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Click here for the full text of this decision FACTS:Gary Jackson, Guadalupe Vasquez’s landlord, was found dead in his apartment. He had been shot twice in the chest and once in the head. Vazquez and his wife were among the suspects in the investigation. Authorities asked the couple to come to the police station to be interviewed about the incident. The couple agreed and drove themselves to the station the following day. Police questioned Vasquez and his wife separately. Detectives Santos, Scanlon and Sanchez interviewed Vasquez. Scanlon testified that before the interview, they did not have probable cause to arrest Vasquez, and that during the interview he was not in custody, was not handcuffed and was free to leave. Police interviewed Vasquez for seven hours, during which time police ignored or deflected his requests to leave and to talk to his wife. Vasquez eventually confessed. Police videotaped the entire interview. Vasquez filed a pretrial motion to suppress the videotape of the interview and his signed confession. After a hearing on the motion, the trial court denied Vasquez’s motion. Later, the trial court admitted the videotape and written statement at trial. At the end of the guilt phase, Vasquez requested that “the jury be instructed that if they have a reasonable doubt as to whether or not the confession was voluntarily made, that it would not be considered in their deliberations.” Vasquez also requested that, in the event of a conviction, the instruction request be reduced to writing and endorsed by the court. The state objected to the instruction, arguing that Vasquez would only be entitled to an instruction on voluntariness if there was a factual dispute regarding the events. Vasquez countered that the case law requiring a factual dispute was not applicable, because it did not deal with the voluntariness of a confession. Vasquez then argued in favor of the instruction, because the evidence raised the issue of voluntariness. Vasquez cited several parts of the interrogation as evidence raising the issue of voluntariness: the length of the interrogation; that the detectives lied to him during the interrogation about having incriminating evidence from the crime scene; that the detectives suggested that giving a statement would help him; and that the detectives suggested if he didn’t make a statement, they would implicate his wife in the offense. The court denied the requested instruction. Vasquez objected and the court overruled the objection. Vasquez appealed his conviction to the 3rd Court of Appeals in four points of error. The 3rd Court overruled the first three points of error but sustained his fourth point, which argued that the trial court erred by failing to submit the issue of voluntariness to the jury. The state filed a petition for discretionary review, which the CCA granted. The state presented two grounds for review which claimed, in essence: 1. The 3rd Court erred in reversing the trial court’s decision on a theory of law never briefed by the respondent or communicated to the trial court; 2. The 3rd Court incorrectly stated the test for determining when an instruction on voluntariness is required under Texas Code of Criminal Procedure Art. 38.22. HOLDING:Affirmed. The state argued that because Vasquez never specifically cited Art. 38.22, �6, as the basis for his requested instruction to the trial court, the 3rd Court erred by basing its analysis on the requirements of that article. The CCA found that while Vasquez did not cite a specific statute, the language of his proposed instruction was a paraphrase of the instruction provided for in Art. 38.22, �6. Thus, the CCA found that Vasquez sufficiently cited Art. 38.22 before the trial court so that the 3rd Court could base its analysis on the requirements of the statute. It was a closer question, the CCA stated, whether Vasquez raised the issue of voluntariness under Art. 38.22 on direct appeal. But the CCA again found for Vasquez, because the 3rd Court was free to review “unassigned error”, i.e. a claim that was preserved in the trial below but was not raised on appeal. Thus, the CCA found even assuming arguendo that Vasquez did not raise the issue of voluntariness under Art. 38.22 on direct appeal, “the issue was preserved, and the court of appeals did not err by citing article 38.22 as the basis for its opinion.” The CCA then weighed the state’s second issue, which argued that the 3rd Court incorrectly stated the test for determining when Art. 38.22 mandated an instruction on voluntariness. The 3rd Court held that under Art. 38.22, “a defendant may be entitled to an instruction on voluntariness even if the facts surrounding his confession are undisputed. An instruction must be given if a reasonable jury, viewing the totality of the circumstances, could have found that the statement was not voluntarily made.” The CCA held that the 3rd Court correctly stated the test. The state, the CCA stated, argued that the trial court did not err in refusing Vasquez’s requested instruction, because no party introduced new evidence raising voluntariness at trial and because there was no factual dispute regarding the evidence. But the CCA stated that Art. 38.22 required neither factor. The CCA stated that juries may also be given an instruction to disregard statements of the accused under Art. 38.23(a)’s exclusionary rule, which prohibits admission of any type of evidence that was obtained in violation of the constitution or laws of the state of Texas or of the U.S. Constitution or laws of the United States. Such a jury instruction, the CCA stated, is allowed under Art. 38.23(a) “only if there is a factual dispute as to how the evidence was obtained.” If there is no factual issue of how evidence was obtained, the CCA stated, there is only an issue of law, which is not for a jury to decide under Art. 38.23(a). Thus, the CCA noted, the jury’s role under Art. 38.22 is different from its role under Art. 38.23. OPINION:Meyers, J., delivered the opinion of the court, in which Keller, P.J., and Price, Womack, Johnson, Keasler, Hervey and Cochran, J.J., joined. CONCURRENCE:Holcomb, J., concurred in the result.

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