                                   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
