying purpose of the Edwards rule was fulfilled; the Edwards rule [Edwards v. Arizona, 451 U.S. 477, (1981)] acts as a "clear and unequivocal" guideline to law enforcement precisely because it is "relatively rigid." When a person subjected to custodial interrogation unambiguously invokes the right to counsel, all questioning must cease. Interrogation may not be reinitiated by the police at any time or in any manner unless the person has consulted counsel. No merit to state's contention that officer B did not know that def had invoked her right to counsel; whether or not officer A informed officer B of def's invocation of her right to counsel is irrelevant because courts impute knowledge of the invocation of any Miranda rights to all representatives of the State. Error was not harmless beyond a reasonable doubt even though state offered ample evidence of def's guilt from sources independent of her statement, where state relied on def's statement extensively, both during its case-in-chief and during its closing arguments [analyzed extensively in opinion]. Decision on harmlessness is not determined solely on the basis of whether there was sufficient evidence, independent of the inadmissible statement, for a reasonable jury to reach the same conclusion which it had reached with the statement. Court could not conclude, beyond a reasonable doubt, that admission of def's unconstitutionally obtained statement did not contribute to the jury's verdict of guilty. McCarthy v State (December 12, 2001, No. 73,350)

• REVERSED by United States Supreme Court, TEXAS v. COBB (99-1702), April 2, 2001: It was error to admit in evidence, at the guilt stage, a written statement def gave to police shortly after his arrest. Once def was indicted for the burglary, his Sixth Amendment right to counsel attached to that offense and to the capital murder offense, which was factually interwoven with the burglary. Also, once def’s right to counsel attached, he asserted it by accepting X’s appointment as his counsel. Therefore, before the Odessa police could lawfully question def about the disappearances of murder victims, they were under an obligation to contact X and get his permission. They failed to do that. Consequently, the fruits of the Odessa police interrogation, including def’s written statement, were inadmissible in the prosecution’s case-in-chief. The fact that X twice gave permission to Walker County investigators to question def is irrelevant. Nothing in the record suggests that X’s permission was intended to be continuing or could have reasonably been so interpreted. This constitutional error was not harmless, where record reflected that def’s statement was incriminating and central to the prosecution’s case against him. Therefore, a reasonable likelihood exists that the admission of the statement in evidence materially affected the jury’s deliberations. Cobb v State (March 15, 2000, No. 72,807)

error harmless (CCP Art. 38.22: Confession of Defendant)

• It was error to admit at punishment stage of capital case, def's written confession taken in connection with extraneous offense in violation of Miranda where he was not informed of his rights until written statement was prepared pursuant to his oral statements and he was about to sign it, but error was harmless beyond a reasonable doubt where independent evid established def's involvement with that extraneous offense, there was substantial other evid of def's future dangerousness, and appeals court was confident was no reasonable likelihood that the error contributed to jury decision on future dangerousness and mitigation issues. Jones v State (November 5, 2003, No. 74,060)

• Erroneous admission of def's statement to Chicago police, without compliance with requirements of 38.22, was harmless error where def's subsequent statements to Texas police contained much of the same information as the Chicago statement, so Chicago statement may not have had any significantly adverse effect on jury's verdict. Also, Chicago statement was admitted at trial only after jury had already heard testimony about physical evid and viewed videotaped Texas statements, so impact of Chicago statement was likely not significant. Nonn v State (October 15, 2003, No. 0933-02)

• Def was not denied equal protection when appeals court held erroneous admission of def's statement was harmless error and held erroneous admission of co-def's statement was not harmless error. Def and co-def were not similarly situated; co-def was juvenile at time of arrest, so admissibility of her statement was governed by Family Code, not by Code of Criminal Procedure; and unlike def, co-def did not make any subsequent statements, so her erroneously admitted statement played a much more important role in state's evidence against her at trial. Nonn v State (October 15, 2003, No. 0933-02)

rules sec. 2 (CCP Art. 38.22: Confession of Defendant)

• Where def challenged admission of confession taken by officers in another state, not on claim of violation of Miranda, but on claim of failure to meet requirements of 38.22 sec. 2(a)(5), the relevant inquiry was whether def's statements were obtained in compliance with the statute. Unlike 38.22 sec. 3 (at issue in Davidson v. State, 25 S.W.3d 183 (Tex. Crim. App. 2000)), in sec. 2(a) the legislature did not expressly require "strict compliance." Instead, only "substantial compliance" is required. Nonn v State (April 4, 2001, No. 885-00)

rules sec. 3(a) (CCP Art. 38.22: Confession of Defendant)

• 38.22 sec 3(a)(5) applies to pretrial hearings, and to any use of the statement at such hearings, but the failure to provide a copy of the recorded statement in instant case twenty days before the pretrial hearing did not render the oral confession inadmissible at trial. The plain meaning of the statutory language is that "the proceeding" in sec. 3(a)(5) is the same proceeding as "a criminal proceeding" in the introductory clause of sec. 3(a). The proceeding to which the twenty-day requirement applies is the same proceeding at which the evidence is rendered inadmissible, when there is no compliance. Thus, failure to provide the recording twenty days before the pretrial hearing renders the oral confession inadmissible at the pretrial hearing. Here, the state complied with the twenty-day requirement with regard to trial, and so, the oral confession was not rendered inadmissible at trial under this provision. The practical remedy for the failure to comply with sec. 3(a)(5) with regard to the pretrial hearing is a twenty-day continuance of the hearing. Essentially, the defendant has the right to prevent the trial court from considering the admissibility of the oral confession until twenty days after a copy of the recording is provided. Error at pretrial hearing was harmless and did not prevent admission of evid at trial where def had opportunity to relitigate admissibility of evid at trial, which was well after the 20-day requirement had been satisfied. Sells v State (March 12, 2003, No. 73,993)

• 38.22 sec. 3(a)(1) makes no distinction between in-state and out-of-state oral statements, made as a result of custodial interrogation, which are not in compliance with its dictates. Davidson v State, 25 S.W.3d 183 (May 24, 2000)

• Under terms of Rule 101(c), Rule 901 (an evidentiary rule) cannot allow a proponent of evidence to bypass the requirements of 38.22 (a statute). Maldonado v State, 998 S.W.2d 239 (June 30, 1999)

rules sec. 3(c) (CCP Art. 38.22: Confession of Defendant)

• Article 38.22, sec. 3, applies only to oral statements, and the sec. 3(c) exception is applicable only to oral statements. Moore v State, 999 S.W.2d 385 (April 21, 1999)

not error sec. 3 (CCP Art. 38.22: Confession of Defendant)

• It was not error to admit def's four tape-recorded oral statements given to law enforcement officers in Louisiana, over contention def was not given warnings required by 38.22, where the warnings* given were the fully effective equivalent of warnings in 38.22, sec. 2(a), and therefore statements were admissible under 38.22 sec. 3(e)(2). Bible v State (May 4, 2005, No. AP-74,713)

not error sec. 3(a) (CCP Art. 38.22: Confession of Defendant)

• It was not abuse of discretion to deny motion to suppress def's oral statement under Articles 38.22 and 38.23 on claim state failed to comply with Article 38.22 because, while the transcription of the recorded conversation showed that the required warnings were given, the transcription did not show that def waived his rights. Although the record showed that no express waiver of his rights appeared on the recording, the law does not require that the recording reflect an express waiver of the rights. Rocha v State (April 12, 2000, No. 73,280)

• It was not error to deny motion to suppress recorded statement and transcript, over contention that "skips" or "anomalies" in tape violated 38.22 sec. 3(a)(3), where fact issue was created and there was suff evidence to support conclusion that the anomalies were merely inadvertent and did not affect the overall reliability of the tape. The evidence supported conclusion that the tape was accurate and had not been impermissibly "altered" in the sense contemplated by 38.22 sec. 3(a)(3). Maldonado v State, 998 S.W.2d 239 (June 30, 1999)

not error sec. 3(c) (CCP Art. 38.22: Confession of Defendant)

• It was not error to admit post-arrest oral statement by def under 38.22 sec. 3(c), where it included information about one of items stolen in burglary that previously was not known to have been stolen, and it led to recovery of that item. Moore v State, 999 S.W.2d 385 (April 21, 1999)

error sec. 3(a) (CCP Art. 38.22: Confession of Defendant)

• It was error to rule def's oral statement made to officers in another state was admissible where statement did not comply with 38.22 sec. 3(a)(1) even though it was made in compliance with laws of state where it was obtained. Cause remanded for harmless error analysis. Full faith and credit clause of federal constitution did not require admission of statement. Davidson v State, 25 S.W.3d 183 (May 24, 2000)

error cured or harmless (CCP Art. 38.22: Confession of Defendant)

• It was error to admit def's oral statement [about another offense, offered at punishment stage in capital case on future dangerousness issue] where it was not taken in strict compliance with 38.22 sec. 3(a) [statement given to California officer who did not include warning that def could terminate interview at any time] and state did not clearly establish an exception under sec. 3(c) [it was unclear from record exactly what police knew about offense before def's interview and record did not indicate whether def's assertions were later corroborated]. Error was harmless where other evid showed def's involvement in that offense more strongly than def's improperly admitted oral statement, and substantial other evid was presented on future dangerousness issue. Woods v State (December 15, 2004, No. AP-74,430)

• It was error to admit diagram drawn by def at time he gave his written statement (which had been excluded by trial court for failure to comply with 38.22 sec. 2), under theory that diagram was an oral statement admissible under 38.22 sec. 3(c). Sec. 3(c) applies only to oral statements, and diagram was not an oral statement. But error was harmless under TRAP 44.2(b), where evidence of the subject of the diagram was admitted elsewhere without objection. Content of the diagram (specifically, the location of victim’s car in relation to vehicle of the offenders) was established by the testimony of other witnesses at trial, including witnesses offered by the defense after objection to the diagram was made. Moore v State, 999 S.W.2d 385 (April 21, 1999)

volunteerd statement (CCP Art. 38.22: Confession of Defendant)

• It was not error to admit oral statements def made at murder scene while def was in custody, where they were spontaneous statements. Escamilla v State (June 30, 2004, No. 74,494)

statement made to non-police (CCP Art. 38.22: Confession of Defendant)

• It was not error to deny motion to suppress custodial videotaped interview def gave to TV reporter about two days after his arrest, over claim reporter became a "state agent" after def consented to interview when officer asked reporter to get def "to talk because [def] would not talk to the police." Context of conversation* showed officer expressed hope that def would incriminate himself during interview, but was not an offer to reporter to become a state agent; even if it was such an offer, was no evid reporter accepted offer. Escamilla v State (June 30, 2004, No. 74,494)

• It was not error to admit oral statements def made to treating personnel at hospital where he was taken after arrest, over claim hospital personnel were state agents. Statements were not result of interrogation by law enforcement personnel or their agents. Escamilla v State (June 30, 2004, No. 74,494)

impeachmnt (CCP Art. 38.22: Confession of Defendant)

• It was not error to admit portion of videotape interview of def, over claim interview was illegally obtained, where it as used solely for impeachment purposes, showing def's non-verbal conduct of his attempts to burn his fingertips with his cigarette, to rebut his testimony on direct that was designed to convey impression of forthrightness in his interview with police and his testimony at trial. Because def denied committing the conduct, state could offer videotape evid under impeachment exception to exclusionary rule. Manns v State (December 17, 2003, No. 74,305)

rules: making findings (CCP Art. 38.22: Confession of Defendant)

• The determination of whether a statement is voluntary is a mixed question of law and fact, i.e., an application of law to a fact question. See art. 38.22, sec. 6 (if trial court finds that statement is voluntary and thus admissible, court must enter an order stating its legal conclusion, along with specific finding of facts upon which conclusion was based). Garcia v State, 15 S.W.3d 533 (Mar. 29, 2000)

• Nothing in 38.22 sec. 6 requires the trial court to make specific findings about why conflicting testimony does not render the defendant’s statement involuntary. Rather, the trial court need only state in its findings the reasons for its conclusion that the statement was voluntary. Guidry v State, 9 S.W.3d 133 (Dec. 15, 1999)

• Article 38.22, Section 6, literally applies to “all cases where a question is raised as to the voluntariness of a statement of an accused.” Nenno v. State, 970 S.W.2d 549 (Tex.Cr.App. 1998) is overruled to the extent it decides Article 38.22, Section 6, applies only to custodial statements. State v Terrazas, 4 S.W.3d 720 (September 15, 1999)

• Article 38.22, Section 6, requires the trial court to “enter an order” containing its findings of fact and conclusions of law only if it decides the statement was voluntarily made. Since the trial court in this case decided appellee’s statement was involuntary, then it was not required to “enter an order” containing its findings of fact and conclusions of law. State v Terrazas, 4 S.W.3d 720 (September 15, 1999)

• Assuming Article 38.22, Section 6, required the trial court to enter an order containing its findings of fact and conclusions of law, court declined to exercise its discretion to remand this case sua sponte to the trial court for findings of fact and conclusions of law, where neither party complained about the absence of findings and conclusions. The “right” to findings and conclusions is a statutory “right” which is forfeited by a party’s failure to insist upon its implementation. State v Terrazas, 4 S.W.3d 720 (September 15, 1999)

no error: findings of fact (CCP Art. 38.22: Confession of Defendant)

• No merit to claim appeal should be abated for trial court to enter written findings of fact and conclusions of law under 38.22, where trial court dictated its findings and conclusions into record at conclusion of hearing on motion to suppress. Murphy v State (June 25, 2003, No. 74,145)

• No merit to contention that trial court’s failure to specifically address, in its findings of fact and conclusions of law concerning the voluntariness of def’s confessions, certain conflicts in the evidence, where the trial court’s findings of law and fact addressed all of the issues raised in connection with the alleged conflicts in the evidence. The trial court’s findings were sufficiently detailed to enable appeals court to determine the basis of its ruling. Guidry v State, 9 S.W.3d 133 (Dec. 15, 1999)

failure to make findings moot (CCP Art. 38.22: Confession of Defendant)

• Contention that trial court erred in failing to file written findings of fact and conclusions of law, regarding denial of motion to suppress def's oral statements, was overruled as moot, where court had granted state's motion to abate and remand the case to file such findings and conclusions, and pursuant to that order, the trial court filed written findings of fact and conclusions of law regarding the motion. Rocha v State (April 12, 2000, No. 73,280)

appeal abated (CCP Art. 38.22: Confession of Defendant)

• Where def challenged voluntariness of confession and original trial judge failed to enter findings of fact and conclusions of law required by 38.22 sec. 6, cause could not be abated to allow such findings and conclusions to be entered by new trial judge reviewing original suppression hearing. A new suppression hearing was required because new judge was not authorized to make findings of fact and conclusions of law from earlier hearing presided over by former judge. Just as appellate courts should afford almost total deference to trial courts' rulings on application of law to fact questions, also known as mixed questions of law and fact, if the resolution of those ultimate questions turns on an evaluation of credibility and demeanor, because the trial judge viewing the witnesses and hearing their testimony is in a better position to evaluate their credibility and demeanor than is an appellate judge who must rely on only a written transcript of the hearing, for the same reason it is not appropriate for the second judge in the instant case to make findings of fact based solely on the written transcript of the initial hearing. It would be inconsistent to restrict an appellate court's review of such findings because it has nothing to review but a "cold" record, yet allow a trial judge to make such findings based on nothing but that same "cold" record. Garcia v State, 15 S.W.3d 533 (Mar. 29, 2000)

rules (CCP Art. 38.22: Confession of Defendant)

• When evidence presented at trial raises fact issue as to whether a defendant had been warned of his rights and voluntarily waived them prior to making a statement, he is entitled to an instruction on voluntariness of the confession. In such cases, it is proper to include in the jury charge a specific instruction informing the jury that, if it has a reasonable doubt as to whether a defendant knowingly, intelligently, and voluntarily waived his rights before giving a confession, it must disregard the confession and not consider it for any purpose. Mendoza v State (October 23, 2002, No. 1938-01)

• When an issue of fact is raised as to compulsion or persuasion in obtaining a confession, a defendant has a statutory right to have the jury charged accordingly. Mendoza v State (October 23, 2002, No. 1938-01)

• An instruction that focuses on a particular factor that may render a statement involuntary is an impermissible comment on the weight of the evidence. Rocha v State (April 12, 2000, No. 73,280)

failure to charge not error (CCP Art. 38.22: Confession of Defendant)

• It was not error to deny charge on voluntariness of def's statement, over claim testimony* of officer raised issue of whether there was an implied promise and/or expectation that def would receive only a life sentence rather than death penalty, where testimony showed def attempted to secure a deal for a life sentence and was no evid of any promise from officer that def would receive a life sentence instead of death penalty, and was undisputed that officer clearly explained that he had no authority to make any deals. Bible v State (May 4, 2005, No. AP-74,713)

• It was not abuse of discretion to deny requested paragraphs of charge* on voluntariness of confession issues, where two of denied paragraphs were comments on weight of evid, and charge given was adequate. Mendoza v State (October 23, 2002, No. 1938-01)

• It was not error to deny requested charge* on voluntariness of def's oral confession, where requested charge was an improper comment on weight of evid, where it focused on illness and medication as factors that may render his confession involuntary. Rocha v State (April 12, 2000, No. 73,280)

evidence of silence of defendant - presenting issue (CCP Art. 38.22: Confession of Defendant)

• Nothing preserved for review of claims that it was violation of Texas Constitution for trial court to: (1) permit state to cross examine def about his post-arrest silence, (2) permit state to elicit rebuttal testimony about his post-arrest silence and (3) overrule def's objections to state's comments on his post-arrest silence during final argument in guilt stage of trial, where trial objection was based on Fifth Amendment, not on Texas Constitution. Record showed (1) lack of time-specific questions by state (basis for distinction between protections under US & Texas Constitutions), (2) def failed to cite to the state constitution or even specify that he was objecting to post-arrest silence, and (3) lack of commentary by trial judge in making his rulings on the objections. Heidelberg v State (September 15, 2004, No. 1418-03)

evidence of silence of defendant - rules (CCP Art. 38.22: Confession of Defendant)

• The Fifth Amendment of the federal constitution protects post-arrest silence made only after Miranda warnings have been given. Fletcher v. Weir, 445 U.S. 603 (1982); Doyle v. Ohio, 426 U.S. 610, 618, 96 S.Ct. 2240, 2245 (1976). Article I, section 10 of the Texas Constitution, however, protects a defendant's post-arrest silence even before such warnings have been administered. Sanchez v. State, 707 S.W.2d 575, 582 (Tex. Crim. App. 1986). Heidelberg v State (September 15, 2004, No. 1418-03)

privilege against self-incrimination - rules (CCP Art. 38.22: Confession of Defendant)

• The Fifth Amendment provides that no person shall be compelled in any criminal case to be a witness against himself. The Fifth Amendment privilege can be asserted in any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory. The protection extends equally to civil proceedings because the nature of the protection goes to the questions asked, not the proceeding itself. Butterfield v State, 992 S.W.2d 448 (April 21, 1999)

• The logical corollary to a person’s Fifth Amendment right not to incriminate himself is the concept of immunity. Since the privilege against self-incrimination ceases only when liability to punishment no longer exists, without the grant of immunity, the person cannot be compelled to testify. Once a person has been granted immunity for his testimony, however, he does not have a valid basis for refusing to testify. If he nevertheless refuses to testify after having been granted immunity, he can be punished with contempt. Thus, immunity statutes seek a rational accommodation between the imperatives of the privilege and the legitimate demands of government to compel citizens to testify. The one nearly universal exception to the scope of the immunity granted is that a witness who perjures himself while testifying under compulsion is not immune from a prosecution for perjury. Butterfield v State, 992 S.W.2d 448 (April 21, 1999)

• Where court ordered witness to answer questions at a hearing (held in attempt to discover location of a missing child, of whom state sought temporary custody), and witness asserted his Fifth Amendment privilege, and neither the trial court nor the state’s attorney offered him immunity for his testimony, his testimony was obtained in violation of his privilege against self incrimination, but that did not prevent state from prosecuting him for perjury for the testimony he gave. It was error for court to order him to testify without grant of immunity, but was not error to prosecute for perjury based on that testimony. (Issue of admissibility of that testimony under 38.23 explicitly not addressed.) Butterfield v State, 992 S.W.2d 448 (April 21, 1999)

privilege against self-incrimination - no error (CCP Art. 38.22: Confession of Defendant)

• It was not error to admit recording of def requesting an attorney when he was asked to submit to alcohol level test. No merit to def's contention that admission of this relevant evidence was reversible error because it infringed on his federal constitutional right to be free from compulsion to be a witness against himself. On the facts of this case, def's expression of a desire to talk with an attorney could not be construed as a desire to remain silent. His request was expressly and repeatedly limited to his decision whether to take the breath-alcohol test. He stated that he was not refusing to take the test, and he told the officers that he only wanted to speak with his attorney to help him make that decision. He repeated this response after the officers told him that he could not speak with his attorney before making that decision. Even after the officers told him that his continued insistence on speaking with his attorney would be taken by them to be a refusal to take the test, he reiterated his desire to speak with his attorney. And after he was given his Miranda warnings, he waived his right to silence and answered the officers' questions about his actions that night. His statements cannot be interpreted as expressing a desire to remain silent. Therefore court did not need to address whether the Fifth Amendment is violated by the use of pre-arrest silence or post-arrest, pre-Miranda silence. Also, def was not compelled by the officers to request his attorney before answering whether he would take the test. Although his request had testimonial value, he was not coerced into requesting his attorney. The Fifth Amendment only protects against compelled self-incrimination, and therefore his right not to incriminate himself was not violated. Griffith v State (September 19, 2001, No. 1957-98)

• Education Code sec. 37.152(a)(4) (failure to report a hazing incident) was not unconstitutional as applied to def, on claim it violated Fifth Amendment privilege against self incrimination. The second part of Education Code sec. 37.155, applicable in instant case, provides to any person who reports a specific hazing incident, immunity from civil or criminal liability "that might otherwise be incurred or imposed as a result of the report." This entitled def to both use and derivative use immunity from civil and criminal liability as a result of reporting a specific hazing incident. This grant of immunity under sec. 37.155 is coextensive with the scope of the Fifth Amendment privilege. Therefore the immunity grant in Section 37.155 is sufficient to remove any real or appreciable hazard of self incrimination and to compel reporting over a claim of privilege. Accordingly Education Code sec. 37.155 removes any real risk of self-incrimination to def for complying with Education Code sec. 37.152(a)(4). State v Boyd (February 7, 2001, No. 2043-99)