                          NO. 07-97-0070-CR

                       IN THE COURT OF APPEALS

                FOR THE SEVENTH DISTRICT OF TEXAS
                             AT AMARILLO

                                 PANEL D

                          SEPTEMBER 28, 1998

                    ______________________________


                     SEAN ALLEN SMITH, APPELLANT

                                   V.

                     THE STATE OF TEXAS, APPELLEE


                _________________________________

        FROM THE 251ST DISTRICT COURT OF RANDALL COUNTY;
         NO. 9444-C; HONORABLE PATRICK A. PIRTLE, JUDGE

                    _______________________________


Before BOYD, C.J., and QUINN and REAVIS, JJ.


     Contending the trial court erred in denying his motion to

enforce an   oral    agreement   with   the   former   prosecutor   not   to

prosecute, appellant Sean Allen Smith, appeals from a judgment

decreeing that he is guilty of committing the offense of murder.

After a jury finding of guilt, punishment was assessed by the jury

at ten years confinement in the Texas Department of Criminal

Justice-Institutional Division, probated and a fine of $10,000.00.

Based on the rationale expressed herein, we affirm the judgment.
     Smith, along with five other persons, was initially indicted

for the offense of capital murder of Hilton Raymond Merriman, Sr.,

on May 22, 1990, which was docketed under cause number 6988-C in
the 251st District Court of Randall County, herein referred to as

the “original proceeding.”       At that time, Randy Sherrod was the

Criminal District Attorney for Randall County and he served in that

capacity until January 1, 1995, when James Farren assumed the

duties of Criminal District Attorney.          Soon after his engagement,

defense counsel for Smith initiated contacts with the prosecutor’s

office and explored the possibilities of an immunity agreement for
Smith in exchange for Smith’s testimony at the trials of the other

co-defendants.     According     to       Smith,    his    trial      counsel    and

prosecuting attorneys entered into an oral agreement providing that
the original proceeding would be dismissed, with prejudice, and

that no new charges would be filed against Smith in exchange for

his testimony against his co-defendants.


     Pursuant to the asserted agreement, Smith gave the prosecutor

a video-taped statement of the events surrounding the death of Mr.

Merriman.1 Also, after Smith submitted to a polygraph examination,
and following numerous requests by Smith’s counsel, the prosecutor

indicated that he would not oppose a dismissal of the case and

instructed   defense   counsel   to   prepare       a     motion   and   order    of


     1
      The record does not contain a                copy    of   the   video-taped
statement nor a verbal transcription.

                                      2
dismissal of the original proceeding. Smith’s counsel prepared the

motion to dismiss and the order of dismissal, which were submitted

to the court.

                    MOTION TO DISMISS INDICTMENT
          Now comes the Defendant, SEAN ALLEN SMITH and files
     his Motion to Dismiss Indictment in this case and in
     support of this Motion shows as follows:

                                  I.

          In the interest of justice and based upon the
     evidence, the indictment pending against Sean Allen Smith
     should be dismissed.
                                  II.

          Jim B. Brown, attorney for SEAN ALLEN SMITH has
     conferred with the office of the Randall County Criminal
     District Attorney and the Randall County Criminal
     District Attorney’s office has no objection to the
     indictment being dismissed.

          WHEREFORE, Defendant prays this motion be granted.


                                        /s/ Jim B. Brown
                                            Attorney at Law



                ORDER ON MOTION TO DISMISS INDICTMENT

          On the 20th day of April, 1993, the Motion to
     Dismiss the Indictment pending against the Defendant,
     SEAN ALLEN SMITH, was presented to the Court.

          The Court finds that in the interest of justice and
     based upon the evidence, the motion should be granted.

          IT IS THEREFORE ORDERED that the indictment pending
     against the Defendant, SEAN ALLEN SMITH, in the above-
     entitled and numbered cause is hereby dismissed.

          DATED: April 20, 1993

                                   3
                                             /s/ Patrick A. Pirtle
                                                 JUDGE PRESIDING

The State did not join in the motion or approve the order of
dismissal in writing, however, when the motion was considered and

before the order of dismissal was signed, an assistant district

attorney verbally announced that the State “did not oppose” the

relief requested by Smith.        Obviously, from the Smith motion and

order of    dismissal,    Smith   did       not   request   that    the   original

proceeding be dismissed “with prejudice.”                   Although the Smith

motion and order of dismissal recite that they are based in part
“on the evidence,” the record herein does not contain a record of

the evidence presented to the trial court in support of the motion

and the basis for the order of dismissal.

     After James Farren took office as the Criminal District
Attorney on January 1, 1995, he conducted a review of the evidence

and investigation following the death of Mr. Merriman.                   Based upon
his review, he determined that grounds existed to again present the

matter to the grand jury, and on August 23, 1995, Smith was again

indicted for murder of Mr. Merriman, which was docketed as cause

number 9444-C in the 251st District Court.              Among other pre-trial

motions not relevant for these purposes, Smith filed his Amended

Motion to Enforce Agreement with Prosecutor which was heard on

September   17,   1996.      After      hearing      evidence      and    admitting

documentary evidence,      the trial court signed its order dated


                                        4
September 17, 1996, denying Smith’s motion to enforce the alleged

agreement with the prosecutor.   Following his plea of not guilty,

the jury found Smith guilty of murder and assessed his punishment
at ten years, probated and a $10,000.00 fine.


     Smith presents three issues by which he seeks a reversal and

rendition of his conviction.   By issue one, he contends the trial

court erred in refusing to enforce the non-prosecution agreement.

By his second issue, he asserts the trial court erred in finding

that the order of dismissal in the original proceeding was not with

prejudice, and by his third issue, he urges the trial court erred

in not finding as a matter of law that prosecution was barred as a
result of the agreement between Smith and the State.          Although

Smith presents the three issues in the same argument, we first

consider his second issue and then consider issues one and three
together.


     By issue two, Smith contends the trial court erred in finding

that the order of dismissal dated April 20, 1993, in the original

proceeding was not with prejudice.   We disagree.   Because    grounds

seeking a reversal cannot be raised for the first time on appeal,

except upon an allegation of jurisdictional error, Tex. R. App. P.

33.1; Caldwell v. State, 962 S.W.2d 706, 707 (Tex.App.--Fort Worth

1998, no pet.), we have reviewed Smith’s motion and the record to

determine if the issue was raised below. At the pre-trial hearing,



                                 5
Smith introduced his motion for dismissal and the April 20, 1993

order     into    evidence,        without       reservation       or    qualification.

Although his amended motion to enforce the alleged agreement states
the trial court “dismissed” the original proceeding, it does not

allege or assert that the original proceeding was dismissed “with

prejudice,” or that the April 20, 1993 order was incorrect or

incomplete because of fraud, accident, mistake or any other reason.

Accordingly, because the ground was not raised in the trial court,

issue two presents nothing for review.


        Moreover,    the       plain     provisions    of     a    written      order    are

controlling.        Flores v. State, 524 S.W.2d 71, 72 (Tex.Cr.App.
1975); Hubbard v. State, 896 S.W.2d 359, 361 (Tex.App.--Houston

[1st Dist.] 1995, no pet.).               Smith’s motion for dismissal did not

request that the case be dismissed “with prejudice” and the State’s
announcement      that        it   “did   not     oppose    the     relief      requested”

effectively limited its announcement to an ordinary dismissal, not

a dismissal “with prejudice.”                   Therefore, because the order of

dismissal    in     the       original    proceeding    did       not   state    that    the

dismissal was “with prejudice” it did not prevent the grand jury

from     returning        a    subsequent        indictment       charging      the     same

transaction.        Ex Parte Williams, 379 S.W.2d 911, 912 (Tex.Cr.App.

1964).     Issue number two is overruled.




                                             6
     Smith’s first and third issues assert trial court error in (1)

refusing to enforce the non-prosecution agreement, and (3) in not

finding as a matter of law that the prosecution of Smith was barred
by the agreement.    In response, among other contentions, the State

asserts that (1) Smith failed to establish the existence of a

mutual agreement and (2) the alleged agreement for immunity or not

to prosecute was not enforceable because the trial court did not

approve any such agreement.      Because we agree that the State’s

second contention is dispositive of this appeal, we will limit our

analysis to the essential element of trial court approval of the
alleged agreement.


     Agreements for immunity must be supported by the approval of

the trial court.    Washburn v. State, 164 Tex. Crim. 448, 299 S.W.2d

706, 707 (1956), citing former Tex. Code Crim. Proc. Ann. art. 577
current version at Tex. Code Crim. Proc. Ann. art. 32.02 (Vernon

1989).2   Even if an immunity agreement may be entirely oral, a

question we do not now decide, article 32.02 does provide that the

trial court may dismiss an action, upon the State’s “filing a

written statement with the papers in the case setting out his

reasons for such dismissal, which shall be incorporated into the

judgment of dismissal.”     In Zani v. State, 701 S.W.2d 249, 253




     2
      All references to articles are to the Texas Code of Criminal
Procedure Annotated (Vernon 1989).

                                   7
(Tex.Cr.App. 1985),3 the Court of Criminal Appeals again held that
a grant of immunity requires the “knowledge and consent of the

district judge” and that the rule is now “embodied” at article
32.02.   Zani is otherwise distinguishable from this case however,

because the immunity agreement in Zani was reduced to writing and

signed by the district attorney, Zani, five or six witnesses, and

the two district judges in the county, and the agreement was

entered into before Zani was indicted.


     Regarding the essential element of knowledge of the agreement

and approval or consent of the trial judge, in summary, this record

shows that (1) the State did not file a written statement of its
reasons for the dismissal as required by article 32.02, (2) the

Smith motion did not set out or otherwise inform the court of the

alleged agreement, (3) the record does not contain a record of the
“evidence,” if any, which was presented to the trial court in

support of the motion to dismiss, (4) Smith’s motion to enforce the

agreement   did   not   allege   that   the   trial   court   approved   the

agreement, (5) the order of dismissal did not recite that the court

approved the agreement, (6) the docket sheet in the original

proceeding did not make reference to any agreement or indicate that


     3
      The Court of Appeals opinion, Zani v. State, 657 S.W.2d 196,
198 (Tex.App.--San Antonio 1983), reflects that the immunity
agreement was (1) before indictment, (2) in written form, (3)
signed by the district attorney, (4) approved and accepted by the
two district judges in the county, and (5) was signed by Zani and
five or six witnesses.

                                    8
the court approved any agreement, and (7) the order of dismissal

did not contain the phrase “with prejudice” or other words or

phrases of similar import. Moreover, at the pre-trial hearing, the
following colloquy occurred between the trial judge and Smith’s

counsel:


      THE COURT: The Court dismissed the case upon the joint
      motion of the parties without knowledge of the agreement.
      MR. KELLY: I agree with that. The Court was not part of
      the bargaining process but the Court did . . . the Court
      approved, not necessarily the agreement entered into, but
      approved the dismissal of the case.

Because counsel’s candid statement to the trial court is clear,
definite and unambiguous on the issue of the court's knowledge and

approval of the agreement and is also consistent with the seven

other matters set forth above, it amounts to a judicial admission
and   constitutes   evidence   that       the   trial   court   did   not   have

knowledge of, and did not approve the asserted oral agreement.

Davidson v. State, 737 S.W.2d 942, 948 (Tex.App.--Amarillo 1987,
pet. ref'd).


       Under this record, whether Smith had the burden to establish
approval of the agreement by the trial court, or the State had the

burden to prove that the trial court did not approve the agreement,

need not be decided because the evidence established that the

alleged oral agreement for immunity was not approved by the trial

court as a matter of law.      Moreover, the evidence was undoubtedly


                                      9
sufficient to support an implied finding of fact, binding on this

Court, that the agreement was not approved upon the signing of the

order   of   dismissal,   which   did    not   contain   the   phrase   “with
prejudice” or other words of similar import.        Tex. Code Crim. Proc.

Ann. art. 27.04 (Vernon 1989); Simon v. State, 624 S.W.2d 411, 413

(Tex.App.--Dallas, 1981, pet. ref'd).           Issues one and three are

overruled.


     Accordingly, the judgment of the trial court is affirmed.



                                          Don H. Reavis
                                             Justice




Publish.




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