

NO. 07-09-0172-CR
 
IN THE COURT OF APPEALS
 
FOR THE SEVENTH DISTRICT OF TEXAS
 
AT AMARILLO
 
PANEL A
 
APRIL 26, 2010
 
______________________________
 
 
JIMMY J. GOBER, APPELLANT
 
V.
 
THE STATE OF TEXAS, APPELLEE
 
 
_________________________________
 
FROM THE 137TH DISTRICT COURT OF LUBBOCK
COUNTY;
 
NO. 2008-421,987; HONORABLE CECIL G. PURYEAR, JUDGE
 
_______________________________
 
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
CONCURRING OPINION
            The
majority concludes that Appellant has failed to properly preserve for our
review any error raised by his single issue contending that the trial court
abused its discretion by overruling his motion to require a co-defendant to
invoke her Fifth Amendment privilege against self-incrimination outside the
presence of the jury.  Because I believe
the error was properly preserved, but further conclude that the error was
harmless, I concur in the decision of the Court.
Background
            Although
the majority opinion accurately summarizes the factual and procedural
background of this case, it is the State's alternative arguments that
differentiate the opinions of this Court. 
The State contends the trial court did not err by overruling Appellant's
motion to require Gloria Flores, an indicted co-defendant, to assert her Fifth
Amendment privilege against self-incrimination outside the presence of the
jury.  Alternatively, the State argues
that Appellant did not preserve that error (the argument accepted by the
majority).  Alternatively to that, the
State argues that Appellant's follow-up questions to the State's objectionable
questions, also causing Flores to invoke her Fifth Amendment privilege,
operated to "cure" the error. 
Finally, and again alternatively, the State argues that any error is
harmless.
Harmless Error Analysis
Other than
constitutional error, any error, defect, irregularity, or variance that does
not affect the appellant's substantial rights must be disregarded by an
appellate court in determining whether to reverse the decision of a lower
court.  Tex. R. App. P.
44.2(b) (Vernon 2003).  A substantial right is affected when
the error had a substantial and injurious effect or influence on the jury=s verdict.  Russell v. State, 113 S.W.3d 530, 549
(Tex.App.--Fort Worth 2003, pet. ref=d) (citing King v. State, 953 S.W.2d 266, 271
(Tex.Crim.App. 1997)).  In assessing
reversible error, an appellate court should consider the entire record,
including any testimony or physical evidence admitted for the jury's
consideration, the nature of the evidence supporting the jury's 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). 
The reviewing court should also consider non-evidentiary elements of the
trial, including voir dire, the State's theory, and any defensive theories, the
jury instructions, and closing arguments. 
Id. 
Here, the error complained of by Appellant, to-wit: the trial court erred by overruling Appellant's motion to require
Flores, an indicted co-defendant, to assert her Fifth Amendment privilege
against self-incrimination outside the presence of the jury, is not
constitutional because none of Appellant's constitutional rights were
implicated.  Therefore, our harmless error
analysis must focus on whether any of Appellant's rights were substantially
affected by that error.
Appellant contends that he was
prejudiced because the jury was allowed to draw inappropriate conclusions from
the questions asked.  However, Appellant
was also allowed to ask questions which Flores equally answered by asserting
her Fifth Amendment privilege.  While Appellant's
questions did not "cure" the error invited by the State, they are
something this Court may consider in its harm analysis.  Because it is no more likely that the jury
drew incriminating inferences from the State's questions than it drew
exonerating inferences from Appellant's questions, we cannot conclude that allowing
these questions, in and of themselves, substantially
affected Appellant's rights.
Furthermore, considering the error in
relation to the rest of the evidence presented by the State, any inferences
that might have been injected by the questions is of only slight
significance.  The jury heard testimony
from the arresting officers, reviewed photographs of
the contraband seized, and heard portions of a recorded interview between an
officer and Appellant.  Considering the
entirety of the record, including the instructions from the court that the
verdict was to be based upon the evidence heard (as opposed to speculating on
what it didn't hear), there is virtually no reason to believe the jury's
verdict was based on this error.  Finding
that the error did not have a substantial and injurious effect or influence on
the jury's verdict, thereby substantially affecting Appellant's rights, I find
the error to be harmless and I concur in the conclusion reached by the majority
to affirm the judgment of the trial court.
 
                                                                                      Patrick A. Pirtle
                                                                                            Justice
 
 
Do not publish.
 

