In The
Court of Appeals
Ninth District of Texas at Beaumont
__________________
NO. 09-21-00209-CR __________________
DAVID SCOTT ROSE, Appellant
V.
THE STATE OF TEXAS, Appellee
________________________________________________________________
On Appeal from the 411th District Court Polk County, Texas Trial Cause No. 27535 (4 Counts) __________________________________________________________________
MEMORANDUM OPINION
A grand jury indicted Appellant David Scott Rose (“Rose,” “Appellant,” or
“Defendant”) on four counts of aggravated assault against a public servant—
specifically, against four police officers. See Tex. Penal Code Ann. § 22.02(b)(2)(B).
Rose pleaded “not guilty,” but the jury found him guilty as charged and sentenced
him to life imprisonment on all four counts. On appeal, Rose has one stated issue,
The Trial Court err[]ed in failing to suppress the Appellant[’]s video tape records of this oral statement. Alleging that the statement was made involuntary and in violation of the 5th and 14th Amendment of the
1 Constitution of the United States and Article 1, Section 10 of the Texas Constitution and Article 38.22 Section 6 and 7, and Article 38.23 of the Texas Code of Criminal Procedures.
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.
Motion to Suppress Hearing
The day before the trial began, the trial court held a hearing on the motion to
suppress. At the hearing, Texas Ranger Clendennen testified about his investigation
and the interrogation of Rose. Clendennen testified that his interrogation was
conducted the day after the shooting, that he gave Rose a Miranda warning and
article 38.22 warnings. Rose verbally replied that he understood the warning, he did
not ask to stop the interview at any time, he did not request an attorney, and he did
not refuse to answer any questions. The State also introduced the audio recording of
the interrogation at the hearing. Rose’s attorney argued that because Rose had been
shot three times the day before the interview, he was “not in the physical condition
to voluntarily and knowingly consent to giving a statement.” The trial court denied
the motion to suppress, and in its Trial Court Findings, the court wrote,
The Court finds that the recorded statements of the Defendant were made voluntarily based on the fact that he was read his Miranda 2 warnings and he advised that he understood them, he did not ask to end the interview, and he did not request for an attorney to be present during the interview.
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.
Testimony and Evidence at Trial
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.”
3 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
1 The indictment named a fifth complainant, Austin McCracken, who also testified at trial, but the State elected to abandon the charges against Rose as to complainant McCracken. 4 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
5 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.
Analysis
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,
6 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 judge as a matter of law and fact that the statement was voluntarily made, evidence pertaining to such matter may be submitted to the jury and it shall be instructed that unless the jury believes beyond a reasonable doubt that the statement was voluntarily made, the jury shall not consider such statement for any purpose nor any evidence obtained as a result thereof. 7 Id. art. 38.22, § 6. Article 38.23 provides in relevant part:
In any case where the legal evidence raises an issue hereunder, the jury shall be instructed that if it believes, or has a reasonable doubt, that the evidence was obtained in violation of the provisions of this Article, then and in such event, the jury shall disregard any such evidence so obtained.
Id. art. 38.23(a) (titled “Evidence Not to Be Used.”); see also Wheeler v. State, 616
S.W.3d 858, 863 (Tex. Crim. App. 2021) (“Under the Texas Exclusionary Rule,
evidence obtained in violation of any provision of state or federal law cannot be used
at trial in a criminal prosecution.”).
Before Clendennen testified at trial, defense counsel requested a running
objection for the “reasons I stated in my motion to suppress[]” as to the admission
of Rose’s statements to law enforcement, which the trial court granted. Clendennen
testified that he gave Rose his Miranda warnings before he started the interview,
that he interviewed Rose after Rose was released from the hospital, that Rose stated
that he had fired his weapon after the Sheriff’s Office fired upon him, and that Rose
made some statements that were not consistent with evidence at the scene and other
statements that corroborated what Clendennen already knew to be true. The State
did not introduce the recorded statement during the trial, and it was not admitted into
evidence.2 Later, when Clendennen was testifying about where Rose may have been
2 The recorded statement is part of our appellate record, as it was an exhibit during the hearing on the motion to suppress. 8 positioned during the event, defense counsel stated, “now this is based on hearsay. I
object. He can talk about the interviews he conducted, the evidence.” Defense
counsel then also stated, “I have no objection -- excuse me. I have no objection to
him testifying.”
On appeal, the Defendant’s argument is that the trial court failed to include
instructions as required by 38.22 and 38.23. He admits in his brief that he failed to
object to the charge during the trial, and he admits he never requested the instruction.
Appellant does not argue on appeal that the alleged error had a substantial or
injurious effect on the jury’s verdict, nor does he claim he suffered “egregious
harm.” See Tex. Code Crim. Proc. Ann. art. 38.22, § 3, 38.23; Tex. R. App. P.
38.1(i), 44.2(b). Ordinarily, compliance with article 38.22 is a statutory claim and it
is not a constitutional challenge. Nonn v. State, 117 S.W.3d 874, 879-80 (Tex. Crim.
App. 2003) (explaining that compliance with article 38.22 is not a constitutional
issue); Porter v. State, No. 09-19-00376-CR, 2022 Tex. App. LEXIS 4201, at **17-
18 (Tex. App.—Beaumont June 22, 2022, no pet.) (mem. op., not designated for
publication) (explaining that compliance with article 38.22 is a procedural matter
and not of constitutional dimension). When only a statutory violation is claimed, we
treat the alleged error as non-constitutional for the purpose of conducting a harm
analysis, and the error will be reversible only if it affected a substantial right of the
defendant—that is, if the error had a substantial or injurious effect on the jury’s
9 verdict. See Sandoval v. State, No. AP-77,081, 2022 Tex. Crim. App. LEXIS 844,
at **22-23 (Tex. Crim. App. Dec. 7, 2022); Proenza v. State, 541 S.W.3d 786, 801
(Tex. Crim. App. 2017) (citing Tex. R. App. P. 44.2(b)); Nonn, 177 S.W.3d at 880.
In his brief on appeal, Rose states,
The record is clear that the Appellant had been shot three times no more than 24 hours before he had been interrogated by the law enforcement and he had just been released from the hospital prior to this interrogation. The timing of the interrogation, the setting of the interrogation, the wounds that had been inflicted on the Appellant were admitted into evidence and should have been presented to the Jury in question form and set forth in Article 38.23.
Rose did not object to the jury charge at trial, and Rose did not submit a requested
jury instruction on the issue.
On appeal, Rose does not argue that the trial court failed to comply with any
of the procedural requirements of Article 38.22, and he does not allege that he did
not receive a fair and impartial trial.
Instead, Rose states in his brief on appeal that “[a] review of the record made
at the Motion to Suppress Statement [] shows that the argument concerning the
admissibility, or the inadmissibility of the Appellant’s statement[,] concern[ed] the
waiver of his rights under Article 38.22 and 38.23.” He goes on to argue that he was
entitled to a jury instruction because “[t]hese are statutory mandated instructions,
and the Trial Judge must include them in the Jury instructions when the voluntariness
of the Appellant’s statement is at issue,” citing Oursbourn v. State, 259 S.W.3d 159,
10 182 (Tex. Crim. App. 2008) and Pickens v. State, 165 S.W.3d 675 (Tex. Crim. App.
2005).
In Oursbourn, there was evidence at trial that the defendant was in pain, that
the investigators lied to him about the evidence against him, and the defendant
displayed a certain vulnerable mental state due to having bipolar disorder. Id. at 181.
The Court of Criminal Appeals concluded that the evidence raised only a general
voluntariness question under section 6 of Article 38.22 and not a constitutional due-
process claim, and that the defendant’s claim was a statutory claim that focused on
his subjective mental state. See id. The Court explained,
. . . Due process and Miranda claims may warrant both “general” and “specific” voluntariness instructions; Texas statutory claims warrant only a “general” voluntariness instruction. It is the defendant’s responsibility to delineate which type of “involuntariness” he is claiming—a general (perhaps subjective) lack of voluntariness or a specific police-coerced lack of voluntariness—because the jury instruction is very different depending upon the type of claim.
Obviously, the evidence must raise a “voluntariness” issue, and the defendant should request a jury instruction that relates to his theory of involuntariness. But if the defendant never presents a proposed jury instruction (or fails to object to the lack of one), any potential error in the charge is reviewed only for “egregious harm” under Almanza.
Id. at 174 (citing Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985));
see also Madden v. State, 242 S.W.3d 504, 513 (Tex. Crim. App. 2007) (“Because
appellant never presented a proposed jury instruction that asked the jury to decide
disputed facts, any potential error in the charge should be reviewed only for
11 ‘egregious harm’ under Almanza.”). Here, as in Oursbourn, we conclude that Rose’s
complaint on appeal raises a statutory complaint and not a constitutional challenge.
We review a claim of charge error through a two-step process: first
determining whether error exists and then conducting a harm analysis if error is
found to exist. Rogers v. State, No. PD-0242-19, 2022 Tex. Crim. App. LEXIS 742,
at *7 (Tex. Crim. App. Oct. 26, 2022) (citing Phillips v. State, 463 S.W.3d 59, 64-
65 (Tex. Crim. App. 2015)); Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App.
2005)). Initially we must determine whether error occurred. See Ngo, 175 S.W.3d at
743. We defer to the trial court’s ruling on questions of fact and questions that turn
on credibility and demeanor, and application-of-law-to-fact questions that do not
turn on credibility and demeanor are reviewed under a de novo standard. See
Sandoval, 2022 Tex. Crim. App. LEXIS 844, at *22. If we find error, then we
analyze the error for harm. See id. When, as here, the defendant did not object at trial
and failed to preserve error for appeal, we will not reverse for jury-charge error
unless the record shows “egregious harm” to the defendant. See Ngo, 175 S.W.3d at
743-44; Bluitt v. State, 137 S.W.3d 51, 53 (Tex. Crim. App. 2004); Almanza, 686
S.W.2d at 171.
Did the trial court err in failing to include an instruction to the Jury?
The State argues the facts were not disputed at trial and that the defendant did
not present evidence showing the circumstances surrounding the statement he made
12 to Ranger Clendennen, and the State emphasizes that the State did not offer or use
the recorded statement at trial. That said, we note that the defense renewed its
objections from the motion to suppress, and the trial court allowed the defense
attorney a “running objection” during the testimony of Ranger Clendennen.
To determine whether the trial court erred, we use section 6 of Article 38.22,
as explained by the Court of Criminal Appeals:
(1) a party notifies the trial judge that there is an issue about the voluntariness of the confession (or the trial judge raises the issue on his own); (2) the trial judge holds a hearing outside the presence of the jury; (3) the trial judge decides whether the confession was voluntary; (4) if the trial judge decides that the confession was voluntary, it will be admitted, and a party may offer evidence before the jury suggesting that the confession was not in fact voluntary; (5) if such evidence is offered before the jury, the trial judge shall give the jury a voluntariness instruction.
Oursbourn, 259 S.W.3d at 175 (footnote omitted).
Rose notified the trial judge that there is an issue of voluntariness in his written
motion to suppress, and at the hearing on the motion, defense counsel stated that
“[s]omebody, having been shot three times [] not a great deal more than 24 hours
earlier, is not in the physical condition to voluntarily and knowingly consent to
giving a statement.” The trial court held a hearing outside the presence of the jury.
Therefore, we conclude that steps one and two as outlined above are satisfied.
13 After the hearing on the motion to suppress, the trial court entered an order
denying the motion. In its Trial Court Findings, the court found that Rose’s recorded
statement was made voluntarily. So, step three was satisfied.
The next step in the analysis provides that, once the defendant’s statement is
found to be voluntary, “it will be admitted, and a party may offer evidence before
the jury suggesting that the confession was not in fact voluntary[.]” See id. In this
case, the State never offered Rose’s recorded statement into evidence and it was not
admitted into evidence. However, Ranger Clendennen testified about his interview
of Rose and about what Rose told him during the interview:
• “I interviewed him midday on the -- March 4th when he had been released from the hospital, at the Polk County Sheriff’s Office.” • “Due to him being in custody, while I was speaking to him, I Mirandized him, and he advised me he understood his legal rights.” • “Mr. Rose, upon being read his legal Miranda warning, he remembered being at the trailer. I believe that there [were] a lot of statements that he made that weren’t consistent with some of the evidence at the scene.” • “The statements that he was making to me did corroborate what I [] already knew to be true.” • “Mr. Rose admitted that he did fire the weapon, but it was after the Polk County Sheriff’s Office had fired upon him.” • “I would say the knowledge that I had when I interviewed him from the 911 call and different statements that he made, there were several conflicting statements he was making to me in the interview that didn’t add up to the scene.”
On cross-examination of Clendennen, the following exchange occurred:
[Defense counsel]: And you interviewed Mr. Rose at the sheriff’s office?
14 [Clendennen]: Yes, sir.
[Defense counsel]: And that was the day after -- after the shooting?
[Clendennen]: Yes, sir.
Under Article 38.22, “the defense is [] required to introduce evidence at trial
from which a reasonable jury could conclude that the statement was not voluntary[],”
and “[s]ome evidence must have been presented to the jury that the defendant’s
confession was not given voluntarily.” See Vasquez v. State, 225 S.W.3d 541, 545
(Tex. Crim. App. 2007). The State argues that there was no evidence before the jury
that Rose’s statement was not voluntary. We agree. There was no evidence presented
by Rose to the jury that Rose was on medication, no evidence of Rose’s mental state,
no evidence of coercion, and no evidence of mental distress or mental infirmity. See
Oursbourn, 259 S.W.3d at 181 (evidence that the defendant had been lied to about
the evidence against him, that he was in pain, and that he was in a vulnerable mental
state due to his bipolar disorder was sufficient to raise the issue of voluntariness).
While it is true that Clendennen testified that he interviewed Rose the day after the
shooting and after Rose had been discharged from the hospital, the defense offered
no evidence of Rose’s mental state or his physical condition, no evidence of whether
he was under the influence of medication, and no evidence relevant to whether his
decision to give a statement to law enforcement was knowing, voluntary, and
intelligent.
15 “Under article 38.22, there is no error in refusing to include a jury instruction
where there is no evidence before the jury to raise the issue.” Vasquez, 225 S.W.3d
at 545. Therefore, we find no error by the trial court in not giving a jury instruction
on voluntariness. See id; see also Oursbourn, 259 S.W.3d at 174 (to warrant a jury
instruction under Article 38.22, § 6, “the evidence must raise a ‘voluntariness’
issue”).3
Appellant also alleges the trial court erred by not giving a jury instruction
under Article 38.23. According to Appellant, “Article 38.23 is the law applicable to
any case, [in] which a specific, disputed issue [of] fact is raised concerning the
Constitutional voluntariness of the making of the Appellant’s statement.” Under
Article 38.23, when evidence is admitted that creates a question regarding whether
evidence was illegally obtained, “‘the jury shall be instructed that if it believes, or
has a reasonable doubt, that the evidence was obtained in violation of the provisions
3 See also Roubert v. State, No. 08-20-00165-CR, 2022 Tex. App. LEXIS 3970, at **17-19 (Tex. App.—El Paso June 10, 2022, no pet.) (not designated for publication) (no error not to give a jury instruction on voluntariness where the evidence did not raise the issue); Abdullah v. State, No. 14-21-00306-CR, 2022 Tex. App. LEXIS 3536, at *13 (Tex. App.—Houston [14th Dist.] May 26, 2022, pet. ref’d) (mem. op., not designated for publication) (same); Munoz v. State, No. 08-19- 00072-CR, 2020 Tex. App. LEXIS 8545, at *17 (Tex. App.—El Paso Oct. 30, 2020, pet. ref’d) (not designated for publication) (same); San Juan v. State, No. 06-19- 00174-CR, 2020 Tex. App. LEXIS 3105, at **26-27 (Tex. App.—Texarkana Apr. 15, 2020, pet. ref’d) (mem. op., not designated for publication) (same); Cabrera v. State, No. 05-17-00318-CR, 2018 Tex. App. LEXIS 5833, at *10 (Tex. App.— Dallas July 27, 2018, pet. ref’d) (mem. op., not designated for publication) (same). 16 of this [a]rticle, then and in such event, the jury shall disregard any such evidence so
obtained.’” White v. State, 632 S.W.3d 232, 237 (Tex. App.—Beaumont 2021, no
pet.) (quoting Robinson v. State, 377 S.W.3d 712, 719 (Tex. Crim. App. 2012)); see
also Tex. Code Crim. Proc. Ann. art. 38.23(a).
To be entitled to an Article 38.23(a) instruction, the defendant must show that
(1) an issue of historical fact was raised in front of the jury; (2) the fact was contested
by affirmative evidence at trial; and (3) the fact is material to the constitutional or
statutory violation that the defendant has identified as rendering the particular
evidence inadmissible. See Madden, 242 S.W.3d at 510. Appellant’s brief fails to
identify the evidence presented at trial that created a “specific, disputed” fact issue
about the voluntariness of his statement. See Tex. R. App. P. 38.1(i) (requiring an
appellate brief to cite to legal authority and to the record). As we have previously
concluded, there was no evidence before the jury that created a fact question whether
Appellant’s statement was involuntary or illegally obtained. Therefore, the trial court
did not err by not giving a jury instruction under Article 38.23. See id.
Was there “egregious harm?”
Even if we assumed the trial court erred in failing to give an instruction under
Article 38.22 or 38.23, we would still have to examine whether Rose suffered
“egregious harm.” See Oursbourn, 259 S.W.3d at 182 (citing Almanza, 686 S.W.2d
at 171) (“[I]f no proper objection was made at trial and the accused must claim that
17 the error was ‘fundamental,’ he will obtain a reversal only if the error is so egregious
and created such harm that he ‘has not had a fair and impartial trial’-- in short
‘egregious harm.’”).
Jury-charge error is egregiously harmful if it affects the very basis of the case,
deprives the defendant of a valuable right, or vitally affects a defensive theory.
Stuhler v. State, 218 S.W.3d 706, 719 (Tex. Crim. App. 2007) (citing Hutch v. State,
922 S.W.2d 166, 171 (Tex. Crim. App. 1996)); Garcia v. State, 578 S.W.3d 106,
129 (Tex. App.—Beaumont 2019, pet. ref’d). “Egregious harm” is present when the
case for conviction was actually made clearly and significantly more persuasive by
the error. See Casanova v. State, 383 S.W.3d 530, 533 (Tex. Crim. App. 2012)
(citing Saunders v. State, 817 S.W.2d 688, 692 (Tex. Crim. App. 1991)); Graves v.
State, 310 S.W.3d 924, 930 (Tex. App.—Beaumont 2010, pet. ref’d) (citing Bluitt,
137 S.W.3d at 53; Hutch, 922 S.W.2d at 171; Saunders, 817 S.W.2d at 692).
When conducting an egregious-harm review, we consider the entire jury
charge, all the evidence presented at trial, including the contested issues and the
weight of the probative evidence, the arguments of counsel, and any other relevant
information revealed by the record of the trial as a whole. See Stuhler, 218 S.W.3d
at 719. We place no burden of proof or persuasion to show egregious harm on either
the defendant or the State. See Warner v. State, 245 S.W.3d 458, 462 (Tex. Crim.
App. 2008). Before we can find egregious harm, the record must show that the
18 defendant has suffered actual, rather than merely theoretical, harm from the jury-
charge error. See Almanza, 686 S.W.2d at 174. When assessing harm arising from
alleged jury charge error, “the actual degree of harm must be assayed in light of the
entire jury charge, the state of the evidence, including the contested issues and
weight of probative evidence, the argument of counsel and any other relevant
information revealed by the record of the trial as a whole.” Id. at 171. We also
consider the impact, if any, of the alleged omission in the jury charge. See Tucker v.
State, 456 S.W.3d 194, 212 (Tex. App.—San Antonio 2014, pet. ref’d) (citing
Ellison v. State, 86 S.W.3d 226, 228 (Tex. Crim. App. 2002)); Graves, 310 S.W.3d
at 930 (same).
The jury charge in this case asked the jurors for a verdict on the four counts
of aggravated assault against a public officer, against Deputies Andy Lowrie, Mark
Jones, Victor White, and William Land, as alleged in the indictment. The language
of the jury charge tracked the language of the statute under which Rose was
indicted.4
4 Section 22.02 of the Penal Code provides that an individual commits aggravated assault if he commits assault as defined under section 22.01—a threat of imminent bodily injury—and “uses or exhibits a deadly weapon during the commission of the assault.” Tex. Penal Code Ann. §§ 22.01(a)(2), 22.02(a)(2). Aggravated assault, normally a second-degree felony, may be elevated to a first- degree felony if the individual commits the aggravated assault against “a person [he] knows is a public servant while the public servant is lawfully discharging an official duty, or in retaliation or on account” of a public servant’s “exercise of official power or performance of an official duty[.]” Id. § 22.02(b)(1), (2)(B). 19 The defense raised only one objection to the jury charge: that the charge did
not include a definition of “imminent[]” and asked that one be included. The trial
court denied the request. Appellant does not complain about that ruling on appeal.
Considering the charge as a whole, it weighs against a finding of egregious harm.
Clendennen’s recorded interview of Rose was not admitted into evidence at
trial. Clendennen testified (1) that he investigated the incident, that the shooting had
already occurred when he arrived at the scene, and that Rose had used “a long assault
rifle” that was a .30-caliber carbine military rifle, (2) that when he interviewed Rose
after the incident, he gave Rose his Miranda warnings, (3) that he interviewed Rose
and Rose’s father the day Rose was released from the hospital, (4) that he believed
“there [were] a lot of statements that [Rose] made that weren’t consistent with some
of the evidence at the scene[,]” (5) that some of what Rose told Clendennen
corroborated what Clendennen already knew to be true, and (6) that “Mr. Rose
admitted that he did fire the weapon, but it was after the Polk County Sheriff’s Office
had fired upon him.” The 911 dispatcher testified that Rose told her on the 911 call,
“there’s soon to be a big ‘ole fire and a gun battle,” and the recorded 911 call was
admitted into evidence. Rose did not object to the admission of the 911 call or the
testimony from the dispatcher. Deputy Lowrie testified that on the night of the
incident, Rose said, “[t]here’s soon to be a big ‘ole fire, a gun battle.” Deputies
Lowrie and White also testified that Detective Mitchell unsuccessfully tried to talk
20 Rose into coming out of the home and surrendering. Detective Mitchell testified that
he stayed on the phone with Rose during the incident, he believed that Rose’s
behavior was erratic, he believed Rose was armed, and he believed Rose became
more dangerous throughout the night and that Rose told him he was going to be
coming outside with a gun. According to Mitchell, Rose gave a 3-2-1 countdown,
and “when he got to one, that’s when the -- the first gunshot went off.” Land, Jones,
Lowrie, and White all testified that Rose pointed a rifle out of a window and fired in
the direction of the officers. Recordings made from Deputy Land’s, Jones’s, and
White’s body cameras were admitted into evidence and published to the jury, and
the recordings were consistent with the testimony provided by the Deputies.
Considering all the evidence presented at trial, it weighs against a finding of
egregious harm.
Neither the State nor the defense mentioned Clendennen’s interview of Rose
during closing arguments. The State placed no emphasis in closing on any part of
Rose’s statement which was made to Ranger Clendennen. So, this also weighs
against a finding of egregious harm.
As to other relevant information in the record, including the testimony from
the witnesses, the 911 audio recording, and the officers’ camera footage, we find that
evidence also weighs against a finding of egregious harm. As we have noted,
Clendennen’s recorded interview of Rose was not introduced into evidence.
21 Clendennen testified that some of Rose’s statements corroborated evidence from the
scene, and some statements did not. Clendennen also testified that “Mr. Rose
admitted that he did fire the weapon, but it was after the Polk County Sheriff’s Office
had fired upon him,” and that statement was potentially incriminating but also could
have been favorable to the defense. We note that later in Clendennen’s testimony the
defense attorney agreed that Clendennen “can talk about the interviews he
conducted, the evidence.” So, this information also weighs against a finding of
After analyzing the evidence under the Almanza factors, we conclude that the
case for conviction was not made “clearly and significantly” more persuasive by the
failure to include a jury instruction on the voluntariness of Rose’s statement to law
enforcement. See Casanova, 383 S.W.3d at 533. We cannot say that the omission of
the instruction went to the very basis of the case, or that it deprived the defendant of
a valuable right, or that it vitally affected a defensive theory. We conclude that Rose
did not suffer “egregious harm” due to the omission of the instruction. See id.;
Graves, 310 S.W.3d at 930. And, we cannot say that the omission in the charge had
a substantial or injurious effect on the jury’s verdict. See Proenza, 541 S.W.3d at
801.
We overrule Appellant’s issue on appeal, and we affirm the trial court’s
judgment.
22 AFFIRMED.
_________________________ LEANNE JOHNSON Justice
Submitted on October 11, 2022 Opinion Delivered February 1, 2023 Do Not Publish
Before Golemon, C.J., Johnson and Wright, JJ.