Reference no: EM133347980

Question: Mr. Terminator is incarcerated in the county jail for a murder indictment. Mr. Terminator shot and killed Mr. Robato in the parking lot of a liquor store and immediately fled the scene. He was apprehended a few miles away near a school for children with mental and physical disabilities. Terminator was put in the squad car and transported by two officers to the county jail. Since the arresting officers could not find the weapon used in the murder, one of the officers says loudly to his partner in the squad car, "I sure hope one of those kids at the school doesn't get a hold of that gun and blow his head off." With that remark, Terminator began to sob and explain how he was once in such a school. He told the officers where the weapon was located and how and why he committed the crime. One of the officers has a handheld tape recorder, which he turned on while Terminator was telling his story. No warnings whatsoever were given to Terminator before he made his statement.

Article 38.22 TCCP

Sec. 2. No written statement made by an accused as a result of custodial interrogation is admissible as evidence against him in any criminal proceeding unless it is shown on the face of the statement that:

(a) the accused, prior to making the statement, either received from a magistrate the warning provided in Article 15.17 of this code or received from the person to whom the statement is made a warning that:

(1) he has the right to remain silent and not make any statement at all and that any statement he makes may be used against him at his trial.

(2) any statement he makes may be used as evidence against him in court.

(3) he has the right to have a lawyer present to advise him prior to and during any questioning.

(4) if he is unable to employ a lawyer, he has the right to have a lawyer appointed to advise him prior to and during any questioning; and

(5) he has the right to terminate the interview at any time; and

(b) the accused, prior to and during the making of the statement, knowingly, intelligently, and voluntarily waived the rights set out in the warning prescribed by Subsection (a) of this section.

Sec. 3. (a) No oral or sign language statement of an accused made as a result of custodial interrogation shall be admissible against the accused in a criminal proceeding unless:

(1) an electronic recording, which may include motion picture, video tape, or other visual recording, is made of the statement.

(2) prior to the statement but during the recording the accused is given the warning in Subsection (a) of Section 2 above and the accused knowingly, intelligently, and voluntarily waives any rights set out in the warning.

(3) the recording device was capable of making an accurate recording, the operator was competent, and the recording is accurate and has not been altered.

You argue to the court that the oral statement is inadmissible since no Miranda warnings were given to Terminator during the recording of the statement in the squad car as required by article 38.22 section (3)(2) of the Texas Code of Criminal Procedure. The Prosecutor argues that the statement was given contemporaneous and voluntarily without any questioning. The officers were not integrating him just transporting him to the jail. Explain the proper ruling by the trial court on such an argument.