# Alvarado v. State

> Court of Criminal Appeals of Texas · November 15, 1995 · 912 S.W.2d 199

URL: https://www.frixlaw.com/law-library/cases/9667987

## Case

- **Full name:** Steven Brian ALVARADO, Appellant, v. the STATE of Texas, Appellee
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** November 15, 1995
- **Citations:** 912 S.W.2d 199; 1995 Tex. Crim. App. LEXIS 116; 1995 WL 675552
- **Precedential status:** Published
- **Opinion:** Concurrence by Maloney
- **Judges:** Mansfield, Baird, Maloney, Overstreet, Clinton, Meyers
- **Cited by:** 912 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Overruled on other grounds by Warner v. State, 2008 Tex. Crim. App. LEXIS 217 (2008).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9667987

## How later opinions describe it (automated extraction)

- stating that accused's statement is involuntary "only if there was official, coercive conduct of such a nature that any statement obtained thereby was unlikely to have been the product of an essentially free and unconstrained choice by its maker"
- holding officer’s 60 hours of training at two different police departments, that he had read a book on the subject and that the methods used in interpretation of bloodstains were of the type relied upon by experts in the field was sufficient
- holding that a statement is involuntary Aonly if there was official, coercive conduct of such a nature that any statement obtained thereby is unlikely to have been the product of an essentially free and unconstrained choice by its maker.@
- recognizing that statement is not voluntary if there was “official, coercive conduct of such a nature that any statement obtained thereby was unlikely to have been the product of an essentially free and unconstrained choice by its maker”
- holding that testimony was admissible as an adoptive admission because appellant was present when made and clearly called for response

## Opinion text

MALONEY, Judge,
concurring.
I concur with the result reached by the majority, but write separately to address the issue of the burden of proof at a hearing under Tex.Code Crim.Proc.Ann. art. 38.22, § 6. 1 Although the appropriate standard for admissibility of an accused’s statement has not yet been decided by this Court, the majority states, without any analysis, that the prosecution’s burden of proof at a hearing to determine the admissibility of a statement is preponderance of the evidence. Majority op. at 211. For the following reasons, I would find the appropriate burden of proof is beyond a reasonable doubt.
Appellant argued that his confession was involuntary. Pursuant to Article 38.22, § 6 the trial court conducted a pre-trial suppression hearing. At the conclusion of the suppression hearing, the trial court found that • defendant’s confession was freely and voluntarily given, and therefore admissible. The trial court did not state the standard it used to reach its decision. The trial court’s findings were made orally and there are no written findings of fact or conclusions of law included in the record.
I.
In Lego v. Twomey, the United States Supreme Court held that the prosecution in a suppression hearing must prove at least by a preponderance of the evidence that the confession was voluntary. Lego v. Twomey, 404 U.S. 477, 489 , 92 S.Ct. 619, 626-27 , 30 L.Ed.2d 618 (1971). The Court continued, stating “[sjtates are free, pursuant to their own law, to adopt a higher standard.” Id. Accordingly, a review of Texas statutes and caselaw is necessary to resolve this issue.
We have been inconsistent in our holdings regarding the proper standard for admissibility of an accused’s statement. Early on, this Court noted that “it devolves on the prosecution to satisfy to the court” that a confession was voluntarily made. Cain v. State, 18 Tex. 387, 391 (1857). Later, Griffin v. State, cited by the majority, acknowledged that this Court had yet to decide whether the constitutionally minimal preponderance of the evidence standard or a higher standard of proof be required in proving a confession admissible. Griffin v. State, 765 S.W.2d 422 , 429-30 n. 13 (Tex.Crim.App.1989); see also Farr v. State, 519 S.W.2d 876 , 879-80 n. 3 (Tex.Crim. App.1975); Valerio v. State, 494 S.W.2d 892 , 896 n. 2 (Tex.Crim.App.1973); Nash v. State, 477 S.W.2d 557 , 564 n. 6 (Tex.Crim.App. 1972). In other cases, while not mentioning the lack of a definitive standard, this Court affirmed trial courts’ findings that the evidence supported beyond a reasonable doubt that the defendant’s confession was voluntary. See Melton v. State, 790 S.W.2d 322, 324 (Tex.Crim.App.1990) (noting trial court found State proved beyond a reasonable doubt confession was voluntary); Davis v. State, 499 S.W.2d 303, 307 (Tex.Crim.App. 1973) (opinion on reh’g) (upholding trial court’s finding beyond a reasonable doubt statement voluntary); see also Meeks v. State, 897 S.W.2d 950, 954 (Tex.App.—Fort Worth 1995, no pet.) (holding evidence sufficient beyond a reasonable doubt to support trial court’s finding at suppression hearing that confession voluntary).
*227 II.
Our statutes provide guidance on this issue. Article 38.22, § 6 provides in pertinent part:
In all cases where a question is raised as to the voluntariness of a statement of an accused, the court must make an independent finding in the absence of the jury as to whether the statement was made under voluntary conditions. If the statement has been found to have been voluntarily made and held admissible as a matter of law and fact by the court in a hearing in the absence of the jury, the court must enter an order stating its conclusion as to whether or not the statement was voluntarily made, .... Upon the finding by the judge as a matter of law and fact that the statement was voluntarily made, evidence pertaining to such matter may be submitted to the jury and it shall be instructed that unless the jury believes beyond a reasonable doubt that the statement was voluntarily made, the jury shall not consider such statement for any purpose....
Tex. Code Crim.Proc.Ann. art. 38.22, § 6. This article has always required that if the court finds the accused’s statement to be voluntary, upon introduction of evidence at trial before the trier of fact, the jury must be instructed it can consider the statement only if it believes beyond a reasonable doubt that it was made voluntarily. 2 See Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722, amended by Acts 1967, 60th Leg., p. 1740, ch. 659, § 23 and Acts 1977, 65th Leg., p. 935, ch. 348, § 2.
I find the standard applied to juries instructive on this issue based upon the same reasoning this Court used in Harrell v. State, 884 S.W.2d 154 (Tex.Crim.App.1994). The issue in Harrell concerned the burden of proof for admissibility of extraneous offense evidence. Id. at 155 . We noted that the standard for admissibility by the trial court was consistent with the requirement that a trial court instruct the jury not to consider extraneous offense evidence unless it believes beyond a reasonable doubt that the defendant committed such offense. Id. at 158 . We recognized it was illogical for the trial court to admit evidence using a certain standard for admissibility, but then to instruct the jury not to consider the same evidence unless the jury was convinced by a different standard that it was admissible. Id. The same reasoning applies to the instant ease.
Accordingly, for the above reasons, I would find that “beyond a reasonable doubt” is the standard for admissibility of a confession.
. While I recognize that appellant does not argue what standard of proof is required, I believe the standard for admissibility is inextricably connected to the issue before us and must be addressed.
. The predecessors to Article 38.22, § 6 do not raise this issue. They neither require a pre-trial hearing on voluntariness nor specific instructions to the jury. See Article 790, C.C.P. (1896) as amended by Acts of 1907; Article 727, C.C.P. (1925).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9667987. Public record. Not legal advice.