Jimmy J. Gober v. The State of Texas--Appeal from 137th District Court of Lubbock County
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NO. 07-09-00172-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.
MEMORANDUM OPINION
Appellant, Jimmy Joe Gober, was convicted by a jury of possession with intent to
deliver a controlled substance, methamphetamine, in an amount of at least four grams
or more but less than 200 grams.1
committed within a drug-free zone.2
The jury further found that the offense was
Appellant was subsequently sentenced to
confinement for 15 years in the Institutional Division of the Texas Department of
Criminal Justice (ID-TDCJ). Appellant appeals the judgment alleging that the trial court
1
See TEX. HEALTH & SAFETY CODE ANN. § 481.112(d) (Vernon Supp. 2009).
2
See TEX. HEALTH & SAFETY CODE ANN. § 481.134(b) (Vernon Supp. 2009).
committed reversible error by allowing a co-defendant to invoke her Fifth Amendment
privilege against self-incrimination in front of the jury. We affirm.
Factual and Procedural Background
Prior to appellant’s trial for the indicted offense, both the State and appellant
requested a subpoena be issued for Gloria Flores. Flores had been indicted for the
same offense as appellant. After the trial began, appellant’s trial counsel indicated to
the trial court that he had been informed by Flores’s attorney that Flores would invoke
her Fifth Amendment privilege to remain silent as to any questions regarding the
offense for which appellant was on trial.3 After so informing the trial court, trial counsel
then requested that Flores be required to assert her Fifth Amendment privilege out of
the jury’s presence. The trial court overruled the request. The State then called Flores
to the witness stand and proceeded to question her. After answering four questions
regarding her name and other personal data, Flores asserted her Fifth Amendment
privilege to the next 11 questions propounded to her by the State. Trial counsel never
asserted an objection to these questions on the ground that Flores was being required
to assert her Fifth Amendment privilege in front of the jury. Further, appellant’s trial
counsel never asserted any other objections to the questions asked, except as to the
final question propounded by the State. That objection was to the leading nature of the
last question asked by the State. After the State passed the witness, trial counsel
asked three additional questions of Flores and she asserted her Fifth Amendment
privilege as to each question.
3
See U.S. CONST. amend. V.
2
The jury subsequently found appellant guilty of possession with intent to deliver a
controlled substance, methamphetamine, of at least four grams or more but less than
200 grams. The jury also found that appellant’s offense occurred in a drug-free zone.
Appellant elected for the trial court to assess punishment and the court sentenced
appellant to confinement for 15 years in the ID-TDCJ. It is from this judgment appellant
appeals by a single issue.
By his issue, appellant contends that the trial court
committed reversible error by requiring Flores to assert her Fifth Amendment privilege in
front of the jury. We disagree with appellant’s argument and will affirm.
Preservation of Issue on Appeal
Initially, we address the State’s contention that appellant failed to preserve his
issue for appeal.
The State contends that, since appellant did not object to each
question that was asked of Flores and did not request a running objection or a hearing
outside the presence of the jury, appellant has failed to preserve the issue for appeal.
Our view of the record is consistent with the State’s first two observations. Appellant did
not object to the individual questions being asked of Flores and there was no request for
a running objection.
Martinez v. State, 98 S.W.3d 189, 193 (Tex.Crim.App. 2003).
However, prior to Flores being questioned, appellant did raise an objection outside of
the jury’s presence to the State being allowed to question Flores when the State knew
she would invoke her Fifth Amendment privilege. This is sufficient to preserve the
matter on appeal because Texas Rule of Evidence 103 provides that objections to the
admissibility of evidence made outside the presence of the jury shall be deemed to
apply to such evidence when it is admitted before the jury without the necessity of
3
repeating those objections. TEX. R. EVID. 103(a)(1); Haley v. State, 173 S.W.3d 510,
517 (Tex.Crim.App. 2005).
Even though we have found that the objection made by appellant did preserve
the issue of whether the State could knowingly force Flores to assert her Fifth
Amendment privilege in front of the jury, this does not end our inquiry into the area of
preservation of issues for appeal. This is so because the State next contends that,
even if the objection preserved error, the complaint on appeal does not comport with the
objection made to the trial court. At trial, the exact objection stated by trial counsel was,
“I would ask that that assertion of her Fifth Amendment privilege be made outside the
presence of the jury because I don’t think that it’s proper for that to occur in the
presence of the jury.” In his brief, appellant urges that the action of the State in forcing
Flores to invoke her Fifth Amendment privilege before the jury allowed the State to
introduce inadmissible hearsay. However, such was not the objection made at trial. In
fact, nothing in the record would advise the trial court that appellant is objecting to
Flores’s testimony based upon hearsay. Appellant’s failure to specifically object to the
hearsay nature of the questions results in the alleged error not being brought properly to
the trial court’s attention. Therefore, nothing regarding the alleged hearsay nature of
Wilson v. State, 71 S.W.3d 346, 349
the testimony is preserved for review.
(Tex.Crim.App. 2002) (citing Thomas v. State, 723 S.W.2d 696, 700 (Tex.Crim.App.
1986)).
There, however, remains one complaint that appellant makes that could be said
to comport with the trial objection made by appellant. Appellant contends that Flores’s
4
refusal to answer questions could lead the jury to imply that all present at the scene
possessed the drugs that were found there. Assuming that the general objection made
does, in fact, cover this subject matter, there was later testimony from Charles Evans
that identified all three suspects as being present when the drugs were in view. This
testimony was not objected to. Therefore, the earlier objection is waived. Massey v.
State, 933 S.W.2d 141, 149 (Tex.Crim.App. 1996).
Our review of the record leads us to conclude that appellant has failed to properly
preserve for our review the various matters brought forward on appeal. Accordingly,
appellant’s single issue is overruled.
Conclusion
Having overruled appellant’s sole issue, the judgment of the trial court is
affirmed.
Mackey K. Hancock
Justice
Do not publish.
Pirtle, J., concurring.
5
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