Zani v. State

• Decision Date: 11 December 1985
• Docket Number: No. 1001-83,1001-83
• Citation: 701 S.W.2d 249
• Parties: Irma Serrano ZANI, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 249

701 S.W.2d 249

Irma Serrano ZANI, Appellant, v. The STATE of Texas, Appellee.

No. 1001-83.

Court of Criminal Appeals of Texas En Banc.

Dec. 11, 1985.

David R. Weiner, Court Appointed on appeal only, San Antonio, for appellant.

Alger H. Kendall, Jr., Dist. Atty., Karnes City, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

W.C. DAVIS, Judge.

Appellant was convicted of murder in a bench trial and sentenced to thirty years incarceration at the Texas Department of Corrections.

The San Antonio Court of Appeals affirmed, concluding that sufficient evidence was adduced to show that appellant "directly" caused the death of Julius Alfred Dess and that, therefore, appellant was not entitled to immunity under an agreement given by the district attorney. Zani v. State, 657 S.W.2d 196 (Tex.App. San Antonio--1983).

We granted appellant's petition for discretionary review to determine what level of proof is necessary to defeat an immunity agreement and upon whom this burden is placed.

The record reflects that appellant and her husband, Robert Zani, posing as prospective real estate buyers, robbed and killed Julius Alfred Dess, a real estate agent. Dess, after being lured to the realty site, was shot three times in the head with a .25 caliber pistol. Three dollars and some credit cards were removed from his possession. Dess's body was buried in a shallow grave in Nueces County where appellant and her husband transported it after the shooting.

Shortly thereafter appellant and her children went to Acapulco, Mexico, where appellant's relatives resided. Appellant's husband was incarcerated and an investigation was begun into Dess's murder.

Learning of appellant's location several investigators went to Acapulco in order to interview her on May 15, 1980. Appellant readily implicated her husband in the killing but refused to return to Texas lest she be prosecuted.

One of the several officers present returned to Texas to have an immunity agreement prepared, which was signed by the district attorney and two district judges and airmailed back to Acapulco. Appellant assented to cooperate in accord with the agreement and returned to Texas with the officers on May 27, 1980.

The immunity agreement reads in relevant part:

I do hereby agree as District Attorney for the State of Texas for Atascosa County, Texas, to not seek an indictment and to not prosecute Irma Serrano Reyes de Zani if she did not directly cause the death of Julius Alfred Dess and she does the following:

1. Return to Texas.

2. Give a complete statement of the events of Julius Alfred Dess's death.

3. Cooperate with our investigators and all agencies investigating the death of Julius Alfred Dess.

4. Turn over all evidence, pieces of evidence and all information known to her about the death of Julius Alfred Dess.

Pursuant to the agreement appellant gave a statement on May 29, 1980, in which she implicated her husband as the sole participant in the actual killing of Dess. However, after failing a lie detector test, appellant admitted firing the third shot into the head of Dess at the insistance of her husband. This second statement, given June 4, 1980, included the following:

I gave a statement to Texas Ranger G.E. Powell on Thursday, May 29, 1980 about Robert Zani shooting Mr. Julius Alfred Dess. At that time I told Ranger Powell that Robert Zani was the only person who shot Mr. Dess. I now wish to correct that statement and say that everything I said in that statement is the truth except that I also shot Mr. Dess one time. Robert Zani was in the rear seat and he shot Mr. Dess two or three times. Robert Zani then gave me the pistol and told me to shoot Mr. Dess. I told him I think he is dead. Robert Zani said so what and put the gun in my hand. I closed my eyes and shot Mr. Dess one time.

Appellant was then arrested and charged with the murder of Dess.

Appellant, through her attorney, filed a "Motion to Dismiss Indictment" on grounds that appellant had immunity prior to trial and a a pre-trial hearing was held.

The only evidence presented by the State to show that appellant "directly" caused the death of Dess and was thus not entitled to immunity was appellant's second statement and the autopsy findings describing the condition of Dess's body after its recovery. ¹

Based on this evidence presented at the pre-trial hearing the trial court overruled the "Motion to Dismiss" the indictment and allowed the case to proceed to trial, concluding that "there is evidence from which it could be concluded that Ms. Zani directly caused or was one of the persons causing the death of Julius Dess."

During the trial the State presented additional evidence on the issue of whether or not appellant directly caused the death of Dess. Dr. Joseph C. Rupp, a forensic pathologist and the Nueces County Medical Examiner, testified extensively as to the three gunshot wounds found on Dess. Because of our disposition of the case this evidence need not be evaluated.

The trial court determined that the evidence presented at the pre-trial hearing, coupled with the trial evidence, was sufficient to show that appellant directly caused the death of Dess. Therefore, the immunity agreement was ineffective and the prosecution was not barred. Appellant was then convicted of murder.

Appellant contended on appeal that, due to the immunity agreement, she could not be prosecuted as a party to the offense, and since the State had not shown beyond a reasonable doubt which bullet or bullets "directly caused the death" of Mr. Dess, the evidence was insufficient to substain her conviction.

The Court of Appeals overruled her challenge holding that "[A]lthough this evidence [pre-trial], standing alone, might fall short of the legal mark of guilt beyond a reasonable doubt," the testimony of Dr. Rupp, elicited at the trial in chief, when added to the pretrial evidence was sufficient to sustain her conviction. Additionally, the Court of Appeals held the immunity agreement unenforceable because of appellant's misstatement of the facts made in her initial discussion with the police. Because the agreement was unenforceable the Court of Appeals held that she could be tried under the law of parties.

The power of a government to compel in court or grand jury testimony is firmly established in Anglo-American jurisprudence. This governmental power is coupled with a corresponding duty on the part of persons to testify. Both the government's power and the individual's duty are included in the Sixth Amendment requirements that an accused be confronted with the witnessess against him and have compulsory process for obtaining his own witnesses.

Among the necessary and most important 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 jurors or agencies. Murphy v. Waterfront Commission, 378 U.S. 52, 93-94, 84 S.Ct. 1594, 1611, 12 L.Ed.2d 678 (1964) (White, J., concurring).

However, limits on this governmental power also exist. The privilege against compulsory self-incrimination embodied in the Fifth Amendment is the most important and pervasive of these limits. This privilege can be asserted in any proceeding and protects against disclosures which the witness reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be so used. The United States Supreme Court has described the privilege and its importance in numerous cases. The most succinct discussion occurs in Murphy v. Waterfront Commission, supra, 378 U.S. at 55 84 S.Ct. at 1596:

The privilege against self incrimination 'registers an important advance in the development of our liberty--"one of the great landmarks in man's struggle to make himself civilized." ' Ullmann v. United States, 350 U.S. 422, 426, 76 S.Ct. 497, 500, 100 L.Ed. 511. It reflects many of our fundamental values and most noble aspirations: our unwillingness to subject those suspected of crime to the cruel trilemma of self-accusation, perjury or contempt; our preference for an accusatorial rather than an inquisitional system of criminal justice; our fear that self-incriminating statements will be elicited by inhumane treatment and abuses; our sense of fair play which dictates 'a fair state-individual balance by requiring the government to leave the individual alone until good cause is shown for disturbing him and by requiring the government in its contest with the individual to shoulder the entire load,' 8 Wigmore, Evidence (McNaughten rev., 1961), 317; our respect for the inviolability of the human personality and of the right of each individual 'to a private enclave where he may lead a private life,' United States v. Grunewald, 2 Cir., 233 F.2d 556, 581-582 (Frank J. dissenting), rev'd 353 U.S. 391, 77 S.Ct. 963, 1 L.Ed.2d 931; our distrust of self-deprecatory statements; and our realization that the privilege, while sometimes 'a shelter to the guilty,' is often 'a protection to the innocent.' Quinn v. United States, 349 U.S. 155, 162, 75 S.Ct. 668, 673, 99 L.Ed. 969.

Immunity statutes and agreements not to prosecute do not embrace these values. Instead they seek to strike a balance between the imperatives of the privilege and the legitimate demands of the government. The concept of immunity as a buffer between the overriding objectives is a practical recognition of the importance of required testimony and the reasonable belief that very often only those implicated in the crime have any useful knowlege of its particulars. Indeed, this Court has many times recognized this principle. In Camron v. State, 32 Tex.Cr.R. 180, 22 S.W. 682 (App.1893), this Court clearly embraced this notion of the necessity for immunity agreements.

From the earliest times it has been found necessary, for the detection and...