OPINION
TOM G. DAVIS, Judge.
Appeal is taken from a conviction for driving while intoxicated. Art. 67017-1, V.A.C.S. After finding appellant guilty, the jury assessed punishment at two years and a fine of $500.00.
In his second ground of error, appellant contends that the court erred in overruling an objection to alleged improper jury argument. He maintains that the argument was improper because it was not based upon evidence in the record.
The record reflects that appellant had previously been convicted of murder without malice in 1972. That conviction arose from appellant’s actions in driving while intoxicated and striking a bicycle ridden by John M. Johnson who died as a result of injuries received in the accident. While commenting on this prior conviction during jury argument, the prosecutor stated as follows:
“MR. CROSS: ...
“Now Johnny Johnson didn’t have his Christmas with his mother this past Christmas because of this man sitting right there that got on the witness stand and told you his story—
“MS. HIGHT: Your Honor, we object again to his comments that are outside the record and offered as testimony on punishment.
“THE COURT: What is outside the record?
“MS. HIGHT: Johnny Johnson and his mother. There is no evidence that he had a mother who is—
“THE COURT: Ms. Hight, except for one situation, I don’t know how anybody got here except without having a mother. So I’ll overrule your objection.
“MS. HIGHT: Your Honor, he is speaking of Christmas this past year, which is outside the record and there is no evidence, and we will—
[823]*823“THE COURT: That we had a Christmas? Overruled.”
An objection to jury argument must be specific and pressed to the point of procuring a ruling or the objection is waived. DeRusse v. State, Tex.Cr.App., 579 S.W.2d 224; Cain v. State, Tex.Cr.App., 549 S.W.2d 707. A review of counsel’s objections and the rulings secured thereon from the above quoted portion of the record reveals that counsel obtained an adverse ruling as to two distinct matters. Those matters where that Johnson had a mother and that there had been a Christmas in the year preceding trial in the instant cause. The record fails to disclose that there was evidence of these matters produced at trial.
It is the duty of counsel to confine their arguments to the record. Irving v. State, Tex.Cr.App., 573 S.W.2d 5. However, counsel may in argument draw from facts in evidence all inferences that are reasonable, fair and legitimate. Griffin v. State, Tex.Cr.App., 554 S.W.2d 688; Jackson v. State, Tex.Cr.App., 529 S.W.2d 544. Likewise, an argument, although outside the record, may be based upon matters of common knowledge. Salinas v. State, Tex.Cr.App., 542 S.W.2d 864 (fact that being an informer is a hazardous profession); Ramirez v. State, 163 Tex.Cr.R. 491, 293 S.W.2d 653 (fact that some marihuana finds its way into the possession of high school children); Banks v. State, 89 Tex.Cr.R. 438, 230 S.W. 994 (fact that whiskey is an intoxicating liquor); Borrer v. State, 83 Tex.Cr.R. 198, 204 S.W. 1003 (fact that a bullet is deflected from a straight course by striking an object).
We find no error in the court overruling counsel’s objections to the argument complained of in this ground of error. It was a reasonable and fair inference that Johnson, as a human being, had a mother. Likewise, there was no error in the prosecutor stating that there had been a Christmas in the year preceding the trial. At the time of trial, January 2,1980, it was a matter of common knowledge that there had been a Christmas in 1979. Appellant’s second ground of error is overruled.
In his first ground of error, appellant contends that the court erred in failing to grant his motion for mistrial due to improper jury argument. He maintains that the argument was improper because it was not based upon evidence in the record.
The record reflects that in referring to the victim of the bicycle accident, the prosecutor stated:
“Now we’re here to determine what your verdict is going to mean. Now counsel gets up here before you and she pleads with you to give this man probation, something to shock him.
“Well, if you’ll remember back when he ran over this little child out there on that bicycle—”
Counsel’s objection was sustained and the court instructed the jury to disregard the words “small child.”1 Appellant’s motion for mistrial was denied. There is no evidence in the record as to the age of the bicycle victim, Johnson.
Prosecutorial argument which is outside the record is improper. Romo v. State, Tex.Cr.App., 593 S.W.2d 690. In order for an improper jury argument to constitute reversible error, it must be either extreme or manifestly improper or inject new and harmful facts. DeBolt v. State, Tex.Cr.App., 604 S.W.2d 164. Usually, any harm resulting from an improper jury argument by the prosecutor is obviated when the objection is sustained and the jury is instructed to disregard the argument. DeBolt v. State, supra; Redd v. State, Tex.Cr.App., 578 S.W.2d 129.
Appellant’s reliance on Walker v. State, 610 S.W.2d 481, Tex.Cr.App. (1980) is misplaced. In that case, the defendant was on trial for murdering his son-in-law. The State elicited evidence, in direct violation of a motion in limine which had been granted, [824]*824as to the details of the defendant’s prior conviction for incest. Those details revealed that the victim of the incest had been the defendant’s daughter, wife of the deceased in the murder prosecution, who had been fifteen years of age at the time of the incestuous conduct.
A careful reading of Walker makes it clear that the conviction was reversed due to deliberate prosecutorial misconduct. The Court stated:
“In introducing evidence of prior convictions as against an accused, the State is not permitted to allude to or in any way bring before the jury the facts surrounding the commission of the offense forming the basis for such a conviction. (Citations omitted). The prosecutor’s question violated this precept by informing the jury that the victim of the incest was a daughter of appellant — a fact that could not be gleaned from a perusal of the judgment and sentence which were before the jury.
Free access — add to your briefcase to read the full text and ask questions with AI
OPINION
TOM G. DAVIS, Judge.
Appeal is taken from a conviction for driving while intoxicated. Art. 67017-1, V.A.C.S. After finding appellant guilty, the jury assessed punishment at two years and a fine of $500.00.
In his second ground of error, appellant contends that the court erred in overruling an objection to alleged improper jury argument. He maintains that the argument was improper because it was not based upon evidence in the record.
The record reflects that appellant had previously been convicted of murder without malice in 1972. That conviction arose from appellant’s actions in driving while intoxicated and striking a bicycle ridden by John M. Johnson who died as a result of injuries received in the accident. While commenting on this prior conviction during jury argument, the prosecutor stated as follows:
“MR. CROSS: ...
“Now Johnny Johnson didn’t have his Christmas with his mother this past Christmas because of this man sitting right there that got on the witness stand and told you his story—
“MS. HIGHT: Your Honor, we object again to his comments that are outside the record and offered as testimony on punishment.
“THE COURT: What is outside the record?
“MS. HIGHT: Johnny Johnson and his mother. There is no evidence that he had a mother who is—
“THE COURT: Ms. Hight, except for one situation, I don’t know how anybody got here except without having a mother. So I’ll overrule your objection.
“MS. HIGHT: Your Honor, he is speaking of Christmas this past year, which is outside the record and there is no evidence, and we will—
[823]*823“THE COURT: That we had a Christmas? Overruled.”
An objection to jury argument must be specific and pressed to the point of procuring a ruling or the objection is waived. DeRusse v. State, Tex.Cr.App., 579 S.W.2d 224; Cain v. State, Tex.Cr.App., 549 S.W.2d 707. A review of counsel’s objections and the rulings secured thereon from the above quoted portion of the record reveals that counsel obtained an adverse ruling as to two distinct matters. Those matters where that Johnson had a mother and that there had been a Christmas in the year preceding trial in the instant cause. The record fails to disclose that there was evidence of these matters produced at trial.
It is the duty of counsel to confine their arguments to the record. Irving v. State, Tex.Cr.App., 573 S.W.2d 5. However, counsel may in argument draw from facts in evidence all inferences that are reasonable, fair and legitimate. Griffin v. State, Tex.Cr.App., 554 S.W.2d 688; Jackson v. State, Tex.Cr.App., 529 S.W.2d 544. Likewise, an argument, although outside the record, may be based upon matters of common knowledge. Salinas v. State, Tex.Cr.App., 542 S.W.2d 864 (fact that being an informer is a hazardous profession); Ramirez v. State, 163 Tex.Cr.R. 491, 293 S.W.2d 653 (fact that some marihuana finds its way into the possession of high school children); Banks v. State, 89 Tex.Cr.R. 438, 230 S.W. 994 (fact that whiskey is an intoxicating liquor); Borrer v. State, 83 Tex.Cr.R. 198, 204 S.W. 1003 (fact that a bullet is deflected from a straight course by striking an object).
We find no error in the court overruling counsel’s objections to the argument complained of in this ground of error. It was a reasonable and fair inference that Johnson, as a human being, had a mother. Likewise, there was no error in the prosecutor stating that there had been a Christmas in the year preceding the trial. At the time of trial, January 2,1980, it was a matter of common knowledge that there had been a Christmas in 1979. Appellant’s second ground of error is overruled.
In his first ground of error, appellant contends that the court erred in failing to grant his motion for mistrial due to improper jury argument. He maintains that the argument was improper because it was not based upon evidence in the record.
The record reflects that in referring to the victim of the bicycle accident, the prosecutor stated:
“Now we’re here to determine what your verdict is going to mean. Now counsel gets up here before you and she pleads with you to give this man probation, something to shock him.
“Well, if you’ll remember back when he ran over this little child out there on that bicycle—”
Counsel’s objection was sustained and the court instructed the jury to disregard the words “small child.”1 Appellant’s motion for mistrial was denied. There is no evidence in the record as to the age of the bicycle victim, Johnson.
Prosecutorial argument which is outside the record is improper. Romo v. State, Tex.Cr.App., 593 S.W.2d 690. In order for an improper jury argument to constitute reversible error, it must be either extreme or manifestly improper or inject new and harmful facts. DeBolt v. State, Tex.Cr.App., 604 S.W.2d 164. Usually, any harm resulting from an improper jury argument by the prosecutor is obviated when the objection is sustained and the jury is instructed to disregard the argument. DeBolt v. State, supra; Redd v. State, Tex.Cr.App., 578 S.W.2d 129.
Appellant’s reliance on Walker v. State, 610 S.W.2d 481, Tex.Cr.App. (1980) is misplaced. In that case, the defendant was on trial for murdering his son-in-law. The State elicited evidence, in direct violation of a motion in limine which had been granted, [824]*824as to the details of the defendant’s prior conviction for incest. Those details revealed that the victim of the incest had been the defendant’s daughter, wife of the deceased in the murder prosecution, who had been fifteen years of age at the time of the incestuous conduct.
A careful reading of Walker makes it clear that the conviction was reversed due to deliberate prosecutorial misconduct. The Court stated:
“In introducing evidence of prior convictions as against an accused, the State is not permitted to allude to or in any way bring before the jury the facts surrounding the commission of the offense forming the basis for such a conviction. (Citations omitted). The prosecutor’s question violated this precept by informing the jury that the victim of the incest was a daughter of appellant — a fact that could not be gleaned from a perusal of the judgment and sentence which were before the jury. Moreover, improper injection of the details appears to have been done deliberately, considering a prior effort, the limine order, the colloquy and the later follow up questions.
“We believe that the misconduct was so clearly calculated to inflame the minds of the jury and was of such character so as to suggest the impossibility of withdrawing the impression produced on their minds.”
In the instant case, there is no allegation of or support for a claim of deliberate prosecutorial misconduct. The argument complained of in the instant case was improper because there was no evidence as to the age of the bicycle victim. Although the argument injected new facts, we find that the harmful effect of those facts was obviated by the trial court’s prompt instruction for the jury to disregard the words “small child.”
Appellant speculates that the jury assessed the maximum punishment in the instant case because of the reference to a “little child” as the victim of appellant’s murder without malice conviction. Such an assertion is based upon a tenuous assumption at best. Appellant was driving while intoxicated at the time the bicycle victim was killed. He pled guilty in that cause and was given a probated sentence. In the instant case, appellant was driving while intoxicated at the time he caused a collision involving two automobiles.
It simply appears that the jury did not feel that appellant deserved another probated sentence in view of his conduct following his first probated sentence. We find no error in the trial court overruling appellant’s motion for mistrial based on improper jury argument.
In his third ground of error, appellant contends that the court erred in failing to grant his motion for a mistrial due to an improper question by the prosecutor. He maintains that the question was improper because it called for an answer which was hearsay.
James Steel testified that on July 20, 1979, he observed appellant driving in an erratic manner is Dallas. Steel observed appellant’s car involved in a collision with a car driven by L. Sheldon Lord. Following the accident, appellant got out of his car. Steel related that based upon his observations, appellant was intoxicated at the time of the accident. The other driver, Lord, did not testify at trial.
The questions appellant now complains of are as follows:
“Q. Did you talk to Mr. Lord concerning this Defendant’s condition out there at the scene?
“A. Yes.
“Q. Did he share your same opinion?
“A. Yes.”
Following these questions and answers, appellant’s objection was sustained and the jury was instructed to disregard the question and answer. Appellant’s motion for mistrial was denied.
Generally, an error in asking an improper question or in admitting improper testimony in a criminal proceeding may be cured or rendered harmless by its withdrawal or an instruction to disregard; except in extreme cases where it appears that [825]*825the question or evidence is clearly calculated to inflame the minds of the jury and is of such a character so as to suggest the impossibility of withdrawing the impression produced on the juror’s minds. Cavender v. State, Tex.Cr.App., 547 S.W.2d 601; Sheppard v. State, Tex.Cr.App., 545 S.W.2d 816. We find that the questions and answers appellant now complains of were of such a character that the court’s instruction to disregard was sufficient to cure the error.
We have reviewed the contentions advanced in appellant’s pro se brief and would find them to be without merit.
The judgment is affirmed.