             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                       NO. PD-0265-09



                        VICKIE LASHUN TOLBERT, Appellant

                                               v.

                                 THE STATE OF TEXAS

             ON STATE’S PETITION FOR DISCRETIONARY REVIEW
                   FROM THE FIFTH COURT OF APPEALS
                             DALLAS COUNTY



       K EASLER, J., filed a concurring opinion.

                                        OPINION

       I join the Court’s opinion but write separately because I also believe that Tolbert is

estopped from challenging the trial judge’s failure to sua sponte instruct the jury on the

lesser-included offense of murder.

       As observed by the majority, in Bluitt v. State, we held that “[a]n affirmative denial

of objection . . . shall be deemed equivalent to a failure to object.” 1 Bluitt’s attorney stated


       1
           137 S.W3d 51, 53 (Tex. Crim. App. 2004).
                                                   TOLBERT CONCURRING OPINION—2

that he had no objection to the jury charge.2 On appeal, the State claimed that Bluitt waived

his complaint that the trial judge erred by refusing to sua sponte instruct jurors that they could

consider extraneous offense evidence only if they believed that Bluitt committed the

extraneous offenses beyond a reasonable doubt.3           We rejected the State’s argument,

reasoning that an affirmative refusal to object is governed by Almanza’s 4 failure to object

standard; thus, charge error may nevertheless be raised on appeal but a reversal is not

warranted unless there is egregious harm.5 Bluitt’s strict dichotomy, however, did not

address the notion of estoppel, perhaps because of the State’s failure to posit such an

argument.

       In Prystash v. State, we held that Prystash was estopped from complaining on appeal

about the trial judge’s failure to include an anti-parties special issue in the jury charge

because his attorney had affirmatively asked the trial judge to leave it out.6 Prystash

recognized that there is a crucial distinction between the concepts of waiver, which is more

accurately characterized as forfeiture, and estoppel (invited error).7 A party forfeits a




       2
           Id. at 52.
       3
           Id. at 53.
       4
           Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1985).
       5
           Bluitt, 137 S.W.3d at 53.
       6
           3 S.W.3d 522, 529-30 (Tex. Crim. App. 1999).
       7
           Id. at 531.
                                                  TOLBERT CONCURRING OPINION—3

complaint when the party fails to invoke an optional evidentiary or procedural rule.8

Estoppel, on the other hand, prevents a party from complaining about an action that the party

induced; “it is part of the definition of what can constitute error.” 9

       Recently, we relied on Prystash in Druery v. State when addressing an analogous

situation to the one before us today. During the charge conference at Druery’s capital murder

trial, Druery’s attorney told the trial judge that he did not want a lesser-included offense

instruction on first degree murder.10 On direct appeal to this Court, we held that Druery was

estopped from complaining that the trial judge should have included the instruction sua

sponte.11

       In my view, this case has nothing to do with error preservation or forfeiture; this case

should be disposed of on estoppel grounds. The State requested a parties instruction and an

instruction on a nondescript lesser-included offense. The trial judge overruled the request

and asked Tolbert’s attorney if he had any objections to the proposed charge. By stating that

he had no objection on the heels of the State’s request, Tolbert’s attorney approved of the

charge sans a lesser-included offense instruction on murder. As a result, we should not be

entertaining Tolbert’s claim that the trial judge erred in failing to sua sponte include a charge



       8
            Marin v. State, 851 S.W.2d 275, 278 (Tex. Crim. App. 1993).
       9
            Prystash, 3 S.W.3d at 529-30.
       10
            225 S.W.3d 491, 505 (Tex. Crim. App. 2007).
       11
            Id. at 506.
                                                 TOLBERT CONCURRING OPINION—4

on murder.

       However, because we did not grant review of the court of appeals’s rejection of the

State’s estoppel argument, I join the Court’s determination that the court of appeals erred in

failing to consider whether there was error before proceeding to assess harm under Almanza.

As the Court holds, the trial judge had no duty to sua sponte instruct the jury on the lesser-

included offense of murder because Tolbert made no such request.12




DATE DELIVERED: March 17, 2010
PUBLISH




       12
            Majority op., at 7.
