voluntariness instruction in Texas

2025Oursbourn, 259 S.W.3d at 172 ; see Leza, 351 S.W.3d at 352 (“Circumstances unattributable to the police that nevertheless adversely impact an accused’s ability to resist reasonable police entreaties to waive his statutory rights . . . are ‘factors’ in the voluntariness inquiry, though they ‘are usually not enough, by themselves, to render a statement inadmissible under Article 38.22.’” (quoting Oursbourn, 259 S.W.3d at 173 )).

2025Oursbourn, 259 S.W.3d at 172 ; see Leza, 351 S.W.3d at 352 (“Circumstances unattributable to the police that nevertheless adversely impact an accused’s ability to resist reasonable police entreaties to waive his statutory rights . . . are ‘factors’ in the voluntariness inquiry, though they ‘are usually not enough, by themselves, to render a statement inadmissible under Article 38.22.’” (quoting Oursbourn, 259 S.W.3d at 173 )).

2013Carter, 309 S.W.3d at 41 (citing United States v. Stewart, 536 F.3d 714, 723 (7th Cir.2008) (when the interrogation process used was not a deliberate end run around Miranda, a trial court should determine “whether the initial unwarned confession would flunk the voluntariness standard of Elstad such that the taint would carry over to the second warned confession.”).

2011We must give great deference “to the trial judge’s decision to admit or exclude such evidence, which will be overturned on appeal only where a flagrant abuse of discretion is shown.” Id. at 42; see United States v. Stewart, 536 F.3d 714, 723 (7th Cir.2008) (stating that when the interrogation process used was not a deliberate end run around Miranda , a trial court should determine “whether the initial unwarned confession would flunk the voluntariness standard of Elstad such that the taint would carry over to the second warned confession”).

2025Oursbourn, 259 S.W.3d at 172 ; see Leza, 351 S.W.3d at 352 (“Circumstances unattributable to the police that nevertheless adversely impact an accused’s ability to resist reasonable police entreaties to waive his statutory rights . . . are ‘factors’ in the voluntariness inquiry, though they ‘are usually not enough, by themselves, to render a statement inadmissible under Article 38.22.’” (quoting Oursbourn, 259 S.W.3d at 173 )).

2024However, while relevant to a voluntariness inquiry, such factors “are usually not enough by themselves to render a statement inadmissible under Article 38.22.” See Leza, 351 S.W.3d at 352 ; see also Sandoval, 665 S.W.3d at 526 (recognizing that “youth, intoxication, mental retardation, and other disabilities are usually not enough, by themselves, to render a statement inadmissible”).

2020Additionally, the record contains –5– no evidence of an independent event that caused Williams’s gun to discharge, see Brown, 955 S.W.2d at 280 (voluntariness instruction was warranted on evidence that defendant’s gun discharged when defendant was bumped by a third party), and accidental discharge does not merit a voluntariness instruction, see Adanandus, 866 S.W.2d at 230 (“The fact that appellant did not initially intend to engage in a struggle with a customer does not render his conduct in doing so involuntary or any of his bodily movements during that encounter involuntary.”); George v. St

2015See George v. State, 681 S.W.2d 43 (Tex. Crim.

2020Additionally, the record contains –5– no evidence of an independent event that caused Williams’s gun to discharge, see Brown, 955 S.W.2d at 280 (voluntariness instruction was warranted on evidence that defendant’s gun discharged when defendant was bumped by a third party), and accidental discharge does not merit a voluntariness instruction, see Adanandus, 866 S.W.2d at 230 (“The fact that appellant did not initially intend to engage in a struggle with a customer does not render his conduct in doing so involuntary or any of his bodily movements during that encounter involuntary.”); George v. St

2019As to whether a voluntariness instruction is required, Judge Price said that it is well-settled that a defendant is not entitled to a defensive charge when his theory simply negates an element of the offense.9 4 See Brown, 955 S.W.2d at 281-85 (Price, J., dissenting). 5 See id. at 283 ; TEX .

2013Mayfield v. State, 821 S.W.2d 357, 358 (Tex. App.—Houston Randle v. State Page 10 [14th Dist.] 1991, order) (citing Jackson v. Denno, 378 U.S. 368, 376-377, 394 (1964); Bass v. State, 626 S.W.2d 769, 772-773 (Tex. Crim.

2005See Jackson, 378 U.S. at 376-77 , 84 S.Ct. at 1780-81 ; Bass v. State, 626 S.W.2d 769, 772-73 (Tex.Crim.App. [Panel Op.] 1982); Mayfield v. State, 821 S.W.2d 357, 358 (Tex.App.-Houston [14th Dist.] 1991, no pet.); see also Arizona v. Fulminante, 499 U.S. 279, 310 , 111 S.Ct. 1246, 1265 , 113 L.Ed.2d 302 (1991) (holding that the erroneous admission of a coerced confession is subject to a harmless error analysis). 3 .

2013Mayfield v. State, 821 S.W.2d 357, 358 (Tex. App.—Houston Randle v. State Page 10 [14th Dist.] 1991, order) (citing Jackson v. Denno, 378 U.S. 368, 376-377, 394 (1964); Bass v. State, 626 S.W.2d 769, 772-773 (Tex. Crim.

2005See Jackson, 378 U.S. at 376-77 , 84 S.Ct. at 1780-81 ; Bass v. State, 626 S.W.2d 769, 772-73 (Tex.Crim.App. [Panel Op.] 1982); Mayfield v. State, 821 S.W.2d 357, 358 (Tex.App.-Houston [14th Dist.] 1991, no pet.); see also Arizona v. Fulminante, 499 U.S. 279, 310 , 111 S.Ct. 1246, 1265 , 113 L.Ed.2d 302 (1991) (holding that the erroneous admission of a coerced confession is subject to a harmless error analysis). 3 .

2004It is true that the Court of Criminal Appeals permitted voluntariness of the plea to be raised on appeal in this class of cases in Flowers v. State, 935 S.W.2d 131, 134 (Tex.Crim.App.1996), until Flowers was overruled by Cooper in 2001. 3 We fail to perceive, however, how the existence of the voluntariness exception during those years when Morfin and McCowan were decided should have dictated a different result in our Threadgill opinion, or how our reliance on those cases was misplaced.

2001See Villanueva v. State, 977 S.W.2d 693, 695-96 (Tex.App.—Fort Worth 1998, no pet.); see also Flowers v. State, 935 S.W.2d 131, 133 (Tex.Crim.App.1996) (holding that compliance with former rule 40(b)(1) was not necessary to raise a voluntariness challenge on appeal).

2001See Villanueva v. State, 977 S.W.2d 693, 695-96 (Tex.App.—Fort Worth 1998, no pet.); see also Flowers v. State, 935 S.W.2d 131, 133 (Tex.Crim.App.1996) (holding that compliance with former rule 40(b)(1) was not necessary to raise a voluntariness challenge on appeal).

2001See Villanueva v. State, 977 S.W.2d 693, 695-96 (Tex.App.-Fort Worth 1998, no pet.); see also Flowers v. State, 935 S.W.2d 131, 133 (Tex.Crim.App. 1996) (holding that compliance with former rule 40(b)(1) was not necessary to raise a voluntariness challenge on appeal).

2025See Day v. State, 696 S.W.3d 720 , 737 (Tex. App.— San Antonio 2024, pet. ref’d); see also Contreras v. State, 312 S.W.3d 566, 576 (Tex. Crim.

2011HARM ANALYSIS Texas law allows for jury instructions on three different types of “voluntariness” issues: (1) a general instruction on voluntariness under Article 38.22, § 64; (2) a warnings instruction under Article 38.22, § 75; and (3) a specific voluntariness instruction for constitutional due process claims under Article 38.23.6 Contreras, 312 S.W.3d 566, 573 (Tex.Crim.App. 2010); Oursborn v. State, 259 S.W.3d 159, 173-74 (Tex.Crim.App. 2008).

2015See Reasor v. State, 12 S.W.3d 813, 818 (Tex. Crim.

2015See Reasor v. State, 12 S.W.3d 813, 818 (Tex. Crim.

2015P. 44.2(a); Kane v. State, 173 S.W.3d 589, 595 (Tex. App.—Fort Worth 2005, no pet.) (applying the standard for constitutional error in admitting involuntary statement); see also Mayfield v. State, 821 S.W.2d 357, 358 (Tex. App.—Houston [14th Dist.] 1991, no pet.) (“Reversal of a judgment for failure to conduct a voluntariness hearing is not constitutionally required.”).

2013Mayfield v. State, 821 S.W.2d 357, 358 (Tex. App.—Houston Randle v. State Page 10 [14th Dist.] 1991, order) (citing Jackson v. Denno, 378 U.S. 368, 376-377, 394 (1964); Bass v. State, 626 S.W.2d 769, 772-773 (Tex. Crim.

2011Appellant's recorded statement fairly reflects that the interrogation techniques employed in this case are not the type of brutal "third-degree" techniques that would render a defendant's "statements to have been involuntary in traditional terms." See Miranda, 384 U.S. at 455-57, 86 S.Ct. 1602 ; State v. Terrazas, 4 S.W.3d 720, 723-24 (Tex.Crim.App.1999) (explaining that the voluntariness test is whether "the confession is the product of an essentially free and unconstrained choice by its maker" and whether the confession is true or false is irrelevant to a voluntariness determination because

2011Appellant’s recorded statement fairly reflects that the interrogation techniques employed in this case are not the type of brutal “third-degree” techniques that would render a defendant’s “statements to have been involuntary in traditional terms.” See Miranda, 384 U.S. at 455-57, 86 S.Ct. 1602 ; State v. Terrazas, 4 S.W.3d 720, 723-24 (Tex.Crim.App.1999) (explaining that the voluntariness test is whether “the confession is the product of an essentially free and unconstrained choice by its maker” and whether the confession is true or false is irrelevant to a voluntariness determination because

2010Diaz v. State, 61 S.W.3d 525, 529 (Tex. App.––San Antonio 2001, no pet.) (considering fifteen-year-old defendant‘s age in concluding statement was involuntary).

2010Diaz v. State, 61 S.W.3d 525, 529 (Tex.App.-San Antonio 2001, no pet.) (considering fifteen-year-old defendant’s age in concluding statement was involuntary).

2006Melton v. State, 790 S.W.2d 322, 326 (Tex. Crim.

2006Melton v. State , 790 S.W.2d 322, 326 (Tex. Crim.

2014App. 2013) (citing Posey, 966 S.W.2d at 62 ). –6– In the case before us, the record does not include a request by appellant that a voluntariness defense be included in the charge.

2014App. 2013) (citing Posey, 966 S.W.2d at 62 ). –6– In the case before us, the record does not include a request by appellant that a voluntariness defense be included in the charge.

1992Cf. Davis v. State, 505 S.W.2d 800, 802 (Tex.Crim.App.1974); King v. State, 502 S.W.2d 795, 798 (Tex.Crim.

1992Cf. Davis v. State, 505 S.W.2d 800, 802 (Tex.Crim.App.1974); King v. State, 502 S.W.2d 795, 798 (Tex.Crim.App.1973); Coursey v. State, 457 S.W.2d 565, 569 (Tex.Crim.App.1970); Ex parte Engle, 418 S.W.2d 671, 675 (Tex.Crim.App.1967).

2024Preserving Error in Jury Instructions “[T]he trial judge is ultimately responsible for the accuracy of the jury charge and accompanying instructions.” 7 Generally, the trial court is not required to “give instructions 5 Id. at *16. 6 Id. 7 Delgado v. State, 235 S.W.3d 244, 249 (Tex. Crim.

2024Preserving Error in Jury Instructions “[T]he trial judge is ultimately responsible for the accuracy of the jury charge and accompanying instructions.” 7 Generally, the trial court is not required to “give instructions 5 Id. at *16. 6 Id. 7 Delgado v. State, 235 S.W.3d 244, 249 (Tex. Crim.

2020See Farmer, 411 S.W.3d at 908 .

2015See id. at 905-08 .

2018See Kane v. State, 173 S.W.3d 589 , 594 & n.2 (Tex. App.—Fort Worth 2005, no pet.); see also Murkledove v. State, 437 S.W.3d 17, 28 (Tex. App.—Fort Worth 2014, pet. dism’d) (assuming that handwritten statements were erroneously admitted under article 38.22 and conducting a harm analysis); Randle v. State, No. 10-11- 00117-CR, 2013 WL 1188647 , at *5–7 (Tex. App.—Waco Mar. 21, 2013, pet. ref’d) (mem. op., not designated for publication) (citing Kane and performing a harm analysis when a trial court failed to conduct a voluntariness hearing).

2015P. 44.2(a); Kane v. State, 173 S.W.3d 589, 595 (Tex. App.—Fort Worth 2005, no pet.) (applying the standard for constitutional error in admitting involuntary statement); see also Mayfield v. State, 821 S.W.2d 357, 358 (Tex. App.—Houston [14th Dist.] 1991, no pet.) (“Reversal of a judgment for failure to conduct a voluntariness hearing is not constitutionally required.”).

2012See Meekins, 340 S.W.3d at 459 .

2012See Meekins, 340 S.W.3d at 459 .

2010United States v. Stewart, 536 F.3d 714, 723 (7th Cir.2008) (when the interrogation process used was not a deliberate end run around Miranda , a trial court should determine "whether the initial unwarned confession would flunk the voluntariness standard of Elstad such that the taint would carry over to the second warned confession”) (internal quotation marks omitted); see Elstad, 470 U.S. at 310 , 105 S.Ct. 1285 . 55 .

2000As the Supreme Court has noted, the voluntariness requirement found in the Fifth Amendment is "not concerned 'with moral and psychological pressures to confess emanating from sources other than official coercion.'" Id. ; see also Oregon v. Elstad , 470 U.S. 298, 305 , 105 S.Ct. 1285, 1290 , 84 L.Ed.2d 222 (1985).

2023See Peavey v. State, 248 S.W.3d 455, 465 (Tex. App.—Austin 2008, pet. ref’d); Trujillo, 227 S.W.3d at 170 ; see also Rogers, 105 S.W.3d at 640 (holding that defendant’s testimony “did not unambiguously develop the theory that . . . somehow, his finger had been made to 24 exert the requisite . . . force to squeeze the trigger and fire the gun”).

2022On appeal, the court determined that Peavey did not produce evidence warranting a voluntariness instruction, holding that Peavey’s claim that he must have been drugged was unsupported by the evidence and was “mere speculation.” Id. at 465 .

2000See Villanueva, 977 S.W.2d at 693-95 ; Elizondo , 979 S.W.2d at 824 .

2000See Villanueva, 977 S.W.2d at 693-95 ; Elizondo, 979 S.W.2d at 824 .

2023See Peavey v. State, 248 S.W.3d 455, 465 (Tex. App.—Austin 2008, pet. ref’d); Trujillo, 227 S.W.3d at 170 ; see also Rogers, 105 S.W.3d at 640 (holding that defendant’s testimony “did not unambiguously develop the theory that . . . somehow, his finger had been made to 24 exert the requisite . . . force to squeeze the trigger and fire the gun”).

2009See Holmes v. State, No. 01-06-00975- CR, 2008 Tex. App. LEXIS 2562 , at *17-18 (Tex. App.—Houston [1st Dist.] Apr. 10, 2008, pet. ref’d) (not designated for publication); Trujillo v. State, 227 S.W.3d 164, 169-70 (Tex. Hernandez v. State Page 3 App.—Houston [1st Dist.] 2006, no pet.); Mims v. State, No. 12-02-00178-CR, 2004 Tex. App. LEXIS 4019 , at *21-23 (Tex. App.—Tyler Apr. 30, 2004, pet. ref’d) (not designated for publication); see also Cavazos v. State, No. 05-05-1352-CR, 2006 Tex. App. LEXIS 9332 , at *20-22 (Tex. App.—Dallas Oct. 27, 2006, pet. ref’d) (not designated for publication)

2016Vasquez, 225 S.W.3d at 545 .

2009Voluntariness An instruction on voluntariness is required only if “based on the evidence presented at trial, a reasonable jury could conclude that the statement was not voluntary.” Vasquez v. State, 225 S.W.3d 541, 544 (Tex. Crim.

2015Applying the Strickland factors to the voluntariness analysis, if a defendant claims that his plea was involuntary due to ineffective assistance of counsel, the defendant must show “(1) that counsel’s advice was outside the range of competency demanded of attorneys in criminal cases and (2) that, but for counsel’s erroneous advice, the defendant would not have pleaded guilty and would instead have gone to trial.” Labib, 239 S.W.3d at 333 (citing Ex parte Moody, 991 S.W.2d 856 , 857–58 (Tex. Crim.

2003Ex parte Moody, 991 S.W.2d 856, 857 (Tex. Crim.

2015App. 1985) (describing “egregious harm”). 115 See Almanza, 686 S.W.2d at 171 . 51 at the time the Miranda Form and the Statement of Accused were admitted at trial.116 Appellant neither requested a voluntariness instruction nor objected to its exclusion.117 The first Almanza factor requires this Court to consider the entirety of the jury charge.118 In this case, the charge instructed the jury that Appellant was charged with Aggravated Robbery and that Appellant Alfaro voluntarily entered a plea of guilty, persisted in his plea of guilty and further that it appeared to the Court that Appellant A

2009Standard of Review for Jury Charges A claim of jury-charge error is reviewed using the procedure set out in Almanza v. State , 686 S.W.2d 157, 171 (Tex. Crim.