However, the decision whether to grant a witness immunity from prosecution lies with the prosecutor, not the trial judge. Brown v. State, No. 05-90-01556-CR, 1993 WL 460047, at *12 (Tex. App.—Dallas Nov. 10, 1993, pet. ref'd) (mem. op., not designated for publication) (citing Norwood v. State, 768 S.W.2d 347, 349 (Tex. App.—Corpus Christi 1989), pet. dism'd as improvidently granted, 815 S.W.2d 575 (Tex. Crim. App. 1991)); see Autry v. Estelle, 706 F.2d 1394, 1402 (5th Cir. 1983) (recognizing that Texas law gives prosecutor, not trial judge, right to initiate grants of immunity). A trial court does not have the authority to grant immunity to a witness over the State's objection or to order the State to do so. Norwood, 768 S.W.2d at 349-50; see Ross v. State, 486 S.W.2d 327, 328-29 (Tex. Crim. App. 1972), overruled on other grounds by Walters v. State, 359 S.W.3d 212 (Tex. Crim App. 2011) (holding that trial court could not have granted immunity to witness without joinder of State); see also United States v. Chagra, 669 F.2d 241, 258 (5th Cir. 1982) ("[A] district court does not possess the statutory, common law, or inherent authority either to grant use immunity to a defense witness over the government's objection or to order the government to do so.").
The Court of Appeals affirmed appellant's conviction. Norwood v. State, 768 S.W.2d 347 (Tex.App. — Corpus Christi 1989). After careful review of the petition for discretionary review and the opinion of the Court of Appeals, we have determined that appellant's petition for discretionary review was improvidently granted.
Wallace v. State, 170 S.W.2d 762, 764 (Tex.Cr.App. 1943); Malley v. State, 125 Tex.Crim. 625, 69 S.W.2d 765, 766 (App. 1934); State v. Anderson, 119 Tex. 110, 26 S.W.2d 174, 175 (Cr.App. 1930); State v. Gray, 801 S.W.2d 10 (Tex.App. 1990, no pet.); State v. Chandler, 767 S.W.2d 211, 212 (Tex.App. 1989, no pet.). See also Ex parte Hopson, 688 S.W.2d 545, 551-52 (Tex.Cr.App. 1985) (concurring opinion); Flores v. State, 487 S.W.2d 122, 125 (Tex.Cr.App. 1972); State v. Fox, 772 S.W.2d 455, 457 (Tex.App. 1989, no pet.); Norwood v. State, 768 S.W.2d 347, 349 (Tex.App. 1989, pet. granted); State v. Harkins, 705 S.W.2d 788, 791 (Tex.App. 1986, original proceeding) (concurring opinion). Traditionally, prosecuting attorneys have had exclusive prosecutorial discretion in trial preparation and the prosecution of criminal suits.
State v. Anderson, supra; Wallace v. State, 170 S.W.2d 762, 764 (Tex.Cr.App. 1943); Malley v. State, 69 S.W.2d 765 (Tex.Cr.App. 1934); State v. Chandler, 767 S.W.2d 211 (Tex.App. 1989, no pet.). See also Ex parte Hopson, 688 S.W.2d 545, 551-552 (Tex.Cr.App. 1985) (concurring opinion); Flores v. State, 487 S.W.2d 122, 125 (Tex.Cr.App. 1972); State v. Fox, 772 S.W.2d 455, 457 (Tex.App. 1989, no pet.); Norwood v. State, 768 S.W.2d 347, 349 (Tex.App. 1989, pet. granted); State v. Harkins, 705 S.W.2d 788, 791 (Tex.App. 1986, original proceeding) (concurring opinion). The prosecuting attorney's authority to dismiss a prosecution has been modified by statute to the extent that leave of the trial court must be obtained.