
                              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.

