


 
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




[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).


