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March 12, 2026 Get Citation Alerts Download PDF Add Note

Milton Coster Hill v. the State of Texas

Texas Court of Appeals, 10th District (Waco)

• Citations: None known
• Docket Number: 10-24-00276-CR
• Nature of Suit: Sex Offenses

• Disposition: Affirmed

• Opinion

• Authorities (15)

• Cited By (0)

• Summaries (0)

• Similar Cases (39.3K)

• PDF

Disposition

Affirmed

Lead Opinion

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 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.

STANDARD OF REVIEW AND RELEVANT LAW

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).

RELEVANT FACTS

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).

ANALYSIS

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.

ANALYSIS

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