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Hernandez v. State

Court of Criminal Appeals of Texas

January 10, 2018

LUIS MIGUEL HERNANDEZ, Appellant
v.
THE STATE OF TEXAS

         ON STATE'S PETITION FOR DISCRETIONARY REVIEW FROM THE SECOND COURT OF APPEALS TARRANT COUNTY

          Keel, J., delivered the opinion of the unanimous Court.

          OPINION

          Keel, J.

         Appellant was convicted of murder and sentenced to fourteen years in prison. The issue before us is whether he preserved his complaint about the State's jury argument even though he did not pursue his objection to an adverse ruling.

         Appellant contends that he received an adverse ruling because the trial court initially overruled his objection. Alternatively, he claims that the State's argument was so egregious that the "traditional mode of error preservation" should not be required of him. The court of appeals agreed with him in a split opinion and reversed his conviction. Hernandez v. State, 508 S.W.3d 737 (Tex. App.- Ft. Worth 2016, pet. granted).

         We granted the State Prosecuting Attorney's petition for discretionary review to determine whether the right not to be subjected to improper jury argument is forfeitable and whether there is a word so inflammatory that its mention in closing argument when unsupported by the evidence incurably taints the entire trial. We hold that the right is forfeitable and that the mention of even a very inflammatory word that is outside the record does not dispense with error preservation requirements. Consequently, we reverse the judgment of the court of appeals.

         FACTS

         The victim, Devin Toler, was sleeping with the wife of his neighbor, Appellant. After Appellant learned of the affair, he and Toler had several verbal confrontations. On the fatal day, Toler, Quionecia Barber, and their 19-month-old daughter were outside near their apartment building when Appellant walked by and yelled at Toler about the affair. Barber asked the men to stop arguing in front of her daughter, and Appellant said, "Fuck that bitch, no one cares about her." Toler then ran toward Appellant, and a fist-fight ensued.

         Barber turned her back to chase after her toddler, and by the time she returned, the fist-fight had ended, and Appellant had gone back to his apartment. Toler then collapsed to the ground. Barber saw blood coming from a wound on Toler's chest and called 911. Paramedics administered first aid and transported Toler to the hospital, but he died.

         Appellant spoke to police at the scene. According to the investigating detective, Appellant admitted cussing at Toler and directing "racial slurs" at him. He claimed that he stabbed Toler in self defense and denied that he provoked the confrontation.

         In closing argument, defense counsel asserted that Toler had provoked the confrontation by having slept with Appellant's wife. The State replied by asserting that Appellant had provoked the difficulty with his words: "What were the words of provocation? I'll tell you what the words of provocation were. [Appellant] called [Toler] and his family 'niggas.' That's what it was." Defense counsel objected:

DEFENSE: Your Honor, objection. That is certainly outside the record. That is not in the record at all.
COURT: The jury will recall the testimony.
DEFENSE: No, Your Honor. That is not in the record. It is ...

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