                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                               NO. 02-14-00498-CR


LUIS MIGUEL HERNANDEZ                                                  APPELLANT

                                         V.

THE STATE OF TEXAS                                                           STATE


                                      ----------

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

                                      ----------

                                    OPINION

                                      ----------

      A jury convicted Appellant Luis Miguel Hernandez of murder and assessed

his punishment at fourteen years’ confinement. The trial court sentenced him

accordingly. In three points, Appellant challenges the sufficiency of the evidence

to support the verdict and argues that the trial court reversibly erred by including

a jury instruction on provoking the difficulty and by overruling his objection to the

State’s use of a racial slur in final argument. Although the evidence is sufficient
to support Appellant’s conviction, the trial court reversibly erred by overruling his

objection to the State’s final argument. We, therefore, reverse the trial court’s

judgment and remand this case to the trial court.

Brief Facts

      Quionecia Barber was visiting Devin Toler, the complainant, and their

nineteen-month-old daughter in an upstairs apartment at the Wildwood Branch

apartment complex. Toler was engaged in a sexual relationship with Mary, his

boss at the Subway Shop where he worked. Mary lived downstairs with her

husband, Appellant, and their children.       Mary and Toler’s relationship had

become common knowledge, and Appellant reacted with growing anger toward

Toler, yelling at him whenever he saw him. Toler was taller than Appellant. But

Toler’s mother was concerned and told him to call the police and not to go

outside alone.

      On the day Toler was killed, Appellant took a small bag of trash to the

dumpster. When he saw Toler on the basketball court, Appellant started yelling

at him. Toler got upset and started to walk toward Appellant. Quionecia yelled at

the men to stop because her daughter was there. At trial, Quionecia testified that

Appellant said, “Fuck that bitch, no one cares about her.”         While Quionecia

testified that she remembered telling the police what Appellant had said about

her daughter, she also admitted that the audiotape of her interview with the

police recorded on the night Toler was killed did not include that information.

      Toler left the basketball court, ran toward Appellant, and started to fight.


                                         2
When the fight began, the little girl ran off, and Quionecia went to get her. When

Quionecia came back to the men, from her angle, it looked like Toler was hitting

more. When the fight ended, Appellant walked toward his apartment, and Toler

fell to the ground. Quionecia ran to him and saw a gash above his left chest.

      Appellant came back outside and said, “This is what happens when you

mess with me.” His children and Mary got in the car and left. Then Appellant

went over to Toler and Quionecia, knelt and put water from a water bottle on

Toler’s face, and asked him to get up. Appellant said he was sorry and that it

should not have gone that far. He said, “I’m sorry, he was choking me. I didn’t

have a choice.”

      Appellant had a knife during the offense. Although it is referred to as a

butter knife in the record, it was actually a place knife or table knife. “A table

knife is an item of cutlery with a single cutting edge, and a blunt end—part of a

table setting. Table knives are typically of moderate sharpness only, designed

to cut prepared and cooked food.”1

      A butter knife, on the other hand, is much smaller.

      [A] butter knife (or master butter knife) is a sharp-pointed, dull-edged
      knife, often with a sabre shape, used only to serve out pats of butter
      from a central butter dish to individual diners’ plates. Master butter
      knives are not used to spread the butter onto bread . . . . Individual
      butter knives have a round point, so as not to tear the bread, and are



      1
       Table knife, Wikipedia, The Free Encyclopedia, https://en.wikipedia.org/
wiki/Table_knife (last visited Oct. 21, 2016)


                                         3
      sometimes termed butter spreaders.2

      State’s Exhibit 8 is a photograph of the knife. It is clearly a table knife or

place knife. To avoid confusion, we shall refer to it simply as a knife.

Sufficiency of the Evidence

      In his first point, Appellant argues that the evidence is insufficient to

support the jury’s verdict because the evidence of self-defense precluded his

conviction.3 A defendant has the burden of producing some evidence to support

a claim of self-defense.4 The State has the burden of persuasion in disproving

self-defense.5      This burden does not require the State to produce evidence

refuting the self-defense claim; rather, the burden requires the State to prove its

case beyond a reasonable doubt.6          Self-defense is an issue of fact to be

determined by the jury.7 A jury verdict of guilty is an implicit finding rejecting the

defendant’s self-defense theory.8

      In reviewing the sufficiency of the evidence to support the jury’s rejection of


      2
       Butter knife, Wikipedia, The Free Encyclopedia, https://en.wikipedia.org/
wiki/Butter_knife (last visited Oct. 21, 2016).
      3
          See Tex. Penal Code Ann. §§ 9.31–.32 (West 2011).
      4
          Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003).
      5
          Saxton v. State, 804 S.W.2d 910, 913 (Tex. Crim. App. 1991).
      6
          Id.
      7
          Id. at 913–14.
      8
          Id. at 914.


                                          4
Appellant’s self-defense theory, we examine all of the evidence in the light most

favorable to the verdict to determine whether any rational trier of fact could have

found the essential elements of murder and also could have found against him

on the self-defense issue beyond a reasonable doubt.9

      The State argues that the evidence of self-defense is inadequate because

Appellant did not testify but relied on the testimony of others who did not support

his self-defense claim. Appellant was not required to testify in order to rely on a

self-defense justification.10 Quionecia told the police that Appellant had told her

that Toler had been choking him and that he had had no choice but to stab Toler.

Appellant sufficiently raised the issue of self-defense.11     But the fact that he

sufficiently raised the issue so that he could rely on that issue does not mean he

will necessarily prevail.12

      The State relied, at least in part, on evidence provoking the difficulty to

defeat Appellant’s self-defense claim.          When a defendant has spoken words

reasonably calculated to provoke the complainant’s attack on the defendant, the

provocation doctrine may preclude the assertion of the self-defense justification

      9
          See id.
      10
         See Smith v. State, 676 S.W.2d 584, 586–87 (Tex. Crim. App. 1984);
Stoffregen v. State, Nos. 02-03-00022-CR, 02-03-00023-CR, 2004 WL 362272,
at *1 (Tex. App.—Fort Worth Feb. 26, 2004, no pet.) (mem. op., not designated
for publication).
      11
           See Zuliani, 97 S.W.3d at 594.
      12
           See Saxton, 804 S.W.2d at 913–14.


                                            5
or may support a jury’s finding defeating the self-defense claim.13

      The jury, as trier of fact, was free to believe that Appellant’s words were

insufficient to provoke the difficulty, that Toler’s response was excessive in light

of the provocation, that Appellant’s words were sufficient to provoke the difficulty,

that Toler’s response was not excessive in light of the provocation, or that

Appellant’s response to Toler’s attack was excessive because he met non-deadly

force with deadly force. The jurors were also free to consider that Appellant had

a knife on his person.14

      Applying the appropriate standard of review, we hold the evidence

sufficiently supported the jury’s verdict. We overrule Appellant’s first point.

Jury Instruction on Provoking the Difficulty

      In his second point, Appellant contends that the trial court erred by

overruling his requested charge and applying the law of provocation. In our

review of a jury charge, we first determine whether error occurred; if error did not

occur, our analysis ends.15

      When the evidence raises, and the jury is charged on, self-defense, a

charge on provocation is also required when there is sufficient evidence that (1)


      13
       See Elizondo v. State, 487 S.W.3d 185, 196–204 (Tex. Crim. App. 2016);
Smith v. State, 965 S.W.2d 509, 512–14 (Tex Crim. App. 1998); Dyson v. State,
672 S.W.2d 460, 463–65 (Tex. Crim. App. 1984).
      14
           See Tex. Penal Code Ann. §§ 9.31–.32.
      15
           Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012).


                                          6
the defendant provoked the attack on him, (2) the defendant’s actions or words

were reasonably calculated to provoke the attack, and (3) the defendant’s actions

or words were a pretext for inflicting harm on the other person.16

      For the reasons discussed in our consideration of the sufficiency of the

evidence, we hold that there was sufficient evidence from which a rational juror

could find all the elements of provocation beyond a reasonable doubt, viewing

the evidence in the light most favorable to giving the provocation instruction.17

We therefore hold that the trial court did not err by instructing the jury on

provoking the difficulty. We overrule Appellant’s second point.

Racial Slur in the State’s Final Argument

      In his third point, Appellant argues that

      the trial court judge reversibly erred and abused its discretion in
      overruling . . . 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.

      After the police arrived, Appellant told Detective Pate that he had

confronted Toler and had used “racial slurs . . . and cuss words” toward him

because of “a prior altercation and prior confrontations they had had.” Toler

      16
         Smith, 965 S.W.2d at 513; see also Tex. Penal Code Ann. § 9.31(b)(4);
Reeves v. State, 420 S.W.3d 812, 816–20 (Tex. Crim. App. 2013) (analyzing
preserved error in provocation instruction within the “six-page impenetrable forest
of legal ‘argle-bargle’”).
      17
           Smith, 965 S.W.2d at 514.


                                         7
moved toward Appellant and hit him two, three, or four times in the face. Then,

according to Appellant, Toler began choking him. Appellant admitted that he had

then pulled a knife out of his front left pocket, a knife he claimed he had taken out

of the trash, and he began to swing the knife backwards over his left shoulder,

stabbing Toler.

      In final argument, the prosecuting attorney said,

            What were the words of provocation? I’ll tell you what the
      words of provocation were. [Appellant] called Devin and his family
      “niggas.” That’s what it was.

      Proper jury argument falls into one of four areas: (1) summation of the

evidence; (2) reasonable deduction from the evidence; (3) an answer to the

argument of opposing counsel; and (4) a plea for law enforcement.18 Generally,

error resulting from improper jury argument is subject to a harm analysis.19

      To preserve a complaint about improper jury argument for appellate

review, the defendant should (1) make a timely and specific objection, (2) request

an instruction to disregard if the objection is sustained, and (3) move for a mistrial

if the instruction to disregard is granted.20 Appellant made a timely objection, and

the trial court overruled the objection before the jury twice.        After a bench

      18
        Davis v. State, 329 S.W.3d 798, 821 (Tex. Crim. App. 2010), cert.
denied, 132 S. Ct. 128 (2011).
      19
        See Freeman v. State, 340 S.W.3d 717, 728 (Tex. Crim. App. 2011),
cert. denied, 132 S. Ct. 1099 (2012).
      20
        Cruz v. State, 225 S.W.3d 546, 548 (Tex. Crim. App. 2007); see Tex. R.
App. P. 33.1(a).


                                          8
conference, the trial court sustained the objection and instructed the jury,

“Disregard the comment of Counsel.”          The trial court did not specify which

comment of counsel he referred to and gave no further instruction.             The

prosecuting attorney immediately resumed argument, and Appellant failed to

request a mistrial. Appellant raised the improper argument in his motion for new

trial, which was denied.

      In the past, our courts recognized that some jury arguments are so

inflammatory that the harm and prejudice they cause cannot be cured by an

instruction.21    Then our courts, still recognizing the incurable nature of the

prejudice, nonetheless declared that the injury could be waived by failure to

move for a mistrial.22

      Logically, this position makes no sense. An incurably prejudicial argument

requires a mistrial.23 If the trial court does not grant the mistrial, the court has

committed error that requires setting aside the conviction and re-trying the

case.24 Respectfully, if the argument is so prejudicial that it has deprived the


      21
        See Willis v. State, 785 S.W.2d 378, 385 (Tex. Crim. App. 1989), cert.
denied, 498 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); cf. Phillips v.
Bramlett, 288 S.W.3d 876, 883 (Tex. 2009).
      22
           Cockrell, 933 S.W.2d at 89.
      23
        Pierson v. State, 426 S.W.3d 763, 774–75 (Tex. Crim. App.), cert.
denied, 135 S. Ct. 206 (2014).
      24
           Id.


                                         9
defendant of a fair trial, the injury is fundamental.25 If the case is a civil case,

denial of a fair trial results in setting aside the verdict, even if the complaint is not

properly preserved at trial and raised for the first time in a motion for new trial.26

Yet, a civil case does not involve loss of life or liberty. An unfair trial, even in a

criminal case, does not become fair just because the request for a new trial

comes on appeal rather than at trial. The reason for preservation of a complaint

is to allow the trial court to assuage the harm—to correct the problem.27 But

when the injury is of such magnitude that the trial court cannot correct it, how can

we find waiver because the trial court was not given the opportunity to “fix” the

unfixable problem?        Our courts, however, seem to insist that it is not the

incurable prejudice that requires reversal of a conviction; rather, only an improper

trial court ruling mandates reversal:

            The other two methods of complaint [besides objecting] are
      corrective measures. An instruction to disregard attempts to cure
      any harm or prejudice resulting from events that have already
      occurred. Where the prejudice is curable, an instruction eliminates
      the need for a mistrial, thereby conserving the resources associated
      with beginning the trial process anew. Like an instruction to
      disregard, a mistrial serves a corrective function. However, the class
      of events that require a mistrial is smaller than that for which a
      sustained objection or an instruction to disregard will suffice to
      prevent or correct the harm. A grant of a motion for mistrial should

      25
           Marin v. State, 851 S.W.2d 275, 281–82 (Tex. Crim. App. 1993).
      26
           Phillips, 288 S.W.3d at 883 (citing Tex. R. Civ. P. 324(b)(5)).
      27
        Hull v. State, 67 S.W.3d 215, 217 (Tex. Crim. App. 2002); see also
Grado v. State, 445 S.W.3d 736, 743 (Tex. Crim. App. 2014) (Keller, P.J.,
dissenting).


                                           10
      be reserved for those cases in which an objection could not have
      prevented, and an instruction to disregard could not cure, the
      prejudice stemming from an event at trial—i.e., where an instruction
      would not leave the jury in an acceptable state to continue the trial.
      Therefore, a mistrial conserves the resources that would be
      expended in completing the trial as well as those required for an
      appeal should a conviction occur.

             Because the objection, the request for an instruction to the
      jury, and the motion for mistrial seek judicial remedies of decreasing
      desirability for events of decreasing frequency, the traditional and
      preferred procedure for a party to voice its complaint has been to
      seek them in sequence—that is, (1) to object when it is possible, (2)
      to request an instruction to disregard if the prejudicial event has
      occurred, and (3) to move for a mistrial if a party thinks an instruction
      to disregard was not sufficient. However, this sequence is not
      essential to preserve complaints for appellate review. The essential
      requirement is a timely, specific request that the trial court refuses.28

      In 2007, courts recognized that some arguments are so prejudicial and so

inflammatory that an instruction to disregard is inadequate:

             We have previously said that while the “traditional and
      preferred procedure” for a party to preserve error is to (1) object in a
      timely manner, (2) request an instruction to disregard, and (3) move
      for mistrial if the instruction to disregard seems insufficient, such a
      sequence is not essential to preserve complaints for appellate
      review. The only essential requirement to ensure preservation is a
      timely, specific request that is refused by the trial court.

              A request for an instruction to disregard is essential to the
      preservation of error only when such an instruction could have had
      the effect desired by the requesting party. If such an instruction
      would not be sufficient—that is, if the harm caused by the
      objectionable statements is incurable—then the defendant is entitled
      to a mistrial, and the denial of the motion for mistrial is sufficient by
      itself to preserve error for appellate review. When, as in this case,
      the appellant moved for mistrial without delay, even though the

      28
        Young v. State, 137 S.W.3d 65, 69 (Tex. Crim. App. 2004) (footnotes
omitted).


                                         11
      motion was not preceded by an instruction to disregard, appellate
      review is limited to whether the trial court erred in denying the motion
      for mistrial.29

      Here, there was no mention of the word “nigga” or any variation thereof in

any of the testimony. Yet, the prosecutor argued that Appellant had called both

Toler and his family “niggas.” A prosecutor may not use closing arguments to

present evidence that is outside the record.30 Improper references to facts that

are neither in evidence nor inferable from the evidence are generally designed to

arouse the passion and prejudice of the jury and, as such, are inappropriate.31

      The unique nature of the record before us is important to the analysis of

this issue. During the State’s final argument on guilt, the prosecuting attorney

argued,

      [Prosecutor]:              Thank you, Judge, Counsel. What were
                                 the words of provocation? I’ll tell you what
                                 the words of provocation were. Luis called
                                 Devin and his family “niggas.” That’s what
                                 it was.

      [Defense Counsel]:         Your Honor, objection. That is certainly
                                 outside the record. That is not in the record
                                 at all.

      THE COURT:                 The jury will recall the testimony.

      [Defense Counsel]:         No, Your Honor. That is not in the record.
                                 It is simply not there.


      29
           Cruz, 225 S.W.3d at 548 (footnotes omitted).
      30
           Freeman, 340 S.W.3d at 728.
      31
           Id.


                                         12
      THE COURT:                 Overruled.

      [Defense Counsel]:         Can I ask where that is in the record?

      THE COURT:                 Overruled.

      [Defense Counsel]:         Wow.

      THE COURT:                 Come up, [Defense Counsel]. Come up.

      A bench conference followed this exchange. The jury was not privy to the

discussion at the bench. Then, the proceedings switched to open court.

      THE COURT:                 All right. Ladies and gentlemen, I will
                                 sustain the objection.

      [Defense Counsel]:         Ask the jury be instructed to disregard the
                                 comment of Counsel.

      THE COURT:                 Disregard the comment of Counsel.

      The last thing the jury heard before the lengthy discussion at the bench

was defense counsel’s testy responses to the trial court. Whose objection did

the jury believe the trial court sustained? Although defense counsel requested

the instruction to disregard the comment of counsel, and it seems logical that it

was the prosecutor’s comment that the jury was instructed to disregard, defense

counsel’s request could equally be seen as an apology to the bench and a

request that the jury be instructed to disregard defense counsel’s exchange with

the bench. And by the time the jury was instructed, there had been numerous

comments by both lawyers.

      The impact of the improper statement by the prosecuting attorney must be

viewed in the context of the political atmosphere at the time of trial. The trial took



                                         13
place in early December 2014. On February 26, 2012, George Zimmerman,

whose mother was from Peru, killed Trayvon Martin. Emotional discussions of

Zimmerman’s ethnicity filled news commentary.32 Other killings made headlines.

Among them was the death of Eric Garner while he was selling loose cigarettes

in New York on July 17, 2014. The officer who killed him was Daniel Pantaleo.33

On August 9, 2014, Michael Brown was killed in Ferguson, Missouri.34          On

August 11, 2014, Ezell Ford was killed in Los Angeles by two police officers, one

of whom was Hispanic.35 And on November 23, 2014, twelve-year-old Tamir

Rice was killed in Cincinnati, Ohio.36      Additionally, the Black Lives Matter

organization was formed in 2013 in response to the acquittal of George

Zimmerman in his trial for the murder of Trayvon Martin and was actively




      32
        CNN’s “White Hispanic” Label for George Zimmerman Draws Fire,
Huffington Post (July 12, 2013, 5:59 p.m.), http://www.huffingtonpost.com/
2013/07/12/cnn-white-hispanic_n_3588744.html (last visited Oct. 25, 2016).
      33
         Death of Eric Garner, Wikipedia, The Free Encyclopedia,
https://en.wikipedia.org/wiki/Death_of_Eric_Garner (last visited Oct. 25, 2016).
      34
         Shooting of Michael Brown, Wikipedia, The Free Encyclopedia,
https://en.wikipedia.org/wiki/Shooting_of_Michael_Brown (last visited Oct. 25,
2016).
      35
         Shooting of Ezell Ford, Wikipedia, The Free Encyclopedia,
https://en.wikipedia.org/wiki/Shooting_of_Ezell_Ford (last visited Oct. 25, 2016).
      36
         Shooting of Tamir Rice, Wikipedia, The Free Encyclopedia,
https://en.wikipedia.org/wiki/Shooting_of_Tamir_Rice (last visited Oct. 25, 2016).


                                       14
involved in protests nationwide.37

      Appellant’s statement that he had used a racial slur toward Toler was

vague.     Quionecia gave no indication that she had heard anything that she

considered a racial slur. The prosecutor’s addition to the dialogue that Appellant

had called Toler and his family “niggas”, in the context of the racial conflicts

throughout the country, was particularly inflammatory.        The trial judge was

obligated to provide clear, unequivocal instruction to the jury: to clearly state

what objection he had sustained and to clearly and specifically instruct the jury to

disregard the prosecutor’s unsupported statement that Appellant had called both

Toler and his family “nigga.”38

      Although the trial judge twice overruled Appellant’s objection to the

prosecutor’s statement outside the record that injected inflammatory and

prejudicial speculation into the record as fact, when the objection was made clear

in a bench conference, the conscientious trial judge sustained it. Unfortunately,

      37
         Julia Craven, Black Lives Matter Co-Founder Reflects on the Origins of
the     Movement,     Huffington   Post   (Sept. 30,      2015,    3:19   p.m.),
http://www.huffingtonpost.com/entry/black-lives-matter-opal-tometi_us_560c1c59
e4b0768127003227 (last visited Oct. 25, 2016).
      38
         See, e.g., Austin v. State, 222 S.W.3d 801, 813–16 (Tex. App.—-
Houston [14th Dist.] 2007, pet. ref’d) (holding trial court did not abuse its
discretion in trial of mother for felony injury to child when, after grandmother
testified that she had been concerned about leaving a child with mother or
suspicious of her when another of mother’s young children had died—evidence
which had been the subject of a motion in limine, the trial court strongly
instructed the jurors three times that day and polled them individually the next
day about whether they could follow the instruction to disregard), cert. denied,
552 U.S. 1191 (2008).


                                        15
so much had occurred outside the presence of the jury that it was unclear to the

jury what objection had been sustained. Additionally, the experienced trial judge

gave a perfunctory instruction to disregard, rather than a clear and forceful

instruction to disregard the prosecutor’s inflammatory statement that was outside

the record. The conscientious trial judge may not have wanted to call more

attention to the improper argument. But, under the facts of this case, it was

important that the instruction be clear, rather than vague, and forceful, rather

than perfunctory.

      For these reasons, we hold that Appellant’s complaint was adequately

preserved, both at trial and in his motion for new trial, and we further hold that the

harm caused by the prosecutor’s inflammatory statement outside the record

could not be cured by the vague and perfunctory instruction to disregard. We,

therefore, sustain Appellant’s third point.

Conclusion

      Having overruled Appellant’s first two points but having sustained his third

point, we reverse the trial court’s judgment and remand this case to the trial court

for proceedings consistent with this opinion.




                                          16
                                            /s/ Lee Ann Dauphinot
                                            LEE ANN DAUPHINOT
                                            JUSTICE

PANEL: DAUPHINOT, WALKER, and SUDDERTH, JJ.

WALKER, J., filed a concurring opinion.

SUDDERTH, J., filed a dissenting opinion.

PUBLISH

DELIVERED: November 3, 2016




                                      17
