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 amoun t of at least four grams or more but less than 200 grams. 1 The jury further found that the offense was committed within a drug-free zone. 2 Appellant was s ubsequently sentenced to confinement for 15 years in the Instituti onal Division of the Texas Department of Criminal Justice (ID-TDCJ). Appellant appeals t he judgment alleging t hat the trial court

1 See T EX

. H EALTH & S AFETY C ODE ANN . § 481.112(d) (Vernon Supp. 2009).

2 See T EX

. H EALTH & S AFETY C ODE A NN . § 481.134(b) (Vernon Supp. 2009).2 committed reversible error by allowing a co -defendant to invoke her Fifth Amendment privilege against self-inc rimination in front of the jury. We affirm.
Factual and Procedural Background
Prior to appellant’s trial for the indi cted offense, both the State and appellant requested a subpoena be issued for Gloria Flores. Flores had been indicted for the same offense as appellant. A fter the trial began, appellant’s trial counsel indicated to the trial court that he had been informed by Flor es’s attorney that Flores would invoke her Fifth Amendment privilege to remain silent as to any questions regarding the offense for which appe llant was on trial. 3 After so informing the trial court, trial counsel then requested that Flor es be required to assert her Fifth Amendment privilege out of the jury’s presence. The trial court overru led 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 questi ons 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 fr ont of the jury. Furt her, appellant’s trial counsel never asserted any other objections to the questions asked, except as to the final question propounded by the St ate. 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 Flor es and she asserted her Fifth Amendment privilege as to each question.

3 See U.S. C ONST . amend. V.3 The jury subsequently found app ellant guilty of possession with intent to deliver a controlled substance, methamphet amine, of at least four gr ams or more but less than 200 grams. The jury also f ound that appellant’s offense occu rred in a drug-free zone. Appellant elected for the tr ial 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 t hat the trial court committed reversible error by r equiring Flores to assert her Fifth Amendment privilege in front of the jury. We disagree wit h appellant’s argument and will affirm.
Preservation of Issue on Appeal
Initially, we address the St ate’s contention that appell ant failed to preserve his issue for appeal. The State contends that, since appell ant did not object to each question that was asked of Flores and did no t request a running objection or a hearing outside the presence of the jury , appellant has failed to preser ve 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 q uestions 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 ob jection outside of the jury’s presence to the St ate being allowed to question Fl ores when the State knew she would invoke her Fifth Amendment privilege . This is sufficient to preserve the matter on appeal because Texas Rule of Evidenc e 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 admitt ed before the jury without the necessity of4 repeating those objections. T EX

. R. E VID . 103(a)(1); Haley v. State , 173 S.W.3d 510, 517 (Tex.Crim.App. 2005).
Even though we have found th at the objection made by appellant did preserve the issue of whether the St ate 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 preserv ed error, the complaint on appe al 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 allo wed 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 appella nt 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 the testimony is preserved for review. Wilson v. State , 71 S.W.3d 346, 349 (Tex.Crim.App. 2002) (c iting Thomas v. State , 723 S.W.2d 696, 700 (Tex.Crim.App. 1986)).
There, however, remains one complaint th at appellant makes that could be said to comport with the trial objection made by appel lant. Appellant contends that Flores’s5 refusal to answer questions could lead the ju ry 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, th ere was later testimony from Charles Evans that identified all three suspec ts as being present when the drugs were in view. This testimony was not objected to. Therefore, the ear lier objection is waived. Massey v. State , 933 S.W.2d 141, 149 (T ex.Crim.App. 1996).

Our review of the record l eads us to conclude that appel lant has failed to properly preserve for our review the various matte rs brought forward on appeal. Accordingly, appellant’s single issu e is overruled.

Conclusion
Having overruled appellant’s sole iss ue, the judgment of the trial court is affirmed.

Mackey K. Hancock Justice
Do not publish.
Pirtle, J., concurring.