IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. AP-77,092

HECTOR ACOSTA, Appellant

v.

THE STATE OF TEXAS

ON DIRECT APPEAL FROM CAUSE NO. 1513043D

IN THE 396TH JUDICIAL DISTRICT COURT

TARRANT COUNTY

KELLER, P.J., filed a concurring opinion.

The Court cites Moon v. State1for the proposition that Article 38.22, Section 3(c) instructions

never belong in the jury charge. But Moon is an anomaly, and it is not consistent with our more

recent cases. Section 3(c) is as much a part of “the law pertaining to such statement”2for juryinstruction purposes as other parts 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 TEX. CODE CRIM. PROC. art. 38.22, § 7.
ACOSTA CONCURRENCE — 2

when it is raised defeats the whole purpose of that statute.

Ordinarily, the trial judge, not the jury, decides the admissibility of evidence in a criminal

case. But some Texas statutes allow a defendant to also submit certain admissibility-of-evidence

issues to the jury under certain circumstances, usuallywhen there is a disputed issue of fact on which

admissibility turns.3In that situation, the judge may resolve the issue of fact against 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 authorizes this practice is Article

38.22, which addresses the admissibility of statements made by a defendant in custody.

4

 

Article 38.22 has two sections that authorize jury instructions: Sections 6 and 7.5 Section 7

is the provision authorizing jury instructions with respect to warnings.

Article 38.22, § 7 says:

When an issue is raised by the evidence, the trial judge shall appropriately instruct

the jury, generally, on the law pertaining to such statement.6

In Oursbourn, we described a “§ 7 warnings instruction” as “involving warnings given under §2 and

§ 3.”7 We explained, “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 We further said that “[t]he

3

See Oursbourn v. State, 259 S.W.3d 159, 176-78 (Tex. Crim. App. 2008) (discussing TEX.

CODE CRIM. PROC. 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 authorize and require jury instructions regarding the warnings and

safeguards for written and oral statements outlined in Article 38.22, §2 & § 3.”

9

The content of any jury instruction given pursuant to Section 7 depends on other parts of

Article 38.22, namely Sections 2 and 3. Because oral 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 warnings

requirement,10but Section 3(c) says, “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.”11

The Court cites Moon, but that case is a flawed aberration that precedes our more modern

caselaw. Moon involved the unusual situation in which the defendantsought to have a Section 3(c)

instruction included.12 The defendant seemed to have contended that Section 3(c) imposed an

additional requirement on the jury to find that the confession led to evidence showing his guilt in

order for the jury to consider that confession.13 That contention misconstrued how Section 3(c) is

designed to work. Section 3(c) is not a basis for excluding a statement but is a reason for admitting

a statement despite the failure to comply with other requirements. Including a Section 3(c)

instruction could only have been to Moon’s detriment because it would have allowed the jury to

9

 Id. at 175.

10

 Art. 38.22, § 3(a)(2) (referring to warnings sect out in § 2).

11

 Id., § 3(c).

12

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

13

Id. at 571 (“Appellant complains that the jury should have been additionally charged that

they must also find that the statement led to evidence which conduced to establish his guilt.”).
ACOSTA CONCURRENCE — 4

consider a statement that it otherwise could not consider. The odd way in which the Section 3(c)

issue arose in Moon calls for caution in evaluating the Court’s statements in that case.

Also, in suggesting that Section 3(c) was not part of the juryinstructions, Moon read Sections

6 and 7 together.14 But that reading appears to be inconsistent with our later Oursbourn opinion.15

The Moon court said that Section 3(c) “deals only with the legal issue of the admissibility

of the oral statement, which is a question of law to be determined by the trial court.”16 That

statement seems nonsensical, since the entirety of Section 3 deals with the admissibility of an oral

statement and none of it is incorporated as a jury instruction except by Section 7’s admonition that

the jury be instructed on “the law pertaining to such statement.”17 Moon was decided before the

advent of our modern statutory construction rule in Boykin,

18

and if one looks at the plain meaning

of the statutory language, as Boykin, requires,19there is no basis for saying that Section 3(c) is not

part of “the law pertaining to such statement.”

In fact, it is hard to see the point of Section 3(c) if it relates only to admissibility and not to

the juryinstructions. The legislature has determined that certain oral statements are admissible—and

so should be considered by the jury—if Section 3(c) is met. Section 3(c) is an exception to all of

14

 Id. at 571-72.

15

 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.”).

16

 607 S.W.3d at 572.

17

 See Art. 38.22, § 7.

18

 Boykin v. State, 818 S.W.2d 782 (Tex. Crim. App. 1991).

19

 See id. at 785.
ACOSTA CONCURRENCE — 5

Section 3(a)—not only to the warnings requirement but also to other requirements, such as the

requirement that an oral statement be electronically recorded.20

If evidence is admitted because of

Section 3(c), but Section 3(c) is deemed irrelevant to the jury instructions, then the jury could be

required to disregard evidence that the legislature has said the jury should consider. 

Ultimately, I agree with the Court that the record demonstrates that Appellant was given

adequate warnings. So in this case, we need not address whether Moon remains viable because we

can just assume, without deciding, that the inclusion of Section 3(c) instructions was error. I would

refrain from suggesting that Moon is still good law. 

I concur in the disposition of point of error four and otherwise join the Court’s opinion. 

Filed: June 5, 2024

Publish

20

 See Art. 38.22, § 3(a), (c).