Otho Prince Hill IV v. the State of Texas

Court of Appeals
Tenth Appellate District of Texas

10-25-00005-CR

Otho Prince Hill IV,
Appellant

v.

The State of Texas,
Appellee

On appeal from the
54th District Court of McLennan County, Texas
Judge Susan N. Kelly, presiding
Trial Court Cause No. 2023-1819-C2

JUSTICE HARRIS delivered the opinion of the Court.

MEMORANDUM OPINION

Otho Prince Hill IV was convicted of Continuous Violence Against the

Family, enhanced, and sentenced to 20 years in prison. We affirm the trial

court’s judgment.

FACIAL CONSTITUTIONALITY

In his first issue on appeal, Hill contends that section 25.11(b) of the

Texas Penal Code is unconstitutional on its face. The portion of section
25.11(b) about which Hill complains provides:

…members of the jury are not required to agree unanimously on
the specific conduct in which the defendant engaged that
constituted an offense under Section 22.01(a)(1) against the person
or persons described by Subsection (a), the exact date when that
conduct occurred,…

TEX. PENAL CODE § 25.11(b).

A facial challenge to the constitutionality of a statute cannot be raised

for the first time on appeal, see Karenev v. State, 281 S.W.3d 428, 434 (Tex.

Crim. App. 2009); Holland v. State, 702 S.W.3d 836, 843 (Tex. App.—Waco

2024, pet. ref'd), and Hill did not complain to the trial court that the statute

was facially unconstitutional. Instead, he asserted that the language in the

jury charge which followed the statute violated his right to a unanimous

verdict.

Consequently, because he did not raise a facial challenge to the statute,

his first issue is overruled. See Holland, 702 S.W.3d at 843.

JURY CHARGE ERROR

Next, Hill contends the charge to the jury on guilt/innocence confused

and misled the jury and modified and expanded the allegations in the

indictment, all of which caused him harm.

A claim of jury charge error is reviewed using the two-step procedure set

out in Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984). First,

Hill v. State Page 2
we review alleged charge error by determining whether error exists in the

charge. Alcoser v. State, 663 S.W.3d 160, 165 (Tex. Crim. App. 2022). If no

error exists, our analysis ends. See Balentine v. State, 71 S.W.3d 763, 774 (Tex.

Crim. App. 2002). But if error exists, we then analyze that error for harm.

Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012).

Confusing and Misleading

Hill contends the language in the jury charge derived from section

25.11(b) of the Texas Penal Code confused and misled the jury. The portion of

the jury charge about which he complains provides:

You are instructed that members of the jury are not required to
agree unanimously on the specific conduct, if any, in which the
Defendant engaged, if he did, that constituted an assault, if any,
against a family member, a member of a household, and/or a
person with whom the Defendant has or has had a dating
relationship or the exact date when that conduct occurred.

He contends this language was confusing and misleading because other

instructions in the jury charge required unanimity.

Hill relies on the Court of Criminal Appeals’ opinion in Ngo v. State, 175

S.W.3d 738 (Tex. Crim. App. 2005) to support his contention. However, Ngo

does not stand for the proposition that an instruction such as the one in this

case, patterned after section 25.11(b), works to confuse or mislead a jury,

especially in combination with other instructions which required unanimity.

In Ngo, the defendant was charged with a variety of acts, all of which could

Hill v. State Page 3
constitute the offense of credit card abuse. The Court of Criminal Appeals

found jury charge error that was egregiously harmful because “the jury was

never informed, in any way, by anyone, at any time, that—as a collective body-

—it was required to reach a unanimous verdict concerning one specific

criminal act.” Id. at 749. That is not what occurred in the case at hand, and

Hill presents no other case authority to support his argument. Accordingly,

this part of Hill’s second issue is overruled.

Modified and Expanded

Next, Hill contends that because the indictment charged that he “did

then and there intentionally, knowingly, and recklessly” cause bodily injury,

the trial court erred in instructing the jury to find him guilty if they found that

he “did then and there intentionally, knowingly, or recklessly” cause bodily

injury. (Emphasis added). Hill asserts the jury charge improperly expanded

the allegations in the indictment and lessened the State’s burden of proof.

The Court of Criminal Appeals has long approved the practice of

pleading culpable mental states conjunctively and submitting them

disjunctively whenever the statutory language is disjunctive. Rogers v. State,

774 S.W.2d 247, 251 (Tex. Crim. App. 1989), overruled on other grounds, Peek

v. State, 106 S.W.3d 72, 79 (Tex. Crim. App. 2003); Manning v. State, 864

S.W.2d 198, 202 (Tex. App.—Waco 1993, pet. ref'd); Cruz v. State, 838 S.W.2d

Hill v. State Page 4
682, 684 (Tex. App.—Houston [14th Dist.] 1992, pet. ref'd). See Zanghetti v.

State, 618 S.W.2d 383, 386-88 (Tex. Crim. App. 1981); Knorpp v. State, 645

S.W.2d 892, 904 (Tex. App.—El Paso 1983, no pet.) (“conjunctive pleading of

the intentional and knowing mental states . . . will support their disjunctive

submission to the jury.”).

The statutory language for the culpable mental states in underlying

offense in this case, assault, is in the disjunctive. See TEX. PENAL CODE §§

22.01(a); 25.11(a). Therefore, the trial court properly charged the requisite

culpable mental states in the disjunctive rather than in the conjunctive as

charged in the indictment. See Nickerson v. State,782 S.W.2d 887, 891 (Tex.

Crim. App. 1990); Manning, 864 S.W.2d at 202.

The remainder of Hill’s second issue is overruled.

MODIFICATION OF JUDGMENT

The State asserts that the trial court’s judgment incorrectly reflects that

the enhancement paragraph was “found not true” by the jury and requests that

we modify the trial court’s judgment to “speak the truth.” See TEX. R. APP. P.

43.2(b); French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992). We agree

with the State’s request. Accordingly, we modify the trial court's judgment to

reflect the enhancement paragraph to be “Found True” by the jury.

Hill v. State Page 5
CONCLUSION

Having overruled each of Hill’s issues on appeal, but having found the

trial court’s judgment necessitates modification, we affirm the trial court’s

judgment as modified.

LEE HARRIS
Justice

OPINION DELIVERED and FILED: May 21, 2026
Before Justice Smith,
Justice Harris, and
Senior Chief Justice Rose 1
Affirmed
Do Not Publish
CRPM

1
The Honorable Jeff Rose, Senior Chief Justice (Retired) of the Third Court of
Appeals, sitting by assignment of the Chief Justice of the Texas Supreme Court. See
TEX. GOV'T CODE §§ 74.003, 75.002, 75.003.

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