author: BEA ANN SMITH, Justice.

text:
    Guadalupe VASQUEZ, Appellant, v. The STATE of Texas, Appellee.
    No. 03-04-00307-CR.
    Court of Appeals of Texas, Austin.
    Oct. 21, 2005.
    Rehearing Overruled Nov. 18, 2005.

      Martin J. Thompson, Jr., Austin, for appellant.
    Holly E. Taylor, Asst. Dist. Atty., Austin, for appellee.
    Before Chief Justice LAW, Justices B.A. SMITH and PEMBERTON.
   OPINION

BEA ANN SMITH, Justice.

A jury convicted Guadalupe Vasquez of murder, and he was sentenced to fifty years in prison. See Tex. Pen.Code Ann. § 19.02 (West 2003). In this appeal, Vasquez raises four points of error, all with respect to the admission and consideration of his extra-judicial confession. Although we hold that the trial court did not err by finding that Vasquez’s confession had been voluntarily made, it was error to refuse Vasquez’s request to submit the issue of voluntariness to the jury. We reverse the conviction and remand for a new trial consistent with this opinion.

BACKGROUND

Gary Jackson was found dead in his home on January 5, 2003. He had been shot twice in the chest and once in the head, and a plastic bag had been placed over his head. Jackson was Vasquez’s landlord and lived on the other side of the duplex occupied by Vasquez and his wife Maria. Detective Kerry Scanlon briefly spoke with the couple outside of their home on the evening of January 8, and they were later asked to come to the police station for an interview. At that time, Vasquez was already a suspect in light of reports by neighbors that Vasquez and Jackson had argued loudly and a ledger found in Jackson’s home indicating that Vasquez owed Jackson several thousand dollars. Guadalupe and Maria Vasquez drove to the police station the following afternoon and were interviewed separately-

Because the voluntariness of Vasquez’s confession is at issue, a detailed description of the over seven hours of interrogation leading up to the confession is helpful. After Vasquez and his wife arrived at the police station, Detective Scanlon placed Vasquez alone in a small interview room. The room contained only a small table and several plastic chairs. A hidden overhead camera recorded all activities in the room. The videotape of the interview indicates that Vasquez was placed in the room at 4:54 p.m. Detective Scanlon soon began the interview by asking Vasquez about his whereabouts over the past weekend, his relationship with Jackson, and when he last saw Jackson. Over the course of the next hour, Scanlon took down Vasquez’s account on a computer and produced an affidavit, which Vasquez signed. In the affidavit, Vasquez stated that he last saw Jackson outside of the duplex on the evening of Friday, January 3 when he and his wife were going out to eat. He gave a general description of what he and his wife did over the weekend. Vasquez stated that he learned of Jackson’s death when he returned from the store on Sunday, January 5, to find police at the duplex.

Once Detective Scanlon took down Vasquez’s statement, he left the room to go print it out. He told Vasquez that the door was not locked, but that if he needed to go to the bathroom to just knock. Scanlon then took Vasquez to the bathroom and can be seen in the video escorting him back to the interview room and leaving. Vasquez was handed the written statement and given time to review it. Vasquez signed the statement, and Scanlon notarized it and took a photograph of Vasquez. Scanlon then left, saying that he would check on Vasquez’s wife.

Vasquez was left alone in the interview room for about twelve minutes. During that time, he can be seen yawning, stretching, rubbing his eyes, and fidgeting. When Scanlon returned, he informed Vasquez that his wife would be a while longer because of “language problems.” Scanlon then moved his chair close to Vasquez, crowding him in the far corner of the interview room. Vasquez remained seated in this corner throughout the interrogation. Detective Eric De Los Santos later entered the room and joined the interrogation. At this point, the interrogation became somewhat more direct. Vasquez was asked about guns that he possessed, when he last used them, and whether he would allow police to test them. He was asked in detail about the interior of Jackson’s home and whether Vasquez’s fingerprints, hair, or tools would be found there. Vasquez admitted that he had taken some trash bags from his job and that he might have given some to Jackson. The conversation also focused on Vasquez’s employment at a funeral home. There was a lengthy discussion of how the heads of bodies are bagged after autopsies. At times the officers joked with each other that Vasquez did not want to talk about the bagging of the head on a body. Vasquez was also told that neighbors had reported arguments between him and Jackson and that he owed Jackson several thousand dollars.

After about an hour, the detectives became even more insistent:

Scanlon: I think you have a story to tell, you need to start telling the story.
Vasquez: I don’t have a story.
Scanlon: I think you do. I think you need to tell us your side of what happened.
Vasquez: My side of what happened?
Scanlon: If you want us to know your side of what happened, you’re the only one who can tell us that.

Vasquez was then informed that owing money to Jackson was “the least of his problems.” Detective De Los Santos asked, “what happened — seriously now— you’ve been playing games this whole time ... what happened?” In response to a direct question, Vasquez denied killing Jackson.

At 7:18 p.m., after he had agreed to go to his home with the detectives to examine his .38 revolver, Vasquez asked, “where’s my wife?” He was informed that she was still speaking with other detectives. As the detectives got up from their chairs, Vasquez said, “I need to get my wife.” He was told by Detective De Los Santos that the detectives were going in their own car and that he should wait in the interview room. Five minutes later, Scanlon returned. Vasquez asked if his wife was ready. Scanlon replied, “I didn’t even notice.” After setting up his computer, Scanlon told Vasquez, “I hate to see you try to stick to this story,” and then continued pressing Vasquez to admit his guilt. The interrogation continued along these lines for another half hour until Vasquez asked to go out to smoke a cigarette. As they left the interview room, Vasquez again asked, “where’s my wife?” No response from the detectives can be heard on the videotape.

After they returned from the cigarette break, Vasquez was offered water, which he declined. At 8:10 p.m. Vasquez asked Scanlon, “Is my wife still in the building ... can I see her?” Scanlon replied that Vasquez could but asked Vasquez to wait a second while Scanlon continued working on his computer. Scanlon then proceeded to discuss computers until an officer arrived to take hair and saliva samples from Vasquez. Shortly thereafter, Vasquez consented to a search of his car. When he asked to accompany the officers in searching his car, De Los Santos stated, “Technically, you can’t go out, I mean, we’d like to do it ourselves.” The detectives then got up to leave. As they were leaving, Vasquez again asked about his wife:

Vasquez: Where’s my wife at?
Scanlon: She’s right over there.
Vasquez: I’d like to talk to her.

Vasquez’s request was ignored, and the detectives left the room. Upon Scanlon’s return, Vasquez again asked, “so where’s my wife at?” Scanlon told Vasquez that she was “out there” and that he would probably bring her in a minute and let the two wait together. He then resumed pressing Vasquez to admit to the murder explaining, “I will not be able to help you later.... I’m trying to be on your side.... I’m trying to help everybody out.” Vasquez continued asking about his wife but was told that she was still talking to the detectives. Scanlon informed Vasquez that “she’s got a lot to say” and that she had changed her story. At 8:41 p.m., Vasquez was given some water. Soon after, he was told that the police had obtained a warrant to search his house, “based on the evidence.”

The interrogation continued in much the same way over the course of the evening. The officers revisited many of the same areas of inquiry, confronted Vasquez with alleged inconsistencies between his statements and facts already known to the police, and even asserted that Vasquez’s wife had helped him commit the murder. At 9:31 p.m., Vasquez was allowed to use a phone to call his wife. Vasquez called his home but there was no answer, and Detective Scanlon told Vasquez that no one would answer at the house.

On several occasions Vasquez asked to leave. Each time, the detectives either ignored his requests and changed the subject or gave an off-putting excuse to delay Vasquez. At 9:23 p.m., Vasquez asked if he could go home. Detective Scanlon replied that he could go home but that he could not go inside because the police were searching the house. “Right now, all we can do is wait. When they advise us, I’ll let you know.” At 9:45 p.m., Vasquez told Detective De Los Santos that he was ready to go:

De Los Santos: What’s the word Lupe?
Vasquez: Well, I’m ready to go now.
De Los Santos: You- ready to go now?
Vasquez: Oh yeah.
De Los Santos: You want to go now?
Vasquez: Oh yeah.
De Los Santos: You don’t want to hang around no more?
Vasquez: Well, I gotta get up early in the morning.
De Los Santos: Ok. I talked to your wife....

At the end of this exchange, Detective De Los Santos sat down in one chair and put his feet up on another — effectively blocking the door — and proceeded to ask Vasquez about possible inconsistencies between his story and that of his wife. Vasquez remained seated in the corner of the room and continued to answer questions.

Vasquez inquired about the status- of his truck at 10:14 p.m. Detective De Los Santos replied that he did not know. When Vasquez complained about being interrogated, Detective De Los Santos replied, “You don’t have to be here, you know, you are free to leave any time you want to ... but, I guess my concern would be ... I’m not, you know, I’m not going to beat around the bush with you, I’m going to ask you straight up — did you kill Gary?” Vasquez denied killing Jackson, and the interrogation continued.

At 10:29 p.m., Vasquez announced that it was “time to go now.” He was asked several more times whether he had anything else to say. Detective Scanlon then gave Vasquez his business card and went to retrieve Vasquez’s car keys. Standing by the open door, Detective De Los Santos continued to press Vasquez about his involvement in the murder. Then Detective Scanlon asked the two to wait a second. Vasquez agreed and returned to his seat in the far corner. He told Detective De Los Santos that he needed to call his wife. Detective De Los Santos replied that he was sure she was alright and continued to question Vasquez. Detective Scanlon returned with a bag and asked Vasquez to put his boots in it. Vasquez complied. Detective Scanlon took the boots away, and Vasquez asked Detective De Los Santos:

Vasquez: How am I supposed to leave? How long are you going to keep the boots?
De Los Santos: I’m telling you man, we are going to find it. We are going to find it. If there’s an explanation, you need to tell me.
Vasquez: How am I supposed to work without my boots?
De Los Santos: Hmm? You don’t have any other shoes?
Vasquez: I have other work boots.
De Los Santos: But that’s not what we are talking about here. Is, is that really what concerns you is how you going to work without those shoes?.... I don’t think that’s the only thing you are worrying about. I doubt that’s your main worry right now.... Because we’re going to find it man.
Vasquez: Where are they going to take my boots?
De Los Santos: Help yourself man. Make your self feel better....
Vasquez: And they’re in my house right now.

Detective De Los Santos then told Vasquez again that he was free to leave; his car keys had been placed on the table in front of him. However, Vasquez was also told that he could not go home until the police finished searching his house. Vasquez remained seated without his boots and the detectives continued to interrogate him with the door open.

At 11:36 p.m., Vasquez asked to leave one final time:

Vasquez: Ya me voy? (I am going now?)
De Los Santos: That’s up to you. That’s up to you.
Vasquez: Soy descalzo. (I am shoeless.)
De Los Santos: Descalzo man, you know what....
Vasquez: That’s the least of my worries.
De Los Santos: That’s the least of your worries ... unless there are other worries.
Vasquez: That’s all I have man.
De Los Santos: Hey brother, I’m not holding you back ... but does it bother you that I don’t believe you?

Detective De Los Santos then continued in his attempt to persuade Vasquez to tell the truth while Vasquez remained seated in his chair in the corner of the room.

The conversation leading up to Vasquez’s confession turned to his problems with depression. Vasquez told the detectives that he had taken medication for depression and that he had been treated by a neurologist. He said that his doctor stopped prescribing the medication and that he had been taking some of his wife’s medication. He informed the detectives that he almost committed suicide several times and admitted that he had problems controlling his anger without the medication. He described his feelings as “worse than anger.” Vasquez twice asked to take a cigarette break during this conversation. He first agreed to wait five minutes. In response to his second request, Vasquez was told he could have a cigarette if he told the truth. During this final conversation, the detectives repeatedly told Vasquez that they wanted to help him but could not do anything for him unless he told the truth about the murder. When asked whether he wanted to hurt anyone else, Vasquez indicated that he wanted to hurt himself. The detectives then discussed Vasquez’s need for medication:

Scanlon: You need medication, We can get you some medication. Tell us what happened ... if you tell us the truth of what happened, you know, we’re gonna do everything we can to get you the help you need.
De Los Santos: We can’t help you if you don’t help yourself.
Vasquez: I know.

After several more minutes of pressing Vasquez to tell him what happened, Detective Scanlon reached out his hand to Vasquez. Vasquez held Scanlon’s hand and said, “It happened.” After answering a couple questions about how he went inside Jackson’s home and repeating that he “did it,” Vasquez again took Scanlon’s hand. Scanlon reassured Vasquez, “I’m on your side ... I still am your friend. I still like you.” Vasquez wiped tears from his eyes, and they all got up for Vasquez to have a cigarette. Detective Scanlon testified at trial that they went for a cigarette “because [Vasquez] was crying and I wanted to reward him for making the admission.” Scanlon later returned to the interview room with Vasquez, who gave a full account of the murder. Scanlon first informed Vasquez of his Miranda rights at 12:27 a.m. Vasquez was later taken out to Jackson’s home where he reenacted the murder.

Prior to trial, Vasquez filed a motion to suppress his confession. A hearing was conducted in which the district court heard testimony from Detective Scanlon and watched the videotape of the interrogation. The district court overruled the motion and the confession, including the entire videotaped interrogation, was admitted at trial.

DISCUSSION

Vasquez raises four points of error with regard to the district court’s handling of his confession: the district court (1) did not properly enter findings of fact and conclusions of law as required by article 38.22, section 6 of the code of criminal procedure; (2) erred by overruling his motion to suppress the confession because his confession was not voluntarily made; (3) erred by overruling his motion to suppress the confession because Vasquez did not voluntarily waive his rights as required by article 38.22, section 2 of the code of criminal procedure; and (4) erred by failing to submit the issue of the voluntariness of Vasquez’s confession to the jury.

Findings of Fact and Conclusions of Law

In his first point of error, Vasquez contends that the trial court failed to enter findings as required by article 38.22, section 6, of the code of criminal procedure. See Tex.Code Crim. Proc. Ann. art. 38.22, § 6 (West 2005). When the volun-tariness of a statement is challenged, a trial court is required to make findings with regard to its determination. Id.; Urias v. State, 155 S.W.3d 141, 142 (Tex.Crim.App.2004). Such findings are mandatory even when there is no objection at trial. Id. However, a trial court will be found to have complied with article 38.22, section 6, if the court dictates its findings and conclusions to the court reporter and those findings are made part of the appellate record. See Murphy v. State, 112 S.W.3d 592, 601-02 (Tex.Crim.App.2003); Parr v. State, 658 S.W.2d 620, 623 (Tex.Crim.App.1983). “[Findings need not be made with minute specificity as to every alleged and hypothetical possibility for physical or mental coercion, but need only be sufficient to provide the appellate court and the parties with a basis upon which to review the trial court’s application of the law to the facts.” Nichols v. State, 810 S.W.2d 829, 831 (Tex.App.-Dallas, 1991, pet.ref'd).

Here, the district court read its findings into the record:

The Court finds that the accused, Guadalupe Vasquez, voluntarily went to the Austin Police Department for an interview, he and his wife. The Court is capable of finding that based upon the evidence the Court heard at the hearing. The Court finds that the defendant during his lengthy session in the interview room appeared to be alert at all times. He was given opportunities to take breaks, breaks upon his request. From the Court’s observations in viewing the videotape, the door to the interview room was never locked. In fact, as the lawyers have indicated, the door was opened at a point in time during the interview of the accused. The defendant was told on at least two occasions that he was free to leave if he wished to leave. But he didn’t exercise that desire if he had one. He never attempted to leave and the Court finds that there were no restrictions or any actions that the Court was able to view that would prohibit or interfere with an opportunity to leave the interview room. His car keys were made available to him.
The Court finds that the defendant freely and voluntarily waived his rights, although the Court also finds, as I said earlier, this was a noncustodial interrogation and the motion to suppress is denied. .

The district court’s findings make specific reference to facts adduced through testimony at the hearing and events on the videotape. We hold that these findings were properly read into the record and are sufficiently detailed to comply with the requirements of article 38.22, section 6. See Murphy, 112 S.W.3d at 601-02; Nichols, 810 S.W.2d at 831. Accordingly, we overrule Vasquez’s first point of error.

Voluntariness

In his second and third issues, Vasquez contends that the district court erred by admitting his confession because both his confession and his waiver of his Miranda rights were the result of police coercion, and therefore were not voluntarily made. See Tex. Code Crim. Proc. Ann. art. 38.22; Blackburn v. Alabama, 361 U.S. 199, 210, 80 S.Ct. 274, 4 L.Ed.2d 242 (1960). In reviewing a ruling on a motion to suppress, we give almost total deference to the trial court’s determination of historical facts. See Balentine v. State, 71 S.W.3d 763, 768 (Tex.Crim.App.2002); Garcia v. State, 15 S.W.3d 533, 535 (Tex.Crim.App.2000). We review de novo mixed questions of law and fact that do not turn on an evaluation of credibility and demeanor. Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997); Hayes v. State, 132 S.W.3d 147, 151 (Tex.App.-Austin 2004, no pet.). The district court is the sole fact-finder at a Jackson v. Denno hearing and may choose to believe or disbelieve any or all of the witnesses’ testimony. Sells v. State, 121 S.W.3d 748, 767 (Tex.Crim.App.2003); Dewberry v. State, 4 S.W.3d 735, 747-48 (Tex.Crim.App.1999). We are not at liberty to disturb any finding that is supported by the record. Sells, 121 S.W.3d at 767.

Yasquez asserts that he confessed to Jackson’s murder only after his will was overborne by more than seven hours of “sophisticated physical and mental coercion.” A confession is involuntary or coerced if the totality of the circumstances demonstrates that the confessor did not make the decision to confess of his own free will. Green v. State, 934 S.W.2d 92, 99 (Tex.Crim.App.1996) (citing Arizona v. Fulminante, 499 U.S. 279, 285-86, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991)); Scott v. State, 165 S.W.3d 27, 43 (Tex.App.-Austin 2005, pet. dism’d). We determine whether a confession was voluntary under the due process clause of the Fourteenth Amendment by examining the totality of the circumstances surrounding its acquisition. Armstrong v. State, 718 S.W.2d 686, 693 (Tex.Crim.App.1985); Scott, 165 S.W.3d at 43.

Vasquez points to a number of factors in the interrogation that he alleges acted in combination to render his confession involuntary. He first points to the duration of the interrogation. Our review of the record shows that Vasquez was subjected to over seven hours of increasingly coercive interrogation before admitting his guilt shortly after midnight. Statements were .also made by the detectives that could have been interpreted to indicate that the interrogation would not cease until Vasquez confessed. For example, Detective De Los Santos told Vasquez that his story was inconsistent with what they had been told by others and then stated, “You know, we are not going to go away. We are going to keep pushing and pushing and pushing and pushing, Ok.” Twenty minutes before making his first admission, Detective De Los Santos told Vasquez, “I’ve got nothing but time on my hands.” There were also long pauses in the interrogation in which the detectives were present, but remained silent, or where Vasquez was left alone in the closed interview room. Vasquez also notes that he was isolated from his wife, and that the officers used a variety of techniques to keep him from leaving. As discussed in our summary of the interrogation, the record is replete with instances in which clear requests by Vasquez to leave or see his wife were ignored by the officers.

Vasquez also alleges that the detectives took advantage of his mental illness and made improper promises. A confession is invalid if it was induced by a promise that was “positive, made or sanctioned by someone in authority, and of such an influential nature that it would cause a defendant to speak untruthfully.” Martinez v. State, 127 S.W.3d 792, 794 (Tex.Crim.App.2004). A consistent theme used in the interrogation involved the officers vaguely promising to “help” Vasquez but stating that Vasquez had to first “help himself’ by telling the truth. Our review of the videotape also reveals two instances which could possibly be interpreted as more specific promises, both occurring within half an hour of Vasquez’s first admission. On one occasion Vasquez was told that he could have a cigarette if he “told the truth.” Soon after, Detective Scanlon told Vasquez, “we can get you some medication. Tell us what happened ...'. [I]f you tell us the truth of what happened, you know, we’re gonna do everything we can to get you the help you need.” Detective De Los Santos added, “we can’t help you if you don’t help yourself.” However, the detectives’ vague promises of “help,” or the promise of cigarettes, were not of such an influential nature that they would have caused Vasquez to speak untruthfully. See Martinez, 127 S.W.3d at 794. Although a promise of needed medication would be much more compelling, it is unclear from our examination of the videotape that a promise of assisting Vasquez in obtaining medication was made or that such a promise actually induced the confession. See id. The detectives only mentioned that they could assist Vasquez in obtaining medication once in the course of the seven-hour interrogation during which the detectives appealed to Vasquez in countless other ways.

We agree that Vasquez was a vulnerable individual who was subjected to a lengthy, coercive, and sustained interrogation by two trained homicide detectives bent on obtaining a confession. But the detectives’ success in persuading Vasquez to confess does not indicate that Vasquez’s decision was not made of his own free will. See Green v. State, 934 S.W.2d at 99; Scott, 165 S.W.3d at 43. Vasquez was repeatedly told that he could leave, the door to the interrogation room was open, and he was even given his car keys. With every opportunity to end the interrogation, Vasquez chose to return to his seat and continue speaking with the detectives. Although the detectives certainly made it inconvenient for Vasquez to end the interrogation by taking his boots and isolating him from his wife, viewing the totality of the circumstances, we do not find that the district court erred in finding that Vasquez’s confession was voluntarily made. For the same reasons that the district court properly found Vasquez’s statement to be voluntarily made, the district court’s finding that Vasquez freely and voluntarily waived his rights is also supported by the record. Accordingly, we overrule Vasquez’s second and third points of error.

Instruction on Voluntariness

In his fourth point of error, Vasquez contends that the district court erred by failing to submit the issue of voluntariness to the jury. Article 38.22, section 6, of the code of criminal procedure sets forth a two-step procedure for determining volun-tariness. It first requires that the trial court make an independent finding in the absence of the jury on the voluntariness of a confession. Tex.Code Crim. Proc. Ann. art. 38.22, § 6. If the trial court finds that the confession was voluntarily made, the statute states that the issue may then be submitted to the jury, and the jury must be instructed that it shall not consider the confession unless it believes beyond a reasonable doubt that the confession was voluntarily made. Id. Vasquez alleges that he was entitled to a statutory instruction on voluntariness because (1) the evidence raised the issue regarding the voluntariness of the confession and (2) trial counsel properly requested an instruction on the issue. The district court denied the requested instruction after the State argued that Vasquez was only entitled to an instruction if there was a factual dispute regarding the events of the interrogation. The State advances the same argument on appeal. We disagree. As we explain below, (1) article 38.22, section 6, is a unique inquiry that does not require disputed facts to “raise an issue” as to voluntariness, and (2) there is some evidence that Vasquez’s confession was not voluntarily made.

Confession law

The code of criminal procedure contains specific provisions governing the admission and consideration of confessions. Article 38.21 contains a blanket prohibition on the admission of involuntary confessions. See Tex.Code Crim. Proc. Ann. art. 38.21. Article 38.22 contains a detailed set of procedures governing the use of written and oral statements as evidence. Id. art. 38.22. For example, article 38.22 specifically incorporates the Miranda warning requirements and places limitations on- the use of oral statements that are not electronically recorded. See id. art. 38.22, §§ 2, 3. Article 38.22, section 6, outlines the procedure for determining whether a statement was voluntarily made. A defendant is first entitled to a hearing outside the presence of the jury in which the trial court must make an independent finding on voluntariness. See id. art. 38.22, § 6. If the trial court determines that the statement was voluntarily made, section 6 then allows the issue to be submitted to the jury:

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 nor any evidence obtained as a result thereof.

Id- Article 38.22, section 7, also provides, “When the issue is raised by the evidence, the trial judge shall appropriately instruct the jury, generally, on the law pertaining to such statement.” Id. art. 38.22, § 7. A defendant is not entitled to an instruction on the voluntariness of a statement in every case. The evidence admitted at trial must, in fact, raise a question as to its voluntariness. Id. art. 38.22, § 6; Terraza s, 4 S.W.3d at 724; Hernandez v. State, 819 S.W.2d 806, 812 (Tex.Crim.App.1991). “Raising an issue as to the voluntariness of a confession means that some evidence must be presented to the jury that the confession was not given voluntarily.” Hernandez, 819 S.W.2d at 812 (emphasis added). Commentators Dix and Dawson have formulated the standard as such: “[T]he application of the legal standard for voluntariness to agreed facts should be a jury issue, if those facts are ones from which a reasonable jury could conclude that the statement at issue was involuntary.” 41 George E. Dix & Robert 0. Dawson, Texas Practice: Criminal Practice and Procedure § 13.393 .at 219 (2nd ed.2001) (hereafter Dix and Dawson).

The court of criminal appeals discussed what type of evidence raises a question of voluntariness in Terrazas. See 4 S.W.3d at 727. Linking the standard for an instruction with the standard for shifting the burden on the State to prove vol-untariness at a pretrial hearing, the court of criminal appeals focused on the nature of the evidence. See id. at 726-27. The court pointed to practices it described as “inherently coercive” such as lengthy interrogation, threats of violence, and detention incommunicado without advice of counsel or friends. See id. The United States Supreme Court has also identified a variety of factors raising the issue of vol-untariness including: the youth of the accused, his lack of education, his low intelligence, the absence of Miranda warnings, the repeated and .prolonged nature of the questioning, and the use of physical punishment. See Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). Thése factors are not exclusive, and we look at the totality of the circumstances. See id. Moreover, the defendant need not testify or call any witnesses for the issue of voluntariness to be raised by the evidence. Muniz v. State, 851 S.W.2d 238, 255 n. 12 (Tex.Crim.App.1993). The issue may be raised through cross-examination or by evidence introduced by the State. See id.

Factual dispute not required

The district court denied Vasquez an instruction based on the State’s incorrect argument, and other case law, suggesting that a defendant is only entitled to an instruction on voluntariness if the determination requires the resolution of disputed facts. This misinterpretation of the law is quite understandable in light of the “considerable confusion [in the case law] between the standard for jury submission of voluntariness under article 38.22 and that for submission of an exclusionary rule issue under article 38.23.” Dix and Dawson § 13.393 at 219. Article 38.23(a) prohibits the admission of illegally obtained evidence and provides that the issue be submitted to the jury. See Tex.Code Crim. Proc. Ann. art. 38.23(a). The case law has limited this provision to require an instruction “only if there is a factual dispute about how the evidence was obtained.” Garza v. State, 126 S.W.3d 79, 85 (Tex.Crim.App.2004); see Jordan v. State, 562 S.W.2d 472, 472-73 (Tex.Crim.App.1978). In determining whether evidence was illegally obtained, the application of the law is left to the court and only the resolution of contested facts is submitted to the jury. See Garza v. State, 126 S.W.3d at 85; Jordan, 562 S.W.2d at 473; Lee, 70 S.W.2d at 187. Although an involuntary confession is also illegally obtained, see Blackburn, 361 U.S. at 210, 80 S.Ct. 274 the admission of statements is governed by articles 38.21 and 38.22, not article 38.23.

Several cases from the court of criminal appeals, including one cited by the district court, appear to require disputed facts in discussing whether a defendant is entitled to submit the issue of the voluntariness of his confession to the jury. See Mendoza v. State, 88 S.W.3d 236, 239 (Tex.Crim.App.2002); Dinkins v. State, 894 S.W.2d 330, 353 (Tex.Crim.App.1995); Thomas v. State, 723 S.W.2d 696, 707 (Tex.Crim.App.1986). However, in these cases the instruction requested by Vasquez was actually given by the district court, see Mendoza, 88 S.W.3d at 240; Dinkins, 894 S.W.2d at 352-53, or the court of criminal appeals discussed the issue in terms of article 38.23 (illegally obtained evidence), rather than article 38.22 (voluntariness). See Mendoza, 88 S.W.3d at 239; Thomas, 728 S.W.2d at 706-07.

In Mendoza, the court of criminal appeals stated that the jury should be instructed when evidence raises a “factual issue as to whether a defendant had been warned of his rights and voluntarily waived them prior to making a statement. ...” Id. at 239 (citing Dinkins). In discussing the mandatory nature of an instruction on voluntariness, the court of criminal appeals cited article 38.23(a), not article 38.22. See 88 S.W.3d at 239. Notably, the trial court had given an instruction on voluntariness, and the only issue before the court of criminal appeals was whether Mendoza was entitled to additional instructions applying the law to the specific facts of the case. See id. at 240. In Dinkins, the court of criminal appeals held that Dinkins was not entitled to an instruction because there was no “factual dispute before the jury over whether [he] invoked his right to counsel prior to making his confession.” 894 S.W.2d at 354. As in Mendoza, the trial court had given a general instruction on voluntariness and Din-kins’s appeal concerned whether he was entitled to a more specific instruction applying the law. to the specific facts of the case. See id. at 352-53. The court of criminal appeals’ focus- on “factual disputes” in Thomas is also not relevant to the standard for an instruction under article 38.22, section 6. See 723 S.W.2d at 707. Thomas argued that his statement was inadmissible because it was made after he had invoked his right to counsel. See Thomas, 723 S.W.2d at 706-07. The court found Thomas’s claim regarding article 38.22 unpreserved and only discussed the right to an instruction pursuant to 38.23(a). See id.

Furthermore, the history behind article 38.22 supports the interpretation that it requires submission of the .issue of volun-tariness even when underlying facts on which the determination is made are.undisputed. Article 38.22 was adopted in response to the Supreme Court’s ruling in Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), and the Texas Court of Criminal Appeals’s application of the Jackson v. Denno approach to Texas law in Lopez v. State, 384 S.W.2d 345 (Tex.Crim.App.1964). Before Jackson v. Denno, there were three genferal types of procedures among the states for determining the voluntariness of a confession. See James Hope Peacock II, Procedure — Defendant Entitled to Hearing on Voluntariness of Confession Before It Goes to the Jury, 43 Tex. L.Rev. 396, 396 (1965). The first was the “orthodox rule,” under which the judge determined whether the confession was voluntary and thus admissible; the jury considered only whether the confession was credible. See Jackson 378 U.S. at 411, 84 S.Ct. 1774 app. A-I (Harlan, J., dissenting). The second was the “Massachusetts rule,” under which the judge heard all the evidence and ruled on voluntariness before allowing a confession into evidence; if the judge found the confession voluntary, the jury was then instructed that it must also find the confession voluntary before considering it. Id. at 417, 84 S.Ct. 1774 app. A-III. The third was the “New -York rule,” which Texas had followed before Jackson v. Denno. Id. at 414, 417, 84 S.Ct. 1774 app. A-III. The United States Supreme Court explained that the “New York rule” required a judge to submit the issue of vol-untariness to the jury, “where certain facts bearing on the issue are in dispute or where reasonable men could differ over the inferences to be drawn from undisputed facts.” Id. at 377, 84 S.Ct. 1774 (emphasis added).

Jackson v. Denno disapproved the New York rule. Jackson, 378 U.S. at 369-70, 84 S.Ct. 1774. The Supreme Court found that the rule had “a significant impact upon the defendant’s Fourteenth Amendment rights” because it makes it

impossible to discover whether the jury found the confession voluntary and relied upon it, or- involuntary and supposedly ignored it. Nor is there any indication of how the jury resolved disputes in the evidence concerning the critical facts underlying the coercion issue. Indeed, there is nothing- to show that these matters were resolved at all, one way or the other.

Id. at 379-80, 84 S.Ct. 1774. Át the same time, the Supreme Court found no similar constitutional problem with the two-step Massachusetts procedure. Id. at 380 n. 8, 84 S.Ct. 1774.

■We raise no question here concerning the Massachusetts procedure. In jurisdictions following this rule, the judge hears the confession evidence, himself resolves evidentiary conflicts and gives his own answer to the coercion issue, rejecting confessions he deems involuntary and admitting only those he believes voluntary. It is only the latter confessions that are heard by the jury, which may then, under this procedure, disagree with the judge, find the. confession involuntary and ignore it. Given the integrity of the preliminary proceedings before the judge, the Massachusetts procedure does not, in our opinion, pose hazards to the rights of a defendant. While no more will be known about the views of the jury than under the New York rule, the jury does not hear all confessions where there is a fair question of voluntariness, but only those which a judge actually and independently determines to be voluntary, based upon all of the evidence. The judge’s consideration of voluntariness is carried out separate and aside from issues of reliability of the confession and the guilt or innocence of the accused and without regard to the fact the issue may again be raised before the jury if decided against the defendant. The record will show the judge’s conclusions in this regard and his findings upon the underlying facts may be express or ascertainable from the record.

Id. (emphasis added).

As noted, before Jackson v. Denno, Texas had followed the New York rule, leaving solely to the jury the determination of voluntariness. See Marrufo v. State, 172 Tex.Crim. 398, 357 S.W.2d 761, 764 (1962); Odis v. State, 171 Tex.Crim. 107, 345 S.W.2d 529, 530-531 (1961); Newman v. State, 148 Tex.Crim. 645, 187 S.W.2d 559, 561-562 (1945), cert. denied, 326 U.S. 772, 66 S.Ct. 174, 90 L.Ed. 466 (1945); Gipson v. State, 147 Tex.Crim. 428, 181 S.W.2d 76, 77 (1944). Subsequently, the Texas Court of Criminal Appeals applied the Jackson v. Denno standard by adding a judicial determination of volun-tariness before a confession may be submitted to the jury. See Lopez, 384 S.W.2d at 348. In particular, the court of criminal appeals ordered:

In new trials arising hereunder and in future trials in this state where there is a fair question of voluntariness of a confession of the defendant, the trial judge shall grant to the defendant the opportunity to object to the use of said confession; shall grant a fair hearing before the Court on the issue of voluntariness, and from all of the evidence and without regard to the truth or falsity of the confession, shall make a clear cut determination of the voluntariness of the confession, including the resolution of disputed facts upon which the voluntariness issue may depend. Upon request, such hearing shall be held and the court’s ruling made in the absence of the jury. Unless the trial judge is satisfied that the confession was voluntarily made he shall exclude it. If the confession has been found to have been voluntarily made and held admissible by the Court, it is recommended that the trial judge enter an order stating his findings, which order should be filed among the papers of the cause but not exhibited to the jury.

Id. By retaining Texas’s reliance on the jury to determine voluntariness, the court adopted a two-step procedure resembling the Massachusetts rule approved in Jackson v. Denno:

After a confession has been admitted in evidence to the jury, the defendant may still adduce evidence relating to its vol-untariness, which evidence may be considered by the trial judge with other evidence on the issue of its voluntariness. If the trial judge concludes from all of the evidence that the confession should not have been admitted, he will withdraw it. Otherwise the jury may and shall, upon request of the defendant, be instructed to the effect that they cannot consider the confession unless they believe beyond a reasonable doubt that it was voluntarily made.

Id. Article 38.22 codifies this approach. In light of the unique nature of the voluntariness determination, the fact that confessions are governed by a separate code provision, and the consistent case law governing article 38.22, we hold that 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. See Hernandez, 819 S.W.2d at 812; Dix and Dawson § 13.393 at 219.

Vasquez raised the issue of voluntariness

Having clarified the standard, we now review the record to determine whether Vasquez raised the issue of voluntariness — could a reasonable jury have found that his statement was not voluntarily made. See Tex.Code Crim. Proc. Ann. art. 38.22, § 6; Terrazas, 4 S.W.3d at 724; Hernandez v. State, 819 S.W.2d at 812. We begin by noting that Vasquez’s defense rested almost entirely on attacking his confession as involuntary. During his short opening argument Vasquez’s counsel focused solely on the circumstances of the interrogation. He concluded:

You will see the video of the lengthy interrogation by the police. You will see Mr. Vasquez. You will see the police interaction with Mr. Vasquez. And I submit to you, members of the jury, after you have seen all of the evidence in this case, you will, one, have a reasonable doubt about whether or not that alleged confession was voluntary, and more important, you will have a reasonable doubt about whether or not Guadalupe Vasquez committed this murder.

In the course of making an evidentiary ruling at trial, the district court commented, “it appears the defensive theory is to attack the voluntariness of the confession.” Although Vasquez did not testify, the videotape of the interrogation preceding his confession was admitted into evidence. As we have discussed, the videotape is evidence that Vasquez was subjected to a lengthy interrogation. He was separated from his wife, and his requests to speak with her were generally ignored or denied. Vasquez also asked to leave on a number of occasions. When it appeared that Vasquez was actually determined to leave, his boots were taken as evidence. He was told he could leave but that he could not return to his home because police were executing a search warrant. There was also evidence that Vasquez had been prescribed psychiatric medication and that he had attempted suicide on several occasions. Vasquez was told that the detectives would help him obtain medication to control his anger. When Vasquez initially confessed to the murder, he was crying and holding Detective Scan-lon’s hand. Vasquez was not informed of his Miranda rights until after he had given a detailed confession. This is the sort of evidence that has been found to raise the issue of voluntariness. See Schneckloth, 412 U.S. at 226, 93 S.Ct. 2041; Terrazas, 4 S.W.3d at 726-27. Although the trial court did not err by overruling Vasquez’s motion to suppress his confession, we hold that, based on the record, a reasonable jury could have concluded that Vasquez’s confession was not voluntarily made. See Hernandez, 819 S.W.2d at 812; Dix and Dawson § 13.393 at 219. Accordingly, Vasquez was entitled to an instruction on voluntariness pursuant to article 38.22, section 6, of the code of criminal procedure.

Harm

We next determine whether the failure to properly instruct the jury harmed Vasquez. A trial court’s failure to give an instruction on voluntariness is subject to harm analysis under Almanza. See Cardenas v. State, 30 S.W.3d 384, 393 (Tex.Crim.App.2000) (citing Payne v. State, 11 S.W.3d 231, 231-32 (Tex.Crim.App.2000)). Because Vasquez made a timely objection to the error in the charge, “reversal is required if the error is ‘calculated to injure the rights of defendant,’ which means no more than that there must be some harm to the accused from the error.” Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1984). Here, the harm resulting from the failure to instruct the jury on voluntariness is obvious. From opening argument on, Vasquez’s case was geared towards raising questions in the jury’s mind regarding the voluntariness of his confession. As discussed above, the evidence of the circumstances of Vasquez’s confession was such that a reasonable juror could have found the confession involuntary. Without the requested instruction, the jury was given no mechanism to act if it was persuaded by the defense case. Furthermore, the State commented specifically on the lack of an instruction in its closing argument:

There is no written instruction in here whatsoever, as promised by [defense counsel], that if you don’t believe that the confession was voluntary you shall not consider it for any purpose. Do you know why? Because it wasn’t raised by the evidence. As a matter of law, this is a voluntary confession. Period.

Although there was significant evidence of guilt apart from the confession, the error in the charge effectively negated Vasquez’s entire defense. Accordingly, we hold that there was “some harm” resulting from the error. See Almanza, 686 S.W.2d at 171. We sustain Vasquez’s fourth point of error.

CONCLUSION

We hold that the district court did not err by admitting Vasquez’s statements into evidence or by dictating its findings of fact and conclusions of law into the record. However, because Vasquez was harmed by the district court’s erroneous refusal to instruct the jury in accordance with article 38.22, section 6, of the code of criminal procedure, we reverse the conviction and remand for a new trial consistent with this opinion.

      . Vasquez’s brief lists five points of error, but the fifth point is simply a statement that the errors in the case harmed him and that the case must be remanded for a new trial.

      . The State acknowledges in its brief that “it is reasonable to surmise that it is standard police department procedure for a civilian visitor to be accompanied by an officer when walking through the building. It is unlikely that visitors would be allowed to wander around the police department without being accompanied by an officer for security reasons.”

      . Vasquez stated, "Let’s go smoke a cigarette.... I think I have a right to that.”

      . See New Revised Velasquez Spanish and English Dictionary 682 (1985) ("Ya voy, I am going, or I am going presently.”).

      . See id. at 240 (descalzo, barefooted or shoeless).

      . It is important to note that it is irrelevant whether the statement made was actually true or false "because it is the methods used to extract an involuntary confession that offend constitutional principles.” State v. Terrazas, 4 S.W.3d 720, 723-24 (Tex.Crim.App.1999); see also Martinez v. State, 127 S.W.3d 792, 794— 95 (Tex.Crim.App.2004). We focus only on the nature of the promise. See Martinez, 127 S.W.3d at 794-95.

      . We stress that there is nothing inherently inappropriate about the coercive nature of the police questioning in this case. Courts have long acknowledged the legitimate role of interrogation in the investigation of crime. "Without such investigation, those who were innocent might be falsely accused, those who were guilty might wholly escape prosecution, and many crimes would go unsolved. In short, the security of all would be diminished.” Schneckloth v. Bustamante, 412 U.S. 218, 226, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). By permitting coercive interrogation, but barring the use of involuntary confessions, "the Constitution requires the sacrifice of neither security nor liberty.” Id.

        . The district court cited two opinions from the court of criminal appeals to justify its ruling, Mendoza v. State, 88 S.W.3d 236 (Tex.Crim.App.2002) and Muniz v. State, 851 S.W.2d 238 (Tex.Crim.App.1993).

      . Defining "some evidence” of involuntariness in terms of whether a reasonable jury could conclude the confession was involuntary is consistent with use of the term in the context of competence to stand trial. In determining whether a defendant is entitled to a competency hearing before a jury, the court of criminal appeals has held that “some evidence” of incompetence is "a quantity more than none or a scintilla, that rationally may lead to a conclusion of incompetence.” Alcott v. State, 51 S.W.3d 596, 600 (Tex.Crim.App.2001) (quoting Sisco v. State, 599 S.W.2d 607, 613 (Tex.Crim.App.1980)).

      . See, e.g., Rocha v. State, 16 S.W.3d 1, 20 (Tex.Crim.App.2000); Terrazas, 4 S.W.3d at 724; Muniz, 851 S.W.2d at 254-55; Miniel v. State, 831 S.W.2d 310, 316-17 (Tex.Crim.App.1992); Hernandez, 819 S.W.2d at 812; Morgan v. State, 502 S.W.2d 722, 723 (Tex.Crim.App.1973).


source: Caselaw Access Project

author: STEVE McKEITHEN, Chief Justice.

license: Public Domain

text:
    The STATE of Texas, Appellant, v. Amy Vanessa KRUEGER, Appellee.
    No. 09-04-013 CR.
    Court of Appeals of Texas, Beaumont.
    Submitted Aug. 19, 2005.
    Decided Oct. 26, 2005.

      Michael A. McDougal, Dist. Atty., Gail Kikawa McConnell, Asst. Dist. Atty., Con-roe, for appellant.
    Stephen Simonsen, Simonsen Law Office, Conroe, for appellee.
    Before McKEITHEN, C.J., GAULTNEY and KREGER, JJ.
   OPINION

STEVE McKEITHEN, Chief Justice.

Appellee, Amy Vanessa Krueger, was found guilty by a jury of the misdemeanor offense of Driving While Intoxicated, and elected to have punishment assessed by the trial court. Appellee was sentenced to confinement in the Montgomery County Jail for a period of 120 days, and fined $200. Imposition of confinement was suspended by the trial court with appellee being placed on community supervision for one year.

Krueger filed a motion for new trial alleging violations of Tex.R.App. P. 21.3(f) & (g). See generally Tex.R.App. P. 21. Following a number of post-trial hearings, some of which focused on the issues raised in Krueger’s new trial motion, the motion was ultimately granted and a new trial ordered. The written order setting out the trial court’s new trial relief, signed December 19, 2003, includes the handwritten notation that the motion was granted “in the interest of Justice.” The State then timely perfected this appeal. See Tex.Code CRiM. PROC. Ann. art. 44.01(a)(3), (d) (Vernon Supp.2005). The State frames its lone appellate issue as follows: “The trial court abused its discretion in granting the motion for new trial on the basis of the unsworn, out-of-court statements of jurors about their deliberations.”

The standard of appellate review when a trial court grants a motion for new trial is abuse of discretion. See State v. Gonzalez, 855 S.W.2d 692, 696 (Tex.Crim.App.1993). A recital of some of the facts pertinent to the State’s appellate issue is in order. Following the return of its verdict of “guilty,” the jury was addressed by the trial court, and invited to return to the jury room for an informal chat with the judge and the attorneys. Evidently, during this post-trial conversation, two of the jurors made comments that indicated they may have gone outside the properly-introduced evidence in reaching their verdict. The motion for new trial was granted based on the recollections of the trial judge without any testimony from any source.

Throughout the hearing on Krueger’s motion for new trial, the State continued to urge that the trial court simply had no competent evidence from which to grant the motion. The trial court, on the other hand, continued to stress his personal knowledge of what he was told during the chat with the jurors, and the fact that both the State and defense counsel had also been present. We take note of the fact that at no point in any of the hearings did the State lodge an objection to the trial judge’s reliance on his own independent knowledge of information he believed pertinent to the new trial motion. The State is correct that the information the judge was recalling derived from circumstances involving neither sworn testimony nor from the judge having witnessed it in the course of Krueger’s trial. When it became clear that the trial judge intended to rely solely on this independent knowledge, the State did not attempt to have him recuse himself from any further matters underlying the motion for new trial. See Tex.R. Civ. P. 18a & 18b(2).

In George v. State, 20 S.W.3d 130, 141 (Tex.App.-Houston [14th Dist.] 2000, pet. ref d), the court found that similar articulated recollections by a trial judge during a hearing on a motion for new trial violated Tex.R.App. P. 21.8(b) (“In ruling on a motion for new trial, the court must not summarize, discuss, or comment on evidence.”). The Court distinguished the trial judge’s articulated recollections, which are not permissible, from the more common, and otherwise permissible, practice of “clarifying the record.” George, 20 S.W.3d at 139—41.

The Court in George, however, did not reach the issue of whether such statements from a trial judge made during a new trial hearing were testimonial in nature and therefore violative of Tex.R. Evid. 605. (“The judge presiding at the trial may not testify in that trial as a witness. No objection need be made in order to preserve the point.”). George, 20 S.W.3d at 140-41.

The State relies on State v. Ordonez, 156 S.W.3d 850 (Tex.App.-El Paso 2005, no pet.) as authority for its position. The factual background in Ordonez is strikingly similar to the facts here. Following his conviction for aggregated theft, Ordonez filed a motion for new trial alleging juror misconduct on the part of one juror, M.O. Id. at 850-51. At the new trial hearing, over the State’s objections based upon Tex.R. Evid. 606(b) and 802, Ordonez called his trial counsel as a witness. The trial judge took note of the fact that, following the conclusion of the trial, he and the attorneys for the parties met and conversed with the jurors. . Based upon that fact, the judge overruled the State’s objections. Id. at 851. Ordonez’s trial counsel then testified that juror M.O. stated to him, “[I]f the Defendant were innocent, he would have testified.” Id. The State’s repeated objections based on Rules 606(b) and 802 were again overruled, with the trial judge ultimately providing the following articulated ruling: “The Court cannot see how the Defendant’s 5th Amendment rights were not violated beyond a reasonable doubt based on the juror’s statement, and based on that, the Court is going to grant the Defendant’s motion for a new trial in the interest of justice.” (emphasis added) Id. The trial judge’s written order granting the new trial motion stated, “[T]he defendant was not afforded his right to remain silent as guaranteed by the 5th and 14th Amendments.” Id. The State appealed this ruling. Id. at 850.

The El Paso Court first found the State had indeed preserved a complaint for appellate review by having objected under both Rule 606(b) and 802. Id. at 851-52. Then, after setting out the language of Rule 606(b) in its entirety, the El Paso Court concluded its analysis and held the following:

Under this rule [606(b) ],' jurors are no longer competent to testify that they decided the verdict by lot, that they decided the case based on another juror’s incorrect statement of the law, or that they discussed the defendant’s failure to testify and used that failure as a basis for convicting him. Hines v. State, 3 S.W.3d 618, 621 (Tex.App.-Texarkana 1999, pet. ref'd).
Citing State v. Gonzalez, 855 S.W.2d 692, 694 (Tex.Crim.App.1993), appellee maintains that the court was entitled to grant a new trial in the interest of justice. However, it is clear that this ruling was predicated upon evidence that was not competent under Rule 606(b). Accordingly, we grant Issue Nos. One and Two and we reverse the trial court’s order granting appellee’s motion for new trial and we order the reinstatement of the conviction.

Id. at 852.

Ordonez appears to be squarely on point with the facts and issue raised in the instant appeal. However, notable distinctions exist between the two cases. In Ordonez, sworn testimony was elicited from a non-juror witness, Ordonez’s trial counsel, as to what juror M.O. said during the post-trial discussion. This appears to be the lone piece of evidence used by the trial judge to make his ruling. The El Paso Court ruled that such evidence was not competent under Rule 606(b). We agree.

A trial court is given wide latitude in making the decision whether to grant or deny a motion for new trial, and, in the absence of an abuse of discretion, an appellate court should not reverse. Lewis v. State, 911 S.W.2d 1, 7 (Tex.Crim.App.1995). When no express fact findings are made, or are not permitted per Rule 21.8(b) when a judge rules on a new trial motion, appellate courts should “impute implicit factual findings that support the trial judge’s ultimate ruling on that motion when such implicit factual findings are both reasonable and supported in the record.” See Charles v. State, 146 S.W.3d 204, 213 (Tex.Crim.App.2004).

However, a motion for new trial is not self-proving. See Lamb v. State, 680 S.W.2d 11, 13 (Tex.Crim.App.1984); Jackson v. State, 139 S.W.3d 7, 20 (Tex.App.Fort Worth 2004, pet. refd). For example, an affidavit attached to the motion, without more, is merely a pleading that authorizes the introduction of supporting evidence and is not evidence itself. See Jackson, 139 S.W.3d at 20 (citing Stephenson v. State, 494 S.W.2d 900, 909-10 (Tex.Crim.App.1973), and Walker v. State, 440 S.W.2d 653, 659 (Tex.Crim.App.1969)). To constitute evidence, the affidavit must be introduced as evidence at the hearing on the motion. See Stephenson, 494 S.W.2d at 909-10; Walker, 440 S.W.2d at 659; Jackson, 139 S.W.3d at 20.

In the instant case, even if the trial judge’s audible recollections contained in the record could be characterized as a species of “judicial notice,” a court’s judicial notice-taking is not without limit. See Tex.R. Evid. 201; Turner v. State, 733 S.W.2d 218, 221-22 (Tex.Crim.App.1987) (Generally, in a criminal case, a trial court is permitted to take judicial notice of all its own records including all judgments and convictions entered by it.). However, “[a] judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” Tex.R. Evid. 201(b).

Under the facts and circumstances before us, in which the jury misconduct alleged by Krueger appears only through audible recollections by the judge presiding over the new trial hearing, the judge’s recollections may not constitute “judicial notice” of the truth of any factual assertions or declarations which were expressed by any jurors during the informal chat session. The jurors’ assertions are not the kinds of “facts” that a court may judicially notice. See id.; Jackson, 139 S.W.3d at 21 (citing Tex. Dep’t of Public Safety v. Claudio, 133 S.W.3d 630, 632-33 (Tex.App.Corpus Christi 2002, no pet.)(op. on reh’g)); Tschirhart v. Tschirhart, 876 S.W.2d 507, 508 (Tex.App.-Austin 1994, no writ). Additionally, the record does not indicate that either Krueger or the State, along with the trial judge, treated the judge’s oral recollections of the jurors’ assertions during the chat as evidence at the various hearings.

In State v. Weiss, 8 S.W.3d 342, 344 (Tex.App.-Beaumont 1999, no pet.), a new trial was granted for newly discovered evidence. The State appealed claiming the defendant failed to produce evidence supporting the four-prong test for obtaining a new trial on newly discovered evidence. Id. In affirming the trial court’s decision to grant a new trial, we somewhat chided the State in the following manner:

The State misunderstands its posture on appeal. Based upon the evidence before it, the trial court found a new trial was warranted. On appeal, the State must produce a record establishing that finding was an abuse of discretion. As the Court of Criminal Appeals noted in Gonzalez, “[wjhen the State acquired the right to appeal .... the State acquired the corresponding duty to provide the appellate court a record subject to meaningful appellate review.” Gonzalez, 855 S.W.2d at 695. The hearing “provides either party an opportunity to develop a record for appellate review, should either party elect to appeal the decision on the motion for new trial.” Id. Gonzalez directs “[a]n appellate court should not fault a trial judge for granting a motion for new trial when the State fails to provide an appellate record establishing an abuse of discretion.” Id. Thus, we do not review the record de novo to determine if Weiss met his burden — we review the record only to determine whether the trial court’s decision is within the zone of reasonable disagreement. See Montgomery v. State, 810 S.W.2d 372, 391-92 (Tex. Crim.App.1990) (op. on reh’g); Johnson v. State, 988 S.W.2d 958, 961 (Tex.App.Beaumont 1999, no pet.), (footnote omitted)

Weiss, 8 S.W.3d at 344. At the new trial hearing, the defendant called two witnesses to testify in support of his motion, while the State contested the motion by calling an investigator with the sheriffs department as a witness and having an affidavit admitted into evidence. Id. at 344-45. Clearly, in Weiss, the trial court had conflicting, but competent, evidence before it, and did not abuse its discretion in granting the defendant a new trial.

In State v. Pilkinton, 7 S.W.3d 291, 292-93 (Tex.App.-Beaumont 1999, pet. refd), we found no abuse of discretion by the trial court in granting a new trial for a criminal defendant in the face of a “no evidence” complaint by the State. Because the defendant’s motion for new trial was neither verified nor supported by an affidavit, the State argued there was no evidence to support the allegations of ineffective assistance of trial counsel contained in the new trial motion. Id. We disagreed, pointing to several affidavits admitted into evidence at the new trial hearing including ones from the district attorney, from trial counsel, from the defendant’s wife, from the defendant’s father, and from the defendant. Id. As affidavits are explicitly permitted items of evidence properly considered at a new trial hearing; the Pilkinton trial court did not abuse its discretion. Id.; see also Tex.R.App. P. 21.7.

In both Weiss and Pilkinton, the trial courts had before them otherwise properly admissible evidence under Rule 21.7 from which to rule on the respective new trial motions. By contrast, in the instant case, the trial judge had neither affidavits nor sworn testimony from witnesses — jurors or non-jurors — from which to exercise discretion in ruling on Krueger’s motion. Additionally, the trial court could not have been engaging in the otherwise permissible act of “clarifying the record” with his verbal recollections of what was told to him and the attorneys during the post-trial chat with the jurors, because acquisition of this knowledge by the trial judge took place after the trial was finished and the jurors had been dismissed from any other sworn duties.

Like the Court in George, we are not prepared to hold that Tex.R. Evid. 605 bars a trial judge from testifying at a subsequent new trial hearing or by providing an otherwise proper affidavit. See George, 20 S.W.3d at 140-41. However, we observe without deciding that an attempt to tender a trial judge’s affidavit or testimony at a new trial hearing could result in the State raising any number of objections, e.g., “violation of Rule 606(b),” “hearsay,” and “violation of Rule 605.”

At any rate, what is missing from the instant appeal that was not missing from either Weiss or Pilkinton was the formal tender and admission of some form of “evidence” at the new trial hearing from which facts are established, rulings are based, and review is properly accomplished. What appears before us amounts-to nothing more than oral argument at the trial court level. We do not retreat from our position in Weiss that, when it appeals, the State must produce a record establishing the trial court’s ruling was an abuse of discretion. Weiss, 8 S.W.3d at 344. Yet, we are also aware that the defendant generally has the burden of proof on the motion for new trial. See Patrick v. State, 906 S.W.2d 481, 498 (Tex.Crim.App.1995). As the party seeking the new trial, i.e., the “party seeking to change the status quo,” Krueger bore the initial burden of showing facts entitling her to the relief sought. See Marquez v. State, 921 S.W.2d 217, 222 (Tex.Crim.App.1996). The State has presented us with an appellate record indicating Krueger failed to carry this initial burden. Having no evidence introduced for its consideration on Krueger’s motion for new trial, the trial court abused its discretion in granting the motion. The State’s appellate issue is sustained. The order granting appellee a new trial is reversed. We remand the cause to the trial court with instructions to reinstate the conviction and sentence.

REVERSED AND REMANDED.

      . Texas Rules of Evidence, Rule 606(b), sets forth the appropriate (and permissive) scope of evidence admissible in a hearing inquiring into the validity of a jury verdict.

      . Absent any explicit or implicit legislative intent indicating otherwise, Rule 18a has been held to apply to recusal matters in criminal cases. See Arnold v. State, 853 S.W.2d 543, 544 (Tex.Crim.App.1993).

      . Rule 802, a hearsay rule, reads: “Hearsay is not admissible except as provided by statute or these rules or by other rules prescribed pursuant to statutory authority. Inadmissible hearsay admitted without objection shall not be denied probative value merely because it is hearsay.”


author: HOLLIS HORTON, Justice.

text:
    Shannon TRAHAN and Joleen Trahan Woods, Appellants, v. FIRE INSURANCE EXCHANGE and Texas Farmers Insurance, Appellees.
    No. 09-05-022 CV.
    Court of Appeals of Texas, Beaumont.
    Submitted on Aug. 18, 2005.
    Decided Oct. 27, 2005.

      John S. Morgan, Alyx J. Parker, Lindsay & Morgan, P.L.L.C., E. Hart Green, Weller, Green, Toups & Terrell, L.L.P., Beaumont, for appellants.
    Kent Chambers, Chambers, Templeton, Cashiola & Thomas, L.L.P., Houston, for appellees.
    Before GAULTNEY, KREGER, and HORTON, JJ.
   OPINION

HOLLIS HORTON, Justice.

I. Introduction

This is an appeal from a summary judgment rendered in favor of appellees Fire Insurance Exchange (hereafter “FIE”) and Texas Farmers Insurance (hereafter “TFI”). In a single issue, appellants Shannon Trahan and Joleen Trahan Woods (hereafter “the Trahans”) complain the trial court erred in granting summary judgment because there are genuine issues of material fact. We affirm the summary judgment.

II. Factual Background

On December 31, 2000, the Trahans’ home and automobile were destroyed by a fire. The Trahans filed a fire loss claim with FIE under their homeowner’s policy, and a claim with TFI under their automobile policy. On or about February 8, 2001, the Trahans signed a Proof of Loss form and sent the form to FIE. On February 14, 2001, FIE requested that the Trahans submit to examinations under oath (“EUOs”). The Trahans did not respond to the February 14 request or most of FIE’s subsequent requests. On August 29, 2001, the Trahans submitted to the EUOs, and they signed and swore to the transcripts on September 20, 2001. On October 8, 2001, FIE accepted the Tra-hans’ fire loss claim and issued checks for the claim.

The Trahans brought suit against FIE and TFI alleging breach of contract, breach of the common law duty of good faith and fair dealing, violations of the Insurance Code, and violations of the Deceptive Trade Practices Act. The Trahans alleged that FIE and TFI violated contractual obligations and committed bad faith by delaying payment and destroying physical evidence.

FIE filed a traditional motion for summary judgment and a no-evidence motion for summary judgment. See Tex.R. Civ. P. 166a(c), 166a(i). In the traditional motion for summary judgment, FIE asserted that the Trahans failed to meet the conditions precedent to recovering on their homeowner’s claim, it did not breach the insurance contract, and there is no extra-contractual liability when there is no breach of contract. In the no-evidence motion for summary judgment, FIE asserted, inter alia, that there was no evidence that it failed to make timely payments or violated any contractual obligations or duties. TFI filed a single motion asserting both no-evidence and traditional grounds for summary judgment. See id. In the motion, TFI asserted, inter alia, that there was no evidence that it assumed any risk of loss for the Trahans’ home and there was no privity of contract between TFI and the Trahans regarding the homeowner’s claim.

In response to FIE’s and TFI’s motions for summary judgment, the Trahans asserted that FIE and TFI committed bad faith by performing an “outcome oriented or biased investigation in an attempt to prove that [they] destroyed their home by incendiary fire.” The Trahans also alleged that FIE and TFI committed spoliation. The trial court granted FIE’s and TFI’s motions for summary judgment and ordered that the Trahans take nothing. The Trahans appealed.

III. Standard of Review

We review a trial court’s order granting summary judgment de novo. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex.2003). We apply different standards of review to the motions for summary judgment filed under Rule 166a(c) and the motions filed under Rule 166a(i).

To succeed in a motion for summary judgment under Rule 166a(c), a movant must establish that there is no genuine issue of material fact so that the movant is entitled to judgment as a matter of law. Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex.1991). In reviewing a summary judgment, we consider the evidence in the light most favorable to the non-movant and resolve any doubt in the non-movant’s favor. Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex.1985). Under Rule 166a(i), a party may move for summary judgment on the ground that there is no evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial. Unless the respondent produces summary judgment evidence raising a genuine issue of material fact, the court must grant the motion. Tex.R. Civ. P. 166a(i); Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 207 (Tex.2002).

Western Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex.2005). Because the trial court did not state the grounds for granting summary judgment, we will uphold the summary judgment if it can be sustained under either traditional or no-evidence grounds. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex.2001).

We first address whether summary judgment may be upheld in favor of FIE on traditional grounds. A defendant who disproves an essential element of the plaintiff’s cause of action as a matter of law is entitled to summary judgment. Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 476-77 (Tex.1995). “After the defendant produces evidence entitling it to summary judgment, the burden shifts to the plaintiff to present evidence creating a fact issue.” Walker v. Harris, 924 S.W.2d 375, 377 (Tex.1996).

IV. Summary Judgment Analysis — FIE

A. FIE’s Request for EUOs

FIE’s summary judgment proof demonstrated that it had a contract with the Trahans, and that it paid the Trahans’ claim under the terms and conditions of the policy. The Trahans’ homeowner’s insurance policy includes the following paragraphs:

AGREEMENT
We will provide the insurance described in this policy in return for the premium and compliance with all applicable provisions of this policy.
SECTION I — CONDITIONS
3. Duties After Loss.
a. Your Duties After Loss. In case of a loss to covered property caused by a peril insured against, you must:
(5) as often as we reasonably require:
(b) provide us with pertinent records and documents we request and permit us to make copies.
(c) submit to examination under oath and sign and swear to it.
b. Our Duties After Loss.
(1) Within 15 days after we receive your written notice of claim, we must:
(a) acknowledge receipt of the claim.
If our acknowledgment of the claim is not in writing, we will keep a record of the date, method and content of our acknowledgment.
(b) begin any investigation of the claim.
(c) specify the information you must provide in accordance with ‘Tour Duties After Loss[J”
We may request more information, if during the investigation of the claim such additional information is necessary.
(2) After we receive the information we request, we must notify you in writing whether the claim will be paid or has been denied or whether more information is needed:
(a) within 15 business days; or
(b) within 30 days if we have reason to believe the loss resulted from arson.
(3)If we do not approve payment of your claim or require more time for processing your claim, we must:
(a) give the reason for denying your claim; or
(b) give the reasons we require more time to process your claim.
But, we must either approve or deny your claim within 45 days after requesting more time.

The Trahans first claim that FIE relied on the affirmative defense of arson and FIE failed to prove that the fire was of an incendiary origin. As a result, the Tra-hans argue, FIE’s request that they submit to EUOs was not justified because FIE’s investigation provided sufficient evidence that the Trahans did not commit arson.

The conditions under which an insurance company may conduct an EUO are governed by the insurance contract. See State Farm Gen. Ins. Co. v. Lawlis, 773 S.W.2d 948, 949 (Tex.App.-Beaumont 1989, no writ). When we interpret an insurance policy, we employ the rules of contract construction. American Mfrs. Mut. Ins. Co. v. Schaefer, 124 S.W.3d 154, 157 (Tex.2003). “If policy language is worded so that it can be given a definite or certain legal meaning, it is not ambiguous and we construe it as a matter of law.” Id. If a contract is not ambiguous, the words used in the contract are to be given their ordinary meaning. Puckett v. U.S. Fire Ins. Co., 678 S.W.2d 936, 938 (Tex.1984). For an event to constitute a “condition precedent” under a contract, the contract must provide that the event “must happen or be performed before a right can accrue to enforce an obligation.” Centex Corp. v. Dalton, 840 S.W.2d 952, 956 (Tex.1992).

Contrary to the Trahans’ assertion, a review of the record reveals that FIE did not plead, nor argue, arson as an affirmative defense. To prevail on summary judgment, a defendant must plead and conclusively establish each element of an affirmative defense. See City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979); Tx. R. Civ. P. 94. However, because FIE did not plead arson as an affirmative defense, FIE did not have to prove that the fire was of an incendiary origin. See Clear Creek Basin Auth., 589 S.W.2d at 678; Tex.R. Civ. P. 94; State Farm Fire & Cas. Co. v. Simmons, 963 S.W.2d 42, 45 n. 1 (Tex.1998) (“Arson is an affirmative defense to an insurance claim for a loss resulting from a fire.”).

The policy at issue imposes a duty upon the Trahans to “submit to examination under oath and sign and swear to it” upon request. Insurance policy provisions requiring an insured to submit to an EUO as a condition precedent are valid. Lawlis, 773 S.W.2d at 949. FIE’s February 14 letter requesting that the Trahans submit to EUOs included a paragraph that provided FIE did not “waive any of its rights under the policy and hereby reserves each and all of its rights under the policy.”

The language of the insurance policy does not support the Trahans’ position that FIE must justify a request for EUOs with evidence supporting a reasonable suspicion of arson. The language of the policy does not require that FIE suspect arson before requiring the Trahans to submit to EUOs.

The Trahans also argue that FIE’s right to request the EUOs was voided because the EUOs were used in an attempt to convince the Trahans to “agree to a lesser settlement or drop their claim entirely.” The Trahans presented no summary judgment evidence showing that FIE used the EUOs in this manner. Furthermore, the Trahans cite no case law that limits FIE’s right to obtain EUOs under the insurance contract. The Trahans did not satisfy their burden to produce summary judgment evidence sufficient to raise a fact issue. See Tex.R. Crv. P. 166a(c).

B. Breach of the Duty of Good Faith and Fair Dealing

The Trahans also argue that FIE breached the duty of good faith and fair dealing when it delayed in requesting the EUOs, delayed in paying the loss claims, and conducted the loss investigation in bad faith. An insurer has a duty of good faith and fair dealing in the processing and payment of claims. Republic Ins. Co. v. Stoker, 903 S.W.2d 338, 340 (Tex.1995). A cause of action for breach of the duty of good faith and fair dealing is established when an insurer knew or should have known it had no reasonable basis for denying or delaying payment of a claim. Id.

i. Breach of Contract

While insurance coverage claims and bad faith claims are by their nature independent, in most circumstances an insured may not prevail on a bad faith claim without first prevailing on a breach of contract claim. Liberty Nat. Fire Ins. Co. v. Akin, 927 S.W.2d 627, 629 (Tex.1996). See also Perrotta v. Farmers Ins. Exch., 47 S.W.3d 569, 575 (Tex.App.Houston [1st Dist.] 2001, no pet.) (“When the underlying claim upon which an insured’s extra-contractual claims are premised is found to have been properly denied, ... [the] extra-contractual claims necessarily fail.”). The elements of a breach of contract cause of action are the existence of a valid contract, the plaintiffs performance or tendered performance, the defendant’s breach of the contract, and damages as a result of the breach. Sullivan v. Smith, 110 S.W.3d 545, 546 (Tex.App.-Beaumont 2008, no pet.).

The insurance policy imposes a duty upon FIE to investigate the loss claim within fifteen days after receiving a written notice of claim and to accept or deny the claim within fifteen business days of receiving all of the information requested during the investigation. The record indicates that FIE received written notice of the claim on February 8. The record also indicates that on February 14, FIE requested additional information from the Trahans in the form of EUOs. The request was provided within the time period allowed under the policy. The EUOs were not taken until August 29, and they were not sworn to and signed until September 20. The loss claim was paid on October 8, which was within fifteen business days of the signing and swearing of the EUOs.

The EUOs were the last items of information requested. FIE paid the claim within fifteen business days of receiving the sworn EUOs, FIE satisfied the provisions of the contract. Because FIE’s payment was timely under the insurance contract, FIE did not breach the duty of good faith and fair dealing. See Akin, 927 S.W.2d at 629; see also Perrotta, 47 S.W.3d at 575. Because FIE disproved the breach of contract element of the Tra-hans’ claim, the trial court properly granted FIE’s traditional motion for summary judgment. See Boys Clubs, 907 S.W.2d at 476-77.

ii. Spoliation

The Trahans also assert that FIE committed spoliation of evidence favorable to them. Armstrong Forensic Laboratory examined samples of fire debris collected from the Trahans’ home and reported that the samples tested “negative for identifiable ignitable liquids.” The laboratory destroyed the samples when its fee to store the samples was not paid. The Trahans argue that the samples were the best evidence that they did not commit arson and that it was bad faith to destroy them. However, FIE did not assert arson as a basis for denying the Trahans’ claim.

The primary issue in this bad faith claim is whether FIE had no reasonable basis to delay payment. See Stoker, 903 S.W.2d at 340. The Trahans presented no summary judgment evidence establishing that FIE destroyed the samples as a basis for delaying or denying payment or that the claim would have been paid sooner had the samples not been destroyed. See id. As a result, the Trahans have not shown that the samples were destroyed in bad faith. Therefore, the Trahans’ spoliation argument fails to raise a genuine issue of material fact.

V. Summary Judgment Analysis—TFI

We next address whether summary judgment in favor of TFI may be upheld on no-evidence grounds. To defeat a no-evidence summary judgment motion, the nonmovant is required to produce summary judgment evidence raising a genuine issue of material fact. Fort Worth Osteopathic Hosp., Inc. v. Reese, 148 S.W.3d 94, 99 (Tex.2004); Tex.R. Civ. P. 166a(i). The nonmovant raises a genuine issue of material fact by producing more than a scintilla of evidence establishing the challenged element’s existence. Reese, 148 S.W.3d at 99.

The Trahans’ suit against TFI asserts TFI and FIE were jointly liable under the homeowner’s policy issued by FIE. The Trahans asserted FIE investigated the claim on behalf of TFI; FIE and TFI shared the risk of loss for the claim; and TFI conspired with FIE to investigate the claim in bad faith. TFI filed a hybrid motion for summary judgment asserting the Trahans had no evidence of joint liability.

The record does not indicate the Tra-hans provided evidence or otherwise addressed the grounds asserted in TFI’s no-evidence motion for summary judgment. Accordingly, we find the Trahans did not carry their burden to provide evidence in support of their claims against TFI. See id. In the absence of a fact issue to be resolved by a jury, TFI was entitled to summary judgment under Rule 166a(i). See id.; Tex.R. Crv. P. 166a(i). The Trahans’ sole issue is overruled, and the judgment of the trial court is affirmed.

AFFIRMED.

      . Woods’s first name appears in the record as both "Joleen” and "Jolene.” To be consistent with the insurance policy, we use "Joleen.” Woods’s last name appears in the record as "Trahan” and "Woods.” To be consistent with the notice of appeal, we use "Woods.”

      . The trial court sent the parties a letter explaining its grounds for granting the motions for summary judgment. The Trahans' brief appears to challenge the grounds asserted in the letter. We do not consider the letter as conclusive on the bases for the trial court’s ruling because a letter cannot be considered on appeal as giving the comprehensive reasons that a trial court granted summary judgment. See Sharpe v. Roman Catholic Diocese of Dallas, 97 S.W.3d 791, 796 (Tex.App.-Dallas 2003, pet denied); Strather v. Dolgencorp of Texas, Inc., 96 S.W.3d 420, 423 (Tex.App.-Texarkana 2002, no pet.).