Javier Eguade v. State
08-15-00268-CR
| Tex. App. | Jul 31, 2017Background
- Javier Eguade (born 1989) was indicted for three counts of aggravated sexual assault of a child arising from allegations by L.D.R.; juvenile court had previously transferred jurisdiction to district court.
- Count I: penile‑vaginal penetration; Count II: anal penetration (dismissed at close of State’s case for lack of evidence); Count III: contact between victim’s mouth and appellant’s sexual organ.
- Jury acquitted on Count I, convicted on Count III; appellant elected judge‑assessed punishment and received a ten‑year probated sentence.
- Appellant moved for new trial (overruled by operation of law) and appealed raising three issues: jurisdictional defect in transfer order, omission of a Penal Code §8.07(a)(6) age instruction in the charge, and improper limitation on defense closing argument regarding the State’s abandonment of Count II.
- Trial evidence: victim testified to incidents when she was entering first grade (supported by school records placing incidents in 2005–06); multiple witnesses corroborated timing and family relationship; no evidence of anal penetration.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Eguade) | Held |
|---|---|---|---|
| 1. Jurisdiction — whether juvenile transfer order covered conduct proved at trial | Transfer order and indictment language ("on or about") permit proof of conduct within the certified period; state may prove date other than indictment date so long as within limitations | Transfer order only waived jurisdiction for specific juvenile conduct alleged (2005 dates); conviction rested on a 2003 allegation not covered by transfer | Affirmed — no jurisdictional defect; "on or about" allegations and record support that proven conduct arose from the transferred conduct |
| 2. Charge error — omission of Penal Code §8.07(a)(6) instruction (age‑limit for conviction) | No instruction required because all admissible evidence showed appellant was ≥14 at time of offenses and parties stipulated focus was on 2005 allegations | Failure to instruct was egregious because jury could convict based on conduct occurring before age 14 | Affirmed — no error: no evidence supported a conviction based on pre‑14 conduct, so omission did not cause egregious harm |
| 3. Closing argument — prohibition on arguing significance of State abandoning Count II | Limiting argument to the jury charge was proper; counsel may not argue facts not in evidence or not in the charge | Defense should be allowed to highlight abandonment of Count II as impeachment of victim’s credibility | Affirmed — trial court did not abuse discretion; argument about dismissed Count II concerned matters not in the charge and was therefore improper |
Key Cases Cited
- Ex parte Allen, 618 S.W.2d 357 (Tex.Crim.App. 1981) (juvenile court waiver relates only to conduct in transfer order)
- Brosky v. State, 915 S.W.2d 120 (Tex.App. Fort Worth 1996) (State may charge an offense in criminal court if it is based on conduct for which juvenile court ordered transfer)
- Mitchell v. State, 330 S.W.2d 459 (Tex.Crim.App. 1959) (indictment need not allege a specific date; "on or about" language allows proof of other dates within limitation)
- Sledge v. State, 953 S.W.2d 253 (Tex.Crim.App. 1997) ("on or about" permits proof of date other than alleged if within limitations)
- Sanchez v. State, 400 S.W.3d 595 (Tex.Crim.App. 2013) (same rule regarding "on or about" indictments and limitations)
- Taylor v. State, 332 S.W.3d 483 (Tex.Crim.App. 2011) (trial court must instruct on Penal Code §8.07 when charge otherwise allows conviction for chronologically broader juvenile conduct)