COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-14-00498-CR
LUIS MIGUEL HERNANDEZ APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 213TH DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 1331780D
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DISSENTING OPINION
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Of all of the words in modern American English usage, including the slang
and the vulgar, the “n-word” is of such infamy that it is generally referenced and
understood only by its first letter. And with very few exceptions, such racially-
charged inflammatory language has no place in jury argument.
This is certainly the case when a prosecutor, using that language to secure
a conviction, goes outside of the record to introduce it. Therefore, I agree with
the majority that the prosecutor’s behavior was improper. It was inexcusable. It
cannot be condoned. And the trial judge committed error in permitting it.
Nevertheless, because we are constrained by precedent of the court of criminal
appeals requiring preservation of this type of error, I am compelled to dissent.
At one point in the jurisprudence of the court of criminal appeals,
complaints about incurable jury argument did not have to be raised and ruled
upon during trial to preserve error for appeal. See Willis v. State, 785 S.W.2d
378, 385 (Tex. Crim. App. 1989), cert. denied, 496 U.S. 908 (1990), overruled by
Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996), cert. denied, 520
U.S. 1173 (1997). In 1996, however, the court of criminal appeals revisited the
idea and held that a defendant’s “‘right’” not to be subjected to incurable
erroneous jury argument is one that is forfeited by a failure to insist upon it.
Cockrell, 933 S.W.3d at 89.1 Therefore, absent pursuing his objection to an
adverse ruling, an appellant forfeits the complaint even if the argument is
egregious and an instruction to disregard could not have cured the harm. Mathis
v. State, 67 S.W.3d 918, 926–27 (Tex. Crim. App. 2002); see Threadgill v. State,
146 S.W.3d 654, 666–67 (Tex. Crim. App. 2004); see also Cruz v. State,
225 S.W.3d 546, 548 (Tex. Crim. App. 2007); Young v. State, 137 S.W.3d 65,
69 (Tex. Crim. App. 2004).
1
In 2010, the court of criminal appeals recognized that it had overruled
Willis’s improper-jury-argument exception to the preservation requirement more
than a decade before. See Estrada v. State, 313 S.W.3d 274, 303 (Tex. Crim.
App. 2010), cert. denied, 562 U.S. 1142 (2011).
2
The record reflects that the trial court never expressly or implicitly ruled on
Appellant’s inflammatory-language objection. Cf. Tex. R. App. P. 33.1(a)(2).
And although Appellant requested an instruction to disregard “the comment of
Counsel,” he did not direct the trial court to which comment he referred, did not
request a more specific or comprehensive instruction when the trial court gave a
general instruction to disregard, and did not request a mistrial before the
prosecutor continued her argument. See Freeman v. State, 340 S.W.3d 717,
727–28 (Tex. Crim. App. 2011), cert. denied, 132 S. Ct. 1099 (2012). Because
the error here has not been identified by the court of criminal appeals as either
absolute or waivable-only and given that the trial court gave an—albeit
milquetoast—instruction to disregard in response to Appellant’s request for
same, in order to complain of error on appeal, it was incumbent upon Appellant
to pursue the matter further at the trial court level. The rules require Appellant to
pursue his complaint to an adverse ruling2 in order to preserve the error for our
review. See Clark v. State, 365 S.W.3d 333, 340 (Tex. Crim. App. 2012); Mays
v. State, 318 S.W.3d 368, 393–94 (Tex. Crim. App. 2010), cert. denied, 562 U.S.
1274 (2011). Because Appellant did not, I must dissent, despite my
2
A deficient instruction to disregard does not equate to an adverse ruling
because the party who thinks the instruction to disregard was not sufficient must
move for a mistrial to preserve the complaint unless the error is either absolute or
waivable-only. See Unkart v. State, 400 S.W.3d 94, 98–99 (Tex. Crim. App.
2013); see also Grado v. State, 445 S.W.3d 736, 741 & n.29 (Tex. Crim. App.
2014).
3
wholehearted agreement with the majority that the prosecutor’s conduct in this
case went well beyond the bounds of acceptable advocacy.
/s/ Bonnie Sudderth
BONNIE SUDDERTH
JUSTICE
PUBLISH
DELIVERED: November 3, 2016
4
Luis Miguel Hernandez v. State
Combined Opinion