Smith v. State

• Decision Date: 13 March 2002
• Docket Number: No. 1862-98.,1862-98.
• Citation: 70 S.W.3d 848
• Court: Texas Court of Criminal Appeals
• Parties: Sean Allen SMITH, Appellant, v. The STATE of Texas.

70 S.W.3d 848

Sean Allen SMITH, Appellant, v. The STATE of Texas.

No. 1862-98.

Court of Criminal Appeals of Texas, En Banc.

March 13, 2002.

William E. Kelly, III, Canyon, for Appellant.

James A. Farren, District Attorney, Canyon, Matthew Paul, State's Attorney, Austin, for State.

Before the Court en banc.

WOMACK, J., delivered the opinion of the Court, in which MEYERS, PRICE, JOHNSON, and HOLCOMB, JJ., joined.

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, submitted to a polygraph examination, and offered testimony against his codefendants. Defense counsel drafted a motion to dismiss the charges against the appellant. At the hearing on the motion, Scott Morrison, an Assistant District Attorney, stated that the District Attorney's office joined the motion to dismiss. Based upon the joinder by the District Attorney, the trial court construed the motion to dismiss as a motion of the State and adopted the language of the defense in its dismissal order, stating "the Court finds that in the interests of justice and based upon the evidence, the motion should be granted." The charges against the appellant were dropped for over two years until a new District Attorney, James Farren, was elected and took office. After a review of the case, the new District Attorney decided to reopen the case against the appellant. The appellant filed an Amended Motion to Enforce the Agreement with the Prosecutor, which the trial court denied. After a trial in which the appellant pleaded not guilty, the jury assessed punishment at ten years, probated, and a $10,000 fine.

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.¹ We granted discretionary review to address the issue of what is demanded by the requirement that the trial court "approve" an immunity 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.² The authority to dismiss a case is governed by Texas Code of Criminal Procedure article 32.02.³ A grant of immunity from prosecution is, conceptually, a prosecutorial promise to dismiss a case.⁴ Article 32.02 directs that a dismissal made by the prosecutor must be approved by the trial court.⁵ Therefore, a District Attorney has no authority to grant immunity without court approval,⁶ for the approval of the court is "essential" to establish immunity.⁷ In the appellant's case, the trial court approved the dismissal order, but did not signify that it approved the immunity agreement separately from its approval of the dismissal.

The appellant claims that the immunity agreement should be enforced under an equitable doctrine of substantial compliance with article 32.02. This equitable doctrine arguably underlies the cases on which the appellant relies, Camron v. State⁸ and Ex parte Rusk.⁹ In Camron, this court equitably enforced an immunity agreement that did not have the court's approval.¹⁰ We have recently held, however, that the doctrine of equitable immunity does not exist in Texas.¹¹ We explained that the equitable rule used in Camron was abandoned seven years later, even though Camron was not expressly overruled.¹²

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.¹³ Rusk does not support the appellant's argument. The Court in Rusk did not sanction an equitable enforcement of an immunity agreement, but instead ordered the release of the defendant pursuant to a dismissal that the Court found substantially complied with the requirements of the statute. Nor did the Court attempt to find substantial compliance with the statute when the trial court did not approve of the dismissal, for it held, "It is manifest from a reading of the statute that the district attorney could not dismiss a case without the permission of the court."¹⁴

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 on the knowledge of an immunity agreement that a court might need to approve the agreement.¹⁵

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."¹⁶ With respect, we must point out the difference between Graham and this case. There was no dismissal in Graham. Graham was trying to enforce an immunity agreement that the trial court had not approved. We held that, because an immunity agreement is conceptually like a dismissal, it required judicial approval.¹⁷ We did not say, nor were we called on to consider, whether the trial court must know and approve of the terms of the agreement. Graham did nothing more than make clear that the same requirement of approval that applies to a dismissal also applies to an immunity agreement that is made without any charges having been filed.

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,¹⁸ and the mandatory nature of that requirement is reflected in the text of Article 32.02. The second sentence of the statute repeats the requirement of judicial approval to the exclusion of the other requirements of the first sentence: "No case shall be dismissed without the consent of the presiding judge."

But the statement of reasons required by article 32.02 has been interpreted much differently than the requirement of judicial approval.¹⁹ We have held that the requirement of the statute to set out in writing the reasons for a dismissal is "directory" and not "mandatory," and substantial compliance therewith is sufficient. This is the reason why the dissent is incorrect when it assumes that Article 32.02 requires that a trial court know the reasons for dismissal to any particular degree.

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,²⁰ it is not "the essence of the thing to be done, but [is] prescribed with a view of orderly conduct, the omission of which or if done in some other manner, would not prejudice the rights of any party."²¹ The "required thing" of article 32.02 is that the prosecutor may dismiss ...