Court of Appeals Tenth Appellate District of Texas
10-24-00276-CR
Milton Coster Hill, Appellant
v.
The State of Texas, Appellee
On appeal from the 369th District Court of Leon County, Texas Judge Charles Michael Davis, presiding Trial Court Cause No. 23-0042CR
JUSTICE SMITH delivered the opinion of the Court.
MEMORANDUM OPINION
Milton Coster Hill was charged with ten counts of various acts of sexual
abuse against two different children, A.H. and S.H. After a jury trial, Hill was
convicted of seven of the alleged counts and acquitted of three counts.1 In six
1 In accordance with the jury verdicts, Hill was sentenced to serve forty-five years in prison on one
count of continuous sexual abuse of a child, twenty years in prison with a $10,000 fine on one count of sexual assault of a child, seven years in prison with a $7,500 fine on one count of attempted sexual assault of a child, and ten years in prison with a $5,000 fine on each of four indecency with a child by contact convictions. The trial court ordered the sentences to be served consecutively. issues, Hill disputes the denial of his motion to recuse the trial judge, alleges
a due-process violation based on actual bias of the trial judge, challenges the
trial court’s admission of certain evidence, and presents facial and as-applied
constitutional challenges to the continuous sexual abuse statute as volitive of
his rights to a unanimous jury verdict and to be free from cruel and unusual
punishment. We affirm.
Recusal Motion
In his first issue, Hill argues that the Honorable Alfonso Charles,
Presiding Judge of the Tenth Administrative Judicial Region, abused his
discretion in denying Hill’s pre-trial motion to recuse the Honorable Judge
Charles Michael Davis, former District Judge of the 369th Judicial District
Court of Leon County, from presiding over this case. We disagree.
STANDARD OF REVIEW AND RELEVANT LAW
The rules of civil procedure concerning the recusal of judges apply in
criminal cases. See Gaal v. State, 332 S.W.3d 448, 452-53 (Tex. Crim. App.
2011). Relevant here, Rule 18b(b) provides that a judge must recuse himself
in any proceeding in which “(1) the judge’s impartiality might reasonably be
questioned; [or] (2) the judge has a personal bias or prejudice concerning the
subject matter or a party[.]” TEX. R. CIV. P. 18b(b)(1), (2).
Milton Coster Hill v. The State of Texas Page 2 We review a denial of a motion to recuse for an abuse of discretion. See
Gaal, 332 S.W.3d at 455.
RELEVANT FACTS
Hill’s pre-trial motion to recuse Judge Davis under Rule 18b(b)(1) and
(2) alleged that Judge Davis harbored a personal bias against Hill, improperly
inserted himself into the plea-bargaining process, and demonstrated that he
was unable to consider the full range of punishment. Judge Charles held a
hearing on the motion, at which one of Hill’s trial attorneys and Hill’s wife
testified.
The basic facts are largely undisputed. The recusal motion stems from
two specific incidents. First, a few months prior to the recusal motion being
filed, Hill’s wife attended an unrelated criminal trial in Judge Davis’s
courtroom. Judge Davis banned Hill’s wife from the proceedings after she
violated a policy prohibiting notetaking in the courtroom. The second incident
concerns the parties’ plea negotiations a few days before trial was scheduled to
begin. The State and defense counsel contacted Judge Davis via conference
call to discuss a proposed plea agreement to resolve the case. Judge Davis
informed the parties that he would not accept the proposed plea agreement.
The parties continued to negotiate and reached a second tentative plea
agreement. Via conference call, Judge Davis informed the parties that he
Milton Coster Hill v. The State of Texas Page 3 would not accept the second proposed agreement. Defense counsel then asked
Judge Davis what terms he would accept, and Judge Davis informed the
parties of a plea bargain agreement that he would be comfortable with.2 Later
that day, Judge Davis sent an ex parte text message to the District Attorney
asking whether any agreement had been reached. The District Attorney
informed Judge Davis that no agreement was reached and then informed
defense counsel of the ex parte communication.
After the hearing, Judge Charles denied the recusal motion. In
explaining his decision, Judge Charles stated that the allegations regarding
Mrs. Hill were insufficient to justify recusal and that the ex parte
communication with the District Attorney was merely a request for a status
update for scheduling purposes. As to Judge Davis’s involvement in the plea
negotiations, Judge Charles considered that defense counsel specifically asked
Judge Davis to inform the parties what plea bargain terms he would accept.
Judge Charles also compared the facts of this case to Gaal and Free v. State,
No. 08-11-00024-CR, 2012 WL 651638, at *1-3 (Tex. App.—El Paso Feb. 29,
2012, no pet.) (mem. op., not designated for publication), and determined that
Judge Davis’s conduct, while not advisable, qualified as permissibly advising
the parties of whether he would accept or reject a plea agreement.
2 The parties agree that the plea bargain would require Hill to serve ten years in prison followed by
ten years of deferred adjudication community supervision.
Milton Coster Hill v. The State of Texas Page 4 ANALYSIS
Regarding Judge Davis’s conduct toward Mrs. Hill at the unrelated
criminal proceeding, ordinary efforts at courtroom administration do not
render a trial judge subject to recusal. See Gaal, 332 S.W.3d at 454. Nothing
in Mrs. Hill’s testimony indicated that Judge Davis was aware of her affiliation
with any pending case in his courtroom at the time he banned her for violating
his policy on notetaking.3 Though, according to Hill’s trial attorney, Judge
Davis brought up this incident several months later, Judge Charles did not
abuse his discretion in determining that this did not demonstrate impartiality
or bias warranting recusal.
We also find that Judge Charles did not abuse his discretion in
determining that Judge Davis’s plea-related statements were insufficient to
require recusal. On appeal, Hill attempts to distinguish this case from the
cases cited by Judge Charles in support of his decision. A brief discussion of
those cases is warranted.
In Gaal, the unanimous Court of Criminal Appeals upheld a decision to
deny a recusal motion where the trial court refused to accept any plea bargain
agreement unless the plea bargain was for the maximum sentence. See id. at
449, 460. The Court pointed out that “the trial judge in this case gave no
3 Mrs. Hill testified that Judge Davis referred to her as “[t]he woman taking notes[.]”
Milton Coster Hill v. The State of Texas Page 5 indication as to what sentence he would or would not impose at a punishment
hearing. He stated only that he would not accept a plea bargain unless for the
maximum term of ten years.” Id. at 457.
In Free, the El Paso Court of Appeals upheld the denial of a recusal
motion alleging that the trial judge demonstrated a personal bias against the
defendant for refusing to accept a plea agreement. Free, 2012 WL 651638, at
*2-3. The defendant was indicted in count one on a second-degree felony drug
charge and in count two on a third-degree felony drug charge. Id. at *1.
Enhancement paragraphs for the offenses of aggravated sexual assault of a
child, felony theft, and forgery, elevated the punishment range on each charge
to a minimum of twenty-five years in prison. Id. The trial court rejected the
parties’ proposed plea agreement in which the State would dismiss count one
in exchange for Free’s guilty plea to count two with a punishment
recommendation of twenty years in prison. Id. The El Paso Court of Appeals,
discussing the charges and enhancements before the trial court, reiterated that
“absent other evidence, a trial judge’s rejection of a plea agreement is not
sufficient evidence of bias or partiality to necessitate recusal.” Id. at *3.
Here, as in Gaal, Judge Davis’s statements were made in the context of
advising the parties whether he would accept or reject certain plea agreements,
not whether he could consider the full range of punishment if asked to assess
Milton Coster Hill v. The State of Texas Page 6 punishment. Hill admits as much on appeal, stating that Judge Davis “stated
unequivocally that he was unwilling to consider any agreement that would
permit [Hill’s] release from prison before he served ten years.” (emphasis
added). Additionally, here, as in Free, Judge Davis’s refusal to accept certain
plea agreements was informed by the charges before him. Hill faced ten felony
charges alleging various sexual offenses against two different complainants
over the course of many years. One such offense carried a minimum
punishment of twenty-five years in prison without the possibility of parole.
The parties agree that they also provided Judge Davis with a limited rendition
of the facts of the case in their discussions. Considering the information before
Judge Davis, we cannot say that his plea agreement parameters evidence a
bias or prejudice against Hill such that his impartiality might reasonably be
questioned. A trial judge has discretion to reject any particular plea agreement
or all plea agreements. Rhodes v. State, 357 S.W.3d 796, 800 (Tex. App.—
Houston [14th Dist.] 2011, no pet.).
Finally, while we are certainly mindful that trial judges should “avoid
the appearance of any judicial coercion or prejudgment of the defendant” by
participating in plea discussions, we disagree with Hill’s characterization that
Judge Davis “injected himself” into the plea negotiations. See Perkins v. Court
of Appeals for Third Supreme Judicial Dist., 738 S.W.2d 276, 282 (Tex. Crim.
Milton Coster Hill v. The State of Texas Page 7 App. 1987). Of particular import to Judge Charles on this matter was that
Judge Davis’s plea parameters were set at the express request of defense
counsel. During defense counsel’s closing argument, Judge Charles asked,
When you put the Judge in that position, Judge, what’s it going to take, how then is it fair to come back and say oh, well, now the Judge entered - - gave us an answer that we asked for […] if that’s grounds for recusal, isn’t that basically setting the judge up?
Judge Charles determined that while “probably the safest thing for Judge
Davis […] was to say nothing,” recusal was not warranted on this basis.
Considering all of the foregoing, we find that Judge Charles’s denial of
Hill’s motion to recuse Judge Davis was within the zone of reasonable
disagreement. Hill’s first issue is overruled.
Actual Bias
In his second issue, Hill contends that Judge Davis violated his
constitutional right to a trial before a fair and impartial judge by harboring an
actual bias against him, as demonstrated by Judge Davis’s comments and
conduct toward Hill and his supporters during trial. See U.S. CONST. AMEND.
V, XIV; TEX. CONST. art. I, § 19.
Due process guarantees an absence of actual bias on the part of a judge.
Ex parte Halprin, 708 S.W.3d 1, 3-4 (Tex. Crim. App. 2024). The party claiming
the due process violation must demonstrate such a “high degree of favoritism
Milton Coster Hill v. The State of Texas Page 8 or antagonism as to make fair judgment impossible.” Liteky v. U.S., 510 U.S.
540, 555 (1994). When a claim of judicial bias is raised, we review the entire
record to determine whether the judge’s bias denied the defendant due process.
See Riggins v. State, 714 S.W.3d 74, 90 (Tex. App.—Houston [1st Dist.] 2023,
pet. ref’d).
Hill argues that Judge Davis demonstrated actual bias during trial in
three ways: (1) by questioning two spectators who attended trial in support of
the Hill family, holding them in contempt and ordering them to pay a fine, and
banning them from the remainder of the trial proceedings; (2) by “repeatedly
chastis[ing]” Hill for “perceived infractions of decorum” during trial; and
(3) through his remarks to Hill before sentencing.4
Spectators
Before beginning the first full day of testimony, Judge Davis noticed “two
new faces that are here in the courtroom today.” He inquired as to the
spectators’ names and affiliation with the case. Marie Posey and Jennifer
Malone each identified themselves and stated they were friends of the Hill
family. Judge Davis then admonished them:
4 Hill also notes that prior to trial, Judge Davis “had already shown that he was unwilling to consider
the full range of punishment, he had interfered with the plea bargain process, and he had expressed open hostility toward Mr. Hill’s wife at an unrelated court hearing.” Based on our analysis and resolution of these arguments in Hill’s first issue, we do not address them again here.
Milton Coster Hill v. The State of Texas Page 9 All right. Your cell phones are going to be turned off. You may hear things you don’t like or might be disturbing to you, I don’t know. If that’s the case, you better not do anything in this courtroom that draws the attention of that jury when that jury is sitting in here. Do you understand? […] Sitting in my courtroom is a privilege, and if you disrupt it or do anything of that nature, I’ll first have you removed, and I’ll take it under advisement whether or not I’ll put [you] in contempt. Do you understand?
Posey and Malone each voiced their understanding.
Despite this admonishment, Malone’s cell phone went off during trial.
Outside of the jury’s presence, Judge Davis called Malone up to the bench. In
addition to discussing the cell phone disruption, he questioned Malone about
whether she had communicated with any of the witnesses in the case. Malone
admitted to one communication with Mrs. Hill, in which Mrs. Hill asked how
Mr. Hill was doing. Malone gave consent to search her phone, which was
searched in her presence by an investigator who was in the courtroom. The
investigator located the text message conversation with Mrs. Hill in which
Mrs. Hill acknowledged that she “can’t risk them thinking you talked to me
about testimony so I can – get to testify, per lawyer’s request.”5 Judge Davis
fined Malone $100 for not following the rules of the court and banned her from
the courtroom for the remainder of the trial.
5 Mrs. Hill had been placed under the Rule. See TEX. R. EVID. 614.
Milton Coster Hill v. The State of Texas Page 10 Judge Davis then called Posey to the bench and questioned whether she
had “any communications with anybody involved in this case[.]” Posey denied
any such communication. The investigator reviewed Posey’s text messages
and located a text conversation with Mrs. Hill discussing that a jury had been
picked and when opening statements were scheduled to begin. The
conversation also included Mrs. Hill requesting Posey to attend the trial for
support, since Mrs. Hill could not be in the courtroom. Judge Davis fined Posey
$500 and banned her from the courtroom for the rest of the trial.
Admonishing Hill
Judge Davis admonished Hill outside of the jury’s presence on multiple
occasions during trial.
The first instance occurred when Judge Davis warned Hill not to interact
with the jury. Judge Davis stated, “You’re staring at them as they’re stepping
out of the courtroom. Do not try to interact with them. Do you understand my
instructions?”
The second instance occurred when, during a recess in the trial, the
State’s paralegal observed Hill walk over to the State’s counsel table where he
appeared to read one of the prosecutor’s notes. After hearing sworn testimony
from the paralegal, Judge Davis ordered Hill to be taken to the holding room
during any future recesses in the trial.
Milton Coster Hill v. The State of Texas Page 11 The third instance occurred at a bench conference during Mrs. Hill’s
testimony. Judge Davis informed defense counsel that he noticed Hill “nodding
his head and shaking it very gradually […] when you’re asking a specific yes/no
and she’s pausing, and he’s putting his head up and putting it down.” He gave
defense counsel an opportunity to discreetly correct Hill’s conduct. Later on,
however, two bailiffs in the courtroom notified Judge Davis that Hill was
continuing to gesture during certain witness testimony. The two bailiffs gave
sworn testimony outside of the jury’s presence. Judge Davis learned that Hill
winked at one of his children during her testimony and was “shaking his head
yes or no” during some of his children’s testimony. Given that this was his
third admonishment about inappropriate courtroom behavior, Judge Davis
indicated that he may admonish Hill in front of the jury should this behavior
continue.
Sentencing
In support of his argument, Hill relies on the following remarks made by
Judge Davis prior to pronouncing his sentence:
But before I do pronounce sentence, Mr. Hill, I want to let you know, and I think you already know this, too, I see a lot of people come into this courtroom and sit in that chair that you sit in, all types, all walks of life, and everything. I don’t know you well enough to know if it’s arrogance, or pure narcissism that’s on your part, but I can tell you I’ve never had an individual teach on the actual subject of the crime they are charged with, and then get convicted of that. Teaching about sex offense. Teaching sex
Milton Coster Hill v. The State of Texas Page 12 offenses to other college students. 2009, thinking you’re so smart because you dodged a bullet, that you got away with it. And this whole -- this whole story about you’re secretly this wonderful person when you’re not drinking, that as an aside, that you just adopt people, and we just take in all of these kids. But it was nothing but a conveyor belt of victims to feed you in those unholy desires that you have. All right? It’s not lost on me. This was never lost on the jury, either, throughout this whole process. I spent plenty of time back there talking to them. This was never lost on them. I want you to understand that. So, what’s going to happen here is you’re not going to be able to victimize anybody else going forward, or in the future.
Judge Davis then pronounced Hill’s sentences in accordance with the jury’s
verdicts and ordered the sentences served consecutively.
ANALYSIS
A trial court’s inherent power to control the orderly proceedings in the
courtroom includes restricting conduct or displays that might detract from an
orderly, impartial trial focused on the issues to be tried and the legitimate
evidence. Alexander v. State, 282 S.W.3d 143, 146 (Tex. App.—Texarkana
2009, pet. ref’d).
We agree with the State that Judge Davis’s decision to fine Malone and
Posey and ban them from the courtroom did not demonstrate an actual bias
against Hill. Though Judge Davis was aware that both spectators were
present at trial in support of Hill, his actions toward them were in response to
a violation of a previous admonishment or direct untruthfulness in response to
inquiries about communication with witnesses.
Milton Coster Hill v. The State of Texas Page 13 Further, Judge Davis made a thorough record of corroborating evidence
supporting his correction of Hill’s behavior in the courtroom. Each
admonishment occurred outside of the jury’s presence, and Judge Davis
emphasized that he was “going to great lengths” to ensure Hill received a fair
trial. Judge Davis explained to Hill some of the potential unintended negative
consequences of Hill’s behavior, such as the jury possibly perceiving his
gestures as an inappropriate attempt to communicate with them. In other
words, Judge Davis restricted Hill’s conduct to ensure an impartial trial
focused on the issues to be tried and the evidence.
Finally, while Judge Davis’s pre-sentencing remarks might be “critical
or disapproving of, or even hostile to” Hill, such comments do not support a
bias challenge. See Liteky, 510 U.S. at 555. We find that Judge Davis’s
remarks fall within “expressions of impatience, dissatisfaction, annoyance, and
even anger, that are within the bounds of what imperfect men and women [...]
sometimes display.” Id. at 555–56. Accordingly, we overrule Hill’s second
issue.
Textbook Evidence
In his third issue, Hill contends that the trial court erred by permitting
the State to cross-examine him with an excerpt from a textbook about the
underreporting of offenses involving incest. We disagree.
Milton Coster Hill v. The State of Texas Page 14 STANDARD OF REVIEW AND RELEVANT LAW
Evidence is relevant if it tends to make a fact of consequence more or less
probable. TEX. R. EVID. 401. “Evidence need not by itself prove or disprove a
particular fact to be relevant; it is sufficient if the evidence provides a small
nudge toward proving or disproving some fact of consequence.” Stewart v.
State, 129 S.W.3d 93, 96 (Tex. Crim. App. 2004).
We review a trial court’s decision to admit evidence for an abuse of
discretion. Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim. App. 2011).
Prior to his incarceration, Hill worked in various law enforcement roles
and was also a collegiate criminal justice professor. At the time of his arrest,
he was teaching a course on child sexual assault. On cross-examination, the
State requested Hill to read a certain excerpt from a textbook that he used in
teaching his class. Defense counsel objected to relevance, which the trial court
overruled before granting a running objection. Hill read the following excerpt
to the jury:
Incest is a problem for the criminal justice system because it is a very underreported crime, even with respect to other sex crimes. Victims, especially child victims, have multiple reasons for not reporting incest offenses. The reasons for children not reporting incest revolve around the notion of fear. This can be a fear of retaliation, a fear that adults will not believe their accusations, or fear of the relative being removed from the home. As such, incest
Milton Coster Hill v. The State of Texas Page 15 is one of the least reported sex crimes likely masking a much higher incidence of occurrence.
The State also had Hill read a sentence from the textbook explaining that
“[s]tudies of the percentage of false reports show they occur quite rarely.”
On appeal, Hill claims that the textbook evidence should have been
excluded under Rule 403 as being more prejudicial than probative. See TEX.
R. EVID. 403. Trial counsel did not object under Rule 403. Because “an
objection stating one legal basis may not be used to support a different legal
theory on appeal,” we address only Hill's preserved argument that
the evidence was irrelevant. Walker v. State, 469 S.W.3d 204, 210–11 (Tex.
App.—Tyler 2015, pet. ref'd).
Hill argues that “[g]eneralized observations about the reliability of
outcries of sexual abuse” are irrelevant in determining whether he committed
the alleged offenses. We disagree. This case involved delayed outcries alleging
that a father sexually abused his children. One of the complainants reported
the offense but later recanted, according to her trial testimony, due to fear that
her siblings would be placed back into foster care and because her family did
not believe her allegations. The other complainant did not officially report the
abuse; rather, her therapist reported it after the complainant disclosed the
abuse during therapy. Meanwhile, Hill’s entire defensive theory was
fabrication. He testified that he did not commit the alleged crimes and that
Milton Coster Hill v. The State of Texas Page 16 the complainants were being untruthful for unknown reasons. The textbook
evidence was sufficiently tied to the facts of this case to assist the jury in
resolving a factual issue. The trial court did not err in overruling Hill’s
relevance objection.
Accordingly, Hill’s third issue on appeal is overruled.
Out-of-Court Statements
In his fourth issue, Hill challenges the trial court’s admission of A.H.’s
out-of-court statements to three different witnesses over his hearsay
objections.6 We find that the trial court did not reversibly err in admitting any
of the complained-of statements.
STANDARD OF REVIEW
The erroneous admission of a hearsay statement is non-constitutional
error that must be disregarded unless it affects a defendant’s substantial
rights. TEX. R. APP. P. 44.2(b); Campos v. State, 317 S.W.3d 768, 779 (Tex.
App.—Houston [1st Dist.] 2010, pet. ref’d). We will not overturn a criminal
conviction for non-constitutional error if, after examining the record as a
6 An issue is multifarious when it raises more than one specific complaint, and we are permitted to
reject multifarious issues on that basis alone. See Mays v. State, 318 S.W.3d 368, 385 (Tex. Crim. App. 2010); Wood v. State, 18 S.W.3d 642, 649 n. 6 (Tex. Crim. App. 2000). As noted by the State, this issue is multifarious because it addresses the testimony of three different witnesses under two different exclusions from or exceptions to the rule against hearsay. See TEX. R. EVID. 801(e)(1)(B), 803(2). However, in the interest of justice, we will address each of Hill’s arguments on appeal.
Milton Coster Hill v. The State of Texas Page 17 whole, we have fair assurance that the error did not influence the jury or
influenced the jury only slightly. Id.
Three witnesses were permitted to testify to A.H.’s out-of-court
statements under either the excited utterance exclusion from the hearsay rule
or the prior consistent statement exception to the hearsay rule. See TEX. R.
EVID. 801(e)(1)(B), 803(2). Regarding harm, Hill contends that the
complained-of statements impermissibly bolstered A.H.’s credibility. A brief
overview of the complained-of statements follows.
A.H.’s best friend from sixth grade testified that A.H. approached her in
the girls bathroom at school on May 13, 2009, before classes began. She
described A.H. as “freaking out,” that A.H. was upset to a greater degree than
the best friend had ever personally observed, and that it was obvious that A.H.
had recently been crying. The best friend testified that A.H. said, “her dad
kept trying to touch her” the night before. The best friend took A.H. to the
front office.
One of the teachers at A.H.’s school was called to the front office to speak
with A.H. As A.H. walked with the teacher to her classroom, A.H. began
sobbing. The teacher asked A.H. if she was upset due to not making the
cheerleading team last week. A.H. said no. The teacher asked what happened,
Milton Coster Hill v. The State of Texas Page 18 and A.H. said, “it happened again, he touched me […] he came in my room and
touched me.” In response to the teacher asking whether A.H. had told her
mother, A.H. stated, “Yes […] I told her when it happened before, and she told
me that if it happened again, she would get a divorce, but my mom is so happy
right now.” A.H. also told the teacher, “It went further last night than just
touching.” A.H. eventually recanted and her case was not prosecuted.
Several years later, when S.H.’s claims of sexual abuse were reported,
the investigator who handled S.H.’s case discovered A.H.’s old case. The
investigator interviewed A.H. in 2023 as part of his investigation. The State
elicited testimony from the investigator that A.H.’s statements in 2023 of the
various types of sexual abuse she endured were consistent with her advocacy
center interview in 2009.
Assuming without deciding that the trial court erred in determining that
A.H.’s statements to each of these witnesses were admissible under their
relevant exclusion from, or exception to, the hearsay rule, we find that the error
was harmless. The improper admission of evidence is harmless if the same or
similar evidence is properly admitted elsewhere, or if the evidence comes in
elsewhere without objection. Estrada v. State, 313 S.W.3d 274, 302 n. 29 (Tex.
Crim. App. 2010). The jury heard the same or similar evidence from A.H.
herself. She provided greater detail about the sexual abuse on the stand than
Milton Coster Hill v. The State of Texas Page 19 the generalized statements testified to by her best friend and her former
teacher. The person who interviewed her at the advocacy center in 2009 also
testified at trial about the details of A.H.’s outcry at that time. The jury was
in the best position to judge A.H.’s credibility and compare the consistency of
her statements, regardless of the complained-of testimony. After examining
the record as a whole, we have fair assurance that the error, if any, did not
influence the jury or had but a slight effect.
Accordingly, Hill’s fourth issue is overruled.
Constitutionality– Jury Unanimity
In his fifth issue, Hill asserts that the continuous sexual abuse statute
is unconstitutional, both on its face and as applied to him in this case, because
it does not require jury unanimity as to which specific acts of sexual abuse were
committed by the accused. See TEX. PENAL CODE ANN. § 21.02. Hill
acknowledges that this Court has previously considered this issue and
determined that the statute does not violate the constitutional right to jury
unanimity because “the individual acts of sexual abuse are the manner and
means by which the element of ‘two or more acts of sexual abuse’ is committed,
and not elements in and of themselves.” See Navarro v. State, 535 S.W.3d 162,
166 (Tex. App.—Waco 2017, pet. ref’d). We decline Hill’s invitation to
reconsider our position on this issue.
Milton Coster Hill v. The State of Texas Page 20 Accordingly, Hill’s fifth issue is overruled.
Constitutionality - Punishment Scheme
In his final issue on appeal, Hill categorically challenges the punishment
scheme applicable to the offense of continuous sexual abuse of a child on facial
and as-applied constitutional grounds. Specifically, he argues that “the 25-
year minimum sentence and unavailability of parole […] violates the Eighth
Amendment’s prohibition against cruel and unusual punishments because it
categorically denies parole eligibility to an entire class of offenders.” See U.S.
CONST. AMEND. VIII.
In analyzing a categorical challenge, we balance the following factors:
(1) whether there is a national consensus against imposing the punishment for
the offense; (2) the moral culpability of the offenders at issue in light of their
crimes and characteristics; (3) the severity of the punishment; and (4) whether
the punishment serves legitimate penological goals. See Meadoux v. State, 325
S.W.3d 189, 193 (Tex. Crim. App. 2010). The appellant has the burden of
demonstrating these factors. Id. at 194 n. 7.
In his brief, Hill discusses the severity of the punishment but fails to
address the remaining three factors. He also acknowledges that several other
appellate courts have addressed the constitutionality of this statute’s
punishment scheme and, having weighed all four factors, rejected his Eighth
Milton Coster Hill v. The State of Texas Page 21 Amendment argument. See, e.g., Glover v. State, 406 S.W.3d 343 (Tex. App.—
Amarillo 2013, pet. ref’d); Aguilar v. State, No. 04-20-00056-CR, 2021 WL
2668834 (Tex. App.—San Antonio June 30, 2021, no pet.) (mem. op., not
designated for publication); McCain v. State, 582 S.W.3d 332 (Tex. App.—Fort
Worth 2018, no pet.); DeLeon v. State, No. 03-13-00202-CR, 2015 WL 3454101
(Tex. App.—San Antonio May 29, 2015, pet. ref’d) (mem. op., not designated
for publication). Hill provides no evidence or analysis that persuades us to
reject the reasoning in these opinions. We find that Hill has failed to meet his
burden to demonstrate that the punishment scheme is unconstitutional.
Accordingly, we overrule Hill’s sixth issue.
Conclusion
Having overruled all of Hill’s issues on appeal, we affirm the judgments
of the trial court.
STEVE SMITH Justice
OPINION DELIVERED and FILED: March 12, 2026 Before Chief Justice Johnson, Justice Smith, and Justice Harris Affirmed Do not publish CRPM
Milton Coster Hill v. The State of Texas Page 22