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Click here for the full text of this decision1076428378108 FACTS:In May 1999, two men robbed a McDonald’s restaurant and one of the men shot an employee. Later that same night, police picked up Andr’a Decors Rutherford on other charges and held in him jail overnight. The next morning, two detectives questioned Rutherford about the robbery at McDonald’s. During the two-hour interrogation, Rutherford provided a detailed written statement about his involvement in the robbery. Rutherford was charged with aggravated robbery. He moved to suppress his statement, saying it was not given voluntarily. The detectives said Rutherford confessed to his involvement after he had been given his Miranda rights and responding that he understood those rights. The detectives wrote down Rutherford’s statement, read it back to him, and had him read and initial the warnings on the statement, which he did. Rutherford claimed the warnings did not comply with the requirements of C.C.P. Art. 38.22. Specifically, he complained that the statement did not on its face include the warning, “the right to have a lawyer present to advise him prior to and during any questioning.” Rutherford said he did not remember having been verbally advised of his Miranda rights, though he did acknowledge that one of the detectives read him those rights before he signed his statement. The trial court overruled Rutherford’s objection to the statement. Rutherford was convicted, and now appeals. HOLDING:Affirmed. The court confirms that under Art. 38.22, a defendant’s written statement cannot be used as evidence unless it is shown on the face of the statement that, among other things, the right to have a lawyer present during questioning. Warnings provided in a voluntary statement are sufficient to comply with the statute’s requirements, and warnings that convey the exact meaning of the statute is sufficient. Failure to administer the warnings is reversible error, but an incomplete or incorrect warning may constitute substantial compliance. Article 38.22 includes five warnings, two of which are: the defendant has the right to have a lawyer present to advise him prior to and during any questioning (38.22(a)(3)); and if the defendant is unable to employ a lawyer, he has the right to have a lawyer appointed to advise him prior to and during any questioning (38.22(a)(4)). The warnings included on the face of Rutherford’s statement included a repetition of the provision corresponding to Art. 38.22(a)(4), but omitted the provision corresponding to Art. 38.22(a)(3). The court rejects Rutherford’s contention that the omission of (a)(3) rendered the statement invalid. Instead, the court agrees with the state that although (a)(3) does not appear on the face of the statement, the defect falls within the bounds of an incomplete or incorrect warning, rather than one where the warning is completely omitted. Both (a)(3) and (a)(4) both communicate the right to have counsel present prior to and during interrogation. The difference between them is largely only textual. OPINION:Lang, J.; Moseley, FitzGerald and Lang, JJ.

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