Jeromy Alan Rosenbaum v. The State of Texas--Appeal from 54th District Court of McLennan County

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 ON

PETITION FOR DISCRETIONARY REVIEW

The Court s opinion affirming the trial court s judgment dated January 5, 2005, is withdrawn and the Court s opinion and the judgment of this date are substituted therefore. Tex. R. App. P. 50.

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 whatsoever. Rosenbaum s motions for mistrial were overruled.

After the parties filed their briefs, the Court of Criminal Appeals decided Hawkins v. State, which set the standard for reviewing the denial of a motion for mistrial following a sustained objection to improper argument at the punishment phase of a trial. Hawkins v. State, 135 S.W.3d 72 (Tex. Crim. App. 2004). 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 proper issue is whether the refusal to grant the mistrial was an abuse of discretion. Id. at 76-77. To determine whether the trial court abused its discretion in denying the mistrial, we balance three factors: 1) the severity of the misconduct, 2) curative measures, and 3) the certainty of the punishment assessed absent the misconduct. Id. at 77.

The State s arguments were not severely improper. The information and judgment of conviction of terroristic threat, which was introduced into evidence, did not show a knife was used but did show that the offense was committed against Rosenbaum s mother and that she was threatened with death. Additionally, the evidence did not show that a prior victim was a total stranger but did show that the victim was not a relative as had been other victims. The trial court gave curative instructions after both objections. Further, Rosenbaum had been previously convicted of aggravated assault with a deadly weapon he stabbed a distant cousin with a knife. The jury also heard about Rosenbaum s various other convictions, terroristic threat, three different assaults, burglary of a motor vehicle, criminal trespass, and evading. The range of punishment for Rosenbaum s offense was 2 to 20 years in prison. He was sentenced to 11 years. Rosenbaum s past history is a more likely reason for the length of the sentence than the two statements by the prosecutor.

Thus, the trial court did not abuse its discretion in denying Rosenbaum s motions for mistrial. His sole issue is overruled, and the trial court s judgment is affirmed.

Rosenbaum s petition for discretionary review is dismissed by operation of law. Tex. R. App. P. 50; Parsons v. State, No. PD-1579-04, 2005 Tex. Crim. App. LEXIS 144 (Tex. Crim. App. 2005, order).

TOM GRAY

Chief Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

(Justice Vance concurring with note)*

Affirmed

Opinion delivered and filed April 20, 2005

Do not publish

[CR25]

* (Justice Vance concurs with a note. Under the Hawkins standard, we should consider the cumulative prejudicial effect of all improper arguments in determining the severity of the misconduct. Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004). ( Prejudice is clearly the touchstone of the first factor of the test.) We should also consider whether the trial court s instruction was adequate to cure the prejudice caused by the arguments that the trial court had found to be improper.)