The initial burden is on the defendant to show the existence of an agreement by a preponderance of the evidence. Turney v. State [ 40 Tex.Crim. 561], 51 S.W. 243 (Tex.Crim. App. 1899). In this respect it differs from ordinary defenses where the defendant is only required to raise his defense by producing some evidence.
Although it is not clear which of the three rounds was inflicted by appellant, the evidence was sufficient for the trial court to find that appellant directly caused the death of the deceased. Customarily, the existence and validity of an immunity agreement, being a question of law for the determination of the judge, is heard before the trial in chief, Camron v. State, 32 Tex.Cr. 180, 22 S.W. 682 (1893), and the burden is on the appellant to prove, by a preponderance of the evidence, the existence of the alleged immunity contract. Turney v. State, 40 Tex.Cr. 561, 51 S.W. 243 (1899). However, the fact that the proof as to the cause of death was heard partially at the pretrial hearing and partially at the trial in chief was not error.
The authorities in this State hold that the agreement of the trial judge to such a proceeding is necessary. See Turney v. State, [ 40 Tex. Cr. 561,] 51 S.W. 243 [(1899)]; Hardin v. State, 12 Tex. App. [186], 189 [(1882)]; Cameron v. State [ sic], 32 Tex.Crim. 180, [22] S.W. [682 (1893)]; Bowden v. State, 1 Tex. App. [137,] 144 [(1876)].Accord, Wechsler v. State, 172 Tex. Cr. 559, 361 S.W.2d 379 (1962); Washburn v. State, 164 Tex. Cr. 448, 299 S.W.2d 706 (1956); Henderson v. State, 103 Tex. Cr. 502, 281 S.W. 557 (1926); Dollar v. State, 92 Tex. Cr. 254, 242 S.W. 733 (1922) (alternative ground); Messenger v. State, 81 Tex. Cr. 465, 198 S.W. 330 (1917); Ex parte Higgins, 71 Tex. Cr. 618, 160 S.W. 696 (1913); Reagan v.State, 49 Tex. Cr. 443, 93 S.W. 733 (1906); Cox v. State, 69 S.W. 145 (Tex.Cr.App. 1902); Ex parte Gibson, 42 Tex. Cr. 653, 62 S.W. 755 (1901); Vincent v. State, 55 S.W. 819, 820 (Tex.Cr.App. 1900); Ex parte Greenhaw, 41 Tex. Cr. 278, 53 S.W. 1024 (1899); Tullis v. State, 41 Tex. Cr. 87, 52 S.W. 83 (1899).
The initial burden is on the defendant to show the existence of an agreement by a preponderance of the evidence. Turney v. State, 40 Tex.Crim. R., 51 S.W. 243 (Tex.Cr.App. 1999). In this respect it differs from ordinary defenses where the defendant is only required to raise his defense by producing some evidence.
There does not seem to be any doubt about her being ready, willing and able, but not called upon, to testify. The burden of proving the agreement and appellant's compliance with it rested upon her. Turney v. State, 40 Tex.Crim. 561, 51 S.W. 243 (1899); State v. Mob 69 N.C. 529 (1873). See also, People v. Johnson, 255 Ill. App.? 288 (1929).
The authorities in this State hold that the agreement of the trial judge to such a proceeding is necessary. See Turney v. State, 51 S.W. 243; Hardin v. State, 12 Tex. Cr. App., 189; Cameron v. State, 32 Tex. Crim. 180, 25 S.W. 288; Bowden v. State, 1 Tex. Cr. App. 144. However, in some instances the statutes give immunity when one defendant testifies against a co-defendant, without any agreement to that effect by the officers in authority.
The initial burden is on the defendant to show the existence of an agreement by a preponderance of the evidence. Turney v. State, 40 Tex.Crim. 561, 51 S.W. 243 (Tex.Cr.App. 1899). In this respect it differs from ordinary defenses where the defendant is only required to raise his defense by producing some evidence.