COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS
THE STATE OF TEXAS, § No. 08-23-00335-CR
Appellant, § Appeal from the
v. § 327th Judicial District Court
DIONICIO ARROYO, § of El Paso County, Texas
Appellee. § (TC# 20220D02275)
MEMORANDUM OPINION
Appellee Dionicio Arroyo was charged by multiple indictments with one count of
continuous sexual abuse of a child and four counts of aggravated sexual assault of a child. Arroyo
filed a motion to quash the indictment and the trial court granted his motion in part as to the
individual counts of aggravated sexual assault of a child. The State appeals the trial court’s order.
See Tex. Code Crim. Proc. Ann art. 44.01(a)(1). We reverse the trial court’s ruling and remand the
case to the trial court for further proceedings consistent with this opinion.
FACTUAL AND PROCEDURAL BACKGROUND
On June 21, 2022, Arroyo was indicted for one count of continuous sexual abuse of a child
(Count I) and four counts of aggravated sexual assault of a child (Counts II, III, IV, and V). In
Count I, the State alleged that, between October 20, 2011, and October 19, 2014, Arroyo committed “two or more acts of sexual abuse against G.D.A.U., a child younger than 14 years of
age, namely instances of aggravated sexual assault of a child.” In Counts II through V, the State
alleged Arroyo committed the act of aggravated sexual assault of a child younger than 6 years of
age by: (paragraph A) allegedly causing the penetration of G.D.A.U.’s sexual organ with Arroyo’s
sexual organ, and (paragraph B) allegedly causing the penetration of G.D.A.U.’s anus with
Arroyo’s sexual organ. Counts II through V differed only as to the date of the offense, as the
indictment alleged those counts occurred on or about October 20, 2011, October 20, 2012, October
20, 2013, and October 19, 2014, respectively.
On October 5, 2023, Arroyo filed a motion to quash the indictment. By his motion, Arroyo
requested the trial court quash the indictments as to Counts II through V because, he argued, they
were “predicate offenses” that violated Section 21.02(e) of the Texas Penal Code and the Fifth and
Fourteenth Amendments of the United States Constitution, which guaranteed protection against
double jeopardy. Additionally, Arroyo requested the trial court quash Count I because it failed to
provide him pretrial notice of the State’s prosecutorial theory.
The trial court held a hearing on the motion to quash, where it received argument from both
sides. The trial court entered an order denying Arroyo’s request to quash the indictment on Count
I and granting Arroyo’s request to quash the indictment on Counts II, III, IV, and V. The State’s
appeal followed.
STANDARD OF REVIEW AND APPLICABLE LAW
The standard of review of a trial court’s ruling on a motion to quash turns on which judicial
actor is in the best position to determine the issue in controversy. See Guzman v. State, 955 S.W.2d
85, 87 (Tex. Crim. App. 1997) (en banc); see also Holton v. State, 487 S.W.3d 600, 608
(Tex. App.—El Paso 2015, no pet.). Questions of law—such as the sufficiency of an indictment—
2 are reviewed de novo because neither the trial court nor the reviewing court occupy an appreciably
better position than the other to decide the relevant issue; on the other hand, rulings that turn on
evaluations of witness credibility and demeanor are reviewed for an abuse of discretion because
the appellate court—deciding the issue from a cold record—is in an appreciably weaker position
than the trial court in that circumstance. See State v. Moff, 154 S.W.3d 599, 601 (Tex. Crim. App.
2004); Guzman, 955 S.W.2d at 89; Holton, 487 S.W.3d 609.
In this case, Arroyo raised a double jeopardy claim that did not require the trial court to
evaluate the credibility or demeanor of witnesses. The trial court’s decision was based on the
indictments, the motion to quash, and the argument of counsel. Accordingly, in this case, we
determine that a de novo review is the appropriate standard of review to be employed when
reviewing the trial court’s decision to quash Counts II, III, IV, and V of the indictment. Moff, 154
S.W.3d at 601.
The Double Jeopardy Clause of the Fifth Amendment protects a defendant against being
placed twice in jeopardy for the same offense. U.S. Const. Amend. V. It encompasses separate
guarantees: the protection against prosecution for the same offense following an acquittal,
protection against prosecution for the same offense following a conviction, and protection against
multiple punishments for the same offense. Illinois v. Vitale, 447 U.S. 410, 415 (1980); Ramos v.
State, 636 S.W.3d 646, 651 (Tex. Crim. App. 2021); Carbajal v. State, 659 S.W.3d 164, 187
(Tex. App.—El Paso 2022, pet. ref’d).
MOTION TO QUASH
In its sole issue, the State asserts the trial court erred in granting Arroyo’s motion to quash
the indictment for Counts II, III, IV, and V.
3 A. Appellee’s brief
Arroyo notified the Court that he would not be filing a brief to assist the Court in the
disposition of this appeal. In a criminal case, we treat an appellee’s failure to file a brief as a
confession of error. See State v. Police, 377 S.W.3d 33, 34 (Tex. App.—Waco 2012, no pet.); State
v. Fielder, 376 S.W.3d 784, 785 (Tex. App.—Waco 2011, no pet.). But the confession of error is
not conclusive. Rather, we still must make an independent examination of the merits of the issues
presented for review. Police, 377 S.W.3d at 34. In doing so, we are limited to the arguments
advanced by the appellee in the trial court so that we do not advance new arguments on his behalf.
Id.
To the trial court, Arroyo asserted his rights against double jeopardy would be violated if
he was convicted of all charged offenses because the indictment charging him concerned the same
child and the same time frame. Arroyo asserted that Counts II through V were predicate offenses
of continuous sexual abuse, and the legislature did not intend for him to be convicted of all the
charges.
B. Analysis
The State contends that the Texas Penal Code provides that “acts of sexual abuse” that
serve as the component offenses under the continuous sexual abuse of a child statute may be
charged in the alternative as separate independent counts in addition to the continuous sexual abuse
count. Additionally, it contends the State is permitted to proceed to trial on a multiple-count
indictment based on violations of different statutes, even if the offenses are the same for double-
jeopardy purposes, as long as the defendant is ultimately convicted and sentenced for only one
such offense. Because double-jeopardy protections have not yet been implicated at this procedural
4 juncture of the case, the State asserts the trial court erred in determining that Counts II through V
violated Arroyo’s rights against double jeopardy. We agree with the State.
Relevant to the procedural posture of this appeal, the double jeopardy clause provides two
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COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS
THE STATE OF TEXAS, § No. 08-23-00335-CR
Appellant, § Appeal from the
v. § 327th Judicial District Court
DIONICIO ARROYO, § of El Paso County, Texas
Appellee. § (TC# 20220D02275)
MEMORANDUM OPINION
Appellee Dionicio Arroyo was charged by multiple indictments with one count of
continuous sexual abuse of a child and four counts of aggravated sexual assault of a child. Arroyo
filed a motion to quash the indictment and the trial court granted his motion in part as to the
individual counts of aggravated sexual assault of a child. The State appeals the trial court’s order.
See Tex. Code Crim. Proc. Ann art. 44.01(a)(1). We reverse the trial court’s ruling and remand the
case to the trial court for further proceedings consistent with this opinion.
FACTUAL AND PROCEDURAL BACKGROUND
On June 21, 2022, Arroyo was indicted for one count of continuous sexual abuse of a child
(Count I) and four counts of aggravated sexual assault of a child (Counts II, III, IV, and V). In
Count I, the State alleged that, between October 20, 2011, and October 19, 2014, Arroyo committed “two or more acts of sexual abuse against G.D.A.U., a child younger than 14 years of
age, namely instances of aggravated sexual assault of a child.” In Counts II through V, the State
alleged Arroyo committed the act of aggravated sexual assault of a child younger than 6 years of
age by: (paragraph A) allegedly causing the penetration of G.D.A.U.’s sexual organ with Arroyo’s
sexual organ, and (paragraph B) allegedly causing the penetration of G.D.A.U.’s anus with
Arroyo’s sexual organ. Counts II through V differed only as to the date of the offense, as the
indictment alleged those counts occurred on or about October 20, 2011, October 20, 2012, October
20, 2013, and October 19, 2014, respectively.
On October 5, 2023, Arroyo filed a motion to quash the indictment. By his motion, Arroyo
requested the trial court quash the indictments as to Counts II through V because, he argued, they
were “predicate offenses” that violated Section 21.02(e) of the Texas Penal Code and the Fifth and
Fourteenth Amendments of the United States Constitution, which guaranteed protection against
double jeopardy. Additionally, Arroyo requested the trial court quash Count I because it failed to
provide him pretrial notice of the State’s prosecutorial theory.
The trial court held a hearing on the motion to quash, where it received argument from both
sides. The trial court entered an order denying Arroyo’s request to quash the indictment on Count
I and granting Arroyo’s request to quash the indictment on Counts II, III, IV, and V. The State’s
appeal followed.
STANDARD OF REVIEW AND APPLICABLE LAW
The standard of review of a trial court’s ruling on a motion to quash turns on which judicial
actor is in the best position to determine the issue in controversy. See Guzman v. State, 955 S.W.2d
85, 87 (Tex. Crim. App. 1997) (en banc); see also Holton v. State, 487 S.W.3d 600, 608
(Tex. App.—El Paso 2015, no pet.). Questions of law—such as the sufficiency of an indictment—
2 are reviewed de novo because neither the trial court nor the reviewing court occupy an appreciably
better position than the other to decide the relevant issue; on the other hand, rulings that turn on
evaluations of witness credibility and demeanor are reviewed for an abuse of discretion because
the appellate court—deciding the issue from a cold record—is in an appreciably weaker position
than the trial court in that circumstance. See State v. Moff, 154 S.W.3d 599, 601 (Tex. Crim. App.
2004); Guzman, 955 S.W.2d at 89; Holton, 487 S.W.3d 609.
In this case, Arroyo raised a double jeopardy claim that did not require the trial court to
evaluate the credibility or demeanor of witnesses. The trial court’s decision was based on the
indictments, the motion to quash, and the argument of counsel. Accordingly, in this case, we
determine that a de novo review is the appropriate standard of review to be employed when
reviewing the trial court’s decision to quash Counts II, III, IV, and V of the indictment. Moff, 154
S.W.3d at 601.
The Double Jeopardy Clause of the Fifth Amendment protects a defendant against being
placed twice in jeopardy for the same offense. U.S. Const. Amend. V. It encompasses separate
guarantees: the protection against prosecution for the same offense following an acquittal,
protection against prosecution for the same offense following a conviction, and protection against
multiple punishments for the same offense. Illinois v. Vitale, 447 U.S. 410, 415 (1980); Ramos v.
State, 636 S.W.3d 646, 651 (Tex. Crim. App. 2021); Carbajal v. State, 659 S.W.3d 164, 187
(Tex. App.—El Paso 2022, pet. ref’d).
MOTION TO QUASH
In its sole issue, the State asserts the trial court erred in granting Arroyo’s motion to quash
the indictment for Counts II, III, IV, and V.
3 A. Appellee’s brief
Arroyo notified the Court that he would not be filing a brief to assist the Court in the
disposition of this appeal. In a criminal case, we treat an appellee’s failure to file a brief as a
confession of error. See State v. Police, 377 S.W.3d 33, 34 (Tex. App.—Waco 2012, no pet.); State
v. Fielder, 376 S.W.3d 784, 785 (Tex. App.—Waco 2011, no pet.). But the confession of error is
not conclusive. Rather, we still must make an independent examination of the merits of the issues
presented for review. Police, 377 S.W.3d at 34. In doing so, we are limited to the arguments
advanced by the appellee in the trial court so that we do not advance new arguments on his behalf.
Id.
To the trial court, Arroyo asserted his rights against double jeopardy would be violated if
he was convicted of all charged offenses because the indictment charging him concerned the same
child and the same time frame. Arroyo asserted that Counts II through V were predicate offenses
of continuous sexual abuse, and the legislature did not intend for him to be convicted of all the
charges.
B. Analysis
The State contends that the Texas Penal Code provides that “acts of sexual abuse” that
serve as the component offenses under the continuous sexual abuse of a child statute may be
charged in the alternative as separate independent counts in addition to the continuous sexual abuse
count. Additionally, it contends the State is permitted to proceed to trial on a multiple-count
indictment based on violations of different statutes, even if the offenses are the same for double-
jeopardy purposes, as long as the defendant is ultimately convicted and sentenced for only one
such offense. Because double-jeopardy protections have not yet been implicated at this procedural
4 juncture of the case, the State asserts the trial court erred in determining that Counts II through V
violated Arroyo’s rights against double jeopardy. We agree with the State.
Relevant to the procedural posture of this appeal, the double jeopardy clause provides two
distinct protections—the protection against successive prosecutions and the protection against
multiple punishments. See United States v. Dixon, 509 U.S. 688, 696 (1993); Ex parte Chaddock,
369 S.W.3d 880, 882 (Tex. Crim. App. 2012). The first protection guards against being tried
repeatedly for the same offense. See Ex parte Robinson, 641 S.W.2d 552, 555 (Tex. Crim.
App. [Panel Op.] 1982). The second protects against multiple punishments beyond what the
legislature intended. See Missouri v. Hunter, 459 U.S. 359, 365-66 (1983). The protection against
being tried repeatedly is inapplicable to a multiple-punishments double-jeopardy claim because
the latter does not involve a right to avoid trial. See Ex parte Aubin, 537 S.W.3d 39, 43 (Tex. Crim.
App. 2017); Robinson, 641 S.W.2d at 555. Here, Arroyo’s complaint involves the second
protection.
“The multiple-punishments protection against double jeopardy does not prohibit multiple
jury verdicts of guilt within a single trial but only the imposition of multiple convictions and
multiple punishments.” Ex parte Chapa, No. 03-18-00104-CR, 2018 WL 3999741, at *6
(Tex. App.—Austin Aug. 22, 2018, pet. ref’d) (mem. op., not designated for publication) (citing
Aubin, 537 S.W.3d at 43 and Evans v. State, 299 S.W.3d 138, 141 (Tex. Crim. App. 2009)). When
a conviction occurs in a single criminal trial, the role of the double-jeopardy guarantee “is limited
to assuring that the court does not exceed its legislative authorization by imposing multiple
punishments for the same offense.” Aubin, 537 S.W.3d at 43 (quoting Brown v. Ohio, 432 U.S.
161, 165 (1977)). It is only upon entry of a judgment for multiple offenses, after sentencing, that
a multiple-punishments violation even occurs. Id. at 43–44.
5 The State asserts it is permitted to “seek a multiple-count indictment based on violations
of different statutes, even when such violations are established by a single act,” and even when
recognizing that a defendant can ultimately be convicted and sentenced for only one of the
offenses. Evans, 299 S.W.3d at 141. Under Penal Code Section 21.02(b), a person commits
continuous sexual abuse of a child when, “during a period that is 30 or more days,” he “commits
two or more acts of sexual abuse” against a child younger than 14 years old. Tex. Penal Code Ann.
§ 21.02(b). “Acts of sexual abuse” are independent Penal Code violations and are lesser-included
offenses of continuous sexual abuse. See id. § 21.02(c); Soliz v. State, 353 S.W.3d 850, 854
(Tex. Crim. App. 2011). Relevant here, aggravated sexual assault is an act of sexual abuse that
may serve as a continuous sexual abuse component offense. See Tex. Penal Code Ann.
§ 21.02(c)(2), (4).
The statute further provides that, when the State proceeds to trial on a continuous sexual
abuse indictment, a defendant cannot be convicted of any “act of sexual abuse” that serves as a
component offense unless the “act of sexual abuse” was (1) “charged in the alternative;” (2)
occurred outside the period in which the alleged continuous sexual abuse offense was committed;
or (3) is considered by the trier of fact to be a lesser-included offense of the alleged continuous
sexual abuse offense. Id. § 21.02(e).
In other words, as a matter of law, a person cannot be convicted of both continuous sexual
abuse of a child and the lesser-included offenses that serve as components of the continuous sexual
abuse count. See Price v. State, 434 S.W.3d 601, 606 (Tex. Crim. App. 2014); Morriss v. State,
No. 02-20-00082-CR, 2021 WL 4101626, at *3 (Tex. App.—Fort Worth Sept. 9, 2021, pet. ref’d)
(mem. op., not designated for publication). However, the “acts of sexual abuse” that serve as
component offenses can be charged in the alternative as separate, independent counts in addition
6 to the continuous sexual abuse count. See Tex. Penal Code Ann. § 21.02(e)(1). In short,
§ 21.02(e)(1) permits the State to charge in the alternative, and Texas Code of Criminal Procedure
Article 21.24 permits the State “to expand the number of counts to accommodate charging all the
lesser as separate alternative counts.” See Mohler v. State, No. 02-19-00398-CR, 2020 WL
6065910, at *6 (Tex. App.—Fort Worth Oct. 15, 2020, pet. ref’d) (mem. op., not designated for
publication). Accordingly, “[t]he State has the statutory means to obtain multiple convictions on
the lessers if the jury finds the defendant not guilty of the continuous-sexual-abuse offense.” Id.
Here, no sentence has yet been imposed and no judgment has yet been entered that subjects
Arroyo to multiple punishments for the same offense. Arroyo’s charges are merely pending at this
juncture. Jeopardy has not yet attached, and Arroyo has no substantive right to avoid trial.
Accordingly, Arroyo’s double jeopardy claim is premature. See Chapa, 2018 WL 3999741, at *6
(affirming denial of defendant’s pretrial application for writ of habeas corpus where he sought to
quash the indictment charging him with multiple child sexual abuse offenses because his multiple-
punishment double-jeopardy claim was not cognizable in a pretrial application); see also Lorduy
v. State, No. 10-22-00159-CR, 2023 WL 5434511, at *2 (Tex. App.—Waco Aug. 23, 2023, pet.
ref’d) (mem. op., not designated for publication) (overruling defendant’s complaint, on direct
appeal, that trial counsel was deficient for not filing a pretrial motion to quash indictment on
double-jeopardy grounds because it would have been premature as no sentence had yet been
imposed and no judgment had yet been entered).
We sustain the State’s sole issue.
7 CONCLUSION
We reverse the portion of the trial court’s order granting Arroyo’s motion to quash the
indictment as to Counts II, III, IV, and V. We remand these cases for proceedings consistent with
this opinion.
GINA M. PALAFOX, Justice
May 10, 2024
Before Alley, C.J., Palafox and Soto, JJ.
(Do Not Publish)