            IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS
                                      NO. PD-0544-08



                          HECTOR RENE GALVEZ, Appellant

                                               v.

                                 THE STATE OF TEXAS

             ON STATE’S PETITION FOR DISCRETIONARY REVIEW
                   FROM THE TENTH COURT OF APPEALS
                           McLENNAN COUNTY

        Per curiam.

                                       OPINION

       A jury found Appellant guilty of two counts of aggravated sexual assault and the trial

court assessed punishment at life imprisonment.        The Court of Appeals reversed the

conviction, finding that extraneous offense evidence was inadmissible because Appellant

raised a defense of fabrication, but not a claim of "frame-up" or retaliation. Galvez v. State,

No. 10-03-00083-CR (Tex. App. — Waco 2008). In doing so, the Court of Appeals relied

on Newton v. State, No. 10-06-00160-CR (Tex. App. -- Waco 2007) (unpub.), which in turn,
                                                                                   GALVEZ - 2

relied on Bass v. State, 222 S.W.3d 571, 576-77 (Houston--14th 2007).

       The State has filed a petition for discretionary review contending the Court of Appeals

erred in finding evidence of Appellant's extraneous offenses inadmissible to rebut the

defensive theory of fabrication, arguing that the focus should not be on the title of the theory

but on the facts justifying admission.

       This Court granted discretionary review in Bass, in order to address this issue. We

concluded that extraneous offense evidence is admissible to rebut a fabrication defense, and

that no categorical distinctions exist between such defenses and "frame-up" or "retaliation"

defenses. Bass v. State, S.W.3d      (Tex. Crim. App. Nos. PD-0494-07, 0495-07, delivered

September 10, 2008), slip op. at 16-17. The Appellant's motion for rehearing was denied on

November 26, 2008. The Court of Appeals in the instant case did not have the benefit of our

opinion in Bass. Accordingly, we grant the State’s petition for discretionary review, vacate

the judgment of the Court of Appeals, and remand this case to the Court of Appeals for

consideration in light of our opinion in Bass.


Delivered:           December 17, 2008
Do Not Publish
