RUFFINS, ANTHONY v. the State of Texas

In the Court of Criminal
Appeals of Texas
══════════
No. PD-0862-20
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ANTHONY RUFFINS,
Appellant

v.

THE STATE OF TEXAS

═══════════════════════════════════════
On State’s Petition for Discretionary Review
From the Third Court of Appeals
Comal County
═══════════════════════════════════════
YEARY, J., filed concurring opinion.

The Court’s rationale in this case is flawed because it applies the
principle of estoppel to prevent Appellant’s complaint that the
accomplice witness instruction given by the trial court improperly
RUFFINS – 2

apportioned the burden of proof on that issue, where Appellant did not
request the faulty instruction in the first instance. At most he failed to
properly object to the erroneous instruction, and that is an insufficient
basis to justify estoppel. But I conclude that the Court still correctly
affirms the trial court’s judgment because the evidence demonstrates
that Appellant was not entitled to an accomplice witness instruction at
all.
I. BACKGROUND
Appellant was convicted by a jury of aggravated robbery. His
punishment was enhanced by proof of four prior felony convictions. The
trial court assessed his sentence at life imprisonment. Appellant’s
conviction rested in part on testimony from two witnesses: one, whom
both parties agree was an accomplice as a matter of law; and another,
whom Appellant contended was also an accomplice, but for whom the
trial court submitted an instruction permitting the jury to decide
whether he was, in fact, an accomplice—what is known as an
“accomplice-in-fact” jury instruction.
On appeal, Appellant argued, among other things, that the
accomplice-in-fact jury instruction was defective. He complained that,
before the instruction required the witness’s testimony to be
corroborated, it required the jury to determine that he was an
accomplice beyond a reasonable doubt. Although Appellant effectively
withdrew his trial level objection to the jury instruction on this basis, 1

1The court of appeals observed that, after “the State finished reading
that part of the charge, Ruffins stated that he was ‘good’ and did not provide
further argument on the issue.” Ruffins v. State, 613 S.W.3d 192, 198 (Tex.
App.—Austin 2020). The Court also concluded that, “by informing the trial
RUFFINS – 3

the court of appeals nevertheless agreed with Appellant that the
instruction was flawed, and that it caused him “egregious harm” under
Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on
reh’g). Ruffins v. State, 613 S.W.3d 192, 204 (Tex. App.—Austin 2020).
The court of appeals therefore reversed Appellant’s conviction, over the
dissent of one of the justices on the panel. Id. at 204–17 (Goodwin, J.,
dissenting).
The Court granted the State’s petition for discretionary review to
address four grounds for review. The State alternatively argues in those
grounds that: (1) the court of appeals erred to conclude that Appellant
suffered egregious harm; (2) Appellant invited the instruction and
therefore should not have been heard to complain about it on appeal; (3)
the instruction was harmless because there is no evidence in the record
to show that the witness was an accomplice in any event; and (4) the
instruction was not erroneous to begin with. The Court now resolves the
case based on the State’s second argument—estoppel by invited error—
and improvidently grants the remaining grounds for review. But I
disagree that Appellant is estopped from complaining about the
accomplice witness instruction on appeal, and for that reason I cannot
join the Court’s opinion.
Instead, I would sustain the State’s third ground for review. I
would reverse the judgment of the court of appeals, and remand for
disposition of Appellant’s remaining points of error. For that reason, I
concur in the Court’s judgment.

court that he was ‘good’ and by failing to further object to that portion of the
jury charge, Ruffins effectively withdrew his objection to that part of the
charge.” Id.
RUFFINS – 4

II. INVITED ERROR/ESTOPPEL
As I understand the doctrine of estoppel by invited error, a party
has to request the trial court to take some specific action, have the trial
court accede to that request, and then complain on direct appeal that
the trial court took that specifically requested action. See Prystash v.
State, 3 S.W.3d 522, 531 (Tex. Crim. App. 1999) (“Just as the law of
entrapment estops the State from making an offense of conduct that it
induced, the law of invited error estops a party from making an
appellate error of an action it induced.”). It does not appear to me that
this is what happened in Appellant’s case at all.
The Court’s opinion sets out the jury instruction colloquy, and I
repeat it here in a footnote. 2 Suffice it to say that I do not believe it

2 The following exchange occurred in the trial court:

[DEFENSE COUNSEL]: You know what, I just thought of
something. I’m sorry, Judge. I still think that, with a question of
fact, that the instruction “therefore, if you believe”—the
application instruction, “therefore, if you believe from the
evidence beyond a reasonable doubt that an offense was
committed and you further believe from the evidence that the
witness”—in this case it would be David Hogarth—“was an
accomplice or you have a reasonable doubt whether he was or
was not as the term is defined in the foregoing instructions, then
you cannot convict the Defendant upon the testimony of—unless
you further believe that there is other evidence in the case
outside of testimony of David Hogarth tending to connect the
Defendant with the offense charged in the indictment.” And
then, “From the all the evidence, you must believe beyond a
reasonable doubt that the Defendant is guilty”—

. . . (bailiff reports presence of all twelve jurors returning from
break)
RUFFINS – 5

reflects that Appellant induced the trial court to commit the specific
error he later claimed on direct appeal. His counsel certainly did not ask
for the instruction that was given. It was already there!

[DEFENSE COUNSEL]: —because there is nothing in the
charge that gives them an instruction with respect to how they
determine someone is an accomplice, and it has to be done with
“if you have a reasonable doubt or not,” in that respect.

....

COURT: And it says in there they have to find that he is an
accomplice beyond a reasonable doubt.

....

[DEFENSE COUNSEL]: But I don’t think there’s been an
instruction that they need to believe—when they consider
accomplice, they have to agree beyond a reasonable doubt that
he is an accomplice. I don’t think that’s in here.

COURT: I thought it was.

[DEFENSE COUNSEL]: Unless I’m wrong. I mean, I—let me
see here. I don’t—I don’t see it.

[STATE]: “If you find beyond a reasonable doubt that David
Hogarth is an accomplice to the crime of aggravated robbery, you
must consider whether there is evidence corroborating the
testimony of David Hogarth. The Defendant, Anthony Ruffins,
cannot be convicted on the testimony of David Hogarth, unless
that testimony is corroborated.”

[DEFENSE COUNSEL]: I’m good.

COURT: Okay.

Majority Opinion at 6−8.
RUFFINS – 6

Moreover, when counsel initially expressed his concern to the
trial court, he was clearly trying to alert the trial court that the
instructions failed to explain that, if the jury had a reasonable doubt
about whether the witness was an accomplice, it should resolve that
doubt in favor of Appellant. 3 It is true that Appellant’s counsel then said,
“I don’t think there’s been an instruction that they need to believe—
when they consider accomplice, they have to agree beyond a reasonable
doubt that he is an accomplice.” But at that point, both the trial court
and the State corrected him, and they assured him that the charge did,
in fact, require a beyond-a-reasonable-doubt finding about the witness’s
status as an accomplice. It is also true that counsel thereafter expressed
apparent satisfaction, saying “I’m good.” But I agree with the court of
appeals that this constituted, at most, only a procedural default of his
complaint that the burden was misallocated, so as to require application

3 The italicized part of the following short excerpt illustrates my point
about what counsel was actually asking for when he supposedly invited the
court to include the arguably erroneous instruction:

[DEFENSE COUNSEL]: “therefore, if you believe from the
evidence beyond a reasonable doubt that an offense was
committed and you further believe from the evidence that the
witness . . . was an accomplice or you have a reasonable doubt
whether he was or was not as the term is defined in the foregoing
instructions, then you cannot convict the Defendant upon the
testimony of—unless you further believe that there is other
evidence . . . tending to connect the Defendant with the offense
charged in the indictment.” And then, “From the all the
evidence, you must believe beyond a reasonable doubt that the
Defendant is guilty”—

Majority Opinion at 6−7 (emphasis added).
RUFFINS – 7

of Almanza’s “egregious harm” standard, assuming that the instruction
was erroneous.
As I understand the exchange, Appellant’s counsel allowed
himself to be misled into believing that the reasonable-doubt instruction
already included in the charge properly allocated the burden in just the
way he had already mentioned and would later complain about on
appeal. But he did not invite the trial court to include the instruction
that the trial court gave. And for that reason, I do not believe the court
of appeals erred by declining to invoke the doctrine of estoppel by invited
error on these facts.
The Court also disclaims any reliance on “invited error,” per se, as
the operative theory of estoppel in this case, invoking instead what it
calls “judicial estoppel.” Majority Opinion at 12. Put aside that it is not
even what the State itself has argued in its second ground of review in
this Court—the State complained of estoppel by invited error. The Court
concludes that Appellant is estopped because “at the very least” he had
“some responsibility” for the error he now complains about. Id. at 13
(citing Woodard v. State, 322 S.W.3d 648, 659 (Tex. Crim. App. 2010)).
Whatever its provenance, 4 too liberal an application of this amorphous

4 Woodard cites Trejo v. State, 280 S.W.3d 258, 260 (Tex. Crim. App.
2009), which in turn cites Tucker v. State, 771 S.W.2d 523, 534 (Tex. Crim.
App. 1988). Woodard, 322 S.W.3d at 659. Tucker is a quintessential invited-
error/estoppel case. See Tucker, 771 S.W.2d at 534 (“It is well established that
when a defendant requests a charge, and the court submits it, he can not
complain of that charge on appeal.”). Both the Trejo Court and the Court today
also cite State v. Yount, 853 S.W.2d 6, 9 (Tex. Crim. App. 1993). 280 S.W.3d at
260; Majority Opinion at 11. In Yount, as well, the appellee had specifically
requested that the trial court submit the jury charge he thereafter complained
about on appeal. See 853 S.W.2d at 9 (“Since appellee requested that the jury
be instructed on the lesser included offense, he is now estopped from
RUFFINS – 8

“at least . . . some responsibility” notion of estoppel can only serve to
undermine Almanza’s construction of Article 36.19, which requires
appellate review of erroneous jury instructions even when the alleged
error has been procedurally defaulted—albeit under the more rigorous
“egregious harm” standard.
To simply declare that an appellant is “estopped” from claiming
jury charge error because, by rescinding his previous objection, he bears
“at the very least . . . some responsibility” for that error, is to judicially
incapacitate that aspect of the statute that guarantees that a defendant
has had “a fair and impartial trial,” as construed by Almanza. See 686
S.W.2d at 171 (“[I]f no proper objection was made at trial and the
accused must claim that the error was ‘fundamental,’ he will obtain a
reversal only if the error is so egregious and created such harm that he
‘has not had a fair and impartial trial’—in short, ‘egregious harm.’”). I
am not prepared, at this time, to do that.
I would not sustain the State’s second ground for review.
However, I would reach the same bottom line that the Court does today
based on my own evaluation of the State’s third ground. I would
conclude that the evidence failed to raise an issue whether the witness
was, in fact, an accomplice, rendering any deficiencies in the accomplice
witness instruction “inapposite.”
III. THE ACCOMPLICE WITNESS INSTRUCTION
A. The Law of Accomplice Witnesses
Article 38.14 of the Texas Code of Criminal Procedure provides:

complaining that his conviction of that offense is barred by limitations.”). All
these cases seem to apply an “invited error” theory of estoppel, not some
amorphous “judicial estoppel” principle, as the Court suggests today.
RUFFINS – 9

A conviction cannot be had upon the testimony of an
accomplice unless corroborated by other evidence tending
to connect the defendant with the offense committed; and
the corroboration is not sufficient if it merely shows the
commission of the offense.

TEX. CODE CRIM. PROC. art. 38.14. The Court has said that an accomplice
is one who “participates with a defendant before, during, or after the
commission of a crime and acts with the requisite culpable mental
state.” Paredes v. State, 129 S.W.3d 530, 536 (Tex. Crim. App. 2004). “A
witness is not deemed an accomplice [merely] because he knew of the
crime and failed to disclose it or even concealed it.” Smith v. State, 721
S.W.2d 844, 851 (Tex. Crim. App. 1986). There must, instead, be some
evidence of an affirmative act on the part of the witness to assist in the
commission of the charged offense. Druery v. State, 225 S.W.3d 491, 499
(Tex. Crim. App. 2007).
Even a witness who may have participated with the principal
actors in planning for or committing only a different offense—different
than the one on trial—likewise does not, by that act alone, make himself
an accomplice to the offense on trial. See Gamez v. State, 737 S.W.2d
315, 322 (Tex. Crim. App. 1987) (“If a State’s witness has no complicity
in the offense for which an accused is on trial, his . . . testimony is not
that of an accomplice witness whatever may have been his complicity
with the accused in the commission of other offenses.”). Similarly, acting
only as an accessory after the fact—in essence, playing no part in the
offense, but helping to cover it up once it has been committed and
completed—does not alone suffice to make a witness an accomplice, at
RUFFINS – 10

least not to the offense that is covered up. Easter v. State, 536 S.W.2d
223, 229 (Tex. Crim. App. 1976).
Any witness who has definitively been shown to have participated
in the same offense (or a lesser included offense) for which the accused
is on trial—for example, any witness who has also been indicted for, or
even already been convicted of, the same offense—is regarded as an
accomplice as a matter of law. Cassanova v. State, 383 S.W.3d 530, 533
(Tex. Crim. App. 2012). Under those circumstances, the trial court is
required to instruct the jury that, before it may consider the testimony
of such a witness, it must determine that the witness’s testimony is
corroborated by “other evidence tending to connect the defendant” to the
alleged offense. Id. But sometimes the evidence is less definitive about
whether a witness participated in the offense for which the accused is
on trial; the evidence may even conflict in that regard.
In the event that the evidence is less definitive of the witness’s
participation in the offense, the jury must be instructed first to
determine whether that witness was in fact an accomplice. Only if the
jury finds him to be an accomplice must it then require his testimony to
be corroborated. Paredes, 129 S.W.3d at 536. Whether an accomplice-as-
a-matter-of-fact instruction must be submitted is to be determined on a
case-by-case basis. Cocke v. State, 201 S.W.3d 744, 748 (Tex. Crim. App.
2006). Even when an error with regard to an accomplice-as-a-matter-of-
fact instruction has occurred, this Court has applied the harm rubric
established in Almanza to determine whether the error should result in
reversal. Medina v. State, 7 S.W.3d 633, 642 (Tex. Crim. App. 1999). And
the Court has decided that flaws in an accomplice-as-a-matter-of-fact
RUFFINS – 11

instruction are rendered “inapposite” when an instruction is given in the
absence of evidence that would justify a finding that the witness was, in
fact, an accomplice. See Druery, 225 S.W.3d at 500 (“Druery’s arguments
concerning accomplice witness instructions given to or not given to the
jury and concerning the application of the accomplice witness rule to the
underlying predicate felony offense are inapposite.”).
B. The Facts
Appellant was charged with committing aggravated robbery, in
May of 2016, at a tattoo shop in New Braunfels called Timeless Ink. Four
codefendants were also charged: Augustus (“Gus”) Trevino, Olanda
Taylor (also known as “Tazz,” Appellant’s cousin), Robert Ruffins (also
known as “Robbie,” Appellant’s brother), and Kenneth McMichael (also
known as “Redd”). Trevino testified at Appellant’s trial, and by that
time, he had already been convicted of aggravated robbery for the same
offense. The jury was therefore correctly instructed that it could not rely
upon his testimony absent corroboration. Appellant claimed, however,
that a second witness, who was never indicted for the offense, was also
shown at trial to have been an accomplice as a matter of law: David
Hogarth.
Surveillance footage from security cameras in the tattoo shop
showed that four men entered the shop late at night, wearing masks,
head coverings and gloves, and carrying handguns. At that time there
were two employees and one customer inside the tattoo shop. Based on
the video footage and the testimony of Sarah Zamora—one of the
employees of the tattoo shop—the men entered the upstairs area of the
tattoo shop and brutally assaulted the other employee and customer who
RUFFINS – 12

were present. Zamora was kicked in the face, and then directed at
gunpoint to retrieve the cash register and safe kept in the shop. The
robbers then stole the victims’ wallets and cell phones and left. None of
the victims were able to identify any of the robbers.
At trial, Trevino, testifying as an accomplice witness, explained
that he had already been convicted for his part in the tattoo shop robbery
and that he was testifying pursuant to an agreement with the State. His
cousin was the owner of the tattoo shop. 5 The plan to rob the tattoo shop
formed because the robbers, each of whom he identified, were “in need
of money basically at the time.” 6
A few days prior to the robbery, Trevino and Taylor traveled from
San Antonio to New Braunfels to drive by the tattoo shop on a scouting
mission. Trevino testified that Hogarth “just happened to be in the car”
at that time. Hogarth did not take part in the planning, according to
Trevino, but instead only overheard the conversation between Trevino
and Taylor. Nor was Hogarth present for the actual robbery, although
he was present when the robbers left to go commit it. Trevino also
testified that, prior to the tattoo shop robbery, Hogarth had suggested

5 Because Timeless Ink belonged to Trevino’s cousin, Trevino did not go
into the tattoo shop during the robbery but acted as lookout and getaway
driver.

6 Trevino described Hogarth’s role in this way:

Q. And how did David factor into all of this? Was he
part of this planning as well?

A. No, he wasn’t really in the plan. He was more like
a -- just a hang-around type of guy.
RUFFINS – 13

that they commit a different robbery or burglary, but that suggested
crime ultimately “didn’t happen” for undisclosed reasons. 7
Trevino acknowledged on cross-examination that, after the
robbery, he contacted Hogarth to discourage him from cooperating with
police and encourage him to “get a lawyer.” Trevino agreed with defense
counsel that, because Hogarth had been in the car when they scouted
the tattoo shop, he also “had some exposure” in the case and could be
guilty as a party to the robbery. 8 On re-direct, Trevino insisted that

7 Trevino testified about this inchoate offense on direct examination:
“Well, before [the tattoo shop robbery], we had went to -- David [Hogarth] had
told us about somebody that he knew they were getting Klimax from. And we
went over there and tried to get into his place, and that didn’t happen.”

8 Trevino’s testimony proceeded as follows:

Q. So you told David he needs to hire a lawyer, didn’t
you?
A. To get him a lawyer, yeah.
Q. Because you knew that David had some exposure
in this case; isn’t that right?
A. Yeah.
Q. Because he had gone with you to scope out that
place; isn’t that right?
A. He was with me in the car --
Q. He was with you in the car when you scoped out
the place, right?
A. When we drove by.
Q. Yes, right? So you know about the law of parties,
right?
A. Yes.
RUFFINS – 14

Hogarth never directed, solicited, encouraged, aided, or attempted to aid
anyone in the commission of the tattoo shop robbery. He explained that
he had suggested Hogarth retain a lawyer because he knew Hogarth had
knowledge of the robbery and hoped a lawyer would deflect the police
investigation. Trevino did not expect Hogarth to be arrested for the
robbery.
Two detectives with the New Braunfels Police Department
testified about their investigation of the robbery. Richard Groff was the

Q. Somebody drives someone to a bank and that
person goes and does the bank robbery, another person, the
driver is just as guilty as the --
A. Yeah, yeah.
Q. So David Hogarth, under the law of parties, is just
as guilty as all of you; isn’t that right?
A. Yeah.
[PROSECUTOR]: Judge, I would object. What he’s
testified to is that David Hogarth was merely present, and that
specifically does not make him a party under the law of parties.
(Bench conference.)
THE COURT: Calling for a legal conclusion from the
witness.
[DEFENSE COUNSEL]: But I asked him if he knew
what law of parties was, and he said “Yes.”
THE COURT: Yeah. Well --
[DEFENSE COUNSEL]: And they didn’t object.
THE COURT: Yeah, I know. I think you’re just going to
have to clean it up on redirect, because I think you’re – you’re
confusing the two -- the two incidents, the driveby and then the
actual robbery. And you’re starting to blur. So I am going to
overrule the objection.
RUFFINS – 15

on-call detective when the robbery occurred and testified about the
initial stages of the investigation. When he discovered that two of the
victims’ cell phones had been taken, Groff used the “Find My iPhone”
function to locate Zamora’s cell phone in an apartment complex in San
Antonio. The woman who had the phones in her possession told Groff
that Taylor had given them to her. The police found a safe that was
“consistent with” the one stolen during the robbery in a dumpster at the
apartment complex. Taylor was arrested for a separate offense, and he
provided additional information that assisted in the investigation of the
tattoo shop robbery.
Detective John Mahoney testified extensively about the entire
investigative process, describing how he determined who was involved
in the robbery. A review of surveillance footage from nearby businesses
showed a distinctive white Volvo driving in the direction of the tattoo
shop shortly before the robbery. Mahoney determined that Trevino
owned the Volvo. Mahoney also examined Taylor’s Facebook page, and
this led him to uncover additional suspects in the robbery—Appellant,
Robert Ruffins, and McMichael.
Appellant’s Facebook page revealed that his nickname is
“Poohbear.” Mahoney testified that, from the audio of the surveillance
footage, toward the end of the incident, he thought he could hear one of
the robbers say, “[l]et’s go, let’s go, Poohbear” or “[l]et’s go, Pooh.”
Appellant’s Facebook page also revealed photographs of Appellant,
Robert Ruffins, and Taylor, all three at various times wearing a white
hat that looked like one worn by one of the robbers. Appellant
commented on a Facebook photo of McMichael: “Boss of all boss, what’s
RUFFINS – 16

popping, little bro? I see you got my shooter with you.” This comment
was followed by emojis and symbols of guns. He also commented: “Oh,
yeah, for y’all fuckboy, if you ain’t fam you food.” This was followed by
more emojis and symbols of guns, knives, and money.
During the investigation, Mahoney discovered that Hogarth
likely had relevant information regarding the robbery. Initially,
Hogarth was deceptive and uncooperative with police. He said he would
provide Mahoney his cell phone, but ultimately did not, and Mahoney
eventually had to obtain a search warrant for it instead. Moreover,
somebody whom Mahoney believed to be Hogarth had reportedly told
Trevino’s wife, “Don’t say anything”—presumably to the police.
Mahoney believed Hogarth had been threatened by Appellant and was
afraid to tell the truth. Eventually Hogarth told Mahoney that he had
gone to the tattoo shop with Taylor and Trevino several days prior to the
robbery, but that he had not known when they left that it was a scouting
mission. 9 Mahoney ultimately concluded that Hogarth was not involved

9 On cross-examination, defense counsel tried, without success, to get
Mahoney to concede that Hogarth was a party to the robbery by virtue of this
scouting mission:

Q. . . . So at this time did you already know that
David Hogarth and Gus Trevino and Tazz went out to look at the
tattoo location? Had you already known that?

A. No.

Q. And was it David Hogarth that told you that?

A. Yes.

Q. And he minimized that, didn’t he?

A. What do you mean?
RUFFINS – 17

Q. He tried to tell you that he was not -- he didn’t
know anything about going to do a robbery or anything like that,
he just went for a ride.

A. He told us that he was asked -- at first he
described it as going for a ride, then he made it clear to us that
by the time they finished their ride and got back to San Antonio
he had been asked to participate in a robbery at that location.

Q. Sure. Are you familiar with the law of parties?

A. Yes. Well, not an expert, but yes.

Q. In a nutshell, from your experience, what does
that mean?
A. Someone who is a party to an offense by being the
getaway driver or the lookout or whatever can be charged with
the offense.

Q. Or helped plan?
A. I can’t testify to -- that I am familiar with the
exact wording of the law.

Q. Would it help you if you looked at it?

A. Sure.

[DEFENSE COUNSEL]: May I approach, Your Honor?

THE COURT: Yes.

Q. (By [Defense Counsel]): I am going to show you
part of the Penal Code, and it’s in the Texas Criminal Code
clause, subchapter A, complicity 7.01, parties to an offense, and
7.02, criminal responsibility for conduct of another. Have you
ever looked at that before?

A. Yes, I looked at this before.

Q. Okay. Could you refresh your memory on that?

A. Sure.
RUFFINS – 18

Q. Take all the time you need.

A. Is it okay if I keep this with me while you ask me
questions about it?

Q. I’m going to be needing it, so let me see if I can
find you another -- this is just in page form, but it’s identical to
what I just showed you.
A. All right. I think I’m ready to answer your
questions now.

Q. Okay. So I asked you, if someone plans a crime,
would they be a party?
A. I don’t see the word “planning” anywhere here in
this statute, and I don’t have any information that David
Hogarth planned a robbery.

Q. Okay. Look at 7.02, he promotes or assists in the
commission of the offense.

A. A or B?

Q. Under (A)(2), 7.02, criminal responsibility for
conduct of another.

A. Okay.

Q. Acting with the intent to promote or assist in the
commission of the offense, he solicits, encourages, directs, or
attempts to aid the other person to commit the offense.

A. Okay.

Q. So, hypothetically speaking, if somebody goes to a
location that some --

[PROSECUTOR]: Judge, I’m sorry. I am going to object to a
hypothetical. This witness is not an expert.

THE COURT: Sustained.

[DEFENSE COUNSEL]: Well, I think he testified he’s familiar
with the law of parties.
RUFFINS – 19

THE COURT: Well --

[PROSECUTOR]: So is the jury. Judge, the issue is this is not
an expert. If anything, he would offer a lay opinion. Ultimately,
it’s going to be a question for the jury, who has received the law
and will receive it again from the Court.

[DEFENSE COUNSEL]: I will accept his lay opinion. That’s
fine. But he is a peace officer. I mean --

[PROSECUTOR]: If the witness feels comfortable answering,
I’m fine. I just don’t want to put him in a position where he’s
being asked to give an expert legal opinion on something if he’s
not comfortable with it.

THE COURT: Well, it’s a lay opinion.

[DEFENSE COUNSEL]: Thank you, Judge.

THE COURT: All right. What’s the question?

Q. (By [Defense Counsel]): Would you agree with me
that – let’s just do it this way: If somebody drives someone to a
bank, even though they didn’t do the bank robbery, and they
know that the bank robbery is going to occur, would they be a
party to an offense?

A. Are you talking about the driver or the passenger?

Q. I am talking about the driver.

A. Someone drives to a bank --

Q. And somebody else, not the driver, but someone
else does the bank robbery. In other words, he’s taking the
person who actually did the robbery. Is the driver a party?

A. During the planning process or during the bank
robbery?

Q. During the bank robbery.

A. Sure, the driver could be a party to the offense.

Q. Okay. Let’s -- let’s add another fact situation to
that. Let’s assume that three people get together and they decide
RUFFINS – 20

that they’re going to rob a bank, right? So one of the planners
doesn’t go. The driver goes and the person who actually did the
robbery go. The driver, as you testified, is a party, right?

A. Yes.

Q. The planner also is a party; isn’t that correct?

A. I think, if I was investigating a case like that, I
would ask the question of -- about the discussions that happened
during the planning and whether the person said anything that
promoted the robbery.

Q. Well, if you’re planning the robbery, that’s
promoting the robbery. Wouldn’t you agree?

A. Sure. But I would want to know what they said
and what they did. I would need to be able to prove that.
Q. Sure. So if somebody is scouting out, doing a dry
run of a robbery, right, that’s doing an overt act to assist in that
robbery, wouldn’t you agree?

A. I am having trouble drawing a parallel between
what you’re describing and my -- what came of my investigation
in this case.

Q. I’m not -- I’m just giving you a hypothetical still.
If someone is doing a dry run of a robbery, they’re planning it
and they go out there and take a look, look at the location, how
far it is -- away it is, how long it’s going to, you know, take to get
there, what are the exits they are going to leave from, things of
that sort, if they are planning that robbery and they do that,
that’s an overt act, correct?
A. That would absolutely be something that I would
want to know about that I would want to investigate. I have
never arrested anyone for something like that.

Q. Understood. And so you received information from
David Hogarth that he, Tazz, and Gus went to the tattoo parlor,
right?
RUFFINS – 21

in, did not encourage anyone to participate in, and did not aid or attempt
to aid in, the commission of the tattoo shop robbery. 10
Hogarth himself testified that he did not participate in the
robbery of the tattoo shop, while also admitting that he did nothing to
prevent it from occurring. He further testified that he did not realize on

A. Yes.
10
Mahoney’s re-direct testimony began this way:

Q. Detective Mahoney, did you, during the course of
your investigation, ever come across any evidence from any
source that led you to believe that David Hogarth had solicited
anybody to participate in an aggravated robbery of Timeless
Ink?

A. No.

Q. Did you come across any evidence whatsoever that
David Hogarth ever encouraged anybody to participate in an
aggravated robbery of Timeless Ink?

A. No.

Q. How about whether or not David Hogarth ever
directed anybody to participate in a robbery of Timeless Ink?

A. No.
Q. Any evidence that he ever aided or attempted to
aid anyone in the commission of a crime?

A. No.

[DEFENSE COUNSEL]: Objection, Your Honor. That’s contrary
to the evidence in this case. It’s --

[PROSECUTOR]: Judge, he’s asked for his opinion multiple
times on this topic.

THE COURT: It’s for the jury to determine, [Defense counsel].
RUFFINS – 22

the way to New Braunfels that the purpose of the trip was to scout the
tattoo shop, and only learned about it when Trevino mentioned wanting
to do “a lick” at some point in the car. 11 He denied going into the tattoo

11 Hogarth’s testimony on cross-examination was as follows:

Q. And [the car trip to New Braunfels] essentially
was a scouting mission for Gus and Tazz and you to do this
robbery in New Braunfels, wasn’t it?
A. Yes, sir.
Q. And so you did something in furtherance of this
robbery, didn’t you? You scouted it out with those two guys,
didn’t you?
A. I don’t -- I --
Q. Answer the question. Didn’t you do that?
A. No, sir.
Q. You didn’t go with them to look at the tattoo parlor
and see where it was? You didn’t do that?
A. Well, yes, we went, but we didn’t go --
Q. Okay.
THE COURT: All right. Now, court reporter can only take you
one at a time. Ask the question, let the witness answer, then ask
another one. Don’t start talking over each other.
[DEFENSE COUNSEL]: Yes, sir.
Q. (By [Defense Counsel]:) Let’s be clear, because the
State asked you about this. It was you and Tazz and Gustavo
who went to New Braunfels to scout out the tattoo parlor; isn’t
that right?
A. Yes, sir, but he said we were going to go visit his
cousin.
Q. Sure. And that’s the cousin he was going to rob;
isn’t that right?
RUFFINS – 23

A. Yes, but I didn’t know we were going to rob them
‘til we got there to New Braunfels, he said it.
Q. And -- but that was one week before; isn’t that
right?
A. Yes, sir.
Q. And at that time you knew that there was -- they
were going to do a lick on that tattoo parlor; isn’t that right?
A. Yes, sir.
Q. And you didn’t do anything to prevent that from
happening, did you?
A. No, sir.
Q. You didn’t call the police, even though you knew
that you and they were going to do a robbery; isn’t that right?
A. Yes, sir.
Appellant’s counsel also questioned Detective Mahoney whether he
believed Hogarth had admitted being aware of the plan to rob the tattoo shop
at the outset of the scouting mission:
Q. Okay. So David Hogarth told you, during your
investigation, that he didn’t learn that they were going to do a
lick, until after they were leaving the tattoo parlor on that first
dry run?
A. Correct. He said that his impression was they
were just going for a ride, until after they had been to the tattoo
shop. And maybe sometime driving back is when Gus told them
the plan to do a robbery.

Q. If David Hogarth testified that he knew about
that robbery and he was doing the dry run with them ahead of
time, he didn’t tell you that, did he?

[PROSECUTOR]: Judge, I am going to object. That
mischaracterizes his testimony.
[DEFENSE COUNSEL]: The jury heard it. I asked him, “Did
you know that they were going to do the robbery?”
RUFFINS – 24

shop when they drove by to scope it out. Instead, he claimed he went to
a corner store to get a drink. He was present during later conversations
between Appellant, Taylor, Robert Ruffins, and Trevino when they made
their plans to commit the robbery, and he considered joining them. But
he insisted that, once he learned about the plan for the robbery of the
tattoo shop, he did not ultimately solicit or encourage anybody to
partake in, direct anybody to commit, or himself aid in the commission
of, the robbery in any way. He claimed to have avoided speaking to
detectives about the robbery because he feared for his life and his
family’s life, having been threatened by Appellant should he ever talk
about the robbery. He identified Appellant as being among the robbers
as depicted on the store surveillance video.
When Appellant was eventually interviewed about the robbery,
he denied having any involvement. However, Appellant made strange
comments during the interview, such as, “If you say I did it, I did it. If
you say it’s me, it’s me.” Appellant did not react when he was shown the

THE COURT: The jury can recall. I -- you know, it was a while
back.

[DEFENSE COUNSEL]: Let me rephrase it another way. Can I
rephrase?

THE COURT: Yes.
Q. (By [Defense Counsel]): If David -- if you were to
learn that David Hogarth said he knew that they were going to
plan the robbery ahead of time and that he went out there with
them to take a look, if that’s the scenario, would you consider
him to be a party?

A. I would need to do further investigation to label
him as a party to the offense.
RUFFINS – 25

surveillance footage of the robbery. Appellant claimed that he was with
his girlfriend on the night of the robbery, but he would not identify her
to police. Shante Benton, Appellant’s girlfriend, was the sole defense
witness. She testified that Appellant was with her when the robbery
occurred. She remembered that night specifically because her
daughter’s birthday was the next day, and they had planned her
birthday party and then gotten ready for bed and watched movies.
The trial court submitted an instruction to the jury requiring it to
determine whether Hogarth was in fact an accomplice, and also to
require corroboration for his testimony as well, should it find him to be
so. It also instructed the jury—twice, in fact—that, if it found Hogarth
also to be an accomplice, his testimony and Trevino’s could not be
considered as mutually corroborative. In submitting the accomplice-as-
a-matter-of-fact instruction, the trial court informed the jury that it
need not find Hogarth to be an accomplice unless it was convinced that
the evidence proved him to be an accomplice “beyond a reasonable
doubt.” This was the flaw that Appellant complained about on appeal,
causing the court of appeals to reverse his conviction.
B. Analysis
There is no evidence that Hogarth was a principal actor in the
tattoo shop robbery. If he was an accomplice witness, it must have been
established by virtue of vicarious liability under Section 7.02(a)(2) of the
Penal Code, for having solicited, encouraged, directed, aided, or
attempted to aid others in its commission. TEX. PENAL CODE § 7.02(a)(2).
But Hogarth was not present when the robbery was committed, so there
is no evidence, direct or circumstantial, that he committed any
RUFFINS – 26

affirmative act to promote the offense as it was being perpetrated. 12 If
he had any criminal liability for the tattoo shop robbery at all, it must
have been because of some affirmative act or acts committed before or
after that offense.
The State argues that there is no evidence of any affirmative act
that would amount to solicitation, encouragement, direction, or aid in
commission of the tattoo shop robbery. Appellant argues that there was
at least circumstantial evidence from which the jury could rationally

12 Appellant also argues that the so-called “party-conspirator theory”
embodied in Section 7.02(b) of the Texas Penal Code also applies. See
Appellant’s Brief at 46 (citing Zamora v. State, 411 S.W.3d 504, 512 (Tex. Crim.
App. 2013), which held that accomplice witness rule of Article 38.14 includes
“the party-conspirator theory” of parties contained in Section 7.02(b)). Section
7.02(b) reads:

(b) If, in the attempt to carry out a conspiracy to commit
one felony, another felony is committed by one of the
conspirators, all conspirators are guilty of the felony actually
committed, though having no intent to commit it, if the offense
was committed in furtherance of the unlawful purpose and was
one that should have been anticipated as a result of the carrying
out of the conspiracy.

TEX. PENAL CODE § 7.02(b). The trial court also submitted this theory of parties
to the jury in this case. But Appellant does not explain in what way the
evidence raised this conspiracy-based theory of parties. For example, he does
not identify what underlying felony Hogarth had conspired to commit when
the aggravated robbery with which Appellant was charged was committed; nor
does he explain how that aggravated robbery was committed in furtherance of
whatever that underlying felony might have been that Hogarth conspired to
commit. See Paredes, 129 S.W.3d at 539 (holding that, for a Section 7.02(b)-
based accomplice-witness instruction to be applicable, “there would still need
to be evidence that [the witnesses] were conspirators in carrying out one felony
when another was committed”). The court of appeals did not address this
theory of criminal responsibility under the accomplice-witness rule, and
neither shall I.
RUFFINS – 27

infer that Hogarth committed affirmative acts before and after its
commission that promoted the offense. But the direct evidence is to the
contrary.
When specifically asked whether Hogarth did anything leading
up to or following the tattoo shop robbery to promote its commission,
Hogarth himself, along with Trevino and Mahoney, all denied that he
did. It is true that, at several points in his testimony, Hogarth at least
seemed to admit that he had participated in the scouting mission prior
to the robbery. 13 But subsequent testimony clarified that he was
testifying from hindsight on those occasions, and that as of the time the
trio set out on the scouting mission, Hogarth was unaware of the
purpose of, and was merely present during, that trip. 14 There is no direct
testimony that he committed any affirmative act to promote the robbery
during that excursion. There is likewise an absence of evidence that he
played any active part in any subsequent planning among the robbers;
all that the record reveals, including Trevino’s testimony, is that
Hogarth was merely present for that as well.

13 For example, Hogarth simply answered “Yes, sir” when asked the
compound question on cross-examination: “that essentially was a scouting
mission for Gus and Tazz and you to do this robbery in New Braunfels, wasn’t
it?” See note 11, ante. At another point, during Hogarth’s earlier direct
examination, the prosecutor asked him, “So who were -- who was -- who were
you planning to rob when you were going to hit that lick?” Hogarth answered,
“Gustavo’s -- Gus’s cousin.” But, of course, Hogarth did not accompany the
robbers when they went to “hit that lick.” By the time the robbers departed to
carry out the robbery, it is uncontested that Hogarth was aware of their
intentions. Trevino even testified that Hogarth seemed disappointed when the
robbers “left without” him. But Trevino denied that Hogarth played any part
in either the planning or the execution of the tattoo shop robbery.

14 See notes 9–11, ante.
RUFFINS – 28

The record does reveal that Hogarth both failed to disclose his
knowledge of the plan to rob the tattoo shop beforehand and that he was
evasive and deceptive with the police during their investigation
afterwards. In isolation, however, none of these circumstances
establishes an affirmative act sufficient to render him an accomplice
witness. See Smith, 721 S.W.2d at 851 (that a witness was present at
the murder, suggested where to dispose of the deceased’s body, and
helped with the disposal, did not make him an accomplice); Medina, 7
S.W.3d at 642 (even a witness who is only present for, or who later helps
conceal, an offense is not, absent more, an accomplice). Indeed, in
Medina, this Court observed that a witness named Juarez was a
member of the same gang as the defendant, the murder was gang-
related, and Juarez helped to conceal the murder afterwards. Id. But,
observing that there was no evidence that Juarez was present when the
murder was committed, the Court held that these other circumstances
were not enough to make him an accomplice witness at the murder trial.
Id. Hogarth was likewise not present for the tattoo shop robbery; his
failure to disclose it beforehand or to report it afterwards does not make
him an accomplice.
Appellant argues that the jury could nevertheless have inferred
from the totality of circumstances that Hogarth was an accomplice. In
addition to the afore-mentioned circumstances—his presence on the
scouting trip and during the planning of the robbery, and his failures to
disclose it before, or report it after, to the police—Appellant also points
to testimony that Hogarth was involved in a different offense that the
robbers tried to perpetrate on the same night as the tattoo shop
RUFFINS – 29

robbery. 15 Of course, an affirmative act to commit a different offense,
other than the one on trial, does not make a witness an accomplice.
Gamez, 737 S.W.2d at 322.
Still, Appellant argues that, under the “doctrine of chances,” the
fact that Hogarth would involve himself in the planning of one offense
makes it more likely he was actively involved in the planning of another.
See De La Paz v. State, 279 S.W.3d 336, 347 (Tex. Crim. App. 2009) (“The
‘doctrine of chances’ tells us that highly unusual events are unlikely to
repeat themselves inadvertently or by happenstance.”). Appellant
maintains that the fact that Hogarth refused at first to cooperate with—
and even impeded—the police investigation demonstrates a
consciousness of guilt, which he asserts is another circumstance tending
to show that Hogarth was a party to the charged offense. See Ruffins,
613 S.W.3d at 202 n.2 (“This [consciousness-of-guilt] evidence raises an
issue as to whether Hogarth performed an affirmative act promoting the
commission of the aggravated robbery with the requisite intent when he
went to the tattoo shop with Taylor and Trevino.”). From the totality of
these circumstances, Appellant insists, the jury could have rationally
inferred that Hogarth solicited, encouraged, directed, aided, or
attempted to aid in the commission of the tattoo shop robbery.
But, even in the aggregate, the circumstances of this case do not
show that Hogarth engaged in an affirmative act to promote the tattoo
shop robbery—any more than the combined circumstances in Druery, or

15See note 7, ante. Although his testimony was vague on this point,
Trevino seems to have asserted that a different robbery or burglary was
contemplated earlier that night, of a drug-dealing victim that Hogarth knew of
and may have proposed to the group.
RUFFINS – 30

in Kunkle v. State, 771 S.W.2d 435 (Tex. Crim. App. 1986), sufficed to
establish that the witnesses in those cases engaged in affirmative acts
that made them accomplices. 16 Indeed, in each of these cases, the
witness was at the scene when the charged offense was committed. But
even in the face of additional circumstances analogous to those in this
case, this Court held that the evidence failed to establish that the
witnesses were accomplices. Appellant does not argue that Druery or
Kunkle were wrongly decided or that the Court should overrule them.
In Druery, the appellant argued that the two witnesses who had
been with him when he committed the offense were accomplices. One of
the witnesses had driven to the location where the murder occurred, and
both witnesses had been told that Druery intended to kill the victim,
though neither then warned the victim. 225 S.W.3d at 500. At least one
of the witnesses helped Druery to dispose of the body and the murder
weapon, and both witnesses accepted money from Druery after the
offense. Id. These circumstances, the Court held, did not raise a fact
issue whether the witnesses were accomplices. Id. Importantly, the
Court said nothing about the witness’s participation in the disposal of
the body and weapon as potential evidence of a consciousness of guilt.
In Kunkle, the purported accomplice witness had overheard
several discussions about robbery prior to the capital murder, but he
“did not take part in them.” Kunkle, 771 S.W.2d at 437. He was present
when a different robbery was committed at a convenience store phone
booth, and he may have acted as a lookout, though he neither
participated nor shared in the proceeds. Id. He was later present in the

16 See State’s Brief on the Merits at 42–51; see also text, post.
RUFFINS – 31

car when the charged robbery/murder was committed. Id. at 438.
Afterwards, he was afraid to contact the police, but he did attend a lake
outing the next day “with the others” that was paid for with proceeds
from the capital offense. Id. The Court concluded:
Even if [the witness] knew about the prior robbery, failed
to abandon the group, permitted [the capital murder
victim] to be induced into entering the vehicle, and would
have told the others (but did not) if he saw police, he would
not be shown to have committed an affirmative act in order
to assist the murder. In the absence of such an act, he
cannot be an accomplice, even as a matter of fact.

Id. at 441.
The Court also observed in Kunkle that “any connection [the
witness] had with the robbery of the man at the convenience store would
not render him an accomplice witness to [the capital murder] in the
absence of some evidence showing [his] complicity with the commission
of the [capital] murder.” Id. Again, the Court did not consider the
witness’s reluctance to call the police as a consciousness-of-guilt factor.
Nor did it find the prior convenience store robbery to be a circumstance
that raised a “doctrine of chances”–type of inference that the witness
must have known the robbery/murder would occur, and was a willing
participant, because he had just witnessed another robbery. Id. If the
witnesses in Druery and Kunkle were determined not to be accomplices,
then Hogarth cannot be found to have been an accomplice in this case.
IV. CONCLUSION
Neither direct nor circumstantial evidence in this case would
justify a jury finding that Hogarth was an accomplice witness whose
testimony required corroboration. The accomplice-as-a-matter-of-fact
RUFFINS – 32

instruction was therefore “superfluous,” and any deficiency in it could
not have harmed Appellant. See Druery, 225 S.W.3d at 497–98. This
conclusion renders it unnecessary for me to address the State’s
remaining grounds for review. Accordingly, I would reverse the
judgment of the court of appeals and remand the cause for disposition of
Appellant’s remaining points of error. I concur in the Court’s judgment
to do so, even if for a different reason than the Court gives.

FILED: March 29, 2023
PUBLISH