In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-15-00012-CR
MARK HOFF, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the County Court at Law
Navarro County, Texas
Trial Court No. C35612-CR, Honorable Amanda Doan Putman, Presiding
February 13, 2017
CONCURRING AND DISSENTING OPINION
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
For the reasons I will discuss, I concur with my colleagues that the trial court
properly rejected the first contention appellant Mark Hoff presents in this appeal from his
conviction following a guilty plea for tampering with physical evidence. All members of
the panel agree with the overruling of appellant’s first issue. I would sustain appellant’s
second issue, and would thus reverse his conviction and remand the tampering charge
for a new trial. I therefore dissent from the court’s judgment affirming the conviction.
Background
Appellant was indicted for the felony offense of tampering with physical
evidence.1 The indictment alleged that, knowing that the offense of possession of a
controlled substance had been committed, appellant intentionally or knowingly
concealed a controlled substance, methamphetamine, with intent to impair its
availability as evidence. He filed a pretrial motion to suppress evidence, including his
statements to police, obtained during a search of his home.
At a hearing on appellant’s motion, the trial court heard the testimony of Ricky
Ragan, a narcotics investigator with the Navarro County Sheriff’s Office Criminal
Investigation Unit. Ragan testified he was among four officers who executed a warrant
authorizing a search of appellant’s home. The warrant was obtained after a confidential
informant told officers he saw appellant with methamphetamine at the residence. When
the officers entered the residence, they found appellant in his bedroom, where they also
found an amount of methamphetamine, a pipe and some prescription pills.
Ragan testified he was made aware that officers entering appellant’s bedroom
“observed him, what they believed, to ingest methamphetamine.” When they saw the
drugs and appellant’s actions, they took him into custody and placed him in handcuffs.
Asked by the prosecutor why they detained appellant at that point, Ragan responded,
“To further the investigation so that no further evidence was destroyed.” The
questioning continued:
Q. Okay. Did y’all believe that his actions indicated that he might be
destroying evidence?
1
TEX. PENAL CODE ANN. § 37.09(c), (d) (West 2014).
2
A. Yes, we did.
***
Q. Okay. Was there ever a time that you – that Mr. Hoff said something to
you about his actions there in the bedroom?
A. Yes.
Q. Can you tell us about that?
A. While speaking with him, he had told me that when the officers entered
the room; that's what he had done, he had ingested the
methamphetamine.
Q. Okay. What were you speaking to him about?
A. The -- the ingestion of the methamphetamine.
Q. Why were you talking to him about that?
A. I was trying to figure out, if that's what he did and why he had done that.
Q. Okay. And if he -- if he had ingested drugs or methamphetamine, why
was that important information for you to know?
A. For -- first off, for medical reasons, you know, on himself and as far as
destruction of evidence. Things of that nature.
In response to later questions, Ragan confirmed that he admonished appellant of
his Miranda2 rights before questioning him, appellant’s statements were made at the
residence in response to his questions, that Ragan was “attempting to confirm that,
that’s what he had done is ingest methamphetamine,” and that his purpose for
questioning appellant was “for medical purposes, but also to see if he had tampered
with evidence.” No recording of appellant’s statement to Ragan was made.
After taking the motion to suppress under advisement, the trial court denied the
motion. Appellant later entered an open plea of guilty to the tampering charge, and to
2
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 692 (1966).
3
the methamphetamine possession charge that also resulted from the search. After
sentence was assessed as noted, the trial court certified appellant’s right of appeal.
Analysis
We review a trial court’s ruling on a motion to suppress under a bifurcated
standard of review. Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010);
Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We afford almost total
deference to a trial court’s determination of historical facts. Valtierra, 310 S.W.3d at
447. The trial court is the sole trier of fact and judge of the credibility of the witnesses
and the weight to be given their testimony. Id. The trial court is entitled to believe or
disbelieve all or part of a witness’s testimony, even if that testimony is uncontroverted.
Id. We apply a de novo standard of review to a trial court’s application of the law of
search and seizure to the facts, and we will sustain the trial court’s ruling if it is
“reasonably supported by the record and is correct on any theory of law applicable to
the case.” Id. at 447-48.
Issue One – Search Warrant Affidavit
Appellant contends the trial court erred in denying his motion to suppress for two
reasons. The first is the same complaint he raised in a separate appeal of his
conviction for methamphetamine possession, in which he argued the search warrant
affidavit failed to establish probable cause for issuance of the warrant. We have issued
our opinion in that companion appeal, and have affirmed the trial court’s denial of
appellant’s challenge to the search warrant.3 Because appellant’s first issue in this
3
Hoff v. State, No. 07-15-00011-CR, 2017 Tex. App. LEXIS 865 (Tex. App.—
Amarillo, January 31, 2017, no pet. h.). (mem. op., not designated for publication).
4
appeal raises no further ground attacking the search warrant, and for the same reasons
we cited in the companion appeal, I agree that appellant’s first issue should be resolved
against him.
Issue Two – Article 38.22
By his second issue, appellant contends the trial court should have granted his
motion to suppress his oral statement admitting he ingested methamphetamine
because it was the product of custodial interrogation and was not recorded in
compliance with article 38.22 of the Texas Code of Criminal Procedure. Under
section 3 of article 38.22, an oral statement of an accused “made as a result of custodial
interrogation” is not admissible against the accused in a criminal proceeding unless an
electronic recording of the statement is made, and the recording meets other
requirements. TEX. CODE CRIM. PROC. ANN. art. 38.22, § 3 (West 2014). I agree with
appellant’s contention.
“Custodial interrogation” under article 38.22 is consistent with the meaning of the
same phrase under the Fifth Amendment. Thai Ngoc Nguyen v. State, 292 S.W.3d 671,
677 n.27 (Tex. Crim. App. 2009), citing Bass v. State, 723 S.W.2d 687, 691 (Tex. Crim.
App. 1986). See also Elizondo v. State, 382 S.W.3d 389 (Tex. Crim. App. 2012).
Article 38.22, by its terms, does not preclude the admission of a statement “that does
not stem from custodial interrogation.” TEX. CODE CRIM. PROC. ANN. art. 38.22, § 5.
Appellant was in handcuffs and Ragan had given him Miranda warnings before
Ragan asked appellant if he ingested methamphetamine. During his testimony, Ragan
repeatedly affirmed appellant was taken into custody in his bedroom, and was in
custody during his questioning. The State does not dispute that appellant was in a
5
custodial status when questioned. See Herrera v. State, 241 S.W.3d 520, 525 (Tex.
Crim. App. 2007) (person is in custody only if, under the circumstances, a reasonable
person would believe that his freedom of movement was restrained to the degree
associated with a formal arrest) (internal citation omitted). It is undisputed also that
appellant’s incriminating admission was not recorded. What is thus at issue is whether
appellant’s statement was made in response to interrogation.
In this context, “interrogation” means “any words or actions on the part of the
police . . . that the police should know are reasonably likely to elicit an incriminating
response.” State v. Cruz, 461 S.W.3d 531, 536 (Tex. Crim. App. 2015). The “should
know” test is the general test for determining whether interrogation occurs. Id., citing
Alford v. State, 358 S.W.3d 647, 661 (Tex. Crim. App. 2012). The test focuses on the
perceptions of the suspect, not the intent of the police. Cruz, 461 S.W.3d at 536-37;
see also Rhode Island v. Innis, 446 U.S. 291, 100 S. Ct. 1682, 64 L. Ed. 2d 297 (1980).
The Court of Criminal Appeals recently has described in Cruz the proper manner
in which to evaluate whether an inquiry like Ragan’s constituted interrogation. We first
consider whether Ragan’s question meets the general test for interrogation, that is
whether, when Ragan asked appellant if he had ingested methamphetamine, Ragan
“should have known” his question was reasonably likely to elicit an incriminating
response. Cruz, 461 S.W.3d at 536-37. To me, the record before us readily shows that
the question meets the general test. The question did not ask for biographical
information but inquired about appellant’s conduct. Id. at 538-39. The information
6
sought was directly incriminating,4 and, as in Cruz, id. at 540, Ragan knew his question
was likely to lead to an incriminating response. And it was in part designed to elicit that
incriminating information.
It is necessary, then, to address the issue whether Ragan’s question is subject to
the “booking exception” and thus is deemed “not interrogation” because it was a “routine
administrative inquiry.” It is so if, under an objective standard, it “reasonably relates to a
legitimate administrative concern.” Id. at 540 (citing Alford, 358 S.W.3d at 659-60). To
answer that question, we consider both the question’s content and the circumstances
under which it was asked. Id. at 540.
Ragan’s question to appellant occurred at the location of his arrest, shortly after
the time of his arrest. The question effectively asked for an admission of his guilt of the
offense of tampering with evidence, one of the crimes of which Ragan suspected
appellant was guilty. See Cruz, id. at 540. Ragan believed appellant had ingested
methamphetamine, and the officer expressed a dual purpose for his question: “for
medical reasons,” and “as far as destruction of evidence.” Id. at 541. There is no
indication Ragan was following a standardized or routine procedure that required him to
question appellant.5 Id. at 542. Guided by the analysis in Cruz, I would conclude
Ragan’s question to appellant did not fall within the “booking exception,” but that his
4
See Rabb v. State, 434 S.W.3d 613 (Tex. Crim. App. 2014) (involving tampering
with evidence by swallowing).
5
As opposed, for instance, to a procedure requiring an arresting officer to seek a
medical examination of an arrestee suspected of needing medical care.
7
questioning of appellant regarding his ingestion of methamphetamine constituted
custodial interrogation, and was subject to article 38.22.6
I find support for this conclusion by comparing the question and circumstances
present here with those examined by the Austin Court of Appeals in Heiden v. State.
No. 03-07-00614-CR, 2009 Tex. App. LEXIS 2000 (Tex. App.—Austin March 25, 2009,
no pet.) (mem. op., not designated for publication). Officers were dispatched to take
Heiden into custody and transport him to a state hospital for a mental health
examination. When he became agitated, they handcuffed him and an officer conducted
a pat-down. No Miranda warnings were given. Id. at *3. When the officer felt and
retrieved a prescription bottle from Heiden’s pants pocket, he asked Heiden “if he was
under any medication.” Heiden responded, “No, that’s meth.” Id. at *4. He endeavored
to suppress the statement when he later was prosecuted for its possession. Affirming
the trial court’s denial of the motion to suppress the statement, the Austin court held the
officer’s question did not constitute interrogation under Miranda. Id. at *13. The court
explained that, given the purpose for the officers’ presence and Heiden’s agitation, the
trial court could have determined the officer had reason to believe Heiden presented a
threat, and that the officer asked about medication to determine Heiden’s physical
condition. It further held the trial court could have seen the question as “part of a
routine police procedure normally attendant to taking people into custody under such
circumstances.” Id. at *20 (citations omitted). Although the Heiden opinion predates the
Alford and Cruz opinions, I believe the court would have reached the same conclusion
6
Although Miranda warnings were administered to appellant before the
questioning at issue here, it is worth noting that a conclusion the booking exception
applies here also effectively means that no article 38.22 or Miranda warnings were
necessary. See Thai Ngoc Nguyen, 292 S.W.3d at 677 n.27.
8
had both those opinions been available to it. Our present case and Heiden are similar
in that evidence of concern for an arrestee’s medical condition is present in both. But
the content of the officer’s question and the circumstances of the police encounter with
Heiden differ greatly from those at issue in our present case. As the court in Heiden
noted, the officers were not engaged in a criminal investigation when the question was
asked. Id. at *17. They had no reason to believe Heiden was involved in any kind of
criminal activity. Id. at *18. There was no indication the officer expected to receive an
incriminating response to his question of Heiden, and I think it doubtful a court would
find he should have known the question was reasonably likely to elicit such a response.
Cruz, 461 S.W.3d at 536-37.
The court’s discussion in Alford regarding the parameters of custodial questions
reasonably related to a legitimate administrative concern also is instructive. 358 S.W.3d
at 654-55. The court there cited Townsend v. State, 813 S.W.2d 181,186 (Tex. App.—
Houston [14th Dist.] 1991, pet. ref’d), in which the court of appeals held that questions
regarding a suspect’s name, address, weight, height, place of employment or physical
disabilities were “normally attendant to arrest and custody.” The court contrasted those
with the questions asked of the defendant in Branch v. State, 932 S.W.2d 577, 581
(Tex. App.—Tyler 1995, no pet.), which included a question asking “whether he had
drunk an alcoholic beverage.” Those questions, the Tyler court held, amounted to
custodial interrogation of the defendant, who was convicted of driving while intoxicated.
The Tyler court in Branch, 932 S.W.2d at 581, also found the trooper’s inquiry
“about Branch’s physical condition, asking whether he suffered from any physical
maladies such as diabetes, epilepsy or bodily injuries” to be “necessary in arrest
9
situations to enable authorities to provide for and be aware of any special physical
needs a suspect might have[.]” The court of appeals properly found such questions did
not constitute interrogation. Id., citing Sims v. State, 735 S.W.2d 913, 917-18 (Tex.
App.—Dallas 1987, pet. ref’d). Such questions designed to learn of a suspect’s
“physical disabilities” or “physical condition,” should be distinguished from Ragan’s
question specifically asking whether appellant had engaged in conduct that violated the
penal code. See Cruz, 461 S.W.3d at 542 (listing, among factors for consideration, “the
relationship between the question asked and the crime the defendant was suspected of
committing”) (citation omitted).
I would hold Ragan’s questioning of appellant constituted custodial interrogation,
Alford, 358 S.W.3d at 661. Because appellant’s statement was not recorded in
compliance with article 38.22, I would hold the trial court erred by failing to suppress the
statement. Johnson v. State, No. 06-13-00129-CR, 2014 Tex. App. LEXIS 8594, at *10
(Tex. App.—Texarkana Aug. 7, 2014, pet. ref’d) (mem. op., not designated for
publication).
Nor can I agree with a conclusion the court’s denial of appellant’s motion to
suppress was harmless. “Article 38.22, section 3 of the code of criminal procedure is a
procedural evidentiary rule rather than a substantive exclusionary rule.” Davidson v.
State, 25 S.W.3d 183, 186 (Tex. Crim. App. 2000); Oxford v. State, No. 2-07-199-CR,
2009 Tex. App. LEXIS 2074 (Tex. App.—Fort Worth, March 19, 2009, no pet.) (mem.
op., not designated for publication). Accordingly, Rule of Appellate Procedure 44.2(b)
applies to the harm analysis. Oxford, 2009 Tex. App. LEXIS 2074 at *8. Under that
standard, we are to disregard any error “that does not affect substantial rights.” TEX. R.
10
APP. P. 44.2(b). In contexts such as this, not involving a jury proceeding, to determine
whether an error affected substantial rights, the Court of Criminal Appeals has
considered “whether a party had a right to that which the error denied.” Johnson v.
State, 72 S.W.3d 346, 348 (Tex. Crim. App. 2002).
Appellant pled guilty after the denial of his motion to suppress his statement. In
other cases involving pleas of guilty after the erroneous denial of motions to suppress,
Texas courts have presumed that the denial of the motion to suppress influenced the
defendant’s decision to plead guilty, and found the denial reversible error, so long as the
evidence that should have been suppressed “would in any measure inculpate the
accused.” Paulea v. State, 278 S.W.3d 861, 867 (Tex. App.—Houston [14th Dist.]
2009, pet. ref’d) (citations omitted). Those cases typically have involved violations of
constitutional rights and the harm standard of rule 44.2(a), but the same result should
obtain in this case under the rule 44.2(b) standard. See McKenna v. State, 780 S.W.2d
797, 799 (Tex. Crim. App. 1989) (discussing prerogative of the defendant, on advice of
counsel, to assess the strength of case against him and relative strength of his own
case, in decision “whether to put the State to its proof,” quoting Kraft v. State, 762
S.W.2d 612, 615 (Tex. Crim. App. 1988)).
The statement that should have been suppressed directly inculpated appellant in
the offense of tampering with evidence. See Rabb, 434 S.W.3d at 617. Without
appellant’s admission to Ragan, the evidence adduced at the motion to suppress
hearing indicated only that other officers, on entering appellant’s bedroom, saw
appellant “what they believed, to ingest methamphetamine,” and found there “[a] little
baggy with substance, methamphetamine, and a methamphetamine pipe and some
11
prescription pills.”7 As have this and other courts in comparable situations, I would find
the erroneous denial of his motion to suppress the statement influenced appellant to
plead guilty. See Paulea, 278 S.W.3d at 867; Woodberry v. State, 856 S.W.2d 453, 458
(Tex. App.—Amarillo 1993, no pet.) (trial court’s denial of motion to suppress evidence
“undoubtedly contributed in some measure to the State’s leverage in the plea
bargaining process, and may well have contributed to appellant’s decision to relinquish
his rights and plead guilty. In our view, the evidence sought to be suppressed was
‘used’ in obtaining appellant’s confession”) (internal citation omitted). See also Holmes
v. State, 323 S.W.3d 163, 174 (Tex. Crim. App. 2010) (op. on reh’g) (similar conclusion
after erroneous denial of pretrial motion to allow cross-examination of State’s expert);
Clement v. State, 461 S.W.3d 274, 282-83 (erroneous denial of motion to suppress
followed by stipulation similarly harmful). The trial court’s error affected appellant’s
substantial rights.
For these reasons, I would sustain appellant’s second issue, reverse the trial
court’s judgment and remand this cause for further proceedings. I respectfully dissent
from the Court’s judgment affirming the conviction.
James T. Campbell
Justice
Publish.
7
To convict appellant of the offense of tampering with physical evidence, the
State would have had to prove that: (1) knowing that an investigation or official
proceeding is pending or in progress; (2) appellant intentionally and knowingly
concealed a thing, to wit: methamphetamine; and (3) with intent to impair its verity,
legibility, or availability as evidence in the investigation or official proceeding. Williams v.
State, 270 S.W.3d 140, 142 (Tex. Crim. App. 2008) (citing TEX. PENAL CODE ANN.
§ 37.09).
12