*1 justices consisting of of later panel Justices Lee be reincarcerated for life in accor- dance his sentence.2 And we Dauphinot, McCoy, and Ann Bob Bill Mei- would finally appeal have this without decided McCoy retired from er. Justice the court possibility yet delay of further due to Therefore, pan- December anomaly of in upcoming changes today deciding appeal el this consists of composition of this court.3 For these rea- justices, only Dauphinot two Justices sons, I moved appeal the court to hear this 41.1(b) Meier. See Tex. R. App. P. (provid- en banc. ing that if a after member of the Yet, majority court panel cannot of the voted participate deciding the deny seeking en banc case, motion submis- may case be decided the two this appeal. sion of I therefore dissent remaining justices). Our consists of from this court’s opinion deny- and order justices, only seven two of them have ing hearing the motion for this appeal of pre- reached the the evidence decision en banc. See Tex. by the court R. App. P. support sented is insufficient 47.5. Ingerson’s Mr. conviction murder and have
joined today’s judgment acquitting Mr. C.J.; LIVINGSTON, GABRIEL, J., I Ingerson. Consequently, believe that a join. rehearing State’s motion for en banc will ultimately inevitable and that we be appeal this en
required to consider banc
any event. me, judicious
To the more course would appeal have been to hear this banc en Miguel HERNANDEZ, Appellant Luis today’s prior to two-justice the issuance so, doing panel opinion. By we have would Texas, The STATE of State that the possibility avoided the outcome appeal change this on en banc will submis- NO. 02-14-00498-CR acquittal sion from judgment to an Texas, Court Appeals trial court’s judgment affirmance of the Fort Worth. and the of an possibility additional time 3, 2016 DELIVERED: November delay drafting associated with the of a new majority opinion en banc. have Discretionary We would Review Granted victims, spared the families Mr. March Ingerson, Ingerson’s family, Mr.
possible having toll of In- emotional Mr.
gerson today only on bail after released Crim, 44.04(h) ing from December
2. See Proc. Ann. art. the court effective Tex. Code (West 2016) 2016; Supp. (providing that a con- justice "[i]f a new will be elected Justice viction decision of a seat; is reversed Court of Dauphinot’s Gardner’s and Justice seat defendant, Appeals, custody, if in is enti- any If appointment. will be filled State's bail, regardless tled to on reasonable release rehearing motion for is not decided en banc length imprisonment, pend- of the of term of prior to December 2016—as would be ing appeal by final of an determination likely opinion majority if a new must draft- state or on a motion the defendant for discre- justice(s) new on our court will be ed—-the review”). tionary part required to State's motion vote on the R. the en court. See Tex. P. banc court, justices 3. Two on our Justice 41.2(a). Gardner, Dauphinot Justice will be retir-
ment at the Branch apartment Wildwood complex. engaged Toler was in a sexual relationship Mary, with his boss at the Subway Shop Mary where he worked. husband, Appel- lived downstairs with her lant, Mary and their children. and Toler’s relationship had become common knowl- edge, reacted growing Toler, anger toward yelling at him when- ever he saw him. Toler was taller than Worth, Alley, Fort Appel- Richard Appellant. But Toler’s mother was con- lant cerned told him to call police *4 Wilson, Sharen Criminal District Attor- go not to outside alone. ney; Windsor, Debra Chief the Post- killed, day On the Appellant Toler was Division; Kennedy, conviction A. Danielle took a bag dumpster. small of trash to the Simpson, Catherine Assistant Criminal When he saw Toler on the basketball Attorneys District County, Tarrant court, Appellant yelling started at him. Worth, Fort for the State got upset Toler and started walk toward Quionecia Appellant. yelled at the men to DAUPHINOT, WALKER, PANEL: stop daughter because her was there. At SUDDERTH, and JJ. trial, Quionecia testified that Appellant said, bitch, “Fuck that no one cares about OPINION Quionecia her.” While testified that she DAUPHINOT, LEE ANN JUSTICE telling police remembered the what Appel- A jury Appellant Miguel lant daughter, convicted Luis had said about her she also audiotape Hernandez murder assessed his admitted that the and her inter- punishment at years’ police fourteen confine- view with the on night recorded ment. The trial court sentenced him ac- Toler was killed did not include that infor- cordingly. points, Appellant In three mation. chal- lenges sufficiency of the evidence to court, Toler left the basketball ran to- support argues the verdict and Appellant, ward fight. and started to When reversibly trial court including erred a off, fight began, girl the little ran and jury instruction provoking difficulty Quionecia get Quionecia went her. When by overruling objection his to the men, came back to angle, her it State’s use of a racial in final argu- slur hitting looked like Toler was more. When Although ment. the evidence is sufficient ended, fight walked toward conviction, support Appellant’s the trial his apartment, and Toler fell reversibly by overruling erred ground. Quionecia ran to him and saw a objection to the final argument. State’s gash above his left chest. We, therefore, reverse the trial court’s said, Appellant came back outside and
judgment and remand this case to happens “This is what mess with court. me.” His children Mary got the car Brief Facts and left. Then went over To-
Quionecia visiting Barber was To- Quionecia, Devin ler and put knelt and water ler, complainant, face, and them nineteen- from a water bottle on Toler’s daughter month-old upstairs apart- him to get up. Appellant asked said he was support jury’s verdict because the evi- gone it not sorry should have said, choking precluded of self-defense his convic- sorry, “I’m he was dence far. He pro- tion.3 A has defendant the burden I didn’t have choice.” me. ducing support some evidence to a claim during the offense. Appellant had a knife self-defense.4 The State has the burden of to as a Although it is referred butter knife disproving This persuasion self-defense.5 record, actually a place in the knife require pro- the State to burden does “A knife is an table table item knife. the self-defense refuting duce evidence cutting edge, cutlery single claim; rather, requires the burden setting. end—part of a table Table blunt beyond a prove State to its case reason- sharpness of moderate typically knives are of fact able doubt.6 Self-defense is an issue prepared to cut and cooked only, designed jury.7 juryA to be determined food.”1 guilty implicit finding is an re- verdict knife, hand, on the A other butter jecting self-defense theo- the defendant’s much smaller. ry.8 (or knife) master butter butter knife [A] reviewing sufficiency In knife, of- sharp-pointed, dull-edged is a support jury’s rejection of evidence to shape, only to ten with a used sabre theory, self-defense we exam of butter from a central pats serve out *5 light all of the evidence in the most ine plates. diners’ butter to individual dish to to favorable the verdict determine not butter knives are used Master any of fact whether rational trier could .... onto bread Indi- spread the butter have found the essential elements mur point, a vidual butter knives have round against also him der and could have found bread, are so as not to tear the beyond a reason on the issue self-defense spreaders.2 termed butter sometimes able doubt.9 photograph a Exhibit 8 is State’s argues that the evi The State place or clearly a knife knife. It is table inadequate is because dence self-defense confusion, To we shall refer knife. avoid testify on Appellant did not but relied simply as knife. a support testimony of others who did not Sufficiency of Evidence his claim. self-defense rely on a testify in order to point, Appellant required In his first ar justification.10 Quionecia told self-defense that the evidence is insufficient gues Encyclope- 6. id. knife, Wikipedia, The Free 1. Table dia, https://en.wikipedia.org/wiki/Table_knife 21, 2016) (last visited Oct. 7. Id. at 913-14. knife, Wikipedia, Ency- The Free Butter
2. at 914. 8. Id. clopedia, https://en.wikipedia.org/wiki/Butter_ 2016). (last knife visited Oct. 9. See id. (West §§ Ann. 9.31-.32 3. See Tex. Penal Code 2011). 10. See 676 S.W.2d Smith 1984); Stoffregen v. 4. Zuliani v. 02-03-00023-CR, 02-03-00022-CR, Nos. 2003). (Tex. App.-Fort Worth WL *1 26, 2004, (mem. desig- pet.) op., not no Feb. Saxton v. publication). nated for police that her that Jury had told Provoking Instruction on Diffi- choking
Toler had
him
that
culty
been
he
Appel-
had
choice but
stab Toler.
had
point, Appellant
In his second
contends
sufficiently
lant
raised the issue of self-
that the trial
overruling
court erred
sufficiently
But the fact that
defense.11
he
requested charge
applying
the law of
rely
raised the issue so that he
on
could
provocation.
In our
review
a
that issue does not mean he will necessari-
charge, we first determine whether error
ly prevail.12
occurred;
occur,
analy-
error did not
our
sis ends.15
relied,
part,
The State
at least in
provoking
difficulty
on evidence
to de
raises,
When the evidence
the jury
Appellant’s
feat
self-defense claim. When a
on, self-defense,
charged
charge
is
spoken
reasonably
defendant has
words
provocation
required
is also
when there
provoke
complainant’s
calculated
at
(1)
sufficient evidence that
the defendant
defendant,
provocation
tack on the
(2)
him,
provoked the attack on
the defen-
may preclude
doctrine
the assertion of the
reasonably
dant’s actions or words were
justification may support
or
self-defense
attack,
provoke
calculated to
jury’s finding defeating the self-defense
the defendant’s
actions
words were a
claim.13
pretext
inflicting
harm on the other
person.16
fact,
jury,
as trier
was free
that Appellant’s
believe
words
in
were
the reasons
discussed
our
For
provoke
sufficient to
difficulty,
consideration of
sufficiency
of the evi
response
Toler’s
in light
was excessive
of dence, we
hold
there
sufficient
provocation,
words
juror
evidence
which a rational
could
provoke
difficulty,
were sufficient to
provocation
find all the
beyond
elements
response
that Toler’s
was not excessive in
doubt,
viewing
reasonable
the evidence
*6
light
provocation,
of
Appellant’s
the
or that
light
in the
giving
most favorable to
the
response to Toler’s attack was excessive provocation instruction.17 We therefore
non-deadly
because he met
force with
hold that
the
court
did not err
deadly
jurors
force. The
were also free to instructing
jury
the
on provoking the diffi
Appellant
consider that
a
had
knife
his
culty.
Appellant’s
We overrule
second
person.14
point.
Applying
appropriate
the
of
standard
re-
Argu-
Racial Slur
the State’s Final
view,
sufficiently
we hold the evidence
sup-
ment
ported
jury’s
the
Ap-
verdict. We overrule
pellant’s
point.
first
In
point, Appellant argues
his third
that
Zuliani,
State,
(Tex.
11. See
the trial plea Generally, overruling for law enforcement.18 er its discretion in and abused resulting, improper jury argument ror objection prosecu- ... subject analysis.19 is to a harm racial inflammatory use of the slur tor’s the record “niggas[,]” was outside which preserve complaint improper To about urged inten- and been the case had review, jury argument appellate designed to manifestly tionally and was (1) timely defendant should make and deny jury a fair trial dur- appellant (2) specific objection, an instruc- request closing jury argument ing the State’s disregard objection tion to if is sus- guilt-innocence phase of end of the tained, for a move mistrial appellant’s trial. granted.20 Ap- to arrived, pellant timely objection, made a and the police Appellant told After the objection trial court before overruled he had confronted To- Detective Pate that conference, twice. After a bench ... “racial slurs and cuss ler and had used objection the trial sustained the prior him of “a because words” toward jury, “Disregard the com- instructed they prior confrontations altercation and The trial court did not ment Counsel.” Toler moved had had.” toward specify which comment counsel he re- two, three, in the hit him or four times no further instruction. gave ferred Then, according Appellant, Toler face. immediately prosecuting attorney re- admitted began choking him. argument, Appellant failed to sumed pulled knife out his had then he Appellant raised request a mistrial. he had front a knife he claimed pocket, left argument in his motion for new trash, improper began to and he taken out trial, was denied. which his left knife over swing the backwards shoulder, stabbing Toler. recognized that past, In the our courts are,so inflammatory arguments some attor- argument, prosecuting
In
final
they cause
prejudice
the harm and
said,
ney
cured
an instruction.21 Then
cannot be
provocation?
were the words of
What
courts,
recognizing the incurable
our
still
provoca-
I’ll
tell
what the words
nonetheless de-
prejudice,
nature
[Appellant]
Devin and
tion were.
called
injury
could be waived
clared
what was.
family “niggas.” That’s
for a mistrial.22
failure move
falls
Proper
*7
(1)
Logically,
position
this
makes
into
of four
summation
one
areas:
argument
incurably prejudicial
An
evidence;
(2) reasonable deduction
sense.
the
evidence; (3)
If
trial court does
requires
to
the
an answer
mistrial.23
from the
279,
(1990),
798,
(Tex.
908,
State,
234
111
112 L.Ed.2d
821
S.Ct.
18. Davis v.
329 S.W.3d
830,
2010),
denied,
73,
App.
565 U.S.
cert.
933
v.
overruled
Cockrell
Crim.
128,
(2011).
denied,
50
1996),
132 S.Ct.
181 L.Ed.2d
(Tex.
App.
520
cert.
89
Crim.
1173,
1442,
137 L.Ed.2d
117 S.Ct.
U.S.
717,
State, 340 S.W.3d
19. See Freeman v.
Bramlett,
(1997);
Phillips
288 S.W.3d
cf.
denied,
(Tex.
2011),
Crim.
cert.
(Tex.
not com- the court has than that for objection which a sustained requires setting that aside mitted error or an disregard instruction to will suffice re-trying the conviction and the case.24Re- prevent or grant correct the harm. A spectfully, prejudicial if is so of a motion for mistrial should re- deprived has the defendant of a fair served for objec- those cases which an trial, injury If is fundamental.25 tion not prevented, could have and an case, case is a civil denial of fair trial cure, instruction to disregard not could verdict, setting results in aside the even prejudice stemming from an event at complaint properly preserved not at trial—i.e., where an instruction would trial for the first in a and raised time not acceptable leave the an state Yet, motion for a civil new trial.26 case does Therefore, to continue the trial. a mistri- not liberty. involve loss of life or An unfair al conserves the resources that would be trial, case, even a criminal not does expended in completing the trial as well just request become fair because the for a required those for an appeal should a new trial comes on rather than appeal conviction occur. trial. preservation The reason for of a com- plaint assuage is to allow the trial court to objection, Because the request harm—to problem.27 correct the But an instruction to the jury, and the mo- injury magnitude when the is of such tion for mistrial judicial seek remedies it, trial court cannot correct how can decreasing desirability for events of we find waiver because trial court was decreasing frequency, the traditional given opportunity not to “fix” the un- preferred procedure for a party to however, problem? courts, fixable Our voice complaint its has been to seek to insist that it is not seem the incurable is, (1) in sequence—that them object prejudice requires reversal of a con- (2) possible, when it is viction; rather, request an only improper trial ruling instruction to disregard prejudicial mandates reversal: if the occurred, event has to move for complaint The other two methods party mistrial if a thinks an instruction objecting] [besides are corrective meas- An ures. instruction to disregard at- sufficient. Howev- tempts any harm prejudice er, cure sequence this is not pre- essential to resulting already that have events complaints serve for appellate review. prejudice occurred. Where the is cura- The essential requirement timely, is a ble, an instruction eliminates the need specific request that the trial court re- mistrial, thereby for a conserving the fuses.28 beginning resources associated with In recognized courts that some process anew. Like an instruction arguments prejudicial are so in- and so disregard, a mistrial serves a correc- However, flammatory tive function. that an class disre- require events that a mistrial is gard smaller is inadequate: *8 (Tex. 24. Id. 27. v. Hull 67 S.W.3d 2002); App. Crim. see also v. Grado 2014) (Kel- 25. 851 S.W.2d Marin ler, P.J., dissenting). Phillips, 26. (citing Young 28. Tex. R. 324(b)(5)). 2004) (footnotes omitted). Civ. P. unique The nature of the before that while the record previously said We have important analysis to of this us is the preferred procedure” “traditional During final issue. the State’s error is to party preserve to for guilt, attorney argued, the prosecuting manner, (2) request an timely in a object (3) move disregard, you, Judge, Thank Coun- [Prosecutor]: if the instruction disre- for mistrial sel. What were the words insufficient, such I’ll tell sequence provocation? gard seems of provo- what the words preserve complaints is not essential cation Luis called were. only The essential appellate for review. family “nig- Devin and his preservation is a requirement to ensure gas.” That’s what was. that is refused timely, specific request Honor, objec- Your Counsel]: [Defense by trial court. certainly tion. That is outside for an instruction disre- request A the record. That is in the preservation of gard is essential record at all. only such an instruction error jury THE COURT: The will recall the the effect desired could have had testimony. If such an instruction requesting party. No, Your Honor. Counsel]: [Defense is, if the would not be sufficient—that It That is not in the is record. objectionable state- harm caused simply not there. incurable—then the defendant ments is THE COURT: Overruled. mistrial, to a and the denial is entitled Can I ask where that [Defense Counsel]: for mistrial sufficient the motion inis the record? re- preserve appellate error itself THE COURT: Overruled. When, case, appel- as this view. Counsel]: Wow. [Defense delay, lant moved for mistrial without up, [Defense THE COURT: Come preced- though motion was not even up. Come Counsel]. disregard, appel- by an instruction to ed to whether late review is limited this ex- A conference followed bench denying the motion trial court erred privy to jury was not change. The for mistrial.29 Then, proceed- at the bench. discussion open court. ings switched Here, there was no mention Ladies and right. THE COURT: All any “nigga” variation thereof the word gentlemen, I will sustain ob- Yet, prosecu any testimony. jection. called both argued tor had in- Ask the [Defense Counsel]: prosecu A family “niggas.” Toler and com- disregard the structed to closing arguments pres may tor not use ment Counsel. that is outside the record.30 ent evidence THE comment Disregard the COURT: nei Improper references to facts are of Counsel. from the ther in evidence nor inferable designed thing to arouse last heard before generally evidence are and, bench was de- lengthy discussion at the passion prejudice to the trial testy responses such, fense counsel’s inappropriate.31 are (footnotes Cruz, 31. omit- id. 29. 225 S.W.3d at ted), Freeman, 340 728. S.W.3d at *9 objection jury
court. Whose did the believe Ezell Ford in Angeles by was killed Los Hisp court Although the trial officers, sustained? defense police two one of whom was requested counsel the instruction to disre- 23, 2014, on And November anic.35 counsel, gard the comment of seems twelve-year-old Tamir Rice was in killed logical that it was the prosecutor’s com- Cincinnati, Additionally, Ohio.36 the Black jury ment that the was instructed to disre- organization Lives Matter was formed in gard, defense request counsel’s could in response acquittal George of equally apology be seen as an to the bench Zimmerman in his trial for the of murder request and a be instructed Trayvon Martin and was actively involved disregard defense exchange counsel’s protests nationwide.37 the bench. And the time the Appellant’s statement that he had used a instructed, was there had been numerous racial slur vague. toward Toler was lawyers. comments both Quionecia gave indication that she had impact The of improper statement anything heard she a ra- considered by the prosecuting attorney must be prosecutor’s cial slur. The addition to the in the context of political viewed atmo dialogue that Appellant had called Toler sphere at the time of trial. The trial took family “niggas”, and his in the context of place early 2014. On December Febru throughout country, racial conflicts ary Zimmerman, George whose particularly inflammatory. The trial Peru, mother was from Trayvon killed judge clear, obligated to provide un- Martin. Emotional discussions of Zimmer equivocal jury: instruction to the to clearly man’s ethnicity commentary.32 filled news objection state what he had sustained and killings Other made Among headlines. to clearly specifically instruct the them was the of Eric death Garner while prosecutor’s unsupported selling cigarettes he was loose New statement had called both July 17, York on 2014. The officer who family Toler “nigga.”38 him killed was Daniel Pantaleo.33 Au On 9, 2014, gust Although Michael judge Brown was killed in the trial twice overruled Ferguson, 11, 2014, August Missouri.34On Appellant’s objection prosecutor’s Hispanic" 32. George (last CNN’s "White wiki/Shooting_of_Tamir_Rice Label visited Oct. for Fire, 25, 2016). Hufflngton (July Zimmerman Draws Post 12, 2013, p.m.), http://www.huffington 5:59 Craven, 37. Julia post, Black Lives Matter Co-Found- com/2013/07/12/cnn-white-hispanic_n_ Movement, (last 25, 2016). Origins er 3588744.html visited Oct. Reflects of Huffington (Sept. p.m.), Post 3:19 Gamer, 33. Wikipedia, Death Eric The Free http://www.huffingtonpost.com/entiy/black- Encyclopedia, https://en.wikipedia.org/wild/ lives-matter-opal-tometi_us_560clc59 Death_o£_Eric_Garner (last visited Oct. (last e4b0768127003227 2016). visited Oct. Brown, Shooting 34. Wikipedia, Michael See, e.g., 38. Austin v. Encyclopedia, https ://en.wikipedia. The Free App.-Houston [14th Dist] (last org/wiki/Shooting_oLMichaeLBrown ref’d) pet. (holding trial court did not abuse 25, 2016). visited Oct. felony its discretion in trial mother when, injury grandmother child after testi Ford, Shooting 35. Wikipedia, The Ezell fied that she been concerned leav had about Encyclopedia, Free https://en.wikipedia.org/ ing suspicious a child with mother or of her (last wiki/Shooting_of_EzelL_Ford visited Oct. young another children mother's had 25, 2016). subject died—evidence which had been the Rice, Shooting limine, Wikipedia, Tamir a motion in strongly Encyclopedia, Free https://en.wikipedia.org/ jurors day instructed the three times that *10 injected judgment reverse the trial court’s the reeord we and statement outside prejudicial speculation remand this case to the trial court for inflammatory and fact, objection proceedings opinion. when the consistent with this into the record as conference, in a bench was made clear it. judge trial sustained Un- conscientious WALKER, J., opinion. a concurring filed
fortunately, so had occurred outside much un- jury of the presence SUDDERTH, J., that was dissenting filed objection been jury clear to the what had opinion. Additionally, experienced sustained. WALKER, Justice, concurring SUE judge gave perfunctory
trial
instruction
a clear
force-
disregard,
rather than
and
Appellant
Miguel
Because
Luis
Hernan-
prosecu-
ful instruction to
dez’s third issue is
as an
framed
issue
inflammatory
out-
tor’s
statement
was
prosecutorial misconduct—an issue that
The conscientious trial
side the record.
strictly preserved
light
need
be
in
judge may not
to call more
have wanted
resulting
process
of Ap-
due
violation
But,
argument.
improper
attention to the
right to a fair
pellant’s
trial—I concur with
case,
impor-
of this
under the facts
it was
Majority’s disposition of
this appeal.
clear,
rather
that the instruction
tant
Appellant’s third issue asserts that “[t]he
forceful,
vague,
per-
rather than
than
and
trial
judge reversibly
erred and
functory.
overruling
Ap-
its
in
abused
discretion
objection
in-
pellant’s
prosecutor’s
reasons,
For
these
we hold
flammatory
‘Niggas’
use
the racial slur
adequately
Appellant’s complaint
record of the case
was outside the
which
motion
preserved, both at trial
his
and
intentionally
urged
had
and was
been
trial,
further hold that the
new
we
manifestly designed
deny
prosecutor’s
harm
inflamma
caused
closing
during
a fair
trial
the State’s
tory statement outside the record could
guilt-
argument at the end of the
vague
perfunctory
not be
cured
phase
Appellant’s
of the
trial.”
innocence
We, therefore,
disregard.
point.
third
sustain
trial,
At
claimed he did not
commit
but
murder
acted
self-defense.
Conclusion
The
charged
on self-defense.
requested,
two
court sub-
Having
Appellant’s first
State
overruled
mitted,
jury charge
provocation.1
on
points
having
point,
his third
but
sustained
reasonably
individually
day
person
polled
next
about
to do so
believ-
them
intent
they
ing
safely
could
the instruction to
whether
follow
he
the encounter
cannot
abandon
disregard),
nevertheless,
person,
contin-
and the other
(2008).
It is not in
that the Defendant
process
equal'
defendant’s
protec
due
mean,
killed
I
[the deceased].
that’s
Bains,
rights.”
tion
What
have
consider is
a hallmark of justice, appeals to racial
gets
whether or not
to claim
passion
he
self-
can distort
the search for truth
defense. And remember in
drastically
juror’s
selection
impartiality.
affect
(D.C.
prosecutor]
talking
Doe,
[another
United States v.
903 F.2d
you-all
legal
about
the term—the
Cir.
“provoking
difficulty.”
term
I can’t
Supreme
The United States
has
Court
go pick
fight
with someone and then
“prosecutorial
held that
may
misconduct
so
decide to claim self-defense after I do infect the trial with unfairness as to make
something bad.
resulting
conviction a denial of due
Appellant
Miller,
No witness
process.”
testified that
ut-
Greer
483 U.S.
“niggas”
provoke
3102, 3109,
tered the word
107 S.Ct.
An
of whether
analysis
No witness
testified that
process
in a
family
misconduct resulted
due
viola-
“called
‘nig-
[the deceased] and his
right
gas’”
tion of the defendant’s
to a fair trial
prosecutor.
as stated
*12
of
prosecutor’s
focuses on the effect
the misconduct—
during
closing
statement
final
whether it
the trial with unfair-
Appellant
infected
that
the
called
de-
motive,
prosecutor’s
on
“niggas”
ness—not
the
sub-
ceased and the
family
deceased’s
intent,
jective
culpability.
or
racially
was outside the
record
was
inflammatory remark.
McCleskey,
See
481
Supreme
The United
Court has
States
n.30,
n.30;
at
U.S.
309
defense
new
must be
inflammatory
cially
“niggas” Ap- Bautista,
word
(“To
at
warrant
pellant
by telling
Appel-
reversal,
question
or comment must be
family
lant
deceased’s
referred
harmful to the defendant
such a
“niggas,” when neither
these facts are in
suggest
impermissi-
character so
toas
To
the record
inferable
the record.
bility of withdrawing
impression
pro-
me,
during
statement
final
prosecutor’s
duced”) (internal
omitted).
quotation
Be-
closing argument—the very last words the
Majority
this disposition,
cause
reaches
retiring
heard before
to deliberate—
reasons,
albeit
different
I respectfully
significance
such
resulted
concur.
Appellant’s right
to a fair
the denial
thus,
trial,
deprived Appellant
of due
SUDDERTH,
BONNIE
Justice
Greer,
process. See
at
dissenting
Burwell,
3109;
163;
at
see
S.Ct.
F.2d
*13
Auth.,
v.
also Coleman Ohio Adult Parole
Of all of
in
the words modern American
949,
(6th
2004)
118
951-52
Fed.Appx.
Cir.
English usage, including
slang
and the
(holding prosecutor’s
closing
reference in
vulgar, the
is of
infamy
“n-word”
such
that
argument
to
prior
defendant’s
conviction it is generally referenced and understood
of
constituted
introduction
evidence so only
its
by
first letter.
very
And with
few
to
extremely unfair as
violate fundamental
exceptions,
racially-charged
such
inflam-
justice
of
conceptions
depriva-
a
and thus
matory language
no place
jury
has
in
argu-
tion of
right to
process);
defendant’s
due
ment.
State,
185,
see also Elizondo v.
487 S.W.3d
This
certainly
is
a prose-
case when
(Tex.
2016) (“It
App.
209
Crim.
is relevant
cutor, using that
language to secure a
to
analysis
the harm
that
provocation
conviction, goes
outside
the record to
instruction undermined Elizondo’s sole de-
Therefore,
introduce it.
I agree with
fense.”).
Accordingly, we must reverse and
majority that
prosecutor’s
behavior
for
Berger,
remand
a new trial.4
295
See
89,
(“[Sjuch
improper.
was
It
It
at
55
was inexcusable.
can-
U.S.
S.Ct. at 663
miscon-
not be
pronounced
judge
persistent,
duct
condoned. And
trial
probable
a
upon
permitting
cumulative effect
committed error in
it. Never-
theless,
which cannot
disregarded
be
as inconse-
because we are
by
constrained
State,
Although
general
350,
(Tex.
timely
Rogers
rule is that a
v.
725 S.W.2d
358
specific objection,
request
a
1987,
for an in-
("/B]e-
App.-Houston
pet.)
[1st Dist.]
disregard
improperly
struction to
the matter
vitiated,
cause
fundamental fairness
placed
jury,
request
before
and a
for a
present
exception
general
case is an
required
preserve
complaint
mistrial are
to
a
improper questions
arguments
rule that
misconduct,
prosecutorial
“prosecu-
when
prosecutor
cannot constitute reversible
torial misconduct
undermines
the relia-
properly pre-
error unless the error
is
bility
factfinding process
of the
...
in
result[s]
served.”).
deprivation of fundamental fairness and due
prosecutorial
Because of the
law,
misconduct
process of
the defendant is
to a
entitled
occurred,
resulting deprivation
and the
though
objections
new trial
few
even
have
Appellant's rights
process
to
State,
due
and a
perfected.”
fair
Penry
been
See
v.
903
trial,
715,
(Tex.
1995)
I would hold that
S.W.2d
764
failure to
App.
Crim.
rule);
State,
request
general
a mistrial does not
(recognizing
constitute a waiver
Johnson v.
552,
(Tex.
right
prosecutorial
432
of his
raise the
App.-Texarkana
S.W.3d
561
to
issue of
2014,
ref'd) (same);
pet.
appeal.
Berger,
misconduct
See
v.
298
295 U.S. at
Jimenez
203,
(Tex.
89,
663; Jimenez,
App.-San
S.W.3d
214
Antonio
55
S.Ct.
751 referred, request appeals comment he did of the court of criminal precedent specific comprehensive more or type of this er- preservation requiring in gave general the trial court ror, compelled I to dissent. am disregard, request did not struction point jurisprudence in the At one prosecutor a mistrial continued before complaints about appeals, court of criminal argument. her Freeman v. See 340 not have did incurable 717, 2011), S.W.3d upon during pre trial to raised and ruled denied, cert. 565 132 S.Ct. U.S. appeal. for See serve error Willis (2012). 181 Because the error L.Ed.2d 986 385 by the court here has not been identified 1989), denied, U.S. S.Ct. cert. criminal appeals either absolute (1990), 279, 112 overruled L.Ed.2d waivable-only given that the State, 933 Cockrell v. gave milquetoast—instruction an—albeit 1996), response to Appellant’s L.Ed.2d 117 S.Ct. same, request complain order however, (1997). In the court crim upon error on appeal, was incumbent idea and held appeals inal revisited the matter further at pursue ” “ not to be ‘right’ sub that a defendant’s require the trial court level. The rules argu to incurable erroneous jected pursue complaint to an a failure to ment one is forfeited ruling2 preserve adverse order Cockrell, at 89.1 upon it. insist error for our Clark review. See *14 Therefore, objection to pursuing absent 333, (Tex. Crim. App. 365 340 S.W.3d ruling, appellant forfeits the an adverse 368, 2012); State, Mays v. 393- 318 S.W.3d egre- complaint even (Tex. denied, 2010), App. 94 Crim. cert. 562 disregard could gious and an instruction 1274, 1606, 506 L.Ed.2d U.S. 131 S.Ct. State, v. the harm. Mathis have cured not, (2011). I Because did must (Tex. App. Crim. 926-27 67 S.W.3d dissent, my agree despite wholehearted State, 2002); Threadgill see v. 146 S.W.3d prosecu majority ment (Tex. 2004); App. see 666-67 Crim. beyond went conduct this case well tor’s State, 546, 548 also Cruz S.W.3d advocacy. acceptable the bounds of (Tex. 2007); App. Young v. Crim. 2004). (Tex. App. Crim. 137 S.W.3d court reflects that the trial
The record implicitly Ap- or expressly ruled
never objection. inflammatory-language
pellant’s 33.1(a)(2). And al- App. Tex. R. P. Cf.
though Appellant requested an Counsel,” he disregard “the comment to which not direct the trial
did
does not
appeals rec
A deficient instruction to
1. In
the court of criminal
ruling
party
equate to an adverse
because
improp
ognized
it had overruled Willis’s
disregard was
who
the instruction
thinks
preserva
exception
er-jury-argument
mistrial
must move for a
not sufficient
requirement more
decade before.
tion
than a
preserve
error is
complaint unless the
See Estrada v.
waivable-only. See
Unkart
either absolute
2010),
(2011).
1142, 131 S.Ct.