NO. 1862-98








Cochran, J., 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.


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 (1) and dismissal of the pending indictment against appellant. Appellant's attorney testified to the basic terms of the agreement: Appellant would give a full interview to the district attorney's office, answer any questions the prosecutors might have, and "if they determined that [appellant's] answers were truthful and if he would agree to testify against any of the other Defendant's [sic] in the cases arising out of Mr. Merriman's death, that they would dismiss the case against him and would not seek to prosecute him on any further cases out of, and resulting from, the death of Mr. Merriman." The former district attorney and the prosecutor who dealt most with appellant during the de-briefing period both testified at the hearing and they confirmed that this was the essence of their 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. (2) The district attorney explicitly testified that he eventually agreed to the dismissal because appellant "had complied with all the terms of the agreement I had with" appellant's attorney. The district attorney made that decision after consulting with the primary prosecutor and the investigators, and determining that appellant's statement was consistent with "every piece of evidence" and lead that had been investigated. It was the district attorney's understanding that, with the dismissal of the charges, "[t]here was no question that [appellant's attorney] understood that if [appellant] was willing to do this [i.e., give the videotaped statement, cooperate with the prosecution, and testify if requested at the co-defendants' trials], and we had entered into that agreement, that no charges would be brought up again."

The district attorney told appellant's attorney to draft a dismissal motion. Appellant's attorney did so. That dismissal motion, however, as drafted by appellant's attorney, said nothing about any immunity agreement. It merely recited that the charges were being dismissed "in the interests of justice and based upon the evidence." The trial court signed the dismissal motion. According to the district attorney, "I felt like the agreement was complete .... And once I signed the dismissal it was a done deal as far as I was concerned."

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. (3) He found evidence that he said contradicted appellant's statement concerning his lack of involvement in the offense. (4) Therefore, he filed murder charges against appellant. After the trial court denied appellant's Motion to Enforce Agreement with the Prosecutor, the case went to trial. Appellant was convicted of murder and sentenced to ten years in prison, probated, and a $10,000 fine.

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, 979 S.W.2d 379 (Tex. App. - Amarillo 1998). This Court granted review to decide whether an immunity agreement may be valid even if: 1) the dismissal order does not explicitly state that the indictment is dismissed "with prejudice"; or 2) the trial court is not aware of the specific terms of the agreement at the time he signs the dismissal order. (5)


Appellant has been tried and convicted of murder for want of a written record of the immunity agreement, (6) one duly signed by the district judge, that he and the former district attorney both agreed they made. The majority concludes that "it is the prosecutor who initiates a dismissal and sets the reasons for the dismissal, [thus] it is the prosecutor who is responsible for crafting the conditions of an immunity agreement." I agree wholeheartedly with this proposition. I respectfully disagree, however, with the subsequent proposition that "[p]rovided the judge approves the dismissal that results from an immunity agreement, the judge does not have to be aware of the specific terms of a fulfilled immunity agreement for it to be enforceable." This conclusion eviscerates the very rationale for requiring judicial knowledge and approval of immunity agreements.

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.


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." (7) This "power to compel testimony, and the corresponding duty to testify," are embedded in the Sixth Amendment. (8) "But the power to compel is not absolute," and is subject to "the Fifth Amendment privilege against compulsory self-incrimination." (9)

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. (10) The government may compel the witness to testify, but in return for his testimony, the State must offer immunity from prosecution or from any use of that evidence. (11)

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. (12)

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 (16) or, as in Texas, by case law. (17) This requirement serves several valuable purposes. It memorializes the existence and terms of any immunity agreement. It ensures that a legally enforceable agreement is set out, not only for the benefit of the contracting parties, but for any court, other prosecutorial agency, (18) and other defendants or prospective defendants. It ensures that the parties may measure performance against the explicit terms of the agreement. Most importantly for purposes of this appeal, it avoids later disputes over the existence and terms of the agreement when some of the parties change.

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. (19) It simply memorializes the exchange in which a defendant or prospective defendant gives up his Fifth Amendment right in return for immunity. Ideally, the trial judge should approve the immunity agreement before, and not after, the defendant speaks. The dismissal of charges or filing of the nolle prosequi is simply the final event in a transactional immunity agreement, the acknowledgment that both parties have fulfilled their obligations under the agreement. There is no required litany language for the dismissal form itself, and it need not contain the phrase "with prejudice," although there may be much benefit to its inclusion.

It is true that occasionally equity will enforce a promise not to prosecute which was made without the trial court's knowledge and approval. (20) In those cases, it is the simple notion of fairness-that a witness, having performed on his side, is entitled to specific performance from the prosecutor--that is appealed to. (21) Principles of fairness and public policy have also been used to enforce such a promise made by a district attorney on that district attorney's successor. (22)

Nevertheless, the general rule in Texas is that the courts must approve any formal grant of immunity. The reason behind the general rule was well stated by Judge Cardozo as he addressed a witness' refusal to testify despite the grant of a non-statutorily authorized promise of immunity:

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. (23)

Thus, by design, requiring the trial court to approve an immunity agreement protects the prospective witness' Fifth Amendment rights. He cannot be compelled to testify against himself unless the trial court has ordered him to speak under a grant of immunity. Then he cannot refuse.

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. (24) It was the prosecution's responsibility to obtain the trial court's consent for its immunity agreement, and the defendant should not now be forced to bear the burden of the State's inadvertent failure to follow the required procedure.

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.

Cochran, J.

Delivered: March 13, 2002


1. 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.

2. 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. ... [T]here 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."

3. 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.

4. 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.

5. This Court granted review of the following questions: