Facts: Capital trial with two defendants. Each participated in the murders of one's brother and sister-in-law and removing the victims' bodies to Oklahoma. Murder weapon was sledgehammer. One defendant (non-relative) confesses. The relative defendant tells Rangers to take a hike. I have to try the brother defendant first in a waiver trial and want to use the codefendant's confession. I can't make a deal on codefendant because his cases are not waivers. Can I get away with testimonial immunity? What options do I have?

I guess it is pretty obvious the accessory's prior statement is likely testimonial hearsay. Gutierrez v. State, 150 S.W.3d 827, 830 (co-defendant's videotaped statement given voluntarily to police qualifies as testimonial statement as matter of law); Samarron v. State, 150 S.W.3d 701, 705-08 (witness's formal, signed, written statement given after being questioned by detective at police station held testimonial); Brooks, 132 S.W.3d at 705 (non-testifying co-defendant's written custodial statement determined testimonial in nature); Lee v. State, 143 S.W.3d 565, 570 (co-defendant's out-of-court statement made in response to questions of officer during roadside stop after appellant had been arrested held testimonial). Judge Cochran's opinion in Smith, 70 S.W.3d at 859-60 seems a pretty good place to start in answering whether you can require the accessory to provide testimony at your trial by granting immunity. I would think the prior statement would become admissible although testimonial in nature (but solely for impeachment) if the accessory varies from his prior statement while on the stand. Perhaps you should consider switching the order of the trials.

I would love to Martin, but the Judge will not budge on the settings. I will study what you have provided. Thanks.

Dismiss the brother defendant, try the codefendant. Reindict the brother. (You don't have to wait very long just long enough to ensure codefendant is ahead of brother on docket.)

Congratulations on securing a guilty verdict for the relative-defendant, with the jury deliberating less than an hour. Did you require the co-defendant to testify? Congratulations also to Ranger Hutson, whose investigation the jurors actually complimented!