Hector Rene Galvez v. State

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

MEMORANDUM Opinion

A jury convicted Hector Rene Galvez of

two counts of aggravated sexual assault, and the trial court imposed an

automatic sentence of life in prison. Galvez argues that the trial court erred

by: (1) admitting extraneous-offense evidence; (2) denying Galvez’s challenges

for cause to three members of the venire panel; (3) excluding evidence of Galvez’s

voluntary statement; and (4) admitting evidence of the procedure used for

compiling a photographic lineup. We reverse and remand.

Extraneous-offense

Evidence

In his first issue, Galvez

contends that the trial court abused its discretion by admitting extraneous-offense

evidence. The State argues that this evidence was admissible to rebut Galvez’s

defensive theory of frame-up. We review a trial court’s admission of extraneous-offense

evidence for abuse of discretion. See Page v. State , 213

S.W.3d 332, 337-38 (Tex. Crim. App. 2006) .

Factual Background

L.H. was walking home when

a vehicle approached her. The driver pointed a gun with a laser beam at her

and ordered her to enter the vehicle. [1]

He physically assaulted L.H. and forced her to perform oral, vaginal, and anal

sex. At some point, he told L.H. that he was going to kill her and instructed

her to exit the vehicle. L.H. began yelling at him and stated that he would

have to kill her inside the vehicle. She was eventually forced out of the

vehicle. She began knocking on doors to find help. A neighbor contacted the

police. L.H. told the police that she was physically assaulted, but did not

disclose the sexual assault. However, the next morning, she told a friend that

she had been raped.

A few days later, after experiencing

some pain and bleeding, she disclosed the sexual assault. Dr. Johnny Howton examined L.H. and testified that she suffered from an anal fissure and

internal hemorrhoids which could result from “physical trauma” and were not

inconsistent with sexual assault. He testified that these problems could also

be caused by others health issues, none of which L.H.

exhibited at the time she was examined. L.H.

also suffered from pelvic inflammatory disease, a sexually transmitted disease.

L.H. had a history of drug abuse, mental illness, and various physical

problems.

Detective Christina

Woodruff testified that a sexual assault examination was not performed because

too much time had passed since the assault allegedly occurred. L.H. told

Woodruff that her attacker had pierced nipples and a tattoo on his stomach.

Woodruff prepared a photographic lineup from which L.H. identified Galvez as

her attacker. L.H. also identified Galvez at trial.

Galvez’s girlfriend testified that she called

Galvez on the night that L.H. was attacked and

heard a woman yelling, “you’re going to have to kill me.” Galvez later provided

multiple explanations for what happened that night, including that he had picked

L.H. up as a prostitute and that they had only

engaged in oral sex. She further testified that Galvez had once commented,

“How do you rape a hooker?” L.H. admitted

that she had engaged in prostitution in the past, but not on the night she was

attacked.

Galvez argued that a

dispute over money led to the physical assault and L.H. fabricated the sexual

assault allegations because she was angry over “being beaten up.” The State

called D.V. and J.M. to rebut this theory. D.V. testified that she was walking

home when a vehicle approached her. The driver, whom she identified as Galvez,

offered her a ride and D.V. accepted. Galvez asked for cocaine, which D.V.

claimed she did not have. Galvez pulled a knife on D.V., forced her to perform

oral sex, and sexually assaulted her. When she refused to engage in anal sex, he

ordered her to exit the vehicle and kicked her as she was exiting. D.V.

testified that Galvez had a chin piercing and nipple piercings.

J.M. testified that she was walking to

her father’s home when a vehicle approached her. The driver, whom she

identified as Galvez, offered her a ride. J.M. agreed to exchange sex for the

ride, but testified that she did not plan on following through with this

agreement. Galvez took J.M. to a secluded area and sexually assaulted her. He

eventually told J.M. to exit the vehicle. J.M. testified that Galvez had several

piercings and two tattoos.

Prior to the testimony of both D.V.

and J.M., the trial court gave an oral instruction limiting the jury’s

consideration of D.V.’s and J.M.’s testimony to “rebut the defensive theory of

fabrication, if any, in connection with this offense, if any, alleged against

the defendant in the indictment and for no other purpose.” [2] The trial court included a virtually

identical instruction in the jury charge.

Analysis

Galvez argues that the trial court abused its

discretion by admitting the extraneous-offense evidence. The State responds

that this evidence was admissible under Wheeler v. State , 67

S.W.3d 879 (Tex. Crim. App. 2002), and Dennis v. State , 178 S.W.3d 172

(Tex. App.—Houston [1st Dist.] 2005, pet. ref’d), to rebut Galvez’s defensive

theory and contends that our decision in Newton v. State , No. 10-06-00160-CR, 2007 Tex. App. Lexis 4634 (Tex. App.—Waco June 13, 2007, pet. filed) conflicts with these cases.

In Wheeler , a jury convicted Wheeler of

sexually assaulting S.E. See Wheeler , 67 S.W.3d at 880 . He argued that

he “was never alone with S.E., and therefore lacked an opportunity to abuse

her, or alternatively, that it would have been impossible for appellant to

abuse her in a room full of people.” Id . at 887. Because S.E.’s

parents had filed a civil suit against him, he also “suggested that he was the

victim of a conspiracy or frame-up motivated by greed.” Id . The

State called Wheeler’s niece, S.S., to rebut these theories. See id . The Court of Criminal Appeals held that S.S.’s

testimony was relevant to rebut Wheeler’s “theory of lack of opportunity or

impossibility” and “served to contradict appellant’s ‘frame-up’ theory by

showing appellant’s prior misconduct (very similar to that for which he was

charged in the present case) in circumstances involving neither money nor

revenge as possible motives.” Id . The Court noted that:

An extraneous-offense may be admissible to rebut

the defense in a child sexual assault case that the defendant is the innocent

victim of a “frame-up” by the complainant or others. In such a situation, the

extraneous misconduct must be at least similar to the charged one and an

instance in which the “frame-up” motive does not apply.

Id . at 888 n.22 (internal citations omitted).

In Dennis , a jury convicted Dennis of

sexually assaulting F.S. See Dennis , 178 S.W.3d at 175 . Dennis argued

that “F.S. fabricated the sexual assault allegations because she was

angry at him for taking away her cellular telephone and for disciplining

her because of her poor grades in school” and solicited testimony that “F.S.

was angry when he took her cellular telephone from her and that children may

fabricate allegations out of anger.” Id . at 178. The State sought to

introduce M.W.’s testimony to rebut this theory. See id . at 176. Before

M.W.’s testimony was introduced, the trial court gave an oral instruction

limiting the jury’s consideration of M.W’s testimony to ”rebut the defensive

theory of fabrication, if any, in connection with this offense, if any, alleged

against him in the indictment and for no other purpose.” Id . at

176-77. The First Court held that “M.W.’s testimony is relevant rebuttal

evidence showing that under similar circumstances, Dennis sexually assaulted

another child.” Id . at 178. The extraneous and charged offenses were similar

enough

“to allow use of the extraneous-offense

evidence to rebut Dennis’s theory that F.S. framed him.” Id . at 179.

In Newton , a jury convicted Newton of sexually assaulting Doe. See Newton , 2007 Tex. App. Lexis 4634, at *1. Newton suggested that Doe

fabricated the allegations to “prevent her mother’s reconciliation with Newton, or that she did so at the prompting of her mother (as Doe made her allegation

immediately before her mother filed for divorce from Newton) or at the

prompting of her first therapist.” Id . at *11. The State called L.D. to testify that Newton had sexually assaulted her twenty-five years earlier. See id . at *6. The trial court gave an oral instruction limiting

the jury’s consideration of L.D.’s testimony to “rebut the defensive theory of

fabrication in connection with the offense alleged in the indictment before you

in this cause and for no other purpose.” Id . at *8. We found that “Newton raised the issue of fabrication as a defensive theory,” but “[e]xtraneous-offense

evidence is not admissible to rebut a fabrication defense.” Id . at *11,

14. In reaching this decision, we relied on Bass v. State , 222 S.W.3d 571 (Tex. App.—Houston

[14th Dist.] 2007, pet. filed) .

In Bass , a jury convicted Bass of

indecency with a child against S.D. See Bass , 222 S.W.3d at 573 . The

State introduced testimony of other incidents with J.P. and R.C. Id . at 575. The Fourteenth Court stated that “evidence of appellant’s extraneous-offenses

with J.P. and R.C. could not assist the jury in its determination of

whether the appellant committed indecency with S.D., except by showing

character conformity in violation of Rule 404(b) .” Id . at 576. The Court found Wheeler inapplicable:

In this case where the State asks us to apply

Wheeler, the State confuses a “frame-up” defensive theory with a fabrication

defensive theory. A frame-up theory suggests that one is

the victim of a conspiracy. Although a frame-up theory may include an

implication of fabrication, it is not the same as a fabrication defense theory,

in which the defendant contends the allegations are entirely made up. The Wheeler court

did not hold that extraneous-offenses are admissible to rebut a fabrication

defensive theory, as the State contends. Further, we find no evidence in the

record that appellant asserted a “frame-up” defensive theory in this case.

Id . at 576-77 (internal citations omitted). [3]

We do not agree that Newton

conflicts with Wheeler . In Wheeler , the record contained

evidence of a “frame-up” defensive theory, while in Newton and Bass ,

the record did not contain such evidence. Newton does not hold that

evidence of extraneous-offenses could not be used to rebut the defensive theory

of “frame-up.” [4] Moreover,

we decline to follow Dennis because, like the State did in Bass ,

it appears to confuse the defensive theory of frame-up with the defensive

theory of fabrication. See Bass , 222 S.W.3d at 576-77 . Accordingly, we

must follow Wheeler , Newton , and Bass to determine whether

Galvez asserted a frame-up defensive theory or one of fabrication.

In voir dire, Galvez asked the following

questions:

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 argued that L.H.

fabricated allegations of sexual assault because she was angry that he

refused to pay her and “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?

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?

In closing statements, Galvez argued that L.H. was

lying.

Our review of the record reveals that Galvez

raised the defensive theory of fabrication, not frame-up. [5]

He did not suggest that he was the “victim of a conspiracy,” but rather that L.H.’s

sexual assault allegations were “entirely made up.” Bass , 222

S.W.3d at 576-77 . The testimony of D.V. and J.M.

was not admissible to rebut the defensive theory of fabrication. See Newton , 2007 Tex. App. Lexis 4634, at *14.

The trial court abused its discretion by admitting this testimony. Id .

We must now determine whether this error affected Galvez’s

substantial rights. See Tex. R.

App. P. 44.2(b) ;

see also Newton , 2007 Tex. App. Lexis 4634, at *14 . We “consider

everything in the record, including any testimony or physical evidence admitted

for the jury’s consideration, the nature of the evidence supporting the

verdict, the character of the alleged error and how it might be considered in

connection with other evidence in the case.” Motilla v. State , 78 S.W.3d 352, 355 (Tex. Crim.

App. 2002) ; Shook v. State , 172 S.W.3d 36, 41 (Tex. App.—Waco

2005, no pet.) ; accord Geuder v. State , 142 S.W.3d 372, 376 (Tex. App.—Houston

[14th Dist.] 2004, pet. ref’d) . We may also consider the jury

instructions, the State’s theory of the case, any defensive theories, closing

arguments, voir dire, and the extent to which the State emphasized the

erroneously admitted evidence. See Motilla , 78 S.W.3d at 355 -56 ;

see also Shook , 172 S.W.3d at 41 ; Geuder , 142 S.W.3d at 376 . We

decide whether “the error had a substantial and injurious effect or influence

in determining the jury’s verdict.” Haley v. State , 173 S.W.3d 510, 518 (Tex. Crim.

App. 2005) . If we have “‘a grave doubt’ that the result [of the

underlying proceeding] was free from the substantial influence of the error,

then [we] must treat the error as if it [had a substantial influence on the

outcome].” Burnett v. State , 88 S.W.3d 633, 637 (Tex. Crim.

App. 2002) . “[I]n cases of grave doubt as to harmlessness the

petitioner must win.” Id. at 638 (quoting O'Neal v. McAninch , 513 U.S. 432, 437 , 115 S. Ct.

992, 995 , 130 L. Ed. 2d 947 (1995)) .

Because fabrication was an issue at trial, the

ultimate question was whether Galvez sexually assaulted L.H. Galvez and

L.H. were the only direct witnesses and no physical evidence linked Galvez to a

sexual assault, leaving L.H.’s testimony as the only direct evidence that

Galvez committed sexual assault. Her credibility was heavily challenged. D.V. and J.M. provided the details of their assaults

and each identified Galvez as their attacker. Their accounts are noticeably

similar to that of L.H. Detective Darrell Patterson and Detective Woodruff

also provided some testimony as to the D.V. and J.M.

cases. Galvez’s girlfriend testified that, in a letter, Galvez mentioned picking

up two other girls other than L.H. In closing argument, the State discussed D.V.’s and J.M.’s testimony, arguing that the jury

heard this testimony because Galvez had accused L.H. of fabrication and

directing the jury to the similarity among all three cases.

The evidence that Galvez sexually assaulted L.H.

is not overwhelming. We have grave doubts as to whether Galvez’s conviction was

free from the substantial influence of the erroneous admission of D.V.’s and J.M.’s testimony. See Burnett , 88 S.W.3d at 637 .

The testimony significantly bolstered the State’s case and prejudiced Galvez. See

Abdnor v. State, 871 S.W.2d 726, 738 (Tex. Crim.

App. 1994) (“admission of extraneous-offenses also prejudices the

defendant because of the jury’s natural inclination to infer guilt to the

charged offense from the extraneous-offenses”). The jury could have viewed L.H.’s

testimony alone as credible, but D.V.’s and J.M.’s

testimony almost certainly played a significant role in Galvez’s conviction. See

Webb v. State , 36 S.W.3d 164, 183

(Tex. App.—Houston [14th Dist.] 2000, pet. ref’d); see also Bass , 222 S.W.3d at 578-79 .

This harm was amplified by the State’s discussion of the extraneous-offenses in

closing argument. See Booker v. State, 103 S.W.3d 521, 538-39 (Tex.

App.—Fort Worth 2003, pet. ref’d) ; see also Reese v. State, 33 S.W.3d 238, 244 (Tex. Crim.

App. 2000) (State’s emphasis on erroneously admitted evidence during

argument “sent the jury into deliberations thinking about” that evidence).

We hold that the erroneous admission of the extraneous-offenses

involving D.V. and J.M. was harmful because it

had a substantial and injurious effect on the jury’s verdict. We sustain

Galvez’s first issue and need not address his remaining issues.

See Tex. R. App. P. 47.1.

We reverse the judgment and remand this cause to the trial court for further

proceedings consistent with this opinion.

FELIPE REYNA

Justice

Before Chief Justice

Gray,

Justice

Vance, and

Justice

Reyna

(Chief

Justice Gray dissenting)

Reversed and remanded

Opinion delivered and

filed February 27, 2008

Do not publish

[CRPM]

[1] The gun was later determined to be a

toy with a laser beam taped to the top.

[2] In a hearing outside the jury’s

presence, Galvez objected to D.V.’s and J.M.’s

testimony on the basis of due process and Rules of Evidence 403 and 404(b).

[3] Bass relied on Webb v. State , 36 S.W.3d 164 (Tex. App.—Houston

[14th Dist.] 2000, pet. ref’d) (en banc). See

Bass v. State , 222 S.W.3d 571, 575-76 (Tex.

App.—Houston [14th Dist.] 2007, pet. filed) .

[4] The State also

argues that Newton conflicts with Hulsey v. State , 211 S.W.3d 853 (Tex. App.—Waco 2006, no pet.) , wherein we held:

“There is no presumption that the

joinder of cases involving aggravated sexual assault against different children

is unfairly prejudicial.” We agree with the State that, because of Hulsey’s

defensive theory that all of the allegations were fabricated (Hulsey testified

that the allegations were fabricated so his wife could get Hulsey out of the

house and keep property she was awarded in their divorce, and because Hulsey

had killed Chelsea’s dog), had there been three separate trials, all three

children’s testimony probably would have been admissible in separate trials to

rebut his defensive theory of fabrication.

Hulsey , 211 S.W.3d at 858 (internal citations omitted). However, Hulsey

contained elements of both fabrication and frame-up, given that Hulsey alleged

that his wife conspired with the children. See id.

[5] The State argues that Galvez also

raised the defensive theory of consent. He points to Galvez’s trial arguments

that L.H. was a prostitute and that there was an argument over money. However,

the record indicates that these arguments were made in support of Galvez’s

fabrication theory rather than a separate consent theory.