Francisco M. Rodriguez v. State ( 2010 )

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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