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 Opinion of Chief Justice Quinn
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
I would overrule the first issue for the reason stated in the opinion of Justice
Pirtle, and I would overrule the second issue for the following reason.
Though I have concerns with whether the officer’s question was improper
interrogation, I assume it to be so for purposes of this argument. My major concern
involves the existence of harm even if the question and answer were inadmissible.
Evidence other than appellant’s statement regarding his ingestion of
methamphetamine illustrated that he attempted to hide, destroy or otherwise tamper
with evidence of a crime. Officers located him in a bedroom. In that bedroom, they also
found “a little baggy with substance, methamphetamine, and a methamphetamine pipe
and some prescription pills.” More importantly, one or more of them “observed him . . .
to ingest methamphetamine” as they entered the bedroom. That resulted in appellant
immediately being placed in custody because they realized he was eating evidence.
“It is well established that the improper admission of evidence does not constitute
reversible error if the same facts are shown by other evidence which is not challenged.
Kulhanek v. State, No. 13-15-00265-CR, 2016 Tex. App. LEXIS 12150, at *10 (Tex.
App.—Corpus Christi-Edinburg Nov. 10, 2016, no pet.) (mem. op., not designated for
publication) (citing Leday v. State, 983 S.W.2d 713, 717 (Tex. Crim. App. 1998)). While
there was no actual admission into evidence at trial of appellant’s response to the
officer’s purported interrogation of him while in custody, Kulhanek is instructive,
nonetheless. Other evidence besides that which appellant sought to suppress
illustrated his guilt for the charged offense. Drugs were believed to be in appellant’s
possession. The drug was believed to be methamphetamine. Appellant was found in
the house being searched for methamphetamine and seen possessing what appeared
to be drugs. So too was he seen eating those drugs. The overwhelming weight of that
evidence prevents me from concluding that the trial court’s refusal to grant his motion to
suppress affected a substantial right or his decision to plead guilty. Even if the
response in question was suppressed, enough evidence existed to more than assure
his conviction. And given the totality of the record, it would be mere speculation on my
part to believe appellant ignored that quantum of evidence in deciding to plead guilty
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and rather relied simply on the trial court’s refusal to suppress redundant evidence.
Consequently, I would overrule both issues and affirm the judgment of the trial court.
Brian Quinn
Chief Justice
Publish.
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