COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

THE STATE OF TEXAS,

 Appellant, 

v. 

DIONICIO ARROYO, 

 Appellee. 

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No. 08-23-00335-CR

Appeal from the 

327th Judicial District Court

of El Paso County, Texas 

(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 
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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—
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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.
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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 doublejeopardy 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 
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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.
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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 
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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 multiplepunishment 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.
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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)