Lead Opinion
delivered the opinion of the Court,
The appellant and five other persons were charged with capital murder. Pursuant to an immunity agreement with the District Attorney, Randy Sherrod, the appellant gave a videotaped statement, sub
The appellant appealed his conviction, arguing that the trial court erred by refusing to enforce the immunity agreement and by not finding as a matter of law that the agreement barred the prosecution. The Court of Appeals affirmed the conviction, holding as a matter of law that the immunity agreement was not enforceable against the State because the trial court had not approved the agreement.
The State has suggested to us that the appellant violated the immunity agreement. This argument comes too late to be considered. The Court of Appeals’ opinion did not mention, much less decide, such an issue. The grounds for review submitted by the appellant assume that there was an agreement between the appellant and the prosecutor to dismiss the charges with prejudice, and they assume that the appellant fulfilled his part of the bargain. The first ground for review asks whether a subsequent indictment for an offense arising from the transaction that was the subject of an immunity agreement could be brought solely because the order of dismissal did not state that the dismissal was “with prejudice.” The second ground for review asks whether, after the appellant upheld his end of the bargain, the subsequent indictment could be brought solely because the trial court was unaware of the specific terms of the immunity agreement. The State neither responded to the petition nor cross-petitioned. We shall not address its argument for the first time on discretionary review.
The authority to grant immunity derives from the authority of a prosecutor to dismiss prosecutions.
The appellant claims that the immunity agreement should be enforced under an equitable doctrine of substantial compliance with article 82.02. This equitable doctrine arguably underlies the cases on which the appellant relies, Camron v. State
In Rusk the prosecutor gave his reasons for a dismissal orally instead of in writing as the statute requires. The Court upheld the dismissal on the equitable grounds that the State had substantially complied with the statute.
Neither of these cases addresses the level of judicial knowledge needed to comply with the requirement of article 32.02 that the trial court give its “permission” or “consent” when it approves a dismissal that results from an immunity agreement without expressly approving the underlying agreement. None of the cases mandating judicial approval of immunity agreements address the distinction between the approval of a dismissal and the approval of a promise to dismiss, nor do they elaborate
The dissenting opinion says that if knowledge of the immunity agreement in this case is not required, then our opinion in Graham is “just ‘loose language’ that does not accurately or precisely state the law concerning immunity.”
This appellant is trying to enforce a dismissal that the trial court has approved. The court in this case both knew of and approved the dismissal. A district court’s knowledge and approval were the very things that were lacking in Graham. Graham cannot be read to require more. We must look elsewhere to decide what a trial court must know to validly approve a dismissal, whether it is based on an immunity agreement or anything else.
Article 32.02 requires the prosecutor to list in writing his reasons for dismissing a case, and the judgment of dismissal to incorporate those reasons.
The requirement of judicial approval of a dismissal is mandatory,
But the statement of reasons required by article 32.02 has been interpreted much differently than the requirement
In the instant case, the only reasons that the prosecutor gave for dismissing the case and the only reasons incorporated in the judgment of dismissal are that the case was dismissed “in the interests of justice.” The phrase “in the interests of justice” could reflect the cognizance of the court as to the existence or terms of the appellant’s immunity agreement, or it could simply reflect a deference to any rational basis that the prosecutor had to dismiss the prosecution.
It follows that if filing the statement of reasons is not mandated then neither would be the requirement that the judge incorporate those reasons into the order of dismissal. In the appellant’s case, that the judge did not incorporate the terms of the immunity agreement into the order of dismissal does not render the immunity agreement unenforceable.
Similarly, that the order of dismissal did not state that the dismissal was “with prejudice” would not render the agreement unenforceable. Incorporation of the terms of the immunity agreement or a reference to the result of the agreement, dismissal with prejudice, would have the same effect. The effect would be that the dismissal order would reflect on its face that the prosecution was dismissed because of the immunity agreement. Although this would be a prudent and useful course,
The dissent points out that a dismissal “with prejudice,” which is more conclusive than a dismissal that is silent on the question, is required by a statute that requires charges to be brought within a stated time after arrest and by the Interstate Agreement on Detainers that requires detainers to be resolved within certain time limits.
The question remaining is whether court awareness of the terms of an immunity agreement is required to make it enforceable. If the trial court must be aware of the terms of an immunity agreement, this precondition to an enforceable immunity agreement would come from the judge’s responsibility to approve the dismissal.
When deciding what is demanded by the requirement that the trial court give its permission or consent to an immunity agreement, the roles of the prosecutor and the judge in dismissing cases must be compared. At common law, the prosecutor was given “practical control of all criminal proceedings,” and the authority “to enter a nolle prosequi rest[ed] usually in the prosecuting attorney alone.”
This expansion of the court’s role in dismissing cases was limited. The new statute did not authorize the courts either to set the conditions of a dismissal or to require that the prosecutor initiate a dismissal. We described the limited role of the court in respect to its new review authority over case dismissals: “The only enlargement of the power of the district court by the enactment of the statute of 1876 is to confer upon the court a veto power upon the action of the district attorney.”
Under the new statute, the prosecutor remained the controlling authority over dismissals subject only to the approval of the trial court. We described this new balance of authority over case dismissals, “The power of dismissal of a criminal cause rest[s] primarily in the initiative of the State’s attorney, but also requirefs] the consent of the presiding judge.”
To require that a trial court become familiar with the terms of every immunity agreement before approving the district attorney’s request for a dismissal pursuant to the agreement would place the courts in a position of duplicating the work of the district attorney. The terms and conditions of an immunity agreement are wholly within the bargaining process of the parties involved in the contract, subject to the veto power of the court over their final agreement. Often the required level of performance under the agreement will be to the satisfaction of the prosecutor. We will not place the courts in a position that requires them to supervise the performance of every witness under an immunity agreement.
Supervision of the performance of an immunity agreement is the province of the prosecutor. In Ex parte Greenhaw;
Where two parties are indicted for murder, one of whom turns state’s evidence, this forms and constitutes, under our law, a continuous contract, the good faith of which must be kept by both parties. Being a continuous contract, the terms and conditions are not consummated until the final trial of the party or parties accused against whom the accomplice agrees to testify.
A trial court could assess performance under an immunity agreement prior to dismissing a case, but the continuous nature of an immunity agreement would create institutional difficulties for a court in supervising performance under the contract after a dismissal. Although the courts must approve a dismissal that is the result of an immunity agreement, it is the prosecutor who is in the best position to evaluate performance before and after a dismissal.
Because it is the prosecutor who initiates a dismissal and sets the reasons for the dismissal, it is the prosecutor who is responsible for crafting the conditions of an immunity agreement. Provided the judge approves the dismissal that results from an immunity agreement, and is aware that the dismissal is pursuant to an immunity agreement, the judge does not have to be aware of the specific terms of that immunity agreement for it to be enforceable.
The Court of Appeals did not address the State’s contention that the appellant failed to establish the existence of a mutual agreement. The court held that the agreement not to prosecute was unenforceable because the trial court did not approve the immunity agreement that motivated the prosecutor to agree not to prosecute. We have held this opinion to be in error, and we remand the case to the Court of Appeals to address the issues of the existence of, and performance under, the immunity agreement.
Reversed and remanded.
Notes
. Smith v. State,
. See Graham v. State, 994 S.W.2d 651, 653-54 (Tex.Cr.App.1999) (citing Zani v. State,
. "The attorney representing the State may, by permission of the court, dismiss a criminal action at any time upon filing a written statement with the papers in the case setting out his reasons for such dismissal, which shall be incorporated in the judgment of dismissal. No case shall be dismissed without the consent of the presiding judge.” Tex.Code Crim. Proc. art. 32.02. All further references to
. Graham,
. See Tex.Code Crim. Proc. art. 32.02, supra note 3.
. Wechsler v. State,
. Washburn v. State,
.
.
. Camron,
. See Graham,
. See id. at 656 (quoting Vincent v. State,
. Rusk,
. Id. at 137,
. See Graham v. State,
. Post at 850.
. See supra at 851 (text accompanying notes 5-7).
. See Graham,
. See Wallace v. State,
. “It is always better, if not actually essential, that the court should make it a matter of record at the time that complete immunity was offered the witness by the prosecuting officer, with the sanction and approval of the court, and it even might be better for the offer of such immunity by the prosecuting officer to be in writing....” Higgins,
. Rusk,
. See post at 864-865.
. See State v. Anderson,
. Id. at 119-20,
. Id. at 120,
. Ibid.,
. Wallace,
. Camron,
. Rusk,
.
Concurrence Opinion
delivered a concurring opinion.
This case demonstrates the wisdom of a rule that all immunity agreements must be in writing, signed by the defendant, his counsel, the prosecutor, and the trial judge. Indeed, the Legislature might consider enacting a statute outlining the procedures regulating the grant of transactional or use immunity. That said, I concur with the result reached by the majority in this particular instance, although I disagree with some of the reasoning. I conclude that, under these special circumstances, a defendant should not be made to suffer the disastrous consequences of a district attorney’s inadvertent failure to inform the trial judge and to obtain his consent to what both original contracting parties agreed was a valid immunity agreement.
I.
The testimony taken during appellant’s pretrial hearing on his Motion to Enforce Agreement with Prosecutor shows that, in 1990, appellant, along with five co-defendants, was indicted for the capital murder of Hilton Raymond Merriman. Early in his investigation of the burglary-murder, the Randall County District Attorney decided that he might need the cooperation and testimony of one of the defendants to prosecute the cases successfully.
Appellant’s attorney and the district attorney, as well as an assistant district attorney, began lengthy negotiations concerning a possible immunity agreement with appellant. After almost two years, these negotiations culminated in an oral immunity agreement
The appellant gave a full, videotaped interview to the primary prosecutor, in which he waived his Fifth Amendment right not to incriminate himself, even though he was then under indictment for capital murder. The primary prosecutor testified that he kept the videotape and continued to investigate to confirm or contradict the facts as stated by appellant. This confirmatory process took about ten months, at which point the prosecutor was satisfied that appellant had told the truth “as we could discern it,” and the State had successfully tried one of the co-defendants for capital murder. Although appellant, as promised, kept himself available as a witness for his co-defendants’ trials, the State did not request his testimony.
The district attorney and the primary prosecutor then agreed to dismiss the pending capital murder charges against appellant. It was their understanding that this dismissal would end any possible charges against appellant for his involvement in the Merriman burglary and murder.
The district attorney told appellant’s attorney to draft a dismissal motion. Appellant’s attorney did so. That dismissal mo
Approximately two years later a new district attorney reopened the investigation, apparently having decided that appellant had not been completely truthful in his videotaped statement and cooperation with the former prosecutors.
Appellant appealed, complaining that the trial court erred in refusing to enforce the immunity agreement. The court of appeals affirmed the conviction, holding that, as a matter of law, there was no binding immunity agreement because the trial court did not know or approve of it. Smith v. State,
II.
Appellant has been tried and convicted of murder for want of a written record of
Instead, I would conclude that in this particular (and highly unusual) case the State is now estopped from complaining that the immunity agreement to which it had agreed was invalid and unenforceable because it had failed to memorialize it and obtain the trial court’s consent. I do not suggest that either the former or present district attorney were derelict in their duties, lacking in good faith, or acting less than honorably. Nonetheless, appellant is surely not at fault, and he ought not bear the severe consequences of the innocent mistakes of the State’s representatives.
Like the dissent, I believe that a bright-line rule — the court must approve the immunity agreement — is the right rule. The exchange of rights represented by immunity agreements is a serious matter, one which is best served by obtaining the trial court’s written approval on the record. The written record, being immutable and accessible, protects those like appellant, and saves them from subsequent trials, hearings, and appeals simply to return to that place the written record should have shown they were in the first place: immunity ticket in pocket in return for the relinquishment of their valued Fifth Amendment right against self-incrimination.
III.
The Supreme Court has stated that: “[a]mong the necessary and most important of the powers of the States as well as the Federal Government to assure the effective functioning of government in an ordered society is the broad power to compel residents to testify in court or before grand juries or agencies.”
When these two rights — society’s need for a witness’ testimony and that witness’ right not to incriminate himself — collide, the immunity doctrine comes to the rescue.
Initially, Congress, the courts, and the states flip-flopped as to just what kind of immunity was required to substitute for the right against self-incrimination. Witnesses were alternatively granted the narrow “testimonial” immunity (immunity from in-court use of compelled testimony in subsequent criminal prosecution); the broad “transactional” immunity (immunity from prosecution for offenses to which compelled testimony relates); or the middle-of-the-road “use and derivative use” immunity (immunity from the use of the compelled testimony and any evidence derived therefrom). Under the federal constitution, a witness is entitled to at least “use and derivative use” immunity.
In some jurisdictions, such as Texas, the trial court must endorse prosecutorial grants of immunity. The requirement that the trial court be involved may be made explicit by statute
The trial court’s role is very limited in this context. Immunity, after all, is the coin the government must pay to obtain the waiver of a person’s right against self-incrimination and the information that he has about some crime. Thus, only the government can decide how much information it wants to “buy” and how much it is willing to pay for it in terms of either “use” or “transactional” immunity. The trial court’s function is largely ministerial.
It is true that occasionally equity will enforce a promise not to prosecute which was made without the trial court’s knowledge and approval.
The witness is within his privilege in insisting that the basis for his immunity shall be something more substantial than the grace or favor of the prosecutor who may bring him to the bar of justice .... To uphold a finding that his [the witness’] conduct amounted to a contempt it must appear that in refusing to answer he was violating a legal, and not merely a moral obligation. The immunity like the obligation must have its source and sanction in the law. An “equitable right to * * * clemency” — a mere “gesture” of benevolence — is not a substitute for protection against indictment and conviction.20
Thus, by design, requiring the trial court to approve an immunity agreement pro
It seems illogical that a rule intended to protect a defendant’s right against self-incrimination may then be used by the State as a sword against him. I would conclude that, in this particular case, the State is estopped from claiming that the immunity agreement that its representative, the then District Attorney of Randall County, entered into with appellant cannot be a valid immunity agreement because that district attorney failed to obtain the trial court’s knowledgeable approval of the agreement.
I cannot join the majority opinion, although I agree with most of its reasoning. I believe that the majority’s ultimate conclusion, that, if there is a dismissal, a trial court need not be aware of an immunity agreement’s existence or content, will only lead to further confusion in this area of the law. Therefore, I concur in the court’s judgment.
. Appellant’s attorney testified that he had dealt with this district attorney for twenty years and that neither required the other to reduce agreements to writing. Although "handshake” agreements show commendable trust by the contracting parties, they are ill-advised in the context of legally binding immunity agreements.
. The primary prosecutor testified that, with the dismissal of the charges, "I thought it was completely over for Sean Smith as far as anything to do with the Merriman homicide or burglary.... [TJhere has to be an end to cases. And, in my opinion, once the case was dismissed, that was the final conclusion that the truth had been told, we had investigated as much as we could and that the case was over.” When asked whether the oral immunity agreement was the equivalent of a contract, the prosecutor responded: "I think it has contractual aspects, and maybe, even a little bit above that. I think that a government official, when they give their word about what they will do, they’re bound by that word.” The district attorney testified similarly, stating "because at some point you have to have a closure, and sometimes you make decisions .... I mean we struggled with this for months to be sure we ran every possible lead down. But when the defense attorney makes a deal with you at some point where you need his [a defendant’s] testimony, because you later don’t need it, you can’t back up on the deal. I don’t know about anybody else; I can’t. You — there was no doubt in my mind or [appellant’s attorney’s] mind; once I signed that agreement [dismissal motion], it was over with.”
. The trial judge, concentrating upon the sole issue of whether a legally enforceable immunity agreement had ever existed, declined to allow the new district attorney to offer evidence on the issue of whether appellant had broken an otherwise valid immunity agreement.
. At the hearing, the position of the new district attorney was not so much that appellant never had an immunity agreement, but that he had broken that agreement by giving a statement that was false. His not unreasonable position was that:
If the Defendant breached the contract, then the contract is broken. And again, we are prepared to present, in spite of the incredible evidence heard in this hearing, that the Defendant lied with impunity throughout the video tape. That he was active, voluntarily participating....
To suggest that the Defendant can bind the State to a promise, but breach his end of the agreement and lie with impunity, is to send a message to every defendant in this state and I guess in the world, that the key to success in criminal endeavors, is simply to make the prosecutor believe a lie, and then you are home free. There is nothing they can do to you.
.This Court granted review of the following questions:
1) If a Defendant and the State enter into an agreement that an indictment returned against the Defendant will be dismissed with prejudice, and if the Defendant upholds his end of the bargain, can a subsequent indictment charging the same transaction be brought against the Defendant solely because the order of dismissal signed by the Court did not state the dismissal was with prejudice?
2) If a Defendant and the State enter into an agreement that an indictment returned against the Defendant will be dismissed with prejudice, and if the Defendant upholds his end of the bargain, can a subsequent indictment charging the same transaction be brought against the Defendant solely because the Court was not aware of the specific terms of the agreement not to prosecute?
. One is reminded of the Mother Goose rhyme, "For want of a nail ... the kingdom was lost,” in which the consequences were even more severe for want of a much more mundane item.
. Murphy v. Waterfront Comm’n,
. Kastigar v. United States,
. Id. at 444,
. The first federal statute provided immunity to anyone testifying before either house of Congress for any fact or act upon which his testimony touched. See 11 Stat. 155-156 (1857). Much earlier, however, state immu
. Murphy,
. In 1892, the Supreme Court struck down a federal testimonial immunity statute as failing to provide immunity as broad as the Self Incrimination Clause required and ruled that the Fifth Amendment required “transactional” immunity. Counselman v. Hitchcock,
. See e.g., 18 U.S.C. §§ 6002-6003.
. See e.g., Bowden v. State,
. Once the immunity agreement is consummated, all other prosecutorial entities — in Texas, the federal system, and other states— must abide by it, at least to the extent of use immunity. In Murphy v. Waterfront Comm’n,
. See United States v. Leyva,
In passing upon an immunity application, the [federal district] court is confined to an examination of the application and the documents accompanying it for the purpose only of deciding whether or not the application meets the procedural and substantive requirements of the authorizing statute.
The question before the trial court is not the wisdom of the agreement, but the clarity and completeness of its terms.
. See Robert M. Schoenhaus, Annotation, Prosecutor’s Power to Grant Prosecution Witness Immunity Prom Prosecution,
. See e.g., Hardin v. State,
If the State, through her officers, makes a solemn compact with her citizen, this contract should be enforced in the courts, in exact compliance with its terms. The agreement or contract (the defendant complying faithfully with his part) is in effect that the defendant should not be prosecuted. Upon what principle of justice is he driven from the court to his excellency the governor for an enforcement of this compact? We are of the opinion that common honesty and public justice demand that when such a contract is made and the party faithfully complies, as far as is within hispower, the court in which the breach is attempted should interpose and prevent the breach by enforcing the contract, and should not drive the party out of the court to seek relief elsewhere.
See also Carlisle v. State,
. See State v. Hanson,
. Doyle v. Hofstader,
. It is a well-settled principle of law that a party cannot invite error and then complain of it. Ex parte Guerrero,
Dissenting Opinion
filed a dissenting opinion in which KEASLER, and HERVEY, JJ., joined.
Appellant was indicted for capital murder. The State later moved for a dismissal of that indictment, and an order of dismissal was entered. Appellant was later indicted for murder. He filed with this Court a motion for leave to file an application for writ of mandamus, claiming that the prosecution violated an immunity agreement between appellant and the State. The trial judge filed a response. We denied appellant’s motion for leave to file. The prosecution proceeded, and now appellant claims, on appeal, that the prosecution should have been dismissed due to an immunity agreement.
The order dismissing the capital murder prosecution does not cite an immunity agreement, nor does that order provide that the dismissal be with 'prejudice. Moreover, the trial court’s response to appellant’s motion for leave to file a writ of mandamus shows the following facts: (1) the trial court was unaware that the dis
These facts raise the following questions: (1) can the State and the defendant, by agreement, turn a court-approved dismissal into a dismissal with prejudice when the trial court never intended that the dismissal be with prejudice, and (2) can the State and the defendant create an enforceable immunity agreement with a court-approved dismissal when the trial court is unaware of the existence of an immunity agreement at the time the dismissal occurs? I would answer both questions “no.”
The “with prejudice” aspect of a dismissal is not simply a term of an immunity agreement. “With prejudice” describes the legal ejfect of the type of dismissal granted; it is a particular form of relief. Dismissals “with prejudice” and dismissals “without prejudice” are different forms of relief. There are occasions in which a dismissal with prejudice is required by statute.
Moreover, the majority’s reasoning in the present case conflicts with our decision in Graham v. State.
Is this language in Graham just “loose language” that does not accurately or precisely state the law concerning immunity? On the contrary, the language is in fact an accurate reflection of Graham’s holding. Otherwise, the parties in Graham could have ratified the immunity agreement through a straw prosecution: Hardin County could have indicted the defendant, and the district attorney of Hardin County could have subsequently moved to dismiss the prosecution “in the interests of justice” — without ever telling the trial court that the real reason for dismissal was an immunity agreement. The trial court, being unaware of the immunity deal and having no reason to believe that the dismissal was with prejudice, might then approve the dismissal. I fail to see what relationship an immunity agreement would have with the institution and subsequent
The majority contends that the trial court need not be aware of the terms of an immunity agreement for such an agreement to be effective. Otherwise, the majority reasons, the courts would be placed in the position of duplicating the work of the district attorney and of having to supervise the performance of every witness under an immunity agreement. It may be true that the trial court need not be aware of the details of an immunity agreement. But, the trial court should at least be aware that an immunity agreement exists upon which dismissal is requested. Or, barring that, the trial court should at least be made aware that the dismissal is to be with prejudice.
And I would agree with the majority that an immunity agreement would not be invalidated simply because the court’s order contains no reference to the agreement or the words “with prejudice” are omitted. But, there should at least be evidence that the trial court knew the dismissal was to be with prejudice. The cases cited by the majority for the proposition that the written reasons requirement of Article 32.02 is “directory, not mandatory” do not hold that the trial court can be unaware of the true reasons for dismissal.
I respectfully dissent.
. See Texas Code of Criminal Procedure, Articles 28.061 (speedy trial) and 51.14 (Interstate Agreement on Detainers Act).
.
. Id. at 656.
. Id.
. Id.
. See id. at 657-658 (Johnson, J. concurring).
. See Ex Parte Rusk,
Concurrence Opinion
filed a concurring opinion.
The opinion of the Court cites to Graham v. State,