BLOXHAM, THOMAS JOSEPH

In exchange for use immunity, Bloxham was compelled to testify to the grand jury about alleged theft by a public servant. After he was later re-indicted, defense counsel filed a Kastigar motion to determine the extent to which the government’s case against him had been tainted by use or derivative use of his immunized statements. His grand jury testimony is not in the record, but the trial court repeatedly said it was familiar with it. Over multiple days of hearings, the lead investigator explained that his report and virtually all the investigation he did was complete before Bloxham’s immunized testimony. The prosecutor who presented the second indictment testified similarly. The trial court ordered the State not to use any evidence that was obtained subsequent to when the immunized testimony was given. The trial court asked the defense to object at trial if it believed the State was running afoul of this ruling. Bloxham was convicted.

The court of appeals reversed. It held that, once the existence of immunized testimony was established, the burden rests entirely on the State to prove its trial evidence was obtained independently of it. It was for this reason, and for protection of the sanctity of the grand jury, that it refused to obtain and review the immunized testimony. Regarding the proper standard for a Kastigar hearing, the court stopped short of identifying which of the varied means of proof the State must satisfy because, it held, the State failed any conceivable test. It also chastised the trial court for shifting the burden to Bloxham to object at trial if he believed the State was presenting derived testimony. Finally, the court of appeals held that “this error was fundamental, constitutional error” under Tex. R. App. P. 44.2(a), and not only reversed but dismissed the indictment and rendered a judgment of acquittal.

The SPA’s petition challenges every facet of the court of appeals’s analysis. As a threshold matter, it should be impossible to review for use or derivative use of immunized testimony when the record does not contain a transcript, a proffered summary, or even a broad allegation that appellant said something remotely useful to the prosecution. The court of appeals should not have disclaimed any need to view it. Second, and related, the State asks why it should have to preview its case at all in the absence of any indication of potential use of immunized testimony. Alternatively, the State asks what the proper standard is for defeating a Kastigar claim; it argues that the sworn testimony that its case was made before Bloxham’s testimony and the trial court’s order to limit its evidence to such are sufficient. Finally, the State points out that the remedy should, at worst, be remand for a hearing at which the State can satisfy whatever standard the Court of Criminal Appeals decides.