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
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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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