1. "Is the 'right' not to be subjected to improper jury argument forfeitable?"
2. "Is there a word so inflammatory that its mere mention in closing arguments incurably taints the entire trial?"
Hernandez was convicted of murdering Devin Toler, a black man who was sleeping with his wife. The evidence showed that Hernandez used "racial slurs" and "cuss words" towards Toler that led to the struggle in which Toler was fatally stabbed. Self-defense and provocation were hotly contested issues. Defense counsel closed his argument by saying it was Toler's actions, not Hernandez's, that led to Toler's death. In rebuttal, the State argued that Hernandez provoked the confrontation by calling Toler and his family "niggas." After some discussion, the trial court sustained defense counsel's objection to facts not in evidence and instructed the jury to disregard the comment. No further relief was requested.
On appeal, Hernandez argued that preservation is unnecessary when the improper argument could not be cured. The court of appeals agreed. It held that it makes no sense to require preservation when the injury alleged is "fundamental." It concluded that the trial court's instruction to disregard was ambiguous and perfunctory and so was ineffective given "the context of the political atmosphere at the time of trial," which included publicized officer-involved shootings and the Black Lives Matter movement.
The State makes three arguments. First, the court of appeals knowingly disregarded binding precedent on the preservation of improper jury argument. Second, to whatever extent the court of appeals relied on the fundamental error doctrine, it is a disfavored model that conflicts with Marin v. State, 851 S.W.2d 275 (Tex. Crim. App. 1993), and is currently under reconsideration in the Court of Criminal Appeals. Third, the idea that a single offensive word can irrevocably taint a jury ignores both the subject matter juries are often called upon to consider and the presumption they are responsive to instructions to disregard.