Rito Duenas-Quintero v. State, 05-14-00192-CR

Background

Duenas was convicted by a jury of indecency with a child and sentenced to eight years’ imprisonment.
The case involved C.H., an eleven-year-old, who testified about multiple instances of touching by Duenas.
Duenas is related as C.H.’s great-uncle and lived with the family at times.
During trial, the State abandoned language in the charged indictment to seek a lesser-included offense, indecency with a child.
The trial court informed Duenas that the offense had been reduced to a second-degree felony, though the face of the indictment remained unchanged.
The judgment initially identified the offense as continuous sexual abuse of a child, later corrected on appeal to indecency with a child, 2nd degree felony.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Was there jurisdictional defect due to transfer of the case between courts?	Duenas argues lack of transfer order from 204th to CDA1 and then to other courts voids jurisdiction.	State contends no transfer order was required where grand jury was empaneled by one court but indictment filed elsewhere; any transfer deficiency is non-jurisdictional.	No jurisdictional defect; lack of transfer order is procedural, not jurisdictional; waiver occurred due to no plea to the jurisdiction.
Did the indictment amendment affect Duenas’s rights or require compliance with articles 28.10–28.11?	Duenas contends amendment was improper, leaving offense unchanged; insufficiency against original continuous-sexual-abuse charge.	State abandoned language but did not amend the indictment; lesser-included offense pursued.	Waived objection; abandonment of language did not constitute an impermissible amendment; Court need not address continuous sexual abuse sufficiency.
Is the evidence sufficient to sustain the indecency with a child conviction?	Duenas contends evidence and intent to arouse were insufficient.	State asserts C.H.’s testimony and surrounding conduct show intent to arouse or gratify sexual desire.	Evidence sufficient; rational jurors could infer intent from conduct and corroborating testimony.
Was the jury instruction on parole eligibility and good conduct time fundamentally flawed?	Erroneous instruction potentially biased jury toward longer sentence by mis-stating parole eligibility.	Instructions, including curative statements, adequately framed parole and good conduct time application.	No egregious harm; instruction, in context with curative language and mitigation, did not deprive fair trial.
Should the judgment be modified to reflect the correct offense and statutory basis?	Judgment mis-stated offense family; needs correction to indecency with a child, 2nd-degree felony.	N/A (Court sua sponte)	Judgment modified on appeal to reflect indecency with a child, 2nd-degree felony under section 21.11.

Key Cases Cited

Eastep v. State, 941 S.W.2d 130 (Tex. Crim. App. 1997) (distinguishes amendment from abandonment of language in an indictment)
Gollihar v. State, 46 S.W.3d 243 (Tex. Crim. App. 2001) (limits on amendments and indicates surplusage considerations)
Mills v. State, 742 S.W.2d 831 (Tex. App.—Dallas 1987) (amendment/transfer issues treated as non-jurisdictional procedural defects when no plea to jurisdiction is filed)
Lemasurier v. State, 91 S.W.3d 897 (Tex. App.—Fort Worth 2002) (absence of transfer order is procedural; waiver if no plea to jurisdiction)
Soliz v. State, 353 S.W.3d 850 (Tex. Crim. App. 2011) (state may pursue a lesser-included offense when appropriate)