                                 NUMBER 13-12-00296-CR

                                 COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                       CORPUS CHRISTI – EDINBURG

JASON ALLEN BOLTE,                                                                      Appellant,


                                                   v.

THE STATE OF TEXAS,                                                                       Appellee.


                     On appeal from the Criminal District Court
                               of Jefferson County, Texas.


                            MEMORANDUM OPINION1
   Before Chief Justice Valdez and Justices Rodriguez and Longoria
            Memorandum Opinion by Chief Justice Valdez
        A jury convicted appellant, Jason Allen Bolte, of aggravated sexual assault of a

child, a first-degree felony. See TEX. PENAL CODE ANN. § 22.021(a)(2)(B) (West Supp.
        1
          This case is before this Court on transfer from the Ninth Court of Appeals in Beaumont pursuant
to an order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN. § 73.001 (West 2005).
2011). Bolte received a sentence of twenty years’ confinement. By two issues, Bolte

contends that: “the trial court abused its discretion by failing to instruct the jury that

before they could consider any extraneous offenses or bad acts in assessing

punishment, the jurors had to determine that said extraneous offenses were proved

beyond a reasonable doubt”2; and in the alternative, “defense counsel did not render

effective assistance of counsel, in violation of [Bolte’s] rights under the U.S.

Constitution, by expressly waiving instruction on the extraneous offense concerning [his

child, C.B.3] raised by the prosecutor, and then emphasizing that issue in closing

argument, without further requests for [i]nstructions which would limit the jury’s ability to

consider said extraneous offense or bad act evidence except for limited purpose.” We

affirm.

                                           I.      BACKGROUND

          After hearing evidence, the jury found Bolte guilty of committing the offense of

aggravated sexual assault of his child, C.B.B. See id. At the punishment phase of the

trial, Bolte presented character evidence from his mother, Marcia Cravens. On cross-

examination by the State, the State asked Cravens a series of questions regarding

Bolte’s other child, C.B. The following exchange occurred:

          [The State:] Back in June of 2010, do you know who [C.B.] was staying
                       with?



          2
          We note that the Texas Court of Criminal Appeals has held that failure of the trial court to sua
sponte instruct the jury that they must believe the extraneous offense occurred beyond a reasonable
doubt is jury charge error, and this Court applies the Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App.
1985)(op. on reh'g), standard. Huizar v. State, 12 S.W.3d 479, 484–85 (Tex. Crim. App. 2000).
          3
          C.B. is not a victim in this case, and C.B. did not testify at trial. The alleged victim in this case
was Bote’s other child, C.B.B. C.B.B. testified at the guilt/innocence portion of the trial; she did not testify
at the punishment phase of trial.


                                                       2
[Cravens:]   She would have been staying with [Bolte]. Although, [C.B.], I
             believe, went to visit her biological mother.

[The State:] Do you have any idea on how she [C.B.] would have had
             healed trauma to her vaginal area?

[Cravens:]   I would have no idea—

      [Defense Counsel:] Your Honor, I’m going to object to the
                         prosecutor bringing up any type of
                         injuries that have not been testified to
                         that he knows for a fact that allegations
                         of any kind of abuse have been denied
                         by any child in this involved in that and
                         it’s improper impeachment when he
                         knows the outcome of the offense
                         report.

      [The State:]        It’s actually in response to his direct
                          testimony saying he’s been good to
                          [C.B.] and all these things, and these
                          injuries occurred while under the care of
                          him. It is proper questions.

      [Defense Counsel:] That has not been found to be true.
                         Your Honor. The child in that case—
                         and he knows has denied it and the
                         child is not here to testify to it and we
                         would object to this.

      [The State:]        I disagree with the fact about him saying
                          it’s not true.

      [Trial Court:]      Hold on. The objection is overruled.
                          You’re on cross-examination. You may
                          go forward.

[The State:] Do you know anything on how [C.B.] would have had healed
             trauma to her vaginal area?

[Cravens:]   I have no idea because there was never any indication of
             anything like that when she lived with us, and I don’t know of
             it ever having been an issue. I can tell you that I, myself,
             sustained trauma when I fell on monkey bars at school, that I
             sustained trauma to my vaginal area; and as a nurse in the
             emergency room, I have cared for children that have come in

                                     3
                        with trauma from accidents involving bikes and playground
                        equipment. [C.B.] never once the whole time that she lived
                        with me ever gave me any indication that I should be
                        concerned about anything endured between her father
                        [Bolte] and her, no, never.

        [The State:] Okay. And my question was:        Did you have any idea on
                     how she would have sustained that, you know, that trauma
                     to her vaginal area? And you went on to explain at length
                     about, you know, your hospital visitation people and that you
                     had sustained to monkey bars [sic]. But in the end, you
                     really don’t know how that trauma occurred, do you?

        [Cravens:]      No, I don’t.

        [The State:] All right.

                                         II.     DISCUSSION

        By his first issue, Bolte argues that evidence of extraneous bad acts were

admitted at the punishment phase of trial; therefore, the trial court was required to

include a jury instruction stating that the jury could not consider the extraneous bad act

unless the State provided proof beyond a reasonable doubt that it occurred. See Huizar

v. State, 12 S.W.3d 479, 483–84 (Tex. Crim. App. 2000) (op. on reh’g) (explaining that if

a trial court admits evidence of a prior bad act at the punishment phase of trial, the

court, without request or objection, must give a reasonable doubt instruction in its

charge). Based on this assertion, by his second issue, Bolte claims that his trial counsel

rendered ineffective assistance by stating that no reasonable doubt instruction on

extraneous offenses would be necessary.4




        4
          During the hearing for the punishment phase jury charge, Bolte’s trial counsel asked for the
reasonable doubt instruction. However, after apparently reconsidering this request, Bolte’s trial counsel
told the trial court that the instruction was not required and stated that he had no objections to the
punishment jury charge.


                                                   4
      Bolte’s appellate issues are centered on the State’s questions regarding his child,

C.B. We can find no error in the trial court’s alleged failure to sua sponte provide a

reasonable doubt instruction regarding extraneous offenses in the jury charge. This is

so, because questions asked by trial counsel are not evidence. See Madden v. State,

242 S.W.3d 504, 509–10 (Tex. Crim. App. 2007) (recognizing that the questions posed

by the attorney are not evidence) (citing Wells v. State, 730 S.W.2d 782, 786 (Tex.

App.—Dallas 1987, pet. ref’d) (noting that “remarks by counsel are not evidence” and

“[q]uestions put to a witness are not evidence. The answers and not the questions are

determinative”)); Johnston v. State, 230 S.W.3d 450, 456 n.6 (Tex. App.—Fort Worth

2007, no pet.) (refusing to consider as evidence for legal sufficiency review question by

attorney because the question itself was not evidence); Sendejo v. State, 841 S.W.2d

856, 859 (Tex. App.—Corpus Christi 1992, no pet.) (stating that questions are not

evidence). The mere fact that the State prosecutor asked the complained-of questions

does not, in itself, inject any evidence into the record from which the jury could have

drawn an inference of guilt.    See Madden, 242 S.W.3d at 509–10; Johnston, 230

S.W.3d at 456; Sendejo, 841 S.W.2d at 859. Answers from the witness constitute

evidence. Madden, 242 S.W.3d at 509–10. Here, the State failed to elicit testimony

from Craven that C.B. had sustained trauma to her vaginal area. In fact, Craven denied

any knowledge of any such trauma to C.B. Therefore, the State’s questions did not

produce any potentially damaging testimony.         Moreover, even assuming without

deciding that Craven implicitly agreed that C.B. had suffered vaginal trauma, there was

no evidence presented or testimony elicited that Bolte caused the trauma or of how C.B.




                                           5
may have sustained the alleged trauma.5 See Lockhart v. State, 847 S.W.2d 568, 573

(Tex. Crim. App. 1992) (explaining that to constitute an extraneous offense, the

evidence must necessarily show a crime or bad act and that the defendant was

connected to it); James v. State, 89 S.W.3d 86, 89 (Tex. App.—Corpus Christi 2002) (“If

the complained of evidence does not demonstrate the defendant was in some way

connected to an offense, an extraneous offense is not established.”) (citing Harris v.

State, 738 S.W.2d 207, 224 (Tex. Crim. App. 1986)); Conner v. State, 891 S.W.2d 668,

671 (Tex. App.—Houston [1st Dist.] 1994, no pet.) (“If the evidence does not show that

an offense was committed or that the accused was connected to the offense, then

evidence of an extraneous offense is not established.”). Because we have found no

error in the jury charge, we overrule Bolte’s first issue.6

       By his second issue, Bolte contends that his trial counsel rendered ineffective

assistance of counsel by not requesting the jury charge instruction regarding extraneous

offense evidence. However, as stated above, the questions asked by the State are not

evidence and no evidence of an extraneous offense committed by Bolte was admitted at

the punishment phase of trial. Moreover, the jury was instructed not to consider the

attorney’s questions as evidence.             In addition, no testimony was elicited from the

witness that C.B. sustained trauma to her vaginal area caused by Bolte. Accordingly,

Bolte has failed to sustain his burden of showing that trial counsel performed deficiently

by not requesting the complained-of jury instruction. See Lopez v. State, 343 S.W.3d

137, 142 (Tex. Crim. App. 2011) (“To prevail on a claim of ineffective assistance of
       5
           Craven testified that there are numerous non-criminal causes of vaginal trauma.
       6
          Only if error exists, we must then evaluate the harm caused by the error. Ngo v. State, 175
S.W.3d 738, 743 (Tex. Crim. App. 2005). There is no error in the jury charge in this case; therefore, we
need not determine harm. See id.


                                                     6
counsel, an appellant must meet the two-pronged test established by the U.S. Supreme

Court in Strickland, and adopted by Texas two years later in Hernandez. Appellant

must show that (1) counsel’s representation fell below an objective standard of

reasonableness, and (2) the deficient performance prejudiced the defense.       Unless

appellant can prove both prongs, an appellate court must not find counsel’s

representation to be ineffective.”) (internal citations omitted).   We overrule Bolte’s

second issue.

                                  III.   CONCLUSION

      We affirm the trial court’s judgment.

                                                  ________________________
                                                  ROGELIO VALDEZ
                                                  Chief Justice

Do not publish.
TEX. R. APP. P. 47.2(b)
Delivered and filed the
14th day of February, 2013.




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