concurring.
Ground of error four, complaining of refusal to give his requested charge, is without merit, but not for the reasons the majority rules against appellant. He contends that under the terms of Article 38.22, V.A. C.C.P. in effect at the time the oral statement was made he was entitled to such charge.1 The record reflects that shortly after he was apprehended appellant made an oral statement to Officer Quast2 that led to recovery of items of personal property belonging to the complainant, which appellant and his brother had discarded from their automobile after raping and abandoning her in some isolated woods. The materials were admitted in evidence over objections by appellant to the oral statement, the trial court expressly stating, “The fruits is what makes it admissible.” The jury was charged on voluntariness, i. e., that unless they found that appellant had been warned of his rights and knowingly, intelligently and voluntarily waived such rights prior to making the statement, then it could not consider it for any purpose. Appellant complains that the jury should have been additionally charged that it must find that the statement led to evidence which conduced to establish his guilt. Given the circumstances of this case, we do not agree, but on different bases.
In January 1975 Article 38.22, § 1(3)3 provided that an oral “confession” made while in custody of an officer is admissible if:
“(e) It be made orally and the defendant makes a statement of facts or circumstances that are found to be true, which conduce to establish his guilt, such as the finding of secreted or stolen property, or the instrument with which he states the offense was committed.”4
Thus, the oral statement made during the course of custodial interrogation was admissible against appellant as evidence of guilt when the trial court, in effect, “found [it] to be true”5 and that it did “conduce to establish his guilt,” by leading to the recovery of *574materials relating to commission of the offense by appellant. This exception to the general rule of exclusion of oral statements is based upon the existence of factors which operate to assure the reliability of such statements. Of course, any oral statement under this section of the statute is only admissible if the due process requirements of voluntariness and the requirements of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) are first met. Warren v. State, 514 S.W.2d 458 (Tex.Cr.App.1974); Moore v. State, 505 S.W.2d 887 (Tex.Cr.App.1974); Smith v. State, 507 5.W.2d 779 (Tex.Cr.App.1974).
Former Article 38.22, supra, contained two separate and distinct directions to a trial court in charging a jury with respect to statements and confessions. Section 2 was limited to those cases “where a question is raised as to the voluntariness of a confession or statement,” whereas Section 3 broadly directed an appropriate instruction on the more general law, viz:
“3. When the issue is raised by the evidence, the trial judge shall appropriately instruct the jury, generally, on the law pertaining to such statement or confession.”6 _ ,
While we might well hold that whether an oral statement, found by the trial court to be true, “conduce[s] to establish his guilt” is a question of law solely for resolution by the trial court in determining its admissibility,7 the issue need not be reached for my examination of the record reveals that appellant, though he testified in his own behalf, did not present evidence to contest what he asserted was a factual issue.8
Accordingly, all that is written by the majority with respect to Article 38.22 after it was amended in 1977 has no application whatsoever to the instant case, and is regarded by me as pure obiter dicta. The Court should not undertake to decide a question of statutory construction that is not squarely presented.
. The offense was committed January 25, 1975; appellant was apprehended and made his oral statement the next day; trial was held in January 1977.
. In the words of Officer Quast, while appellant was being transported from the place of arrest to the station house;
“1 talked to Vernon [appellant], asked him if he wanted to tell me what happened, get his business straight, and he said yes. I asked him what he did with the girl’s books, her papers and things, and he said he could take me to the location where they were at, which he did. We left and he gave us directions, took us to a creek on Groschke Road.”
Appellant gave an entirely different version during a Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 hearing which the trial court obviously found unworthy of belief.
. The act that produced the present version of Article 38.22, supra, specifically provides in § 3 that it applies only to statements made on or after its effective date, August 29, 1977. Acts 1977, 65th Leg., p. 935, ch. 348.
. Just such personal items that were recovered from the creek, see note 2, supra, are contemplated by the statute. Gage v. State, 159 Tex.Cr.R. 336, 263 S.W.2d 553, 556 (1954).
. While the “probable truth or falsity” of a statement is not a factor to be considered in determining its voluntariness, Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964); Rogers v. Richmond, 365 U.S. 534, 81 S.Ct. 735, 5 L.Ed.2d 760 (1964), once it has determined that issue, that the trial court must further find the oral statement to be true does not offend principles of due process. See, e. g., Garcia v. State, 581 S.W.2d 168, 173 (Tex.Cr.App.1979); cf. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).
. All emphasis is supplied throughout by the writer of this opinion unless otherwise indicated.
. See Black v. State, 491 S.W.2d 428 (Tex.Cr.App.1973); Hardy v. State, 496 S.W.2d 635 (Tex.Cr.App.1973). In Scott v. State, 434 S.W.2d 678 (Tex.Cr.App.1968), the defendant complained of the trial court’s refusal to instruct the jury to make independent findings of an oral and a written confession. In rejecting the contention that the jury, as well as the trial judge, must make independent findings before the confession was read to the jury, we stated:
“The admissibility of the confession is determined by the court. When found to be voluntary and admissible it may be read to the jury.
The instruction to be given the jury where there is evidence before it as to voluntariness, etc., relates to their consideration of the confession-not its admissibility. Article 38.-22, V.A.C.C.P.”
.The theory of his defense is that the sexual intercourse was a consensual act and that, after its consummation in a lonely wooded area some distance from habitation, the complainant, though invited to do so, refused to enter the car and ride back. While he did say that at that point he and his brother set the materials (later found in a creek) “out of the car on the side of the road and drove off” and did deny that he or his brother threw the materials in the creek, insisting that through some character of divination the officers suddenly stopped at the bridge over Groeschke Creek and ordered him to enter its waters to retrieve the books and other items, is testimony-even if credited-does not raise an issue of fact as to “conduction.” Appellant has not favored us with any authority that supports his position.