Rodriguez, Jose Torres v. The State of Texas--Appeal from 230th District Court of Harris County

Affirmed and Memorandum Opinion filed March 6, 2003.

In The

Fourteenth Court of Appeals

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NO. 14-01-00961-CR

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JOSE TORRES RODRIGUEZ, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 230th District Court

Harris County, Texas

Trial Court Cause No. 873,853

M E M O R A N D U M O P I N I O N

Jose Torres Rodriguez appeals a conviction for possession of cocaine weighing less than one gram[1] on the ground that the trial court erroneously denied his motion for a mistrial after the State made an improper jury argument, striking at appellant over the shoulders of his defense counsel. We affirm.

Where arguments that strike over the shoulders of defense counsel are not particularly egregious, an instruction to disregard will generally cure the error. Wilson v. State, 7 S.W.3d 136, 148 (Tex. Crim. App. 1999). A denial of mistrial is reviewed for abuse of discretion. See Granados v. State, 85 S.W.3d 217, 237 (Tex. Crim. App. 2002).

In this case, appellant complains of the following portion of the prosecutor=s closing argument:

I talked to you in my opening and I told you that basically this was going to be pretty simple. Did he possess it or didn=t he? Did he have it on his person or didn=t he? That is the question period. And I would submit to you that the Defense is here to try to kind of confuse the issues a little bit.

(emphasis added). Appellant immediately objected to this comment, and the trial court sustained the objection, instructed the jury to disregard the statement, and denied appellant=s motion for mistrial. The prosecutor did not thereafter make any comments accusing defense counsel of trying to confuse the issues. Under these circumstances, the State=s closing argument was not so egregious as to render the instruction to disregard ineffective.[2] Accordingly, the trial court did not abuse its discretion in denying appellant=s motion for mistrial, appellant=s sole issue is overruled, and the judgment of the trial court is affirmed.

/s/ Richard H. Edelman

Justice

Judgment rendered and Memorandum Opinion filed March 6, 2003.

Panel consists of Justices Fowler, Edelman, and Frost.

Do Not Publish C Tex. R. App. P. 47.2(b).

[1] A jury found appellant guilty and sentenced him to 180 days confinement.

[2] See Dinkins v. State, 894 S.W.2d 330, 357 (Tex. Crim. App. 1995) (finding harmless error where State accused defense counsel of misleading the jury). Appellant has cited no case finding reversible error for a similar comment.