Say you have a consent to search and a confession following an illegal arrest. If the trial court finds the taint attenuated but the defense raises a fact issue concerning one of the attentuation factors, see Bell, 938 S.W.2d at 48, how do you charge the jury? Has anyone seen an approved jury instruction involving attenuation of the taint?

Dix seems to say that to avoid the jurors needing to be lawyers, an article 38.23 instruction should be tailored to the specific factual dispute. Dix & Dawson 40 Texas Practice � 4.198 (citing Jordan v. State, 562 S.W.2d 472).

However, several cases seem to say that such a tailored instruction would be an impermissible comment on the evidence. Franks, 90 S.W.3d at 807 (requested instruction on the effect of Appellant's mental deficiencies on his ability to freely and voluntarily waive Miranda rights constituted an impermissible comment on the weight of the evidence, citing Rocha v. State, 16 S.W.3d 1, 21 (Tex.Crim.App.2000) (explaining that an appellant's requested instruction focusing on illness as a factor that may render his confession involuntary constituted a comment on the weight of the evidence)).

Thanks.