Kirvin v. State
394 S.W.3d 550
| Tex. App. | 2011Background
- Appellant convicted of robbery; plea true to the second paragraph; jury imposed 20 years’ imprisonment and a $500 fine; conviction affirmed.
- Indicted Sept. 25, 2007 for aggravated robbery; incarcerated in New Mexico; transferred to Dallas County jail; first motion to dismiss based on IADA Article III; second motion to dismiss based on IADA Article IV; appeal concerns only Article IV claim.
- Timeline shows continuances and pass slips agreed by State and defense; trial date moved up from July 2009 to June 8, 2009; December 4–8, 2008 tolled due to agreed continuance; February–April 2009 continuances tied to pretrial motions.
- Court held that defendant’s agreements and requested continuances toll the 120-day period; December 4–8, 2008 excluded; June 8, 2009 trial within 120 days; defendant precluded from challenging the schedule due to assent to trial date.
- Defendant challenged (i) prosecutorial comments outside the record about sympathy, (ii) comments on failure to testify; (iii) photo lineup identification procedures; (iv) impeachment of complainant with prior convictions; (v) denial of continuance to obtain impeachment material; court addressed each in turn and generally overruled or did not preserve error.
- Final judgment affirmed.
- Murphy, J., concurs in result only without opinion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether appellant’s continuances tolled the 120-day period. | Appellant; argues continuances were improper delays not tolled. | State; asserts continuances were agreed, necessary, and granted for good cause. | Yes; continuances tolled the period, trial within 120 days. |
| Whether State's sympathy-appeal and defense-responsibility arguments violated self-incrimination or were proper. | Appellant; argues improper comment on testimony and overstepping scope. | State’s remarks were invited responses to defense arguments and proper. | No reversible error; arguments fell within permissible jury argument. |
| Whether prosecutorial comment on failure to testify violated Art. 38.08. | Appellant; asserts comment treated as comment on failure to testify. | Comment was invited by defense or not clearly a direct reference to testimony. | Not preserved; not a clear comment on failure to testify. |
| Whether the photo lineup was impermissibly suggestive. | Appellant; alleges lineup suggestiveness due to back signatures. | Lack of evidence of suggestiveness; witnesses identified based on facial features. | Lineup not impermissibly suggestive; no need to address misidentification. |
| Whether the trial court abused its discretion in denying impeachment of witness with prior convictions. | Appellant; seeks to impeach Graham with older convictions. | Convictions outside ten years require specific substantial probative value; not shown. | No abuse of discretion; probative value not shown to outweigh prejudice. |
Key Cases Cited
- Miles v. State, 101 S.W.3d 180 (Tex.App.-Dallas 2003) (framework for IADA tolling and standard review)
- Morganfield v. State, 919 S.W.2d 731 (Tex.App.-San Antonio 1996) (tolling when continuances are necessary and reasonable)
- Hill v. New York, 528 U.S. 110 (U.S. 2000) (defense motions toll time limits under IADA Article IV)
- Huffines v. State, 646 S.W.2d 612 (Tex.App.-Dallas 1983) (agreed continuances to hear pretrial motions toll time)
- Petrick v. State, 832 S.W.2d 767 (Tex.App.-Houston 1992) (recorded agreed continuances deemed necessary and reasonable)
- Barley v. State, 906 S.W.2d 27 (Tex.Crim.App.1995) (identification procedures and preservation of challenges to lineup)
- Cephas, 937 F.2d 816 (2d Cir.1991) (tolling where defense delays advance the process)
- Shandell, 800 F.2d 322 (2d Cir.1986) (delay attributable to defense motions tolls time)
- Goff v. State, 931 S.W.2d 537 (Tex.Crim.App.1996) (review of whether comment on testimony is proper from jury standpoint)
- Wilson v. State, 938 S.W.2d 57 (Tex.Crim.App.1996) (proper scope of jury argument)