Hernandez v. State, 538 S.W.3d 619

Victim Devin Toler was killed after a confrontation with Appellant, who admitted insulting Toler and claiming self-defense; police reported Appellant admitted using "racial slurs."
At trial, defense argued Toler provoked the fight by sleeping with Appellant's wife; State argued Appellant provoked it by using racial insults, explicitly using the word "niggas" in closing.
Defense objected that the prosecutor’s use of the word was outside the record and inflammatory; the court initially overruled, then after bench conference told counsel he could say "racial slur," and in open court sustained the objection and instructed the jury to disregard.
Defense did not move for a mistrial or otherwise pursue the objection after the court’s ruling.
Appellant was convicted of murder and sentenced to 14 years. The court of appeals reversed, finding the prosecutor’s unrecorded use of the racial epithet was incurable and preserved despite lack of further pursuit.
The Texas Court of Criminal Appeals granted review to decide whether the right to be free from improper jury argument is forfeitable and whether an inflammatory word outside the record can dispense with preservation requirements.

Issue	Hernandez's Argument	State's Argument	Held
Whether a defendant preserves complaint about improper jury argument when defense objects but does not pursue the objection after an adverse ruling	The prosecutor’s use of the racial epithet was incurable; the initial overruling and the remark’s egregiousness meant Hernandez preserved error without moving for a mistrial	Rights to be free from improper jury argument are forfeitable; a defendant must object and pursue the objection to an adverse ruling to preserve error	The right is forfeitable; Hernandez forfeited the complaint by not pursuing the objection to an adverse ruling
Whether an inflammatory, out-of-record word can excuse normal preservation steps	The word was so inflammatory and outside the record that traditional preservation (object/instruction/mistrial) should not be required	Even incurably improper argument does not eliminate preservation requirements; defendant must move for mistrial if instruction is inadequate	Even an inflammatory out-of-record word does not dispense with preservation; error is waived without pursuing objection

Marin v. State, 851 S.W.2d 275 (Tex. Crim. App. 1993) (forfeiture occurs when a party fails to request enforcement of a right in trial court)
Cockrell v. State, 933 S.W.2d 73 (Tex. Crim. App. 1996) (right to be free of improper jury argument is forfeitable; must pursue objection to adverse ruling)
Estrada v. State, 313 S.W.3d 274 (Tex. Crim. App. 2010) (even egregious prosecutor argument requires moving for mistrial to preserve)
Cruz v. State, 225 S.W.3d 546 (Tex. Crim. App. 2007) (denial of mistrial can preserve error without prior request for instruction when instruction would be insufficient)
Young v. State, 137 S.W.3d 65 (Tex. Crim. App. 2004) (preservation requires a timely, specific request that the trial court refuse)
Hernandez v. State, 508 S.W.3d 737 (Tex. App.-Fort Worth 2016) (court of appeals reversed conviction, finding prosecutor’s remark incurable and preserved)