author: GEORGE C. HANKS, JR., Justice.

text:
    TRIGEANT HOLDINGS, LTD. and Trigeant Holdings, LLC, Appellants, v. Jerral W. JONES, Appellee.
    No. 01-04-00542-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Nov. 17, 2005.
    Rehearing Overruled Dec. 15, 2005.

      Jan Woodward Fox, Mary A. Van Ker-rebrook, Elder, Van Kerrebrook & Cor-pening, LLP, Jennifer R. Tillison and Kevin Dubose, Alexander Dubose Jones <& Townsend LLP, Houston, TX, for Appellants.
    Kenneth T. Fibich, Fibich, Hampton, Leebron & Garth, L.L.P., Lynne Liberato, Aleñe Ross Levy, Mark Trachtenberg, Haynes & Boone, L.L.P., Houston, TX, for Appellee.
    Panel consists of Justices NUCHIA, HANKS, and HIGLEY.
   OPINION ON REHEARING

GEORGE C. HANKS, JR., Justice.

We withdraw our Opinion of July 28, 2005 and issue the following Opinion in its stead. We deny the appellants’ motion for rehearing.

This is an accelerated, interlocutory appeal from the trial court’s denial of a special appearance filed by appellants, Trigeant Holdings, Ltd. and Trigeant Holdings, LLC (collectively “the Trigeant Holdings entities”). See Tex. Civ. Prac. & Rem.Code Ann. § 51.014(a)(7) (Vernon Supp.2004-2005). The Trigeant Holdings entities argue that the trial court erred by denying their special appearance for the following reasons: (1) the trial court lacked specific jurisdiction over the Trigeant Holdings entities because none of the appellee’s, Jerral W. Jones’s, causes of action arose out of activities that the Trigeant Holdings entities purposefully directed toward Texas; (2) the trial court lacked general personal jurisdiction over the Trigeant Holdings entities which had no continuous and systematic contacts with Texas; and (3) the exercise of personal jurisdiction over the Trigeant Holdings entities would not comport with fair play and substantial justice. We affirm the trial court’s denial of the Trigeant Holdings entities’ special appearance.

Background

In 1982, Jerral W. Jones and Sanford Brass, both Texas residents, jointly executed a secured promissory note for $15,200,000. The funds were invested in Sentry Refining, Inc., a refinery jointly owned by Jones and Brass. Jones and Brass eventually defaulted on the note, prompting the Federal Deposit Insurance Corporation (“FDIC”) to bring suit against Jones and Brass to collect the balance owed.

Jones agreed to settle the case by personally paying $13,700,000 to the FDIC. As part of the settlement, Jones divested himself of all ownership interest in Sentry Refining, Inc. and transferred full ownership to Brass. In return, Brass executed three promissory notes to Jones intended to secure repayment of the $13,700,000 personally expended by Jones.

In 1987, Jones and Brass entered into an amended settlement agreement pertaining to the debt Brass owed Jones. The amended agreement provided that payment on two of the notes, in the combined principal amount of $6,525,000, would be “non-recourse” to Brass, that is, Brass would not be personally liable on the notes. The amended agreement further provided that the payment on the two notes was to come from profits, distributions, or liquidation proceeds derived from Brass’s interest in a refinery located in Corpus Christi, Texas. The Corpus Christi refinery was controlled by Trifinery Joint Venture (“TJV”), a Texas company in which Brass owned a 50% interest and into which Brass had transferred the assets of Sentry Refining, Inc.

Over the course of years, Brass represented to Jones that TJV was unprofitable. Brass claimed that TJV was unable to make any distributions to its shareholders, and Brass, therefore, could not make any payments to Jones. As a result, Brass did not make any payments on the notes. In 1994, TJV transferred all of its interest in the Corpus Christi refinery to Trifinery Petroleum Services (“TPS”), another Texas company in which Brass also owned a 50% interest. Brass later bought the other one-half-interest, giving him 100 % ownership of the Trifinery assets.

In 1999, Jones brought a declaratory judgment action against Brass in an attempt “to enforce the terms, obligations and conditions” in the settlement agreement addressing Brass’s repayment to Jones. Jones further alleged breach of contract and breach of implied covenant of good faith and fair dealing.

On June 29, 2001, while Jones’s suit against Brass was pending and pursuant to an Asset Purchase Agreement executed in Houston, Texas, TPS sold its interest in the Corpus Christi refinery for $17,663,665 to Trigeant, Ltd., a Florida company in which Brass’s son and Texas resident, Arthur Brass, owned a 48.51% interest. Jones alleged that, at the time of Trigeant, Ltd.’s purchase of the Corpus Christi refinery, the fair market value of the refinery was $38,000,000 to $44,000,000 — more than twice the amount of the sale.

On the same day as the sale of the Corpus Christi refinery to Trigeant, Ltd., the Trigeant Holdings entities also executed a Capitalization Agreement in Houston, Texas to purchase a 100% equitable ownership of Trigeant, Ltd. Pursuant to this agreement, the Trigeant Holdings entities acquired a 100% equitable ownership interest in all of Trigeant, Ltd.’s assets, including the Corpus Christi refinery. Additionally, under this agreement, Arthur Brass exchanged his 48.51% interest in Trigeant, Ltd. for a 25% equity interest in the Trigeant Holdings entities and received a cash distribution from the Trigeant Holdings entities in an amount exceeding $1,000,000.

Jones joined the Trigeant Holdings entities, Arthur Brass, Trigeant, Ltd., TJV, and TPS to the suit pending against Sanford Brass. In addition to the causes of action already asserted against Sanford Brass, Jones sued the entities under the Texas Uniform Fraudulent Transfers Act (“UFTA”) for fraudulently transferring the refinery assets and its proceeds to various entities to avoid paying any of the proceeds to Jones. Jones also sued these entities for civil conspiracy alleging that they conspired to design and implement this scheme to fraudulently transfer the refinery assets and its proceeds to prevent Jones from receiving them. Sanford Brass, Arthur Brass, Trigeant, Ltd., TJV, and TPS filed answers; however, the Trigeant Holdings entities filed a special appearance and answered subject to their special appearance.

The Trigeant Holdings entities’ special appearance asserted that the trial court did not have jurisdiction over them for the following reasons: (1) the Trigeant Holdings entities were formed and continued to exist under the laws of Florida and were not residents of Texas, no formal meetings took place in Texas, and the Trigeant Holdings entities did not conduct business in Texas; (2) the sale of the Trifinery assets was not made for the Trigeant Holdings entities’ benefit and the Trigeant Holdings entities did not engage in any specific acts within Texas in connection with the asset sale; and (3) Jones’s allegations were insufficient to confer jurisdiction. Additionally, the Trigeant Holdings entities attached evidence in the form of an affidavit from Robert J. Stefans, Jr., Vice President of Trigeant Holdings, LLC. In his affidavit, Stefans testified to the following:

-Trigeant Holdings, LLC is a Florida limited liability company;
-Trigeant Holdings, Ltd. is a Florida limited partnership;
-the Trigeant Holdings entities were formed and continue to exist under the laws of the State of Florida;
- Trigeant Holdings, Ltd. is the holding company for various entities including Trigeant, Ltd.;
- Trigeant Holdings, LLC is the general partner of Trigeant Holdings, Ltd.;
-neither Trigeant Holdings entity has ever been served with a lawsuit in Texas other than this suit;
- neither Trigeant Holdings entity maintains a place of business in Texas;
- neither Trigeant Holdings entity maintains any agents or employees in Texas;
-neither Trigeant Holdings entity owns any entity formed under Texas law, although Trigeant Holdings, LLC has ownership interests in some entities which do business in Texas, including Trigeant, Ltd.;
-the registered agent for the Trigeant Holdings entities is in Miami, Florida;
-all formal meetings for the Trigeant Holdings entities are conducted in Florida;
-neither Trigeant Holdings entity conducts any business, owns property, or has any bank accounts in Texas;
-the sole office for the Trigeant Holdings entities is in Boca Raton, Florida;
-neither Trigeant Holdings entity has engaged in any business with Jones or Sanford Brass; and
-neither Trigeant Holdings entity has ever received a conveyance of any assets from TPS or of any assets formerly belonging to TPS.

In his response to the Trigeant Holdings entities’ special appearance, Jones alleged that,

during the course of this litigation, Brass’ [sic] took his scheme to deprive Jones of any payment under the settlement agreement to a new level. In 2001, he conspired with his son, Arthur J. Brass, and others to sell the refinery business without paying any sale proceeds to Jones. The conspirators designed a fraudulent scheme to prevent Brass’s receipt of net sale proceeds, which necessarily would have been applied to the payment of [the two notes].

Accordingly, Jones argued that the trial court had specific jurisdiction over the Trigeant Holdings entities and attached the following evidence in support of his allegations that the proceeds of the refinery were being fraudulently transferred to various entities and Arthur Brass:

-two independent appraisals from 2000 and 2001, showing that the fair market value of the Trifinery business was between $28,000,000 and $45,600,000;
- the Asset Purchase Agreement executed in Houston, Texas in 2001 between TPS and Trigeant, Ltd., showing that the Trifinery assets were sold for $17,663,665;
-the Trigeant, Ltd., Limited Partnership Agreement, showing that Arthur Brass owned 48.51% and Trigeant Holdings, LLC owned 1% of Trigeant, Ltd. at the time of Trigeant, Ltd.’s purchase of the Trifinery assets;
-the Employment Agreement between Trigeant, Ltd. and Arthur Brass reflecting that Arthur Brass was to be paid $400,000 a year to serve as director of business development for Trigeant, Ltd.;
- a promissory note indicating that Ar- ' thur Brass owed Harry Sargeant, III (his partner in Trigeant, Ltd. and manager of Trigeant Holdings, LLC) $490,000;
- a Consulting Agreement indicating that Sanford Brass was paid $20,833.33 a month and the use of a driver and car to consult with Trigeant, Ltd.;
-the Capitalization Agreement of Trigeant Holdings, Ltd. executed in Houston, Texas in 2001 reflecting Arthur Brass’s transfer of his equity interest in Trigeant, Ltd. in exchange for a 25% membership interest in Trigeant Holdings, Ltd.;' and
-excerpts from Arthur Brass’s deposition during which he téstifíed about the income he received for his partnership interest in the Trigeant Holdings entities.

Jones alleged that all proceeds from the transfer of assets to the Trigeant Holdings entities and those proceeds paid to Arthur Brass should have been applied to repay the settlement notes owed to him. Jones did not allege general jurisdiction, did not rely on an alter ego theory, and did not assert the parent-subsidiary relationship as a basis for jurisdiction.

The trial court denied the Trigeant Holdings entities’ special appearance.

Special Appearance

Standard of Review

The plaintiff bears the initial burden of pleading sufficient allegations to bring a non-resident defendant within the personal jurisdiction of a Texas court. BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 793 (Tex.2002). However, upon filing a special appearance, the non-resident defendant assumes the burden to negate all the bases of personal jurisdiction alleged by the plaintiff. Id. The existence of personal jurisdiction is a question of law, reviewed de novo, but that determination must sometimes be preceded by the resolution of underlying factual disputes. Preussag Aktiengesellschaft v. Coleman, 16 S.W.3d 110, 113 (Tex.App.-Houston [1st Dist.] 2000, pet. dism’d w.o.j.). Although findings of fact are not required, when, as here, the trial court does not file findings of fact in a special appearance, all questions of fact are presumed to support the judgment. See Tex.R.App. P. 28.1; Ace Ins. Co. v. Zurich Am. Ins. Co., 59 S.W.3d 424, 427 (Tex.App.-Houston [1st Dist.] 2001, pet. denied).

Personal Jurisdiction and Due Process Requirements

Texas courts may assert personal jurisdiction over a non-resident defendant only if the Texas long-arm statute authorizes jurisdiction and the exercise of jurisdiction is consistent with federal and state due process standards. Guardian Royal Exch. Assur., Ltd. v. English China Clays, P.L.C., 815 S.W.2d 223, 226 (Tex.1991). The Texas long-arm statute reaches “as far as the federal constitutional requirements of due process will allow.” Id. Thus, the Texas long-arm statute requirements are satisfied if exercising jurisdiction comports with federal due process limitations. Id. We rely on precedent from the United States Supreme Court as well as our own state’s supreme court decisions in determining whether a non-resident defendant has met its burden to negate all bases of jurisdiction. BMC Software, 83 S.W.3d at 795.

Under the Due Process Clause of the Fourteenth Amendment, jurisdiction is proper if a non-resident defendant established “minimum contacts” with Texas and maintenance of the suit does not offend “traditional notions of fair play and substantial justice.” Int’l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945). Accordingly, we focus upon the defendant’s activities and expectations in deciding whether it is proper to call it before a Texas court. Id.

The minimum-contacts analysis requires that a defendant “purposefully avail” itself of the privilege of conducting activities within Texas, thus invoking the benefits and protections of our laws. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475, 105 S.Ct. 2174, 2183, 85 L.Ed.2d 528 (1985). The defendant’s activities, whether they consist of direct acts within Texas or conduct outside Texas, must justify a conclusion that the defendant could reasonably anticipate being called into a Texas court. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 567, 62 L.Ed.2d 490 (1980). A defendant must seek some benefit, advantage, or profit by “availing” itself of the jurisdiction. Jurisdiction is premised on notions of implied consent that, by invoking the benefits and protections of a forum’s laws, a non-resident consents to suit there. Michiana Easy Livin’ Country, Inc. v. Holten, 168 S.W.3d 777, 784-85, 48 Tex.Sup.Ct. J. 78 (Tex.2005).

A defendant is not subject to jurisdiction here if its Texas contacts are random, fortuitous, or attenuated. See id.; Guardian, 815 S.W.2d at 226. Nor can a defendant be haled into a Texas court based on the unilateral acts of a third party. Michiana, 168 S.W.3d at 784-85. It is the quality and nature of the defendant’s contacts, rather than their number, that is important to the minimum-contacts analysis. Guardian, 815 S.W.2d at 230 n. 11.

Specific Jurisdiction

A defendant’s contacts with a forum can give rise to either general or specific jurisdiction. CSR Ltd. v. Link, 925 S.W.2d 591, 595 (Tex.1996). Specific jurisdiction is established if the defendant’s alleged liability arises from or is related to an activity conducted within the forum. Id. When specific jurisdiction is asserted, the minimum contacts analysis focuses on the relationship between the defendant, the forum, and the litigation. Blair Communications, Inc. v. SES Survey Equip. Serv., Inc., 80 S.W.3d 723, 727 (Tex.App.-Houston [1st Dist.] 2002, no pet.); Mem’l Hosp. Sys. v. Fisher Ins. Agency, Inc., 835 S.W.2d 645, 650 (Tex.App.-Houston [14th Dist.] 1992, no writ). The contacts must be purposely directed at or take place within the forum and must have a “substantial connection” that results in the alleged injuries. Mem’l Hosp. Sys., 835 S.W.2d at 650. Merely contracting with a Texas citizen does not, by itself, satisfy the minimum contacts requirement. Id. Rather, the focus of the examination must be the nature of the contacts and the “nexus” these contacts create with the forum state. McDermott v. Cronin, 31 S.W.3d 617, 621-22 (Tex.App.-Houston [1st Dist.] 2000, no pet.).

Application of the Texas Long — Arm Statute

The Trigeant Holdings entities initially argue that the trial court lacks specific jurisdiction over them because they did not commit any tort in whole or in part in Texas as required for personal jurisdiction by the Texas Long-Arm Statute. They argue that, as a matter of law, they cannot be held liable for any alleged violation of the UFTA because (1) they are not “transferees” under the statute and (2) the statute does not give Jones any remedy against them. We disagree.

Commission of Tort — Violation of UFTA

The Trigeant Holdings entities are transferees and subject to liability under the UFTA. The UFTA not only creates liability against “the person for whose benefit the transfer was made,” such as the debtor, but also against “the first transferee of the asset,” or any “subsequent transferee.” See Tex. Bus. & Com. Code Ann. § 24.009(b) (Vernon 2002); see also Amoco Chem. Co. v. Tex Tin Corp., 925 F.Supp. 1192, 1200-01 (S.D.Tex.1996). The UFTA does not define who is a “transferee” under the statute. It does, however, specifically define the term “transfer.” Under the UFTA, “transfer” means “every mode, direct or indirect, absolute or conditional, voluntary or involuntary, of disposing of or parting with an asset or an interest in an asset, and includes payment of money, release, lease, and creation of a hen or other encumbrance.” Tex. Bus. & Com.Code Ann. § 24.002(12) (Vernon 2002) (emphasis added). Under this broad definition of “transfer,” the purchase by and transfer to the Trigeant Holdings entities of an equitable interest in the Corpus Christi refinery— the very subject of Jones’s causes of action — renders the Trigeant Holdings entities “transferees” under-the UFTA. See, e.g., Tel. Equip. Network v. TA/Westchase Place Ltd., 80 S.W.3d 601, 611 (Tex.App.-Houston [1st Dist.] 2002, no pet.) (holding that party became a “transferee” under UFTA once it acquired a lien against asset alleged to have been fraudulently transferred.)

Likewise, Jones has a potential remedy against the Trigeant Holdings entities. The expansive language of the UFTA’s “remedy” section provides Jones with a broad range of remedies that can be sought from subsequent transferees, such as the Trigeant Holdings entities, if they are found to have participated in the fraudulent transfer of assets. Section 24.008, entitled “Remedies of Creditors,” provides as follows:

(a) In an action for relief against a transfer or obligation under this chapter, a creditor, subject to the limitations in Section 24.009 of this code, may obtain:
(1) avoidance of the transfer or obligation to the extent necessary to satisfy the creditor’s claim;
(2) an attachment or other provisional remedy against the asset transferred or other property of the transferee in accordance with the applicable Texas Rules of Civil Procedure and the Civil Practice and Remedies Code relating to ancillary proceedings; or
(3) subject to applicable principles of equity and in accordance with applicable rules of civil procedure:
(A) an injunction against further disposition by the debtor or a transferee, or both, of the asset transferred or of other property;
(B) appointment of a receiver to take charge of the asset transferred or of other property of the transferee; or
(C) any other relief the circumstances may require.

Tex. Bus. & Com.Code Ann. § 24.008(a) (Vernon 2002) (emphasis added). See, e.g., Airflow Houston Inc. v. Theriot, 849 S.W.2d 928, 934 (Tex.App.-Houston [1st Dist.] 1993, no writ) (interpreting UFTA’s broad equitable remedy language, by holding that judgment against transferee for entire amount of debt owed to defrauded creditor was permitted under equitable relief provisions of UFTA, regardless of whether entire value of asset or interest in asset was ever received by transferee); Gutierrez v. Givens, 1 F.Supp.2d 1077, 1087 (S.D.Cal.1998) (interpreting the UFTA’s broad equitable remedy language to mean that, when sufficient allegations exist regarding an entity’s complicity with a debtor to fraudulently transfer assets, it was possible for debtor to make a claim for relief against entity). Accordingly, it is possible for Jones to obtain a remedy against the Trigeant Holdings entities under the UFTA if it is found, as alleged by Jones, that they received fraudulently transferred assets in bad faith and in complicity with Sanford Brass.

Minimum Contacts

Next, the Trigeant Holdings entities argue that they do not have sufficient minimum contacts with Texas for the trial court to exercise specific jurisdiction over them. We disagree.

The contact at issue is the Trigeant Holdings entities’ participation in a transaction in Houston, Texas. The crux of Jones’s claims against the Trigeant Holdings entities for violation of the UFTA and civil conspiracy is that, by executing the Capitalization Agreement in Houston, Texas, the Trigeant Holdings entities purchased and received a 100% equitable ownership of Trigeant, Ltd., and, thus, equitable ownership of the very assets at issue in this case-the Corpus Christi, Texas refinery and any proceeds from this refinery. Jones alleges that this agreement was executed so that Sanford Brass and Trigeant, Ltd. could avoid paying these future refinery proceeds to Jones, a Texas resident. Jones also alleges that the agreement was executed so that some of these proceeds would go to Brass’s son, Arthur, also a Texas resident, in the form of consulting fees and a cash distribution. Jones further alleges that the Trigeant Holdings entities executed the Capitalization Agreement with specific knowledge that there was a lawsuit pending in Texas regarding the proceeds from the Corpus Christi refinery.

By participating in a Texas transaction involving the transfer of Texas-based assets to allegedly defraud a Texas resident, the Trigeant Holdings entities purposefully availed themselves of the benefits and privileges of conducting business in Texas. The Trigeant Holdings entities’ contact with Texas was not the result of a unilateral act of a third party nor was it random or fortuitous; it was the direct and intended consequence of their execution of the Capitalization Agreement. As a result of this contact, the Trigeant Holdings entities, not Jones, became the beneficiaries of any future income streams generated by the refinery in Texas. This contact is the focus of Jones’s alleged injuries. Under these circumstances, it would not offend the notions of fair play and substantial justice for the trial court to exercise specific jurisdiction over the Trigeant Holdings entities and require them to defend this action in Texas.

Conclusion

We affirm the order of the trial court.

        . Jones concedes that he did not allege general jurisdiction as a basis for jurisdiction in the trial court; therefore, we need not address this point of error on appeal.

      . Specifically, Brass agreed that he would "... assign to Jones all distributable cash profits, cash dividends, distributions of cash flow or distributable cash sale or liquidation proceeds ("Distributions”) attributable to Brass’ partnership interest in Trifinery and/or stock interest in Petroserve Services, Inc.”

      . Texas resident, Arthur Brass, was also one of the signatories to this agreement.

      . Jones also claimed that Sanford Brass, individually, was liable for breach of contract and actual fraud.

      . Jones argues that this promissory note is significant because it shows that Arthur Brass was able to “buy” his 48.51% ownership in Trigeant, Ltd. without spending any of his own money.

      . The Texas long-arm statute allows a Texas court to exercise personal jurisdiction over a non-resident defendant who does business in Texas. Tex Civ. Peac. & Rem.Code Ann. § 17.042 (Vernon 1997). A non-resident does business in Texas if it (1) contracts by mail or otherwise with a Texas resident and either party is to perform the contract in whole or in part in this state; (2) commits a tort in whole or in part in this state; or (3) recruits Texas residents, directly or through an intermediary located in this state, for employment inside or outside this state. Id.

      . Section 24.009, entitled “Defenses, Liability, and Protection of Transferee,” provides
      (a) A transfer or obligation is not voidable under Section 24.005(a)(1) of this code against a person who took in good faith and for a reasonably equivalent value or against any subsequent transferee or obli-gee.
      (b) Except as otherwise provided in this section, to the extent a transfer is voidable in an action by a creditor under Section 24.008(a)(1) of this code, the creditor may recover judgment for the value of the asset transferred, as adjusted under Subsection (c) of this section, or the amount necessary to satisfy the creditor’s claim, whichever is less. The judgment may be entered against:
      (1) the first transferee of the asset or the person for whose benefit the transfer was made; or
      (2) any subsequent transferee other than a good faith transferee who took for value or from any subsequent transferee.
      Tex. Bus. & Com.Code Ann. § 24.009(a), (b) (Vernon 2002).

      . Relying on the holding in Nat’l Indus. Sand Ass’n v. Gibson, 897 S.W.2d 769, 773 (Tex.1995), the Trigeant Holdings entities also argue that, because there can be no valid claim against them under the UFTA, Jones’s allegations regarding the Trigeant Holdings entities’ participation in a civil conspiracy are insufficient to establish jurisdiction under the Texas Long-Arm Statute. Because, as shown above, such a claim under the UFTA may exist, we need not address this argument. We will proceed to examine the nature and quality of the Trigeant Holdings entities contacts with Texas.


source: Caselaw Access Project

author: SHERRY RADACK, Chief Justice.

license: Public Domain

text:
    Ronald Donell BROWN, Appellant, v. The STATE of Texas, Appellee.
    No. 01-04-00519-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    Nov. 23, 2005.
    Rehearing Overruled Jan. 4, 2006.

      Mike DeGeurin, Foreman, DeGeurin & Nugent, Houston, TX, for Appellant.
    Charles A. Rosenthal, Jr., District Attorney-Harris County, William J. Del-more, III, Chief Prosecutor, Appellate Division, Houston, TX, for Appellee.
    Panel consists of Chief Justice RADACK and Justices ALCALA and BLAND.
   OPINION

SHERRY RADACK, Chief Justice.

A jury convicted appellant, Ronald Do-nell 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 refd). 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 ease, 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 ease, 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-mem-bers 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, “0 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.
⅝ ⅜ ⅜ ⅜ ⅜ ⅜:
“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 Em-maus 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 Ghi-selli, 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.Js testimony and truthfulness due to that relationship.

Id.

On appeal in Franklin 7, 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 Sprad-lin 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 refd) (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 Ghi-selli 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.

      . Franklin I and II both arise from the same set of facts. Franklin I addressed merely whether the trial court committed ■ error, while Franklin II primarily addressed whether the court of appeals applied the proper standard of harm. Franklin I, 12 S.W.3d at 477, 479; Franklin II, 138 S.W.3d at 354.

      . Despite the court’s re-characterizing of the error, Justice Keller noted that "Franklin I did not, and could not have, addressed whether the trial court made a mistake in denying the mistrial because the' Court of Appeals never addressed whether the trial court erred in that regard.” Franklin II, 138 S.W.3d at 359 (Keller, P.J., dissenting) (emphasis original).