                         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

                                     ----------

                           DISSENTING OPINION

                                     ----------

      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
