Hector Rene Galvez v. State ( 2008 )

IN THE

TENTH COURT OF APPEALS

 

No. 10-06-00332-CR

Hector Rene Galvez,

                                                                                    Appellant

 v.

The State of Texas,

                                                                                    Appellee

From the 54th District Court

McLennan County, Texas

Trial Court No. 2005-1483-C

DISSENTING Opinion

            If it was not clear from Newton[1], it should be clear from this appeal; the courts of appeals are split on what constitutes proper extraneous offense evidence to rebut a defensive theory.  In this case, the majority determines that extraneous offense evidence is admissible to rebut a “frame-up” defense, but not admissible to rebut a “fabrication” defense.  In doing so, it expressly rejects what I believe to be a well-reasoned Houston—First Court of Appeals petition refused opinion[2] in favor of a Houston—Fourteenth Court of Appeals petition granted opinion[3], and this Court’s own petition filed case,[4] to which I dissented.

            While I would love to fully discuss the inconsistencies in the discussion and analysis in this Court’s opinion, it would be better for this case to catch up with the other cases in which the Court of Criminal Appeals is pondering the same question.

            Thus, I will note my disagreement with the disposition of Galvez’s first issue for many of the same reasons I ultimately dissented to the Opinion on Petition for Discretionary Review in Newton.  Id. at *38-48, (see Appendix, Evidence, Extraneous Offenses, Rule 404 analysis).  Because that is the only issue addressed in this appeal, the appellate purist would say I should write on the other issues; but to expedite the ultimate disposition of this proceeding, I will denominate this as a dissenting opinion and await the time with patience until I can review the other issues raised by Galvez.  See In re Graves, 217 S.W.3d 744, 754 (Tex. App.—Waco 2007, orig. proceeding) (Gray, C.J., dissenting); In the Interest of S.A.P., 135 S.W.3d 165, 177-178 (Tex. App.—Waco 2004) (Gray, C.J., dissenting), rev’d and remanded, 156 S.W.3d 574 (Tex. 2005).

                                                                        TOM GRAY

                                                                        Chief Justice

Dissenting opinion delivered and filed February 27, 2008

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[1] Newton v. State, --- S.W.3d ---, 2007 Tex. App. LEXIS 4634 (Tex. App.—Waco June 13, 2007, pet. filed).

[2] Dennis v. State, 178 S.W.3d 172 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d.)

[3] Bass v. State, 222 S.W.3d 571 (Tex. App.—Houston [14th Dist.] 2007, pet. granted).

[4] Newton v. State, --- S.W.3d ---, 2007 Tex. App. LEXIS 4634 (Tex. App.—Waco June 13, 2007, pet. filed).