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

                                           OPINION
                    Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.


       Appellant, Mark Hoff, appeals from his conviction for tampering with physical

evidence,1 following a plea of guilty, and the resulting sentence of ten years of

imprisonment, suspended in favor of community supervision for a period of ten years.

By two issues he contends the trial court erred in denying his motion to suppress due to

(1) insufficient probable cause to support the issuance of a search warrant and (2) a

violation of article 38.22 of the Texas Code of Criminal Procedure. We affirm.

       1
          See TEX. PENAL CODE ANN. § 37.09(a) (West 2016). As charged, the offense was a third degree
felony. Id. at § 37.09(c) (West 2016).
       ISSUE ONE—SEARCH WARRANT AFFIDAVIT


       Appellant’s first issue was also raised in a separate appeal of his conviction for

possession of a controlled substance. On January 31, 2017, writing for a unanimous

court, Justice Campbell issued an opinion overruling that issue. Hoff v. State, No. 07-

15-00011-CR, 2017 Tex. App. LEXIS 865, at *7 (Tex. App.—Amarillo, January 31,

2017, no pet. h.). (mem. op., not designated for publication). For the same reasons

stated in that opinion, we overrule Appellant’s first issue.


       ISSUE TWO—ARTICLE 38.22


       Regarding     Appellant’s     second   issue,   three   well-intended,   open-minded,

respectfully educated justices have looked at the same (relatively straight-forward) issue

and reached three entirely different conclusions. Justice Campbell, writing the most

comprehensive opinion has determined that the judgment of the trial court should be

reversed because the court erred when it denied Appellant’s motion to suppress certain

oral statements made as a result of custodial interrogation. Chief Justice Quinn, writing

an abbreviated concurring opinion, assumes for the sake of argument that the oral

statements in question were the result of a custodial interrogation; however, he

concludes that the judgment of the trial court should be affirmed because the denial of

Appellant’s motion to suppress was harmless. As the last to weigh-in, I agree with Chief

Justice Quinn that the judgment of the trial court should be affirmed; however, I reach

that conclusion based on my finding that the oral statements in question were not the

result of custodial interrogation.




                                               2
       Article 38.22 of the Texas Code of Criminal Procedure mandates that “[n]o

oral . . . statement of an accused made as a result of custodial interrogation shall be

admissible against the accused in a criminal proceeding” unless certain procedural

safeguards are met.2 See TEX. CODE CRIM. PROC. ANN. art. 38.22, § 3(a) (West 2014)

(Emphasis added).           Implicit in this statutory provision is the fact that custodial

statements made as the result of something other than interrogation are not precluded.

In fact, by its own terms, the exclusionary provisions of Article 38.22 do not apply to “a

statement that does not stem from custodial interrogation.” Id. at 38.22, § 5. Because it

is undisputed that the statement in question was not recorded (the procedural safeguard

at issue in this case), the disposition of this issue turns squarely on the question of

whether the oral statement was made in response to “custodial interrogation.”


       What constitutes “custodial interrogation” under Article 38.22 is the same as it is

under Miranda3 and 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).

Whether custodial questioning constitutes “interrogation” under Article 38.22, section 3

is a mixed question of law and fact. See Alford v. State, 358 S.W.3d 647, 653 (Tex.

Crim. App. 2012). Being a mixed question of law and fact, we must defer to any of the

trial court’s fact findings that turn on an evaluation of credibility and demeanor. Id.

Conversely, if the trial court’s fact findings do not turn on an evaluation of credibility and

demeanor, a reviewing court should subject the undisputed facts to a de novo review


       2
           At issue here was whether the oral statement in question had been recorded.
       3
           Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 692 (1966).

                                                     3
because the application of legal principles to a specific set of facts is an issue of law.

Id.


      Here, we have both historically-observable facts (facts that do not turn on an

evaluation of credibility and demeanor) and deferentially-determined facts (facts that

do). First, the relevant historically-observable facts are undisputed. In the course of

executing a search warrant, Appellant was discovered in a bedroom of the premises

being searched.    When officers entered the bedroom, they observed him swallow

something. They also observed other incriminating evidence in plain view that was

eventually used to convict him of the offense of possession of a controlled substance.

Appellant was immediately taken into custody and given the appropriate Miranda

warnings before the statements in question were made.          Asked by the prosecutor

whether Appellant said anything about his actions in the bedroom, Officer Ragan

responded, “[w]hile speaking with him, he told me that when the officers entered the

room; that’s what he had done, he had ingested the methamphetamine.”                  The

questioning continued:


      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.




                                            4
       While the record is unclear concerning the exact nature or wording of any

questions asked, Appellant’s statement that he had ingested methamphetamine was an

undisputed historically-observable fact.      That said, the surrounding circumstances

relevant to the officer’s subjective intent in discussing the matter and Appellant’s

subjective understanding as to why the matter was being discussed were circumstantial

facts subject to deferential judicial determination according to the credibility of the

witnesses and the weight to be given their testimony. Accordingly, as to those matters,

we must defer to the decision of the trial court.


       The significance of these deferentially determined facts is that “[q]uestions

normally attendant to arrest, custody, or administrative ‘booking’ procedure do not

constitute ‘interrogation’ for purposes of Miranda . . . .” Cross v. State, 144 S.W.3d 521,

524 n. 5 (Tex. Crim. App. 2004) (citing Pennsylvania v. Muniz, 496 U.S. 582, 601, 110
L. Ed. 2d 528, 110 S. Ct. 2638 (1990)). As stated by the Texas Court of Criminal

Appeals, “[i]n the Miranda 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)

(citing Rhode Island v. Innis, 446 U.S. 291, 300-01, 100 S. Ct. 1682, 64 L. Ed. 2d 297

(1980)).   This “should know” test is the general test for determining whether an

interrogation has occurred. Cruz, 461 S.W.3d at 536 (citing Alford, 358 S.W.3d at 661).


       Here, the statement in question was inadmissible if it was the “result of custodial

interrogation.” Since the ultimate determination of whether a statement “stems from” or

is the “result of” custodial interrogation is an application-of-law-to-fact question, we defer

to the trial court’s implied findings of fact that support that decision. Byram v. State, No.

                                              5
PD-1480-15, 2017 Tex. Crim. App. LEXIS 83, at *7-8 (Tex. Crim. App. Jan. 25, 2017).

Here the trial court found the oral statement was admissible pursuant to article 38.22;

therefore, it must have concluded that it did not factually stem from custodial

interrogation.   Because this application-of-law-to-fact question finds support in the

record, the trial court did not abuse its discretion in denying Appellant’s motion to

suppress. Accordingly, Appellant’s second issue should be overruled.


       CONCLUSION

       A unanimous court having agreed to the disposition of issue one and a majority

of the court having agreed to the disposition of issue two, the judgment of the trial court

is affirmed.




                                                        Patrick A. Pirtle
                                                             Justice


Publish.




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