David Scott Rose v. the State of Texas

                                      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)
__________________________________________________________________

                                     ORDER

      In a single issue on appeal, Appellant contends that the trial court erred in

failing to suppress the video statement of his oral statement to law enforcement

where he challenged the voluntariness of the statement, and in failing to give a jury

instruction under Articles 38.22 and 38.23. See Tex. Code Crim. Proc. Ann. arts.

38.22, 38.23.

      In Appellant’s motion to suppress in the trial court, he argued that “[a]ny

statement defendant might have made was involuntary, and in violation of the 5th


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and 14th Amendments to the Constitution of the United States of America, of article

I § 10 of the Texas Constitution, and of articles 38.22 and 38.23 of the Texas Code

of Criminal Procedure.” After a hearing, the trial court denied the motion. The record

does not reflect that either party requested written findings, and none were made.

      Section 6 of Article 38.22 requires written findings when the voluntariness of

a confession is litigated and the trial court finds the confession to be voluntary and

admissible. See Sandoval v. State, No. AP-77,081, 

, at *33 (Tex. Crim. App. Dec. 7, 2022). The statute requires written findings

even if they were not requested by the parties because “‘written findings are required

in all cases concerning voluntariness’” and “‘[t]he statute has no exceptions.’” See

 (quoting Vasquez v. State, 

 (Tex. Crim. App. 2013)). On

appeal, Appellant does not challenge the failure of the trial court to make written

findings. That said, we note the wording of the statute requires such findings.

Therefore, we abate the appeal and remand this case for the trial court to make

written findings in compliance with Article 38.22. See Sandoval v. State, No. AP-

77,081, 

, at *3 (Tex. Crim. App. Mar. 2,

2022); see also Sandoval, 

, at **33-34. The trial

court shall forward its findings within 30 days from the date of this order. The appeal

will be reinstated upon our receipt of the trial court’s findings.

      ORDER ENTERED December 15, 2022.
                                                             PER CURIAM
Before Golemon, C.J., Kreger and Johnson, J.J.
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