Code of Criminal Procedure · Art. 38.22

Statement of Accused

Custodial statements are generally inadmissible unless the statutory warnings were given and statutory recording requirements met. §3 (oral statements) requires electronic recording with warnings on the recording, knowing/intelligent/voluntary waiver, accurate complete recording with all voices identified. §2 (written statements) requires warnings on the face of the writing, voluntary waiver, and signed statement.

To prove this offense, the State must establish each of the following elements: Custodial interrogation; Statement electronically recorded; Statutory warnings given on the recording; Accused knowingly, intelligently, and voluntarily waives rights; Recording accurate and not altered.

The base classification is Statutory admissibility rule, with possible enhancements depending on the conduct, victim, location, or prior history of the actor.

Elements you must prove

  • Custodial interrogation
  • Statement electronically recorded
  • Statutory warnings given on the recording
  • Accused knowingly, intelligently, and voluntarily waives rights
  • Recording accurate and not altered
Texas Law — Charge Details
Admissibility
Offense
Statement of Accused
Statute
Tex. Code Crim. Proc. art. 38.22
Classification
Statutory admissibility rule

Custodial statements are generally inadmissible unless the statutory warnings were given and statutory recording requirements met. §3 (oral statements) requires electronic recording with warnings on the recording, knowing/intelligent/voluntary waiver, accurate complete recording with all voices identified. §2 (written statements) requires warnings on the face of the writing, voluntary waiver, and signed statement.

Potential Penalty Enhancements
If this condition applies…Charge escalates toStatute
Res gestae statements / non-custodial / spontaneous utterancesStatute does not preclude admission§38.22 §5

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Worked examples

Worked example 1

Texas Code of Criminal Procedure Art. 38.22 §3 requires that an oral statement of an accused made during custodial interrogation be:

  1. Memorized by the officer
  2. Electronically recorded (and certain warnings given on the recording), among other listed requirements, to be admissible against the accused Correct
  3. Written by the accused only
  4. Witnessed by a notary
Why: Art. 38.22 §3 generally requires oral or sign-language statements made during custodial interrogation to be electronically recorded (audio + visual where feasible), with statutory warnings given on the recording, to be admissible against the accused — with limited exceptions (e.g., res gestae statements; statements inconsistent with prior testimony).
Statute: Tex. Code Crim. Proc. art. 38.22 §3
Worked example 2

Under Art. 38.22 §2, a written statement of the accused made during custodial interrogation is admissible if:

  1. The officer signs it
  2. It contains the statutory warnings on the face, the accused knowingly, intelligently, and voluntarily waived the rights, and the accused signs the statement Correct
  3. Two officers sign as witnesses
  4. It is notarized
Why: Written statements during custodial interrogation must be preceded by the statutory warnings on the face of the statement, with knowing/intelligent/voluntary waiver, and must be signed by the accused.
Statute: Tex. Code Crim. Proc. art. 38.22 §2
Worked example 3

Under Art. 38.22 §5, the warnings and recording requirements do NOT apply to:

  1. All statements
  2. Statements that are res gestae of the arrest or offense, statements that do not stem from custodial interrogation, and statements made under standard rules of evidence (e.g., voluntary admissions made outside interrogation) Correct
  3. Only sign-language statements
  4. Only juvenile statements
Why: Art. 38.22 §5 specifies that the article does not preclude admission of: res gestae statements; statements not the product of custodial interrogation; statements admissible under other rules of evidence. The general rules of voluntariness still apply to all confession evidence.
Statute: Tex. Code Crim. Proc. art. 38.22 §5

Statutory definitions for this topic

Article 38.22 statement Tex. Code Crim. Proc. art. 38.22
A statement of the accused made during custodial interrogation. Texas requires statutory warnings on the recording, knowing/intelligent/voluntary waiver, an accurate complete recording with all voices identified, and (for written statements) statutory warnings on the face of the writing.