OPINION
Opinion By
Appellant was convicted of robbery. Appellant pleaded true to the second paragraph of the indictment, and the jury assessed his punishment at twenty years’ imprisonment plus a $500 fine. We affirm.
Speedy Trial Under the IADA
In his first issue, appellant contends that, because the trial took place after the expiration of 120 calendar days, he was
Background
Appellant was indicted on September 25, 2007 for the offense of aggravated robbery. While a prisoner in New Mexico, appellant mailed a handwritten motion to dismiss to the trial court.
In order to address appellant’s contention, we arrange the major events in chronological order based upon docket entries, documents in the record, and statements of counsel and the trial court.
September 30, 2008: first motion to dismiss (alleged violations of Article III of IADA and appellant’s federal constitutional right to a speedy trial)
October 6, 2008: appointment of counsel for appellant
October 7, 2008: first of two pass slips; court-appointed counsel in Dallas agreed to continue case for jury trial to December 8, 2008
December 4, 2008: appellant arrived at Dallas County jail
December 8, 2008: demand for speedy trial (appellant “demand(ed) that his case be set for trial immediately”) and motion to dismiss (alleged violations of appellant’s federal and state constitutional rights to a speedy trial)2
December 11, 2008: defense continuance of motion to dismiss
January 22, 2009: defense continuance of motion to dismiss
January 29, 2009: defense continuance of motion to dismiss
February 4, 2009: defense continuance of motion to dismiss
February 5, 2009: second of two pass slips; counsel agreed to continue case to February 12, 2009 for hearing on motion to dismiss
February 12, 2009: hearing on first motion to dismiss (Article III claim); motion to dismiss denied; jury trial set for July 13, 2009
April 6, 2009: counsel agreed to advance the jury trial to June 8, 2009
June 8, 2009: second motion to dismiss (alleged violation of Article IV of IADA) heard prior to jury selection; motion denied; jury trial commenced.
The record includes two pass slips addressed to the trial court. The pass slips listed various purposes for the continuances sought.
At the February 12, 2009 hearing on the first motion to dismiss, appellant stated he had not had sufficient time to obtain the necessary evidence from the New Mexico authorities to support his Article III claim and wanted to pursue out-of-state subpoenas.
On the day of trial, the trial court heard appellant’s second motion to dismiss wherein appellant raised his Article IV claim. Appellant argued his trial had not commenced until after the statutory 120-day period expired in violation of his right to a speedy trial under the LADA and that the first motion to dismiss based on other grounds had not delayed the jury trial. Appellant also stated counsel for both parties had previously agreed to move up the scheduled July 2009 jury trial date to June 8, 2009.
Issue
We must determine whether appellant’s agreements and requested continuances tolled the 120-day statutory period.
Analysis
We review the trial court’s ruling de novo. State v. Miles,
The IADA is a congressionally sanctioned compact between the United States and the states, including Texas, that have adopted it. Miles,
The IADA may be invoked by either the prisoner or the State. Under Article III of the IADA, the return and trial of the out-of-state prisoner are invoked by the prisoner himself. Tex.Code CRiM. Proc. art 51.14, art. 111(a). Under Article IV of the IADA, it is the State that invokes the provisions of the IADA. Id. art. 51.14, art. IV(a). On appeal, appellant asserts only that he was denied a speedy trial pursuant to Article IV of the IADA. Specifically, appellant charges the State did not — as the IADA requires — bring him to trial within 120 days of his arrival in Texas. See id. art. 51.14, art. IV(c).
Article IV provides:
In respect of any proceeding made possible by this article, trial shall be commenced within 120 days of the arrival of the prisoner in the receiving state, but for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance.
Id. If a person is not brought to trial within 120 days, the indictment must be dismissed with prejudice. Id. art. 51.14, art. V(c).
Tolling of the 120-day period occurs if the trial court grants a necessary or reasonable continuance after a showing of good cause is made in open court, with the defendant or his attorney present. Id. art. 51.14, art. IV(c); Morganfield,
The IADA establishes distinct requirements for a continuance: (1) competent jurisdiction, (2) that the continuance be granted in open court, (3) that the defendant or his counsel be present, (4) that the movant demonstrate good cause for the continuance, and (5) that the continuance be necessary or reasonable. Birdwell,
Reasonable delays caused by defense motions may toll the statutory period. In New York v. Hill, the Supreme Court observed: “Defense counsel filed several motions, which, it is uncontested, tolled the time limits during their pendency.”
Appellant was incarcerated in New Mexico when he was indicted in Dallas County in the instant case. He was booked into the Dallas County jail on De
Excluding the period between December 4, 2008 and December 8, 2008, the 120-day period would extend to April 7, 2009. On April 6, 2009 appellant agreed to accelerate the trial date from July 13 to June 8. Thus, during the relevant 120-day statutory period, appellant agreed to the trial date of June 8, 2009. Because appellant assented to the trial date, he is precluded from complaining that the trial date was outside the 120-day period. See Hill,
There is a second and equally compelling reason why the June 2009 trial date complies with the IADA. During the December 8, 2008 to February 12, 2009 time period, appellant requested and obtained several continuances of the pretrial hearing related to his first motion to dismiss. One of these continuances is reflected in the second pass slip dated February 5, 2009.
Notwithstanding these continuances,
In addition, appellant’s argument is not consistent with major provisions of the Act. While the IADA provides a mandatory 120-day time period within which to try appellant, it also provides for discretionary continuances that are necessary and reasonable, for good cause shown. Such discretionary continuances include reasonable continuances in order to hear and resolve pretrial motions. Huffines,
In this case, appellant filed his first motion to dismiss, requested it be scheduled for a pretrial hearing, and then repeatedly sought continuances until it was heard on February 12, 2009. Appellant argues that even though he sought continuances relative to his first motion to dismiss, he did not “delay” the trial. What appellant fails to acknowledge is that the scheduling of the hearing would automatically delay the trial. Regardless of how appellant casts his position, his request for a pretrial hearing of necessity would delay the trial because the hearing had to be conducted before his trial could commence.
In addition, implicit in appellant’s argument is the following rationale: the 120-day period extended from December 4, 2008 until April 3, 2009; after the February 12, 2009 hearing, ample time (about fifty days) remained before the expiration of the 120-day period; and the trial must commence within that 50-day period or the trial court was required to dismiss the case. We reject appellant’s position because it completely precludes discretionary continuances clearly permitted by the IADA. If the 120-day period were as inflexible as appellant suggests, a provision for a “continuance” would be illusory.
We conclude appellant’s agreements and requested continuances tolled the 120-day statutory period under the IADA. We exclude December 4, 2008 through December 8, 2008 because appellant agreed to this continuance. Appellant assented to the June 8, 2009 trial date during the relevant 120-day statutory period and, therefore, is precluded from complaining that the trial date was outside the 120-day period. Even considering the merits of his complaint, we exclude December 8, 2008 through February 12, 2009, because this period involved necessary and reasonable continuances granted for good cause. Because our computations show the IADA was tolled from December 4, 2008 through February 12, 2009, the trial date of June 8, 2009 is within the statutory 120-day time period. Appellant’s first contention is without merit.
Jury Arguments
In his next two issues, appellant complains (1) “The State struck at the appellant over the shoulder of his counsel by arguing outside the scope of the record that the appellant was not remorseful,” and (2) “The State impermissibly commented on the appellant’s failure to testify.”
Appellant did not testify at either phase of the trial. During the punishment hearing, the State introduced evidence of appellant’s prior criminal record. His record included one conviction of sexual assault of a child in 1989, for which appellant was sentenced to six years’ confinement; three convictions of burglary of a vehicle in 1989 and 1990, for which he was sentenced to six years’ confinement in each case; and one conviction of aggravated assault of a correctional officer in 1992, for which he was sentenced to ten years’ confinement.
During final arguments, the prosecutor reminded the jury of the facts of the case and appellant’s extensive prior criminal record and asked for a swift and harsh punishment for a violent offender. During his summation, defense counsel attempted to minimize appellant’s convictions, noting in part that they had occurred seventeen to twenty years ago; that the burglary of vehicle cases would be misdemeanors, not felonies, if committed today; and that the sexual assault case only involved sex between a seventeen-year-old and “somebody that is either 14, 15, or 16” that had to be consensual because “if this was by some force [or] use of a weapon, it would be aggravated.” Defense counsel continued by stating:
I’m not going to in any way tell you what he should get. That’s your decision and that’s solely up to you. But once again, I do want to reiterate this empathy we have for these two women because what happened to them shouldn’t have happened to them. And I’m not going to try in any well [sic] tell you what you should do, but we would respectfully ask that, as a whole, we respectfully ask that you consider five years in this case. Thank you. (Emphasis added.)
At the conclusion of appellant’s argument, the prosecutor made the closing argument:
[STATE]: This man wants you to believe that he has sympathy for those victims.
[DEFENSE]: Objection, Your Honor. Once again Counsel is striking at my client through a Defense.
The Court: Overruled. Proceed.
[STATE]: Sympathy. He is asking for sympathy or he is wanting you to believe that he has sympathy for his people.
[DEFENSE]: Judge, that is outside the scope of the testimony.
The Court: Sustained.
[DEFENSE]: We would ask that you strike.
The Court: The jury will be instructed to disregard that portion of the argument.
[DEFENSE]: And ask for a mistrial.
The Court: Denied. Proceed.
[STATE]: Ladies and gentlemen when I first talked to you during opening statements, I told you that this case was about responsibility^] taking responsibility for your actions. Mr. Kirvin [appellant] has never taken responsibility for any of his.
[DEFENSE]: Your Honor, now Counsel, once again, as in closing argument, he is going to issue of whether my client testified. It’s wholly inappropriate and he’s commenting on his choice not to testify.
[STATE]: Your Honor, he has opened the door talking about his sympathy.
[DEFENSE]: You can’t open the door, Judge. You can [sic] open the door.
[STATE]: I should be allowed to address his comments, his arguments.
The Court: Objection is overruled. Proceed. 15
Thereafter, the prosecutor further explained that the jury had learned “the rest of the story,” that appellant had a “career as a violent criminal. He goes out and hurts people. That’s what he does.” The prosecutor reviewed appellant’s prior offenses which, he argued, demonstrated appellant had anger problems and “difficulty controlling his actions that he will lash out at anybody” including the two women involved in this case. The prosecutor argued appellant
doesn’t care. If you think for one minute that he cares about any of the victims in that [ ] pen packet or any of the victims that are sitting here be reasonable. He has not taken responsibility. He never has and he never will. (Emphasis added.)
The prosecutor concluded by asking the jury to start its deliberations at sixty years.
The sympathy complaint
In his initial complaint, appellant challenges both (1) the trial court’s ruling on his objection to striking at the defendant over counsel’s shoulder, and (2) the denial of a mistrial on his objection to argument outside the record. However, appellant’s argument under this issue is not focused on these two points.
The prosecutor argued that defense counsel’s efforts to minimize appellant’s criminal record and to commiserate with the plight of the victims were pleas for sympathy which ultimately led to defense counsel’s suggestion that the jury set punishment at five years, the minimum term of imprisonment under the law.
The four general areas of proper jury argument are summation of the evidence, reasonable deductions from the evidence, answer to the argument of opposing counsel, and pleas for law enforcement. Wilson v. State,
The comment-on-failure-to-testify complaint
Appellant’s other complaint is that the State’s argument — appellant “has never taken responsibility for any of his actions” — constituted a comment on appellant’s failure to testify.
A prosecutor may not comment in closing argument on a defendant’s failure to testify. See Tex.Code CRiM. PROc. Ann. art. 38.08 (West 2005). The test to determine whether the argument was a reference to appellant’s failure to testify was stated in Cruz v. State,
To violate the right against self-incrimination, the offending language must be viewed from the jury’s standpoint and the implication that the comment referred to the defendant’s failure to testify must be clear. It is not sufficient that the language might be construed as an implied or indirect allusion. The test is whether the language used was manifestly intended or was of such a character that the jury would necessarily and naturally take it as a comment on the defendant’s failure to testify. In applying this standard, the context in which the comment was made must be analyzed to determine whether the language used was of such character.
A remark that might otherwise constitute a comment on a defendant’s failure to testify may not be reversible error if the remark was invited by defense counsel’s argument. See, e.g., Nethery v. State,
In this case, defense counsel concluded his own argument by stating, “I do want to reiterate this empathy that we have for these two women because what happened to them shouldn’t have happened to them.” (Emphasis added.) Defense counsel clearly referred to both counsel and appellant when he argued to the jury that “we” sympathize with both victims. The prosecutor asserts the argument that appellant did not take responsibility for his actions was a response to appellant’s argument. The record supports the State’s position. During closing arguments, the prosecutor detailed the violent offenses of which appellant had been convicted to demonstrate appellant had not taken responsibility for his actions or really cared about any of the victims. After carefully reviewing each prior offense, the prosecutor concluded that this history of crime showed appellant had no regard for his victims and had shouldered no personal responsibility for his conduct, that he never had, and never would.
In context, we conclude the State’s argument was not “manifestly intended or [ ] of such a character that the jury would necessarily and naturally take it as a comment on the defendant’s failure to testify” when viewed from the jury’s standpoint. Instead, we conclude the State’s argument was invited by, and made in response to, appellant’s argument. See Wilson,
Photo Lineup Procedures
In his fourth issue, appellant contends the trial court erred in overruling his objection to the photo lineup procedures, which, he asserts, were impermis-sibly suggestive. Appellant moved to suppress evidence of his pre-trial identification by the two complaining witnesses, Maurine Graham and Lacinda Lowery. Appellant argued that because the back of appellant’s photo showed the name of a third party, it suggested a prior identification. During the hearing,
Officer Brigdon’s testimony at trial largely mirrored the facts adduced at the suppression hearing. See Barley v. State,
Whether a photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of misidentification is a mixed question of law and fact that does not turn on an evaluation of credibility and demeanor, and we therefore review the issue de novo. Loserth v. State,
The record contains no evidence that the complainants looked at the back of any photos while they were examining the photo lineup or that either saw any name on the back of appellant’s photo before making the identification. There is nothing more than counsel’s argument to suggest that the witnesses could have seen images through the photos as they handled the photos. There is no evidence supporting appellant’s claim that the lineup was im-permissibly suggestive, particularly because only one witness, Graham, remembered seeing the name of a third party on the back of appellant’s photo and saw it only after she had actually identified appellant’s photo. We conclude the photo lineup was not impermissibly suggestive. Having reached that conclusion, we need not address whether the lineup gave rise to a very substantial likelihood of irreparable misidentification. See id. We overrule appellant’s fourth issue.
Impeachment of Complainant
In his sixth issue, appellant argues the trial court erred in not permitting him to impeach complainant Graham with evidence of her prior criminal convictions. In a lengthy hearing outside the presence of the jury, both attorneys and the trial court questioned Graham concerning her criminal history. Graham acknowledged serving time in Arizona and Texas for a series of offenses, including conspiracy to commit fraud, fraudulent schemes, and theft of property. She testified she was unable to give details about all her offenses because her offenses were “all run together,” and some offenses were dismissed if she was already serving time. Counsel questioned Graham concerning records indicating she may have had a 1997 conviction in Arizona for which she received five years of probation. But Graham testified she never was placed on probation, and she was released from prison for the last time on December 1, 1998. The trial court denied appellant’s request to use Graham’s criminal history to impeach her, stating “there [was] no proof of any sentence being served within the last ten years.”
We review the trial court’s ruling for an abuse of discretion. Green v. State,
Continuance
When the trial court denied appellant’s request to use Graham’s past criminal convictions to impeach her, appellant’s counsel orally requested a continuance and followed up his request with a handwritten motion.
Comes now the Defendant by and through his attorney [and] moves the Court to grant a continuance to allow the defense time to order the documents regarding the prior criminal history of Maureene Graham, thus enabling the Defense to be able to properly impeach said person.
The trial court denied the motion for continuance on the record. In his fifth issue, appellant complains of this denial.
The basic rules concerning continuance of a criminal action are well-settled. The continuance sought by appellant is governed in the first instance by statutes requiring (1) a written motion setting forth in full the “sufficient cause” for delay, and (2) the writing to be sworn to by a person having personal knowledge of the facts relied on for the continuance. Tex.Code Crim. PRoc. arts. 29.03, 29.08 (West 2006). We need not address whether appellant’s motion sets forth sufficient cause for a continuance because his motion was un-sworn. Appellant asks us to make an exception to the requirement that the motion be sworn. He contends we must balance the interests of an expeditious trial against the right of the defendant to present a complete defense; he relies upon the court of appeals’ opinion in Anderson v. State,
We affirm the judgment of the trial court.
Murphy, J., concurs in result only without opinion.
Notes
. This motion was mailed and considered "filed” on September 30, 2008.
. The motion to dismiss contained an order showing it was denied by the trial court. The order bore no date.
. The purposes included "Announcement," "Agreed plea of guilty,” "Open plea of guilty,” "Jury Trial (submit Order Setting for Trial),” "Trial Before the Court (submit Order Setting ...),” "Motion to Suppress (with no trial setting),” and "Other_"
. Appellant admitted he was not ready to sustain his burden of proof and needed to explore further discovery.
. This agreement is reflected in the docket entry showing that on April 6, 2009 this case was advanced to June 8, 2009 for jury trial.
. The State advised the trial court that appellant had requested the continuances between December 8, 2008 and the February 12, 2009 hearing in order to afford time to obtain relevant documentation from the New Mexico correctional facility, to prepare for the hearing, and to locate co-counsel to assist in his first motion to dismiss based on an alleged Article III violation. Appellant's counsel did not challenge or contradict the State's representations. Appellant’s counsel did contend these continuances and the February 12 hearing "in no way delayed the jury trial” and were "independent settings” unrelated to the jury trial.
. [STATE]: When he needed cocounsel on one of the settings to argue the appellate issues, the interstatement (sic) agreements when he requested an investigator to go to New Mexico; when he came — when we were talking about what documents he still needed to get from the New Mexico correctional facility; when we discussed what documents he needed from Mr. Kirvin’s advocate that helped him fill out some paperwork.
THE COURT: Well, according to the court records, the Defense filed a request for jury trial on October 7th of 2008, resetting it to December 8th, 2008. At that point on December 11th the Defense filed a reset requesting not a jury trial date, but a motion to dismiss date thereby talcing the case off the trial docket. That was done again on June 22nd (sic) again done on January 22nd and again done on February 4th.
It appears the Defense has abandoned their request for a jury trial and instead opted for several motions to dismiss. With that, the Court will deny the Motion to Dismiss. [DEFENSE]: Judge, may I argue or just state my case I guess.
THE COURT: Go ahead.
[DEFENSE]: The Court requires that when a case get — the Court requires that a case be set for something as the Court is well aware. But when you subsequently request a hearing, you have to put a pass slip in. And so that in the sense that I'm required to set something for a hearing, doesn't in any way [mean] that I’m abandoning my request for a jury trial. I’m simply informing the Court that we need a hearing. So by filing a pass slip stating that we want a hearing that's just letting the Court be aware that we are requesting a hearing so the Court can schedule it, order my client down or whatever the case may be.
We have in no way caused a delay as far as the jury trial.
. If the trial court had made findings of fact concerning its Article IV ruling, we would review the Endings supporting that decision under the clearly erroneous standard. Miles,
. In the state decision, People v. Hill,
. See also United States v. Winters,
. In addition, the record before us reflects uncontradicted State’s representations to the trial court that appellant requested and obtained a series of continuances during this period.
. Appellant’s authorities fail to support the argument that a continuance requested by a defendant does not constitute a delayed trial. Morganfield,
.The record shows that at the pretrial hearing conducted on February 12, 2009, appellant's counsel admitted the defense was still not ready and requested another continuance. The State objected, responding that this case should be tried. The trial court denied the motion and advised appellant’s counsel that the next step would be to set the case for trial: "The next step is-for the case to be set for trial, if that’s the Defense’s option.” The rec
. The record fails to show appellant registered surprise or disagreement that the case was not set for trial or that appellant moved for an immediate trial. We observe that the pretrial hearing procedure used by the trial court was in recognition of the fact the first motion to dismiss was a dispositive motion which could have terminated the entire proceeding.
. All emphasis in this excerpt has been added.
. We observe that appellant’s brief argues this issue as if his objections had been to a comment on appellant's failure to testify. Appellant reshapes his actual objections, arguing the prosecutor “seized upon” defense counsel's expression of empathy to comment on appellant’s failure to testify. But appellant did not object at this point in the State's argument to a comment on his failure to testify, so he has not preserved that issue for our review. See Massey v. State,
.The punishment range was confinement for a term of years not more than ninety-nine years or life nor less than five years and an optional fine not to exceed $10,000.
. Our record does not contain any written motion challenging the photo lineup procedure. We observe that appellant’s letter to the court reporter designates a transcription of testimony at pretrial hearings related to the admissibility of in-court identifications.
. Appellant does not complain on appeal that Lowery saw Graham’s name.
. Appellant's trial, as we discussed under his first issue, began on June 8, 2009.
. The handwritten motion is not file-stamped, but for purposes of this opinion we will assume the motion was filed.