Raymond Philip Milligan v. the State of Texas

Opinion issued March 19, 2026.

In the

Court of Appeals
for the

First District of Texas
————————————
NO. 01-24-00486-CR
———————————
RAYMOND PHILIP MILLIGAN, Appellant
v.
THE STATE OF TEXAS, Appellee

On Appeal from the 506th District Court
Waller County, Texas
Trial Court Case No. 21-10-17794

MEMORANDUM OPINION

Appellant Raymond Philip Milligan voluntarily entered an open plea of guilty

to three counts of sexual assault of a child. TEX. PENAL CODE § 22.011(a)(2).

Following appellant’s plea, the trial court held a sentencing hearing and sentenced

appellant to five years’ imprisonment. In his two issues, appellant challenges the
trial court’s assessment of punishment. We overrule appellant’s first issue, in which

he contends the trial court failed to consider a concededly inapplicable affirmative

defense, because, assuming without deciding that appellant preserved the issue for

our review, we hold that the trial court did not abuse its discretion when sentencing

appellant to five years’ imprisonment. We overrule appellant’s second issue, in

which he challenges statements made by the State during the sentencing hearing,

because appellant failed to complain in the trial court and preserve that issue for

appellate review. We affirm the trial court’s judgment.

Background

On October 14, 2021, appellant was charged by indictment with six counts of

sexual assault of a child. On November 16, 2023, appellant entered an open plea of

guilty to three counts of sexual assault of a child. At the time of each offense,

appellant was 18 years old, and complainant was 14 years old. Appellant is

approximately four years and nine months older than complainant. Appellant waived

his right to appeal except as to punishment, and the trial court certified appellant’s

right of appeal as to punishment.

On May 29, 2024, the trial court held a sentencing hearing. Counsel for the

State and appellant made opening statements. In his opening statement, counsel for

the State stated that appellant met complainant when she was 14 years old and had

sex with her. He further stated: “The police were called, they responded to the crime,

2
talked to [appellant] and said, ‘This is serious, don’t let it happen again.’”

Appellant’s counsel argued in his opening statement that appellant and

complainant’s age gap was “about nine months” away from an “affirmative Romeo

and Juliet defense.”

During the hearing, the State called complainant, who testified that appellant

knew her age before he had sex with her because he had attended her fourteenth

birthday party. She testified that he was concerned about her age because he did not

want others to know of their relationship. She testified that he appeared “worried

about getting caught” when they were together and that their sexual relationship had

already been discovered once before. At the conclusion of the hearing, the trial court

assessed punishment at five years’ imprisonment. Appellant timely filed a notice of

appeal.

“Mistake of Law” Defense

In his first issue, appellant contends that the trial court failed to consider or

understand an affirmative defense that he recognizes is inapplicable. Under Texas

law, it is an affirmative defense to the offense of sexual assault of a child that, among

the other essential elements of the affirmative defense, “the actor was not more than

three years older than the victim.” TEX. PENAL CODE § 22.011(e)(2). Although

appellant concedes that he is more than three years older than complainant, he

contends that he believed a larger age gap applied and that the trial court failed to

3
consider his “mistake of law” when sentencing him. He also contends that the trial

court misstated the law by implying that the affirmative defense cannot apply when

the complainant is 14 years old.

Although neither party raised the issue, we first consider whether appellant

preserved this issue for our review. See Mays v. State, 285 S.W.3d 884, 889 (Tex.

Crim. App. 2009) (noting that courts of appeals must “take up error preservation as

a threshold issue” even if “neither party raised the issue”). A party properly preserves

his complaint for appellate review by making a timely and specific request,

objection, or motion in the trial court. TEX. R. APP. P. 33.1(a). Generally, a criminal

defendant must timely object in the trial court to preserve a complaint for appellate

review. Pearson v. State, 994 S.W.2d 176, 179 (Tex. Crim. App. 1999). “The failure

to specifically object to an alleged disproportionate sentence in the trial court or in a

post-trial motion waives any error.” Jacoby v. State, 227 S.W.3d 128, 130 (Tex.

App.—Houston [1st Dist.] 2006, pet. ref’d) (citing Nicholas v. State, 56 S.W.3d 760,

768 (Tex. App.—Houston [14th Dist.] 2001, pet. ref’d); Steadman v. State, 31

S.W.3d 738, 742 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d); Solis v. State,

945 S.W.2d 300, 301 (Tex. App.—Houston [1st Dist.] 1997, pet. ref’d)); see Harris

v. State, 364 S.W.3d 328, 337-38 (Tex. App.—Houston [1st Dist.] 2012, no pet.)

(holding that appellant failed to preserve judicial-vindictiveness complaint by failing

to object when sentence was imposed or in motion for new trial); Montalvo v. State,

4
No. 2-07-124-CR, 2007 WL 2963772, at *1 (Tex. App.—Fort Worth Oct. 11, 2007,

no pet.) (mem. op., not designated for publication) (holding that, by failing to object

to sentence, appellant failed to preserve complaint for appellate review that trial

court abused its discretion in sentencing him to seven years’ imprisonment because

he was elderly and in poor health). This general preservation-of-error rule applies

even to appellate complaints that a criminal defendant’s sentence violates the Eighth

Amendment’s prohibition against cruel and unusual punishments. E.g., Noland v.

State, 264 S.W.3d 144, 151 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d); Wynn

v. State, 219 S.W.3d 54, 61 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d).

Although appellant’s challenge is non-constitutional, it is analogous to an Eighth

Amendment complaint: appellant believes his sentence is disproportionate to the

offense in light of the relative age difference between him and complainant. See

Perez v. State, 280 S.W.3d 886, 886-87 (Tex. App.—Amarillo 2009, no pet.)

(holding that appellant failed to preserve argument that sentence was “grossly

disproportionate to the offense” by failing to object). To preserve this complaint for

our review, appellant was required to object to his sentence before the trial court.

Because he failed to do so, this issue was not properly preserved.

However, assuming without deciding that this issue was preserved, we

conclude that the trial court did not abuse its discretion in sentencing appellant to

five years’ imprisonment. See Lamerand v. State, 540 S.W.3d 252, 257 (Tex. App.—

5
Houston [1st Dist.] 2018, pet. ref’d) (assuming, without deciding, that appellant

preserved error of inadmissible hearsay and concluding error was harmless); see also

Meadoux v. State, 325 S.W.3d 189, 193 n.5 (Tex. Crim. App. 2010) (noting that

court of appeals may affirm judgment without addressing error preservation but may

not reverse judgment without addressing error preservation); Butler v. State, 872

S.W.2d 227, 236 (Tex. Crim. App. 1994) (addressing unpreserved argument in

interest of justice). A trial court’s assessment of punishment is reviewed for abuse

of discretion. Jackson v. State, 562 S.W.3d 717, 722 (Tex. App.—Amarillo 2018,

no pet.) (citing Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984);

Moore v. State, No. 11-13-00050-CR, 2014 WL 6997620, at *2 (Tex. App.—

Eastland Dec. 11, 2014, no pet.) (mem. op., not designated for publication)). Except

in the rare case of a meritorious Eighth Amendment gross-proportionality challenge,

“punishment that falls within the legislatively prescribed range, and that is based

upon the sentencer’s informed normative judgment, is unassailable on appeal.” Ex

parte Chavez, 213 S.W.3d 320, 324 (Tex. Crim. App. 2006) (citation modified).

Here, appellant pled guilty to three counts of sexual assault of a child, a

second-degree felony punishable by two to twenty years in prison. TEX. PENAL CODE

§ 22.011(f); see id. § 12.33(a) (prescribing punishment for second-degree felony).

The trial court assessed appellant’s punishment at five years’ imprisonment, the

lower end of the legislatively prescribed range. Nonetheless, appellant persists in

6
arguing that the trial court purportedly misunderstood that the fact that the

complainant was 14 years old, as complainant was at the time of the offense, does

not preclude application of the affirmative defense that the “actor was not more than

three years older than the victim.” TEX. PENAL CODE § 22.011(e)(2). Appellant

concedes he is more than three years older than complainant. Moreover, appellant’s

purported belief that the law allowed a larger age difference is not a valid mistake-

of-law defense.1 See id. § 8.03(a) (“It is no defense to prosecution that the actor was

ignorant of the provisions of any law after the law has taken effect.”). Regardless of

whether the trial court misunderstood one aspect of the defense’s application, the

trial court does not abuse its discretion by failing to consider a concededly

inapplicable affirmative defense when sentencing a defendant. See Watts v. State,

645 S.W.2d 461, 463 (Tex. Crim. App. [Panel Op.] 1983) (holding that trial court

did not abuse its discretion to revoke probation and impose sentence where appellant

failed to prove affirmative defense); cf. Jackson, 562 S.W.3d at 722-23 (holding that

trial court did not abuse its discretion by sentencing appellant to prison instead of

community supervision, despite argument that community supervision would better

1
The trial court heard testimony during the sentencing hearing that casts doubt on
appellant’s purported belief. Complainant testified that appellant appeared
concerned about her age because he did not want others to know of their
relationship. She also testified that he appeared “worried about getting caught”
when they were together and that their sexual relationship had already been
discovered once before.

7
address appellant’s substance abuse); Laboriel-Guity v. State, 336 S.W.3d 754, 757

(Tex. App.—Fort Worth 2011, pet. ref’d) (rejecting argument that trial court abuses

its discretion by failing to consider appellant’s “remorse and acceptance of

responsibility”).

We overrule appellant’s first issue.

Opening Statements and Closing Arguments

In his second issue, appellant contends that the trial court erred by relying on

statements made by the prosecutor in his opening statement and closing argument

that were not supported by the evidence. In his opening statement, the prosecutor

stated, “The police were called, they responded to the crime, talked to the Defendant

and said, ‘This is serious, don’t let it happen again.’ If it stopped there, it would be

a completely different case, but it didn’t.” In his closing argument, he stated, “He

was told not to see her, and he had her sneak out . . . .” Appellant challenges both

statements. As the State points out, appellant did not object to either statement in the

trial court, let alone do so timely and specifically. See TEX. R. APP. P. 33.1(a)(1)(A)

(requiring complaint to be made “timely” and “with sufficient specificity” to the trial

court to preserve error). Accordingly, this issue is not preserved for our review. Id.;

see, e.g., Estrada v. State, 313 S.W.3d 274, 302-03 (Tex. Crim. App. 2010) (holding

that any challenge to statements in opening or closing was not preserved where

appellant failed to object or move for mistrial); Thierry v. State, 288 S.W.3d 80,

8
84-85 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d) (holding that challenge to

opening statement was not preserved where appellant failed to obtain ruling on

objection or object to trial court’s failure to rule).

We overrule appellant’s second issue.

Conclusion

We affirm the judgment of the trial court.

Amparo “Amy” Guerra
Justice

Panel consists of Chief Justice Adams and Justices Guerra and Guiney.

Do not publish. TEX. R. APP. P. 47.2(b).

9