NO. 07-9 7-0070 -CR IN T HE COURT OF APPEALS FOR THE SEVENTH D ISTRI CT OF TEXAS

AT AMARI LLO PANEL D JULY 2, 2 002

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______ SEAN ALLE N SMITH, APPELL ANT

V. THE STATE OF TEXAS, APPELLEE

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_________ FR OM THE 251 ST D ISTR ICT C OU RT O F R AN DA LL CO UN TY; NO. 9444 -C; HONORA BLEPATRI CK A . P I RTL E, JUDGE

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_______ ON REMAND FROM THE COURT OF CRI MINAL APPEALS
Befo re BOYD, C .J., and QUINN and REAVIS, JJ.
In our previ ous opini on, we affi rmed the murder convi ctio n of appel la nt Sean Al le n Smith. Smith v. State, 979 S .W .2 d 3 79 (T ex .A pp .-- A ma rillo 1998). Appel la nt pre sented the f ol lo wing i ssues on di rect appe al : (1)the tria l court erred i n refu sing to e nforce a non prosecuti on agreemen t entered i nto between hi mself and the prose cuto r; (2) the trial court
erred i n fi ndi ng that the order of di smissal was not wi th pre ju di ce; and ( 3) thetri al court erred1 In our pri or opi ni on, we di stin gui shed Zani noti ng thatthe di stri ct j udges who approved the written immun ity agreement were aware of i ts specific terms. Sm ith , 979 S.W.2d at 382. Now, beca use the Co urt ofCr imin al A pp ea ls h as he ld t ha t u nd er ar tic le 32.02 k nowle dge of the specifi c terms of the agreement i s not essential for i t t o be enforceab le , the f actual distinctions we s ugge sted in our first opinion do not render Zani i nappl icabl e. 

### 2 in not fi ndi ng as a matte rof l aw that hi s prosecuti on was barred as a re sult of the agreement entere d int o b et we en him and the S tate. A fter gran ting appe ll ant’s petition for disc retionary revi ew to address the issue of what i s demanded by the requi rement that th e t ria l cou rt “approve” an i mmunity ag reemen t, on M ar c h 1 3, 20 02 , t he Co ur t o f C rim ina l A pp ea ls h eld thatthe order of

di smissal was not rendered unenforceable solel y because it did not recite thati t was “wi th pre

ju di ce,” and arti cle 3 2.02 of the Texas Code of Cri mina l Pro ced ure Annotated (Vernon 1989) does not requi re tha t the t ri al j udge be aware of the sp ec ific ter ms of an i mmunity ag reementfor i t to be enforceabl e. See Smith v. State, 70 S.W.3d 848, 853, 855 (Tex. Cr.App. 200 2). TheCourt r eversed our

j udgmentand re manded the cause for us to consi der

the f ol l owi ng i ssues: (1)the ex iste nce of, and (2)perfo rmance under , the immuni tyagreement. Id . at 855 . Our ana lysis of these two i ssues wil l al so requi re us to determi ne whether

the procedure an d burde n of proof al lo cati on set out in Zani v. State, 701 S.W .2d 249, 254 (Tex.Cr .App. 1985)i s control li ng. 1 As an i nter medi ate a ppel l ate co urt , we limit our review to these two i ssues and fol low the i nterpr etati on of th e l aw by the C ourt o f Cri mina l Appeals. Based upon the rati onal e expressed herei n, we re verse the j udgment of convicti on and re nder t he j udgment th e tri al court shoul d ha ve re nde re d. Tex . R. App . P. 43.2(c ). The procedur al and factua l hi story

of the underl yi ng proceedi ng i s discussed i n the2 From our revi ew of the record , i t does not appear thatthe tria l court made a rul in g on the State’s request. 

### 3 two pub l i shed opi ni ons ci ted abo ve . Th us, o ur re vi ew of

the facts i s l i mi ted to tho se necessa ry

to di spositi on of the i ssues the Court has directed us to consider.
On May 20, 1990, appe ll ant and five o ther p ersons werei ndi cted for the capi tal murder of Hil ton Ray mond Merri man, Sr. Con cerni ng appel la nt, theproceedi ng was di smissed on A pr il 20, 1993, pu rsuan t t o an i mmun i ty agreeme nt b etwe en h i msel f an d th e th en Di str i ct A tto rne y, Randal l Sherrod. After n ewly el ected Di stri ct Attorney James Farren tookoffi ce on Jan uary1, 1995, he conducted further i nvestigati on and obtained a second i ndictment ag ai nst appel la nton August 23, 1 995. Based on t he immunity agreem ent w ith the form er pros ecu tor, appe l l antfi l ed a n ame nded mot i on t o en force the agreement on Septe mber 12, 1996. At a pretria l heari ng hel d on September 17, 1996, appel la nt pre sented testi mony from hi s former at to rne y, the formerprosecutor , a former assi stant di stri ct attor ney, and a speci al prosecutor in cha rge of

prosecuti ng a co-de fendant. The State, h owever, di d not fi le any wri tte n re spon se to appel la nt’s moti on nor pr esent any

wit nesses or evi dence atthe pretri al heari ng. Byhi s ope ni ng remarks, def ense counsel stated app el la nt’s version of the agreemen t and summari zed the evide nce i n support there of. Then, wit hout out li ni ng the State ’s versi on of the a greement , among ot her th in gs, counsel for t he State requested: 2
the Court to consider

reserving a decision unt ilthe State re s ts in th e t ri al . At thatti me, th e Court wi llhave heard al l of the State’s evi dence i n i ts case-i nchief and wi l l be i n a m uch better posi ti on to mak e a deci sion about wheth er or3 The record does not show what was beforethe tria l court when it prohi bited t he State from presenti ng testimony
. 

### 4 notthe evi dence i ndi cates thatSean Smith decei ved the State i n enter in g into th is agreem ent. If th e St ate fails to do that, th en the Court c an ru le on the Defense motion at that ti me. After app el la nt exami ned hi s four wi tnesses and rest ed, counsel for t he State anno unced:
W e have nothi ng, Your Honor, other than cross- exami nati on. Upon co mp let ion ofde fe ns e c ou ns el’ s ar gu me nt , c ou ns el f or th e S ta te ar gu ed an d a ga in requested that

i t be a l l owe d to p resent evi dence at tria l that app el la nt bre ached the agreeme nt. Def

ense coun sel argued i n respo nse to th e Sta te’ s argume nt a s fol l ows:
Mr
. Farre n di d not put on any evid ence today

to–thr ough the wi tness stand, thatMr. Smit h had l ie d or t hat he has ad di ti onal evid en c e to s how that th ere was fraud i n the i nducement and t hi s agreement bei ng entered.
The tri al court i nterrupted def ense counsel and announ ced: 3
THE COUR T: Let me stop you. I i ntenti onal ly stopped Mr. Farren fr om doi ng thatbecause I do n otwant to t ry thi s case today , onl y to have to t ry i t to a jury later. If th ati s a boneof con tent i on, I mean, we can cross that bridge. But, I just want the record to refl ect that I stop ped Mr. F ar re n fr om pr esen ti ng su ch testi monyas bei ng cumula ti ve and unnecessary and needl ess consumption of the Cour

t’s ti me.4 According to Zani, the terms of an agreeme nt a re bar gai ned for

by the Stat e an d th us, the question to be determined i s whether the State, not the court, i s bound by the contract. 701 S.W .2d at 2 54-55.

5 This t he 17 th day of September , 1996, the for egoi ng Defendant ’s Amended Moti on to Enforce Agree ment wit h Prosecutor havi ng been presented to and consi dered b y t he Court, i t i s the opini on of the Court that sai d Motion should be Deni ed. It i s THEREFORE ORDE RED thatsai d Moti on toEnforce Agre eme nt w ith Prosecutor b e DENIED. 

### 5 Then, when argument was completed, wit hout a mot io n by the State a nd notwi thstandi ng the Sta te’s two req ues ts tha t it be allowed to pres ent its ev idence during trial, the trial court announced:
Co un s el, the Cour

t havi ng consi dered t he e vi denc e an d a rg um en ts ofCo un s el, fi nds th at th e d ism iss al in th is c au s e w as no t w ith pr eju dic e, bu t w as me re ly in the i nterest

of j usti ce. In th e i nterest of j usti ce, the Cour t fi nds that the Defe ndan t’ s Moti on t o Enf orce th e P lea B ar ga in A gr ee me nt is not wel l taken and wil l deny

that moti on. . . .
The State cl ai ms the tr ia l court den ie d the moti on because (1)therewas no agre ement beca use there was never a meeting of the minds as to i ts terms, (2) i f th ere was an ag ree ment, i ts terms were not bi ndi ng upon th e tri al court be cause it never app roved the agreement, 4 and (3 ) the di smissal i n questi on was without p rejudice. Ho wev er, the S tate’s
re ference to the record does not s uppo rtal le ged fi ndi ngs (1)and (2 ). The tri al court’ s order deny in g appell ant’s motion on September 17, 1996, d id not state any ground s or reasons theref or and was si gned by

the tria l court wi thout t he presentati on of anyevid ence by the State as to the terms of i ts versi on of th e agree ment or appel la nt’s al le ged non -p er for mance of the agreement. 56 According to the opi ni on of the Cour

t of Cr imi nal Appeal s, the State nei ther r esponded to the peti ti on nor cross-peti ti oned and t he State’s a rgument that app el la nt vi ol ated the i mmuni ty

agreement

woul d notbe consi dered fo r t he fi rst t i me on d i scret i onar y revi ew. 

### 6 Byhi s peti ti on for

di scret i onar

y revi ew, appel la nt i nqui red ( 1) wheth er a subseque nt in di ctmentfor

an offe n se arisi ng from the transacti on that was the subject of an i mmunity agreement

coul d be brought sol el y be cause the order of di smissal di d not stat e that t he di smissal was “wi th pre ju di ce,” and (2)whether , after appel la nt uphel d hi s end of the bargai n, the subsequenti ndi ctment coul d be broughtsole ly because the t ri al court was una ware of the
s pe c if ic ter ms of the immuni ty agreement. 6 Before we comme nce our anal ysi s of t he two issues we have been di re ct ed to review, we fi rst consi der th e appro pri ate procedure f or enforci ng an i mmunity ag reement .

Proc edure for

Enforcing Immun ity Agreemen t Zan i v. S tate
In Z ani , the Court announced the l evel of proof requi red for enfor cing an i mmunity agreement

and upon who m the burden of meeti ng that le vel o f proo f must be pl aced. After di scussing vari ous pol icy concerns, th e Court hel d:
In th e in s ta nt ca s e, th e t ria l co ur t p ro pe rlyconducted a pr e-tr ia l heari ng on the vali dity of the i mmunity

agreement i n order todeter minethe ri ght of the State to prosecute. Thus, the State, i n seeki ng to defeat the i mmunity agreement, is lim ite d t o t his ev ide nc e p re s en te d p rio r to th e a c tu al t ria l. * * *

### 7

How eve r, we mu streme mber th at i mportant ri ghts are rel in qui shed by the in formant

and i n man yi nsta nces, as here, wit hout the i mmunity ag reement and subsequent testimony no evi dence would exi st upon which to convi ctthe codefendant. If we are to ke ep thi s effecti ve, i f not attracti ve, cri mina l in ves tigatorytool viab le we must make cer tai n that i ts terms ar e s tric tl y enforced. (Emphasis added). In sum, there wil l be no tr ia l if the i mmunity ag reement is val id . Thus, the determi nati on of

whether the agreement i s vali d cannot be l eft for the tri al i tself. If the agreement i s to mean anyt hi ng s uc h a n is s ue mu s t b e c on c lus ive ly decided pri or to tr ial
. Zani, 701 S.W.2d at 254. Foll owing thi s hol di ng, the Court an nounced the p rocedure and al lo cated the b urden of proof of the defendant

and the State to be ut il iz ed i n t he pre tri al deter mina ti on of th e exi stence and enf

orceabi li tyof an i mmunity ag reement. At a pre tri al heari ng:

C the i ni ti al burden i s on the def endant t o show the ex iste nc e of a n agreement by a preponderance of the evi dence;

• if the def enda nt me ets hi s ini ti al burden , then t he burd en shi fts to t he State to show beyond a reasona bl e doubt why the ag re em en t is inv alid or why prosecuti on shoul d be al lowed despi te the a greement ; and

• in seeking tode fe at th e im mu nit y ag re em en t, th e S ta te is l imi ted to t he evidence presented before the actual tri al. App ellant’s versi on of th e agreem ent s et out in his m otion and the S tate’s versi on set outi n i ts bri ef d i ffe re d i n mi nor re spects as f

ol l ows:

### 8

A ppel lant ’s V ersi on Per M oti on
A. Sean All en Smit h agreed to prov i de a vi de otaped statement of

the ev entssurround i ng t he d ea th of M r. Me rrim an an d a nsw er al l o f th e pr os ec ut or ’s q ue stio ns to t he be st o f h is a bil ity.
B. The Di s trict Atto rn ey a nd his ag en ts ha d to be lie ve that

the Defendantwas prov i di ng tr uthful inf or m at ion to t he be st o f h is a bil ity.
C. Se an All en Sm ith wo ul d b e a vaila bl e to tes tify at anyof the tr ialsof the other defendants and would so test i fy

i f reques ted t

o do so.
D. The Dis tr i ctAttorney of Randa ll Co unty, Texas, Rand all She rr od, a greed, i n exchange, that the capi tal m urde r i ndi ctment pendi ng agai nst Sean Allen Sm ith wo ul d b e d ism issed with prejudi ce and that no other prose cution wo uld be b roug ht aga inst Sean Allen S m i th a s a res ul t of th e inc iden ts sur ro un ding the de ath of M r. Me rrim an . Stat e’s Versi on Per P age 2 of State ’s Br ief Fil ed 6/ 11/98 A. Bro wn [d efens e counsel] and the Ra ndall C ou nty Criminal D is tr i ct Attorney ’soffi ce began negoti ati ons which re su lt ed i n an agreement be twe en the pro sec ution an d a pp el la nt. B. Appella nt ag reed to g i ve the Cri m i nal Di st ri ct Atto rn ey’s offi ce a truth fu l a nd co m pl ete statement ofthe ev entssurround i ng t he deat h of Mer ri m an (i ncludi ng app ella nt’s o wn involvem ent in these events) an d to testify at the co -def end ants’ trials. C. I n ret urn, the State agreed to d is m i ss the pendi ng C apital Mu rder indictm ent un der C ause N o. 6 98 8- C

. D. Thi s ora l agreement, howev er, was n e ve r p u t in wri ti ng.

Byhis amended moti on, appel la nt all eged that he had perfor med the agreement. A mong o ther t hi ngs, he al le ged that he gave a vi deo-ta ped statement on June 28, 1992, before an assi stant di stri ct attor ney and two other members of the prosecutor’ s staff, an d the in di ctmentwas di smissed on Apr il20, 1993. He fur ther a sserted t hat al thoug h a speci al prosecutor

made pl ans to cal l hi m as a wi tne ss i n the pr osecuti on of a co- defendant , and he
was avai la bl e to provide testi mony, the speci al prosecutor deci ded n ot to cal l hi m as a w it nes s. Alth ough not men ti oned i n appel la nt’s moti on, the State admi tted th at the f ormer prosecuti on tea m re qui re d hi m to submi t t o a p ol y graph exa mi nat i on; howe ve r, the State clai med that the test resul ts were inconclusi ve.7 In our anal ysi s of

thi s issue, we consider onl y t he evi dence that was presented at the pretri al hear ing. Zani, 701 S.W.2d at 254. 

### 9 Exis te nce of

I mmunity Agreemen t 7
We be gin our review o f thi s issue by focusi ng on the proceedi ngs fol lowing complet io n of appell ant’s evidence and the State’s announcement that, “We have nothing, Y our Ho nor, other than cro ss-exami nati on.” The State di d not move th at ap pe ll ant’s mot io n be deni ed because he had not satisfied hi s burden of proof. I nstead, the State argued:

we are prepared to present, i n spite of the in c re dib le e v ide nc e h ea rd in t his heari ng, tha t the Def endant l ie d with i mpuni tythro ughout t he vi deo tape .

. . . The ph ysi cal ev id ence we bel ie ve at the t ri al wil l prove thi s beyon d a reasonable doubt. (E mp ha s is added) . In summati on, co nt ra ry to th e p ro c ed ur e p re s c rib ed in Zani, counsel for the State r

equested:
Your Hono r, we wo uld as k t he S ta te be allo we d t o p re s en t t he ev ide nc e a t t ria l, and once the Cour

t has heard al l of

that evi dence, make a deter mina ti on about whether or

not the Defen dantbr

each ed t

he co ntr act and th erefore i t was not bli nding [si c] on it [sic] state. (Em phas is added ). Bythe se reque sts, the State conceded (1) the exi stence of a contract, (2)acknowledged i ts burden of proof tosh ow a b re ac h o f t he co nt ra c t b eyo nd a re as on ab le doubt, but ( 3) contrar

y to Zani, requ ested that i t be al lowed to present i ts evid ence at tria l that appell ant breached the agreement.8 A rtic le 1.27 provides : “If this Co de fails to prov ide a rule of proc edure i n any parti cular state of case which may ari se, the rul e of the common law shallbe appli ed and govern.” 

### 10 Furth er, al thoug h we do not ge neral ly refer to the la w of contracts in revi ewing cri mina l ap pe als , b ec au s e a n a gr ee me nt is a c on tra c t, ou r a na lys is must bebased o n cont ractl aw. See Tex. Code Crim. Pro c. A nn. art. 1 .27 (V ernon 1 977). 8 More over , refe re nces to con tract la w are no t forei gn i n cr i mi nal procee di ngs. See gene rally , Speth v. State , 6 S.W .3d 530, 533 (Tex.Cr .App. 1999), cert. deni ed , 529 U.S. 108 8 , 120 S.Ct. 1720 , 146 L. Ed.2d 642 ( 2000) (referenc ing cont ract law w here pro bation w as gra nted).
Althou gh the St ate d i sagre es wi th ap pel l ant’ s versi on of the terms of the agreement, itadmi ts that t he for mer prosecutor and appel la nt’s former attorney entered i n to an agreement. Consi deri ng the l aw of contracts di scussed below, because t he testi mony o f former Di str i ctAttorney

Sherrod i nclud es a summati on of th e agree ment and i ts perf ormance, we need not burden thi s opi ni on wi th a review o f the evi denc e provi ded by the oth er

def ense wi tne sses. Duri ng hi s testi mony o n di rect examin ati on fo rmer District Attorney Sherrod testifi ed in par

t: Q. W ere you aware that part o f the ag reem ent was that Sean Sm ith would gi ve a vid eo-tap ed statement to your of

fi ce? A. Evidentl y, that ’s what we decided to do. I don’t remember whether I tal ked to Mike Coy

or John Davis, but we fel t that we needed to at l east see whathi s tes ti mony

woul d be and to pi n hi m dow n on what the speci fi c facts were th at he c ould tes tify to. So, ev idently, did occur, yes , sir. Q. As far as you are aware, h as Sean Smith a lso b een avai la bl e t o testi fyagai nst any

of the other Co-Defenda nts who were in di cted?

### 11 A. Ye s. Q. W as part o f the d etermi nation or part of the agr

eement a determi nati on to be made by your offi ce as to whether or not that Sean Smith was bei ng tru thful i n terms of hi s invol vement wi th the Merriman sit uati on? A. Yes, s ir. The dilemma w e were in–and it was the s ituation whe re Mr. Brown was not goi ng to l eave thi s offer open foreve r–we had to make a deci si on o n whe the r wewere go i ng t o use hi m or not
. . . . [A]nd we stressed to Ji m that we ex pected hi s cli ent to b e trut hful , but t he i mportan t part , re gardl ess of whet her hi s cl i entsai d wha t he was te ll in g was the truth or not was how consistent what he testifi ed to was with th e e v ide nc e t ha t w e h ad in the case. Q. Did you eventual ly agree to the mot io n thatwas fi l ed t o di smi ss the indi ctment? Did you eventual ly agree that–to the moti on and thesubsequent or de r o f d ism iss al? A. Ye s. Then , on cro ss-e xam i nat i on, Sher ro d summ ed u p hi s tes ti mony as f ol l ows: Q. The agreement was complete, but itwasn’ t com plete if he didn’t te st ify?A. I fel t l ike the agreement was c omplete when tho se three c ase s we re di sposed of. I made the d ecisi on that he wo uld no t b e n ee de d in those othe r cases. That was my

deci sion. And once I si gned that di smissal i t was a done deal as far as I was concerned. (Emphasis added).
The State does not

contend th at the i mmunity ag reement had to be i n wri ti ng , and in deed, no st atute or

case impo ses su c h a re qu ire me nt . W he re th e p ar tie s ex pr es s lystate the terms of an ag reement, they create an exp res s contract an d are b ound by i t to th e excl usion of confl icti ng i mpl i ed t er ms. H aws & Garrett G. Con., I nc. v. Gorbett Bros. Weld.

### 12

Co., 480 S.W .2d 607, 609 (Tex. 1972); W oodard v. Southwest States, I nc., 384 S.W.2d 674, 675 (Tex. 19 64). However, a contract may al so be i mpli ed. In Emmer v. Phil li ps Petrol eum Co ., 66 8 S .W .2 d 4 87 , 4 90 (T ex .A pp .– A ma rillo 1984, no wri t), we hel d: [t]he absence of an express contr act do es not, however , foreclose t he possibil ity

of a contr

actual rel ati onshi p, because the parti es may, by their acts and conduct, create an impl ied contract. As expla in ed i n Emm er, th e p ro mis e is imp lied by la w t o a v oid i nj usti ce an d th e l aw f i nds a mutual i ntent to contract from t he facts and ci rcumstances of the case. Id. Consi deri ng that the State admi ts the ex iste nce of an i mmun ity a greeme nt, the test i mony of for mer

Di str i ct Attorney Sherrod , and ot her ev i denc e, e ve n i f i nsuffi cient to establ ish t he exi stence of an exp re ss contract, i s suffi cient to suppor t a contract i mpli ed i n fact fr om the facts a nd circumstances of the case. Emm er, 668 S.W.2d at 490.

Perf ormanc e Unde r The I mmunity Agreemen t
The State had the b urden to show beyond a reasonabl e doubt at the pretri al heari ng thatth e a gr ee me nt wa s inv alid or th at pro secutio n shoul d be al lowed despite the agreement; how eve r, notwi thstandi ng i ts burden of proof , the State di d notpresent any evide nce duri ng the pretri al heari ng. Accordi ngl y , t he t esti mony off ered b yformer

Di str i ctAttorney

Sherrod that:
I felt l ike the agreement wa s com plete when those th ree cases weredi sposed of. I made the decisi on that h e woul d no t be nee ded i n th ose o the r ca ses.

### 13

That was my de cisi on. And o nce I si gned that di smissal i t was a done deal as far as I was concerned
establ ished that

appel l ant p erf

orme d pursuan t t o t he imm un ity a gr ee me nt . (E mp ha s is adde d). W it hout ci ti ng any author ity ap pl icabl e to the procedural sit uati on presente d herei n, the State suggests th at we sh ou ld conside r the evide nce i ntrodu ced at tr ia l. Apply in g Zani, w e disagree. Zani

expressly

holds: [ t]h us, the determi nation of whether the agreement i s vali d cannot be left fo r the tri al i tsel f. If

the agreement i s to mean any thi ng, such an i ssue must be conclusively deci

ded pri or to tri al
. (E mp ha s is added). Further , because the tri al court de ni ed appel la nt’s moti on before heari ng anyevidence from the State, i ts order deny ing appel lant’ s motion was not b a sed on the State’s evidence at tri al.
Mo reove r, al though app el la nt’s counsel contended t hat the State had not presente d anyevidence, notwit hstanding the court’ s comment th at itp rohi bi ted the State from in troduci ng evi dence, the State:

• was a mo vi ng f act or cre ating and i nviti ng the error by requesting to i ntr oduc e ev ide nc e d ur ing tria l; Ex part e Guerrero, 5 21 S.W .2d 613, 614 (Tex.Cr .App. 1975) ; Capi stran v. State, 759 S.W.2d 121, 124 (Tex.Cr .App. 1982); see State v. Manning , 833 S.W.2d 322, 323 (Te x. App. --W aco 1992, no pet.)(hol di ng that the doctr in e of i nvit ed error sho uld apply to the S tate);

• did not withdr

aw it’ s request to i ntrodu ce its eviden ce at tr ia l or move to re- open the ev id ence before the tria l court den ie d appel la nt’s moti on;9 The record doe s not re fl ect w hatevi denc e the State p roposed to i ntrodu ce which t he tri al court ”stopped Mr. Farren from doi ng.” 

### 14

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

• di d not obj ect to theorder of the heari ng announced b ythe trial court 9 t hat i t had pr

ohi bi ted i t from present in g any evid ence at the pretria l heari ng an d d id not inform th e cou rt of the p roced ure announced i n Zani that al l of the e viden ce must be heard at a pr etri al heari ng; and

• did not preserve er ror byobj ecti ng to the tri al court’ s prohi bi ti on on the in troduct io n of evi dence and presenting a billof exception. Tex. R. App. P. 33.1 ( a) and 33.2.
A revi ew of the pretria l evide nce demonstra tes that t he State di d notoffer any evidence to show that ap pel la nt di d not per form t he agre ement; i t does show thatthe former prosecutor “fe ltl ike the ag re em en t w as co mp let e” an d t ha t it wa s “a do ne de al” when he aut hori zed the di smissal of the case.
We have not overlo oked theState’s conte nti on that we shoul d defer to the tri al court’s determi nati on of hi stori cal f act that n o i mmunity ag reement exi sted; however , the State does notcite any

authori tyappl yi ng that rul e to pretri al heari ngs to dete rmi ne the ex iste nce and enforceabil ity

of i mmunity ag reements a nd the Za ni Court di d not extend such deference. We
are al so aware th at at t he ti me the tria l court rul ed on appel la nt’s moti on, the Court o f Cri mina l A pp ea ls had not yet announced that th e prosecutor “i s responsi bl e for crafti ng the condi ti ons of an i mmunity ag reement”and “i s in the best posi ti on to eval uate per formance b efore and after a dismiss al.” Sm ith , 70 S.W .3d at 855. Furth er, the Sta te’s conten ti on i s based on

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ma te ria ls from an oth er procee di ng wh i ch were no t introduc ed into ev idence at the trial court le vel and althou gh the y are contai ned i n the cle rk’ s re c or d, ca nn ot be co ns ide re d o n a pp ea l. Cha mbers v. State, 149 T ex. Crim. 40 0, 194 S.W .2d 77 4, 775 (1946); W ebber v. State, 21 S.W .2d 726, 731 (Tex.App.--Austi n 2000, pet. ref’ d).
In l ig ht of t he fol lo wing: (1)the Cour t’s annou nc em en t in Sm ithth at a p ro s ec ut or is
re s po ns ible for d raft in g i mmunity ag reements a nd eval uat in g perf ormance th ereunde r, ( 2) Za ni’s requi rement that i mmunity ag reements b e st ric tly enforc ed and the prop er proc edure for doi ng so, (3 ) the State’s annou n cem ent at t he pret ri al heari ng that, “[w]e have nothi ng, Your Hono r, ot her th an cross-exa mina ti on,” a nd (4)the evi dence presented by appel la nt at the pretria l heari ng, we ho ld that no rati onal trier of fact could have found that an i mmunity agreement

di d not ex ist and tha t ap pel l antdi d no t pe rf or m pur suan t t o th at a greeme nt. Thus , we conclud e the agreement was enforceable. Accordin gl y, appel la nt’s fi rst and t hi rd i ssues are sustai ned and our conside rati on of i ssue two i s pretermitted.
A cc ord ing ly, ba s ed up on ou r a na lys is of the two i ssues we were di rected to consi der upon remand by the Cour t of Cr imi nal Appeal s, the j udgment of the tria l court i s reversed a nd a j udgment of

acqui ttal i s hereby

render ed.

Do n H . R ea v is Just i ce

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Publi sh.