                                   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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