Whether Article 38.22, section 3(c), was properly before the trial court even though the State did not expressly cite that subsection at the suppression hearing.
Holding
Yes. The section 3(c) issue was raised and considered by the trial court.
Reasoning
Romero’s motion challenged the admissibility of his oral statements under Article 38.22 because they were not recorded. Section 3(a) supplies the general statutory requirements for admitting oral statements, while section 3(c) creates an exception. A challenge under section 3 necessarily can entail consideration of both provisions when the facts may support the exception.
The State’s written response expressly alleged the substance of section 3(c): that Romero’s statements contained true assertions of fact or circumstance that tended to establish guilt, including the instrument allegedly used to commit the offense. The State therefore presented the exception as a basis for denying suppression, even without citing the subsection number.
The suppression order stated that the trial judge had considered both Romero’s motion and the State’s answer and found the statements were not otherwise admissible under Article 38.22. That ruling implicitly rejected section 3(c) as a basis for admission. The court of appeals therefore did not decide an issue that had been omitted from the trial court proceedings.】【”】【},{