                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-14-00498-CR


LUIS MIGUEL HERNANDEZ                                                APPELLANT

                                        V.

THE STATE OF TEXAS                                                     APPELLEE


                                     ----------

        FROM THE 213TH DISTRICT COURT OF TARRANT COUNTY
                    TRIAL COURT NO. 1331780D

                                     ----------

                          CONCURRING OPINION

                                     ----------

      Because Appellant Luis Miguel Hernandez’s third issue is framed as an

issue of prosecutorial misconduct—an issue that need not be strictly preserved in

light of the resulting due process violation of Appellant’s right to a fair trial—I

concur with the Majority’s disposition of this appeal.     Appellant’s third issue

asserts that “[t]he trial court judge reversibly erred and abused its discretion in

overruling the Appellant’s objection to the prosecutor’s inflammatory use of the
racial slur ‘Niggas’ which was outside the record of the case and had been urged

intentionally and was manifestly designed to deny the Appellant a fair jury trial

during the State’s closing jury argument at the end of the guilt-innocence phase

of the Appellant’s trial.”

       At trial, Appellant claimed he did not commit murder but acted in self-

defense. The jury was charged on self-defense. The State requested, and the

trial court submitted, a jury charge on provocation.1

       The evidence established that the deceased, who was an African

American male, physically initiated the confrontation with Appellant by running at


       1
        The trial court’s instruction on provocation provided, in pertinent part:

             You are further instructed as part of the law of this case, and
       as a qualification of the law on self-defense, that the use of force by
       a defendant against another is not justified if the Defendant
       provoked the other’s use or attempted use of unlawful force, unless
       the Defendant abandons the encounter, or clearly communicates to
       the other person his intent to do so reasonably believing he cannot
       safely abandon the encounter and the other person, nevertheless,
       continues or attempts to use unlawful force against the Defendant.

               So, in this case, if you find and believe from the evidence
       beyond a reasonable doubt that the Defendant, immediately before
       the difficulty, if any, then and there did some act, or used some
       language or did both, with the intent on the Defendant’s part to
       produce the occasion and to bring on the difficulty with [the
       deceased], and that such words or conduct on the Defendant’s part,
       if there was such, were reasonably calculated to, and did, provoke a
       difficulty, and that on such occasion [the deceased] attacked the
       Defendant with deadly force, or reasonably appeared to the
       Defendant to so attack the Defendant, and that the Defendant then
       cut [the deceased] with a knife in pursuance of his original design, if
       you find there was such, then you will find the Defendant guilty.

                                           2
Appellant.    The State asserted that the deceased ran at Appellant because

Appellant “used racial slurs and cuss words.”2 The sole witness to the altercation

was the deceased’s wife. She recounted that the deceased ran at Appellant

because, when she asked Appellant to stop yelling at the deceased in the

presence of her daughter, Appellant said, “F--- that b----, no one cares about

her.”

        During the State’s initial closing argument, the prosecutor explained to the

jury:

             It is not in dispute that the Defendant killed [the deceased]. I
        mean, that’s pretty much been admitted here in the courtroom.

              What you next have to consider is whether or not he gets to
        claim self-defense. And remember in jury selection when [another
        prosecutor] was talking to you-all about the term -- the legal term
        “provoking the difficulty.” I can’t go pick a fight with someone and
        then decide to claim self-defense after I do something bad.

        No witness testified that Appellant uttered the word “niggas” to provoke the

fight with the deceased; no witness testified that Appellant called the deceased

“and his family” “niggas.” The decedent’s wife testified that the deceased ran at

Appellant after Appellant said, regarding the deceased’s young daughter, “F---

that b----, no one cares about her.” Nonetheless, during final closing argument,

the prosecutor told the jury, “What were the words of provocation? I’ll tell you


        2
       Fort Worth Police Detective Ernie Pate testified that Appellant had
“admitted to [him] that when [Appellant] first spoke to [the deceased] that
[Appellant] used racial slurs to [the deceased] and cuss words because of a prior
altercation and prior confrontations they had had.”

                                          3
what the words of provocation were. [Appellant] called [the deceased] and his

family ‘niggas.’ That’s what it was.”

      Prosecutors are constitutionally prohibited from making racially or

ethnically inflammatory remarks during closing argument.        See McCleskey v.

Kemp, 481 U.S. 279, 309 n.30, 107 S. Ct. 1756, 1770 n.30 (1987); Bains v.

Cambra, 204 F.3d 964, 974 (9th Cir.), cert. denied, 531 U.S. 1037 (2000). Such

comments “violat[e] a criminal defendant’s due process and equal protection

rights.” Bains, 204 F.3d at 974. Because racial fairness is an indispensable

ingredient of due process and racial equality a hallmark of justice, appeals to

racial passion can distort the search for truth and drastically affect a juror’s

impartiality. United States v. Doe, 903 F.2d 16, 25 (D.C. Cir. 1990).

      The United States Supreme Court has held that “prosecutorial misconduct

may so infect the trial with unfairness as to make the resulting conviction a denial

of due process.” Greer v. Miller, 483 U.S. 756, 765, 107 S. Ct. 3102, 3109

(1987) (internal quotation omitted). To constitute a due process violation, the

prosecutorial misconduct must be of such significance that it would result in the

denial of a defendant’s right to a fair trial. Id. at 765, 107 S. Ct. at 3109; see

Burwell v. Teets, 245 F.2d 154, 163 (9th Cir.), cert. denied, 355 U.S. 896 (1957).

An analysis of whether prosecutorial misconduct resulted in a due process

violation of the defendant’s right to a fair trial focuses on the effect of the

misconduct––whether it infected the trial with unfairness––not on the

prosecutor’s motive, subjective intent, or culpability.

                                          4
      The United States Supreme Court has “clearly indicated that the state

courts have substantial breathing room when considering prosecutorial

misconduct claims because ‘constitutional line drawing in [prosecutorial

misconduct cases] is necessarily imprecise.’” Slagle v. Bagley, 457 F.3d 501,

516 (6th Cir. 2006), cert. denied, 551 U.S. 1134 (2007) (quoting Donnelly v.

DeChristoforo, 416 U.S. 637, 645, 94 S. Ct. 1868, 1872 (1974)). Under Texas

law, we are to resolve allegations of prosecutorial misconduct on a case by case

basis and determine whether the prosecutor’s conduct requires reversal on the

basis of the probable effect on the minds of the jurors. Bautista v. State, 363

S.W.3d 259, 263 (Tex. App.—San Antonio 2012, no pet.). To warrant reversal,

the prosecutor’s question or comment must be harmful to the defendant and of

such a character so as to suggest the impermissibility of withdrawing the

impression produced. Id.; see also Berger v. United States, 295 U.S. 78, 84, 55

S. Ct. 629, 631 (1935) (reversing judgment of conviction and granting new trial

because of due process violation resulting from prosecutorial misconduct).

      No witness testified that Appellant “called [the deceased] and his family

‘niggas’” as stated by the prosecutor. The prosecutor’s statement during final

closing argument that Appellant called the deceased and the deceased’s family

“niggas” was outside the record and was a racially inflammatory remark. See

McCleskey, 481 U.S. at 309 n.30, 107 S. Ct. at 1770 n.30; Bains, 204 F.3d at

974. Because the statement was made by the prosecutor during final closing

argument, Appellant had no opportunity to respond to it or to correct it. The

                                       5
prosecutor’s statement directly impacted the sole issue in the case––whether

Appellant acted in self-defense or, in fact, by words provoked the difficulty. The

prosecutor told the jury: “What were the words of provocation? I’ll tell you what

the words of provocation were. [Appellant] called [the deceased] and his family

‘niggas.’ That’s what it was.”3 The prosecutor thus not only attributed use of the

word “niggas” to Appellant, but also stated that Appellant had used the word to

refer to the decedent’s family, which no witness testified to. And finally, the

prosecutor expressly told the jury that these words supposedly uttered by

Appellant––calling the deceased and his family “niggas”––constituted “words of

provocation” that defeated Appellant’s claim of self-defense.

      In my view, the prosecutor’s statement here directly undermined

Appellant’s sole defense by attributing the use of the racially inflammatory word

“niggas” to Appellant and by telling the jury that Appellant referred to the

deceased’s family as “niggas,” when neither of these facts are in the record or

inferable from the record. To me, the prosecutor’s statement during final closing

      3
        The State argues that the prosecutor’s statement that Appellant provoked
the fight by calling the deceased and his family “niggas” was a reasonable
inference from Officer Pate’s testimony that Appellant admitted he had used
racial slurs when he first spoke to the deceased. I cannot agree. First, Officer
Pate did not testify that “niggas” was the racial slur Appellant used.
Unfortunately, many ethnophaulisms exist but most people consider this one
exceptionally offensive and inflammatory. Appellant’s concession that he used
racial slurs does not support an inference that he used this particular one.
Second, neither Officer Pate nor any other witness testified that Appellant
directed racial slurs at the deceased’s family, as opposed to at the deceased.
The record supports no inference that Appellant directed racial slurs at the
deceased’s family.

                                        6
argument—the very last words the jury heard before retiring to deliberate––was

of such significance that it resulted in the denial of Appellant’s right to a fair trial,

and thus, deprived Appellant of due process. See Greer, 483 U.S. at 765, 107 S.

Ct. at 3109; Burwell, 245 F.2d at 163; see also Coleman v. Ohio Adult Parole

Auth., 118 Fed. Appx. 949, 951–52 (6th Cir. 2004) (holding prosecutor’s

reference in closing argument to defendant’s prior conviction constituted an

introduction of evidence so extremely unfair as to violate fundamental

conceptions of justice and thus a deprivation of defendant’s right to due process);

see also Elizondo v. State, 487 S.W.3d 185, 209 (Tex. Crim. App. 2016) (“It is

relevant to the harm analysis that the provocation instruction undermined

Elizondo’s sole defense.”). Accordingly, we must reverse and remand for a new

trial.4 See Berger, 295 U.S. at 89, 55 S. Ct. at 663 (“[S]uch misconduct was


      4
        Although the general rule is that a timely and specific objection, a request
for an instruction to disregard the matter improperly placed before the jury, and a
request for a mistrial are required to preserve a complaint of prosecutorial
misconduct, when “prosecutorial misconduct that undermines the reliability of
the factfinding process . . . result[s] in deprivation of fundamental fairness and
due process of law, the defendant is entitled to a new trial even though few
objections have been perfected.” See Penry v. State, 903 S.W.2d 715, 764 (Tex.
Crim. App. 1995) (recognizing general rule); Johnson v. State, 432 S.W.3d 552,
561 (Tex. App.—Texarkana 2014, pet. ref’d) (same); Jimenez v. State, 298
S.W.3d 203, 214 (Tex. App.—San Antonio 2009, pet. ref’d) (recognizing
exception); see Rogers v. State, 725 S.W.2d 350, 358 (Tex. App.—Houston [1st
Dist.] 1987, no pet.) (“[B]ecause fundamental fairness was vitiated, the present
case is an exception to the general rule that improper questions and arguments
by a prosecutor cannot constitute reversible error unless the error is properly
preserved.”).

      Because of the prosecutorial misconduct that occurred, and the resulting
deprivation of Appellant’s rights to due process and a fair trial, I would hold that
                                           7
pronounced and persistent, with a probable cumulative effect upon the jury which

cannot be disregarded as inconsequential.        A new trial must be awarded.”);

Bautista, 363 S.W.3d at 263 (“To warrant reversal, the question or comment

must be harmful to the defendant and of such a character so as to suggest the

impermissibility of withdrawing the impression produced”) (internal quotation

omitted).   Because the Majority reaches this disposition, albeit for different

reasons, I respectfully concur.



                                                    /s/ Sue Walker
                                                    SUE WALKER
                                                    JUSTICE

PUBLISH

DELIVERED: November 3, 2016




Appellant’s failure to request a mistrial does not constitute a waiver of his right to
raise the issue of prosecutorial misconduct on appeal. See Berger, 295 U.S. at
89, 55 S. Ct. at 663; Jimenez, 298 S.W.3d at 214; Rogers, 725 S.W.2d at 358.


                                          8
