This four-part post discusses when a statement may be used against a defendant in a criminal trial in Texas. Read Part 1 here.

In Herrera v. State, 241 S.W.3d 520, 525-27 (Tex. Crim. App. 2007), the Texas Court of Criminal Appeals held the following with regard to “custody”:

“When considering “custody” for Miranda purposes, we apply a “reasonable person” standard—“[a] person is in ‘custody’ only if, under the circumstances, a reasonable person would believe that his freedom of movement was restrained to the degree associated with a formal arrest.” Our “custody” inquiry also includes an examination of all of the objective circumstances surrounding the questioning.  The subjective belief of law enforcement officials about whether a person is a suspect does not factor into our “custody” determination unless an official’s subjective belief was somehow conveyed to the person who was questioned.”

Article 38.22 of the Texas Code of Criminal Procedure governs the admissibility of statements made by a defendant during custodial interrogation in a criminal proceeding. Section 3 provides that an oral statement is admissible against a defendant in a criminal proceeding if, among other things: (1) the statement was electronically recorded; (2) the defendant was given the warnings set out in Section 2(a) before the statement was made and it is included on the recording; and (3) the defendant “knowingly, intelligently, and voluntarily” waived the rights set out in the warnings. The warnings provided in Section 2(a) are virtually identical to the Miranda warnings, with one exception—the warning that an accused “has the right to terminate the interview at any time” as set out in Section 2(a)(5) is not required by Miranda. As with the Miranda warnings, the warnings in Section 2(a) of Article 38.22 are required only when there is custodial interrogation. Our construction of “custody” for purposes of Article 38.22 is consistent with the meaning of “custody” for purposes of Miranda.

At trial, the defendant bears the initial burden of proving that a statement was the product of “custodial interrogation”.

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© 2016 David A. Nachtigall, Attorney at Law, PLLC

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