## 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. C 35612
- 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 T EX

. P ENAL C ODE A NN . § 37.09(a) (West 2016). As charged, the offense was a third degree felony. Id

. at § 37.09(c) (West 2016).2

I SSUE O NE
— S EARCH W ARRANT A FFIDAVIT 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 overruli ng 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 reason s stated in th at opinion , we overrule Appellant’s first issu e.
I SSUE T WO
— A RTICLE 38.22 Regarding Appellant’s second issue, t hree 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 certai n oral statements made as a result of custodial interrogation. Chief Justice Quinn, writing

an a bbreviated concurring opinion, assum es 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 th e oral statements in question were not the result of custodial interrogation.3

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 th e accused in a criminal proceeding” unless certain procedural safeguards are met. 2 See T EX

. C ODE C RIM

. P ROC

. A NN

. 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 custod ial interrogation

. ” Id. at 38.2 2 , § 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 A rticle 38.22 is the same as it is under Miranda 3 and the Fifth Amendment. Thai Ngoc Nguyen v. State , 292 S.W.3d 671, 677 n. 27 (Tex. Crim. App. 2009) ( cit ing 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 A rt icle 38.22 , section 3 is a mixed question of law and fac t. 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).4

because the application of legal principles to a specific set of facts is an issue of law. Id.
Her e , we have both historical ly

- observable facts (facts that do not turn on an evaluation of credibility and demeanor) and deferentially

- determined facts (facts that do)

. First, the relevant historical ly

- observable facts are undisputed. In the cours e of executing a search warrant, A ppellant 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 use d 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 a nything about his actions in the bedroom, Officer R agan 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 we re 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 methamp hetamine, 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.5

While the record is unclear concerning the exact nature o r wording of any question s asked , Appellant’s statement that he had ingested methamphetamine was an undisputed historical ly

- observable fact

. That said, the surrounding circumstances relevant to t he officer’s subjective intent in discussing the matter and Appellant’s subjective understanding as to why the matter was being discussed were c ircumstantial facts subject to deferential judicial determination according to the credibility of the witnesses and the weight to be given their t estimony. 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 no t constitute ‘interrogation’ for purposes of Miranda . . . . ” Cross v. State , 144 S.W.3d 521, 52 4 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 “ stem s from ” or is the “result of” custodial interrogatio n 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.6

PD

- 1480
- 15, 2017 Tex. Crim. App. LEXIS 83, at *7

- 8 (Tex. Crim. App. Jan. 25, 2017). Here the trial court f ound 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

.
C ONCLUSION 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.