# Graham v. State

> Court of Appeals of Texas · March 4, 1998 · 964 S.W.2d 738

URL: https://www.frixlaw.com/law-library/cases/5094689

## Case

- **Full name:** Alisa GRAHAM v. The STATE of Texas
- **Court:** Court of Appeals of Texas
- **Decided:** March 4, 1998
- **Citations:** 964 S.W.2d 738; 1998 Tex. App. LEXIS 1465; 1998 WL 94514
- **Precedential status:** Published
- **Opinion:** Dissent by Stover
- **Judges:** Burgess, Stover
- **Cited by:** 3 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

STOVER, Justice,
dissenting.
I respectfully dissent to the majority opinion, because I believe the trial court erred in denying appellant’s Motion for Plea of Immunity and Plea in Bar of Prosecution.
As noted in the majority opinion, Graham, along with Jayme Slankard, was promised immunity from prosecution regarding the murder of Rick Baxter by the sheriff and *743 district attorney of Hardin County. Testimony from Officer Randy Martin of the Hardin County Sheriff’s Department reveals appellant and Slankard were guaranteed full transactional immunity in exchange for their testimony and full cooperation. In a video tape made by Sheriff Holzapfel of Hardin County of Graham’s statement, the sheriff stated that in return for her cooperation, Graham would not “be prosecuted in this matter.” The written immunity agreement states that Graham and Slankard would not be prosecuted for the alleged murder of Rick Baxter. However, in response to defense counsel’s question as to whether the Hardin County authorities intended to convey to Graham that she would not be “prosecuted, period,” Officer Martin responded: “Yes, sir, that’s correct.” In reliance on the promise of immunity, Graham gave her statement to Hardin County authorities. The contents of that statement included such information as the fact of the murder itself, the identity of the victim, those involved in the murder, and the approximate location of the body. Based on that information, the police were also able to determine the murder weapon and to find the van in which Baxter was driven and beaten prior to his death.
It is undisputed that appellant was not granted or offered immunity by any court or by Jefferson County authorities. Immunity was offered only by the Hardin County sheriff and district attorney. Under the unique circumstances of this case, Graham relied on the agreement made between her and the Hardin County officials and provided the information regarding the murder of Rick Baxter, only to find out later that the case would be tried in Jefferson County. The immunity issue by that time was a moot point; Jefferson County officers had no need to offer immunity, since they already had the benefits of her statement which was given in reliance on the immunity granted by the Hardin County officials.
The majority finds that, because there was no valid agreement with Jefferson County, the jurisdiction which ultimately tried the ease, Graham can still be prosecuted for a crime connected with Mr. Baxter’s death. 1 In other words, one county’s immunity agreement cannot bind another county. See Sossamon v. State, 816 S.W.2d 340 (Tex.Crim.App.1991). I disagree with the majority’s disposition of the matter, however, and conclude that the failure to abide by the immunity agreement is a violation of appellant’s due process rights under both the United States and Texas constitutions.
Unquestionably, the proper procedures were not followed in order to accord Graham a valid grant of immunity in Jefferson County. However, under the doctrine of “equitable immunity,” an informal promise of immunity can be enforced by the judiciary. In my view, because of the violation of due process rights, this is an appropriate case for the application of the equitable immunity doctrine, though the doctrine admittedly has not been adopted by Texas courts. The Fourth, Fifth, Sixth, Seventh, Eighth, and Eleventh Circuits have all addressed the concept of equitable immunity; however, with the exception of the Eleventh Circuit, none has seen fit to apply it. 2
Under the concept of “equitable immunity,” courts may enforce informal grants of transactional immunity where:
(1) an agreement was made;
(2) the defendant has performed on his side; and
(3) the subsequent prosecution is directly related to offenses in which the defendant, pursuant to the agreement, either assisted with the investigation or testified for the government.
*744 Rowe v. Griffin, 676 F.2d 524, 527-28 (11th Cir.1982). In the instant ease, each of these conditions are met. As noted above, there was an agreement by the appellant and the Hardin County sheriff and district attorney that appellant would “not be prosecuted, period” regarding the murder of Rick Baxter if Graham fully cooperated in the investigation and prosecution of the people involved in this act. Appellant performed her part of the agreement. The prosecution of Graham for the aggravated kidnapping of Rick Baxter is directly related to the offense in which Graham assisted in the investigation.
The underlying principle in the concept of equitable immunity is that “when a promise of immunity induces a defendant to ... cooperate with the government to his detriment, due process requires that the prosecutor’s promise be fulfilled.” United States v. Fuzer, 18 F.3d 517, 521 (7th Cir.1994). In effect, the assurances of immunity from prosecution in return for the informant’s testimony are the functional equivalent of a plea bargain and failure of the State to abide by the agreement violates a defendant’s due process rights. It matters not that the majority concludes appellant’s statement was involuntary and was correctly suppressed by the trial court. Even though appellant’s statement was not used, the statement of Jayme Slankard and the other evidence flowing from Graham’s statement were not suppressed. Under Wong Sun v. United States, 371 U.S. 471 , 83 S.Ct. 407 , 9 L.Ed.2d 441 (1963), that evidence flowing from the statement of Graham is fruit of the poisonous tree. The other evidence was obtained by the exploitation of an illegality — namely appellant’s involuntary statement. Moreover, the suppression of Graham’s statement still does not give her the benefit of her bargain with the State — namely, freedom from prosecution through transactional immunity.
For the above stated reasons, I respectfully dissent.
. The majority correctly concludes appellant’s statement was involuntary and was properly suppressed by the trial court. However, the suppression of appellant’s statement does not cure the trial court's error in failing to grant her Plea of Immunity and Plea in Bar of Prosecution.
. See Reed v. United States, 106 F.3d 231, 235 (8th Cir.1997); United States v. McHan, 101 F.3d 1027, 1034-35 (4th Cir.1996), cert. denied, — U.S. —, 117 S.Ct. 2468 , 138 L.Ed.2d 223 (1997); United States v. Fuzer, 18 F.3d 517, 521 (7th Cir.1994); United States v. Weaver, 905 F.2d 1466, 1471-74 (11th Cir.1990); United States v. Short, 671 F.2d 178, 187 (6th Cir.1982), United States v. Weiss, 599 F.2d 730 , 735 n. 9 (5th Cir.1979).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/5094689. Public record. Not legal advice.