Heath Link Harvey v. State, 02-16-00036-CR

Harvey pleaded open guilty to aggravated robbery and unlawful possession of a firearm; the trial court sentenced him to 15 years and 10 years, concurrent.
Incident: Harvey and a codefendant entered a game room, assaulted an employee (physically challenged), took a lockbox and personal items, and Harvey fired errant shots.
At sentencing Harvey’s sister testified about his character and atypical behavior.
On cross-examination the State asked the sister whether Harvey told police he planned the robbery and that his motive was to repay a codefendant for bond money; the sister answered she was not aware.
The trial court referenced the State’s line of questioning as an “allegation” about motive (repayment of bond money) but stated it did not know the reason for the offense and emphasized other aggravating facts.
Harvey appealed, arguing the court erred by considering the State’s cross-examination questions as evidence, violating due process and confrontation rights; the court of appeals affirmed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the trial court’s consideration of the State’s cross-examination questions (about Harvey’s alleged motive) violated Harvey’s due process and Confrontation Clause rights	Harvey: State’s fact-loaded questions to his sister injected unsworn evidence into the record and the court relied on them at sentencing, depriving him of due process and confrontation protections	State: Questions are not evidence; the sister’s answers were "I don’t know"; the court characterized the matter as an allegation and did not treat it as admitted evidence	Court: Affirmed. Questions alone are not evidence; no substantive answers were elicited; the court did not rely on the questions as proof, so no due process or confrontation violation and no substantial right affected

Madden v. State, 242 S.W.3d 504 (Tex. Crim. App. 2007) (questions by counsel are not evidence)
Johnston v. State, 230 S.W.3d 450 (Tex. App.—Fort Worth 2007) (refusing to treat attorney’s question as evidence)
Wiggins v. State, 778 S.W.2d 877 (Tex. App.—Dallas 1989) (answers, not questions, constitute evidence)
Wells v. State, 730 S.W.2d 782 (Tex. App.—Dallas 1987) (questions put to a witness are not evidence)
Crawford v. Washington, 541 U.S. 36 (U.S. 2004) (Confrontation Clause protects against admission of prior testimonial statements when defendant lacks an opportunity for cross-examination)