Otis Dwayne Kirven v. State
10-14-00122-CR
Tex. App.Dec 17, 2015Background
- Otis Dwayne Kirven indicted on four counts: aggravated assault, failure to stop and render aid, abandoning a child, and endangering a child; enhancement alleged.
- Kirven pleaded guilty to aggravated assault and failure to stop and render aid and pleaded true to the enhancement; State abandoned the other two counts.
- Jury assessed punishment: 35 years for aggravated assault and 20 years for failure to stop and render aid, to run concurrently. Appeal concerns aggravated-assault conviction.
- Appellate counsel filed an Anders brief and motion to withdraw, concluding no arguable grounds for appeal; Kirven filed a pro se response asserting ineffective assistance of trial counsel.
- Kirven’s motion for new trial alleged multiple instances of ineffective assistance (advice about a 12-year plea offer, late subpoenas, failure to present mitigation). A hearing was held where only Kirven and his trial counsel testified.
- Trial court credited defense counsel’s testimony over Kirven’s; appellate court reviewed the record under Anders and affirmed the conviction and granted counsel’s motion to withdraw.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial counsel provided ineffective assistance (advice re: plea offer and preparation) | Kirven: counsel failed to fully advise him of facts and deadline for a 12-year plea and did not prepare witnesses or present mitigating evidence | State: counsel’s testimony disputed Kirven; record supports trial court’s credibility choice and does not affirmatively show deficient performance | Court: No arguable ineffective-assistance claim — trial court credited counsel; appellate review will not speculate about reasons for counsel’s tactics |
| Whether counsel was ineffective for not objecting/impeaching at punishment hearing | Kirven: counsel failed to object, cross-examine, and impeach witnesses, showing unpreparedness | State: record is silent about trial strategy or reasons for omissions | Court: Not arguable — silence in record prevents finding ineffectiveness without speculation |
| Whether Anders brief and motion to withdraw were adequate | Kirven: (implicit) counsel should pursue issues; he filed pro se response | Counsel: filed Anders brief meeting Texas requirements and provided record copies to defendant | Court: Anders brief complied with standards; appellate court conducted full review and found no reversible error |
| Whether the appellate court must conduct full review despite Anders brief | Kirven: sought relief via pro se response asserting claims | Appellate counsel: moved to withdraw under Anders | Court: Per Penson/Anders, court reviewed entire record and affirmed as frivolous appeal |
Key Cases Cited
- Anders v. California, 386 U.S. 738 (1967) (procedures for appointed counsel to withdraw when appeal is frivolous)
- Strickland v. Washington, 466 U.S. 668 (1984) (two-prong test for ineffective assistance of counsel)
- Wiggins v. Smith, 539 U.S. 510 (2003) (application of Strickland standard to mitigation investigation)
- In re Schulman, 252 S.W.3d 403 (Tex. Crim. App. 2008) (state-specific guidance on content of Anders briefs)
- Penson v. Ohio, 488 U.S. 75 (1988) (requirement for appellate court to examine record when counsel files Anders brief)