Sean Allen SMITH, Appellant, v. The STATE of Texas, 70 S.W.3d 848

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 codefend-ants. 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. 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. The authority to dismiss a case is governed by Texas Code of Criminal Procedure

article 32.02. A grant of immunity from prosecution is, conceptually, a prosecutorial promise to dismiss a case.

Article 32.02 directs that a dismissal made by the prosecutor must be approved by the trial court. Therefore, a District Attorney has no authority to grant immunity without court approval, for the approval of the court is “essential” to establish immunity. 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 82.02. This equitable doctrine arguably underlies the cases on which the appellant relies, Camron v. State and Ex parte Rusk. In Camron, this court equitably enforced an immunity agreement that did not have the court’s approval. We have recently held, however, that the doctrine of equitable immunity does not exist in Texas. We explained that the equitable rule used in Camron was abandoned seven years later, even though Camron was not expressly overruled. 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. 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.” 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.

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.” 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.

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, 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. 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, 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.” The “required thing” of

article 32.02 is that the prosecutor may dismiss a case for any reason that he or she deems sufficient subject only to the approval of the judge.

Therefore a fulfilled immunity agreement is not rendered invalid solely because the order of dismissal did not state the dismissal was “with prejudice.” 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 remedy for violations of these statutes is a bar on prosecution, and the statutory requirements reflect the statutorily mandated consequences. There is no similar, general requirement for other dismissals. Whether a prudent defendant should insist on the judgment of dismissal’s reciting its conclusiveness is another matter. In this case the appellant chose to accept the protection of the immunity agreement without the additional protection of a dismissal “with prejudice.” His tactical or other reasons for doing so, and those of the State, do not appear, and we are not called on to evaluate them.

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.” In 1876 the predecessor of

article 32.02,

article 577, modified the common-law rule that the prosecutor was the sole actor with the authority to dismiss a prosecution. The authority of the Attorney General over criminal cases had been delegated to diffuse district attorneys, and the legislature feared that without supervision this arrangement might lead to abuse. 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.” “The power of dealing with such agreements lies primarily with the prosecuting officer, and in Texas he may act with the consent of the court.” The prosecutor retained the power to assign the reasons that would justify a dismissal.

A statement of reasons must be given, but no particular reasons are necessary; the State may “assign any reason which the court may deem sufficient.” The degree to which a court requires knowledge of the reasons for dismissal to be written in the public records is a matter within the court’s discretion, which may vary according to the requirements the court deems proper to impose on a particular prosecutor in a particular case.

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; we described the nature of an immunity agreement with the State: 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. JOHNSON, J., filed a concurring opinion. COCHRAN, J., filed an opinion concurring in the judgment. KELLER, P.J., filed a dissenting opinion, in which KEASLER and HERVEY, JJ„ joined. . Smith v. State, 979 S.W.2d 379 (Tex.App.—Amarillo 1998). . See Graham v. State, 994 S.W.2d 651, 653-54 (Tex.Cr.App.1999) (citing Zani v. State, 701 S.W.2d 249, 253 (Tex.Cr.App.1985)). .

"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 articles refer to the Code of Criminal Procedure. . Graham, 994 S.W.2d at 654. . See Tex.Code Crim. Proc. art. 32.02, supra note 3. . Wechsler v. State, 172 Tex.Crim. 559, 564, 361 S.W.2d 379, 383 (1962); Carlisle v.

State, 138 Tex.Crim. 530, 532, 137 S.W.2d 782, 783 (1940). . Washburn v. State, 164 Tex.Crim. 448, 450, 299 S.W.2d 706, 707 (1956). . 32 Tex.Crim. 180, 22 S.W. 682 (1893). . 128 Tex.Crim. 135, 79 S.W.2d 865 (1935). . Camron, 32 Tex.Crim. at 180, 22 S.W. at 683. . See Graham, 994 S.W.2d at 656-57. . See id. at 656 (quoting Vincent v. State, 55 S.W. 819 (Tex.Cr.App.1900)). . Rusk, 128 Tex.Crim. at 137-38, 79 S.W.2d at 866. . Id. at 137, 79 S.W.2d at 866. . See Graham v. State, 994 S.W.2d 651, 654-56 (requiring only "the approval of the court”); Wechsler v.

State, 172 Tex.Crim. 559, 564, 361 S.W.2d 379, 383 (1962) (requiring only the "approval” of the trial court); Washburn v. State, 164 Tex.Crim. 448, 450, 299 S.W.2d 706, 707 (1956) (same); Carlisle v. State, 138 Tex.Crim. 530, 532, 137 S.W.2d 782, 783 (1940) (same); Henderson v. State, 103 Tex.Crim. 502, 504, 281 S.W. 557, 558 (1926) (requiring court to have "ratified” the agreement); Dollar v. State, 92 Tex.Crim. 254, 256, 242 S.W. 733, 734 (1922) (requiring the "sanction” of the court); Messenger v.

State, 81 Tex.Crim. 465, 467, 198 S.W. 330, 331 (1917) (holding that the court must have "sanctioned” the agreement and given its "agreement”); Ex parte Higgins, 71 Tex.Crim. 618, 619, 160 S.W. 696, 697 (1913) (inquiring whether the court had "sanctioned” and "approved” the agreement); Reagan v. State, 49 Tex.Crim. 443, 445, 93 S.W. 733, 734 (1906) (requiring only the "approval” of the court); Cox v. State, 69 S.W. 145, 147 (Tex.Cr.App.1902) (requiring the "consent” of the court); Ex parte Gibson, 42 Tex.Crim. 653, 654, 62 S.W. 755, 755 (1901) (same); Vincent v.

State, 55 S.W. 819, 820 (Tex.Cr.App.1900) (requiring the "approval” of the court); Nicks v. State, 40 Tex.Crim. 1, 4, 48 S.W. 186, 187 (1898) (requiring the "concurrence” and "consent” of the court). . Post at 850. . See supra at 851 (text accompanying notes 5-7). . See Graham, 994 S.W.2d at 654. . See Wallace v.

State, 145 Tex.Crim. 625, 630, 170 S.W.2d 762, 764 (1943); Ex parte Kinsey, 152 Tex.Crim. 425, 427, 214 S.W.2d 628, 629 (1948) (holding that an oral motion by the State setting out the reasons for dismissal is sufficient to comply with the statute). . “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, 71 Tex.Crim. at 619, 160 S.W. at 697. .

Rusk, 128 Tex.Crim. at 137, 79 S.W.2d at 866. . See post at 864-865. . See State v. Anderson, 119 Tex. 110, 115-19, 26 S.W.2d 174, 175-78 (1930) (detailing how firmly established at common law was the rule vesting the exclusive power in the prosecuting officer to dismiss a case). . Id. at 119-20, 26 S.W.2d at 178. . Id. at 120, 26 S.W.2d at 178. . Ibid., 26 S.W.2d at 178 (emphasis added). . Wallace, 145 Tex.Crim. at 629, 170 S.W.2d at 764. . Camron, 32 Tex.Crim. at 182, 22 S.W. at 682. . Rusk, 128 Tex.Crim. at 137, 79 S.W.2d at 866 (interpreting the predecessor of

article 32.02). . 41 Tex.Crim. 278, 281, 53 S.W. 1024, 1025 (1899). Accord. Higgins, 71 Tex.Crim. at 619, 160 S.W. at 697.