"The appellant asserts that the trial court erred in admitting his confessions in evidence and in failing to submit a requested charge to the jury. He also asserts the evidence is insufficient to sustain his conviction. All four grounds of error will be overruled and the judgment affirmed.
"Two confessions were admitted in evidence, which the appellant says should not have been admitted because they fail to show on their face, as required by Article 38.22 V.A.C.C.P., that he was advised of his constitutional rights. The record clearly shows, and the appellant does not otherwise contend, that before the confessions were made, there was full compliance with Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and Article 15.17 V.A.C.C.P. However, the confessions do not satisfy the requirement of Article 38.22 V.A.C.C.P. that confessions 'show on the face of the statement' that before making the statement the appellant was warned and advised either by a magistrate as required by Article 15.17 V.A.C.C.P., or he received from the person to whom the statement is made the warnings and advice required by Article 38.22, Section 2(a)(1)(2)(3)(4) and (5), V.A.C.C.P.
"Article 38.22 in pertinent part provides:
" '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.'
"The first confession was made on March 4, 1979; the second confession was made on March 19, 1979. On March 4, after the first confession was made, the appellant was released on bail. On March 19, 1979, accompanied by his father he came to the Police Department Building in Rotan. The appellant's rights were again explained to him. His father was present when he made this second confession to the Chief of Police. The statement was written in longhand and, after it was completed, the Chief of Police took it to the City Hall to have it typed. The appellant and his father met the Chief of Police at the City Hall after the statement was typed. The appellant was given both the handwritten statement and the typed statement to read. He thereafter signed the typewritten confession; he remained free on bond thereafter.
"The second confession made on March 19, although made after all of the warnings required by Miranda v. Arizona, supra, and Article 38.22 V.A.C.C.P., was not made while the appellant was in custody since he was on bail. Since the appellant was not in custody when he made the second confession, its admission is not controlled by the provisions of Article 38.22 V.A.C.C.P. Thumann v. State, 466 S.W.2d 738 (Tex.Cr.App.1971); Cf. Loud v. State, 166 Tex.Cr.R. 195, 312 S.W.2d 256 (1958). The second confession was properly admitted in evidence even though it did not show on its face compliance with the requirements of either Article 15.17 or 38.22 V.A.C.C.P.
"Although the record shows that the appellant before making the first confession was warned and advised of all his constitutional rights, waived them and made a voluntary written confession, it was inadmissible because it failed to show on its face that the appellant had been warned and advised of his rights as required by Article 38.22 V.A.C.C.P. Even though it should not have been admitted, its admission was not reversible error, since the improper admission of evidence does not constitute reversible error if the same facts are proved by other properly admitted evidence. Porter v. State, 623 S.W.2d 374 (Tex.Cr.App.1981); Perez v. State, 608 S.W.2d 634 (Tex.Cr.App.1980); Brantley v. State, 522 S.W.2d 519 (Tex.Cr.App.1975); Gutierrez v. State, 502 S.W.2d 746 (Tex.Cr.App.1973); Wilder v. State, 583 S.W.2d 349 (Tex.Cr.App.1979); Lovel v. State, 538 S.W.2d 630 (Tex.Cr.App.1976); Lassere v. State, 458 S.W.2d 81 (Tex.Cr.App.1970). Since the second confession is more complete with more details and it was properly admitted in evidence, the admission of the first confession is not reversible error.
"Next the appellant complains that the court refused to submit his specially requested charge on exculpatory statements. The appellant timely offered a specially requested charge specific enough to direct the court's attention to his desire that a charge on exculpatory statements be submitted to the jury. The appellant designates parts of both confessions which he argues entitled him to the requested charge. In the first confession:
" 'The other wet back told everyone not to move and started to draw a gun. I told him to "hold it" and then I drew my gun and shot him.'
"In the second confession:
" 'The wetback with the blue jacket turned around in the door of the small room in Donny's Place and he pulled his gun. I told him to hold it and he pulled his gun. I came with my gun and beat him to the draw, shot, and then I ran out in the back behind Donny's Place.'
"The appellant did not testify and offered no evidence at the guilt-innocence phase of the trial. The trial court submitted to the jury a charge on self defense. The appellant cites and relies solely on Bonner v. State, 426 S.W.2d 869 (Tex.Cr.App.1968)
, which stated the well known rule that:
" 'Where the state introduces statements in evidence which are exculpatory, it is ordinarily incumbent upon the court to instruct the jury that the exculpatory statements are regarded as true unless disproved. This rule does not apply where the accused testifies before the jury in accordance with such exculpatory statements and his defensive theory is fairly submitted to the jury.' (P. 870).
"A statement is not exculpatory unless it exculpates. In similar cases this Court has held that a statement, 'The big fellow started after me and I shot him twice,' was not exculpatory and did not even raise the issue of self defense. Perez v. State, 160 Tex.Cr.R. 376, 271 S.W.2d 281 (1954). In Mendez v. State, 168 Tex.Cr.R. 315, 327 S.W.2d 454 (1959), a portion of the defendant's confession introduced in evidence read:
" 'Everytime I started closing the place I always put my pistol, 38 light weight snub nose revolver, in my back pocket and I did the same thing then. Barney (the deceased) then called me and I went over to him and we walked out the back door together. He asked me again for some money, fifty dollars, and I told him no that I needed it for the trip. He backed off a little and put his hand in his pocket. I had had trouble with him before so I pulled out my pistol and started firing at him at close range. The first shot hit him in his face, he spun off the porch, fell and I kept firing at him. I shot at him about four times.' (327 S.W.2d p. 455)
"This Court said:
" 'He ... contends that the portion of the confession quoted above was exculpatory, that the State failed to disprove it, and that it was fundamental error for the court to fail to so charge the jury. We have concluded that the confession quoted does not establish self defense as a matter of law. In Perez v. State, 160 Tex.Cr.R. 376, 271 S.W.2d 281, 284, we said, "A statement is not exculpatory unless it exculpates. We cannot read into such a sentence ('Then a big fellow started after me and I shot him twice.') all the elements requisite to raise the issue of self defense." ' (P. 456)
"See also Stephen v. State, 163 Tex.Cr.R. 505, 293 S.W.2d 789 (1956).
"Although there is no evidence that appellant had a reasonable expectation or fear of death or serious bodily injury, the quoted portions of the statements may have been sufficient for submitting the issue of self defense to the jury, and the careful trial judge did so, but they do not show self defense as a matter of law. A charge on exculpatory statements in these circumstances would be tantamount to charging the jurors that they would have to acquit the appellant, since the record does not include any evidence to rebut these statements. The statements are not exculpatory. The court did not err in refusing to submit the requested charge."
