## NUMBER 13 -23-00321-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

– EDINBURG

ABEL TREVINO

, Appellant,

v.

THE STATE OF TEXAS

, Appellee.

ON APPEAL FROM THE 319TH DISTRICT COURT

OF NUECES COUNTY, TEXAS



## MEMORANDUM OPINION

Before Justices Benavides

, Longoria, and Silva

Memorandum Opinion by Justice Silva

Appellant Abel Trevino was convicted of continuous sexual abuse of a young child,

a first

- degree felony, and indecency with a child by contact, a second

- degree felony, and2 sentenced to fifty

- five years ’ and ten years ’ imprisonment , respectively, with the

sentences to run concurrent. See T EX

. P ENAL C ODE A NN

. §§ 21.02 (b) , 2 1.11( a) (1)

. By one

issue, Trevino argues h is convictions violate double jeopardy. We affirm.

I. B ACKGROUND

Emily

, 1 the sixteen

- year

- old complainant, testified that she was thirteen when

Trevino , her stepfather, began “ touching [her] sexually

. ” Over the course of a few months,

Trevino progressed from t ouching her breasts over her clothes with his hands to engaging

in penile to vaginal penetrat ion

. The sexual abuse ended approximately six months later

,

on August 26, 2020, when Emily wrote a note to her grandmother , asking her to “ report”

Trevino :

Nana [,] I have something important to tell you [.] I can ’t say this out loud [,]

but I need you to do one of the most important things you will ever do for

me [.] I need you to report dad [.] [H]e has been using me [,] and I didn [’]t

know what to do [.] I took a pregnancy test today [.] It was positive. I need

you to report saying you overheard the conversation.

Emily ’s handwritten note was admitted into evidence at trial, as was a receipt and video

footage from the store Trevino and Emily purchase d the pregnancy test from hours before

her outcry

. Trevino ’s record ed statement to law enforcement, wherein he confessed to

“ f[]cking ” Emily multiple times for several months , was a lso admitted into evidence.

The jury returned a guilty verdict on both counts, and this appeal ensued.

1 We have assigned a pseudonym to the minor complainant to protect her privacy. See T EX

. C ONST

. art. 1, § 30(a)(1) (providing that a crime victim has “the right to be treated

. . . with respect for the victim ’ s

dignity and privacy throughout the criminal justice process”); T EX

. R. A PP

. P. 9.8 cmt.3 II. D OUBLE J EOPARDY

The Double Jeopardy Clause of the Fifth Amendment, which is applicable to the

states through the Fourteenth Amendment, protects a person from multiple punishments

for the same offense. U .S. C ONST

. amends. V, XIV; Garfias v. State

, 424 S.W.3d 54, 58

(Tex. Crim. App. 2014). “ In the multiple

- punishments context, two offenses may be the

same if one offense stands in relation to the other as a lesser- included offense, or if the

two offenses are defined under distinct statutory provisions but the Legislature has made

it clear that only one punishment is intended. ” Littrell v. State

, 271 S.W.3d 273, 275

– 76

(Tex. Crim. App. 2008) . We begin our analysis by examining the statute ’s literal text. Allen

v. State

, 620 S.W.3d 915, 918 (Tex. Crim. App. 2021)

.

A person commits the offense of continuous sexual abuse of a young child when

“ during a period that is 30 or more days in duration, the person commits two or more acts

of sexual abuse, ” and “ at the time of the commission of each of the acts of sexual abuse,

the actor is 17 years of age or older and the victim is ” a child younger than 14 years of

age . T EX

. P ENAL C ODE A NN . § 21.02 (b)(1), (2)(A). Subsection (c) e numerat es various

p redicate offenses which may serve as the “act of sexual abuse ” for purposes of the

continuous sexual abuse statute

. Id. § 21.02 (c). Dual convictions for continuous sexual

abuse and a predicate offense are generally prohibited. Id. § 21.02(e) ; Allen , 620 S.W.3d

at 920 (“ We also note that § 21.02(e) begins by saying that a defendant ‘ may not be

convicted’ of a § 21.02(c) offense

. ”). Indecency with a child committed by touching the

breast of a child, however, is not a predicate offense under the continuous sexual abuse

statute. T EX

. P ENAL C ODE A NN . § 21.02 (c) . Rather, it i s explicitly excluded. Id. ; see4 Carbajal v. State

, 659 S.W.3d 164, 185 (Tex. App.

— El Paso 2022, pet. ref ’ d) ; see also

Caballero v. State

, No. 13

- 22

- 00183

- CR, 2024 WL 484698, at *9 (Tex. App.

— Corpus

Christi

– Edinburg Feb. 8, 2024, no pet.) (mem. op., not designated for publication) (“ With

respect to indecency of a child, the touching of a child ’s breast

, including touching through

clothing, does not qualify as an ‘act of sexual abuse ’ under § 21.01. ” ). Therefore, the State

is entitled to prosecute the offense of indecency with a child committed by touching the

breast of a child separately and independently from a continuous -sexual- abuse

- of -a- child

charge

. See T EX

. P EN AL C ODE A NN . § 21.02 ; Carbajal

, 659 S.W.3d at 185

.

Trevino was indicted and convicted of the offenses of continuous sexual abuse of

a young child and i ndecency with a c hild by touching of the breast

. See T EX

. P EN AL C ODE

A NN

. §§ 21.02 (b) , 2 1.11(a)(1). Because the latter offense is specifically excluded as an

“act of sexual abuse ” under the c ontinuous s exual a buse of a y oung c hild statute

, see id.

§ 21.02 (c)

, Trevino ’s convictions are constitutionally permissible. See Carbajal

, 659

S.W.3d at 185 (affirming convictions for continuous sexual abuse of a child and indecency

with a child by contact for touching the breast of the child ) ; see also Daniel v. State , No.

02

- 22

- 00175

- CR, 2023 WL 3643628, at *1 (Tex. App.

— Fort Worth May 25, 2023, no pet.)

(mem. op., not designated for publication) (same) ; Banda v. State , No. 13

- 19

- 00587

- CR,

2021 WL 2006325, at * 1 (Tex. App.

— Corpus Christi

– Edinburg May 20, 2021, pet. ref’d)

(mem. op., not designated for publication) (same).

We overrule Trevino ’s sole issue.5 III. C ONCLUSION

We affirm the trial court ’ s judgment.

CLARISSA SILVA

Justice

Do not publish.

T EX

. R. A PP

. P. 47.2 ( b ).

Delivered and filed on the

11th day of July, 202 4

.