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ON DISCRETIONARY REVIEW FROM THE SEVENTH COURT OF APPEALS RANDALL COUNTY

Womack, J., delivered the opinion of the Court, in which Meyers, Price, Johnson, and Holcomb, JJ., joined. Johnson, J., filed a concurring opinion. Cochran, J., filed an opinion concurring in the judgment. Keller, P.J., filed a dissenting opinion, in which Keasler and Hervey, JJ., joined.

The appellant and five other persons were charged with capital murder. Pursuant to an immunity agreement with the District Attorney, Randy Sherrod, the appellant gave a videotaped statement, submitted to a polygraph examination, and offered testimony against his co-defendants. Defense counsel drafted a motion to dismiss the charges against the appellant. At the hearing on the motion, Scott Morrison, an Assistant District Attorney, stated that the District Attorney’s office joined the motion to dismiss. Based upon the joinder by the District Attorney, the trial court construed the motion to dismiss as a motion of the State and adopted the language of the defense in its dismissal order, stating “the Court finds that in the interests of justice and based upon the evidence, the motion should be granted.” The charges against the appellant were dropped for over two years until a new District Attorney, James Farren, was elected and took office. After a review of the case, the new District Attorney decided to reopen the case against the appellant. The appellant filed an Amended Motion to Enforce the Agreement with the Prosecutor, which the trial court denied. After a trial in which the appellant pleaded not guilty, the jury assessed punishment at ten years, probated, and a $10,000 fine.

 
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