Opinion issued August 13, 2024
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-22-00773-CR ——————————— THOMAS JOSEPH BLOXHAM, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 207th District Court1 Comal County, Texas Trial Court Case No. CR2018-382
1 Pursuant to its docket equalization authority, the Supreme Court of Texas transferred this appeal from the Court of Appeals for the Third District of Texas to this Court. See TEX. GOV’T CODE § 73.001 (authorizing transfer of cases). We are unaware of any conflict between precedent of that court and that of this court on any relevant issue. See TEX. R. APP. P. 41.3. OPINION
Thomas Bloxham appeals his conviction for theft by a public servant, for
which he was sentenced to 10 years’ imprisonment. His principal argument is that
the court erred by not dismissing the indictment against him after his Fifth
Amendment rights were violated when he was indicted despite receiving use
immunity for his compelled grand jury testimony. He also argues that the trial
court erred in excluding evidence and that there was jury charge error.
We hold that the State failed to meet its burden to prove that its evidence
derived from legitimate sources, untainted by Bloxham’s immunized grand jury
testimony. We reverse and render judgment dismissing the indictment.
Background
Thomas Bloxham was the Assistant Superintendent for Comal Independent
School District. He worked in support services under Superintendent Dr. Marc
Walker. The school district had several bond projects for new construction.
Bloxham oversaw the bonds and ensured that the construction was completed
effectively. The Attorney General’s office investigated Bloxham and Walker’s
activities as upper-level employees of Comal County Independent School District.
After a multi-year investigation with the Comal County Sheriff’s Office, the
Attorney General’s office’s findings were summarized in a report. The allegations
in the report included that Bloxham and Walker charged the school district for
2 construction-related work that occurred at their own homes. As to Bloxham, the
allegations included that the school district paid for a concrete slab on his personal
property. Several air conditioning units purchased by the school district were
installed and found at Bloxham’s residence, and a metal building at the high school
that was supposed to be demolished was instead moved to Bloxham’s property.
While Bloxham paid for the building, the price he paid was less than the school
district could have received for the scrap metal.
In February 2016, Bloxham was subpoenaed to testify before a grand jury in
Comal County. He appeared before the grand jury and refused to answer questions,
invoking his Fifth Amendment rights. The Comal County District Attorney’s office
then sought and received an order from the trial court compelling Bloxham to
testify in exchange for immunity. Bloxham testified before the grand jury in March
2016. In June 2016, Bloxham was indicted for theft by a public servant, money
laundering, and misapplication of fiduciary property. Bloxham moved to quash the
indictment and for a Kastigar hearing, alleging that the State had violated his Fifth
Amendment right by using his immunized testimony to indict him. See Kastigar v.
United States, 406 U.S. 441, 460–61 (1972) (holding that once defendant
demonstrates he testified under grant of immunity and was indicted, State must
prove that evidence it proposes to use is derived from a source wholly independent
of the compelled testimony). The district attorney’s office then presented
3 Bloxham’s case to a second grand jury in 2018. The jury returned a nearly identical
indictment.
The trial court held a hearing on the Kastigar issue. The State presented two
witnesses: the Attorney General’s investigator and the district attorney who
presented the second indictment. The trial court held that the State could not use
evidence procured after Bloxham testified before the grand jury. The trial court did
not specify what evidence could or could not be used based on this holding. The
court also implored Bloxham to object if such evidence was presented during his
trial. Bloxham proceeded to a jury trial and was found guilty of theft by a public
servant. The court sentenced him to 10 years’ imprisonment. He appealed.
Kastigar
On appeal, Bloxham contends that the trial court erred by not dismissing the
indictment against him following the Kastigar hearing. He argues that the
indictment, issued after his immunized, compulsory testimony before the grand
jury, violates his Fifth Amendment rights. He also argues that the trial court did not
follow the proper procedure during the Kastigar hearing nor use the appropriate
burden of proof. The State responds that Bloxham’s testimony did not impact its
investigation and that it established independent sources for all its evidence.
4 A. Standard of Review and Applicable Law
“Among the necessary and most important of the powers of the States as
well as the Federal Government to assure the effective functioning of government
in an ordered society is the broad power to compel residents to testify in court or
before grand juries or agencies.’” Kastigar, 406 U.S. at 444 (quoting Murphy v.
Waterfront Comm’n, 378 U.S. 52, 93–94 (1964) (White, J., concurring)). “The
power to compel testimony is ‘firmly established in Anglo-American
jurisprudence.’” State v. Hatter, 665 S.W.3d 584, 590 (Tex. Crim. App. 2023)
(quoting Kastigar, 406 U.S. at 443). “The power to compel testimony, and the
corresponding duty to testify, are recognized in the Sixth Amendment requirements
that an accused be confronted with the witnesses against him, and have compulsory
process for obtaining witnesses in his favor.” Kastigar, 406 U.S. at 443–44.
The power to compel testimony is not absolute and is subject to several
exceptions, “the most important of which is the Fifth Amendment privilege against
compulsory self-incrimination.” Hatter, 665 S.W.3d at 589 (quoting Kastigar, 406
U.S. at 444). The Fifth Amendment provides in pertinent part that, “No
person . . . shall be compelled in any criminal case to be a witness against
himself[.]” U.S. CONST. amend. V. The scope of the right against self-
incrimination protects a person “not only against being involuntarily called as a
witness against himself in a criminal prosecution, but also permit[s] him ‘not to
5 answer official questions put to him in any other proceeding, civil or criminal,
formal or informal, where the answers might incriminate him in future criminal
proceedings.’” In re Medina, 475 S.W.3d 291, 299 (Tex. Crim. App. 2015)
(quoting Lefkowitz v. Turley, 414 U.S. 70, 77 (1973)).
Immunity statutes and agreements strive to strike a balance between the
power to compel and the privilege against self-incrimination. Hatter, 665 S.W.3d
at 590 (citing Zani v. State, 701 S.W.2d 249, 252 (Tex. Crim. App. 1985)); see
Kastigar, 406 U.S. at 446. Immunity recognizes the importance of required
testimony and the belief that very often “only those implicated in the crime have
any useful knowledge of its particulars.” Zani, 701 S.W.2d at 252. Immunity also
has “historical roots deep in Anglo-American jurisprudence[.]” Kastigar, 406 U.S.
at 445–46. Given the difficulty in uncovering criminal activity, immunity is a
“pragmatic and necessary tool in criminal prosecution and prevention.” Zani, 701
S.W.2d at 253.
In Kastigar, the Supreme Court held that the Fifth Amendment permits the
prosecution to compel an accused to testify against himself, so long as the
government provides use and derivative-use immunity to the accused. Kastigar,
406 U.S. at 453. The government may compel a witness to testify, but in return for
the testimony, the government must offer the witness immunity from prosecution
or from any use of the evidence against the immunized witness. Hatter, 665
6 S.W.3d at 590 (citing Murphy, 378 U.S. at 79). “Immunity . . . is the coin the
government must pay to obtain the waiver of a person’s right against self-
incrimination and the information that he has about some crime.” Smith v. State, 70
S.W.3d 848, 861 (Tex. Crim. App. 2002) (Cochran, J., concurring). “The term
‘full-use immunity’ includes both direct use of the declarant’s self-incriminatory
words and any evidence obtained indirectly or derivatively by investigating leads
obtained from those words.” Dansby v. State, 448 S.W.3d 441, 453 n.7 (Tex. Crim.
App. 2014) (Cochran, J., concurring) (quoting Kastigar, 406 U.S. at 457); see also
Kastigar, 406 U.S. at 457 (explaining distinction between direct and indirect or
derivative use immunity and stating only full-use immunity substitutes for Fifth
Amendment right against self-incrimination). Immunity from use and derivative
use of compelled testimony guarantees that “‘the witness and the [prosecution are
left] in substantially the same position as if the witness had claimed his privilege’
in the absence of a grant of immunity.” Kastigar, 406 U.S. at 458–59. Because the
immunity is coextensive with the Fifth Amendment privilege, it “prohibits the
prosecutorial authorities from using the compelled testimony in any respect, and it
therefore ensures that the testimony cannot lead to the infliction of criminal
penalties on the witness.” Id. at 453.
Once a defendant demonstrates that he testified pursuant to a grant of
immunity, the State has the “heavy burden” to negate the possibility that the
7 immunized testimony has tainted the prosecution and to prove affirmatively that
the evidence it proposes to use at trial is “derived from a legitimate source wholly
independent of the compelled testimony.” Kastigar, 406 U.S. at 460, 462. The
burden is more than just negation of taint. Id. To carry its burden, the prosecution
must show that it did not use the compelled testimony or its fruits against the
defendant in any manner in connection with the prosecution. Murphy, 378 U.S. at
79.
Kastigar did not go beyond setting out these tenets and did not establish the
procedure or standard for demonstrating that the prosecuting authority’s case is not
tainted by immunized testimony. No Texas case outlines the burden of proof or
procedure for a Kastigar hearing. Federal circuits also differ on the standard of
proof. Compare United States. v. Cantu, 185 F.3d 298, 301–02 (5th Cir. 1999)
(holding government must prove by preponderance of the evidence that evidence it
proposes to use derives from sources independent of compelled testimony) with
United States v. Hossbach, 518 F. Supp. 759, 772 (E.D. Pa. 1980) (requiring
government to prove clear and convincing evidence of same).
As to the burden of proof in Texas, the appellate court in Oliver v. State
considered a similar issue when it considered whether proffered evidence was
tainted by exposure to an immunized statement protected by Garrity v. New Jersey.
Oliver v. State, No. 05-18-01057-CR, 2020 WL 4581644, at *3 (Tex. App.—
8 Dallas Aug. 10, 2020) (mem. op., not designated for publication), pet. dism’d,
improvidently granted, 2022 WL 2240200 (Tex. Crim. App. June 22, 2022). In
Oliver, the appellant sought review of the trial court’s decision of Garrity
protection for three statements made by a law enforcement officer. Generally,
Garrity prohibits the use of statements in subsequent criminal proceedings
obtained from law enforcement under threat of removal from office. Garrity v.
New Jersey, 385 U.S. 493, 500 (1967). Garrity allows two investigations of an
officer’s conduct to proceed, one internal and one criminal, while preserving the
officer’s Fifth Amendment right against self-incrimination. Oliver, 2020 WL
4581644, at *2. If the government compels self-incriminating testimony from the
officer in the internal investigation, it must offer immunity to the officer in the
criminal proceeding, putting the officer in substantially the same position he would
have been had he claimed his Fifth Amendment right. Id. (citing United States v.
Slough, 641 F.3d. 544, 549 (D.C. Cir. 2011) and Kastigar, 406 U.S. at 458). In
Oliver, the court held that if the defendant carries his burden of showing that the
statement is protected by Garrity, the State must prove, by a preponderance of the
evidence, that all the evidence it plans to use against the defendant “proceeded
from legitimate independent sources.” Oliver, 2020 WL 4581644, at *3 (citing
Slough, 641 F.3d at 550; Kastigar, 406 U.S. at 461–62). Given the similarity in the
State’s burdens under Garrity and under Kastigar, we review whether the State
9 met its burden by a preponderance of the evidence to establish that its evidence
derived from independent sources from the compelled testimony.2
We review the trial court’s Kastigar rulings, which are mixed questions of
law and fact involving Fifth Amendment rights, employing a bifurcated standard of
review: we give almost total deference to the trial court’s rulings on questions of
historical fact and on application of law to fact questions that turn upon credibility
and demeanor; we review de novo the trial court’s rulings on application of law to
fact questions that do not turn upon credibility and demeanor. See Oliver, 2020 WL
4581644, at *4 (citing Alford v. State, 358 S.W.3d 647, 652 (Tex. Crim. App.
2012)).
B. Testimony at the Kastigar Hearing
Before trial, the court held a hearing on Bloxham’s Kastigar motion. The
purpose of the hearing was to determine the degree to which any immunized
testimony might have been used in the prosecution of the case. Before the hearing,
the parties stipulated to the following facts:
2 We note that the defendant’s burden is different for a Garrity protected statement. In Oliver, the court held that a defendant asserting that a statement is protected by Garrity has the initial burden to show that evidence was tainted by exposure to his immunized statement. Oliver v. State, No. 05-18-01057-CR, 2020 WL 4581644, at *3 (Tex. App.—Dallas Aug. 10, 2020) (mem. op., not designated for publication) pet. dism’d, improvidently granted, 2022 WL 2240200 (Tex. Crim. App. June 22, 2022). In contrast, Kastigar dictates that once the defendant demonstrates that he testified pursuant to a grant of use-immunity, the State has the burden to prove that the evidence it proposes to use “is derived from a legitimate source wholly independent of the compelled testimony.” Kastigar v. United States, 406 U.S. 441, 460 (1972). 10 • On February 23, 2016, Bloxham was subpoenaed to testify before the grand jury in Comal County.
• On March 2, 2016, Bloxham and Walker appeared before the grand jury. Each independently refused to answer questions and invoked his Fifth Amendment privilege against self-incrimination.
• On March 2, 2016 the district attorney filed an application for order requiring their testimony and granting use immunity to Bloxham and Walker in Comal County district courts. Both defendants appeared with counsel. The district attorney confirmed that they were the targets of the grand jury before which they were being called in to testify. The court ordered Bloxham and Walker to appear and testify under threat of contempt pursuant to the State’s forced grant of testimonial immunity. Later that day, Walker testified before the grand jury and Bloxham testified thereafter.
• On June 8, 2016, both were indicted.
At the Kastigar hearing, the State called Lieutenant W. Rubio, an
investigator with the Attorney General’s office, to testify. After Lieutenant Rubio
began to testify, the court clarified the standard it would impose for the hearing.
The trial court stated that because Kastigar is a Fifth Amendment issue, “the
federal requirements need to be followed, which means [the State needs] to show
affirmatively that [its] evidence is not going to be derived from” the immunized
testimony. The trial court further opined, “So the question before me is, if this
gentleman testifies to the effect that his reports and his investigation [were]
complete at the time he made a presentation to the grand jury, and review of the
grand jury testimony of these two gentlemen indicates that there’s nothing that
would advance the investigation, then I think they’ve met their burden.”
11 Lieutenant Rubio testified that in October 2014, he received a referral from
the Comal County Sheriff’s Office regarding misappropriation of funds by Walker
and Bloxham. Rubio investigated the case for two years. He testified that the
investigation ended between March and June 2016. Rubio testified that he had all
the information about the case before an indictment was presented and that the
information included “quite a bit of subpoenas . . . [and] quite a few interviews
with school district employees.” He testified that the interviews were completed
prior to the indictment. Rubio stated that he was aware there was immunized
testimony from Walker and Bloxham but that it was not used in his report. When
asked how he knew for sure that the immunized testimony was not used, Rubio
replied that the report was “pretty much done” by the time the men were called to
the grand jury.
The State asked Rubio to describe what instances of Bloxham’s alleged
criminal conduct he was aware of prior to Bloxham’s grand jury testimony. Rubio
stated that his investigation uncovered that a metal building had been removed
from one of the high schools and relocated to Bloxham’s house. He also knew that
some concrete at Bloxham’s house was partially paid for by Bloxham and partially
paid for by the school district. A search warrant found several HVAC units at
Bloxham’s residence that had been purchased by the school district, which Rubio
could identify by their serial numbers.
12 Rubio testified that he reviewed the indictments and that no immunized
testimony from Bloxham or Walker was used. He stated that the information in the
indictments came from subpoenaed information that was obtained before the grand
jury heard the case.
On cross-examination, Rubio testified that after Bloxham’s testimony, he
sought forensic analysis of computers provided by the school district. He testified
that this research was not complete before the grand jury testimony and continued
after Bloxham’s immunized testimony. He testified that though there were other
offenses presented to the grand jury, at the conclusion of his report, he had
evidence related only to three crimes: theft by a public servant, abuse of official
capacity, and misapplication of fiduciary property. Rubio testified that in
preparation for the Kastigar hearing, ADA Palmitier, the assistant district attorney
representing the State in the hearing, had given him Bloxham’s immunized
testimony to review and consulted with him about it. Rubio testified that they
talked about whether information was gathered before or after the immunized
testimony.
The State reviewed the facts alleged in the indictment, paragraph by
paragraph, and asked Rubio if the subpoenas and interviews obtained prior to the
grand jury provided the information for the indictment. He answered affirmatively
to each paragraph.
13 On further cross-examination, Rubio admitted that he continued
investigating after the last date listed on his report by seeking out witnesses to
interview. Rubio conceded that his report contained no evidence that Bloxham
knew that the concrete work performed at his house had been billed to the school
district.
The State then called ADA A. Buess. She testified that she started working
for the district attorney’s office on October 1, 2017. She began working on
Bloxham’s case in May 2018. She testified that ADA Palmitier asked her to
present a file to the grand jury, and he briefly filled her in on the history of the
case. She stated she was told that to ensure that the immunized testimony did not
play a role in the indictment, the office wanted a “fresh prosecutor” who did not
have any knowledge of the case to review and present it to the grand jury. She
stated that she did not review any immunized grand jury testimony.
ADA Buess stated that the indictment for a new grand jury was prepared at
her direction by a grand jury clerk, shortly before May 9, 2018. She presented it to
the grand jury, and it was true billed. She was the only prosecutor with the grand
jury for the presentation. She did no further investigation to seek the indictment.
She used the report prepared by the Attorney General’s office, with its last
supplement written March 29, 2016.
14 On cross-examination, ADA Buess further explained that ADA Palmitier
had told her the case involved an investigation into high-level Comal County ISD
employees who had possibly stolen construction items or items related to
remodeling school property. ADA Buess said that the office’s grand jury clerk
prepared the indictment based on ADA Buess’s charging decisions, and ADA
Buess gave the clerk her case file. The same grand jury clerk had prepared the first
indictment against Bloxham.
At the conclusion of the hearing, the court ruled: “I’m not going to allow the
State to use any evidence that was produced subsequently to the first grand jury
presentation.” The trial court declined to state specifically what evidence was
excluded by this ruling. The trial court told Bloxham to object during trial if he
believed that evidence presented was in violation of the ruling. The court stated,
“Now there may be some evidence that [the State] already had awareness of or
whatever else that came up after that, but as far as developing anything from those
testimonies that [Bloxham and Walker] gave at the first grand jury, then anything
that [the State has] developed from that testimony would not be allowed. But
again, I’m not going to itemize what it is.”
C. Analysis
The trial court erred by denying Bloxham’s motion to dismiss the indictment
because the State did not meet its “heavy burden” under Kastigar to establish that
15 the evidence it planned to use against Bloxham proceeded from legitimate,
independent sources. See Kastigar, 406 U.S. at 461–62. The record demonstrates
that the State did not meet its burden to show that Bloxham’s prosecution
proceeded from independent sources and was not tainted by his immunized
No Texas case provides guidance as to how the State best could prove that
the evidence it used to prosecute Bloxham did not derive from his immunized
testimony. Nor does case law suggest an appropriate format for the Kastigar
hearing. The New Jersey district court in U.S. v. Smith considered four possible
methods for conducting a Kastigar hearing: (1) the government could prove that a
wall shielding the prosecutor from the information has held firm; (2) stipulation by
the investigator and prosecutor that the information did not impact their
prosecution; (3) demonstration by the government of proof of prior knowledge of
the information; or (4) a full evidentiary hearing in which the government presents
each piece of evidence to be presented at trial to show that it derived from sources
independent of the immunized testimony and that the government did not use the
testimony in any respect. United States v. Smith, 580 F. Supp. 1418, 1422–24
(D.N.J. 1984). The Smith court determined that only the last method was sufficient
to meet the Kastigar burden. Id. at 1424. On appeal, Bloxham offers two additional
potential methods where the State could meet its burden under Kastigar: canning
16 testimony and total non-exposure. “Canning testimony” means that a court can
compare a witness’s expected testimony with their “canned” statements, statements
made before the immunized witness gave his immunized testimony. United States
v. Poindexter, 951 F.2d 369, 372 (D.C. Cir. 1991).
We need not decide which of these methods is appropriate because the State
failed to meet its burden on all accounts. First, though the trial court held an
evidentiary hearing, the court did not review the evidence to be presented at trial.
The State presented only two witnesses and did not present any evidence that it
intended to introduce at trial. The State chose not to call any of the 13 witnesses it
ultimately called at trial, aside from Lieutenant Rubio, nor did it discuss the 110
exhibits it offered at trial to prove independent sources for each. Without this
information, the trial court could not determine if the State affirmatively proved
that the evidence it proposed to use at trial against Bloxham derived from
legitimate sources wholly independent of his compelled testimony. Kastigar, 406
U.S. at 460 (describing State’s burden once defendant establishes that he testified
pursuant to immunity).
At the conclusion of the hearing, the trial court excluded testimony gathered
after Bloxham’s immunized testimony, but the court did not specify what this
evidence was. The trial court erroneously shifted the burden to Bloxham,
concluding that Bloxham needed to object during trial if he thought that the State
17 was presenting evidence derived from his immunized testimony. After Bloxham
established that he testified pursuant to use immunity yet was indicted after, the
burden was on the State to prove that it proceeded free of the taint of that
immunized testimony. Kastigar, 406 U.S. at 460.
Having concluded that the trial court did not hold a full evidentiary hearing
in which it evaluated every piece of evidence to decide whether it was tainted by
Bloxham’s immunized testimony, we proceed to review other options for proving
the State’s burden in a Kastigar hearing and whether the State met that burden.
Bloxham suggests that the State could “can” witness statements, but the State made
no effort to do so. The court did not compare the trial witnesses’ expected
testimony with their “canned” statements, taken before Bloxham gave his
immunized testimony, and then rule on whether the witnesses could testify at trial.
Poindexter, 951 F.2d at 372.
Second, the record reflects that though it argued that it had, the State did not
create a “wall” between the prosecuting attorney and the rest of the district
attorney’s office, or between the prosecuting attorney and access to the compelled
testimony. We note that several courts have rejected this idea, reasoning that even
if a prosecutor has never seen the witness’s testimony and may believe in good
faith that no one associated with the prosecution has seen it, such a disclaimer does
not preclude the possibility that someone who has seen the compelled testimony
18 was thereby led to evidence that was furnished to the prosecution. United State v.
Nemes, 555 F.2d 51, 55 (2d Cir. 1977); see also Kastigar, 406 U.S. at 469
(Marshall, J., dissenting) (“For the paths of information through the investigative
bureaucracy may well be long and winding, and even a prosecutor acting in the
best of faith cannot be certain that somewhere in the depths of this investigative
apparatus, often including hundreds of employees, there was not some prohibited
use of the compelled testimony.”).
Even if a “wall” could be effective, the State did not erect one in Bloxham’s
case. The record reflects that ADA Buess testified at the Kastigar hearing that
ADA Palmitier informed her of the nature of the case when he assigned it to her.
ADA Buess testified that she gave the case file to a grand jury clerk in the
prosecuting office who prepared the second indictment at her direction. The grand
jury clerk was not “walled” off from the immunized testimony because that same
clerk also prepared the 2016 indictment. ADA Buess testified that the grand jury
clerk received the entire case file to prepare the indictment. Moreover, Lieutenant
Rubio testified that he assisted in the grand jury proceedings, providing questions
to the prosecution. Though he at first testified that his investigation was complete
before the grand jury convened, he also testified that he continued to investigate
after the immunized testimony, including running search terms on Bloxham’s and
Walker’s computers and supplementing his written report. He also met with a
19 witness. Finally, the State gave him Bloxham’s immunized testimony and
discussed it with him prior to the Kastigar hearing. Lieutenant Rubio later testified
at trial, despite his exposure to the immunized testimony. The State did not
separate those in its office who had been exposed to the immunized testimony.
Even if the State could have demonstrated such an effort to do so, Kastigar warns
that a defendant should “not [be] dependent for the preservation of his rights on the
integrity and good faith of the prosecuting attorneys.” Kastigar, 406 U.S. at 460.
The record also does not reflect that the State could meet its burden by
claiming that it had prior knowledge of all the evidence before Bloxham testified
before the grand jury. Rubio testified that the evidence came from his report to the
Attorney General, which the State had prior to the grand jury. Rubio also testified,
however, that he continued to investigate after he was exposed to the immunized
testimony. He was present in the grand jury room, assisting with questions for
witnesses, and he was present for Walker’s immunized testimony. He interviewed
a trial witness weeks after Bloxham’s immunized testimony was compelled. He
also continued his investigation after the last date of his investigative report, and
after Bloxham’s immunized testimony. After Bloxham testified, Lieutenant Rubio
ran search terms on Bloxham’s and Walker’s computers.
Lieutenant Rubio was aware of Bloxham’s immunized testimony, though he
was not present when Bloxham testified. The State gave him the testimony to
20 review in anticipation of the Kastigar hearing. The court did not review Lieutenant
Rubio’s anticipated trial testimony. See Kastigar, 406 U.S. at 457 (explaining full-
use immunity includes direct or indirect use).
Lieutenant Rubio also testified that before Bloxham’s testimony, he had
evidence of only the following crimes: abuse of official capacity, theft, and
misapplication of fiduciary property. Yet the State indicted Bloxham for additional
crimes, including bribery. The evidence cannot support a stipulation by Rubio or
the State that they conducted their investigation independent of the immunized
testimony, possessed all the evidence prior to the immunized testimony, or made
no use of it in pretrial preparations.
On these facts, we cannot conclude that Bloxham and the State were in
“substantially the same position” as if Bloxham had not been compelled to testify.
See Kastigar, 406 U.S. at 458–59 (holding that testimony compelled from witness
under immunity must leave him and government in “substantially the same
position as if the witness had claimed his privilege” to remain silent in absence of
immunity). Use immunity includes direct and indirect or derivative use of the
defendant’s immunized testimony. Id. at 457; Dansby, 448 S.W.3d at 453 n.7.
Prior knowledge of the case against the defendant does not preclude the
government from using the immunized testimony in subtle ways, such as in plea
21 bargaining, interpreting evidence, or planning cross examination. United States v.
Semkiw, 712 F.2d 891, 895 (3rd Cir. 1983).
The State argued that it had knowledge of all the evidence before Bloxham’s
immunized testimony because all of it was contained in Rubio’s report, which it
argued was complete before the grand jury proceedings. Rubio’s testimony
contradicts this argument. Rubio testified that he continued to investigate after
Bloxham testified and that he supplemented his report. Rubio testified that his
report only had evidence for three crimes, when Bloxham was initially charged
with more crimes. The evidence from the Kastigar hearing does not reflect that the
State’s trial evidence was completely procured before Bloxham testified. It cannot
be said that Bloxham and the State were in “substantially the same position” as if
he had claimed the Fifth Amendment privilege and not testified. Kastigar, 406
U.S. at 458–59.
Finally, we note that Bloxham’s and Walker’s grand jury testimony is not in
the record. The parties had access to it at the Kastigar hearing, and the trial court
stated that it had read the testimony. In his reply brief, Bloxham argues that access
to the transcripts could prove additional instances of the State’s use of his
immunized testimony. Having concluded on the record before us that the State did
not meet its burden to show that it did not use Bloxham’s immunized testimony,
22 we see no need to invade the sanctity of grand jury proceedings by reviewing the
testimony at this time.
We are sympathetic to the trial court, who was given the task of conducting
a Kastigar hearing with only vague guidance as to how to do so. Once the State
compelled Bloxham to testify and then indicted him, the State assumed the heavy
burden of demonstrating that it did not use Bloxham’s immunized testimony in any
way in the prosecution. “Grants of immunity from prosecution are conceptually
promises to dismiss a case.” Hatter, 655 S.W.3d at 593. The State here did the
opposite.
Reviewing the record, we hold that the State’s evidence was insufficient to
demonstrate that the State had legitimate sources for all its evidence, wholly
independent of Bloxham’s immunized testimony. The State also did not show that
that its witnesses had not used, directly or indirectly, Bloxham’s immunized
testimony against him. The trial court erred by not dismissing the indictment
against Bloxham following the Kastigar hearing.
We likewise agree with Bloxham that this error was fundamental,
constitutional error. TEX. R. APP. P. 44.2(a). We must reverse a judgment of
conviction unless the court determines beyond a reasonable doubt that the error did
not contribute to the conviction or punishment. The State’s failure to prove that its
evidence derived from wholly independent sources from Bloxham’s compelled
23 testimony in forfeiture of his Fifth Amendment right is constitutional error. We
cannot say beyond a reasonable doubt that the error did not contribute to his
conviction. TEX. R. APP. P. 44.2(a). We sustain Bloxham’s first issue and reverse
and render judgment dismissing the indictment.
Conclusion
Given our holding, we need not address Bloxham’s remaining issues. We
reverse the judgment of conviction, dismiss the indictment, and render a judgment
of acquittal.
Peter Kelly Justice
Panel consists of Justices Kelly, Countiss, and Rivas-Molloy.
Publish. TEX. R. APP. P. 47.2(b).