I concur with the result reached by the majority. Since, however, Article 38.23 is implicated by the police having failed to inform appellant of the provisions of the Vienna Convention, an "attenuation of taint" analysis must also be done. See Johnson v.State, 871 S.W.2d 744, 750-51 (Tex.Crim.App. 1994).
An attenuation analysis is conducted under the provisions announced in Brown v. Illinois, 422 U.S. 590, 45 L.Ed.2d 416,95 S.Ct. 2254 (1975), with no one factor being dispositive of the inquiry. Johnson, 871 S.W.2d at 751. It is uncontested that prior to the taking of both statements, appellant was provided with his Miranda warnings. This fact mitigates in favor of the State. However, unlike analyses in which the "taint" involves an illegal arrest or improper search and/or seizure which, in turn, involve acts that have a definite beginning and ending, in the instant case we are presented with a continuing omission on the part of the authorities. This continuing omission is the tainting "event" upon which the remaining Brown factors are analyzed. Indeed, with regard to the next two Brown factors, (temporal proximity of the tainting event and the statements, and presence of intervening circumstances), the fact that appellant was continually unaware of his right to consult with a consular representative from Mexico at the point he was detained, I believe, fatally mitigates against the State.
The temporal proximity factor is based upon the reasoning that the shorter the time between the tainting event and the taking of the statement the more likely the tainting event has not been purged. See Maixner v. State, 753 S.W.2d 151, 156 (Tex.Crim.App. 1988). In the instant case, however, the tainting "event" is continual; appellant is never made aware of the provisions of the Vienna Convention. Therefore, the tainting "event" is never purged. Likewise with the "presence of intervening circumstances" factor. Because the tainting "event" is continual no circumstances can possibly intervene because appellant's *Page 832 statements are taken in the midst of the continual tainting "event." Again, no purging can take place as the tainting "event" is continuing. Obviously, the impossibility of any purging of the tainting "event" to take place under factors two and three is enough to find no attenuation has taken place.
The fourth factor, the purpose and flagrancy of the official misconduct, in my view, also mitigates against the State in that, while the purpose of the omission is not clear from the record before us, the fact that appellant was never informed of the Vienna Convention provisions speaks for itself as to flagrancy of the misconduct.1 I conclude, therefore, that the State failed in its burden to show, by clear and convincing evidence, that the continuing taint of failing to inform appellant of the provisions of the Vienna Convention did not infect the incriminating statements taken from appellant following his detention. See Boyle v. State, 820 S.W.2d 122, 131-32 (Tex.Crim.App. 1989), overruled on other grounds by Gordon v. State,801 S.W.2d 899, 911 n. 3 (Tex.Crim.App. 1990). I concur with the majority's decision to reverse and remand the instant case.