Opinion filed April 14, 2011




                                               In The


   Eleventh Court of Appeals
                                              __________

                            Nos. 11-09-00317-CR & 11-09-00318-CR
                                          __________

                            ROBERT KEITH EVANOFF, Appellant

                                                  V.

                                    STATE OF TEXAS, Appellee


                                 On Appeal from the 90th District Court

                                         Stephens County, Texas

                                 Trial Court Cause Nos. F31959 & F31960



                                 MEMORANDUM              OPINION
       The jury convicted Robert Keith Evanoff of tampering with physical evidence1 and of
possession of less than one gram of a controlled substance.2 Evanoff‘s punishment was assessed
at sixty years confinement and a fine of $10,000 on the tampering conviction and at twenty years
confinement and a fine of $10,000 on the possession conviction. We affirm.



       1
           No. 11-09-00317-CR.
       2
           No. 11-09-00318-CR.
                                          I. Background Facts
        On the evening of April 12, 2008, Breckenridge Police Department Sergeant Jeff Baker
noticed a vehicle with a driver‘s side headlamp that was not working. Sergeant Baker activated
his emergency lights and followed the vehicle. It pulled into the carport of Evanoff‘s residence.
        Sergeant Baker approached the driver‘s side door. He recognized Evanoff. Sergeant
Baker and Evanoff knew each other and addressed each other by their first names. Sergeant
Baker told Evanoff that his driver‘s side headlamp was out. He walked to the front of the vehicle
and asked Evanoff to turn the vehicle‘s lights back on, at which time he confirmed that both the
high and low beams of the driver‘s side headlamp were out. Evanoff explained that he had hit a
deer.
        Evanoff got out of the vehicle to talk with Sergeant Baker. Sergeant Baker asked for
Evanoff‘s driver‘s license. Evanoff complied with a license that had expired a month earlier.
Evanoff claimed that he had tried to renew it several times at the DPS office but had been unable
to do so. While Sergeant Baker and Evanoff were talking, a female passenger got out of the
vehicle, walked around the front, and joined them by the driver‘s side of the vehicle.
        Sergeant Baker believed that Evanoff was under the influence of an illegal substance. He
testified that Evanoff appeared nervous and unsteady and was talking rapidly. Sergeant Baker
had talked with Evanoff before and knew that Evanoff normally did not talk rapidly. In addition,
Sergeant Baker considered the passenger‘s behavior strange and thought that it might be a
distraction.
        Sergeant Baker asked Evanoff if he was in possession of an illegal substance. Evanoff
responded that he was not ―too far out of line‖ and that he was not ―tearing up the streets of
[Sergeant Baker‘s] precious little town.‖ Sergeant Baker continued to ask Evanoff if he was in
possession of an illegal substance, to which Evanoff eventually replied, ―I might.‖ Evanoff told
Sergeant Baker, ―I might be holding something you might not be too proud of.‖ Evanoff further
indicated that he had hypodermic needles and syringes in the trunk of his car because he was
tired of tearing up his arm using old needles and syringes. Based on this information, Sergeant
Baker also suspected that Evanoff was in possession of drug paraphernalia.
        Sergeant Baker told Evanoff that he would give him a warning on his broken headlamp.
Evanoff asked Sergeant Baker if he wanted the needles and syringes. Evanoff reached into the
vehicle to open the trunk. At the same time, he turned off his vehicle‘s lights. To calm Evanoff

                                                 2
down, Sergeant Baker indicated that he would also give him a warning on the expired driver‘s
license.
       Sergeant Baker continued to ask if Evanoff was in possession of a controlled substance.
Evanoff replied that he had ―three dimes‖ in his pocket that he was about to do. Based on his
training and experience, Sergeant Baker knew that ―three dimes‖ meant three baggies of a
controlled substance. Sergeant Baker asked Evanoff to take the baggies out of his pocket and to
place them on the trunk of the vehicle. Evanoff complied. Sergeant Baker confirmed that the
substance was an illegal narcotic, which he believed to be cocaine.
       Sergeant Baker told Evanoff to turn around and put his hands behind his back. Evanoff
grabbed the baggies and took off, telling Sergeant Baker to ―kick his ass.‖ Sergeant Baker used
his pepper spray to subdue Evanoff, but in the process was himself sprayed. Sergeant Baker
called for backup. He also followed Evanoff around the vehicle and the house trying to put him
under arrest. While Sergeant Baker was following Evanoff, the female passenger was walking
around Evanoff‘s vehicle looking down at the ground.
       With the help of two other officers, Sergeant Baker managed to subdue Evanoff.
Evanoff claimed to have swallowed the baggies. Deputy Caleb Hodges eventually found them
lying on the ground by the front of Evanoff‘s vehicle. Deputy Hodges testified that they were
covered with what appeared to be saliva. Evanoff was then read his rights. The baggies were
sent to the DPS Crime Lab in Abilene, where tests revealed that they contained .51 grams of
cocaine.
                                            II. Issues
       In his first and second issues, Evanoff argues that the evidence was legally and factually
insufficient to support his conviction of tampering with physical evidence. In his third issue, he
maintains that the trial court abused its discretion by denying his motion to suppress. In his
fourth issue, Evanoff argues that the trial court erred by failing to instruct the jury on the law
applicable to the voluntariness of his statements to Sergeant Baker.        In his fifth issue, he
contends that the trial court erred by failing to pronounce sentence and to grant Evanoff the right
of allocution. In his sixth, seventh, and eighth issues, he argues that he received ineffective
assistance of counsel because trial counsel failed to object to evidence that violated his right to
confrontation, failed to request an instruction in the charges on the law applicable to the case



                                                3
concerning the voluntariness of his statements, and failed to object to the denial of his statutory
right of allocution.
                                           III. Sufficiency of the Evidence
        In his first and second issues, Evanoff argues that the evidence is legally and factually
insufficient to support his conviction of tampering with physical evidence. Specifically, Evanoff
contends that the evidence presented at trial was insufficient to show that he intentionally or
knowingly concealed the cocaine or that he intended to impair its availability as evidence.
        We note at the outset of our analysis that the Texas Court of Criminal Appeals has now
held in Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010), that there is ―no meaningful
distinction between the Jackson v. Virginia3 legal-sufficiency standard and the Clewis4 factual-
sufficiency standard‖; that the Jackson v. Virginia standard is the ―only standard that a reviewing
court should apply in determining whether the evidence is sufficient to support each element of a
criminal offense that the State is required to prove beyond a reasonable doubt‖; and that ―[a]ll
other cases to the contrary, including Clewis, are overruled.‖ Brooks, 323 S.W.3d at 895, 902,
912 (footnotes added). Accordingly, a challenge to the factual sufficiency of the evidence is no
longer viable. We also note that Evanoff did not have the benefit of the opinion in Brooks when
this case was briefed. We will review Evanoff‘s factual sufficiency challenge under the legal
sufficiency standard set forth in Jackson v. Virginia. Under this standard, we must review all of
the evidence in the light most favorable to the verdict and determine whether any rational trier of
fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v.
Virginia, 443 U.S. 307; Brooks, 323 S.W.3d at 899.
        At trial, Sergeant Baker testified that Evanoff pulled the baggies of cocaine out of his
pocket and placed them on the trunk of the car. Sergeant Baker told Evanoff to turn around and
to put his hands behind his back. Evanoff then grabbed the cocaine and took off, telling Sergeant
Baker to ―kick his ass.‖ After the police subdued Evanoff, Deputy Hodges found the baggies of
cocaine under the carport in front of Evanoff‘s vehicle. The video of the stop was admitted into
evidence and confirms this sequence of events.
        Tampering with physical evidence is defined as ―knowing that an offense has been
committed, [the accused] alters, destroys, or conceals any record, document, or thing with intent

        3
         Jackson v. Virginia, 443 U.S. 307 (1979).
        4
            Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996).

                                                               4
to impair its verity, legibility, or availability as evidence in any subsequent investigation of or
official proceeding related to the offense.‖ TEX. PENAL CODE ANN. § 37.09(d)(1) (Vernon Supp.
2010). While ―conceal‖ is not defined by the statute, courts have held it means to hide, to
remove from sight or notice, or to keep from discovery or observation. See Rotenberry v. State,
245 S.W.3d 583, 588-89 (Tex. App.—Fort Worth 2007, pet. ref‘d); Hollingsworth v. State, 15
S.W.3d 586, 595 (Tex. App.—Austin 2000, no pet.).            The conduct need not result in the
destruction or loss of the evidence; rather, the accused need only act with the intent to impair its
verity or availability as evidence. Lewis v. State, 56 S.W.3d 617, 625 (Tex. App.—Texarkana
2001, no pet.).
       In support of his argument that the evidence was insufficient to show that he intentionally
and knowingly concealed the baggies of cocaine or that he intended to impair their availability as
evidence, Evanoff cites Hollingsworth; Spector v. State, 746 S.W.2d 945 (Tex. App.—Austin
1988, no pet.); and Stewart v. State, 240 S.W.3d 872, 873 (Tex. Crim. App. 2007).
       In Hollingsworth, a police officer responding to a report of a knife fight saw the
defendant walking in an area known for drug trafficking. 15 S.W.3d at 589. Believing that the
defendant had been involved in the fight, the officer asked him to stop. Id. at 589-90. The
defendant continued to walk away, ducking briefly behind a dumpster. Id. at 590. Another
officer saw the defendant spit out two off-white, cube-shaped objects behind the dumpster. The
objects were crack cocaine. Id. The defendant was arrested and later convicted of tampering
with physical evidence. Id. at 590-91. He argued that the evidence was insufficient to show that
he concealed the crack cocaine with the intent to impair its availability as evidence. Id. at 594.
The evidence presented at trial showed that it was common practice for users to carry crack
cocaine in their mouths to keep it from public view. Id. at 595. The Austin Court of Appeals
likened this practice to that of carrying the keys of a stolen car in one‘s pocket. Id. The court
pointed out there was no evidence that the defendant placed the cocaine in his mouth upon seeing
the officers in an effort to hide it from them. Id. In fact, he spit the cocaine out behind a
dumpster, thereby exposing it to the officers‘ view. Id. For these reasons, the court held that the
evidence was insufficient to show that the defendant concealed the cocaine with the intent to
impair its availability as evidence. Id.
       This court has chosen not to follow Hollingsworth. See Collier v. State, 254 S.W.3d 576,
578 (Tex. App.—Eastland 2008) (reasoning that a jury faced with the facts in Hollingsworth

                                                 5
could have found intent to impair the cocaine‘s availability based on the defendant‘s evasion of
the officers after being ordered to stop and his spitting out the cocaine), pet. dism’d-
improvidently granted, 284 S.W.3d 866 (Tex. Crim. App. 2009). However, even under
Hollingsworth, the present case is distinguishable. Here, there was evidence that, faced with
arrest, Evanoff grabbed the baggies and took off, removing the cocaine for a period of time from
Sergeant Baker‘s observation. Thus, the jury had before it evidence from which it could find that
Evanoff intentionally and knowingly concealed the cocaine. See Hollingsworth, 15 S.W.3d at
595 (using dictionary definition of ―conceal‖ as meaning ―[t]o hide or keep from observation,
discovery, or understanding; keep secret‖).
       The other cases cited by Evanoff are also distinguishable. In Spector, the defendant was
convicted of destroying a marihuana cigarette with the intent to impair its availability as
evidence. 746 S.W.2d at 945. Specifically, the defendant tore the marihuana cigarette in two
and threw the pieces into a ditch. Id. at 946. The trooper managed to recover a portion of the
cigarette, although part of its contents was lost. Id. The recovered portion of the cigarette was
used to convict the defendant of possession of marihuana. Id. The court held that the evidence
was insufficient to support the defendant‘s conviction of destroying the cigarette because the
evidentiary value of the cigarette was not so lost as to be considered destroyed. Id. In the
present case, Evanoff was convicted of concealing the baggies of cocaine with the purpose of
impairing their availability as evidence. The holding in Spector with respect to the destruction of
evidence is not, therefore, determinative. See Collier, 254 S.W.3d at 578. Moreover, the fact
that Deputy Hodges eventually found the baggies on the ground under the carport is not at odds
with the jury‘s finding that Evanoff intentionally or knowingly concealed the cocaine. See
Lewis, 56 S.W.3d at 625 (―The statute does not require that the evidence be made useless to the
investigation or proceeding by its concealment; rather, it requires that the defendant have acted
with the intent to impair its usefulness in the investigation or the proceeding.‖).
       Lastly, in Stewart, the defendant was a police officer convicted of tampering with
evidence after returning some marihuana that he had confiscated from a prospective confidential
informant. 240 S.W.3d at 873. The Court of Criminal Appeals held that the evidence presented
at trial was insufficient to show that, by returning the marihuana, the defendant intended to
impair its availability as evidence as required by Section 37.09. Id. at 873-74. Evanoff correctly
cites this case for the proposition that the State must prove that a defendant charged under

                                                  6
Section 37.09 acted with intent to impair some evidence‘s availability. Evanoff argues that the
evidence of such intent was lacking in his case as the cocaine was eventually found ―in the
carport of his house in plain view and left there for the officers to recover.‖ However, the fact
that Evanoff was ultimately unsuccessful in impairing the availability of the cocaine as evidence
does not negate his intent to do so, which a jury could find in his grabbing the cocaine from the
trunk of the car when faced with arrest. See Lewis, 56 S.W.3d at 625.
        Thus, viewing the evidence in the light most favorable to the verdict, a rational trier of
fact could have found that Evanoff intentionally and knowingly concealed the cocaine with the
intent to impair its availability as evidence when, after having revealed the cocaine to
Sergeant Baker and being then subject to arrest, he grabbed it from the trunk of the car and took
off, thereby removing the cocaine from Sergeant Baker‘s observation.            The evidence was
sufficient to support his conviction under Section 37.09(d)(1). Evanoff‘s first and second issues
are overruled.
                                     IV. Motion to Suppress
       In his third issue, Evanoff argues that the trial court abused its discretion by denying his
motion to suppress based on lack of reasonable suspicion. While he does not dispute the initial
basis for the traffic stop, Evanoff contends that, once Sergeant Baker determined that his
vehicle‘s headlamp was not working and that his driver‘s license had expired, reasonable
suspicion was required to detain him further.
       We review the trial court‘s denial of a motion to suppress for abuse of discretion. Oles v.
State, 993 S.W.2d 103, 106 (Tex. Crim. App. 1999). The trial court abuses its discretion when
its decision is so clearly wrong as to lie outside that zone within which reasonable persons might
disagree. Cantu v. State, 842 S.W.2d 667, 682 (Tex. Crim. App. 1992). Because the trial court
is the exclusive factfinder, we review evidence brought forward at the suppression hearing in the
light most favorable to the trial court‘s ruling. Carmouche v. State, 10 S.W.3d 323, 327 (Tex.
Crim. App. 2000). Where the trial court makes no explicit findings of historical fact, we view
the evidence in the light most favorable to the trial court‘s ruling and assume that the trial court
made implicit findings of fact. Carmouche, 10 S.W.3d at 328.
       Police officers may stop and detain a person if they have a reasonable suspicion that a
traffic violation is in progress or has been committed. Garcia v. State, 827 S.W.2d 937, 944
(Tex. Crim. App. 1992). A traffic stop is a detention and must be reasonable under the United

                                                 7
States and Texas Constitutions. See Davis v. State, 947 S.W.2d 240, 245 (Tex. Crim. App.
1997); Caraway v. State, 255 S.W.3d 302, 307 (Tex. App.—Eastland 2008, no pet.).            To be
reasonable, a traffic stop must be temporary and last no longer than necessary to effectuate the
purpose of the stop. Florida v. Royer, 460 U.S. 491, 500 (1983); Davis, 947 S.W.2d at 245.
Reasonableness is measured in objective terms by examining the totality of the circumstances.
Ohio v. Robinette, 519 U.S. 33, 39 (1996); Spight v. State, 76 S.W.3d 761, 765 (Tex. App.—
Houston [1st Dist.] 2002, no pet.). An investigative stop that is reasonable at its inception may
violate the Fourth Amendment because of excessive intensity or scope. Davis, 947 S.W.2d at
243 (citing Terry v. Ohio, 392 U.S. 1 (1968)).
        During a routine traffic stop, an officer may check for outstanding warrants and demand
identification, a valid driver‘s license, and proof of insurance from the driver. Kothe v. State,
152 S.W.3d 54, 63 (Tex. Crim. App. 2004); Caraway, 255 S.W.3d at 307. If, during that
investigation, an officer develops reasonable suspicion that another violation has occurred, the
scope of the initial investigation expands to include the new offense. Goudeau v. State, 209
S.W.3d 713, 719 (Tex. App.—Houston [14th Dist.] 2006, no pet.). When the reason for the stop
has been satisfied, the stop may not be used as a ―fishing expedition for unrelated criminal
activity.‖   Davis, 947 S.W.2d at 243 (quoting Robinette, 519 U.S. at 41 (Ginsburg J.,
concurring)). Once the officer concludes the investigation of the conduct that initiated the stop,
continued detention of a person is permitted only if there is reasonable suspicion to believe that
another offense has been or is being committed. Id. at 245.
        Reasonable suspicion must be founded on specific, articulable facts which, when
combined with rational inferences from those facts, would lead the officer to conclude that a
particular person actually is, has been, or soon will be engaged in criminal activity. Crain v.
State, 315 S.W.3d 43, 52 (Tex. Crim. App. 2010). While nervousness alone is not sufficient to
establish reasonable suspicion, it is a factor that may be considered. State v. Wilson, 295 S.W.3d
759, 762 (Tex. App.—Eastland 2009, no pet.). Whether the totality of the circumstances is
sufficient to support an officer‘s reasonable suspicion is a legal question that we review de novo.
Madden v. State, 242 S.W.3d 504, 511 (Tex. Crim. App. 2007).
        Sergeant Baker testified that he initiated the traffic stop because the driver‘s side
headlamp of Evanoff‘s vehicle was out. After verifying that the headlamp was out, Sergeant
Baker asked to see Evanoff‘s driver‘s license, and Evanoff told him that it had expired. Evanoff

                                                 8
does not challenge the propriety of Sergeant Baker‘s initial actions. He argues, however, that
when Sergeant Baker questioned him as to whether he was in possession of a controlled
substance, Sergeant Baker exceeded the scope of the initial investigation.
       The evidence shows that after Sergeant Baker asked to see Evanoff‘s driver‘s license, at
approximately a minute into the stop, he began to question Evanoff as to whether he was in
possession of a controlled substance. From that point until Evanoff took the cocaine out of his
pocket, Sergeant Baker‘s investigation focused on whether Evanoff was in possession of drug
paraphernalia or of a controlled substance. This new line of questioning exceeded the scope of
the initial traffic investigation, and reasonable suspicion that another violation had occurred was
required. See Davis, 947 S.W.2d at 243; Goudeau, 209 S.W.3d at 719.
       At the suppression hearing, Sergeant Baker testified that Evanoff‘s nervousness, his rapid
talking, and the passenger‘s decision to get out of the vehicle and walk around to join them, led
him to suspect that Evanoff might be under the influence of a controlled substance. Sergeant
Baker had known Evanoff prior to the stop. He testified that he had spoken with Evanoff on
other occasions and that Evanoff did not always talk rapidly. On those occasions when Evanoff
did talk rapidly, Sergeant Baker testified that he ―thought [that] he was under the influence of
something.‖
       The DVD taken of the stop was admitted at the suppression hearing. A trial court‘s
determination of historical facts based on a videotape recording is reviewed under a deferential
standard. Carter v. State, 309 S.W.3d 31, 40 (Tex. Crim. App. 2010). We have reviewed that
video ourselves. The video and testimony provided the trial court with sufficient information to
inform its exercise of discretion, and no error has been shown in the trial court‘s decision to deny
the motion to suppress. Evanoff‘s third issue is overruled.
                                V. Instructions on Voluntariness
       In his fourth issue, Evanoff argues that the trial court erred by failing to submit jury
instructions on the voluntariness of his statements to Sergeant Baker. Evanoff admits that he did
not request a jury instruction on voluntariness. Nevertheless, he contends that the trial court was
required to submit an instruction on the law applicable to the case under TEX. CODE CRIM. PROC.
ANN. art. 38.22, §§ 6, 7 (Vernon 2005 ). When the defendant does not present a proposed jury
instruction at trial, any potential error in the charge is reviewed only for egregious harm.
Oursbourn v. State, 259 S.W.3d 159, 174 (Tex. Crim. App. 2008).

                                                 9
       Article 38.22, Section 6, provides a general instruction that asks the jury to determine
whether a defendant‘s statement was made under voluntary conditions. Oursbourn, 259 S.W.3d
at 173. This section applies only ―where a question is raised as to the voluntariness of a
statement of an accused.‖ Article 38.22, § 6.       The Texas Court of Criminal Appeals has held
that a ―question is raised‖ when the trial court is notified by the parties or raises on its own an
issue about the voluntariness of a statement. Oursbourn, 259 S.W.3d at 175. Once a question is
raised, the trial court must hold a hearing outside of the presence of the jury to decide whether
the defendant‘s statement was voluntary. Id. at 175. The trial court must make written findings
of fact and conclusions of law in support of its ruling. Id. at 175 n.55. If the trial court finds that
the statement was voluntary, it will be admitted, and the defendant may offer evidence before the
jury that the statement was not, in fact, voluntary. Id. at 175. If the defendant does so, the trial
court must give the jury a voluntariness instruction. Id.
       Evanoff does not point to any place in the record where a question was raised as to the
voluntariness of his statements. The trial court did not hold a hearing on the voluntariness of his
statements, and nothing in the record shows that Evanoff ever requested a hearing. Evanoff‘s
motion to suppress makes no mention of Article 38.22. The trial court did hold a hearing on
Evanoff‘s motion to suppress, but it does not appear that the parties litigated whether Evanoff‘s
statements were voluntary under Section 6. The record contains no written findings of fact or
conclusions of law in support of any ruling on voluntariness, as would be required by the statute.
See Oursbourn, 259 S.W.3d at 175 n.55 (―The need for written findings [of fact] should alert the
parties and trial judge to the need for a general voluntariness jury instruction.‖). Finally, no
evidence was presented to the jury that Evanoff‘s statements were not voluntary.
       An appeals court may not overturn a trial court‘s decision on a legal theory not presented
to the trial court. Vasquez v. State, 225 S.W.3d 541, 543 (Tex. Crim. App. 2007). Because there
is no indication that the parties ever raised a question as to the voluntariness of Evanoff‘s
statements or actually litigated those statements, we cannot say that the trial court erred by
failing to submit an instruction to the jury under Section 6.
       Article 38.22, section 7, provides for a jury instruction to determine if the defendant was
adequately warned of his rights and knowingly and intelligently waived those rights in cases
where the defendant made a statement as a result of a custodial interrogation. For the purposes
of this section, four general situations may constitute custody: (1) the suspect is physically

                                                  10
deprived of his freedom of action in any significant way; (2) law enforcement officers tell the
suspect he is not free to leave; (3) law enforcement officers create a situation that would lead a
reasonable person to believe that his freedom of movement has been significantly restricted; and
(4) there is probable cause to arrest the suspect, and law enforcement officers do not tell the
suspect he is free to leave. Gardner v. State, 306 S.W.3d 274, 294 (Tex. Crim. App. 2009). To
determine whether a suspect is in custody, the question is whether, under the facts and
circumstances of the case, a reasonable person would have felt that he or she was not at liberty to
terminate the interrogation and leave. Nguyen v. State, 292 S.W.3d 671, 678 (Tex. Crim. App.
2009). An instruction is required when there is a genuine factual dispute regarding: (1) law
enforcement‘s compliance with the statutory warnings under TEX. CODE CRIM. PROC. ANN.
art. 15.17 (Vernon Supp. 2010) and Article 38.22 and (2) the voluntariness of the defendant‘s
waiver of his rights. Oursbourn, 259 S.W.3d at 176.         To demonstrate that a genuine factual
dispute exists, ―[t]he defendant must offer evidence that, if credited, would create a reasonable
doubt as to a specific factual matter essential to the voluntariness of the statement.‖ See id. at
176-77. If there is no disputed factual issue, the legality of the conduct is determined by the trial
court alone as a question of law. See id. 176-78. The procedures for obtaining a jury instruction
under Article 38.22, section 7 are the same as those under Section 6, including the requirements
of a hearing outside of the presence of the jury and the entry of written findings. Id. at 176.
           Evanoff‘s motion to suppress did not raise the issue of compliance with Miranda5 or the
statutory warnings under Article 38.22, but the parties addressed the issue of compliance with
Miranda at the hearing on the motion to suppress, although they made no mention of Article
38.22. Sergeant Baker testified at the suppression hearing that, after subduing Evanoff, he asked
him where the cocaine was before notifying him of his Miranda rights. Evanoff argued that the
trial court should suppress ―the statements, specifically the statement of ‗where is the dope.‘ He
said he swallowed it. I think that‘s most certainly an interrogating questioning that was asked
when he was lying on his stomach in handcuffs, and they could have Mirandized him before
that.‖
           Assuming that the issue was adequately brought to the attention of the trial court, the
evidence before the jury did not present a genuine factual dispute as required to obtain an
instruction. During the State‘s direct examination, Sergeant Baker stated that the police provided

5
    Miranda v. Arizona, 384 U.S. 436 (1966).

                                                 11
Evanoff with Miranda warnings after they brought him to the police cruiser. The DVD of the
stop was played for the jury. Approximately sixteen minutes into the DVD, the police provided
Evanoff with Miranda warnings after they brought him to the police cruiser. Thus, the parties
generally agreed on when Miranda warnings were provided. The evidence presented to the jury
did not provide a genuine factual dispute on this issue, and the legality of the conduct was to be
determined by the trial court alone as a matter of law. See Oursbourn, 259 S.W.3d at 176-78
(providing in the context of an instruction under TEX. CODE CRIM. PROC. ANN. art. 38.23
(Vernon 2005) that ―if there is no disputed factual issue–if there is a video definitively showing
that the officer did or did not hold a gun to the defendant‘s head–the legality of the conduct is
determined by the trial judge alone, as a question of law. The legal question would never go to
the jury.‖).
        Accordingly, the trial court did not err by failing to provide a jury instruction under
Article 38.22, section 7. Evanoff‘s fourth issue is overruled.
                                          VI. Allocution
        In his fifth issue, Evanoff contends that the trial court erred by failing to pronounce
sentence against him and by failing to grant him the right of allocution before pronouncing
sentence.
        Sentence shall be pronounced in the defendant‘s presence. TEX. CODE CRIM. PROC. ANN.
art. 42.03 (Vernon Supp. 2010). The sentence is that part of the judgment that orders punishment
be carried into execution in the manner prescribed by law. TEX. CODE CRIM. PROC. ANN. art.
42.02 (Vernon 2006). Before pronouncing sentence, the trial court shall ask the defendant
whether he can provide any reason why sentence should not be pronounced against him. TEX.
CODE CRIM. PROC. ANN. art. 42.07 (Vernon 2006). The only reasons which, if proven, would
prevent the trial court from pronouncing sentence are (1) that the defendant has received a
pardon from the proper authority, (2) that the defendant is incompetent to stand trial, and (3) that
the defendant is not the person who was convicted. Id.
        At the end of the punishment hearing, the trial court proceeded as follows:
                THE COURT: Okay. For purposes of the record, in 31,959 and 31,960,
        the Court finds the enhancement paragraphs to have been proven, and hereby
        finds those to have been true.




                                                12
                Cause No. F31,960, the Court will impose a sentence of 20 years
        confinement in the Institutional Division of the Texas Department of Criminal
        Justice, assess a fine of $10,000 and all costs of court.

                Cause No. F31,959, the Court is going to impose a punishment of 60 years
        confinement in the Institutional Division of the Texas Department of Criminal
        Justice, fine of $10,000 and all costs of court.

                Mr. Evanoff, you are hereby remanded to the custody of the Sheriff of
        Stephens County, Texas, until he can obey and carry out the directions and
        instructions of this sentence. You will receive credit for time periods of detention
        as provided by law.

        Evanoff argues that the trial court erred by not pronouncing sentence. He alleges that the
trial court merely stated that it would ―impose a sentence‖ in one case and ―impose a
punishment‖ in the other. Evanoff made no objection regarding this issue at trial, nor has he
demonstrated how he was harmed by any error. Moreover, the trial court did in fact pronounce
sentence. Within Evanoff‘s presence, the trial court announced the punishments assessed in each
of the two cases and ordered Evanoff remanded to the custody of the Sheriff of Stephens County
until the punishments could be executed. See Casias v. State, 503 S.W.2d 262, 264 (Tex. Crim.
App. 1973) (―There appears no fixed or inflexible form to be used for the sentencing. The one
mandatory provision is that it ‗shall be pronounced in the presence of the defendant.‘‖).
        Second, Evanoff contends that the trial court erred by failing to grant him the right of
allocution before pronouncing sentence. Again, Evanoff did not object to the trial court‘s
omissions. Nor has he ever alleged the existence of any of the statutory reasons set out in Article
42.07 that would have prevented sentence from being pronounced. Thus, no error has been
preserved for review. Tenon v. State, 563 S.W.2d 622, 623 (Tex. Crim. App. 1978); Eisen v.
State, 40 S.W.3d 628, 637 (Tex. App.—Waco 2001, pet. ref‘d).              Evanoff‘s fifth issue is
overruled.
                               VII. Ineffective Assistance of Counsel
        In Issues Six, Seven, and Eight, Evanoff argues that he was denied effective assistance of
counsel when trial counsel failed to object to evidence that violated his right to confrontation,
failed to request an instruction on the voluntariness of his statements to police, and failed to
object to the denial of his right of allocution.



                                                   13
          The standard for ineffective assistance of counsel is the same under the Texas and United
States Constitutions. Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex. Crim. App. 1986). A
court must first determine whether Evanoff has shown that counsel‘s representation fell below an
objective standard of reasonableness and, if so, determine whether there is a reasonable
probability that the result would have been different but for counsel‘s errors. Strickland v.
Washington, 466 U.S. 668, 687 (1984); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App.
1999). The appellant has the burden of proving by a preponderance of the evidence that counsel
was ineffective. Thompson, 9 S.W.3d at 813. In considering whether counsel‘s representation
fell below an objective standard of reasonableness, a court must indulge in a strong presumption
that counsel‘s actions fell within the range of reasonable professional assistance. Id.
          A. Right to Confrontation.
          In Issue Six, Evanoff argues that trial counsel provided ineffective assistance by failing to
object to evidence that violated his right to confrontation. Evanoff argues that he should have
had the opportunity to confront Ron Wagman, the case contact person from the DPS Crime
Laboratory in Abilene who signed the Laboratory Submission Form for the evidence seized from
Evanoff, because Wagman was involved in the chain of custody. To show ineffective assistance
of counsel for failure to object during trial, Evanoff must show that the trial court would have
committed error by overruling the objection. Vaughn v. State, 931 S.W.2d 564, 566 (Tex. Crim.
App. 1996).
          The Sixth Amendment to the United States Constitution guarantees the right of an
accused in a criminal prosecution to confront the witnesses against him. Lopez v. State, 18
S.W.3d 220, 222 (Tex. Crim. App. 2000). A primary interest secured by the Confrontation
Clause is the right of cross-examination.         Id.   The Confrontation Clause bars out-of-court
testimonial statements by a witness unless the witness is unavailable to testify and the defendant
had a prior opportunity to cross-examine the witness. Crawford v. Washington, 541 U.S. 36, 38
(2004).
          While the United States Supreme Court has yet to define the outer boundaries of what
constitutes a testimonial out-of-court statement, it has identified three kinds of statements that
can be regarded as testimonial: (1) ex parte in-court testimony or its functional equivalent that
declarants would reasonably expect to be used prosecutorially; (2) statements contained in
formalized testimonial materials such as affidavits, depositions, prior testimony, or confessions;

                                                   14
and (3) statements that were made under circumstances that would lead an objective witness
reasonably to believe that the statement would be available for use at a later trial. Langham v.
State, 305 S.W.3d 568, 576 (Tex. Crim. App. 2010). Whether a particular out-of-court statement
is testimonial is a question of law. De La Paz v. State, 273 S.W.3d 671, 680 (Tex. Crim. App.
2008).
         Evanoff cites two recent cases as extending the right to confrontation to documents such
as the Laboratory Submission Form at issue here. In Melendez-Diaz v. Massachusetts, 129 S.Ct.
2527, 2532 (2009), the United States Supreme Court held that certificates of analysis attesting
that a substance was cocaine were testimonial statements subject to the Confrontation Clause.
The defendant was charged with distributing and trafficking cocaine.         Id. at 2530. Under
Massachusetts law, certificates of analysis were ―prima facie evidence of the composition,
quality, and net weight‖ of the substance. Id. at 2532 (quoting Mass. Gen. Laws, ch. 111, § 3).
The Court held that these certificates were, in fact, affidavits made under circumstances that
would lead an objective witness reasonably to believe that the statement would be available for
use at a later trial. Id. The Court, however, was quick to emphasize that ―it is not the case, that
anyone whose testimony may be relevant in establishing the chain of custody, authenticity of the
sample, or accuracy of the testing device must appear in person as part of the prosecution‘s
case.‖ Id. at 2532 n.1. Instead, ―gaps in the chain [of custody] normally go to the weight of the
evidence rather than its admissibility.‖ Id. (quoting United States v. Lott, 854 F.2d 244, 250 (7th
Cir. 1988)).
         In Cuadros-Fernandez v. State, 316 S.W.3d 645, 648 (Tex. App.—Dallas 2009, no pet.),
the defendant was charged with the capital murder of a child under the age of six. DNA was
swabbed from a cabinet door believed to have been involved in the murder. 316 S.W.3d at 652.
The swab showed DNA from a major contributor matched the defendant‘s DNA profile. Id. The
DNA report was admitted into evidence without the analyst who prepared the report having
testified. Id. at 654. The Dallas Court of Appeals held that, because the analyst prepared the
report with knowledge that it would be available for use at the defendant‘s trial and because the
State used the report as a substitute for the analyst‘s testimony concerning the DNA testing, the
report‘s admission violated the Confrontation Clause. Id. at 657-58.
         As Evanoff admits, the Laboratory Submission Form at issue in this case merely went to
establishing chain of custody. Breckenridge Chief of Police Larry Mahan testified that the form

                                                15
―tells the DPS what we want done with this‖ and that the form ―is required to get this into the
door at the lab.‖ The Laboratory Submission Form does not reveal the composition of the
substance seized. It does not appear to make any statement that an objective witness reasonably
would believe would be available for use at a later trial, except other than possibly for
permissible chain of custody purposes. See Langham, 305 S.W.3d at 576. Thus, Evanoff has
failed to prove that the trial court would have committed error on the basis of the Confrontation
Clause by overruling an objection to the admission of the form without Wagman‘s testimony.
Evanoff‘s sixth issue is, therefore, overruled.
       B. Instruction on the Voluntariness of Statements.
       In his seventh issue, Evanoff argues that trial counsel was ineffective for failing to
request an instruction regarding the voluntariness of Evanoff‘s statements to Sergeant Baker. As
discussed above, Evanoff was not entitled to a jury instruction under either Section 6 or 7 of
Article 38.22. Trial counsel‘s failure to request an instruction to which Evanoff was not entitled
is not ineffective assistance. Evanoff‘s seventh issue is overruled.
       C. Right of Allocution.
       In his eighth issue, Evanoff contends that trial counsel provided ineffective assistance by
failing to object to the denial of his statutory right of allocution. As explained above, the trial
court must ask the defendant if there is any reason why it should not pronounce sentence. There
are only three reasons why sentence should not be pronounced: (1) that the defendant has
received a pardon from the proper authority; (2) that the defendant is incompetent to stand trial;
and (3) that the defendant is not the person who was convicted. Article 42.07.
       If Evanoff‘s trial counsel had objected to the trial court‘s failure to grant Evanoff his right
of allocution and if the trial court had sustained that objection, the trial court would have asked
Evanoff if he had any reason why sentence should not be pronounced. As there are only three
such reasons, and Evanoff has never shown that any of them are applicable to his case, the trial
court would have proceeded to pronounce sentence.
       However, Evanoff argues that trial counsel‘s failure to object harmed him because his
failure might cause this court to hold that the issue has been waived. Even if trial counsel had
objected, the trial court had overruled the objection, and this court was to sustain error and find
harm, the remedy would be to reverse and remand the case for allocution and pronouncement of
sentence. See Tenon, 563 S.W.2d at 624. Because Evanoff cannot show that any reason exists

                                                  16
why sentence should not be imposed, if we remanded the trial court would still simply proceed to
pronounce his sentence. See id. (―Surely appellant would not have this court reverse this cause
and order a new sentencing so that when the court asks her if she has anything to say why
sentence should not be pronounced against her she can then answer ‗Nothing.‘‖).
       Evanoff, therefore, has not shown that there is a reasonable probability that the result
would have been different but for his trial counsel‘s failure to object to the denial of his statutory
right of allocution. Evanoff‘s eighth issue is overruled.
                                         VIII. Conclusion
       The judgment of the trial court is affirmed.




                                                      RICK STRANGE
                                                      JUSTICE


April 14, 2011
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Strnge, J.




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