Kirvin v. State

• Decision Date: 13 May 2011
• Docket Number: No. 05–09–00734–CR.,05–09–00734–CR.
• Citation: 394 S.W.3d 550
• Parties: Paulbert Tanard KIRVIN, Appellant v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

394 S.W.3d 550

Paulbert Tanard KIRVIN, Appellant

v.The STATE of Texas, Appellee.

No. 05–09–00734–CR.

Court of Appeals of Texas, Dallas.

May 13, 2011.

Russ Henrichs, Dallas, for Appellant.

Karen R. Wise, Asst. Dist. Atty., Craig Watkins, Dallas, for the State of Texas.

Before Justices FITZGERALD, MURPHY, and FILLMORE.

OPINION

Opinion By Justice FITZGERALD.

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 denied a speedy trial under the Interstate Agreement on Detainers Act, Tex.Code Crim. Proc. Ann. art. 51.14, art. IV (West 2006) (“IADA”). Appellant argues that the continuances he requested did not delay the trial.

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.¹ This motion alleged an IADA Article III violation, that is, the failure to try appellant within 180 days based on his request for a speedy trial in Texas. Pursuant to a state detainer and request for temporary custody, appellant was transferred from a New Mexico prison to the Dallas County jail. On the date of trial, appellant filed a second motion to dismiss. The second motion alleged an IADA Article IV violation, that is, the failure to try appellant within 120 days based on the State's request to try appellant. This appeal concerns only the alleged Article IV violation.

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.³ Both pass slips were signed by counsel for the State and for appellant, and were, on their face, agreed requests for continuance.

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.⁴ The State replied that appellant's efforts would “circumvent the clearly-enumerated provisions of the Interstate Agreement on Detainers” and that “we need to proceed with” trial. The State opposed any further delay. The trial court denied the motion and stated that “[t]he next step is for the case to be set for trial, if that's the Defense's option. But, at this time, Defense has not met its burden.” The case was continued to July 13, 2009 for jury trial. However, on April 6, 2009, the jury trial date was moved up by agreement to June 8, 2009.

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 IADA 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, 2009.⁵ The State responded that on several occasions between December 2008 and February 2009, appellant had not been ready for the hearing on his motion. The court noted five continuances caused by appellant—four of which were during the relevant period and caused by his motions to dismiss.⁶ Appellant responded that he “in no way caused a delay as far as the jury trial.” ⁷ The trial court denied the motion to dismiss, concluding that, as early as December 8, 2008, appellant did not request a jury trial, but instead requested a hearing on his pretrial motion to dismiss. The case proceeded to trial.

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, 101 S.W.3d 180, 183 (Tex.App.-Dallas 2003, no pet.); State v. Sephus, 32 S.W.3d 369, 372 (Tex.App.-Waco 2000, pet. ref'd).⁸

The IADA is a congressionally sanctioned compact between the United States and the states, including Texas, that have adopted it. Miles, 101 S.W.3d at 183. The statute's purpose is “to provide for the speedy disposition of charges filed in one jurisdiction against prisoners who are serving sentences in another jurisdiction.” Morganfield v. State, 919 S.W.2d 731, 733 (Tex.App.-San Antonio 1996, no pet.) (quoting Birdwell v. Skeen, 983 F.2d 1332, 1335 (5th Cir.1993)). The IADA is a federal law subject to federal construction. New York v. Hill, 528 U.S. 110, 111, 120 S.Ct. 659, 145 L.Ed.2d 560 (2000). The IADA has been described as a measure enacted to “avoid prosecutorial delay.” Ex parte Saylor, 734 S.W.2d 55, 57 (Tex.App.-Houston [1st Dist.] 1987, no pet.).

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. III(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, 919 S.W.2d at 735. In Morganfield, the court concluded the length of the continuance can be subtracted from the total number of days between the book-in date and the first day of trial. 919 S.W.2d at 735. In other words, the time period within which the State must commence trial is extended when the trial court grants a necessary or reasonable continuance. Bell v. State, 768 S.W.2d 790, 801 (Tex.App.-Houston [14th Dist.] 1989, pet. ref'd).

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, 983 F.2d at 1336. We treat agreed resettings as continuances that are deemed necessary and reasonable. Petrick v. State, 832 S.W.2d 767, 772 (Tex.App.-Houston [1st Dist.] 1992, pet. ref'd); Schin v. State, 744 S.W.2d 370, 375 (Tex.App.-Dallas 1988, pet. ref'd); Saylor, 734 S.W.2d at 56. In Huffines v. State, 646 S.W.2d 612, 614 (Tex.App.-Dallas 1983, pet. ref'd), this Court held that “where the State and the accused agree to a continuance in the record, and no other explanation therefor is provided by the record, we must deem the continuance ‘necessary and reasonable’ as provided by Article IV(c).” Appellant's personal consent is not required; counsel's signature is sufficient. Petrick, 832 S.W.2d at 772. Further, the “open court” requirement was intended to “prohibit ex parte and sua sponte continuances” and does not mandate a formal proceeding. Snyder v. Sumner, 960 F.2d 1448, 1457 (9th Cir.1992); United States v. Odom, 674 F.2d 228, 231(4th Cir.1982).

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.” ⁹528 U.S. at 113, 120 S.Ct. 659. Requiring a case to be dismissed when a time overrun is occasioned by a defendant's motion or request for continuance would be tantamount to ...