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). 
2

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. 
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 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 Miranda3and 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). 
4

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.
5

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. 
6

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.