James Anthony Kirvin v. State
05-15-00271-CR
| Tex. App. | Aug 9, 2016Background
- James Anthony Kirvin was retried (second trial) for aggravated sexual assault of a child and two counts of indecency with a child; he represented himself at the retrial.
- Alleged victims were cousins A.S. and M.G.; the conduct occurred in July 2009 when A.S. was under six and M.G. about five.
- Allegations included: a bathroom incident where girls were asked to touch or saw Kirvin’s genitals, a lap bouncing incident, and a night-time incident in a shared bed involving oral/genital contact of A.S.
- Outcry witnesses included M.G.’s grandmother, A.S.’s mother, and a forensic interviewer; a child-abuse pediatrician examined A.S. weeks later with largely normal findings.
- At trial the jury convicted Kirvin; sentences were concurrent: 45 years (aggravated sexual assault) and 15 years (each indecency count). The court of appeals affirmed.
Issues
| Issue | Kirvin’s Argument | State’s Argument | Held |
|---|---|---|---|
| Sufficiency of evidence to support convictions | Testimony conflicted; inconsistencies among child witnesses and outcry witnesses undermine verdicts | Jury may resolve credibility; testimony and other evidence suffice for a rational jury to convict | Affirmed: evidence sufficient under Jackson review |
| Admission of outcry testimony (Art. 38.072 notice) | Notice was untimely (supplemental notice 6 days before trial); exclusion required | Defendant had actual notice from earlier notice/transcript/previous trial; no surprise or prejudice | Affirmed: defendant did not timely object and showed no harm from any alleged untimely notice |
| Sixth Amendment right to self-representation / access to law library | Court discussed issues outside his presence, refused to hear argument, denied law-library access for research | No record showing exclusion from conferences; court heard him; standby counsel provided legal assistance — no additional library right | Affirmed: no Sixth Amendment violation; standby counsel satisfied assistance requirement |
Key Cases Cited
- Jackson v. Virginia, 443 U.S. 307 (constitutional standard for sufficiency review)
- Clayton v. State, 235 S.W.3d 772 (recognizing factfinder’s role in weighing evidence and credibility)
- Gillenwaters v. State, 205 S.W.3d 534 (preservation of error requires timely, specific trial objection)
- Bounds v. Smith, 430 U.S. 817 (right of access to courts and requirement for law libraries or legal assistance)
- Lewis v. Casey, 518 U.S. 343 (limits on extent of Bounds entitlement)
- Bright v. State, 585 S.W.2d 739 (standby counsel can satisfy assistance when a defendant proceeds pro se)
- Johnson v. State, 257 S.W.3d 778 (no entitlement to additional law-library access where standby counsel is provided)
- Fetterolf v. State, 782 S.W.2d 927 (lack of surprise/prejudice defeats complaint about short notice of outcry testimony)
- Alvarado v. State, 817 S.W.2d 738 (notice from first trial may be sufficient when defendant had access to transcripts/statements)
- Zarco v. State, 210 S.W.3d 816 (purpose of art. 38.072 notice is to prevent surprise from outcry hearsay)
- Gay v. State, 981 S.W.2d 864 (same)