I respectfully dissent. It has long been established that the issue of immunity presents a question of law for the determination of the trial court. In the early case ofCamron v. State, 32 Tex.Cr. 180, 22 S.W. 682 (1893) the defendant claimed he was induced to give evidence for the State by an immunity from prosecution agreement. The Court stated: "We do not think such a defense as we are here considering comes under the character of special pleas which are to be submitted and passed upon by a jury . . . but rather belongs to those matters addressed solely to the consideration of the court. . . ." Id. at 683. In accord with this rule of law is Turney v. State, 40 Tex.Cr. 561,51 S.W. 243, 244 (1899) wherein the Court held that the existence of an offer of immunity is a question of law to be left to the discretion of the trial judge, subject to reversal only upon a showing of abuse of such discretion. The Court inTurney further noted that an appellant must prove, by a preponderance of the evidence, the existence of an alleged contract of immunity. Id. at 243. In Govance v.State, 109 Tex.Cr. 47, 2 S.W.2d 853, 855 (1928) the Court held: "[It] was incumbent on appellant to raise the question of immunity before the verdict of the jury. . . ." Thus I construe the Turney and Govance cases,supra, as limiting appellant's burden to showing the existence of an immunity agreement.
The State, while conceding the existence of the written offer of immunity, contends that appellant had the additional burden of proving beyond a reasonable doubt that she did not directly cause the death of the victim. The State further claims that immunity is not a defense within the ambit of Tex.Penal Code Ann. § 2.03 (Vernon 1974), and that the question of immunity is similar to a plea for failure to provide a speedy trial. In speedy trial cases, once the defendant demonstrates that the State was not ready for trial within the time allowed by statute, the burden shifts back to the State to prove there were excludable periods of delay that would extend the initial time limitation. See Newton v. State, 641 S.W.2d 530, 531 (Tex.Cr.App. 1982). Contrary to the State's claim, I believe that immunity agreements are defenses within the purview of the Penal Code. Tex.Penal Code Ann. § 2.03(d), (e) (Vernon 1974) provides as follows:
*Page 202(d) If the issue of the existence of a defense is submitted to the jury, the court shall charge that a reasonable doubt on the issue requires that the defendant be acquitted.
(e) A ground of defense in a penal law that is not plainly labeled in accordance
with this chapter has the procedural and evidentiary consequences of a defense.
The practice commentary to Tex.Penal Code Ann. § 2.03 states:
The effect of Subsection (d) is to require the State to disprove a defense beyond a reasonable doubt after the issue has been properly raised by the evidence. In other words, the defendant has the burden of producing evidence to raise a defense, but the prosecution has the final burden of persuasion to disprove it.
In Luck v. State, 588 S.W.2d 371 (Tex.Cr.App. 1979),cert. denied, 446 U.S. 944, 100 S.Ct. 2171, 64 L.Ed.2d 799 (1980), the defendant raised the issue of self-defense and the trial court instructed the jury that the burden of proof beyond a reasonable doubt was on the State. The Court of Criminal Appeals approved the charge, stating: "Clearly, when the charge is viewed as a whole, it placed the burden on the State to show beyond a reasonable doubt that appellant was not acting in self-defense." Id. at 375.
Appellant is charged by indictment that she intentionally and knowingly caused the death of an individual, Julis Alfred Dess, by shooting him with a gun in the course of committing the offense of robbery. The constitutionally required burden of proof in criminal cases is that the State establish all elements of the offense beyond a reasonable doubt. Crockerv. State, 573 S.W.2d 190, 207 (Tex.Cr.App. 1978). Seealso Tex.Penal Code Ann. § 2.01 (Vernon 1974). In the instant case appellant established through pre-trial motions the offer of immunity, and subsequently, in accordance with Tex.Penal Code Ann. § 2.03 (Vernon 1974) and Luck v.State, 588 S.W.2d at 375, the burden shifted to the State to establish and prove beyond a reasonable doubt that appellant directly caused the death of Julius Alfred Dess.
The two common types of immunity are "use" immunity and "transactional" immunity. Transactional immunity accords full protection from prosecution for the offenses to which the compelled testimony relates and affords the witness considerably broader protection than does the 5th Amendment privilege. "Use" immunity provides the grand jury witness with protection from prosecution emanating from the use of grand jury testimony and all information derived therefrom, either directly or indirectly. See Kastigar v. UnitedStates, 406 U.S. 441, 453, 92 S.Ct. 1653, 1661, 32 L.Ed.2d 212 (1972). See generally McLane, Immunity: AState Grant of Amnesty, 17 Crim.L.Bull. 234, 236-37 (1981). Under Tex. Const. art. I, § 10 no person can be compelled to testify against himself in a criminal case pending against him, nor give testimony on the trial of another on which a prosecution may or can be founded against him. The purpose of an immunity agreement is to protect a witness in his constitutional right against subjecting himself to prosecution resulting from his own disclosures, while at the same time securing the benefits of such testimony for the State. Exparte Copeland, 91 Tex.Cr. 549, 240 S.W. 314, 318 (1922),overruled on other grounds, 640 S.W.2d 924, 928 (Tex.Cr.App. 1982). When an immunity agreement is made as to a particular offense, the agreement will embrace any connected offense which is revealed by the testimony given pursuant to the grant of immunity. See Camron v. State, 22 S.W. at 863; See Ex parte Shorthouse, 640 S.W.2d 924, 928 (Tex.Cr.App. 1982). An offer of immunity may be authorized by statute, e.g., Tex.Penal Code Ann. § 47.09 (Vernon 1974), or, as in the case at bar, it may be made by a prosecutor with the consent and approval of the court. SeeEx parte Shorthouse, 640 S.W.2d 924, 928 (Tex.Cr.App. 1982). When a prosecutor offers a contract of immunity, the witness will be exempt from prosecution if an honest and fair disclosure of the crime is given. Once compliance with the immunity agreement is established, the State is precluded from prosecuting the witness for the crime or crimes about which testimony was given. See Camron v. State, 22 S.W. at 683. As stated by the Court in Camron, "[i]f the State can make a contract with the defendant for immunity from prosecution for his offense, it is due to her own dignity that the contract be carried out in perfect faith," *Page 203 Id. at 682. Thus, in cases concerning the power of a prosecutor to grant immunity with the approval of the court, it would appear that the Court of Criminal Appeals has consistently held that a witness must be granted transactional immunity by the prosecutor before he can be compelled to testify. See Ex parte Shorthouse, 640 S.W.2d at 928 (and cases cited therein).
Officer Ruiz, from the Austin Police Department, and other officers questioned appellant in Acapulco, Mexico, starting on May 18, 1980. It appears that appellant and members of her family wanted a statement in writing that she would not be prosecuted if she returned to Texas. One of the officers returned to Texas and had the immunity agreement prepared, signed by the district attorney and two district judges, and air mailed it to Officer Ruiz in Acapulco. The immunity agreement was discussed with appellant, her family and a Mexican federal police officer. Appellant returned to Texas with the officers on May 27, 1980. Officer Ruiz testified at the pre-trial hearing that he told appellant in Acapulco that if she told the truth she would have complete protection. Appellant, who has only a third-grade education, believed that she would be allowed to return to Mexico by June 4, 1980.
The record discloses that the district attorney was questioned at the pre-trial hearing regarding the extent of the immunity granted to appellant. When asked if the immunity related to the crime of murder or capital murder, the prosecutor replied that the immunity extended to "any of the things that would have arisen out of the Dess death." Appellant, pursuant to the immunity agreement, gave a written statement on May 29, 1980, detailing all of the events which led to the killing of the victim. Subsequently on June 4, 1980, she gave a second written statement which in pertinent part states the following:
I now wish to correct that statement and say that everything I said in that statement is the truth except that I also shot Mr. Dess one time. Robert Zani was in the rear seat and he shot Mr. Dess 2 or 3 times. Robert Zani then gave me the pistol and told me to shoot Mr. Dess. I told him that I think he is dead. Robert Zani said so what and Robert put the gun in my hand. I closed by eyes and shot Mr. Dess one time.
Thus, the record reflects that appellant complied with the conditions of the immunity agreement by providing the State with two written statements. There is no evidence that appellant refused to testify for the State against defendant, Robert Zani.
The district attorney was cross-examined as follows:
Q: But then until the statement of June the 4th, 1980, you had no indication at all that she ever pulled the trigger, is that correct?
A: That's basically correct.
The United States Supreme Court addressed the issue of independent evidence in the use immunity case of Murphy v.Waterfront Commission of New York, 378 U.S. 52, 84 S.Ct. 1594, 12 L.Ed.2d 678 (1964), stating:
Murphy v. Waterfront Commission of New York, 378 U.S. at 79 n. 18, 84 S.Ct. at 1609 n. 18. The same principle should apply to the immunity question herein. It is apparent that appellant was led to believe that her cooperation with the State, including the two statements, was under the protection of the immunity agreement. The State effectively precluded any possible resistance by appellant to claim her right against self-incrimination. I would hold that the written statements, wherein appellant incriminated herself, were given pursuant to the offer of immunity and therefore constituted tainted, compelled and involuntary inadmissible testimony. I would further hold that the State did not have an independent legitimate source of evidence to establish the guilt of appellant. I conclude *Page 204 that the two confessions were induced by the immunity agreement and are not admissible.Once a defendant demonstrates that he has testified, under a state grant of immunity, to matters related to the federal prosecution, the federal authorities have the burden of showing that their evidence is not tainted by establishing that they have an independent, legitimate source for the disputed evidence.
I now consider appellant's complaint that there was insufficient evidence to prove beyond a reasonable doubt that appellant directly caused the death of the deceased. In reviewing the sufficiency of the evidence to support the conviction, the appellate court must view the evidence in the light most favorable to the verdict. "In doing so, the verdict will be sustained if there is any evidence which, if believed, shows the guilt of the accused." Banks v. State, 510 S.W.2d 592, 595 (Tex.Cr.App. 1974). The State established beyond a reasonable doubt, through appellant's admission in her second written statement, that she fired a single shot. This is not sufficient, however, since the State's burden under the immunity agreement is to establish and prove beyond a reasonable doubt that appellant directly caused the death of the victim. In her second statement appellant stated that Robert Zani shot Mr. Dess two or three times and that she closed her eyes and shot Mr. Dess one time. Dr. Rupp testified that shots one and two entered the skull in close proximity and shot three was behind the ear. The testimony, in pertinent part, is as follows:
Q: Now, you have told us of three gunshot wounds. Are you saying cumulatively they killed him or individually . . .?
A: Well, any of the three would have been fatal in and of themselves. Gunshot wounds one and two would have been rapidly fatal in and of themselves. Gunshot wound number three was a potentially fatal wound and probably would have taken some time for the person to die. But the person died as of the cumulative effect of all three. (Emphasis added.)
On cross-examination the following relevant testimony was given:
* * * * * *Q: All right. Plus I take it you said that the bullet hole Number 3 was not immediately fatal?
A: Was not immediately fatal.
Q: Shot Number 3 with medical attention could very well survive?A: It's not impossible.
The trial judge questioned Dr. Rupp as follows:
THE COURT: Let's assume that a period of time up to a minute or so, despite your opinion, intervened between the firing of shots one and two and the firing of shot three. Would shot three have hit a dead man?
A: In a couple of minutes? Not necessarily, no.
The testimony of Dr. Rupp is contradictory and certainly not conclusive in establishing the State's heavy burden of having to prove beyond a reasonable doubt that appellant directly caused the death of the victim. The evidence fails to establish beyond a reasonable doubt that Mr. Dess was alive when shot number three was fired.
The appropriate judicial reference to the question before us would be In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368 (1970) where the United States Supreme Court held: "Lest there remain any doubt about the constitutional stature of the reasonable-doubt standard, we explicitly hold that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." See also Batterbee v.State, 537 S.W.2d 12 (Tex.Cr.App. 1976). Having considered the evidence in the light most favorable to the finding of guilty by the trial court, I would find such evidence insufficient to establish the guilt of appellant beyond a reasonable doubt.
I would reverse the judgment and discharge appellant. *Page 430