## IN THE COURT OF CRIMINA L A PPEA LS OF TEXA S
N O. AP-77,092
HECTOR ACOSTA, Appellant

v. THE STATE OF TEX AS ON DIRECT APPEAL FROM CAUSE NO. 1513043D I N THE 396TH JUDICIAL DISTRICT COURT

TARRANT COUNTY K E L L E R 

### , P.J., filed a concurring opinion.
The Court cites Moon v. State 1 for the p r o p o s i tion that Article 3 8.22, Section 3(c) instructions

n e v e r belong in the jury charg e. B ut Moon is an anomaly , and it is not c onsistent wi t h o u r m o r e recent cases. S e c t i o n 3 ( c) is as much a part o f “the law pertaining to such statement” 2 for jury

i n s truction purposes as o ther p arts of Article 38.22 are. Not instructing the jury on Section 3 ( c )

1 607 S.W .2d 569, 572 (Tex . Crim. App. 1980).

2 See T E X
. C O D E C R

I M
. P R O C . art. 38.22, § 7.ACOSTA CONCURRENCE — 2

when it is raised defeats the whole purpose of that statute. Ordinarily , the trial judg e , not the jury , decides the a d m i s s i b i lity of evidence in a criminal

case. B ut some Tex as statutes allow a defend a n t t o a l s o submit certain admissibility -of-evidence issues to the jury under certain circumstances, usually when there is a disputed issue of fact on which admissibility turns. 3 I n that situation, the judg e may resolve the issue o f fact ag ainst the defendant for purposes of deciding

that the evidence is admissible but then submit the issue to the jury for it also to make a determination on that issue of fact. One statute that authoriz es this p ractice is Article 38.22, which addresses the admissibility of statements made by

a defendant in custody

. 4 Article 38.22 has two sections that authoriz e jury instructions: Sections 6 a nd 7. 5 Section 7 is the provision authoriz ing jury instructions with respect to warning s. Article 38.22, § 7 say s: W h en a n issue is raised by the evidence, the trial judg e shall appropriate l y instruct the jury , g enerally , on the law pertaining to such statement. 6 I n Oursbourn , we d e scribed a “ § 7 warning s instruction” a s “involving warning s g iven under §2 and § 3.” 7 W e ex plained, “The Section 7 instruction sets out the requirements of 38.22, § 2 or § 3 and asks the jury to decide whether all of those requirements were met.” 8 W e further said that “[ t] he

3 S ee Oursbourn v. State , 259 S.W .3d 159, 1 76-78 (Tex

. Crim. App. 2008) (discussing T E X
. C O D E C R

I M
. P R O C
. arts. 38.22, 38.23).

4 See Art. 38.22, §§ 2, 3, 7.

5 See id. , §§ 6, 7.

6 Id. , § 7.

7 259 S.W .3d at 173.

8 Id.ACOSTA CONCURRENCE — 3

obvious purpose of Section 7 is to authoriz e and r equire jury instructions r eg a rding the warning s and safeg uards for written and oral statements outlined in Article 38.22, §2 & § 3

. ” 9 The c ontent o f any jury ins t r u ction g iven pursuant to Section 7 depends o n other parts of Article 38.22, namely

Sections 2 and 3. B ecause o ral statements are at issue here, Section 3 is the relevant part of the statute to look at in Appellant’s case. Section 3(a) includes a warning s requirement, 1 0 but Section 3 (c) say s, “Subsection (a) of this section shall not apply to any statement which contains assertions of facts or circumstances that are found to be true a nd which c onduce to establish the g u ilt of the accused.” 1 1 The Court cites Moon , but that case is a f lawed aberratio n t h a t p recedes our more modern caselaw. Moon involved the unusual situation in which the defendant soug ht to have a Section 3(c) instructi o n i n c l u ded. 1 2 The d e f endant seemed to have contended that Section 3(c) imposed an additional requirement on the jury to find that th e c o n f es s i o n led to evidence showing his g uilt in order for the jury

to consider that confession. 1 3 That contention misconstrued how Section 3(c) is desig ned to work. Section 3(c) is not a basis for ex cluding a statement but is a reason for admitting

a statement despite the failure t o c omply with other requirements. I ncluding a Section 3(c) instruction could only have been to Moon’s d e triment b e cause it would h av e a l l o wed the jury to

9 Id. at 175.

1 0 Art. 38.22, § 3(a)(2) (referring to warning s sect out in § 2).

1 1 Id. , § 3(c).

1 2 607 S.W .2d at 570-71.

1 3 Id. at 571 (“Appellant complains that the jury should have been additionally charg ed that they must also find that the statement led to evidence which conduced to establish his g uilt.”).ACOSTA CONCURRENCE — 4

consider a statement that it otherwise could not consider. T h e o d d w a y in which the Section 3(c) issue arose in Moon calls for caution in evaluating the Court’s statements in that case. Also, in sug g esting that Section 3(c) was n ot part of the jury instructions, Moon read Sections 6 and 7 tog ether. 1 4 B ut that reading appears to be inconsistent with our later Oursbourn opinion. 1 5 T h e M o o n court said that Section 3(c) “deals o nly w ith the leg al issue of the admissibility of the oral statement, which is a q u e s t i o n of law to be determined by the trial court.” 1 6 That statement seems nonsensical, since the e ntirety of Section 3 deals with the admissibility of an oral
statement and none o f it is incorporated a s a jury instruction ex cept by Section 7’s admonition that the jury b e instructed o n “the law pertai n i n g t o such statement.” 1 7 Moon was d ecided before the advent of our modern statutory construction rule in Boykin , 1 8 and if one looks at the plain meaning of the statutory lang uag e, as Boykin , requires, 1 9 there is no basis for say ing that Section 3 (c) is not part of “the law pertaining to such statement.” I n fact, it is hard to see the point of Section 3(c) if it r elates only to admissibility and not to t he jury instructions. The leg islature has determined that certain oral statements are admis s i b l e

— a n d

so should be considered by the jury —if Section 3 (c) is met. Sect i o n 3 ( c ) i s an ex ception to all of

1 4 Id. at 571-72.

1 5 See Oursbourn , 259 S.W .3d at 174 (“Article 38.22, § 6 is a very detailed section that is essentially

independent of other sections contained within Article 38.22.”).

1 6 607 S.W .3d at 572.

1 7 See Art. 38.22, § 7.

1 8 Boykin v. State , 818 S.W

. 2d 782 (Tex . Crim. App. 1991).

1 9 See id. at 785.ACOSTA CONCURRENCE — 5

Section 3(a)—not only to t h e w a r n ing s requirement but also to other requirements, such as the requirement that an oral statement be electronically recorded. 2 0 I f evidence is a dmitted because of Section 3(c), but Section 3(c) is deemed irrelevant to the jury instructions, then th e jury could be required to disreg ard evidence that the leg islature has said the jury should consider. Ultimately , I ag ree with the Court that the record demonstrates that A ppellant wa s g iven adequate warning s. So in this c a se, w e need not address whether Moon remains viable because w e
can just assume, without deciding , that the inclusion of Section 3(c) instructions was error. I would refrain from sug g esting that Moon is still g ood law. I concur in the disposition of point of error four and otherwise join the Court’s opinion. F iled: J u ne 5, 2024 Publish

2 0 See Art. 38.22, § 3(a), (c).