Not Recording Oral Statements In a Criminal Case Consequences

In Davidson v. State, 25 S.W.3d 183, 185-6 (Tex. Crim. App. 2000), the court held that because an electronic recording of the defendant's statements had not been made, the statements should not have been admitted at trial. Davidson, 25 S.W.3d at 186. We did so because the portion of art. 38.22 which deals with electronic recordings, section 3, did not distinguish between in-state and out-of-state oral statements, and because the legislature had expressly mandated "strict compliance" with this portion of the article. Id. While the portion of art. 38.22 at issue in the instant case, section 2(a), also does not make any type of in-state/out-of-state distinction, the legislature has not mandated "strict compliance" with this section. On this basis, we have previously held that for oral statements made as a result of custodial interrogation to be admissible, the warnings given prior to those statements need to only "substantially comply" with the warnings set out in art. 38.22, 2(a). See: Cockrell v. State, 933 S.W.2d 73, 90-1 (Tex. Crim. App. 1996), cert. denied, 520 U.S. 1173, 117 S. Ct. 1442, 137 L. Ed. 2d 548 (1997); Sosa v. State, 769 S.W.2d 909, 915-6 (Tex. Crim. App. 1989); Bennett v. State, 766 S.W.2d 227, 230-1 (Tex. Crim. App. 1989) , cert. denied, 492 U.S. 911, 109 S. Ct. 3229, 106 L. Ed. 2d 578 (1989). Therefore, on remand, the court of appeals shall determine in the first instance whether the warnings given to appellant were in substantial compliance with the requirements of art. 38.22, 2(a).