PATRICK A. PIRTLE, Justice.
Appellant, Mark Hoff, appeals from his conviction for tampering with physical evidence,
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.
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.
What constitutes "custodial interrogation" under Article 38.22 is the same as it is under Miranda
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:
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. 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.
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.
Concurring Opinion of Chief Justice BRIAN QUINN.
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 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.
CONCURRING AND DISSENTING OPINION
JAMES T. CAMPBELL, Justice.
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.
Appellant was indicted for the felony offense of tampering with physical evidence.
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:
In response to later questions, Ragan confirmed that he admonished appellant of his Miranda
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 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.
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.
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 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 sought was directly incriminating,
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.
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 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 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. 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 prescription pills."
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.