Page 37 - TPA Journal July August 2023

required by law.” As in the above cases, judicial estoppel is impli-
cated here. Regardless of whether Appellant invit-
The majority’s rationale is problematic on two ed the error, his present claim is “inconsistent”
points. First, its conclusion that defense counsel with his “prior conduct.” Appellant “at the very
was actually requesting “an instruction specifying least” had “some responsibility for the jury
that there must be evidence corroborating instruction,” more than “just simply not objecting
Hogarth’s testimony if the jury had a reasonable to the charge or just stating ‘no objection’ to the
doubt as to whether or not Hogarth was an accom- charge.” Instead, by taking issue with the reason-
plice” is not supported by the record. When able doubt instruction that he specifically request-
Appellant first objected and requested a reason- ed, Appellant is presently asserting an inconsistent
able-doubt instruction, the trial court responded position and would derive an unfair advantage if
that a reasonable-doubt instruction was in the jury not estopped. More plainly, Appellant is taking
charge: “[I]t says in there they have to find that he advantage of his own wrong. Appellant accepted
is an accomplice beyond a reasonable doubt.” the reasonable doubt instruction. He did not
However, counsel expressed that he did not think remain silent on the issue, fail to object, state he
such an instruction was in the charge: “But I don’t had no objections to the charge, or withdraw his
think there’s been an instruction that they need to objection. Instead, he affirmatively communicated
believe—when they consider accomplice, they to the court that he was “good” with the instruc-
have to agree beyond a reasonable doubt that he is tion, thereby accepting the reasonable-doubt
an accomplice. I don’t think that’s in here.” Once instruction in the court’s jury charge. Appellant is
more, the trial judge indicated that he “thought it therefore estopped from bringing this jury instruc-
was.” The instruction was then read verbatim by tion complaint on appeal because by his objection,
the State, and defense counsel said, “I’m good.” request for a reasonable-doubt instruction, and
The State then informed the trial judge which page affirmative assent to the instruction, Appellant “at
the instruction was on, and the judge said, “Yeah. the very least” had “some responsibility” for the
Okay. I thought it was in there.” While defense error of which he now complains.
counsel’s initial statement did refer to the lan-
guage “if you have a reasonable doubt or not,” The record reflects Appellant specifically asked
counsel later clarified that he wanted an instruc- the trial court to ensure that the jury be instructed
tion “that they need to believe—when they con- they had to agree “beyond a reasonable doubt”
sider accomplice, they have to agree beyond a rea- that Hogarth was an accomplice. We hold that
sonable doubt that he is an accomplice.” When he Appellant, once he stated “I’m good” with the
learned that this language was already in the instruction, is estopped from thereafter claiming
charge, he stated, “I’m good.” The appellate that the instruction was improper. We reverse the
court’s conclusion that defense counsel was actu- judgment of the court of appeals and remand the
ally requesting a different charge is unpersuasive. case to that court to address Appellant’s remaining
Second, the appellate court erred when it insinuat- points of error. We need not address the State’s
ed that invited error is the sole form of estoppel. remaining issues.
To the contrary, while Appellant might not have
invited error since the instruction was already in Ruffins v. State, Tex. Ct. Crim. App., No. PD-
the charge, invited error is only one form of estop- 0862-20, March 29, 2023.
pel. Under the more general principle of estoppel,
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“a party may be estopped from asserting a claim
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that is inconsistent with that party’s prior con-
duct.”

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