This four-part post discusses when a statement may be used against a defendant in a criminal trial in Texas. Read Part 1 here. Read Part 2 here.

Why does it matter whether a person is in custody?

If a person is in custody in Texas, then law enforcement is required to comply with both Miranda and article 38.22 Texas code of criminal procedure.  A failure to comply with either of these requirements and render a defendant’s statement in admissible at trial.

Article 38.22 governs when statements of the defendant may be used in trial.  The warnings required to be given to a defendant or a custodial statement is taken by 3822 are similar to the Miranda warnings. They are as follows:

(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.

If the statement offered in trial is a written statement by the defendant, it must be written on the statement that the defendant receive these warnings, statement must be signed, and this defendant must knowingly, intelligently, and voluntarily waive these rights.

© 2021 David A. Nachtigall, Attorney at Law, PLLC