Rose v. State
| Decision Date | 01 February 2023 |
| Docket Number | 09-21-00209-CR |
| Parties | DAVID SCOTT ROSE, Appellant v. THE STATE OF TEXAS, Appellee |
| Court | Texas Court of Appeals |
Do Not Publish
Submitted on October 11, 2022
On Appeal from the 411th District Court Polk County, Texas Trial Cause No. 27535 (4 Counts)
Before Golemon, C.J., Johnson and Wright, JJ.
But, in the summary of the argument and argument section of his brief, Rose argues that because his attorney filed a motion to suppress where he argued that his statements were not voluntarily made, and the trial court denied the motion to suppress, the trial court erred in failing to give the jury instructions as outlined in Articles 38.22 and 38.23.
On appeal Rose does not make a specific challenge to the trial court's suppression ruling.
At trial, the State did not introduce into evidence the audio recording of the interrogation. The State did elicit testimony from Clendennen about his investigation and about what Rose told Clendennen. On appeal, Rose contends the trial court erred in failing to include an instruction in the jury charge as required by articles 38.22 and 38.23 of the Code of Criminal Procedure. We overrule Appellant's complaint, and we affirm the trial court's judgment.
A dispatcher for the Polk County Sheriff's Office testified that Rose made a 911 call to the police at about midnight on March 3, 2020, Rose was agitated, said there was going to be a shootout, and reported that some deputies were breaking into his home. Rose asked to speak with Detective David Mitchell, dispatch was able to identify Rose's location from the call, and the dispatcher sent deputies to the location. The dispatcher agreed that Rose stated, "there's soon to be a big 'ole fire and a gun battle." Deputy Andy Lowrie also testified that Rose had stated, "There's soon to be a big 'ole fire, a gun battle."
William Land, Mark Jones, Andy Lowrie, and Victor White testified at trial, and all four were deputies with the Polk County Sheriff's Office and each was named as a complainant in the indictment.[1] Land testified that when Rose called 911 on the night of March 3, 2020, Rose reported that a narcotics officer was trying to break into his home. Land further testified that the deputies were prepared to execute outstanding warrants for Rose's arrest and a search warrant, and they could hear someone moving inside the home. The deputies testified that, upon arrival at Rose's location, the deputies' vehicles surrounded the home with their lights on, and all the officers at the scene were wearing tactical gear that designated them as law enforcement officers. Detective White testified that Rose was aware that the men surrounding the home were police officers.
Land testified that the officers knocked on the door and announced themselves as sheriff's deputies. Detective Mitchell tried to talk Rose into coming out and surrendering, but Rose did not come out, although Detective Mitchell continued efforts to stay on the phone with Rose. Land and White testified that the deputies were concerned because they believed that Rose was armed, and Mitchell testified that Rose threatened to come out of the house with a gun. At one point the deputies were concerned that Rose may not be alone. Jones and Lowrie testified that the deputies spotted an open window, and one of the officers climbed through the window into the home and saw that no one was there except for Rose.
According to Land and Jones, sometime around dawn, Rose fired shots at the deputies. Land and Mitchell stated that the officers planned to throw a flash bang and CS gas into the home, but before they could do so, Rose fired another shot. Three deputies and Clendennen testified that one of the deputies threw a flash bang and CS gas, the flash bang bounced off the house, but the gas went into the house. The deputies testified that Rose broke a small window of the home, pointed a rifle out the window, and fired in the direction of multiple officers.
Two deputies and Clendennen testified that the gas started to affect the officers as well as Rose, who was hanging out of a window trying to get some air. According to Deputies Land and Lowrie, when the deputies went into the house to get Rose, they discovered he was barricaded in a bedroom. Three of the deputies testified that ultimately, the officers got Rose out of the house, they saw that Rose had been shot three or four times, and an ambulance took Rose to the hospital for treatment.
Ranger Clendennen testified at trial that he was asked to assist officers on March 3, 2020, in an officer-involved shooting and barricaded subject. According to Clendennen, when he arrived, the shooting had already occurred. Clendennen explained that Rose had "a long assault rifle" that was a .30-caliber carbine military rifle from World War II that could easily shoot through the walls of Rose's trailer home. Clendennen testified that he was told that Rose had been shot and had been taken to the hospital. Clendennen identified gunshot wounds to Rose in certain photo exhibits that were in evidence. Clendennen also testified that Rose had used a .30-caliber semiautomatic long rifle. According to Clendennen, he interviewed Rose on March 4th, after Rose was released from the hospital. Clendennen testified that he read Rose his Miranda rights and that Rose advised him he understood his legal rights. Clendennen described Rose as cooperative, but some of Rose's statements were not consistent with evidence at the scene, although Clendennen thought that other statements Rose made corroborated what Clendennen knew to be true. Clendennen testified that Rose admitted he fired a weapon, but Rose told Clendennen he fired only after he was fired upon by the deputies.
An audio recording of Rose's 911 call was admitted into evidence, in which Rose states, "there's going to be a big gun battle[.]" Video recordings from the bodycams of Deputies Land, Jones, and White at Rose's house during the incident were also admitted into evidence and published to the jury.
According to Appellant, the trial court erred by failing to include a jury instruction under Articles 38.22 and 38.23 of the Code of Criminal Procedure. Appellant argues that the evidence of the timing of the interrogation by Clendennen the setting of the interrogation, and the wounds that had been inflicted on the Appellant was before the jury and pursuant to Articles 38.22 and 38.23, the court should have given a jury instruction about what the jury could consider as to whether his statement to law enforcement was voluntarily made. Rose does not challenge whether he was given his Article 38.22 (Miranda) warnings, and he does not contend that the State failed to follow the procedures outlined for recording such statements. Rose's only complaint on appeal is that the trial court erred in failing to include a jury instruction that informed the jury it could consider whether Rose's statement to Clendennen was voluntarily made.
In this case, Ranger Clendennen testified that he made an audio recording of his interview with Rose. Texas Code of Criminal Procedure Article 38.22, section 3, requires that to be admitted into evidence, custodial statements of a defendant taken by an officer must be recorded. Tex. Code Crim. Proc. Ann. art. 38.22, § 3. Under section 6 of Article 38.22, when a question is raised as to the voluntariness of a statement of an accused, the trial court must make an independent finding as to whether the statement was made under voluntary conditions. In this case, the trial court found that Rose's statement was voluntary. Section 38.22 provides in part:
Upon the finding by the...
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