The issue presented in this appeal is whether evidence of extraneous offenses is admissible when: (1) the accused alleges entrapment as a defense, and (2) the extraneous offenses sought to be admitted occurred in the context of the previous relationship between the accused and the informant-law enforcement agent alleged to have used improper inducements on behalf of the police. From the conclusion reached by the majority to this question, I respectfully dissent.
Evidence inadmissible for one reason may be admissible for another. The State may not be able to introduce evidence of appellant's character generally to overcome the defense of entrapment, but the jury is surely entitled to know the full context of the relationship between appellant and the informant-agent regarding the issue of whether the informant-agent's acts did, in fact, induce appellant to commit the crime as charged. Without the disputed evidence, how could the State have explained why the informant-agent telephoned the appellant so persistently in trying to obtain drugs? What the jury might see as inappropriate conduct between strangers, may (and by its verdict, did) seem reasonable in the context that included evidence of the previous drug exchanges.
The majority cites Donnell v. State, 677 S.W.2d 199, 203 (Tex.App. — Houston [1st Dist.] 1984, no pet.), in support of its position. Donnell is helpful in restating the objective test of entrapment which "mandates that the trial court, having once determined that there was an inducement, need now consider only the nature of the State agent activity involved, without reference to the predisposition of the particular defendant." Donnell, 677 S.W.2d at 203. But Donnell is not persuasive regarding the evidentiary point before us, as the extraneous offense offered in Donnell was outside the context of the relationship between the officer and the accused.
The majority primarily relies on Bush v. State, 611 S.W.2d 428, 429 (Tex.Crim.App. 1981), *Page 547 as authority for its holding. Bush was overruled in an opinion issued in response to the State's motion for rehearing. Bush, 611 S.W.2d at 432. Although the original Bush opinion has been cited many times for the general test to be applied regarding the entrapment defense, I do not find it cited for the evidentiary holding relied on by the majority, and it is only dicta regarding the issue before us.
Under the charge, the jury had to decide whether the informant-agent's conduct pressured appellant into committing the offense, or whether the conduct merely afforded appellant with the opportunity to commit the offense. The introduction of extraneous offenses has been permitted to allow the State to refute a claim of entrapment. Ivatury v. State, 792 S.W.2d 845, 851 (Tex.App. — Dallas 1990, pet. ref'd),Gilliam v. State, 749 S.W.2d 582, 583 (Tex.App. — Eastland 1988, no pet.). The facts in Gilliam similarly involve other drug transactions between the defendant and the State's witness.
Finding no error, I would affirm the trial court's judgment.