Texas Code of Criminal Procedure - Article 38.22. When Statements May Be Used
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Art. 38.22. [727] [810] [790] WHEN STATEMENTS MAY BE
USED. Sec. 1. In this article, a written statement of an accused
means a statement signed by the accused or a statement made by the
accused in his own handwriting or, if the accused is unable to
write, a statement bearing his mark, when the mark has been
witnessed by a person other than a peace officer.
Sec. 2. No written statement made by an accused as a result of
custodial interrogation is admissible as evidence against him in
any criminal proceeding unless it is shown on the face of the
statement that:
(a) the accused, prior to making the statement, either
received from a magistrate the warning provided in Article 15.17 of
this code or received from the person to whom the statement is made
a warning that:
(1) he has the right to remain silent and not make any
statement at all and that any statement he makes may be used against
him at his trial;
(2) any statement he makes may be used as evidence against
him in court;
(3) he has the right to have a lawyer present to advise him
prior to and during any questioning;
(4) if he is unable to employ a lawyer, he has the right to
have a lawyer appointed to advise him prior to and during any
questioning; and
(5) he has the right to terminate the interview at any time;
and
(b) the accused, prior to and during the making of the
statement, knowingly, intelligently, and voluntarily waived the
rights set out in the warning prescribed by Subsection (a) of this
section.
Sec. 3. (a) No oral or sign language statement of an accused
made as a result of custodial interrogation shall be admissible
against the accused in a criminal proceeding unless:
(1) an electronic recording, which may include motion
picture, video tape, or other visual recording, is made of the
statement;
(2) prior to the statement but during the recording the
accused is given the warning in Subsection (a) of Section 2 above
and the accused knowingly, intelligently, and voluntarily waives
any rights set out in the warning;
(3) the recording device was capable of making an accurate
recording, the operator was competent, and the recording is
accurate and has not been altered;
(4) all voices on the recording are identified; and
(5) not later than the 20th day before the date of the
proceeding, the attorney representing the defendant is provided
with a true, complete, and accurate copy of all recordings of the
defendant made under this article.
(b) Every electronic recording of any statement made by an
accused during a custodial interrogation must be preserved until
such time as the defendant's conviction for any offense relating
thereto is final, all direct appeals therefrom are exhausted, or
the prosecution of such offenses is barred by law.
(c) Subsection (a) of this section shall not apply to any
statement which contains assertions of facts or circumstances that
are found to be true and which conduce to establish the guilt of the
accused, such as the finding of secreted or stolen property or the
instrument with which he states the offense was committed.
(d) If the accused is a deaf person, the accused's statement
under Section 2 or Section 3(a) of this article is not admissible
against the accused unless the warning in Section 2 of this article
is interpreted to the deaf person by an interpreter who is qualified
and sworn as provided in Article 38.31 of this code.
(e) The courts of this state shall strictly construe
Subsection (a) of this section and may not interpret Subsection (a)
as making admissible a statement unless all requirements of the
subsection have been satisfied by the state, except that:
(1) only voices that are material are identified; and
(2) the accused was given the warning in Subsection (a) of
Section 2 above or its fully effective equivalent.
Sec. 4. When any statement, the admissibility of which is
covered by this article, is sought to be used in connection with an
official proceeding, any person who swears falsely to facts and
circumstances which, if true, would render the statement admissible
under this article is presumed to have acted with intent to deceive
and with knowledge of the statement's meaning for the purpose of
prosecution for aggravated perjury under Section 37.03 of the Penal
Code. No person prosecuted under this subsection shall be eligible
for probation.
Sec. 5. Nothing in this article precludes the admission of a
statement made by the accused in open court at his trial, before a
grand jury, or at an examining trial in compliance with Articles
16.03 and 16.04 of this code, or of a statement that is the res
gestae of the arrest or of the offense, or of a statement that does
not stem from custodial interrogation, or of a voluntary statement,
whether or not the result of custodial interrogation, that has a
bearing upon the credibility of the accused as a witness, or of any
other statement that may be admissible under law.
Sec. 6. In all cases where a question is raised as to the
voluntariness of a statement of an accused, the court must make an
independent finding in the absence of the jury as to whether the
statement was made under voluntary conditions. If the statement
has been found to have been voluntarily made and held admissible as
a matter of law and fact by the court in a hearing in the absence of
the jury, the court must enter an order stating its conclusion as to
whether or not the statement was voluntarily made, along with the
specific finding of facts upon which the conclusion was based,
which order shall be filed among the papers of the cause. Such
order shall not be exhibited to the jury nor the finding thereof
made known to the jury in any manner. Upon the finding by the judge
as a matter of law and fact that the statement was voluntarily made,
evidence pertaining to such matter may be submitted to the jury and
it shall be instructed that unless the jury believes beyond a
reasonable doubt that the statement was voluntarily made, the jury
shall not consider such statement for any purpose nor any evidence
obtained as a result thereof. In any case where a motion to
suppress the statement has been filed and evidence has been
submitted to the court on this issue, the court within its
discretion may reconsider such evidence in his finding that the
statement was voluntarily made and the same evidence submitted to
the court at the hearing on the motion to suppress shall be made a
part of the record the same as if it were being presented at the time
of trial. However, the state or the defendant shall be entitled to
present any new evidence on the issue of the voluntariness of the
statement prior to the court's final ruling and order stating its
findings.
Sec. 7. When the issue is raised by the evidence, the trial
judge shall appropriately instruct the jury, generally, on the law
pertaining to such statement.
Sec. 8. Notwithstanding any other provision of this article,
a written, oral, or sign language statement of an accused made as a
result of a custodial interrogation is admissible against the
accused in a criminal proceeding in this state if:
(1) the statement was obtained in another state and was
obtained in compliance with the laws of that state or this state;
or
(2) the statement was obtained by a federal law enforcement
officer in this state or another state and was obtained in
compliance with the laws of the United States.
Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722, eff. Jan. 1, 1966.
Amended by Acts 1967, 60th Leg., p. 1740, ch. 659, Sec. 23, eff.
Aug. 28, 1967; Acts 1977, 65th Leg., p. 935, ch. 348, Sec. 2, eff.
Aug. 29, 1977; 1979, 66th Leg., p. 398, ch. 186, Sec. 4, eff. May
15, 1979; Acts 1979, 66th Leg., p. 398, ch. 186, Sec. 5, eff. May
15, 1979; Acts 1981, 67th Leg., p. 711, ch. 271, Sec. 1, eff. Sept.
1, 1981; Acts 1989, 71st Leg., ch. 777, Sec. 1, 2, eff. Sept. 1,
1989; Acts 2001, 77th Leg., ch. 990, Sec. 1, eff. Sept. 1, 2001.
Article: 38.141 38.15 38.16 38.17 38.18 38.19 38.21 38.22 38.23 38.25 38.27 38.30 38.31 38.32 38.33
Last modified: August 11, 2007
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