CCA Applies Estoppel Theory to Defendant Whose Counsel Helped Draft the Defective Jury Charge

Below are of few of the recently reported slip opinions from the Texas Court of Criminal Appeals that were designated for publication.

Defective Jury Charge on LIO
Woodard v. State - The defendant was indicted for murder but somehow convicted of an unindicted offense of conspiracy to commit aggravated robbery.  On appeal, he claimed that the trial court erred by instructing the jury on the conspiracy offense because, under the Almanza  factors, conspiracy to commit aggravated robbery is not a lesser included offense of murder.  The CCA concluded that if appellant had simply failed to object to the jury charge, he would be entitled to reversal under Almanza, but because the appellant actually helped draft the objectionable jury charge, the CCA applied an estoppel theory.

Our [past cases have] recognized that, if “the record showed that the appellant requested the charge on the [unindicted] lesser offense . . ., he would be estopped from complaining of its inclusion in the charge.” We believe that the record in this case fairly reflects that, at the very least, appellant had some responsibility for the jury instruction on the unindicted conspiracy to commit aggravated robbery offense.  The record reflects that appellant helped prepare the charge, including the instruction related to the unindicted charge of conspiracy to commit aggravated robbery, to which the State unsuccessfully objected.  This is a great deal more than just simply not objecting to the charge or just stating “no objection” to the charge.  Under these circumstances, we decide that appellant may not be heard to complain for the first time on appeal that the trial court erred to instruct the jury on the unindicted conspiracy to commit aggravated robbery offense.

In her concurrence, Presiding Judge Keller would take this case one step further and and adopt the doctrine of beneficial acquiescense, "by which a defendant who fails to object to an instruction on a LIO would be estopped from complaining on appeal." (Emphasis added).

Simply to note how curious she finds this case, Judge Cochran also concurred.



Capital Murder (Accomplice Liability)
Padilla v. State - CCA affirms appellant's conviction for capital murder as legally/factually sufficient under an accomplice theory of liability.

Can an Accomplice be Prosecuted for "Aiding & Abetting" if the Principal is Acquitted?

YES. In Texas, "collateral estoppel" does not bar an accomplice's trial. Simply put, "collateral estoppel" means that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated by the same parties in any future lawsuit arising from the same event or condition. In the criminal arena, collateral estoppel is embodied within the double-jeopardy clause of the 5th Amendment and only concerns the relitigation of specific factual determinations between the same parties.

When multiple actors (a principal and his accomplices) are tried in separate trials for the same offense(s), double jeopardy and collateral estoppel are not implicated. This is primarily because the parties to each case are different. While it seems illogical that the law allows an accomplice to stand trial after a jury has acquitted the principal actor, it can (and does) happen. I mean, how can someone be prosecuted for aiding and abetting a person who is found "not guilty" of the ultimate crime? A silly question is seems. Here's what the 8th District Court of Appeals (El Paso) recently put together on the subject:

Does Collateral Estoppel Bar Accomplice's Trial?

Standefer v. United States, 447 U.S. 10, 100 S.Ct. 1999, 64 L.Ed.2d 689 (1980), is the controlling case on whether an accomplice may be tried for the same offense after the principal was acquitted. In that case, Standefer was accused of aiding and abetting a revenue official in accepting compensation beyond that authorized by law. Id. at 11-12. After the revenue official was acquitted of accepting unlawful payments, Standefer moved to dismiss the charges, arguing, on principles of collateral estoppel, that because the principal was acquitted, he could not be convicted of aiding and abetting that principal. Id. at 13. In rejecting this argument, the Supreme Court traced the origins of aiding and abetting, and found that there was "a clear intent to permit the conviction of accessories to federal criminal offenses despite the prior acquittal of the actual perpetrator of the offense." Id. at 19. The Court further noted that collateral estoppel would not bar the accomplice's trial because through lenity, compromise, or mistake the jury might have reached an irrational result in the prior trial, which was not subject to review at the government's instigation. Id. at 21-23. Although "symmetry of results may be intellectually satisfying, it is not required;" thus, the acquittal of a principal does not bar the conviction of an accomplice. Id. at 25.

The Court of Criminal Appeals likewise rejected a similar complaint in Ex parte Thompson, 179 S.W.3d 549 (Tex. Crim. App. 2005). There, Thompson contended that he was factually innocent of capital murder when a different jury found the principal guilty of only felony murder. Id. at 551-52. In rejecting the argument, the Court noted that it "is well-established that one accomplice may be found guilty of a different, more serious offense than other accomplices," and that the acquittal of the principal does not prevent conviction of his accomplice, regardless of whether the acquittal of the principal occurs before or after the accomplice's trial. Id. at 553-54.

See full text of State v. Cotto, (29 Jan 2010) HERE.