Wagner, Keith v. State ( 2002 )

Affirmed and Opinion filed November 27, 2002

Affirmed and Opinion filed November 27, 2002.

In The

Fourteenth Court of Appeals

_______________

NOS. 14-01-00392-CR

                  14-01-00393-CR and

          14-01-00394-CR

_______________

KEITH WAGNER, Appellant

V.

THE STATE OF TEXAS, Appellee

______________________________________________________

On Appeal from 179th District Court

Harris County, Texas

Trial Court Cause Nos. 826954; 826955; and 826956

______________________________________________________

O P I N I O N

            A jury found appellant, Keith Wagner, guilty of theft, burglary of a habitation, possession of cocaine (in excess of 400 grams) with intent to deliver, and the trial court assessed punishment of eight years’ imprisonment; eighteen years’ imprisonment; twenty-five years’ imprisonment; and a $10,000 fine, respectively.  We affirm.

                                                          I.  Background

            In 1999, appellant was an officer with the Pasadena Marshal’s Department. He received information that police informant Michael Bohannon was engaged in drug trafficking.  Appellant contends he planned to conduct a fake arrest and drug seizure in order to arrest Bohannon and others.  Sergeant J.W. Belk, Internal Affairs Division of the Houston Police Department, testified that—without appellant’s knowledge—he was using Bohannon to catch appellant in actual acts of corruption. Belk wanted to determine whether appellant would conduct a “drug rip” (a term for a fake drug raid in which an officer steals the drugs and drug money) and keep the proceeds.  Bohannon told appellant he would be transporting cocaine from south Texas to Houston in a recreational vehicle (RV).  They planned for appellant to stop the RV, conduct a fake arrest, and take the cocaine.  Further, they planned to go to a “safe house” after the fake arrest to steal the money that was to be used to buy Bohannon’s cocaine.  They executed the plan, but it ended in appellant’s arrest.  Appellant was charged with burglary of a habitation, theft of money, and possession of cocaine with intent to deliver. 

            Appellant maintained that he merely posed as a corrupt police officer and conducted the drug rip while planning to arrest Bohannon and Bohannon’s associate, Eric Gibson.  Appellant further maintained that he feigned acquiescence to Bohannon’s plan so he could confiscate the money and illegal drugs, and earn acknowledgment from his peers for making such a large drug bust.

II. Extraneous offenses

A.  Lack of Notice

            In his first issue, appellant contends the trial court erred by admitting evidence of two extraneous offenses for which the State failed to give notice under Rule of Evidence 404(b) or article 37.07 of the Code of Criminal Procedure.  Specifically, he first complains that his alleged co-conspirator, Eric Gibson, was permitted to testify during guilt/innocence that he and appellant had been conducting drug rips since 1995 and had stolen money from a drug buyer stopped for a traffic violation.  Second, he complains that in the punishment phase, Gibson was permitted to testify regarding appellant’s participation in drug rips since 1995, stealing money from a drug dealer and splitting the proceeds.

1.  Standard of Review

            We review the trial court’s admission of extraneous offense evidence for an abuse of discretion.  Mitchell v. State, 931 S.W.2d 950, 953 (Tex. Crim. App. 1996).  We will uphold the trial court’s ruling if it is within the zone of reasonable disagreement.  Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991).

2.  Rule of Evidence 404(b)

            Appellant requested notice of the State’s intent to use extraneous offenses under rule 404(b) of the Texas Rules of Evidence and article 37.07 of the Texas Code of Criminal Procedure.  The State responded, detailing several extraneous offenses it intended to use against appellant in either the guilt/innocence or punishment phase of trial. Appellant contends the State introduced evidence in both the guilt/innocence and punishment phases that he had participated in drug rips since 1995.  Appellant objected to that testimony because the State did not give notice of its intent to use such evidence.

            Under Rule 404(b), evidence of other crimes is inadmissible to prove character and action in conformity therewith.  However, the rule permits admission of extraneous offenses for purposes such as proof of motive, opportunity, intent, preparation, knowledge, identity, or absence of mistake or accident, provided that the State gives reasonable notice in advance after timely request by the defendant.  Tex. R. Evid. 404(b).  The purpose of the rule is to apprise the defendant of extraneous offenses the State intends to introduce at trial.  Webb v. State, 36 S.W.3d 164, 176 (Tex. App.—Houston [14th Dist.] 2001, pet. ref’d).

            Eric Gibson, one of appellant’s co-conspirators, testified about the extraneous offenses of which appellant complains.  Before the disputed testimony, Gibson explained to the jury that when he was released from jail in 1999, he returned to Houston and renewed connections with appellant and a police officer named Frank Ferguson.  In response to the State’s question, “How did you meet Frank Ferguson?”, Gibson nonresponsively replied, “In 1995, we had planned— .”  The State cut off his answer before he could complete it.  Gibson then testified that appellant introduced him to Frank Ferguson.  Subsequently, Gibson testified generally that in 1999, he knew several police officers in two departments with whom he conducted drug rips.  Appellant’s apparent argument is that the combination of Gibson’s nonresponsive answer and his later description of drug rips is evidence of extraneous offenses dating back to 1995.  We cannot fairly interpret this testimony as evidence appellant had been actually “doing drug rips” since 1995.  The only connection between appellant and 1995 that we can glean from this testimony is that appellant knew Wagner as early as 1995. Accordingly, considering the testimony in context, we find the trial court did not erroneously admit evidence that appellant had conducted drug rips since 1995.

            Appellant also complains about Gibson’s description during guilt/innocence of a traffic stop in which appellant stole $6,000 from a drug buyer who was driving the car.  Appellant did not object to this testimony.  Failure to timely object and obtain a ruling results in waiver of error on appeal.  Tex. R. App. P. 33.1. 

            In connection with admission of extraneous offense evidence, we must determine whether appellant’s request for a running objection preserved error. Running objections are an exception to the general rule that a party must continue to object and obtain a ruling for each instance of inadmissible testimony.  Barletta v. State, 994 S.W.2d 708, 714 (Tex. App.—Texarkana 1999, pet. ref’d).  A running objection must be specific and unambiguous.  See Sattiewhite v. State, 786 S.W.2d 271, 283–84 n.4 (Tex. Crim. App. 1989) (a running objection must not “encompass too broad a reach of subject matter over too broad a time or over different witnesses”). Courts must carefully review the record to determine whether a running objection preserves error depending on the facts and circumstances of each case.  White v. State, 784 S.W.2d 453, 458–61 (Tex. App.—Tyler 1989, pet. ref’d).

            In this case, appellant asserted a running objection based on Gibson’s general definition of a drug rip.^[1]  Appellant also asserted a Rule 404(b) running objection to Gibson’s description that drug rips included kicking in doors of premises and presenting fake arrest warrants. Apparently appellant’s running objection is purported to cover seventeen or more pages of the record.  This part of the record includes Gibson’s testimony about the specific traffic stop in which he contended appellant took a drug buyer’s money.  We find appellant’s running objection to general testimony about drug rips was too broad to apprise the trial court that he was also objecting to a specific incident involving appellant.  Accordingly, appellant has failed to preserve error.  Tex. R. App. P. 33.1(a).  Further, we note that appellant cross-examined Gibson about the traffic stop.  “The general rule is that error regarding improperly admitted evidence is waived if that same evidence is brought in later by the defendant or by the State without objection.”  Rogers v. State, 853 S.W.2d 29, 35 (Tex. Crim. App. 1993). For these two reasons, the trial court did not abuse its discretion in admitting evidence about the traffic stop during guilt/innocence.

3.  Article 37.07, Code of Criminal Procedure

            During the punishment phase, Gibson testified that in 1995 he and appellant split the proceeds after stealing marijuana, cocaine, and $7,000 from a drug dealer.  Appellant complains that, despite his request under article 37.07 of the Code of Criminal Procedure, the State gave no notice of its intent to introduce this evidence.

            Article 37.07 provides, in part, that upon a finding of guilt, evidence may be offered by either party as to any matter the trial court deems relevant to “sentencing, and the evidence is not limited to the prior criminal record of the defendant.”  Tex. Code Crim. Proc. Ann. art. 37.07 § 3(a).  Article 37.07 section 3(g) provides for admission of extraneous offense evidence if the State gives timely notice of its intent to use that evidence in the punishment phase of trial. 

            Here, the State failed to give notice of its intent to use evidence of the 1995 transaction against appellant during the punishment phase.  The State argues that appellant was aware the State might use this offense because it was detailed in Gibson’s statement.  The State further contends appellant had notice through its fourth notice of accomplice convictions, pending charges, and suspected criminal offenses.  Accordingly, the State contends appellant was not surprised by presentation of the evidence. Article 37.07 requires notice of the State’s intent to offer extraneous offense evidence; no intent is presumed.  See Buchanan v. State, 911 S.W.2d 11, 15 (Tex. Crim. App. 1995).  By opening its file to the defendant and serving notice of accomplice convictions, pending charges, and suspected criminal offenses, the State has not satisfied the notice requirement of Article 37.07 § 3(g).  The defendant is not required to make inferences about the State’s intent from documents in the file.  Webb v. State, 36 S.W.3d 164, 179 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d).  Having requested notice of the State’s intent to use extraneous offenses during punishment, appellant was entitled to assume the State only intended to use those offenses listed in its notice.  See id.  Because the State did not provide notice of its intent to use the extraneous offense, the trial court erred in admitting that evidence.

            Having found error in the trial court’s ruling, we must determine whether appellant was harmed by the improper admission of the evidence.  Because no constitutional error is involved when evidence of an extraneous offense is admitted without notice, we look to whether the error affected appellant’s substantial rights.  Tex. R. App. P. 44.2(b).  The substantive right affected by the admission of an extraneous offense is the right to a fair trial.  See Garza v. State, 963 S.W.2d 926, 931 (Tex. App.—San Antonio 1998, no pet.).  An error affects a substantial right when the error had a substantial and injurious effect or influence on the jury’s verdict.  King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997).  If the error had no influence or only a slight influence on the verdict, it is harmless. Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998).  However, if we harbor “grave doubts” the error did not affect the outcome, we must treat the error as if it did.  See Webb v. State, 36 S.W.3d at 182–83. In assessing the likelihood that the error adversely affected the jury’s decision, we consider everything in the record, including all testimony and evidence admitted for the jury’s consideration, the nature of the evidence supporting the verdict, the character of the alleged error, and how the error might have been considered in connection with other evidence in the case.  See Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000).  We may also consider the State’s theory of the case, any defensive theories, closing arguments, and voir dire.  Id.

            To assess error in violation of a statute, we examine whether the purposes of the statute or rule was thwarted by the error.  See Ford v. State, 73 S.W.3d 923, 925–26 (Tex. Crim. App. 2002). Accordingly, we must assess harm from violation of the notice provision of article 37.07, section 3(g) against its intended purpose.  See Roethel v. State, 80 S.W.3d 276, 281 (Tex. App.—Austin 2002, no pet.).  The notice requirement found in section 3(g) does not relate to the substantive admissibility of the evidence.  See Tex. Code Crim. Proc. Ann. art. 37.07, § 3(g).  “The lack of notice does not render the evidence inherently unreliable, but raises a question about the effect of procedural noncompliance.”  Roethel, 80 S.W.3d at 282.  The purpose of section 3(g) is to avoid unfair surprise and to enable the defendant to prepare to answer the extraneous offense evidence.  Nance v. State, 946 S.W.2d 490, 493 (Tex. App.—Fort Worth 1997, pet. ref’d).  In addressing the potential harm suffered by appellant, we analyze how the deficient notice affected appellant’s ability to prepare for the evidence.  Roethel, 80 S.W.3d at 282.  In conducting this analysis, we examine the record to determine whether the deficient notice resulted from prosecutorial bad faith or prevented the defendant from preparing for trial.  Id.  In determining whether the defendant was prevented from preparing for trial, we must determine whether the defendant was surprised by the substance of the testimony and whether that affected his ability to prepare cross-examination or mitigating evidence.

            Appellant contends he was harmed because his only available argument in opposition to the State’s evidence would have been that the events did not occur. Appellant further contends he was unable to garner and present evidence to effectively make such an argument because he did not expect these charges to be levied against him. 

            During the guilt innocence phase, although Eric Gibson alluded to an event in 1995, he did not testify to the details of the drug transaction.  During Gibson’s testimony at the punishment phase, the State asked him about drug-related activities in which he participated with Keith Wagner prior to 1999.  Defense counsel objected, contending he had not received notice under article 37.07 § 3(g) of the Texas Code of Criminal Procedure.  The trial court overruled the objection and the following occurred:

Q.  (By Ms. Magness [the prosecutor]:  Mr. Gibson, when – first of all, did you detail in your statement an event that occurred prior to October 1999?

MR.  DeGUERIN [defense counsel]:  Now she’s asking what his statement contains.  I object to that.

THE COURT:  Overruled.

Q.  (By Ms. Magness)  What year did you participate in an offense – or in activity with Keith Wagner that involved drugs?

MR. DeGUERIN:  This has already been gone into, your Honor, at the trial.

THE COURT:  Overruled.

A.  1995.

            We find no indication of bad faith in the State’s failure to provide notice of the extraneous offense.  Although the State’s notice did not meet the requirements of article 37.07 § 3(g), there is no indication from the record that the omission was intended to mislead appellant and prevent him from preparing a defense.  Nor was appellant surprised by the substance of the testimony. The record reflects that defense counsel knew of the prior offense, and from the testimony at trial, reasonably should have known that the State intended to use that offense against appellant. Although the better practice is for the State to give notice as mandated by the Legislature, we find under the unique facts of this case, appellant was not harmed by the lack of notice. Appellant’s first issue is overruled.

B.  Sua Sponte Reasonable Doubt Instruction

            In his supplemental issue, appellant complains he suffered egregious harm by the trial court’s failure, during the punishment phase, to sua sponte instruct the jury that it must find appellant committed the extraneous offenses beyond a reasonable doubt before considering such offenses.  See Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(1) (Vernon Supp. 2002).

            Before evidence of extraneous misconduct may be considered in assessing punishment, the misconduct must be proved beyond a reasonable doubt.  Id.; see Huizar v. State, 12 S.W.3d 479, 483–84 (Tex. Crim. App. 2000).  As appellant correctly points out, a trial court is required to sua sponte instruct the jury on this burden of proof in the punishment phase.  See Huizar, 12 S.W.3d at 483–84.  Thus, the trial court’s failure to give such an instruction, though not requested, was error.  See id. 

            However, because appellant failed to object to this error, he must show that it caused egregious harm.  See Mann v. State, 964 S.W.2d 639, 641 (Tex. Crim. App. 1998).  “Egregious harm” exists when the error was so harmful as to deny the defendant “a fair and impartial trial.”  Tex. Code Crim. Proc. Ann. art. 36.19 (Vernon 1981); Barrera v. State, 982 S.W.2d 415, 417 (Tex. Crim. App. 1998).  Egregious harm consists of those errors that affect the very basis of the case, deprive the defendant of a valuable right, vitally affect a defensive theory, or make the case for punishment clearly and significantly more persuasive.  See Lee v. State, 29 S.W.3d 570, 578 (Tex. App.—Dallas 2000, no pet.).  To determine whether the appellant suffered egregious harm, the error must be viewed in light of the entire jury charge, state of the evidence, including contested evidence and the weight of probative evidence, arguments of counsel, and any other relevant information revealed by the record as a whole.  Mann, 964 S.W.2d at 641.  Any harm suffered must be actual and not merely theoretical. Dickey v. State, 22 S.W.3d 490, 492 (Tex. Crim. App. 1999). 

            Appellant contends he suffered egregious harm because the court admitted evidence of the following two extraneous bad acts: (1) possession of a pistol with its serial numbers filed off (called a “throw-down weapon”) and (2) participation with Eric Gibson in a drug rip in 1995.  The latter was specifically mentioned, along with several other drug rips, in the State’s closing argument at punishment:  “Is this really a second chance?  Seems like it’s about a seventh chance if you factor in Ronda Street and McDermott and the house at the ship channel and the 1995 offense and the Hotchkiss address and then this offense.”  The pistol was not a focus of closing argument.

            In reviewing the record as a whole, we cannot conclude that appellant was denied a fair and impartial trial.  See Barrera, 982 S.W.2d at 417.  Evidence reflecting appellant’s participation in the drug rip in October 1999 was presented during the guilt/innocence phase. Appellant’s participation was uncontested, and his defense was that he was merely posing as a corrupt police officer. See Allen v. State, 47 S.W.3d 47, 51–53 (Tex. App.—Fort Worth 2001, pet. ref’d) (no egregious harm for missing instruction at punishment phase where evidence at guilt/innocence phase supported punishment assessed).  Further, the State did not specifically direct the jury’s attention away from the facts of this case in closing argument.  Instead, the State focused on the trust that was destroyed by appellant’s corruption and greed.  Finally, the jury received a reasonable doubt instruction on extraneous offenses just one day earlier in the guilt/innocence phase.  See Gholson v. State, 5 S.W.3d 266, 271 (Tex. App.—Houston [14th Dist.] 1999, pet. ref’d) (no egregious harm shown where jury received reasonable doubt instruction for extraneous offenses in guilt/innocence, which was held same day as punishment).  Finding no egregious harm, we overrule appellant’s supplemental issue.

III. Evidentiary Rulings

A.  Officer’s Knowledge about Confidential Informant

            In his second issue, appellant contends he was harmed by the trial court’s refusal to allow cross-examination of Officer Belk about Bohannon’s criminal history and reliability.

            Appellant first contends the trial court refused to allow him to make an offer of proof stating what his cross-examination would have been. Although the trial court did not allow an offer of proof when the State objected to appellant’s cross-examination, the court later allowed appellant to make an offer of proof when the jury was out of the courtroom.  Therefore, appellant’s claim that he was denied the opportunity to make an offer of proof has no merit.  Appellant’s offer of proof showed that he sought to question Belk about Bohannon’s criminal history. 

            The Sixth Amendment to the United States Constitution guarantees an accused the right to confront the witnesses against him.  Cross-examination allows the jury to assess a witness’s credibility and exposes facts the jury may use in its assessment.  Carroll v. State, 916 S.W.2d 494, 497 (Tex. Crim. App. 1996).  While the sixth amendment protects an accused’s right to cross-examine witnesses, it does not prevent a trial judge’s limitation of cross-examination due to concerns about, among other things, harassment, prejudice, confusion of the issues, or admissibility of the evidence. See Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S. Ct. 1431, 89 L. Ed. 2d 674 (1986).  We review a trial court’s ruling on admission of evidence for an abuse of discretion.  Salazar v. State, 38 S.W.3d 141, 154 (Tex. Crim. App.), cert. denied, 122 S. Ct. 127 (2001).

            Bohannon’s own testimony revealed his criminal history and the police officer’s assistance in his release from jail.  On direct, Bohannon discussed his criminal convictions, pending charges, and release from jail on a personal recognizance bond obtained with Sergeant Smith’s help so that Bohannon could assist in an investigation.  Bohannon further admitted that he violated his agreement with Sergeant Smith by carrying weapons, possessing illegal drugs, and engaging in illegal activity without prior permission.  Additionally, Bohannon testified about his subsequent federal conviction and 188-month sentence for possession of 63 kilograms of cocaine in July 2000.  Further, on cross-examination, Bohannon revealed that he jumped bond and eluded police for five years on a 1994 charge for possession with intent to deliver marijuana.  He further testified that he was not apprehended until July 1999, when he was arrested for a weapons charge.  Bohannon also admitted his arrest record dated to 1985.  Finally, Bohannon discussed his participation in drug rips conducted from September 1999 through October 1999 and the details of his federal drug conviction.  Thus, details of Bohannon’s criminal history were admitted before the jury. Accordingly, even if erroneously disallowed to develop Bohannon’s criminal background through examination of Officer Belk, appellant was not harmed.

            Appellant next contends the trial court prevented cross-examination of Officer Belk regarding Bohannon’s reliability, which reflected on Officer Belk’s judgment and reliability.  Our review of the record reveals otherwise.  The record shows that appellant developed, through cross-examination, the following evidence: (1) Officer Belk conducted an independent background investigation of Bohannon, checking his criminal history; (2) Officer Belk was aware that informants often have their own agenda, and he attempted to minimize Bohannon’s potential to compromise the operation; and (3) Officer Belk did not consider Bohannon to be of “sterling” character.  On direct examination, Officer Belk testified that the typical informant is associated with illegal activities, has a criminal history, and hopes for leniency in his own criminal case if he assists the authorities.  Officer Belk further testified that use of informants in a case such as this is a “necessary evil” because “most dirty cops don’t commit crimes in front of other cops.”

            Therefore, the evidence that reveals Bohannon’s unreliability and Officer Belk’s lack of good judgment was actually developed either through Bohannon’s testimony, or through Officer Belk’s testimony during direct examination. Accordingly, appellant has failed to demonstrate that his substantial rights were violated.  Tex. R. App. P. 44.2(b).

            Finally, we hold the trial court properly refused to allow appellant to impeach Officer Belk’s reliability through evidence of Bohannon’s criminal activity.  While Texas Rule of Evidence 613(b) permits impeachment of a witness with proof of circumstances or statements showing bias or interest, the impeachment should be with the witness’s own acts.  Because the trial court properly ruled that appellant could not impeach Officer Belk through Bohannon’s criminal acts, the court did not abuse its discretion in limiting appellant’s cross-examination.  We overrule appellant’s second issue.

B.  Testimony from Confidential Informant and Fact Witness

            In his third issue, appellant contends he was harmed because the trial court prevented him from cross-examining a confidential informant and fact witness about statements made by appellant and co-conspirators, their prior relationships, and their criminal histories.  Appellant sought to cross-examine Bohannon on (1) details of his prior offenses; (2) the possible sentence a jury might assess in a pending criminal case; and (3) his testimony concerning a prior relationship with Francisco Perez.

            Even if we assume that appellant was denied the right to fully confront these witnesses on their relationship and criminal histories, we conclude that there was no harm to appellant.  We review harm in disallowing cross-examination of witnesses in light of (1) the importance of the witness’s testimony in the prosecution’s case; (2) the cumulative nature of the testimony; (3) the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points; (4) the extent of cross-examination otherwise permitted; and (5) the overall strength of the prosecution’s case.  Kesterson v. State, 997 S.W.2d 290, 293 (Tex. App.—Dallas 1999, no pet.). 

            First, Bohannon’s criminal history was sufficiently before the jury.  Thus, further details were merely cumulative in nature.  See id.  Appellant complains that Bohannon’s criminal history included unconvicted arrests, home invasions, kick burglaries, and carjackings designed to steal drugs and drug money.  On direct, Bohannon admitted that he was not a law-abiding citizen.   He admitted that he was in the business of robbing drug dealers by kicking in their doors, pulling them over in their cars, or raiding their homes.  Bohannon further testified that he had been involved in doing “an awful lot of drug raids.”  Bohannon testified that he impersonated a police officer, carried a weapon, and possessed illegal drugs, all in violation of his agreement with law enforcement officials.  Additionally, he testified that he had been arrested for possession of sixty-three kilograms of cocaine.  During cross-examination, Bohannon testified that he had been a fugitive from Walker County.  He had also been arrested on a weapons charge.  He admitted to a history of convictions, arrests, and trouble with the law dating to 1985.  It is unlikely that the jury had a mistaken impression about the extent and seriousness of Bohannon’s criminal history.

            Second, there was considerable evidence admitted pertinent to Bohannon’s bias in testifying for the State.  Bohannon testified that in exchange for providing intelligence to Sergeant Smith, Sergeant Smith helped him secure a personal recognizance bond from Walker County.  Additionally, Sergeant Smith offered to ask the district attorney for leniency. According to Bohannon, the Walker County case was still pending.  From the evidence presented, the jury could plainly see Bohannon’s motivation to cooperate with the authorities.  We therefore find that there was no harm in prohibiting appellant from attempting to introduce cumulative evidence regarding Bohannon’s criminal history and his motivations for cooperating with the investigation. 

            Third, there is an absence of corroboration showing that Bohannon had a bias in testifying for the State because of his prior carjacking of Perez’s car. See id.  Appellant suggests the carjacking case against Bohannon was dropped after he started working for the State.  The evidence in the record shows that the carjacking case was dropped by a prosecutor unrelated to this case because of reliability problems with witnesses.  We find appellant suffered no harm from restricted cross-examination because this particular example of bias is unsupported and, in fact, controverted by other evidence. 

            Fourth, Perez’s testimony in a bill of exceptions does not corroborate appellant’s complaints about witness credibility.  Appellant claims if permitted to fully cross-examine Perez, such testimony would reveal Bohannon’s lies about why he chose not to enter Perez’s home in a subsequent drug rip.  Bohannon testified that he did not enter Perez’s home because one of the other corrupt police officers, Frank Ferguson, was uncomfortable working with him, not because he feared recognition by Perez as the carjacker.  Perez’s testimony in the bill of exceptions merely reveals that he did not recognize Bohannon.  Thus, even if repeated in front of the jury, Perez’s testimony would not cast doubt on Bohannon’s truthfulness about the subsequent drug rip at Perez’s home.  Further, nothing in the bill of exceptions suggests that Perez was lying about not recognizing Bohannon.

            We find appellant suffered no harm from restricted cross-examination of Bohannon and Perez.  Accordingly issue three is overruled.

C.  Testimony from Alleged Co-Conspirators Regarding Hearsay Statements

            In his fourth issue, appellant contends the trial court erred in disallowing his hearsay statements with a co-conspirator because he had not admitted being a party to a conspiracy.  In the State’s case-in-chief, appellant’s alleged co-conspirators were permitted to testify about their conversations with appellant, and some recordings of conversations were admitted in evidence.  In his defense, appellant sought to explain the conversations and demonstrate that he merely pretended to participate so he could gain the co-conspirators’ trust and ultimately arrest them for drug trafficking.

            Appellant specifically directs us to a conversation with his brother, a police officer involved in the drug rips:

Q.        Okay.  So, in late September, early October of 1999, who first mentioned Eric Gibson to you?

A.        My brother, Mike.

Q.        And what did he say about him?

A.        He said that he had met up with a guy that he had known a while back and that he had had a – just got reacquainted with an old friend of his that was a major drug courier or a mule for a large, I believe it was – it was a large cartel out of Mexico called the Garza cartels.  He was running drugs back and forth and –

THE STATE:  Judge, I’ve got to object to this.  This is all hearsay.

THE COURT:            Sustained.

            The trial court explained that under appellant’s theory, there was no conspiracy. The trial court would not allow appellant to testify about the same conversations previously discussed in the State’s case-in-chief “[u]nless they were statements made in furtherance of a conspiracy.”

            We hold that the trial court properly excluded appellant’s hearsay testimony because the statement was not made in furtherance of a conspiracy under Rule of Evidence 801(e)(2)(e).  “‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”  Tex.  R.  Evid. 801(d). A statement is not hearsay if “[t]he statement is offered against a party and is . . . a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy.”  Tex. R. Evid. 801(e)(2)(e).  To be admissible, it is not enough that the statement be in the course of or just somehow related to a conspiracy.  Williams v. State, 790 S.W.2d 643, 645 (Tex. Crim. App. 1990).  “Some substance must be given to the rule’s requirement, not only that the statement was made ‘in the course’ of the conspiracy, but also that it was made ‘in furtherance’ thereof.”  Id.  The “in furtherance” requirement “is a separate requirement that must be met in addition to the requirement that the statement be made ‘during the conspiracy.’” Meador v. State, 812 S.W.2d 330, 333 (Tex. Crim. App. 1991).

            Statements that are “in furtherance” of a conspiracy are the following: 

class=Section2>

those made (1) with the intent to induce another to deal with the co-conspirators or in any other way to cooperate with or assist the co-conspirators, (2) with the intent to induce another to join the conspiracy, (3) in formulating future strategies of concealment to benefit the conspiracy, (4) with the intent to induce continued involvement in the conspiracy, or (5) for the purpose of identifying the role of one conspirator to another.

class=Section3>

Williams v. State, 815 S.W.2d 743, 746 (Tex. App.—Waco 1991), rev’d on other grounds, 829 S.W.2d 216, 217 (Tex. Crim. App. 1992); see also Crum v. State, 946 S.W.2d 349, 363 (Tex. App.—Houston [14th Dist.] 1997, pet. ref’d).  These type statements further the conspiracy because they “set in motion transactions that [are] an integral part” of the common objective of the conspiracy.  Williams, 815 S.W.2d at 746.

            Conversely, statements that are not in furtherance of a conspiracy, and thus remain hearsay, include those that are (1) casual admissions of culpability to someone the declarant had individually decided to trust; (2) mere narrative descriptions; (3) mere conversations between conspirators; or (4) “puffing” or “boasts” by co-conspirators.  Crum, 946 S.W.2d at 363.

            Appellant’s testimony revealed that (1) his brother Mike first mentioned Eric Gibson to him; and (2) Mike recently became reacquainted with Gibson and described him as “a major drug courier or a mule for a large . . . cartel out of Mexico . . . .”  These statements were part of “mere conversation” between appellant and his brother and did not further any conspiracy.  Accordingly, we hold that the trial court did not err (1) in concluding that appellant’s testimony fell outside the ambit of Rule of Evidence 801(e)(2)(e); and (2) in excluding the testimony in question as hearsay.  See Fairow v. State, 920 S.W.2d 357, 362 (Tex. App.—Houston [1st Dist.] 1996), aff’d, 943 S.W.2d 895 (Tex. Crim. App. 1997). 

            We overrule appellant’s fourth issue.

IV.  Entrapment

            In his fifth issue, appellant contends the trial court erred in refusing to charge the jury on entrapment.

            When evidence from any source raises a defensive issue, and a jury charge on the issue is properly requested, the issue must be submitted to the jury.  Tex. Pen.  Code Ann.§ 8.06(a) (Vernon 1974); Moore v. State, 574 S.W.2d 122, 124 (Tex. Crim. App. 1978). The defense of entrapment is available where the criminal design originated in the mind of government officials or their agents and they induced a defendant to commit a crime he would not otherwise commit.  Sebesta v. State, 783 S.W.2d 811, 812 (Tex. App.—Houston [1st Dist.] 1990, pet. ref’d); see also Lopez v. State, 574 S.W.2d 563, 565 (Tex. Crim. App. 1978).  The issue here is whether appellant was induced to engage in the crime by means likely to cause a person to commit it or rather he was merely afforded the opportunity to commit it.  Sebesta, 783 S.W.2d at 812; see Perez v. State, 816 S.W.2d 490 (Tex. App.—Houston [14th Dist.] 1991, no pet.).  At the very core of the issue is the effect that the inducement would have upon persons generally.  Sebesta, 783 S.W.2d at 812; McEntyre v. State, 717 S.W.2d 140, 145 (Tex. App.—Houston [1st Dist.] 1986, pet. ref’d).

            Further, the “defense of entrapment is not available to a defendant [who] denies the commission of the offense.”  Norman v. State, 588 S.W.2d 340, 345 (Tex. Crim. App. 1979). Denial of the offense is inconsistent with claiming the defense because entrapment assumes the offense was committed. Id.  A defendant “who pleads not guilty and who does not take the stand or offer any testimony inconsistent with commission of the crime [is] still entitled to offer a defense of entrapment.”  Id.  Here, appellant took the stand and admitted the acts constituting the charged offenses, but denied criminal intent.  His defense was that he performed the acts alleged in the indictments while acting in his capacity as a peace officer conducting narcotics investigations.  See Zamora v. State, 508 S.W.2d 819, 822 (Tex. Crim. App. 1974) (holding that defendant’s denial of knowledge that marijuana was in his car was a denial of the offense and did not entitle him to defense of entrapment); Williams v. State, 848 S.W.2d 777, 780–81 (Tex. App.—Houston [14th Dist.] 1993, no pet.); Hubbard v. State, 770 S.W.2d 31, 38–39 (Tex. App. —Dallas 1989, pet. ref’d) (holding that defendant’s denial of intent to deliver heroin was a denial of commission of the offense, which precluded defendant from asserting entrapment); Smith v. State, 733 S.W.2d 604, 604–05 (Tex. App.—Dallas 1987, pet. ref’d), vacated on other grounds, 761 S.W.2d 17 (Tex. Crim. App. 1988).

            Because appellant denied that he intended to commit the offenses for which he was charged, he was not entitled to a jury charge on the defense of entrapment. Accordingly, we find the trial court did not err in refusing to instruct the jury on entrapment.  We overrule appellant’s fifth point of error.

            Having overruled all of appellant’s points of error, we affirm the trial court’s judgment.

                                                                        /s/        Charles W. Seymore

                                                                                    Justice

Judgment rendered and Opinion filed November 27, 2002.

Panel consists of Justices Yates, Seymore and Guzman.

Do Not Publish — Tex. R. App. P. 47.3(b).

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            ^[1]  In defining a drug rip, the State asked Gibson:  “[E]xplain to the jury what a narcotics ripoff is”; “Who is a ‘suspect?’”; “You say you would sit on them for surveillance.  What’s that mean?”; and “What were you looking for?”  Appellant objected, “I object . . . under 4.04(b) [sic], lack of notice on this general overall testimony that he’s giving.”