                                      NO. 07-97-0070-CR

                                 IN THE COURT OF APPEALS

                          FOR THE SEVENTH DISTRICT OF TEXAS

                                         AT AMARILLO

                                           PANEL D

                                         JULY 2, 2002

                             ______________________________

                              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

                            _______________________________


               ON REMAND FROM THE COURT OF CRIMINAL APPEALS


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


       In our previous opinion, we affirmed the murder conviction of appellant Sean Allen

Smith. Smith v. State, 979 S.W .2d 379 (Tex.App.--Amarillo 1998). Appellant presented the

following issues on direct appeal: (1) the trial court erred in refusing to enforce a non-

prosecution agreement entered into between himself and the prosecutor; (2) the trial court

erred in finding that the order of dismissal was not with prejudice; and (3) the trial court erred
in not finding as a matter of law that his prosecution was barred as a result of the agreement

entered into between him and the State. After granting appellant’s petition for discretionary

review to address the issue of what is demanded by the requirement that the trial court

“approve” an immunity agreement, on March 13, 2002, the Court of Criminal Appeals held

that the order of dismissal was not rendered unenforceable solely because it did not recite

that it was “with prejudice,” and article 32.02 of the Texas Code of Criminal Procedure

Annotated (Vernon 1989) does not require that the trial judge be aware of the specific terms

of an immunity agreement for it to be enforceable. See Smith v. State, 70 S.W.3d 848, 853,

855 (Tex.Cr.App. 2002). The Court reversed our judgment and remanded the cause for us

to consider the following issues:     (1) the existence of, and (2) performance under, the

immunity agreement. Id. at 855. Our analysis of these two issues will also require us to

determine whether the procedure and burden of proof allocation set out in Zani v. State, 701

S.W .2d 249, 254 (Tex.Cr.App. 1985) is controlling.1 As an intermediate appellate court, we

limit our review to these two issues and follow the interpretation of the law by the Court of

Criminal Appeals. Based upon the rationale expressed herein, we reverse the judgment of

conviction and render the judgment the trial court should have rendered. Tex. R. App. P.

43.2(c). The procedural and factual history of the underlying proceeding is discussed in the




       1
         In our prior opinion, we distinguished Zani noting that the district judges who approved
the written immunity agreement were aware of its specific terms. Smith, 979 S.W.2d at 382.
Now, because the Court of Criminal Appeals has held that under article 32.02 knowledge of
the specific terms of the agreement is not essential for it to be enforceable, the factual
distinctions we suggested in our first opinion do not render Zani inapplicable.

                                               2
two published opinions cited above.       Thus, our review of the facts is limited to those

necessary to disposition of the issues the Court has directed us to consider.


       On May 20, 1990, appellant and five other persons were indicted for the capital murder

of Hilton Raymond Merriman, Sr. Concerning appellant, the proceeding was dismissed on

April 20, 1993, pursuant to an immunity agreement between himself and the then District

Attorney, Randall Sherrod. After newly elected District Attorney James Farren took office on

January 1, 1995, he conducted further investigation and obtained a second indictment against

appellant on August 23, 1995. Based on the immunity agreement with the former prosecutor,

appellant filed an amended motion to enforce the agreement on September 12, 1996. At a

pretrial hearing held on September 17, 1996, appellant presented testimony from his former

attorney, the former prosecutor, a former assistant district attorney, and a special prosecutor

in charge of prosecuting a co-defendant. The State, however, did not file any written

response to appellant’s motion nor present any witnesses or evidence at the pretrial hearing.


       By his opening remarks, defense counsel stated appellant’s version of the agreement

and summarized the evidence in support thereof. Then, without outlining the State’s version

of the agreement, among other things, counsel for the State requested:2


       the Court to consider reserving a decision until the State rests in the trial. At
       that time, the Court will have heard all of the State’s evidence in its case-in-
       chief and will be in a much better position to make a decision about whether or


       2
        From our review of the record, it does not appear that the trial court made a ruling on
the State’s request.

                                              3
       not the evidence indicates that Sean Smith deceived the State in entering into
       this agreement. If the State fails to do that, then the Court can rule on the
       Defense motion at that time.


After appellant examined his four witnesses and rested, counsel for the State announced:


       W e have nothing, Your Honor, other than cross-examination.


Upon completion of defense counsel’s argument, counsel for the State argued and again

requested that it be allowed to present evidence at trial that appellant breached the

agreement. Defense counsel argued in response to the State’s argument as follows:


       Mr. Farren did not put on any evidence today to–through the witness stand,
       that Mr. Smith had lied or that he has additional evidence to show that there
       was fraud in the inducement and this agreement being entered.


The trial court interrupted defense counsel and announced:3


       THE COURT: Let me stop you. I intentionally stopped Mr. Farren from doing
       that because I do not want to try this case today, only to have to try it to a jury
       later. If that is a bone of contention, I mean, we can cross that bridge. But, I
       just want the record to reflect that I stopped Mr. Farren from presenting such
       testimony as being cumulative and unnecessary and needless consumption of
       the Court’s time.




       3
       The record does not show what was before the trial court when it prohibited the State
from presenting testimony.

                                               4
Then, when argument was completed, without a motion by the State and notwithstanding the

State’s two requests that it be allowed to present its evidence during trial, the trial court

announced:


       Counsel, the Court having considered the evidence and arguments of Counsel,
       finds that the dismissal in this cause was not with prejudice, but was merely in
       the interest of justice. In the interest of justice, the Court finds that the
       Defendant’s Motion to Enforce the Plea Bargain Agreement is not well taken
       and will deny that motion. . . .


       The State claims the trial court denied the motion because (1) there was no agreement

because there was never a meeting of the minds as to its terms, (2) if there was an

agreement, its terms were not binding upon the trial court because it never approved the

agreement,4 and (3) the dismissal in question was without prejudice. However, the State’s

reference to the record does not support alleged findings (1) and (2). The trial court’s order

denying appellant’s motion on September 17, 1996, did not state any grounds or reasons

therefor and was signed by the trial court without the presentation of any evidence by the

State as to the terms of its version of the agreement or appellant’s alleged non-performance

of the agreement.5


       4
       According to Zani, the terms of an agreement are bargained for by the State and thus,
the question to be determined is whether the State, not the court, is bound by the contract.
701 S.W.2d at 254-55.
       5
          This the 17th day of September, 1996, the foregoing Defendant’s Amended Motion
to Enforce Agreement with Prosecutor having been presented to and considered by the
Court, it is the opinion of the Court that said Motion should be Denied.
           It is THEREFORE ORDERED that said Motion to Enforce Agreement with
Prosecutor be DENIED.

                                              5
       By his petition for discretionary review, appellant inquired (1) 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,” and (2) whether, after 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. 6 Before we commence our analysis of the two

issues we have been directed to review, we first consider the appropriate procedure for

enforcing an immunity agreement.


                     Procedure for Enforcing Immunity Agreement
                                        Zani v. State


       In Zani, the Court announced the level of proof required for enforcing an immunity

agreement and upon whom the burden of meeting that level of proof must be placed. After

discussing various policy concerns, the Court held:


       In the instant case, the trial court properly conducted a pre-trial hearing on the
       validity of the immunity agreement in order to determine the right of the State
       to prosecute. Thus, the State, in seeking to defeat the immunity agreement,
       is limited to this evidence presented prior to the actual trial.

                                             ***




       6
        According to the opinion of the Court of Criminal Appeals, the State neither responded
to the petition nor cross-petitioned and the State’s argument that appellant violated the
immunity agreement would not be considered for the first time on discretionary review.

                                               6
       However, we must remember that important rights are relinquished by the
       informant and in many instances, as here, without the immunity agreement and
       subsequent testimony no evidence would exist upon which to convict the co-
       defendant. If we are to keep this effective, if not attractive, criminal
       investigatory tool viable we must make certain that its terms are strictly
       enforced.

(Emphasis added).

       In sum, there will be no trial if the immunity agreement is valid. Thus, the
       determination of whether the agreement is valid cannot be left for the trial itself.
       If the agreement is to mean anything such an issue must be conclusively
       decided prior to trial.

Zani, 701 S.W.2d at 254.


       Following this holding, the Court announced the procedure and allocated the burden

of proof of the defendant and the State to be utilized in the pretrial determination of the

existence and enforceability of an immunity agreement. At a pretrial hearing:


       C       the initial burden is on the defendant to show the existence of an
               agreement by a preponderance of the evidence;
       •       if the defendant meets his initial burden, then the burden shifts to the
               State to show beyond a reasonable doubt why the agreement is invalid
               or why prosecution should be allowed despite the agreement; and
       •       in seeking to defeat the immunity agreement, the State is limited to the
               evidence presented before the actual trial.


       Appellant’s version of the agreement set out in his motion and the State’s version set

out in its brief differed in minor respects as follows:




                                                7
     Appellant’s Version Per Motion                                    State’s Version Per Page 2
                                                                          of State’s Brief Filed
                                                                                 6/11/98
A. Sean Allen Smith agreed to provide a video-
taped statement of the events surrounding the                A. Bro wn [defense counsel] and the Ra ndall
death of Mr. Merrim an and answ er all of the                County Criminal District Attorney’s office began
prosec utor’s que stions to the be st of his ability.        negotiations which re sulted in an agreement
                                                             between the pro sec ution and appellant.

B. T h e D istrict Attorney and his ag ents had to           B. Appellant agreed to give the Crim inal District
believe that the Defendant was providing truthful            Attorney’s office a truth ful and com plete statement
inform ation to the be st of his ability.                    of the events surrounding the death of Merrim an
                                                             (including app ellant’s own involvem ent in these
                                                             events) an d to testify at the co -defend ants’ trials.
C. Sean Allen Sm ith would be available to testify at
any of the trials of the other defendants and would          C. In return, the State agreed to dism iss the
so testify if requested to do so.                            pending Capital Murder indictment un der C ause
                                                             No. 6988-C.

D. The District Attorney of Randa ll County, Texas,          D. This oral agreement, however, was never put in
Rand all Sherrod, agreed, in exchange, that the              writing.
capital m urder indictment pending against Sean
Allen Sm ith would be dism issed with prejudice and
that no other prose cution wo uld be broug ht aga inst
Sean Allen Sm ith as a result of the inc iden ts
surrounding the death of Mr. Merrim an.



         By his amended motion, appellant alleged that he had performed the agreement.

Among other things, he alleged that he gave a video-taped statement on June 28, 1992,

before an assistant district attorney and two other members of the prosecutor’s staff, and the

indictment was dismissed on April 20, 1993. He further asserted that although a special

prosecutor made plans to call him as a witness in the prosecution of a co-defendant, and he

was available to provide testimony, the special prosecutor decided not to call him as a

witness. Although not mentioned in appellant’s motion, the State admitted that the former

prosecution team required him to submit to a polygraph examination; however, the State

claimed that the test results were inconclusive.


                                                         8
                            Existence of Immunity Agreement7


       W e begin our review of this issue by focusing on the proceedings following completion

of appellant’s evidence and the State’s announcement that, “We have nothing, Your Honor,

other than cross-examination.” The State did not move that appellant’s motion be denied

because he had not satisfied his burden of proof. Instead, the State argued:


       we are prepared to present, in spite of the incredible evidence heard in this
       hearing, that the Defendant lied with impunity throughout the video tape .
       . . . The physical evidence we believe at the trial will prove this beyond a
       reasonable doubt.


(Emphasis added). In summation, contrary to the procedure prescribed in Zani, counsel for

the State requested:


       Your Honor, we would ask the State be allowed to present the evidence at trial,
       and once the Court has heard all of that evidence, make a determination about
       whether or not the Defendant breached the contract and therefore it was not
       blinding [sic] on it [sic] state.


(Emphasis added). By these requests, the State conceded (1) the existence of a contract,

(2) acknowledged its burden of proof to show a breach of the contract beyond a reasonable

doubt, but (3) contrary to Zani, requested that it be allowed to present its evidence at trial that

appellant breached the agreement.




       7
         In our analysis of this issue, we consider only the evidence that was presented at the
pretrial hearing. Zani, 701 S.W.2d at 254.

                                                9
        Further, although we do not generally refer to the law of contracts in reviewing criminal

appeals, because an agreement is a contract, our analysis must be based on contract law.

See Tex. Code Crim. Proc. Ann. art. 1.27 (Vernon 1977). 8 Moreover, references to contract

law are not foreign in criminal proceedings. See generally, Speth v. State, 6 S.W.3d 530, 533

(Tex.Cr.App. 1999), cert. denied, 529 U.S. 1088, 120 S.Ct. 1720, 146 L.Ed.2d 642 (2000)

(referencing contract law where probation was granted).


        Although the State disagrees with appellant’s version of the terms of the agreement,

it admits that the former prosecutor and appellant’s former attorney entered into an

agreement. Considering the law of contracts discussed below, because the testimony of

former District Attorney Sherrod includes a summation of the agreement and its performance,

we need not burden this opinion with a review of the evidence provided by the other defense

witnesses. During his testimony on direct examination former District Attorney Sherrod

testified in part:


              Q. Were you aware that part of the agreement was that Sean Smith
        would give a video-taped statement to your office?

                A. Evidently, that’s what we decided to do. I don’t remember whether
        I talked to Mike Coy or John Davis, but we felt that we needed to at least see
        what his testimony would be and to pin him down on what the specific facts
        were that he could testify to. So, evidently, did occur, yes, sir.

                Q. As far as you are aware, has Sean Smith also been available to
        testify against any of the other Co-Defendants who were indicted?


        8
        Article 1.27 provides: “If this Code fails to provide a rule of procedure in any particular
state of case which may arise, the rule of the common law shall be applied and govern.”

                                                10
             A. Yes.

            Q. Was part of the determination or part of the agreement a
      determination to be made by your office as to whether or not that Sean Smith
      was being truthful in terms of his involvement with the Merriman situation?

             A. Yes, sir. The dilemma we were in–and it was the situation where Mr.
      Brown was not going to leave this offer open forever–we had to make a
      decision on whether we were going to use him or not. . . . [A]nd we stressed
      to Jim that we expected his client to be truthful, but the important part,
      regardless of whether his client said what he was telling was the truth or not
      was how consistent what he testified to was with the evidence that we had in
      the case.
             Q. Did you eventually agree to the motion that was filed to dismiss the
      indictment? Did you eventually agree that–to the motion and the subsequent
      order of dismissal?

             A. Yes.


Then, on cross-examination, Sherrod summed up his testimony as follows:


              Q. The agreement was complete, but it wasn’t complete if he didn’t
      testify?
             A. I felt like the agreement was complete when those three cases were
      disposed of. I made the decision that he would not be needed in those other
      cases. That was my decision. And once I signed that dismissal it was a done
      deal as far as I was concerned.


(Emphasis added).


       The State does not contend that the immunity agreement had to be in writing, and

indeed, no statute or case imposes such a requirement. W here the parties expressly state

the terms of an agreement, they create an express contract and are bound by it to the

exclusion of conflicting implied terms. Haws & Garrett G. Con., Inc. v. Gorbett Bros. Weld.


                                            11
Co., 480 S.W.2d 607, 609 (Tex. 1972); W oodard v. Southwest States, Inc., 384 S.W.2d 674,

675 (Tex. 1964). However, a contract may also be implied. In Emmer v. Phillips Petroleum

Co., 668 S.W .2d 487, 490 (Tex.App.–Amarillo 1984, no writ), we held:


        [t]he absence of an express contract does not, however, foreclose the
        possibility of a contractual relationship, because the parties may, by their acts
        and conduct, create an implied contract.


As explained in Emm er, the promise is implied by law to avoid injustice and the law finds a

mutual intent to contract from the facts and circumstances of the case. Id. Considering that

the State admits the existence of an immunity agreement, the testimony of former District

Attorney Sherrod, and other evidence, even if insufficient to establish the existence of an

express contract, is sufficient to support a contract implied in fact from the facts and

circumstances of the case. Emm er, 668 S.W.2d at 490.


                      Performance Under The Immunity Agreement


         The State had the burden to show beyond a reasonable doubt at the pretrial hearing

that the agreement was invalid or that prosecution should be allowed despite the agreement;

however, notwithstanding its burden of proof, the State did not present any evidence during

the pretrial hearing. Accordingly, the testimony offered by former District Attorney Sherrod

that:


        I felt like the agreement was complete when those three cases were disposed
        of. I made the decision that he would not be needed in those other cases.


                                               12
       That was my decision. And once I signed that dismissal it was a done deal as
       far as I was concerned


established that appellant performed pursuant to the immunity agreement.             (Emphasis

added). Without citing any authority applicable to the procedural situation presented herein,

the State suggests that we should consider the evidence introduced at trial. Applying Zani,

we disagree. Zani expressly holds:


       [t]hus, the determination of whether the agreement is valid cannot be left for
       the trial itself. If the agreement is to mean anything, such an issue must be
       conclusively decided prior to trial.


(Emphasis added). Further, because the trial court denied appellant’s motion before hearing

any evidence from the State, its order denying appellant’s motion was not based on the

State’s evidence at trial.


        Moreover, although appellant’s counsel contended that the State had not presented

any evidence, notwithstanding the court’s comment that it prohibited the State from

introducing evidence, the State:


       •       was a moving factor creating and inviting the error by requesting to
               introduce evidence during trial; Ex parte Guerrero, 521 S.W .2d 613, 614
               (Tex.Cr.App. 1975); Capistran v. State, 759 S.W.2d 121, 124
               (Tex.Cr.App. 1982); see State v. Manning, 833 S.W.2d 322, 323
               (Tex.App.--W aco 1992, no pet.) (holding that the doctrine of invited
               error should apply to the State);

       •       did not withdraw it’s request to introduce its evidence at trial or move to
               re-open the evidence before the trial court denied appellant’s motion;


                                               13
               State v. Rodriguez, 11 S.W .3d 314, 323 (Tex.App.--Eastland 1999, no
               pet.);

       •       did not object to the order of the hearing announced by the trial court 9
               that it had prohibited it from presenting any evidence at the pretrial
               hearing and did not inform the court of the procedure announced in Zani
               that all of the evidence must be heard at a pretrial hearing; and

       •       did not preserve error by objecting to the trial court’s prohibition on the
               introduction of evidence and presenting a bill of exception. Tex. R. App.
               P. 33.1 (a) and 33.2.



A review of the pretrial evidence demonstrates that the State did not offer any evidence to

show that appellant did not perform the agreement; it does show that the former prosecutor

“felt like the agreement was complete” and that it was “a done deal” when he authorized the

dismissal of the case.


       W e have not overlooked the State’s contention that we should defer to the trial court’s

determination of historical fact that no immunity agreement existed; however, the State does

not cite any authority applying that rule to pretrial hearings to determine the existence and

enforceability of immunity agreements and the Zani Court did not extend such deference. W e

are also aware that at the time the trial court ruled on appellant’s motion, the Court of Criminal

Appeals had not yet announced that the prosecutor “is responsible for crafting the conditions

of an immunity agreement” and “is in the best position to evaluate performance before and

after a dismissal.” Smith, 70 S.W .3d at 855. Further, the State’s contention is based on


       9
         The record does not reflect what evidence the State proposed to introduce which the
trial court ”stopped Mr. Farren from doing.”

                                               14
materials from another proceeding which were not introduced into evidence at the trial court

level and although they are contained in the clerk’s record, cannot be considered on appeal.

Chambers v. State, 149 Tex. Crim. 400, 194 S.W .2d 774, 775 (1946); W ebber v. State, 21

S.W .2d 726, 731 (Tex.App.--Austin 2000, pet. ref’d).


       In light of the following: (1) the Court’s announc ement in Smith that a prosecutor is

responsible for drafting immunity agreements and evaluating performance thereunder, (2)

Zani’s requirement that immunity agreements be strictly enforced and the proper procedure

for doing so, (3) the State’s announcement at the pretrial hearing that,“[w]e have nothing,

Your Honor, other than cross-examination,” and (4) the evidence presented by appellant at

the pretrial hearing, we hold that no rational trier of fact could have found that an immunity

agreement did not exist and that appellant did not perform pursuant to that agreement. Thus,

we conclude the agreement was enforceable. Accordingly, appellant’s first and third issues

are sustained and our consideration of issue two is pretermitted.


       Accordingly, based upon our analysis of the two issues we were directed to consider

upon remand by the Court of Criminal Appeals, the judgment of the trial court is reversed and

a judgment of acquittal is hereby rendered.




                                           Don H. Reavis
                                             Justice



                                              15
Publish.




           16
