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 dismissal was the result of any agreement between the defendant and the State, (2) the trial court never intended for the prosecution to be dismissed with prejudice, (3) the State's reason for dismissing the case was "the interests of justice" and the trial court's order of dismissal reflected that reason and only that reason, and (4) the trial court believed that the State was moving for dismissal because it had insufficient evidence to warrant a prosecution against appellant.

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 effect 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.⁽¹⁾ It would be incongruous to hold that the State could effect a dismissal with prejudice by securing trial court approval of a dismissal without prejudice.

Moreover, the majority's reasoning in the present case conflicts with our decision in Graham v. State.⁽²⁾ In Graham, we unequivocally stated that the trial court must approve the immunity agreement: "The trial judge correctly held that without approval of the court the district attorney had no authority to grant immunity from prosecution."⁽³⁾ Several sentences later, we stated: "Because there was no judicial approval of the agreement in this case, the Hardin County prosecutor could not and did not bind his office to refrain from prosecuting [the defendant]."⁽⁴⁾ Two sentences later, we stated: "But even though a prosecutor's agreement to transactional immunity is not, absent court approval, binding...."⁽⁵⁾

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 dismissal of proceedings where the trial court believes the dismissal is without prejudice. The parties would have simply created a sham transaction designed to legitimize the immunity agreement -- with the trial court having no real involvement in approving the agreement. If such can be done, then Graham's holding makes no sense. If a trial court need not know that dismissal is based upon an immunity agreement (or at least that the dismissal is to be with prejudice), then why require trial court involvement in the absence of pending charges? Judge Johnson's approach in Graham⁽⁶⁾ would be far more sensible: the immunity agreement would simply be a contract between the parties; trial court participation would be required only to dispense with a pending prosecution. If a prosecutor's power to enter a transactional immunity agreement really does stem from his power to dismiss a case, and trial court approval is a limitation upon that power, then trial court approval can be effective only if the trial court is aware that the dismissal is based upon an immunity agreement.

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.⁽⁷⁾

I respectfully dissent.

KELLER, P.J.

DATE FILED: March 13, 2002

PUBLISH

1. See Texas Code of Criminal Procedure, Articles 28.061 (speedy trial) and 51.14 (Interstate Agreement on Detainers Act).

2. 994 S.W.2d 651 (Tex. Crim. App. 1999).

3. Id. at 656.

4. Id.

5. Id.

6. See id. at 657-658 (Johnson, J. concurring).

7. See Ex Parte Rusk, 79 S.W.2d 865, 866 (Tex. Crim. App. 1935)(State's reasons given orally); Wallace v. State, 170 S.W.2d 762, 765 (Tex. Crim. App. 1943)(State's written motion was not filed); Ex Parte Kinsey, 214 S.W.2d 628, 629 (Tex. Crim. App. 1948)(opinion on rehearing)(defendant complained about the lack of a written statement).