                                  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


                             OPINION ON REMAND


      A jury convicted Hector Rene Galvez of aggravated sexual assault and the trial

court sentenced him to life in prison. On appeal, Galvez challenges the: (1) denial of his

challenges for cause; (2) admission of extraneous-offense evidence; (3) exclusion of

testimony regarding his interview with police; and (4) admission of testimony

regarding a photographic lineup. We affirm.

      On original submission, a majority found that the extraneous offenses were

erroneously admitted, reversed the conviction, and remanded the case to the trial court.
See Galvez v. State, No. 10-06-00332-CR, 2008 Tex. App. LEXIS 1562 (Tex. App.—Waco

Feb. 27, 2008, pet. granted) (not designated for publication). The Court of Criminal

Appeals remanded the case for reconsideration in light of its opinion in Bass v. State, 270

S.W.3d 557 (Tex. Crim. App. 2008). See Galvez v. State, No. PD-0544-08, 2008 Tex. Crim.

App. Unpub. LEXIS 931 (Tex. Crim. App. Dec. 17, 2008).1

                               CHALLENGES FOR CAUSE

        In issue one, Galvez complains of the denial of his challenges for cause to three

members of the jury panel.

        The trial court denied Galvez’s challenges for cause against five venire members.

Galvez exercised peremptory strikes on these venire members. He explained that he

would have used those strikes on other jurors and requested five additional strikes.

The trial court denied this request. After the jury was sworn, Galvez identified by name

three jurors whom he would have struck had he received additional strikes. The State

contends that, by waiting until after the jury was sworn to identify three objectionable

jurors, Galvez has failed to preserve this issue for appellate review.

        To preserve error on denied challenges for cause, Galvez must show that: (1) he

asserted a clear and specific challenge for cause; (2) he used a peremptory challenge on

the complained-of venireperson; (3) all his peremptory challenges were exhausted; (4)

his request for additional strikes was denied; and (5) an objectionable juror sat on the

jury. Feldman v. State, 71 S.W.3d 738, 744 (Tex. Crim. App. 2002). Although Galvez did



1      Because we addressed the underlying facts in our previous opinion, we dispense with our
customary factual background. See TEX. R. APP. P. 47.4.


Galvez v. State                                                                         Page 2
identify by name three objectionable jurors, he did not do so until after the jury was

sworn. His objection was untimely and he has failed to preserve this issue for appellate

review. See Credille v. State, 925 S.W.2d 112, 115 (Tex. App.—Houston [14th Dist.] 1996,

pet. ref’d) (Credille failed to “identify an objectionable juror who was seated on the

panel until after the jury was sworn”); see also McBean v. State, 167 S.W.3d 334, 337-339

(Tex. App.—Amarillo 2004, pet. ref’d); Muniz v. State, No. 07-00-00117-CR, 2001 Tex.

App. LEXIS 5700, at *1-3 (Tex. App.—Amarillo Aug. 14, 2001, pet. ref’d) (not designated

for publication) (Error not preserved where “the identities of the purportedly

objectionable venire members were not revealed to the trial court until after it had

sworn in the jury.”).

                                EVIDENTIARY ISSUES

        Galvez’s three remaining issues address the admission or exclusion of evidence.

We review a trial court’s evidentiary rulings for abuse of discretion. See Winegarner v.

State, 235 S.W.3d 787, 790 (Tex. Crim. App. 2007).

                              Extraneous-Offense Evidence

        In issue two, Galvez contends that extraneous sexual assaults testified to by D.V.

and J.M. were inadmissible under Rules of Evidence 404(b) and 403 and a violation of

due process.

Rule 404(b)

        “[A] defense opening statement…opens the door to the admission of extraneous-

offense evidence…to rebut the defensive theory presented in the defense opening

statement.” Bass, 270 S.W.3d at 563. There are no “categorical distinctions between


Galvez v. State                                                                     Page 3
‘fabrication’ defenses and ‘frame-up’ or ‘retaliation’ defenses.” Id. The issue turns on

“whether the extraneous-offense evidence has noncharacter-conformity relevance by,

for example, rebutting a defensive theory or making less probable defensive evidence

that undermines an elemental fact.” Id. at 563 n.8.

        During voir dire, Galvez posed the following questions to the jury panel:

        The first thing I want to know about is your response or your feelings to
        this statement. Here’s a statement: No one would deliberately lie in
        accusing someone else of committing a serious crime.

        …would somebody make up a lie about somebody else regarding a
        serious matter?

        I’m not talking about little white lies. I’m talking about somebody raped
        me, okay?

        Why would somebody lie about a serious matter?

        …would somebody do that for revenge?

        In opening statements, Galvez suggested that L.H. was a street prostitute who

Galvez picked up, an argument over money ensued, Galvez assaulted her because she

would not leave, and L.H. was upset. He argued that L.H. fabricated allegations of

sexual assault because she was angry over money and Galvez “rough[ed] her up,”

wanted revenge, and realized that “a simple assault charge is not enough and she wants

him to pay so she spins the yarn.”

        On cross-examination of L.H., Galvez asked:

        But you had the presence of mind, you say when you got out of the car to
        try to grab the nipple ring so you could get some blood for a DNA match
        and grab this toy gun so you could get fingerprints or whatever. And yet,
        when you got to the hospital you didn’t tell them about being raped or
        sex?


Galvez v. State                                                                     Page 4
        And then five days later you went back to Hillcrest, right?

        And, of course, by this time there would be no physical evidence on you
        such as semen to prove that there had even been sex, correct?

        Well, you had the presence of mind to try to take the gun and grab the
        nipple [ring] off and get DNA evidence and blood evidence. So it sounds
        like you were trying to build a case against Mr. Galvez, correct?

Galvez questioned L.H. about walking around at night in a neighborhood known for

prostitution and drugs and asked whether she was a prostitute.

        Galvez opened the door to admission of the extraneous-offense evidence to rebut

the defensive theory of fabrication. He essentially argued that L.H. fabricated the story

out of anger and revenge because of a dispute over money and/or because Galvez

assaulted her. It is “at least subject to reasonable disagreement whether the extraneous-

offense evidence was admissible for the noncharacter-conformity purpose of rebutting

[Galvez’s] defensive theory that the complainant fabricated her allegations against him”

and made this defensive theory less probable. Bass, 270 S.W.3d at 563.

        Galvez contends that the evidence is inadmissible under Rule 404(b) because: (1)

the offenses are not sufficiently similar to the charged offense; and (2) D.V. and J.M.,

like L.H., had the same motive to lie, i.e., anger over being assaulted.

        “[E]xtraneous misconduct must be at least similar to the charged one and an

instance in which the ‘frame-up’ motive does not apply.” Wheeler v. State, 67 S.W.3d

879, 888 n.22 (Tex. Crim. App. 2002). The degree of similarity required to rebut a

defensive issue is not great; the extraneous offense need not be identical to the charged

offense. See Blackwell v. State, 193 S.W.3d 1, 13 (Tex. App.—Houston [1st Dist.] 2006, pet.


Galvez v. State                                                                      Page 5
ref’d); see also Dennis v. State, 178 S.W.3d 172, 178-79 (Tex. App.—Houston [1st Dist.]

2005, pet. ref’d). Nor must the extraneous offense witness have no motive to lie. See

Dennis, 178 S.W.3d at 180 (Interpreting “Wheeler as requiring that the extraneous offense

be one for which the complainant’s ‘frame-up’ motive does not apply--not that a motive

to fabricate the extraneous offense be wholly absent.”). “To read Wheeler otherwise

would permit a defendant to exclude any extraneous offense evidence merely by

alleging that the extraneous offense witness has some motive--one wholly unrelated to

that of the complaining witness’s--to lie.” Id.

        In this case, the extraneous offenses are sufficiently similar to the charged offense

and, assuming the witnesses have a motive to lie, it is sufficiently different from L.H.’s

alleged motive. Although L.H. was forced into the car at gunpoint and the other two

women voluntarily entered the car, all three women were out walking at night when

approached by a vehicle and all three were sexually assaulted in the vehicle. All three

assaults occurred in a secluded area. Moreover, it is reasonable to conclude that most

assault victims would feel anger towards their attacker.             Nevertheless, Galvez

maintained that L.H. was angry over a money dispute. The record does not indicate

any such dispute associated with the other two victims nor any motive to lie.

        In summary, the extraneous offenses were admissible under Rule 404(b) to rebut

Galvez’s defensive theory of fabrication.

Rule 403

        Relevant evidence “may be excluded if its probative value is substantially

outweighed by the danger of unfair prejudice.” TEX. R. EVID. 403. We consider: (1) the


Galvez v. State                                                                        Page 6
probative value of the evidence; (2) the potential to impress the jury in some irrational,

yet indelible, way; (3) the time needed to develop the evidence; and (4) the proponent’s

need for the evidence. Prible v. State, 175 S.W.3d 724, 733 (Tex. Crim. App. 2005).

        The first factor “looks to the evidence’s probativeness or how compellingly the

evidence serves to make a fact of consequence more or less probable.” State v. Mechler,

153 S.W.3d 435, 440 (Tex. Crim. App. 2005). In light of our determination that the

extraneous-offense evidence was admissible to rebut Galvez’s defense of fabrication, the

inherent probative value of the evidence was great. See Dudzik v. State, 276 S.W.3d 554,

561-62 (Tex. App.—Waco 2008, pet. ref’d). This factor favors admissibility.

        Under factor two, “‘[u]nfair prejudice’ refers only to relevant evidence’s

tendency to tempt the jury into finding guilt on grounds apart from proof of the offense

charged.” Mechler, 153 S.W.3d at 440. Galvez argues that the extraneous offenses

“sen[t] the message that [he] was a repetitive rapist.” While the offenses are no doubt

prejudicial, they are not unfairly so in proportion to their probative value. Moreover,

the jury received an instruction limiting their consideration of the offenses to the issue

of fabrication. See Lane v. State, 933 S.W.2d 504, 520 (Tex. Crim. App. 1996). This factor

favors admissibility.

        The “third factor looks to the time the proponent will need to develop the

evidence, during which the jury will be distracted from consideration of the indicted

offense.” Mechler, 153 S.W.3d at 441. Galvez characterizes the length of time used to

present the evidence as “three rape trials combined into one.” Out of the three volumes

of the guilt/innocence phase of trial, D.V.’s and J.M.’s testimony comprises a total of


Galvez v. State                                                                       Page 7
approximately sixty pages of the record. Three other witnesses provided testimony

regarding these extraneous offenses; their testimony totals approximately thirty pages.

Photographs of the women’s injuries were admitted into evidence. The State discussed

the two offenses in closing arguments. Although the State spent some time developing

the evidence, it was not excessive. See Lane, 933 S.W.2d at 520 (State spent “less then

one-fifth of the testimony in the State’s case-in-chief (less than one day out of five days

of testimony)” developing extraneous offense). This factor favors admissibility.

        The fourth factor addresses “whether the proponent has other evidence

establishing this fact and whether this fact is related to a disputed issue.” Mechler, 153

S.W.3d at 441. Galvez argues that the State could have introduced witness testimony or

physical evidence to corroborate L.H.’s story. The record does not indicate that the

State had such other evidence; thus, it needed this evidence to rebut Galvez’s defensive

theory of fabrication. See Dudzik, 276 S.W.3d at 561-62. This factor favors admissibility.

        Because the above factors weigh in favor of admissibility, the extraneous-offense

evidence was admissible under Rule 403. See Mechler, 153 S.W.3d at 441-42.

Due Process

        Galvez contends that admission of the extraneous-offense evidence violates due

process by “penalizing [him] for defending himself.”

        In light of the Court of Criminal Appeals’ holding in Bass, on remand the

Fourteenth Court concluded:

        Because the evidence was admissible to rebut appellant’s contention that
        the complainant was fabricating and appellant was not the type of person



Galvez v. State                                                                      Page 8
        who would engage in such acts, admission of the evidence did not violate
        appellant’s due process rights.

Bass v. State, No. 14-05-00865-CR, 2009 Tex. App. LEXIS 4736, at *3 (Tex. App.—Houston

[14th Dist.] June 18, 2009, no pet. h.) (not designated for publication) (citing Phelps v.

State, 5 S.W.3d 788, 790-92, 798 (Tex. App.—San Antonio 1999, pet. ref’d)). We likewise

hold that allowing the State to rebut the defensive theory of fabrication with

extraneous-offense evidence did not violate Galvez’s due process rights. See id.

        We overrule issue two.

                                   Galvez’s Interview

        In issue three, Galvez challenges the exclusion of testimony regarding his

voluntary interview with Detective Woodruff.

        During cross-examination of Woodruff, the defense asked whether she had

interviewed Galvez. She replied, “Yes.” The State objected and, outside the jury’s

presence, argued that testimony regarding the interview was hearsay. After Galvez

made an offer of proof, the trial court sustained the State’s objection and gave the jury

an instruction to disregard. On appeal, Galvez contends that the testimony he sought to

elicit was not hearsay because it was not offered for the truth of the matter asserted, but

to show that: (1) he acted in conformance with innocent behavior by voluntarily

meeting with Woodruff without counsel present; and (2) a thorough investigation was

not conducted because Woodruff failed to follow up on Galvez’s story and instead

targeted him as the offender.




Galvez v. State                                                                      Page 9
        “Hearsay” is a statement, other than one made by the declarant while testifying

at the trial or hearing, offered in evidence to prove the truth of the matter asserted. TEX.

R. EVID. 801(d). “Whether the disputed testimony violates the hearsay prohibition

necessarily turns on how strongly the content of the out-of-court statement can be

inferred from the context.” Head v. State, 4 S.W.3d 258, 261 (Tex. Crim. App. 1999).

“[T]he question is whether the strength of the inference produces an ‘inescapable

conclusion’ that the evidence is being offered to prove the substance of an out-of-court

statement.” Id. at 262.

        As demonstrated by Galvez’s offer of proof, Woodruff’s testimony regarding her

investigation, when taken in context, could lead to inescapable conclusions as to the

substance of Galvez’s out-of-court statement. See id. at 262. Woodruff testified that she

followed up on Galvez’s story by talking to the victim and going to the house where

Galvez said he took L.H. on the night of the offense. Woodruff testified that other

people lived in the house, so she could not inspect the mattress that Galvez had said he

and L.H. used. She made no further attempt to locate the mattress. This testimony is

inadmissible hearsay. Id. at 261.

        However, the content of Galvez’s statement cannot be inferred from testimony

showing that he voluntarily met with Woodruff. It is not hearsay. See Head, 4 S.W.3d at

261. Because the trial court abused its discretion by excluding this testimony, we must

now determine whether Galvez suffered harm.

        When evaluating harm from non-constitutional error flowing from the exclusion

of relevant evidence, we examine the record as a whole, and if we are fairly assured that


Galvez v. State                                                                      Page 10
the error did not influence the jury or had but a slight effect, we conclude that the error

was harmless. Ray v. State, 178 S.W.3d 833, 836 (Tex. Crim. App. 2005). Any error must

be disregarded unless it affected Galvez’s substantial rights. TEX. R. APP. P. 44.2(b).

        We cannot say that Galvez’s substantial rights were affected by exclusion of

Woodruff’s testimony.     The record contains other evidence suggesting that Galvez

cooperated with the investigation. Officer Jason Davis testified that Galvez did not

resist when arrested. Woodruff testified that Galvez signed a consent form to allow

police to search his vehicle. Accordingly, the record contains other evidence from

which the jury could conclude that Galvez’s actions were consistent with innocence. See

Garcia v. State, 246 S.W.3d 121, 136-37 (Tex. App.—San Antonio 2007, pet. ref’d); see also

Grady v. State, 962 S.W.2d 128, 131 (Tex. App.—Houston [1st Dist.] 1997, pet. ref’d). We

overrule issue three.

                                  Photographic Lineup

        In issue four, Galvez challenges the admission of Woodruff’s testimony

regarding how she compiled the line-up from which L.H. identified him.

        When the State attempted to ask Woodruff how she developed suspects, the

defense objected. Outside the jury’s presence, Woodruff testified that she developed a

profile based on L.H.’s description of her attacker. Woodruff testified that she had seen

Galvez before and knew that he had a piercing like the one L.H. had described. She

then put this information into the lineup. The defense objected to this testimony,

explaining that it would imply that Woodruff had encountered Galvez in her “line of

work,” that he had been a suspect in some other matter, or that he had been


Galvez v. State                                                                      Page 11
investigated. The trial court overruled the objection. In the jury’s presence, Woodruff

testified that L.H. told her that Galvez had a chin piercing and that based on L.H.’s

description, she thought of Galvez and placed him in the lineup.

        On appeal, Galvez contends that the evidence was irrelevant and introduced

evidence of an extraneous offense. We disagree.

        It is relevant and permissible for an officer to testify that “she was acting in

response to ‘information received.’” Schaffer v. State, 777 S.W.2d 111, 114 (Tex. Crim.

App. 1989); Kimball v. State, 24 S.W.3d 555, 564 (Tex. App.—Waco 2000, no pet.). Police

officers may testify to explain how the investigation began and how the defendant

became a suspect. Lee v. State, 29 S.W.3d 570, 577 (Tex. App.—Dallas 2000, no pet.).

Woodruff’s testimony was relevant to explain how Galvez became a suspect. See Mata

v. State, No. 05-05-00504-CR, 2007 Tex. App. LEXIS 2319, at *15 (Tex. App.—Dallas Mar.

26, 2007, pet. ref’d) (not designated for publication) (Presence of the defendant’s DNA

profile on CODIS was relevant to show how he became the focus of the investigation).

        Moreover, “to constitute an improper reference to an extraneous offense, ‘the

evidence must show a crime or bad act, and that the defendant was connected to it.’”

Holmes v. State, 962 S.W.2d 663, 672 (Tex. App.—Waco 1998, pet. ref’d) (quoting Lockhart

v. State, 847 S.W.2d 568, 573 (Tex. Crim. App. 1992)). If the evidence fails to show that

an offense was committed or that the accused was connected to the offense, then

evidence of an extraneous offense is not established. McKay v. State, 707 S.W.2d 23, 32

(Tex. Crim. App. 1985).




Galvez v. State                                                                   Page 12
        In Mathis v. State, 650 S.W.2d 532 (Tex. App.—Dallas 1983, pet. ref’d), an officer

testified that he “went to the vice control section of the police department where he

filled out a prosecution report” and obtained a photograph of Mathis. Mathis, 650

S.W.2d at 534.    Mathis argued that this testimony “injected an extraneous offense

because it indicated [that his] photograph was on file in the police department.” Id.

The Dallas Court disagreed because the testimony contained no evidence of prior

criminal conduct. See id. (citing Roach v. State, 586 S.W.2d 866 (Tex. Crim. App. 1979),

overruled on other grounds by Parker v. State, 985 S.W.2d 460 (Tex. Crim. App. 1999)).

        In Williams v. State, No. 05-94-01585-CR, 1997 Tex. App. LEXIS 2301 (Tex. App.—

Dallas Apr. 30, 1997, pet. ref’d) (not designated for publication), a detective’s “vague

statement that ‘there were two other offenses’” and “other information which lead him

to include [Williams’s] photograph in the lineup was not evidence of an extraneous

offense.” Williams, 1997 Tex. App. LEXIS 2301, at *6.

        Woodruff’s testimony did not present evidence of a prior crime or connect

Galvez to any crime or bad act. See Holmes, 962 S.W.2d at 672; see also McKay, 707

S.W.2d at 31-32; Mathis, 650 S.W.2d at 534; Williams, 1997 Tex. App. LEXIS 2301, at *6.

We, therefore, overrule issue four.

        Having overruled Galvez’s four issues, we affirm the judgment.




                                                        FELIPE REYNA
                                                        Justice
Before Chief Justice Gray,


Galvez v. State                                                                      Page 13
      Justice Reyna, and
      Justice Davis
      *(Chief Justice Gray concurring with note)
Affirmed
Opinion delivered and filed August 12, 2009
Do not publish
[CRPM]

*      (Chief Justice Gray concurs in the judgment to the extent that it affirms the trial
court’s judgment. A separate opinion will not issue. He notes, however, that the
discussion of the third issue, the issue regarding “hearsay” evidence is somewhat
confusing and could be misleading if not studied carefully. The more direct analysis
and disposition of that issue is that the offer of proof included a question that clearly
called for hearsay and no exception was offered for its admission. Therefore, even if
some of the questions and answers in the offer of proof were not properly excluded on
the basis of a hearsay objection, the trial court did not err in denying the admission of
the offer of proof in total. It is not error because it is not the trial court’s duty to sort
through the tendered evidence, sorting admissible from inadmissible. Rather, the
burden to segregate the evidence is on the party suffering the adverse ruling to
eliminate from the tender the admissible from the inadmissible and reoffer only the
admissible portion of the evidence, if the ruling was exclusion, or object to the
inadmissible portion only, if the ruling was admission. Thus, because at least some of
the offer of proof called for hearsay and a hearsay objection was made and sustained, it
was then incumbent on the offering party to segregate and reoffer the evidence that was
not properly excluded on a hearsay objection. This segregation was not made. The trial
court, therefore, committed no error. Schulz v. State, 446 S.W.2d 872, 874 (Tex. Crim.
App. 1969) (“It is not incumbent upon the trial court, where evidence offered is relevant
or admissible in part only, to separate the good from the bad but it may reject the
evidence as a whole.”)




Galvez v. State                                                                       Page 14
