                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                            NO. 02-16-00036-CR
                            NO. 02-16-00037-CR


HEATH LINK HARVEY                                              APPELLANT

                                     V.

THE STATE OF TEXAS                                                   STATE


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         FROM THE 297TH DISTRICT COURT OF TARRANT COUNTY
                TRIAL COURT NOS. 1346644D, 1346645D

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                       MEMORANDUM OPINION1

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                              I. INTRODUCTION

     Appellant Heath Link Harvey entered open guilty pleas to aggravated

robbery and unlawful possession of a firearm. See Tex. Penal Code Ann. §§

29.03(a)(2), 46.04(a)(2) (West 2011). The trial court accepted Harvey’s open

pleas and sentenced him to fifteen years’ confinement for aggravated robbery

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      See Tex. R. App. P. 47.4.
and ten years’ confinement for unlawful possession of a firearm, to run

concurrently. In one issue, Harvey argues that the trial court erred during the

punishment phase by considering as evidence questions asked by the State on

cross-examination and thereby deprived him of his due process and

confrontation rights.   Because error is not reflected in the record before us

concerning Harvey’s issue, we will affirm.

                   II. FACTUAL AND PROCEDURAL BACKGROUND

      On October 15, 2013, Harvey and Garrett Tubb went to a game room in

Fort Worth. They spoke with John Zimmerman, an employee of the game room,

about performing potential construction work at the game room, and they looked

around the premises ostensibly because of their interest in the construction work.

Harvey then went outside to his truck, came back inside, and asked to use the

restroom. Before heading to the restroom, Harvey asked Tubb, “Can we do

this?” Tubb answered, “Yes,” and Harvey entered the restroom. Harvey came

out of the restroom holding a pistol, and Harvey and Tubb rushed at Zimmerman,

picking him up and slamming him into a vending machine.

      Harvey then dragged Zimmerman into a hallway and started searching

him. Harvey and Tubb also searched for the money kept by the game room, and

they eventually found it in a lockbox. Zimmerman managed to escape the game

room, hiding behind the brick wall of a neighboring business. When Harvey and

Tubb emerged from the game room, Harvey fired several errant gunshots at




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Zimmerman. Harvey and Tubb left the game room, having taken the lockbox of

money, in addition to Zimmerman’s keys, medicine, wallet, and gun.

      Harvey was charged with aggravated robbery and unlawful possession of

a firearm, and he entered open guilty pleas to both charges. At his sentencing

hearing, no witness testified as to Harvey’s motive for the robbery.         After

Harvey’s sister testified that his actions at the game room were inconsistent with

his normal behavior and with his character, the State asked her several

questions on cross-examination regarding her knowledge of Harvey’s motive for

the robbery.   The State’s cross-examination of Harvey’s sister included the

following exchange:

      [State]: Are you aware that, in fact, he told the police that he
      planned this robbery?

      [Witness]: That he what?

      [State]: That he planned this robbery?

      [Witness]: I don’t know.

      [State]: Okay. Are you aware that he told the police that the gun --

      [Defense Counsel]: Your Honor, I object.

      [State]: -- he used --

      [Defense Counsel]: I --

      [The Court]: Hang on. There is an objection. What’s your legal
      objection?

      [Defense Counsel]: My legal objection is the State is asking these
      fact-loaded questions without a good faith basis to believe this
      witness knows the answer. There are -- they are trying to relay


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evidence to the Court through their questions when they know that
this witness does not have personal knowledge.

[The Court]: So what -- so what’s your legal objection?

[Defense]: My legal objection is that this witness does not have
personal knowledge.

[The Court]: I don’t know whether she does or she doesn’t. So she
can answer the question. If she doesn’t know, then she doesn’t
know.

[Defense]: And I also object that the State doesn’t have any good
faith basis to believe this witness knows the answers and required to
have at least some --

[The Court]: Ha[s] [the State] had a chance to talk to this witness
before?

[State]: Have I? No, Your Honor.

[The Court]: I’ll give her a little leeway on it.

[State]: Your Honor, in response, I do want to say something. The
defense attorney specifically asked her if he thought -- if she thought
he was capable of these things, and I’m allowed to explore that, and
so that’s what I’m doing.

[The Court]: I’ve already ruled. Go ahead and ask it.

[State]: Thank you. So are you aware that he told the police that he
himself planned this?

[Witness]: I’m not aware.

[State]: Are you aware that he told the police that he used a gun
that he stole in a prior robbery?

[Defense]: Your Honor, I renew my objection. She knows that she
wasn’t present when the police interviewed my client, and there’s
nothing to make the State believe that she knows anything from the
interview with the police.



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      [The Court]: I’ve already ruled. She can ask it, but let’s don’t make
      it -- this prolong too much.

      [State]: Sure, Your Honor.

      [The Court]: If she doesn’t know anything, she doesn’t know it.

      [State]: Are you aware that your brother told the police the reason
      he did this robbery was because he had to pay Garrett Tubb back
      for the bond that Garrett Tubb made for him in an entirely different
      crime in Alvarado?

      [Witness]: No, I’m not.

      In announcing its sentence, the trial court briefly referenced the motive

suggested in the State’s questioning of Harvey’s sister—that Harvey participated

in the robbery to pay Tubb back for bond money that Tubb had paid on Harvey’s

behalf—even though no evidence existed that repayment of bond money was

Harvey’s motive. Specifically, the trial court stated,

      THE COURT: All right. Court having considered all the evidence in
      this case, I have a couple of comments first, going against the
      advice of what they taught me in new judge’s school.

             Mr. Harvey, you did have chance after chance after chance --
      please rise. You did have chance after chance after chance to turn
      your life around, and you haven’t done really anything to do that.
      This is an aggravated robbery, and as they say, you know, when you
      commit an agg robbery, you are a trigger pull away from committing
      a capital murder. Apparently you tried to shoot at this guy over here.
      I don’t know why you did what you did. There is some allegation that
      you had to pay the codefendant back for a bond he made. That’s
      about the sorriest reason for an agg robbery that I’ve ever seen, not
      that there is ever any good one, but the thing that is most egregious
      to me in this case is that you have a good family around you. They
      care about you, they love you, and you just kind of have squandered
      that, hanging out with the codefendant. I don’t know whether he is
      hanging out with you or you’re hanging out with him. But you have a
      good family, and you have a daughter that loves you and cares


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      about you. Not only that, she is -- she is a physically challenged
      person, and you chose to go after this guy here who is also
      physically challenged. That’s the thing that is most egregious to me.

             So if you try this case to a jury, they are going to disappear
      you. They are going to give you about 35 to 45 years. I’m not going
      to do that today, because you do have some talent. So here is what
      I’m going to do.

             In the case of 1346645D, upon your plea of guilty to the
      offense of unlawful possession of a firearm by a felon, I find you
      guilty and set your sentence at 10 years in the institutional division.

             In Cause Number 1346644D styled The State of Texas versus
      Heath Link Harvey for the offense of aggravated robbery, upon your
      plea of guilty, I’ll find you guilty and set your sentence at 15 years in
      the Institutional Division.

              This is an open plea. You have a right to appeal this judgment.
      I’ll ask your lawyer to stay on long enough to advise you of your
      appellate rights.

                   III. ERROR IS NOT REFLECTED IN THE RECORD

      In his sole issue, Harvey argues that “[t]he Judge’s consideration of the

State’s questions as evidence deprived Mr. Harvey of his constitutional due

course of law (due process) and confrontation rights.” Harvey complains that the

State introduced and the trial court considered unsworn, uncross-examined

evidence through its cross-examination of his sister.

                 A. The State’s Questions Are Not Evidence

      The law is well settled that questions asked by trial counsel are not

evidence. See e.g., Madden v. State, 242 S.W.3d 504, 509–10 (Tex. Crim. App.

2007) (recognizing questions posed by attorney are not evidence); Johnston v.

State, 230 S.W.3d 450, 456 n.6 (Tex. App.—Fort Worth 2007, no pet.) (refusing


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attorney’s question as evidence in sufficiency review because question was not

evidence); Wiggins v. State, 778 S.W.2d 877, 890 (Tex. App.—Dallas 1989, pet.

ref’d) (“[A]nswers, not questions, constitute evidence.”); Wells v. State, 730

S.W.2d 782, 786 (Tex. App.—Dallas 1987, pet. ref’d) (“Questions put to a

witness are not evidence.”). Thus, the mere fact that the prosecutor here asked

objected-to questions does not, in itself, inject any evidence into the record. See

Madden, 242 S.W.3d at 509–10; Johnston, 230 S.W.3d at 456 n.6; Wiggins, 778

S.W.2d at 890; Wells, 730 S.W.2d at 786. It is the answers that inject evidence,

and because the answers elicited here were of the “I don’t know” and “I’m not

aware” variety, no complained-of evidence was admitted.        See Madden, 242

S.W.3d at 509–10; Johnston, 230 S.W.3d at 456 n.6; Wiggins, 778 S.W.2d at

890; Wells, 730 S.W.2d at 786.

  B. The Trial Court Did Not Consider the State’s Questions as Evidence

      The trial court’s comments on the record before imposing sentence on

Harvey indicate that it did not consider the State’s questions as evidence. The

italicized portion of the trial court’s comments (which is the portion Harvey

complains of on appeal) indicates that the trial court specifically stated that it

didn’t know why Harvey did what he did. The trial court recognized there was “an

allegation,” not evidence, that the reason for Harvey’s conduct was to pay a

codefendant back for a bond, which the trial court opined was a sorry reason.

But the trial court further stated that no reason would be a good reason for

Harvey’s conduct. And further, the trial court discounted the importance of this


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“allegation,” instead focusing on the fact that Harvey victimized a physically

challenged man when Harvey’s own daughter is physically challenged and the

fact that Harvey had a family who loved him. The trial court stated, “the thing that

is most egregious to me in this case is that you have a good family around you,”

including a physically challenged daughter, and yet chose to “go after this guy

here who is also physically challenged.” Thus, the record shows that the trial

court characterized the State’s questions to Harvey’s sister as an “allegation” and

not that the trial court treated this allegation as evidence, especially in light of the

entirety of the trial court’s on-the-record comments to Harvey.

    C. No Due Process, Confrontation, or Substantial Rights Violations

      Because the State’s questions are not evidence, because the questions

did not elicit any substantive answers, and because the trial court at most treated

the questions posed to Harvey’s sister by the State as an “allegation,” no due

process or Confrontation Clause violation occurred.                See Crawford v.

Washington, 541 U.S. 36, 56, 124 S. Ct. 1354, 1367 (2004) (holding

confrontation rights attach only to prior testimonial statements); Hill v. State, No.

05-14-01445-CR, 2016 WL 1554932, at *7–8 (Tex. App.––Dallas Apr. 14, 2016,

no pet.) (mem. op., not designated for publication) (holding no due process

violation where trial judge, on-the-record, spoke aloud her mental processes by

clarifying evidence relevant to her sentencing decision); Youngblood v. State, No.

05-93-01876-CR, 1996 WL 732414, at *1 (Tex. App.––Dallas Dec. 20, 1996, no

pet.) (not designated for publication) (holding prosecutor’s question during


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punishment trial to court constituting unsuccessful attempt to elicit inadmissible

testimony did not cause evidence to be admitted). Harvey alternatively contends

the State’s questions to his sister deprived him of a substantial right, thus

requiring reversal of his conviction. Harvey, however, does not cite any authority

for this proposition or explain how the type of error he alleges—unsworn,

uncross-examined      statements    allegedly   propounded        through   a   cross-

examination question itself—affects any substantial right. Because the record

before us reflects no error, no substantial right was affected.

      We overrule Harvey’s sole issue.

                                   IV. CONCLUSION

      Having overruled Harvey’s sole issue, we affirm the trial court’s judgment.



                                                    /s/ Sue Walker
                                                    SUE WALKER
                                                    JUSTICE

PANEL: WALKER, MEIER, and SUDDERTH, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: March 30, 2017




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