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COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

BRADFORD VERNON BLAKEWAY, 

 Appellant, 

v. 

THE STATE OF TEXAS, 

 Appellee.

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 No. 08-23-00278-CR

Appeal from the 

394th Judicial District Court 

of Jeff Davis County, Texas 

(TC# CR2300919) 

MEMORANDUM OPINION

Appellant Bradford Vernon Blakeway was indicted by a grand jury on four separate 

offenses stemming from an event that occurred on February 20, 2023, in which Appellant allegedly 

threatened, assaulted, and kidnapped Jeff Fisher in retaliation for Fisher testifying against him in 

a prior court proceeding. A jury found Appellant guilty of one count of first-degree aggravated 

assault by threat and one count of aggravated assault by causing bodily injury, both with the use 

of a deadly weapon and both in retaliation against Fisher for his service as a witness; one count of 

aggravated kidnapping with the use of a deadly weapon; and one count of retaliation for 

threatening Fisher due to his prior service as a witness. In this appeal, which is from the conviction 
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for first-degree aggravated assault by committing bodily injury, Appellant contends the trial court 

erred by failing to instruct the jury on an essential element of the offense, i.e., that he assaulted 

Fisher in retaliation for his service as a witness.1 For the reasons set forth below, we find that he 

is estopped from raising this issue on appeal, and we affirm his conviction.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Events prior to the offense 

The victim, Jeff Fisher, testified at trial as follows. He and Appellant had been friends and 

neighbors since 2007, living in a rural area approximately 20 minutes from Fort Davis, Texas 

called the Davis Mountain Resort (the DMR). Fisher and his wife assisted Appellant when he 

suffered two strokes—one in 2018, and a second in late 2019 or early 2020. Fisher often bought 

groceries and ran errands for Appellant, as Appellant had difficulty driving due to his vision issues. 

After his second stroke, law enforcement forced Appellant to go to the hospital in an 

ambulance. Thereafter, Appellant, who was never a “fan” of law enforcement, and believing they 

had no right to enter the DMR, told Fisher he was “frustrated” and “disgruntled” with law 

enforcement and believed they were “trying to kill him.” In Fisher’s presence, over the course of 

several days, Appellant began to “make threats to the legal community and the . . . people in the 

courthouse,” and began voicing an intent to go to the courthouse and “shoot lawmen.” On one 

occasion, Appellant told Fisher that he was “liable to wake up one morning . . . and go down to 

the courthouse, kill civilians, and then kill all men and keep killing.” Fisher believed he was the 

1 The grand jury issued separate indictments for each of the four offenses, but the trial court consolidated them for 

purposes of trial. Appellant has filed separate notices of appeal for each of his convictions. We address the other three 

appeals in separate opinions that we issue this day in Cause Numbers 08-23-00277-CR, 08-23-00279-CR, and 08-23-

00280-CR.
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only person to whom Appellant voiced his threats. 

Taking the threats seriously, Fisher reported them to the authorities. Appellant was later

charged with making a terroristic threat. He was in jail for approximately 18 months awaiting 

trial.2 In December 2021, at Appellant’s jury trial, Fisher was the State’s main witness. There, 

Fisher testified that he heard Appellant threaten to “shoot people at the courthouse” and “go down 

to the courthouse and kill lawmen.” The trial resulted in a hung jury. The State thereafter filed a 

motion to dismiss the charge, as it had not discovered additional evidence that would “change the 

outcome of a second trial.” The trial court granted the motion on February 22, 2022. 

Several months later, on November 30, 2022, Appellant appeared at the office of William 

Ghormley, II, the elected treasurer for the DMR corporation, who recalled Appellant asking his 

office to inform all residents that no law enforcement officer was allowed in the DMR. When 

Ghormley informed him that he would need a court order to prevent anyone from entering the 

DMR, Appellant responded that he did not need one from “those evil people.” Ghormley recalled 

Appellant specifically referring to the county sheriff and his deputies, a specific Texas Department 

of Public Safety officer, and Judge Ferguson3, contending “they were lying evil people and that he 

didn’t need their help or their permission.” Ghormley also recalled Appellant saying that Fisher 

was “an evil, lying, deceitful, man and that he was going to get him,” which Ghormley interpreted 

to mean Appellant intended to do “bodily harm” to Fisher. Ghormley reported the matter to the 

sheriff’s office and, that same afternoon, provided a written statement, which was introduced in 

2 The record reflects that prior to his 2021 trial, an expert found Appellant incompetent to stand trial, but the jury 

disagreed and found him competent. 

3 Judge Ferguson is the presiding judge of the 394th Judicial District Court in Jeff Davis County in which Appellant’s 

trial for terroristic threat was held.
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evidence at the current trial.

B. The events of February 20, 2023 

(1) The assault on Fisher 

According to Fisher, he had no contact with Appellant between the time the trial court 

dismissed the terroristic threat charge and February 20, 2023, when he encountered him in the 

DMR “campground” area. Fisher, who does “well service[s]” in the area, explained that he leased 

a space at the campground where he kept storage containers for his business equipment and tools. 

He recalled that he was moving some equipment from his truck into the storage containers at 

approximately 9:30 a.m. that day, when he observed Appellant’s parked vehicle approximately 

200 feet away by the “washateria.” 

Appellant began walking toward Fisher at a “brisk pace,” and as he got closer, Fisher saw 

that Appellant was holding a gun. Appellant told Fisher, who was standing on his truck at the time, 

to get down from the “goddamn truck, you motherfucker, or I'm going to blow your fucking head 

off.” After Fisher complied, Appellant pointed the gun at him and told him to raise his hands, 

saying he had a “warrant for [his] arrest” and was “making a citizen’s arrest.” Fisher testified that 

Appellant then ordered him, at gunpoint, to put his hands up and walk over to the storage containers 

approximately 12 to 15 feet away, while continuing to threaten him. Appellant told Fisher to put 

his hands on the containers then “frisked” him for weapons. Appellant directed Fisher to clasp his 

hands on his head and walk over to Appellant’s truck. As he walked, Appellant continued to 

threaten to “blow [Fisher’s] fucking head off” if he tried to turn or move away from him. 

Upon reaching Appellant’s truck, Appellant directed Fisher to walk to the passenger side 

and put his hands on the hood. Fisher recalled Appellant standing behind him saying Fisher had 
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“ruined [his] life,” stolen gasoline from the reserve tanks on Appellant’s property, and stolen 

money from him—apparently referring to occasions on which Appellant had given him money to 

buy groceries and supplies for him, all of which Fisher denied.4 Appellant repeated that he had a 

“warrant for [Fisher’s] arrest” but that he would release Fisher if he would “go tell the Judge that 

[he] lied about [Appellant] wanting to go down to the courthouse and burn it down.” Fisher 

responded that he did not say that to the judge. When Appellant asked him what he did say, Fisher 

replied that he “told them” he had heard Appellant say he was “going to go into the courthouse 

and shoot lawmen” and “kill lawmen.” Fisher recalled the conversation ending at that point. When 

asked if he believed Appellant was “angry” with him for reporting the threats, Fisher testified that 

Appellant did not express that he was, but Fisher acknowledged that Appellant may have been 

angry with him over being in jail while awaiting trial on the terroristic threat charge resulting from 

Fisher’s report. 

Fisher recalled that after their conversation ended, Appellant began backing away while 

keeping the gun pointed at him and telling him to “stay still” or he would “blow [his] fucking head 

off.” Appellant then took an ax handle from his truck and came toward Fisher. Holding both the 

gun and the axe handle, he told Fisher he was going to “teach” him something. Fearing Appellant 

was going to harm him, Fisher “broke and went into him.” A struggle ensued, during which 

Appellant hit Fisher on his left arm with the axe handle. As Appellant was hitting him, Fisher 

grabbed the axe handle and hit Appellant over the head with it four or five times in an attempt to 

incapacitate Appellant and “defend [his] life.” Fisher continued to hit Appellant on his head, 

4 According to Fisher, Appellant had never accused him of stealing prior to this event. Fisher testified that he had 

receipts for all the purchases he made for Appellant. 
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shoulder, and back with the axe handle until the gun flew out of Appellant’s hand. He then hit 

Appellant one final time to prevent him from retrieving the gun. After unsuccessfully trying to 

calm Appellant down, Fisher fired three shots in the air as a call for help, after which Appellant 

told him “I’m done.” 

(2) Events following the assault 

Fisher tried to “herd” Appellant to an area where his cell phone had service so he could 

call 911, but Appellant continued to threaten him. Fisher then “bolted” and drove off in his truck 

to Joy Bates’s house. Bates, Fisher’s neighbor, testified at trial that when Fisher arrived, he had a 

gun and an axe handle, and appeared “scared” and was “shaking.” Fisher told her Appellant had 

assaulted him. Bates recalled that although Fisher did not appear injured, he had blood on his 

clothes, which Fisher told her came from Appellant’s head after Fisher hit him with the axe handle. 

According to Bates, Fisher attempted to call 911 from her house but was unable to due to poor cell 

phone service. Fisher then walked across the street where she believed he was able to call 911. 

Fisher confirmed that he was able to call 911 from another neighbor’s house to report that 

he had been assaulted by Appellant. The 911 operator testified that Fisher, sounding “frantic,” 

reported that Appellant had assaulted him but that he had been able to take Appellant’s gun and 

hit Appellant with it. 

Chief Deputy Jeff Walker of the Jeff Davis County Sheriff’s Office and Officer Victor 

Lopez of the Marfa Police Department were dispatched to the scene of the incident. The officers 

testified that when they arrived, Fisher pulled up in his vehicle at a high rate of speed and jumped 

out with a gun and an axe handle in his hands, appearing to be scared and upset. Fisher informed 

the officers that Appellant had approached him earlier that morning, threatened him at gunpoint, 
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and taken an axe handle from his vehicle. Fisher described the struggle that ensued, during which 

he was able to take the gun and axe handle from Appellant, acknowledging that he hit Appellant’s 

head with the axe handle in response to Appellant’s threats. 

The officers did not recall seeing any blood on Fisher, but they both observed blood on the 

axe handle, which Fisher acknowledged came from Appellant’s head when he hit Appellant. The 

officers recalled that Fisher appeared uninjured, but for bruising on his left arm. Deputy Walker 

took two photographs of Fisher’s left arm that day, which were admitted in evidence at trial. 

Fisher’s wife also took photographs of the bruising on his arm two or three days later, which Fisher 

provided to the sheriff’s office and were also admitted in evidence. Fisher acknowledged that he 

did not seek medical treatment for the injuries to his arm but averred that his arm “hurt.” 

Officer Lopez recalled that approximately 20 minutes after his interview with Fisher, he 

drove to the Jeff Davis Sheriff’s Office, where he encountered Appellant and his neighbor, Daniel 

Gunn, who was taking Appellant to the hospital. Appellant informed Officer Lopez that Fisher had 

“hit him in the back of the head with a rock and had kicked him a couple times in the ribs and took 

his gun away from him.” Observing that Appellant was “bleeding pretty bad” from his head and 

had blood all over him, he did not question Appellant at the time. He believed it was more 

important that Appellant be taken to the hospital. Still photographs were later obtained from 

Officer Lopez’s body camera, which were introduced in evidence at trial, depicting Appellant 

sitting in the passenger seat of Gunn’s car with his head covered in blood.

At trial, Gunn testified as a defense witness. He stated that he and Appellant generally did 

not have much contact with each other, even though they had been neighbors for ten or 12 years. 

However, he recalled that on February 20, 2023, Appellant came to his door covered in blood and 
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appeared to have been beaten. Appellant informed him that Fisher had hit the back of his head 

with a rock and beat him with an axe handle after taking his gun. Appellant told Gunn that he 

wanted to call the Texas Department of Public Safety (DPS), rather than the Sheriff’s Office, but 

Gunn was unable to find a number for DPS.5 At some point, Appellant asked Gunn to drive him 

to the hospital. On the way, Gunn stopped in Fort Davis, where they encountered Officer Lopez 

and spoke with him about the incident before continuing to the hospital. Gunn believed that 

Appellant spent the night in the hospital although he was not asked to pick him up the next day. 

Relevant to this appeal, a grand jury indicted Appellant in April of 2023 on one count of the firstdegree felony offense of aggravated assault, alleging that on or about February 20, 2023, Appellant

“intentionally, knowingly or recklessly cause[d] bodily injury to Jeff Fisher by striking Jeff Fisher 

with an ax handle, and the defendant used or exhibited a deadly weapon, namely an ax handle, 

during the commission of the assault, and the defendant was acting in retaliation against or on 

account of the service by Jeff Fisher as a witness.”

C. Appellant’s defense and the jury’s verdict 

At trial, Appellant’s attorney argued that Fisher’s story was not credible, contending that 

it made no sense for Appellant, who was much older and weaker than Fisher, to attack him in 

broad daylight.6 He argued that Appellant was the true victim in the case, given his medical 

5 The same 911 operator who received Fisher’s call testified that she also received a call from Officer Lopez, who 

informed her that Appellant “wanted DPS.” However, the operator informed Officer Lopez that DPS would not 

respond to an incident in a “residential area,” and she therefore did not attempt to connect him to DPS. 

6 Prior to trial, two employees from the jail where Appellant was being held, including the nurse, contacted 

Appellant’s attorney about their concerns regarding Appellant’s competency. They reported he was suffering from 

increasing signs of dementia. Appellant’s attorney filed a motion for a competency examination, but at a hearing on 

the motion the month before trial, defense counsel informed the trial court that he did not believe a competency 

evaluation was necessary, as he believed Appellant was able to communicate effectively with his office, understand 

the nature of the charges against him, and assist him with trial preparation. Upon agreement of the parties, and finding 
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condition and Fisher’s lack of any significant injuries. The State maintained that Fisher was 

credible, and his story was consistent.

The jury was instructed that it could find Appellant guilty of the offense of aggravated 

assault “by caus[ing] bodily injury to Jeff Fisher by striking him with an axe handle [and] did this.

intending to cause bodily injury; or [] knowing that he would cause bodily injury; or with 

recklessness about whether he would cause bodily injury; and . . . during the alleged assault, used 

or exhibited an ax handle, a deadly weapon.” The jury found Appellant guilty of the offense of 

aggravated assault by causing bodily injury, and the trial court, treating the offense as a first-degree 

felony, sentenced him to 20 years in prison and assessed a $1,000 fine.7 This appeal followed.

II. THE JURY CHARGE ERROR

In his sole issue on appeal, Appellant contends the trial court erred by failing to instruct 

the jury that it was required to find beyond a reasonable doubt that he committed the assault in 

“retaliation against or on account of the service by Jeff Fisher as a witness,” arguing the 

“retaliation” requirement, as pled in the indictment, constituted an essential element of the offense. 

We agree that “retaliation” was an essential element of first-degree aggravated assault which the 

State was required to establish in the guilt-innocence phase of trial. But as explained below, we 

conclude Appellant is estopped from challenging this aspect of the jury charge on appeal based on 

his trial conduct. 

no basis for finding Appellant incompetent, the trial court denied the motion. However, at the punishment phase of 

the trial, defense counsel presented the testimony of the same two jail employees, who testified to their concerns.

7 The trial court ordered this sentence to run concurrently with the sentences imposed for his other three convictions 

in this matter.
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A. Standard of review 

“A jury-charge-claim analysis involves two steps: First, we determine whether the charge 

is erroneous. If it is, then we must decide whether the appellant was harmed by the erroneous 

charge.” Alcoser v. State, 663 S.W.3d 160, 165 (Tex. Crim. App. 2022) (citing Wooten v. State, 

400 S.W.3d 601, 606 (Tex. Crim. App. 2013); Ngo v. State, 175 S.W.3d 738, 744 (Tex. Crim. 

App. 2005) (en banc)). In general, there are two standards of review for jury-charge-error claims. 

Id. (citing Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on reh’g)). 

If a defendant timely objects to an alleged jury-charge error, the record need only show 

“some harm” to obtain relief, i.e., reversal is required if the error was calculated to injure the rights 

of the defendant. Id.; Marshall v. State, 479 S.W.3d 840, 843 (Tex. Crim. App. 2016). But if the 

defendant failed to timely object to the charge in the trial court, we may only reverse his conviction 

if we find that the charge “error was egregious and created such harm that the defendant did not 

have a fair and impartial trial.” Marshall, 479 S.W.3d at 843; see also Tex. Code Crim. Pro. Ann. 

art. 36.19 (providing that when an appellate court reviews a jury charge error, “the judgment shall 

not be reversed unless the error appearing from the record was calculated to injure the rights of 

defendant, or unless it appears from the record that the defendant has not had a fair and impartial 

trial”). 

A third possibility exists when, as here, the defendant participates in preparing the very 

same portion of the jury charge he is attempting to challenge on appeal and agrees to submit it to 

the jury. In that instance, the defendant may be estopped altogether from contending there is error 

in that portion of the charge on appeal, as doing so would be “inconsistent” with his position at 

trial. See Ruffins v. State, 666 S.W.3d 636, 643 (Tex. Crim. App. 2023) (explaining the concept of 
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estoppel in the context of jury charge error). 

B. Applicable law 

A trial court has the obligation to instruct the jury on “the law applicable to the case.” See

Tex. Code. Crim. Proc. Ann. Art. 36.14 (“in each felony case and in each misdemeanor case tried 

in a court of record, the judge shall, before the argument begins, deliver to the jury . . . a written 

charge distinctly setting forth the law applicable to the case”). The “law applicable to the case” 

includes the statutory definitions that affect the meaning of the elements of the offense. Ouellette 

v. State, 353 S.W.3d 868, 870 (Tex. Crim. App. 2011); see also Villarreal v. State, 286 S.W.3d 

321, 329 (Tex. Crim. App. 2009) (the trial court must communicate to the jury each statutory 

definition related to the charged offense). Thus, [b]ecause the charge is the instrument by which 

the jury convicts, [it] must contain an accurate statement of the law and must set out all the essential 

elements of the offense.” Vasquez v. State, 389 S.W.3d 361, 366 (Tex. Crim. App. 2012). 

Here, the essential elements of the offense of aggravated assault are set out in §§ 22.01 and 

22.02 of the Texas Penal Code. Section 22.01 provides that a person commits the offense of assault 

if “the person intentionally, knowingly, or recklessly causes bodily injury to another . . . 

intentionally or knowingly threatens another with imminent bodily injury . . . or intentionally or 

knowingly causes physical contact with another when the person knows or should reasonably 

believe that the other will regard the contact as offensive or provocative.” Tex. Pen. Code Ann. 

§ 22.01. Section 22.02(a) provides that the offense becomes an aggravated assault if the person 

commits assault and the person: “(1) causes serious bodily injury to another . . . or (2) uses or 

exhibits a deadly weapon during the commission of the assault.” Tex. Pen. Code Ann. 

§ 22.02(a)(1)(2). And § 22.02(b) provides that an aggravated assault is a felony of the second 
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degree “except that the offense is a felony of the first degree if it is “in retaliation against or on 

account of the service of another as a witness, prospective witness, informant, or person who has 

reported the occurrence of a crime.”8 Tex. Pen. Code Ann. § 22.02 (b)(2)(C). 

When, as here, a statute provides that a certain fact will enhance an offense to a higher 

level, the “fact” is considered an element of the offense that the State must prove at the guiltinnocence phase of trial. Calton v. State, 176 S.W.3d 231, 236 (Tex. Crim. App. 2005) (en banc)

(where statute provides that the existence of a prior conviction raises the offense of evading arrest 

from a Class B misdemeanor to a third-degree felony, the existence of the prior conviction was an 

element of the offense which the State was required to prove at the guilt-innocence phase of trial, 

rather than merely a sentencing enhancement); Niles v. State, 555 S.W.3d 562, 564 (Tex. Crim. 

App. 2018) (where statute provided that the offense of terroristic threat is increased from a class 

B misdemeanor to a Class A misdemeanor when it is committed against a public servant, court 

treated the “public servant” requirement as an element of the offense for purposes of determining 

jury-charge error); Baltimore v. State, 689 S.W.3d 331, 342–43, 348 (Tex. Crim. App. 2024)

(where statute provided that an offense of unlawfully carrying a weapon is raised from a Class A 

misdemeanor to a felony if the offense is committed on any premise licensed for the sale of 

alcoholic beverages, court treated the “premises” requirement as an element of the offense).

Accordingly, because the State was required to establish that Appellant committed the

assault on Fisher in retaliation for his prior service as a witness to enhance the aggravated-assault 

offense from a second-degree felony to a first-degree felony, we agree that the retaliation allegation 

8 We note that although this Code provision was amended effective September 1, 2023, the amendments did not alter 

the relevant portions of the statute applicable to Appellant’s case. 
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was an element of the offense which the State was required to prove at the guilt-innocence phase 

of trial. Therefore, the trial court’s failure to include the retaliation element in either the abstract 

or application portion of the jury charge when instructing the jury on the aggravated assault offense 

was in error. 9 However, as explained below, Appellant expressly agreed to this omission; 

Appellant agreed instead to allow the jury to make a finding on “retaliation” in a different portion 

of the charge. He isthereby estopped from raising a complaint about the structure of the jury charge

in this regard on appeal. 

C. Appellant is estopped from challenging the structure of the jury charge.

As set forth above, Appellant was charged with aggravated assault by causing bodily injury 

to Fisher for striking him with an axe handle, enhanced to a first-degree felony based on the 

allegation that he assaulted Fisher in retaliation for his service as a witness in the prior court 

proceeding. Appellant was also charged with the offense of retaliation based on the allegation that 

he “intentionally or knowingly threaten[ed] to harm . . . Jeff Fisher, by an unlawful act, namely 

threaten[ing] to kill him, in retaliation for or on account of the service of Jeff Fisher as a witness.”

During a break in Appellant’s trial in which he was tried on both offenses, the trial court initially 

held an “informal” jury charge conference during which it memorialized an agreement the parties 

had reached to the effect that the “retaliation claim” was “the same as the enhancement element” 

of the aggravated-assault offense. The trial court further explained that the parties had agreed it 

could “rely on the jury’s finding beyond a reasonable doubt as to retaliation under [the retaliation 

charge] and then apply that [finding] to the aggravated assault charges for enhancement purposes.” 

9 In the abstract portion, the trial court instructed the jury: “A person commits the offense of aggravated assault if the 

person intentionally, knowingly, or recklessly causes bodily injury to another and uses or exhibits a deadly weapon 

during the commission of the assault.”
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When asked if this constituted their agreement, both parties responded that it was, with defense 

counsel adding that he was “interested” in seeing what that would “look like.” Subsequently, at 

the formal charge conference, the trial court asked the attorneys if they had reviewed the proposed 

jury charge—as set forth below—and asked if they had any corrections, deletions, or additions. 

Both responded they did not. 

In accordance with the parties’ agreement, the trial court instructed the jury that it could 

find Appellant guilty of aggravated assault by causing bodily injury if it found that Appellant 

caused him bodily injury “by striking him with an axe handle [and] did this intending to cause 

bodily injury; or [] knowing that he would cause bodily injury; or with recklessness about whether 

he would cause bodily injury; and . . . during the alleged assault, used or exhibited an ax handle, a 

deadly weapon.” Separately, the trial court instructed the jury that “[a] person commits the offense 

of retaliation if the person intentionally or knowingly harms or threatens to harm another by an 

unlawful act in retaliation for or on account of the service or status of another as a . . . witness, 

prospective witness . . . or another who has reported . . . the occurrence of a crime.”10 The court 

further instructed the jury that it could find Appellant guilty of retaliation, as alleged in the 

indictment, if it found beyond a reasonable doubt that Appellant “intentionally or knowingly 

threatened to kill Jeff Fisher and communicated this threat to Jeff Fisher in person, [that] killing 

Jeff Fisher would be an unlawful act; and [that Appellant] did this in retaliation for or on account 

of the service or status of Jeff Fisher as a witness.” And once the jury found Appellant guilty of 

10 The Penal Code provides: “A person commits [the offense of retaliation] if the person intentionally or knowingly 

harms or threatens to harm another by an unlawful act: (1) in retaliation for or on account of the service or status of 

another as a: (A) public servant, witness, prospective witness, or informant; or (B) person who has reported or who 

the actor knows intends to report the occurrence of a crime.” Tex. Pen. Code Ann. § 36.06 (a). 
15

both offenses, the trial court presumably applied the jury’s “finding” on the retaliation offense to 

enhance the aggravated-assault conviction to the level of a first-degree felony, as previously agreed 

to by both parties, without objection by Appellant.

On appeal, however, Appellant contends it was error for the trial court to structure the jury 

charge in this manner and to apply the jury’s finding on retaliation to the aggravated-assault 

offense, asserting that the “act” alleged in the retaliation indictment was “different” than the act 

alleged in the aggravated-assault indictment. This is opposed to the position defense counsel took 

in the trial court. 

As set forth above, Appellant expressly agreed that the retaliation offense was based on the 

same factual allegation as the aggravated-assault enhancement. He also agreed that only one 

instruction on retaliation was needed in the jury charge with respect to both the retaliation offense 

and the aggravated-assault enhancement. Accordingly, we conclude that, at the very least, 

Appellant had some responsibility for the manner in which the jury was instructed. He is therefore 

estopped from complaining about the structure of the jury charge on appeal, as doing so is 

inconsistent with his prior conduct at trial. See Ruffins, 666 S.W.3d at 643 (Tex. Crim. App. 2023)

(where defense counsel expressly stated that he was “good” with the trial court’s reasonable-doubt 

instruction, which defense counsel himself requested, he had at least “some responsibility” for the 

alleged error in the jury charge and was therefore estopped from asserting an “inconsistent” 

position on appeal by contending the instruction was erroneous) (citing Prystash v. State, 3 S.W.3d 

522 (Tex. Crim. App. 1999), cert. denied, (2000); Woodard v. State, 322 S.W.3d 648 

(Tex. Crim. App. 2010)).

Appellant’s sole issue on appeal is overruled.
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III. CONCLUSION

The trial court’s judgment is affirmed.

LISA J. SOTO, Justice

August 29, 2024

Before Alley, C.J., Palafox, and Soto, JJ. 

(Do Not Publish)