Ronald Donell Brown v. State

Opinion Issued November 23, 2005.

In The

Court of Appeals

For The

First District of Texas

NO. 01-04-00519-CR

RONALD DONELL BROWN, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 183rd District Court

Harris County, Texas

Trial Court Cause No. 769,942

O P I N I O N

A jury convicted appellant, Ronald Donell Brown, of aggravated assault on a

public servant, and the trial court assessed punishment at 30 years’ confinement. In

three issues, appellant contends (1) the trial court should have instructed the jury on

the offense of reckless driving, (2) the trial court violated appellant’s rights under the

Sixth Amendment to the U.S. Constitution and Article 1, Section 10 of the Texas

Constitution by refusing to replace a juror with an alternate, and (3) the trial court

erred by admitting extraneous offense evidence under Texas Rule of Evidence 404(b).

We affirm.

BACKGROUND

In January 1997, appellant approached Kerry Carter and told Carter he could

make $1,000 for every kilo of cocaine he helped appellant sell. However,

unbeknownst to appellant, Carter had been a police informant for about seven years.

Carter alerted police of appellant’s plan and, together with the police, arranged for a

sale to take place at the Amtrak train station in downtown Houston. Carter

accompanied appellant to the Amtrak station to meet Officer Dennis, who was

working undercover.

Carter introduced appellant to Officer Dennis, who displayed $84,000 cash, the

agreed price for the five kilos of cocaine and twelve pounds of marihuana that

constituted the sale. Upon learning Officer Dennis possessed the necessary money,

appellant left to retrieve the drugs. Appellant returned to the station with only two

kilos of cocaine, explaining that his supplier did not trust him with more. Officer

Dennis agreed to this smaller purchase and told appellant to wait in the parking lot

while he went inside the train station to retrieve the money. Shortly thereafter,

Officer Dennis gave the bust signal to the other officers stationed nearby. Upon

seeing the signal, the other officers moved in to arrest appellant. All the officers wore

raid jackets with “POLICE” written in bright letters across the front and announced

themselves as police officers.

Officers Ferrell and Robert parked in front of appellant’s vehicle, while

Sergeant Harrison and Officer Price parked behind appellant. Appellant then

repeatedly drove back and forth ramming Officer Ferrell’s car until he created enough

space to drive past. Appellant then circled the parking lot at a high rate of speed.

As appellant attempted to leave the parking lot, he drove his vehicle towards

Officer Ferrell, who was standing by the driver’s door of his unmarked police vehicle.

At this point, Officer Robert fired his gun, hitting appellant’s windshield. Officers

Ferrell and Robert testified that the gunshot caused appellant to swerve away from

Officer Ferrell, saving his life. However, Officer Price testified that the gunshot

caused appellant to lean to the right and that appellant merely sped off, without

indicating that the vehicle swerved to the right or not. As a result of appellant

intentionally and knowingly threatening Officer Ferrell with imminent bodily injury

by using a motor vehicle, knowing that Officer Ferrell was an officer, appellant was

charged with aggravated assault of a public servant.

At trial, after the close of evidence, the trial court granted appellant’s request

to instruct the jury on the lesser-included offense of deadly conduct. Appellant then

requested an instruction on the offense of reckless driving, contending it too was a

lesser-included offense. The trial court denied this second request, reasoning that

reckless driving is not a lesser-included offense of aggravated assault.

LESSER-INCLUDED OFFENSE

In his first point of error, appellant contends that the trial court erred by failing

to instruct the jury on the offense of reckless driving as a lesser-included offense.

Standard of Review

In determining whether a charge on a lesser-included offense is required, we

apply a two-step analysis. Feldman v. State , 71 S.W.3d 738, 750 (Tex. Crim. App.

2002); Rousseau v. State , 855 S.W.2d 666, 672 (Tex. Crim. App. 1993). Under the

first part of Feldman and Rousseau , a party must establish that the lesser-included

offense is included within the proof necessary to establish the charged offense. Tex.

Code Crim. Proc. Ann . art. 37.09 (Vernon 1981); Feldman , 71 S.W.3d at 750 ;

Rousseau , 855 S.W.2d at 672 . Second, the record must include some evidence that

would permit a jury to rationally find that, if guilty, the defendant is guilty only of the

lesser-included offense. Feldman , 71 S.W.3d at 750 ; Rousseau , 855 S.W.2d at 672 .

In determining whether any evidence exists in the record that would permit a

rational jury to find that the defendant is guilty only of the lesser-included offense,

anything more than a scintilla of evidence is sufficient to entitle a defendant to a

lesser charge. Forest v. State , 989 S.W.2d 365, 367 (Tex. Crim. App. 1999). We

review all evidence introduced at trial to determine whether the trial court erred in

failing to instruct the jury on a lesser-included offense. Enriquez v. State , 21 S.W.3d

277, 278 (Tex. Crim. App. 2000); Banda v. State , 890 S.W.2d 42, 60 (Tex. Crim.

App. 1994). Credibility determinations and conflicts in the evidence are not factors

to consider in determining whether the trial court erred in failing to instruct the jury

on a lesser-included offense. Banda , 890 S.W.2d at 60 .

Applying this two-step analysis, we find that the elements of reckless driving

are included within the facts required to establish aggravated assault as charged in

this case. A person commits the offense of aggravated assault by intentionally or

knowingly threatening another with imminent bodily injury and using or exhibiting

a deadly weapon during the commission of the assault. Tex. Pen. Code Ann . §§

22.01(a)(2), 22.02(a)(2) (Vernon Supp. 2004-2005). In this case, the indictment

charged that appellant did “unlawfully, intentionally and knowingly threaten with

imminent bodily injury Samuel Ferrell . . . while [Ferrell] was lawfully discharging

an official duty, by using and exhibiting a deadly weapon, namely a motor vehicle,

knowing that [Ferrell] was a public servant.” A person commits the offense of

reckless driving by driving a vehicle in willful or wanton disregard for the safety of

persons or property. Tex. Transp. Code Ann . § 545.401(a) (Vernon 1999).

The offense of reckless driving requires a “driving” and a “reckless” element.

We find that the “driving” element of reckless driving is included in the facts required

to establish aggravated assault in this case. Here, the “driving” element is

encompassed in the indictment because the State attempted to establish that appellant

used his vehicle as a deadly weapon in the manner that he drove it. The State’s entire

aggravated assault case rests on whether or not appellant intentionally or knowingly

drove his vehicle at Officer Ferrell. See Benge v. State , 94 S.W.3d 31, 35 (Tex.

App.—Houston [14th Dist.] 2002, pet. ref’d). Thus, the State was required to prove

that appellant was driving a vehicle as an element of the aggravated assault charge.

We also hold that the “reckless” element of reckless driving is included in the

facts required to establish aggravated assault. In the context of reckless driving,

“willful and wanton disregard” means the “deliberate and conscious indifference to

the safety of others.” Harris v. State , 152 S.W.3d 786, 796 (Tex. App.—Houston [1st

Dist.] 2004, pet. ref’d) (citing Benge , 94 S.W.3d at 36 ); White v. State , 647 S.W.2d

751, 753 (Tex. App.—Fort Worth 1983, writ ref’d). We agree with Benge that “one

who intentionally and knowingly threatens another with imminent bodily injury has

a deliberate, conscious indifference for that person’s safety.” Benge , 94 S.W.3d at

36 . Further, if the higher culpable mental state of intentionally or knowingly is

established, then it necessarily establishes the lower culpable mental state of

recklessness. Bell v. State , 693 S.W.2d 434, 438 (Tex. Crim. App. 1985); see Tex.

Pen. Code Ann . § 6.02(d)(e) (Vernon 2003); see also Bynum v. State , 874 S.W.2d

903, 907 (Tex. App.—Houston [1st Dist.] 1994, writ ref’d) (stating that “reckless

conduct is a lesser included offense of aggravated assault”). Since both the “driving”

and “recklessness” elements of reckless driving are included in the proof necessary

to establish aggravated assault in this case, we find that the offense of reckless

driving is included within the proof necessary to establish aggravated assault in this

case.

In the second part of the Feldman and Rousseau analysis, we must determine

whether there is at least a scintilla of evidence sufficient to entitle appellant to a lesser

charge of reckless driving. Feldman , 71 S.W.3d at 750-51 ; Rousseau , 855 S.W.2d

at 672 ; Forest , 989 S.W.2d at 367 . Credibility determinations and conflicts in the

evidence are not factors to consider in determining whether the trial court erred in

failing to instruct the jury on a lesser-included offense. Banda , 890 S.W.2d at 60 .

We find that there was at least a scintilla of evidence to entitle appellant to the lesser

charge of reckless driving.

Here, Officers Robert and Price both testified that appellant’s driving was at

least reckless. Further, Officer Price, who was part of the arrest team, testified that,

after the gunshot struck appellant’s vehicle, appellant leaned to the right and sped off.

Although Officer Price was “fairly close to the vehicle,” he did not testify that the

gunshot caused the vehicle to swerve in any direction, suggesting that appellant drove

straight towards the exit. Since there was at least a scintilla of evidence to suggest

that appellant committed reckless driving, the trial court erred by denying the

requested instruction.

Harm Analysis

When an appellate court finds jury charge error, it must determine whether the

error caused sufficient harm to require reversal. Hutch v. State , 922 S.W.2d 166, 170-71 (Tex. Crim. App. 1996) (citing Arline v. State , 721 S.W.2d 348, 351 (Tex. Crim.

App. 1986)). The degree of harm necessary for reversal depends on whether the error

was preserved. Id . at 171. Error properly preserved by an objection to the charge will

require reversal “as long as the error is not harmless.” Id. (quoting Almanza v. State ,

686 S.W.2d 157, 171 (Tex. Crim. App. 1985)). This means any harm, regardless of

degree, is sufficient to require reversal. Id . (citing Arline , 721 S.W.2d at 351 ). In

conducting the harm analysis, a reviewing court may consider the following factors:

(1) the charge itself, (2) the state of the evidence, including contested issues and the

weight of the probative evidence, (3) arguments of counsel, and (4) any other relevant

information revealed by the record of the trial as a whole. Id.

Since appellant properly preserved the charge error in this case, we must

determine whether there was any harm, regardless of degree. See id. Appellant

contends that the error caused some harm because reckless driving carries a less

severe penalty than aggravated assault, and because the jury was prevented from

choosing which recklessness-based crime appellant was guilty of, deadly conduct or

reckless driving. We disagree.

This Court, in McCloud v. State , held that the trial court’s failure to submit an

instruction on a lesser-included offense of reckless conduct was harmless error when

the jury was instructed on attempted capital murder and lesser-included offenses of

attempted murder and aggravated assault, and the jury found appellant guilty of

attempted murder. 692 S.W.2d 580, 584 (Tex. App.—Houston [1st Dist.] 1985, no

writ). On appeal, McCloud asserted the trial court erred in not instructing the jury on

reckless conduct. Id. at 582 . This Court held that the jury would have to find that

McCloud had no specific intent to kill the officer before they could find him guilty

of aggravated assault or reckless conduct. Id . at 584. However, since the jury found

McCloud guilty of attempted murder, which requires a finding of specific intent, the

jury would never have reached the lesser-included offense of reckless conduct, even

with a proper charge. Id . Thus, the omission in the charge was harmless error. Id .

Here, the jury was instructed on the crime of aggravated assault and on the

lesser-included offense of deadly conduct. Aggravated assault requires (1) that a

person intentionally or knowingly (2) threaten another with imminent bodily injury

(3) while exhibiting or using a deadly weapon during the commission of the assault.

Tex. Pen. Code Ann . §§ 22.01(a)(2), 22.02(a)(2) (Vernon Supp. 2004-2005).

Deadly conduct requires (1) that a person recklessly engage in conduct (2) that places

another in imminent danger of serious bodily injury. Id . § 22.05(a) (Vernon 2003).

The jury was thus confronted with whether appellant engaged in intentional or

knowing conduct versus reckless conduct. Because the jury found appellant guilty

of aggravated assault (intentional or knowing conduct), the jury never reached the

lesser offense of deadly conduct (reckless conduct). Had there been an instruction

on reckless driving, the jury would have to acquit appellant of aggravated assault

first, by finding that appellant did not knowingly or intentionally threaten Officer

Ferrell with imminent bodily injury. The jury charge clearly stated, “[u]nless you so

find from the evidence beyond a reasonable doubt, or if you have a reasonable doubt

thereof, you will acquit the defendant of aggravated assault on a public servant and

next consider whether the defendant is guilty of deadly conduct.” (emphasis added).

Since the jury found appellant guilty of intentional or knowing conduct, the jury

would not have reached the questions of whether appellant was guilty of deadly

conduct or reckless driving, even with the proper charge.

Appellants rely heavily on Benge v. State . Benge presents a case nearly

identical to the one at hand. In that case, Benge was charged with aggravated assault

with a motor vehicle, and the jury found Benge guilty of the lesser-included offense

of deadly conduct. Benge , 94 S.W.3d at 33 . Benge complained on appeal that the

trial court’s refusal to submit an instruction on reckless driving constituted reversible

error. Id . After finding that reckless driving was a lesser-included offense of

aggravated assault, the court held that there was some harm because the jury was not

given the option to find Benge guilty of reckless driving, an offense with a less severe

penalty than the one imposed for deadly conduct, but with a similar mental

state–recklessness. Id. at 36-38 . Thus, in Benge , the jury found the defendant guilty

of deadly conduct, a reckless finding. Id . at 33. By not providing a charge on

reckless driving, the jury was prevented from choosing between two recklessness

crimes. Id . at 37-38. Because this choice was not provided, the jury was not able to

choose a recklessness crime that carried a less severe penalty. Id . at 38. In the

present case, however, the jury did not find appellant guilty of deadly conduct;

instead, the jury found appellant guilty of aggravated assault, an intentional or

knowing crime. By convicting of the higher mental state, the jury never reached the

reckless finding. Thus, although the court erred in not submitting the instruction on

reckless driving, the error was harmless.

Accordingly, we overrule appellant’s first point of error.

JUROR MISCONDUCT

In his second point of error, appellant contends that the trial court erred in

refusing to seat an alternate juror after the court discovered that an empaneled juror

knew and spoke with one of the police officer witnesses. Appellant contends that this

refusal to seat an alternate juror resulted in a violation of his rights under the Sixth

Amendment of the United States Constitution and Article I, section 10 of the Texas

Constitution.

During voir dire, the court recited the first initials and last names of forty

Houston Police Department officers and asked if venire-members knew them.

Although several potential jurors responded for other reasons, no one recognized any

of the names. Neither the State’s attorney nor appellant’s trial counsel inquired

further of any relationship between the venire-members and the prospective

witnesses. Appellant’s trial counsel, though, did inquire as to whether any potential

jurors had close relationships with peace officers.

During a recess in the trial, Officer Price, a witness who had not yet testified,

saw Juror Ghiselli, a woman he recognized, out in the hallway. The two had a brief

conversation before Officer Price realized she was a juror in the same matter in which

he was to testify. Officer Price immediately notified the prosecutor, who told the trial

judge. The court questioned both Officer Price and Juror Ghiselli about their

encounter and prior relationship. The trial judge questioned Officer Price as follows:

“THE COURT: All right. Mr. Davis (Defense Counsel), everyone is

here. Defendant is present. Mr. Hart (Prosecutor) brought it to the Court’s

attention that you (Officer Price) had a brief encounter with a juror not

solicited on your part, of course, but in the hall, could you just relate what

happened so the record is clear?

“THE WITNESS (Officer Price): Yes, ma’am. I had been to the

bathroom. I came out in the hallway, and two ladies were walking down the

hallway and I recognized one of them. I don’t know her name. I can’t even

really put where I know her from. I just know I knew her and just briefly

spoke to her and she spoke to me. It’s like, she had her badge, her badge was

down here.

“THE COURT: For the record he’s pointing to his belt, waist area.

“THE WITNESS: Down on her waist area. And I didn’t see it, and when

she said, “I’m a juror.” I actually looked over to see and it. It was not here,

and I saw it down there. I went, “O my God,” what court? She said 183rd and

I went, great, okay. And I told Mr. Hart.

“THE COURT: So at that point you just stopped talking to her?

“THE WITNESS: I didn’t even say that. I just walked away.

“THE COURT: Okay. You just walked away. Okay. That’s fine. And

you can wait outside for us briefly.

“THE WITNESS: Okay. Thanks.

“THE COURT: And you don’t know her name. What does she look

like?

“THE WITNESS: She’s middle aged and white and they all look alike.

******

“THE COURT: Do you know what color –

“THE WITNESS: I can’t even tell you that. After that, I didn’t want to

know anything.”

The trial court then questioned Juror Ghiselli as follows:

“THE COURT: Let me just ask you a question. It appears [Officer

Price] brought it to the attention of the Prosecutor that he did have a very brief

conversation with you in the hall. At that point, I can see where you’re

wearing your badge, it is down at leg level. He did not realized (sic) that you

were a juror in this case. He is going to be a witness later in the case. Now,

believe me, I do not think that either one of y’all had any kind of improper

conduct with each other out there in the hall. It’s clear to the Court that it’s an

accidental encounter, a very casual conversation. Was there any discussion

about the case or the alleged facts of this case or his duties as a police officer?

“JUROR: No. I did not know he was a policeman. I know him through

a community called the Brazos Valley Emmaus Community.

“THE COURT: The what now?

“JUROR: Brazos Valley Emmaus Community. He doesn’t even live in

Houston. He lives in somewhere up north, College Station or Brenham. And

its call (sic) A Walk to Emmaus, which is a Christian Retreat and that’s the

community I know him from.

******

“JUROR: I never associated – when you said Virgil Price, it never

clicked with me that it was him.

“THE COURT: Is there anything about that encounter that would in any

way affect the way, or the fact that you know him or know him through your

fellowship that would affect the way you would view the case, vote on the

case, anything in that manner?

“JUROR: No. I think I would look at the evidence.

“THE COURT: Do you understand the same things that we talked about

in voir dire, more than ever apply, of course they always apply, but my voir

dire about starting everyone out evenly, you understand that would certainly

be important in this case for you?

“JUROR: Yes.

“THE COURT: I think somewhere in the Charge it will say something

to you like any personal knowledge that you may have about any witnesses or

any events of the case you cannot use that as any evidence. Obviously, you

don’t know anything personally about any alleged events, but you may have

some personal knowledge about the potential witness or the witness. You

understand that instruction will be exactly for that type of situation you may

find yourself in, and can you follow that law?

“JUROR: Yes, I can.

“THE COURT: You have any concerns about your ability now to be fair

to either side?

“JUROR: No, I don’t.

“THE COURT: Are you very confident about that?

“JUROR: Yes.

“THE COURT: Okay. Thank you very much.

“MR. DAVIS: Can I ask one question?

“THE COURT: No, you may not.”

After the trial court denied appellant’s attorney’s request to question Juror

Ghiselli, appellant explained to the trial court that he would have gotten more detail

on how Juror Ghiselli knows Officer Price and, had he known of their acquaintance,

he would have struck Juror Ghiselli for cause. Appellant further requested Juror

Ghiselli be removed and an alternate juror seated in her place, but the court denied

this motion. On the following day, before trial resumed, appellant re-urged his

motion to replace Juror Ghiselli with an alternate, and the court again denied the

request. Appellant contends that this refusal to seat an alternate juror resulted in a

violation of his rights under the Sixth Amendment of the United States Constitution

and Article I, section 10 of the Texas Constitution.

“In all criminal prosecutions, the accused shall enjoy the right to a speedy and

public trial, by an impartial jury.” U.S. Const . amend. VI ; see Tex. Const . art. 1,

§ 10 (stating that “[i]n all criminal prosecutions the accused shall have a speedy

public trial by an impartial jury.”). The voir dire process is designed to insure that an

“intelligent, alert, disinterested, impartial, and truthful jury will perform the duty

assigned to it.” Armstrong v. State , 897 S.W.2d 361, 363 (Tex. Crim. App. 1995).

If a juror withholds material information during the voir dire process, the parties are

denied the opportunity to intelligently exercise their peremptory challenges and

challenges for cause, hampering the selection of an impartial jury. Id .; Salazar v.

State , 562 S.W.2d 480, 482 (Tex. Crim. App. 1978). A defendant must show that a

juror withheld material information during voir dire, and the information is withheld

despite due diligence exercised by the complaining party. Franklin v. State , 138

S.W.3d 351, 355-56 (Tex. Crim. App. 2004) ( Franklin II ). In the event a juror

withholds material information during voir dire, it is not dispositive of the issue if the

juror states it will not affect his verdict. Id . at 354-55. The good faith of the juror is

“largely irrelevant when considering the materiality of information withheld.”

Franklin v. State , 12 S.W.3d 473, 478 (Tex. Crim. App. 2000) ( Franklin I ).

We first determine whether the trial court erred in this case. The Court of

Criminal Appeals recently addressed this error analysis in facts similar to these in

Franklin I and Franklin II .

In these cases, Franklin was charged with the aggravated

sexual assault of a child, C.N.T. Id . at 475. During voir dire, the State asked the

panel members if any of them knew the victim, C.N.T. Id . No one on the panel

indicated he knew C.N.T. Id . When the State called its first witness, C.N.T., Juror

Spradlin informed the trial judge that she knew C.N.T. Id . at 476. Juror Spradlin

indicated that she did not know the name, but that she did recognize C.N.T. when she

saw her. Id . Juror Spradlin had a daughter in the same girl scout troop as C.N.T. and

was the girl scout troop’s assistant leader. Id . The trial court questioned Juror

Spradlin on whether she could listen to the evidence in the case and base her

judgment solely on what she heard from the stand, and she indicated that she could.

Id . After the trial court denied Franklin’s motion for mistrial, Franklin sought to

question Juror Spradlin concerning her relationship with C.N.T. Id . The trial court

denied this request . Id . Franklin then objected explaining what specific questions he

would have asked to elicit any bias or prejudice from Juror Spradlin. Id . He stated

[h]ad I been allowed to ask questions, I would have asked questions

concerning the nature of the relationship with [C.N.T.], how long it had lasted,

whether or not she could set aside any of her relationship with [C.N.T.] in

sitting in judgment in this particular case, or whether she would tend to give

more credence or less credence to [C.N.T.]’s testimony and truthfulness due to

that relationship.

Id .

On appeal in Franklin I , Franklin asserted that the trial court erred in denying

his motion for mistrial when a juror had withheld material information. Id. at 477 .

In determining whether the information withheld by Juror Spradlin was material, the

court stated that Franklin was “not permitted to determine the extent of the

relationship between C.N.T. and Juror Spradlin due to no fault of his own .” Id . at 478

(emphasis original). The court went on to say that, because Franklin was not

permitted to question Juror Spradlin regarding her relationship with C.N.T. to

determine the extent of any prejudice that might have existed, the court could not

conclude whether Juror Spradlin’s relationship with the victim was immaterial. Id .

at 478-79. Thus, the court indicated the error resulted from the trial court’s failure

to allow Franklin an opportunity to ask questions of Juror Spradlin. Id . at 479.

However, in Franklin II , the court re-characterized the trial court’s error as a failure

to grant the only remedy available to Franklin, a mistrial, after Juror Spradlin revealed

she withheld material information. Franklin II , 138 S.W.3d at 357 (stating that the

“trial court’s failure to grant a mistrial after Spradlin revealed that she withheld

material information is constitutional error”).

The Franklin II court went on to say

that the trial court’s failure to allow Franklin an opportunity to question Juror

Spradlin compounded the situation since he could not then affirmatively get any

evidence of bias on the record. Id . at 358.

The present case is distinguishable from Franklin . In Franklin , Franklin

informed the court of the specific questions that he sought to ask the juror beyond

those asked by the trial court. Franklin I , 12 S.W.3d at 476 . This sufficiently

apprised the judge of the specific additional information Franklin sought to gather,

giving the trial court the opportunity to consider whether its questions were sufficient.

See id . Here, appellant failed to notify the trial court of the specific questions

appellant sought to ask beyond the thorough examination by the trial court.

Appellant simply stated that he “would have gotten more detail on how she knows

him.” This global request did not sufficiently apprise the trial judge of what specific

additional information appellant sought to elicit.

Secondly, appellant stated that had he known this information, he “would have

struck her. It’s kind of a no brainier [sic]. I struck [sic] anyone for cause.” However,

this assumes that Juror Ghiselli would have stated during voir dire that she knew

Officer Price. The trial judge had asked during voir dire if anyone on the panel knew

“V. R. Price,” and no one responded. After the relationship was discovered, Juror

Ghiselli indicated she did not recognize “V. R. Price” as the name of the individual

she was familiar with from her retreat. The relationship between Juror Ghiselli and

Officer Price appears to be a remote casual acquaintanceship that suggests, even if

Officer Price’s full name had been stated, Juror Ghiselli would not have responded

to the inquiry. Thus, nothing short of walking Officer Price through the courtroom

during voir dire would have alerted Juror Ghiselli that she knew a potential witness.

Under the circumstances (1) that the only inquiry during voir dire regarding any

relationship between prospective witness and venire-members was identification of

the witnesses through initials and a last name, (2) that appellant’s trial counsel

inquired whether any venire-members had close relationships with peace officers, (3)

that Officer Price did not know Juror Ghiselli’s name, (4) that Juror Ghiselli did not

know Officer Price’s occupation, and (5) that their acquaintanceship was not

discovered until mid-trial after voir dire, we cannot conclude that appellant was

deprived of the right to exercise a peremptory strike or a challenge for cause.

Appellant’s primary complaint, though, is the trial court’s failure to seat an

alternate juror. Article 33.011(b) of the Texas Code of Criminal Procedure governs

the procedure for replacing jurors with alternates. Tex . Code Crim . Proc . Ann . art.

33.011(b) (Vernon 1989). It states that alternate jurors shall replace jurors who “are

found to be unable or disqualified to perform their duties.” Id . Bases for

disqualification can be found in article 35.16. See State v. Holloway , 886 S.W.2d

482, 484-85 (Tex. App.—Houston [1st Dist.] 1994, writ ref’d) (suggesting that a

disqualification under article 35.16 can arise even after the jury is impaneled). Here,

none of the potential disqualifications arose. Specifically, there is no suggestion of

any bias or prejudice on Juror Ghiselli’s part; that was clearly established through the

trial judge’s questioning.

The lack of bias or prejudice is also evidenced by the remoteness of Juror

Ghiselli and Officer Price’s relationship. The relationship at issue in Franklin I was

a much more close, personal connection than the one at issue here. See Franklin I ,

12 S.W.3d at 476 . In Franklin I , Juror Spradlin was the victim’s assistant girl scout

troop leader, and the relationship was almost a parental role, which certainly had

some tendency to show bias. Id .; Franklin II , 138 S.W.3d at 356 . Here, Juror

Ghiselli had a distant acquaintance with one witness.

Juror Ghiselli and Officer Price’s relationship is more closely analogous to the

one in Decker v. State . 717 S.W.2d 903 (Tex. Crim. App. 1983). In Decker , after

a juror had been selected and impaneled, the juror “recognized” the complainant, a

fellow co-worker for several months. Id. at 904 . After questioning by defense

counsel, the court held that, because the two had never socialized or had any type of

friendship, the information was not material. Id . at 907. The acquaintanceship

through employment revealed no relationship that had any potential for prejudice or

bias on the part of the juror. Id .

We encounter the same situation in the present case. Juror Ghiselli never knew

Office Price was a police officer; they did not know each other’s names; Officer Price

did not know where he had met Juror Ghiselli. These facts demonstrate there was no

existence of a friendship or any socializing between the two. We conclude the trial

court did not err in refusing to dismiss the juror or in refusing to allow questioning

of Juror Ghiselli.

We overrule appellant’s second point of error.

EXTRANEOUS OFFENSE

In his third point of error, appellant contends the trial court erred in admitting

evidence of extraneous offenses when the State failed to give timely written notice

even though appellant properly requested notice pursuant to Rule 404 of the Texas

Rules of Evidence and article 37.07(3)(g) of the Texas Code of Criminal Procedure.

See Tex. R. Evid. 404(b); see Tex. Code Crim. Proc. Ann . art. 37.07(3)(g) (Vernon

Supp. 2004-2005). We disagree.

Approximately fourteen months before trial, appellant properly requested

pretrial notice of the State’s intent to offer into evidence any prior crimes, wrongs or

acts. The State failed to give any written notice of its intent to offer into evidence any

extraneous offenses committed by appellant. Consequently, during pretrial matters,

appellant sought the exclusion of any extraneous offenses committed by appellant,

specifically, that appellant’s bond was revoked and that he had failed to appear for

a prior trial. The trial court overruled appellant’s motion to exclude.

At trial, the State introduced State’s exhibits 41 and 42, which documented

appellant’s revocation of bond and his failure to appear for a prior trial. The

following exchange took place in admitting these exhibits:

“MR. HART (Prosecutor): At this time the State is going to offer into

evidence State’s Exhibit No. 41, and State’s Exhibit No. 42, which are certified

public documents taken out of the Court’s file in this case. I’ll tender to Mr.

Davis.

“(State’s Exhibits 41 and 42 offered.)

“MR. DAVIS (Defense Counsel): If you would just give me a second,

Judge.

“THE COURT: Yes, sir.

“MR. DAVIS: Okay. Your Honor, we agree to it .

“THE COURT: All right. They will be admitted. What are the numbers

again?

“(State’s Exhibits 41 and 42 admitted)

“MR. HART: State’s 41 and 42.

“THE COURT: They’re admitted.”

(emphasis added).

Although appellant properly moved to exclude the extraneous offense evidence

pretrial, when the State sought to enter the evidence at trial, appellant agreed to its

admission. Thus, the State contends appellant failed to preserve this issue for review.

It is well settled that when a pretrial motion to suppress evidence is overruled,

the defendant need not subsequently object at trial to the same evidence in order to

preserve error on appeal. Moraguez v. State , 701 S.W.2d 902, 904 (Tex. Crim. App.

1986); Lemons v. State , 135 S.W.3d 878, 882 (Tex. App.—Houston [1st Dist.] 2004,

no pet.) However, when a defendant affirmatively asserts during trial that he has “no

objection” to the admission of the complained of evidence, he waives any error in the

admission of the evidence, despite the pretrial ruling. Moraguez , 701 S.W.2d at 904 ;

Lemons , 135 S.W.3d at 882 .

There is no question that appellant originally preserved error by obtaining an

adverse ruling on his motion to suppress, and he was not required to object again at

trial. However, when the State sought to admit the evidence at trial, appellant did

more than to merely assert that he had no objection, instead appellant stated, “we

agree to it.” Appellant’s agreement to the admission of the evidence waived any error

in its admission, despite the pretrial ruling. See Moraguez , 701 S.W.2d at 904 ; see

Lemons , 135 S.W.3d at 882 . Thus, appellant waived any error. We overrule

appellant’s third point of error.

CONCLUSION

We affirm the judgment of the trial court.

Sherry Radack

Chief Justice

Panel consists of Chief Justice Radack and Justices Alcala and Bland.

Publish. Tex. R. App. P. 47.2 (b) .