                                 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,


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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


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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.




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