ARTURO HERRERA BOCANEGRA, Appellant v. THE STATE OF TEXAS, Appellee

SUPREME COURT CASES

Laws-info.com » Cases » Texas » 5th District Court of Appeals » 1999 » ARTURO HERRERA BOCANEGRA, Appellant v. THE STATE OF TEXAS, Appellee

State: Texas

Court: Texas Northern District Court

Docket No: 05-97-00492-CR

Case Date: 07/12/1999

Plaintiff: ARTURO HERRERA BOCANEGRA, Appellant

Defendant: THE STATE OF TEXAS, Appellee

Preview:ARTURO HERRERA BOCANEGRA, Appellant v.
THE STATE OF TEXAS, Appellee
AFFIRMED; Opinion issued July 12, 1999
S
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-97-00492-CR
ARTURO HERRERA BOCANEGRA, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 203rd Judicial District Court
Dallas County, Texas
Trial Court Cause No. F95-53853-JP
OPINION
Before Justices Ovard, James, and Bridges
Opinion By Justice James
Arturo Herrera Bocanegra appeals his conviction for possession of cocaine with intent to deliver in an amount of
400 grams or more. Appellant was sentenced to fifteen years imprisonment. In twenty-one points of error, appellant
generally contends the trial court committed numerous errors in its jury charge, trial counsel was not permitted a
reasonable period of time to object to the charge, the trial court erred in failing to grant an instructed verdict, the
evidence is factually insufficient to support the conviction, the trial court erroneously excluded polygraph evidence, the
trial court erred in overruling challenges for cause to eight prospective jurors, the trial court improperly refused to
allow appellant to call certain witnesses and improperly limited cross- examination of certain State witnesses, and the
trial court failed to grant a mistrial after improper jury argument. We affirm.
Appellant contends he was entrapped. Esteve (“Steve”) Rojas, an acquaintance of appellant, was arrested on
multiple counts of delivery of narcotics. Rojas was offered an opportunity to become a police informant in return for a
recommendation of probation. Rojas accepted and agreed to set up five “multi-kilo” drug transactions within 180 days.
In furtherance of his cooperation agreement, Rojas contacted appellant to arrange the purchase of two kilograms
of cocaine. According to appellant, Rojas offered him a number of inducements to arrange the transaction, including
$4000 from the sale, payment of attorney's fees in a pending custody dispute, forgiveness of a debt of $100 to $150,
and arranging sex. Over the course of approximately three weeks, Rojas telephoned appellant as many as forty to fifty
times to urge appellant to arrange the drug deal and personally met with appellant at least twice. On three occasions,
Rojas showed appellant some cash in a black bag and claimed the bag contained at least $40,000. Appellant also
claims Rojas demanded that appellant “get this f------- deal done.” Appellant also testified he was scared of what
Rojas might do to him. Rojas had once talked about hiring someone to “get back” at a person who wronged him and
also asked appellant if he knew anyone who could put a “hit” on Rojas's girlfriend. Ultimately, appellant arranged for
Rojas to purchase the cocaine from Thomas Mata. Appellant, his father, and Mata were arrested at the scene of the
purchase and charged with possession of cocaine with intent to deliver in an amount of 400 grams or more.
Appellant admitted the allegations of the indictment but defended on the basis of entrapment. Appellant testified
he had never sold cocaine before and would have not done so on this occasion but for Rojas's persuasion, appellant's
pressing financial needs, his pending custody dispute over his children, and his depressed state. The jury rejected
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appellant's entrapment defense and found appellant guilty.
In his first five points of error, appellant alleges various errors in the court's charge. Specifically, appellant
contends the trial court erred in defining the term “persuasion and other means,” in failing to include an application
paragraph, in failing to instruct the jury that Rojas was a law enforcement agent, and in refusing to provide appellant's
counsel a reasonable time to object to the charge.
In reviewing a claim of charge error, we must first determine whether the jury charge contains error. Mann v.
State, 964 S.W.2d 639, 640 (Tex. Crim. App. 1998). If the charge does contain error, we must then determine whether
sufficient harm resulted from the error to require reversal. Id. When the appellant fails to object at trial to an erroneous
charge, he must show he suffered egregious harm from the charge error to be entitled to reversal. Almanza v. State,
686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on reh'g ). Where there has been a timely objection made at trial, an
appellate court will search for only “some harm.” Abdnor v. State, 871 S.W.2d 726, 732 (Tex. Crim. App. 1994).
In his first point of error, appellant complains the trial court erroneously and improperly defined the term
“persuasion and other means.” Article 8.06 of the Penal Code establishes the defense of entrapment. It provides:
(a) It is a defense to prosecution that the actor engaged in the conduct charge because he was induced to do so
by a law enforcement agent using persuasion or other means likely to cause persons to commit the offense. Conduct
merely affording a person an opportunity to commit an offense does not constitute entrapment.
(b) In this section “law enforcement agent” includes personnel of the state and local law enforcement agencies
as well as of the United States and any person acting in accordance with instructions from such agents.
Tex. Penal Code Ann. § 8.06 (Vernon 1994) (emphasis added).
After closely tracking the statute in its charge, the trial court added the following sentence: “By the term
'persuasion or other means' as [used] herein is meant that such as would cause an ordinary person of average resistance
to commit the offense.” Appellant contends the court should not have included this definition because there is no such
definition in the statute and further contends the court's definition improperly limited the scope of the statute to
“ordinary people of average resistance.”
Although appellant cites to several form books which do not include a definition of “persuasion or other means”
in the charge for entrapment, he cites to no authority holding the inclusion of such a definition is error. At any rate, we
need not decide whether a correctly worded instruction would have been proper, because the instruction which the trial
court included is clearly incomplete on its face.
The instruction appears to be based on the court of criminal appeals decision in England v. State, 887 S.W.2d 902
(Tex. Cr. App. 1994). In England, the court held article 8.06 encompasses a mixed subjective/objective test for
entrapment. Id. at 910. The evidence must “show both that [the accused] was in fact induced, and that the conduct that
induced him was such as to induce an ordinarily lawabiding person of average resistance.” Id. at 913. The instruction
as given in this case correctly sets forth the objective portion of the standard for determining entrapment. FN:1 It,
however, omits the subjective portion of the test. The resulting charge, however, was beneficial to appellant rather than
the State because the charge had the effect of reducing appellant's burden of production and increasing the State's
burden of persuasion. Accord England, 887 S.W.2d at 907-08, (holding burden of producing evidence to raise defense
of entrapment is upon accused, but State has burden of persuasion to disprove it). The jury was erroneously instructed
it could find entrapment merely if the persuasion or other means used to induce appellant was sufficient to cause an
ordinary person of average resistance to commit the offense, regardless of whether it in fact induced appellant to
commit the offense. An incomplete charge which is more favorable to the accused than a complete charge is not
harmful error. See Ahmadi v. State, 864 S.W.2d 776, 779 (Tex. App.-Fort Worth 1993, pet. ref'd); Boozer v. State, 848
S.W.2d 368, 370 (Tex. App.-Hous. [1st Dist.]) 1993, pet. ref'd); see also Wilhoit v. State, 638 S.W.2d 489, 499 (Tex.
Crim. App. 1982) (“It is axiomatic that an appellant may not complain that the charge increases the burden of factual
proof on the State.”). Because the charge as given was not calculated to injure appellant's rights or otherwise deny him
a fair trial, the error does not require a reversal of the conviction. See Tex. Code Crim. Proc. Ann. art. 36.19 (Vernon
1981).
In his second point of error, appellant complains the charge erroneously failed to include an application paragraph
applying the law of entrapment to the facts of this case. We disagree. Following the abstract portion of the charge, the
court included the following application paragraph:
Therefore, if you believe from the evidence beyond a reasonable doubt that the Defendant committed the offense as
alleged, but you further believe, or you have a reasonable doubt thereof, that he was induced to do so by Informant
Esteve Rojas, acting as a “law enforcement agent”, if any, by persuasion or any other means likely to cause persons to
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do so, and that the conduct of Informant Esteve Rojas did not merely afford the Defendant an opportunity to commit
the offense, if any, you will find the Defendant not guilty.
Appellant apparently contends the foregoing paragraph is insufficient because it fails to mention the evidence
concerning his entrapment defense. Specifically, appellant contends the application paragraph should have referred to
testimony that the informant contacted appellant twenty to fifty times to request he commit the offense, he approached
appellant on at least three times with a black bag of money, and he offered appellant $4000 to complete the drug
transaction along with the payment of appellant's attorney's fees in a pending civil case and forgiveness of a debt
appellant owed to the informant.
In effect, appellant contends the charge should have included a summary of the evidence which supports his
entrapment defense. Such a summary is specifically prohibited by article 36.14. Tex. Code Crim. Proc. Ann. art. 36.14
(Vernon Supp. 1999). Highlighting appellant's evidence in such a fashion would have been an improper comment on
the weight of the evidence. See, e.g., Caldwell v. State, 818 S.W.2d 790, 799 (Tex. Crim. App.1991) (stating jury
charge may not single out part of the evidence relevant to an issue of fact and indicate what result should follow if
such evidence is believed), overruled on other grounds by Castillo v. State, 913 S.W.2d 529, 533 (Tex. Crim. App.
1995); Zani v. State, 758 S.W.2d 233, 245 (Tex. Crim. App.1988) (holding jury charge may not call attention to some
of the evidence when the law does not prescribe that such evidence should receive special consideration by the jury).
Accordingly, the trial court did not err in failing to refer to the evidence as appellant requested.
Furthermore, even if the application paragraph was deficient, appellant has failed to demonstrate any harm.
Appellant incorrectly assumes the omission of an application paragraph is fundamental error requiring reversal. This is
no longer the law. Even the complete omission of an application paragraph “does not amount to a federal constitutional
error, but is merely 'a technical violation of [a] state-law rule.'” Barrera v. State, 982 S.W.2d 415, 417 (Tex. Crim. App.
1998) (quoting Brown v. Collins, 937 F.2d 175, 182 (5th Cir. 1991)). When an error in the jury charge does not
implicate the federal constitution, the charge is reviewed under the standard set forth in Almanza. Barrera, 982 S.W.2d
at 417. Because appellant has failed to show any harm resulting from any claimed deficiency in the application
paragraph, he has failed to demonstrate reversible error. We overrule appellant's second issue.
In his third point of error, appellant contends the court's charge did not allow the jury to find the informant was a
law enforcement agent “relevant to the facts of this case.” We interpret appellant's complaint to be that the charge did
not apply the abstract definition of a “law enforcement agent” to the facts of the case. Appellant again contends the
charge should have referenced specific evidence which he contends shows the informant was acting as a law
enforcement agent. As with the previous point, appellant's requested instruction would have been both an improper
summary of the evidence and comment on the weight of the evidence. See Tex. Code Crim. Proc. Ann. art. 36.14;
Caldwell, 818 S.W.2d at 799; Zani, 758 S.W.2d at 245. Further, appellant has failed to demonstrate any harm. See
Barrera, 982 S.W.2d at 417. Accordingly, we overrule appellant's third point of error.
In his fourth point of error, appellant contends his counsel was denied a reasonable time to examine the charge
and make objections. The Texas Code of Criminal Procedure provides the defendant or his counsel should be given a
reasonable time to review the jury charge and make any objections or request any additional instructions before the
charge is read to the jury. See Tex. Code Crim. Proc. Ann. art. 36.14 (Vernon Supp. 1999); Evans v. State, 876 S.W.2d
459, 465 (Tex. App._Texarkana 1994, no pet.). Additionally, article 36.16 affords the defendant or his counsel the right
to make additional objections if the charge is changed after the initial round of objections. Tex. Code Crim. Proc. Ann.
art. 36.16 (Vernon Supp. 1999); Evans, 876 S.W.2d at 465. We review the trial court's allotment of time for making
objections to the charge under an abuse of discretion standard. See Mullins v. State, 530 S.W.2d 113, 116 (Tex. Crim.
App. 1975); Evans, 876 S.W.2d at 465.
The record in this case fails to reflect how much time appellant was given to review the proposed charge and to
make objections. The record does indicate that a draft charge was prepared during a lunch break. Further, during the
course of appellant's objections to the charge, the prosecutor objected that appellant's counsel was making objections
for the purpose of delay and noted, “The jury's been expecting us since 1:30, roughly. It's already 3 o'clock.”
Appellant's counsel did not contradict the stated times. Notwithstanding the State's objection, however, the trial court
allowed appellant's counsel to continue with his objections. The court stated:
You may continue briefly. I haven't heard anything new in a long time, but go ahead. We've long gone our five
minutes that I asked you to limit to awhile ago, but try to wrap it up, please. I think we've pretty much exhausted
everything that's in the record in the proposed charge on entrapment or what have you wasn't included on entrapment.
So what else you got?
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Without knowing how much time appellant had to review the charge, it is impossible to conclude the time
allowed was not enough. We do note, however, the charge as given to the jury was nine pages and involved only one
contested issue, appellant's entrapment defense. Further, the record reflects appellant's counsel was given a substantial
period of time to make objections and his objections to the charge cover twelve pages in the reporter's record.
Additionally, appellant has failed to specify any objections to the charge he would have made had he received more
time. In fact, the record reveals appellant's counsel affirmatively stated to the trial court that he had concluded his
objections to the charge, with the exception of reading three pages of a federal court treatise “to see if there's any
additional objections I need to make on behalf of my client.” Appellant has failed to demonstrate the trial court abused
its discretion in not allowing counsel more time to review and object to the charge. We overrule appellant's fourth
point of error.
In his fifth point of error, appellant complains the trial court erred in refusing to instruct the jury the informant
was a law enforcement agent as a matter of law. Appellant cites no authority holding he was entitled to such an
instruction, even if the evidence was not conflicting. Nevertheless, because the evidence in this case does not resolve
the issue as a matter of law, we conclude the issue was properly submitted to the jury.
The mere classification of a citizen as a police informant is insufficient to determine the individual is a law
enforcement agent pursuant section 8.06(b) of the penal code. Rangel v. State, 585 S.W.2d 695, 699 (Tex. Crim. App.
1979). Section 8.06(b) requires some type of communication between the law enforcement official and his agent or
informant, then action by the informant on this communication. Soto v. State, 681 S.W.2d 602, 604 (Tex. Crim. App.
1984); Rangel, 585 S.W.2d at 699. In determining whether an informant is a law enforcement agent within the
meaning of the entrapment statute, we conduct a two prong inquiry. First, we search the record to determine whether
there is evidence the informant was specifically instructed to use an improper procedure to “make a case” against a
particular defendant. Soto, 681 S.W.2d at 604; Rangel, 585 S.W.2d at 699. Secondly, we determine whether the control
of the police over the informant was of a more general nature, such as when the informant has been used repeatedly
and has become experienced in “setting up” people to make cases. Soto, 681 S.W.2d at 604; Rangel, 585 S.W.2d at
699. In such an instance, the police are obligated to properly instruct an agent so the agent does not use improper
means. See Soto, 681 S.W.2d at 604; Rangel, 585 S.W.2d at 699. Factors for consideration in such cases include the
number of cases the informant has been involved in and their disposition, the amount and method of compensating the
informant, the working relationship between the police officer and the informant, and his contact with police officers.
Rangel, 585 S.W.2d at 699. If there is conflicting evidence as to whether a person is a law enforcement officer, the
issue must be submitted to the jury. See Melton v. State, 713 S.W.2d 107, 113 (Tex. Crim. App.1986); Hubbard v.
State, 770 S.W.2d 31, 37 (Tex. App.-Dallas 1989, pet. ref'd); England v. State, 729 S.W.2d 388, 392 (Tex. App.--Fort
Worth 1987, pet. ref'd).
There is no evidence the informant in this case was specifically instructed to make a case against appellant. In
fact, Detective McCoy, who supervised appellant's arrest, specifically denied that anyone had told the informant to
target appellant. While the informant's cooperation agreement is some evidence the police exercised general control
over appellant, the record contains no evidence appellant was involved in any cases prior to this one. The record also
includes no evidence of the informant's working relationship with the police or his contact with police officers between
the time the informant agreed to the cooperation agreement and the time the informant advised the police appellant had
arranged the drug transaction in dispute. Additionally, the evidence is undisputed the police instructed the informant to
engage in no unlawful activity, and there is no evidence the police instructed him to use any improper means or
methods to make a case.
The record therefore does not establish as a matter of law whether the informant was a law enforcement agent
within the meaning of section 8.06(b) of the penal code. The trial court, therefore, properly left this matter for the jury.
We overrule appellant's fifth point of error.
In his sixth point of error, appellant contends the State failed to disprove the defense of entrapment as a matter of
law and the trial court erred in failing to enter an instructed verdict for appellant. We disagree. In reviewing the trial
court's determination to overrule appellant's motion for instructed verdict, we consider whether the evidence presented
was legally sufficient to support the jury's verdict. See Madden v. State, 799 S.W.2d 683, 686 (Tex. Crim. App. 1990);
Jackson v. State, 968 S.W.2d 495, 501 (Tex. App._Texarkana 1998, pet. ref'd). In weighing the legal sufficiency of the
evidence, we determine whether, after considering the evidence in the light most favorable to the jury's verdict, any
rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Jackson v.
Virginia, 443 U.S. 307, 319 (1979); Santellan v. State, 939 S.W.2d 155, 160 (Tex. Crim. App. 1997).
Entrapment exists if the criminal intent originates in the mind of the police agent and the agent then induces the
accused to commit the offense. Williams v. State, 848 S.W.2d 777, 780 (Tex. App.--Houston [14th Dist.] 1993, no pet.)
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Entrapment does not exist where the police agent merely furnishes the opportunity for the commission of the offense.
Tex. Penal Code Ann. § 8.06(a) (Vernon 1994); Rodriguez v. State, 662 S.W.2d 352, 355 (Tex. Crim. App.1984). As
previously noted, to establish the defense of entrapment the evidence must “show both that [the accused] was in fact
induced, and that the conduct that induced him was such as to induce an ordinarily lawabiding person of average
resistance.” England, 887 S.W.2d at 913.
While the burden of producing evidence to raise the defense of entrapment is upon a defendant, the burden of
persuasion to disprove the defense after it has been raised remains with the State. Reese v. State, 877 S.W.2d 328, 333
(Tex. Crim. App.1994). The State's burden, however, is to prove the defendant's guilt beyond a reasonable doubt, not
to affirmatively produce evidence refuting the defensive claim. See Saxton v. State, 804 S.W.2d 910, 913 (Tex. Crim.
App. 1991). Normally the factual issue of entrapment is a question for the jury unless the accused, as a matter of law,
has established he was entrapped. Melton, 713 S.W.2d at 113; Hubbard, 770 S.W.2d at 37. Rarely will entrapment be
established as a matter of law; that is, where the government's inducement was so strong as to be irresistible in the
eyes of any rational jury. January v. State, 720 S.W.2d 207, 211 (Tex. App.-Hous. [14 Dist.] 1986, no pet.); Donnell v.
State, 677 S.W.2d 199, 202 (Tex. App.--Houston [1st Dist.] 1984, no pet.); cf. Gifford v. State, 740 S.W.2d 76, 80
(Tex. App. -- Fort Worth 1987, pet. ref'd) (finding entrapment as matter of law where police agent misrepresented
legality of transaction). Where the evidence on the issue of entrapment is in conflict, the issue must be submitted to the
jury. Melton, 713 S.W.2d at 113; Hubbard, 770 S.W.2d at 37.
Appellant testified he was repeatedly urged by the informant to set up the transaction and the informant offered
him a number of inducements: $2000 for each kilogram of cocaine, sex with young women, forgiveness of a debt of no
more than $ 150, and payment of appellant's attorney's fees in his child custody suit. Appellant also testified the
informant showed him a bag of cash and “demanded” appellant arrange the transaction. Appellant further stated he
was afraid of what the informant might do to him because of the informant's threats against other people.
Except for repeatedly telephoning appellant, flashing a bag of cash, and confirming appellant was to make $2000
for each kilogram of cocaine, the informant either denied appellant's testimony or testified he could not remember any
such event. The informant also denied he threatened appellant or demanded appellant conclude the deal, although he
admitted he may have urged appellant to hurry.
Annoying telephone calls are not a sufficient inducement to cause a person to commit an offense if the person is
not already so disposed. See England, 729 S.W.2d at 392; Craver v. State, 628 S.W.2d 155, 157-58 (Tex. App.--
Houston [14th Dist.] 1982, pet. ref'd). Nor does the offer of money establish entrapment as a matter of law. See
Cabezas v. State, 827 S.W.2d 587, 588 (Tex. App._Houston [1st Dist.] 1992) (holding entrapment not established;
defendant offered of $2000 for kilo of cocaine), rev'd on other grounds, 848 S.W.2d 693 (Tex. Crim. App. 1993);
Lopez v. State, 824 S.W.2d 298, 303 (Tex. App._Houston [1st Dist.] 1992, no pet.) (holding entrapment not
established; defendant offered $1,500 to arrange drug sell). Even where appellant's evidence was not refuted, it was the
jury's prerogative to reject appellant's testimony on the issue of entrapment. Redman v. State, 533 S.W.2d 29, 32 (Tex.
Crim. App. 1976); January v. State, 720 S.W.2d 207, 211 (Tex. App._Houston [14th Dist.] 1986, no pet.).
Because the evidence was conflicting, the trial court properly submitted the issue of entrapment to the jury. We
further conclude the evidence of inducement was not so strong as to establish entrapment as a matter of law. Viewing
the evidence in the light most favorable to the verdict, a rational jury could have concluded beyond a reasonable doubt
that appellant committed the offense and was not entrapped. Therefore, the trial court did not err in overruling
appellant's motion for instructed verdict. We overrule appellant's sixth point of error.
In his seventh point of error, appellant contends the guilty verdict is contrary to the overwhelming weight of the
evidence under the standard set forth in Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). Appellant,
however, fails to provide any separate argument as to why the evidence is insufficient under Clewis. Accordingly,
appellant's point presents nothing for review. See McDuff v. State, 939 S.W.2d 607, 613 (Tex. Crim. App.), cert.
denied, 118 S. Ct. 125 (1997).
Even had appellant preserved this issue for review, we would hold it is without merit. Appellant's entrapment
defense rested primarily on the credibility of the witnesses. The jury is the sole judge of the credibility of the witnesses
and is free to reject the witnesses testimony in whole or in part. See Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim.
App. 1997). Because we must defer to the jury's resolution of credibility issues, we cannot conclude the verdict was so
contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. See Nolasco v. State, 970
S.W.2d 194, 196 (Tex. App._Dallas 1998, no pet.). We overrule appellant's seventh point of error.
In his eighth point of error, appellant asserts the trial court erred “in adopting a per se inflexible exclusionary
ruling prohibiting the introduction of favorable polygraph opinion testimony.” Preliminarily, we note our review of the
record does not comport with appellant's characterization. The trial court did not adopt a “per se inflexible” rule;
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rather, it allowed counsel to submit an extensive offer of proof concerning appellant's polygraph evidence. After
hearing the offer of proof and appellant's argument, the trial court declined to permit the evidence.
An appellate court reviews the trial court's decision to admit or exclude evidence under an abuse of discretion
standard. See Green v. State, 934 S.W.2d 92, 102 (Tex. Crim. App.1996); Montgomery v. State, 810 S.W.2d 372, 379-
80 (Tex. Crim. App. 1991) (op. on reh'g). Therefore, as long as the trial court's ruling is within the zone of reasonable
disagreement, the appellate court will not intercede. See Montgomery, 810 S.W.2d at 391. The court of criminal
appeals has consistently declined to permit the use of polygraph testimony for any purposes. See Castillo v. State, 739
S.W.2d 280, 293 (Tex. Crim. App. 1987); Nethery v. State, 692 S.W.2d 686, 700 (Tex. Crim. App. 1985). The trial
court, just as this court, is bound to follow the decisions of the court of criminal appeals. Having reviewed the record,
we detect no abuse of discretion in the trial court's decision to exclude the polygraph testimony. We overrule
appellant's eighth point of error.
In points of error nine through sixteen, appellant complains the trial court erred in overruling appellant's challenge
for cause to eight prospective jurors. In each instance, the panel member indicated he or she could not be a fair juror
or had a bias which could affect the panel member's impartiality. Assuming, without deciding, that each of the jurors
should have been excluded for cause FN:2 , we conclude appellant has failed to preserve this issue for review.
To show reversible error from the trial court's erroneous denial of a challenge for cause, the appellant must show:
(1) he exhausted all of his peremptory challenges; (2) the trial court denied his request for additional peremptory
challenges; and (3) a prospective juror upon whom he would have exercised a peremptory challenge was seated on the
jury. Adanandus v. State, 866 S.W.2d 210, 220 (Tex. Crim. App. 1993); Allridge v. State, 762 S.W.2d 146, 166 (Tex.
Crim. App. 1988). The record in this case clearly indicates none of the prospective jurors appellant complains of in
points nine through sixteen were seated on the jury. Further, the record reveals no juror who was seated which
appellant would have struck but for the fact appellant had depleted his strikes. Accordingly, we overrule points of nine
through sixteen.
In his seventeenth point of error, appellant complains of the trial court's exclusion of two witnesses appellant
desired to call, the attorney for the informant and an assistant district attorney whom appellant alleges was involved in
the informant's criminal case. In a proffer of the expected testimony, appellant's counsel stated he intended to examine
both witness on the existence of possible unwritten or informal understandings the police reached with the informant to
obtain his cooperation. Counsel did not assert, however, that either witness would testify to the existence of any such
understandings or their terms.
It is the burden of the defendant to show the testimony for which defendant seeks compulsory process is material
and necessary to his defense. Castillo v. State, 901 S.W.2d 550, 553 (Tex. App.-El Paso 1995, pet. ref'd) (citing Hardin
v. State, 471 S.W.2d 60, 62 (Tex. Crim. App.1971)). Counsel's mere belief that a witness might say something to the
defendant's benefit is not sufficient to show that a witness is material to the defense. See id. at 553.
Appellant's proffer failed to state what either witness would testify to. Therefore, the proffer was insufficient and
the trial court did not err in disallowing the witnesses. See id.
Further, even had the testimony of the witness been favorable to appellant, it would merely have been cumulative
of other evidence. The only reason for eliciting any such additional testimony was to attack the informant's credibility
by exposing his motive for testifying. The informant's motive for testifying was established through Detective Nichols,
Sergeant McCoy, appellant, and the informant himself. The evidence established the informant sought to avoid
imprisonment, possibly up to a life term, through his cooperation with the police. The informant's cooperation
agreement was in evidence and through cross-examination counsel for appellant fully explored the informant's
potential bias. The trial court has discretion to limit cumulative testimony. Harwood v. State, 961 S.W.2d 531, 539
(Tex. App._San Antonio 1997, no pet.); Callahan v. State, 937 S.W.2d 553, 559 (Tex. App._Texarkana 1996, no pet.);
see also Tex. R. Evid. 403. We cannot say the trial court abused its discretion here. We overrule appellant's
seventeenth point of error.
In his eighteenth point of error, appellant complains the trial court erred in sustaining the State's objection to the
following cross-examination question of the informant: “He'd seen you with guns, pistols, you and your employees, he
had seen you all with guns, hadn't he?” As appellant acknowledges, however, the trial court did not simply sustain the
State's objection to this line of questioning. Rather, the trial court instructed appellant's counsel to limit the question to
a time period in some proximity to the events in dispute.
We review a trial court's evidentiary rulings for an abuse of discretion. See Guzman v. State, 955 S.W.2d 85, 89
(Tex. Crim. App. 1997); see also Green, 934 S.W.2d at 102. While a trial court may violate a defendant's right of
confrontation by improperly limiting cross-examination, the scope of appropriate cross-examination is not unlimited.
Carroll v. State, 916 S.W.2d 494, 497-98 (Tex. Crim. App. 1996). A trial court may limit the scope of cross-
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examination to prevent harassment, prejudice, confusion of the issues, harm to the witness, and repetitive or marginally
relevant interrogation. Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986); Carroll, 916 S.W.2d at 498.
In this case, the trial court instructed counsel to limit the time frame of his question because appellant had known
the informant for nearly five years and he could have seen appellant with a gun at any time during their acquaintance.
The trial court could reasonably have concluded the admission of such testimony, unrestricted in time, was marginally
relevant and could serve to confuse the issues. Whether appellant may have seen the informant with a gun at some
time in the remote past would have little or no relevance as to whether appellant was in fear of the informant at the
time appellant agreed to arrange the cocaine transaction. To protect against the confusion of issues, the trial court
required the testimony of any incident with a gun to be in such proximity to the transaction in dispute that the jury
could conclude the two were logically related. This was a matter within the sound discretion of the trial court. The
record reflects appellant's counsel never restricted the question to any specific time period. Nor did appellant make any
offer of proof as to when, if ever, appellant witnessed the informant with a gun. On the basis of the record, we cannot
say the trial court abused its discretion by requiring appellant to limit the time frame of the question. We overrule
appellant's eighteenth point of error.
In his nineteenth point of error, appellant similarly contends the trial court erred in sustaining objections to the
following cross-examination question of the informant: “During that period of time, you had given and sold him
cocaine on numerous occasions, isn't that true?” The “period of time” referred to in the question was the period of time
appellant had known the informant. The trial court sustained the objections to the question and instructed appellant's
counsel to limit the time frame to the period surrounding the drug transaction. Counsel again failed to reframe the
question as directed by the trial court. For the same reasons as set forth above for point of error eighteen, we conclude
the trial court did not abuse its discretion in limiting the time frame.
Further, even if the trial court erred in restricting cross examination on this subject matter, we are unable to
perceive any harm to appellant from the exclusion. FN:3 Appellant testified to the same information which he had
unsuccessfully sought to elicit from the informant. Appellant testified as follows:
[Question]      So, would it have been fair to say that Mr. Rojas obviously was a drug dealer, correct?
[Appellant]      Yes.
[Question]      And you were a customer, obviously?
[Appellant]      Yes.
[Question]      Bought Cocaine from him on numerous occasions, correct?
[Appellant]      Yes.
[Question]      Mr. Bocanegra, now, after December 1st or December 2nd in the afore time (sic) you were arrested,
would you tell this jury whether or not Steve Rojas in person or by one of his employees gave or sold you Cocaine?
[Appellant]      Yes.
[Question]      And did he do that in person or through one of his employees?
[Appellant}       One of his employees, I guess, or a friend, you know, whatever.
[Question]      And did that happen more than once or only once?
[Appellant]      Just once.
Appellant's testimony was uncontradicted, therefore, the informant's testimony on the same point would have
been, at best, cumulative, and, potentially, harmful to appellant had the informant contradicted him. We conclude
beyond a reasonable doubt the any error did not contribute to appellant's conviction. See Tex. R. App. P. 44.2(a); see
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also Van Arsdall, 475 U.S. at 684.
We overrule appellant's nineteenth point of error.
In his twentieth and twenty-first points of error, appellant complains the trial court erred in failing to grant a
mistrial after sustaining objections to the prosecutor's closing argument. In his twentieth point of error, appellant
complains of the following argument: “They go in there, and what was the deal? Mr. Bocanegra _ Mr. Rojas hadn't
given him his money. The promise to rob the 7-11. That's what that is.” In his twenty-first point of error, appellant
further complains of the following: “If money is the motive for a crime, and somebody promises somebody else the
opportunity to make money, then ask yourself about every burglar, every car thief.”
Appellant notes on three occasions FN:4 the prosecutor attempted to argue appellant's position was no different
from any defendant who is promised money to commit a crime. Appellant contends this analogy was improper
because, unlike entrapment, the other crimes the prosecutor mentioned do not involve any persuasion by a state agent.
According to appellant, the State's argument was, in effect, a statement of law which was contrary to the court's charge
because it failed to recognize an essential element of entrapment. See Davis v. State, 506 S.W.2d 909, 911 (Tex. Crim.
App. 1974). Appellant further contends the error was so prejudicial it could not be cured by the trial court's instruction
to disregard.
The general areas of proper jury argument are (1) summation of the evidence, (2) reasonable deductions from the
evidence, (3) answer to the argument of opposing counsel, and (4) pleas for law enforcement. Wilson v. State, 938
S.W.2d 57, 59 (Tex. Crim. App. 1996). Generally, when an argument falls outside of these areas, error occurs;
however, an instruction to disregard the argument ordinarily cures the error. Dinkins v. State, 894 S.W.2d 330, 357
(Tex. Crim. App. 1995). This is so unless the improper argument is "so inflammatory that its prejudicial effect cannot
reasonably be removed by such an admonition." Andujo v. State, 755 S.W.2d 138, 144 (Tex. Crim. App.1988). Thus,
reversible error occurs only when statements to the jury are so extreme, manifestly improper, or inject new and
harmful facts into the case that they deprive the defendant of a fair and impartial trial. McGee v. State, 774 S.W.2d
229, 238 (Tex. Crim. App. 1989). In determining whether comments by the prosecutor constitute reversible error, the
argument is viewed in light of the facts adduced at trial and in the context of the entire argument. Id. at 239.
In each instance when the prosecutor analogized to other crimes, appellant objected, the trial court sustained the
objection, and the court instructed the jury to disregard the prosecutor's statements. Additionally, after the prosecutor's
third such reference, the trial court instructed the jury as follows:
Members of the Jury, the defense of entrapment has been raised. As explained to you in the Court's charge, you will
apply that law. All of what's contained in the Court's Charge applies. Entrapment has two elements of an agent plus at
the same time there has to be the agent concept and there has to be the inducement as defined. Since that is clearly
raised then you might want to make sure you fully understand the charge. So when the entrapment is argued, remember
there's two elements not one.
Go ahead.
The trial court's instruction was specifically tailored to cure the harm complained of by appellant. It informed the
jury that the use of a state agent was a necessary element of the defense of entrapment and directed the jury's attention
to the charge, which also included the elements of entrapment. In the context of the entire argument and the facts
adduced at trial, we conclude the jury would not have been confused as to the necessary elements of the defense. The
State's argument was not so inflammatory that any prejudicial effect could not reasonably be removed by the trial
court's admonition, and the prosecutor's statements were not so extreme or improper as to deprive appellant of a fair
and impartial trial.
Nor do the State's repeated attempts to overcome appellant's objection alter our conclusion. Although repeated
attempts by the State to circumvent a trial court's ruling can, in an appropriate instance, result in reversible error, we do
not believe the State crossed the line here. Cf. Young v. State, 752 S.W.2d 137, 147 (Tex. App.-Dallas 1988, pet. ref'd)
(holding prosecutor's repeated failure to honor trial court's ruling placed error “over the line between harmless and
reversible”). In each instance here, the State attempted to use an analogy not previously objected to. While the State's
third attempt to use this line of argument treads closely to ignoring the spirit of the trial court's earlier rulings, the State
did not violate a specific instruction from the trial court. Furthermore, the third instance provoked an extensive
instruction from the trial court, and appellant has not demonstrated the court's instruction failed to cure any error. See
Moreno v. State, 978 S.W.2d 285, 288 (Tex. App._Fort Worth 1998, no pet.) We overrule appellant's twentieth and
twenty-first issues.
Having overruled each of appellant's points of error, we affirm the judgment of the trial court.
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TOM JAMES
JUSTICE
Do Not Publish
Tex. R. App. P. 47
970492F.U05
FN:1
1 Accordingly, we reject appellant's argument that the instruction unduly limits the protection of the statute to
“ordinary people of average resistance.” See also Hubbard v. State, 770 S.W.2d 31, 38 (Tex. App._Dallas 1989, pet.
ref'd) (noting entrapment statute “has been interpreted to prohibit methods of persuasion likely to cause persons
generally, those not ready and willing to commit the crime, to engage in the conduct charged.”).
FN:2
2 The record reveals that as to two of the jurors the trial court originally refused to exclude (the subjects of points of
error nine and thirteen, respectively), the trial court reversed itself and later dismissed these jurors for cause. For this
additional reason, points of error nine and thirteen lack merit.
FN:3
3 When the trial court improperly denies an accused's opportunity to cross-examine a State's witness, we analyze harm
under the Van Arsdall standard. Van Arsdall, 475 U.S. at 684; Love v. State, 861 S.W.2d 899, 904 (Tex. Crim. App.
1993); Shelby v. State, 819 S.W.2d 544, 547 (Tex. Crim. App. 1991). We first assume that “the damaging potential of
the cross-examination was fully realized.” Shelby, 819 S.W.2d at 547; Alexander v. State, 949 S.W.2d 772, 775 (Tex.
App. _Dallas 1997, pet. ref'd). We then review the error 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. Shelby, 819 S.W.2d at 547; Alexander, 949 S.W.2d at 775.
FN:4
4 Appellant's twentieth and twenty-first points of error appear to be directed at the prosecutor's second and third
attempts to analogize to other crimes, although in his argument appellant also refers to the first instance. During the
first instance, the prosecutor argued appellant's actions were similar to robbing a 7-11, robbing a bank, or committing
murder for insurance proceeds. Although appellant objected to this argument, his objection was limited to the
comparison with “crimes of violence.” The trial court sustained the objection and instructed the jury to disregard “the
State argument as to insurance proceeds and homicide.” The other two analogies were not addressed, and appellant
sought no further instruction at that time. Appellant's later objections, however, were broad enough to cover all the
prosecutor's analogies. To the extent appellant relies on the prosecutor's first attempt to analogize to other crimes,
appellant has not preserved the issue for review. See Tex. R. App. P. 33.1 To the extent the State, however, relies on
appellant's initial objection to contend appellant's argument on appeal does not comport with his objection at trial, the
State's argument is misdirected.
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