Charles County v. State

OPINION ON APPELLANT’S MOTION FOR REHEARING

MILLER, Judge.

A jury convicted appellant of capital murder and sentenced him to death. The conviction was affirmed. County v. State, 812 S.W.2d 303 (Tex.Cr.App.1989).¹ Appellant filed a motion for rehearing. He included in his first ground for rehearing a request that the appeal be abated and the case remanded to the trial court to correct various alleged inaccuracies in the statement of facts, which we granted. The trial court held a hearing and the transcription was filed in this Court. We then granted rehearing on appellant’s grounds numbered 2, 4, and 5, and will now reverse.

At trial, appellant moved to quash the indictment because the capital murder prosecution was barred. Appellant contended that he had an agreement with the prosecutor that appellant would be made available to the State without his attorney being present to give information concerning two unindicted co-defendants in exchange for the State’s promise that he would not be tried for capital murder and that any evidence obtained from him would not be used against him at his trial. Appellant claimed on appeal that the trial court erred in overruling his motion to quash in derogation of his rights under the United States and Texas Constitutions.²

On original submission, this Court observed that the only issue was whether appellant sufficiently proved that non-capital prosecution was an element of the agreement. We held that the trial court implicitly found that the agreement did not include such a term when it overruled appellant’s motion to quash. Since the record supported a finding that there was no agreement barring capital murder prosecution, we overruled appellant’s points of error.

After this Court abated the appeal and remanded for a hearing on whether there were inaccuracies in the record, the trial judge, Hon. Pat Priest, indicated that part of the record was inaccurate. The corrections are as follows [the overstruck words were improperly transcribed and the material in brackets should be substituted]³:

Also [And so], what you say [said] cannot be used against you in it [this]. Clearly[,] in the interest of fairness, although it was not done by a judged,] And [any] prosecutor after [can make] no good faith use of ¾[.] I don’t think that the State should be able to use anything which they developed [obtain] from your client, against your client in the prosecution for murder. But where I run into the real problem is on the specific premises [performance of a promise] of a prosecutor to reduce the charges. The [It] does seem fair that it be enforced, yet[,] I am not aware of a single case where this kind of issue has come up. And the courts have-in-fact in the-past have [haven’t fashioned] a remedyT we [they] are going to impose upon the [a] prosecutor to let him have it.

Judge Priest also stated that he would have added the following to the record:

The reference to “letting him have it” at the end of what I just said, in my opinion, was intended by me to be saying, “to let the defendant” — that was the antecedent for the pronoun “him.” “Have specific performance,” which I believed to be the antecedent for the — I guess that’s a pronoun too, isn’t it, “it.”

So, in other words, I was stating that it— in fact, I did indeed find that Mr. County was told that he would not be prosecuted for capital murder, and I couldn’t, frankly, fathom any reason under the sun why Mr. Butts would have given Mr. Cona-way carte blanche with his client with any understanding short of that; and I do not believe, in fact that he did. I think that was the understanding, and so I intended to explicitly find exactly the opposite of what the Court of Criminal Appeals found that I implicitly found. Finally, it was just my feeling that as a trial judge I had no authority to grant specific performance of a prosecutor’s promise not to prosecute the capital murder, but that was a matter ... if that relief was available, it was the kind of thing that, particularly in that day, when the prosecutor had no right of an appeal of any kind, should be addressed by an appellate court and not a trial judge.

The first issue to address on rehearing is whether this Court may consider all of the information presented after the remand. The transcription contains two sets of changes. First, errors in the transcription are corrected. Second, Judge Priest adds additional information and explains what he did, or intended to do, at trial. This Court’s remand order directed the trial court to correct alleged inaccuracies pursuant to Tex.R.App.Pro. 55(a), to-wit:

Any inaccuracies may be corrected by agreement of the parties; should any dispute arise, after filing in the appellate court as to whether the statement of facts accurately discloses what occurred in the trial court, the appellate court shall submit the matter to the trial court, which shall, after notice to the parties and hearing, settle the dispute and make the statement of facts conform to what occurred in the trial court.

(emphasis added). Judge Priest’s corrections and additional explanatory statements are encompassed under Rule 55(a) as requested by our order to Judge Priest.⁴ Thus, we find the corrections and additions made by Judge Priest are cognizable with regard to the issues raised on rehearing.

We must now decide whether the trial judge had the authority to quash the indictment on appellant’s claim that there was an agreement not to prosecute him for capital murder. In Zani v. State, 701 S.W.2d 249, 253 (Tex.Cr.App.1985), this Court stated:

Initially we emphasize that the method used by the appellant in the instant case to challenge the prosecution on the basis of the immunity grant was entirely correct. Since immunity agreements seek not only to avoid convictions but to avoid prosecutions as well, it is necessary to challenge indictments in such a way as to avoid the trial itself. A Motion to Dismiss the Indictment due to a grant of immunity is such a means of challenging a prosecution prior to trial.

Thus, appellant properly filed a pre-trial motion to quash the indictment to challenge the prosecution and the trial judge had the authority to grant that motion on a finding that an enforceable agreement not to prosecute existed.

Next, we must determine whether the trial court should have granted the motion to quash. The supplemental information shows that Judge Priest believed that there was an agreement not to prosecute. Implicitly, had the judge known that he had the authority to grant the motion, he probably would have done so. We therefore hold that the motion to quash should have been granted.

Since under the terms of the agreement appellant would not be prosecuted for capital murder, harm is apparent and violation of the agreement constitutes reversible error. Appellant’s grounds for rehearing are granted. The judgment of the trial court is reversed and the case is remanded.

CLINTON and OVERSTREET, JJ., concur in the result.

WHITE, J., not participating.

1 . Appellant was originally indicted in Bexar County and the case was transferred on a change of venue to Cameron County. After this Court’s opinion on original submission was delivered, the parties agreed to transfer the case back to Bexar County pursuant to Art. 31.08, V.A.C.C.P.

2 . This Court did not address appellant’s state constitutional claims because his argument was multifarious.

3 . Judge Priest wrote what he believed were the exact words spoken at the hearing and compared them with the official court reporter’s notes. The court reporter indicated that the Judge's notes were consistent with his notes from the trial, and the errors were likely attributable to improper transcription of the notes by the person who typed the record.

4 . The order contained the following language: “We therefore abate this appeal and remand the cause to the trial court with directions that it shall, after notice to the parties and hearing, settle the alleged inaccuracies in the Statement of Facts. The record of such proceedings and any supplemental findings by the trial court tire to be filed with the Clerk of this Court within 30 days of the receipt of this order."

This is not to say, however, that we favor the procedure done here. In that vein we note with approval Presiding Judge McCormick’s comments in concurrence.