Jeromy Alan Rosenbaum v. State

IN THE TENTH COURT OF APPEALS No. 10-03-00308-CR Jeromy Alan Rosenbaum, Appellant v. The State of Texas, Appellee From the 54th District Court McLennan County, Texas Trial Court # 2003-514-C MEMORANDUM Opinion Jeromy Alan Rosenbaum was convicted of the offense of Evading Arrest or Detention with a Motor Vehicle (Enhanced). The jury assessed his punishment at eleven years in prison. We affirm. In one issue, Rosenbaum contends the trial court erred in overruling his motion for mistrial made in response to two allegedly improper jury arguments made by the State during argument at the punishment phase. During the State’s opening argument, the prosecutor argued that Rosenbaum had “[n]o respect for his mother, because he pulled a knife out on her.” During the State’s closing argument, another prosecutor argued that a prior victim of Rosenbaum was “[a] total stranger,” and that Rosenbaum not only attacked family members but also “total strangers too.” Rosenbaum objected to both statements and both objections were sustained. The trial court gave essentially the same instruction at each instance, that is, to disregard the statement of counsel “for any purpose whatsovever.” Rosenbaum’s motions for mistrial were overruled. When the trial court sustains an objection and grants a request for an instruction for the jury to disregard but denies the motion for mistrial, the issue becomes whether the trial court erred in denying the mistrial. Foster v. State, 25 S.W.3d 792, 798 (Tex. App.—Waco 2000, pet. ref’d). The trial court's decision can be error only if the argument is extreme, manifestly improper, injects new and harmful facts into the case or violates a mandatory statutory provision and was thus so inflammatory that its prejudicial effect cannot be reasonably removed from the minds of the jury by an instruction to disregard. Id. The State’s arguments were neither extreme nor manifestly improper. The arguments also did not violate a mandatory statute. These arguments only injected new facts to the extent that the information and judgment of conviction of terroristic threat, which was introduced into evidence, did not show a knife was used against Rosenbaum’s mother, nor did the evidence show that a prior victim was a total stranger. The evidence shows that the victim was not any relation to Rosenbaum and that Rosenbaum was convicted of assaulting that victim with a pipe. These “new” facts were not so inflammatory that the prejudicial effect, if any, could not be reasonably removed from the minds of the jury by an instruction to disregard. Thus, assuming without deciding the arguments were improper, the instructions given by the trial court cured the prejudicial effect, if any. Rosenbaum’s sole issue is overruled, and the trial court’s judgment is affirmed. TOM GRAY Chief Justice Before Chief Justice Gray, Justice Vance, and Justice Reyna Affirmed Opinion delivered and filed January 5, 2005 Do not publish [CR25]