### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03

- 18

- 00655

- CR

Andrew Charles Gibson, Appellant

v. The State of Texas, Appellee

FROM THE 403RD DISTR ICT COURT OF TRAVIS COUNTY NO. D

- 1

- DC

- 18

- 904052 , THE HONORABLE BREN DA KENNEDY, JUDGE PR ESID IN G

O P I N I O N

A jury convicted a ppellant Andrew Charles Gibson of the offense of aggravated
sexual assault of a child. See Tex. Penal Code § 22.021 (a)(1)(B)(ii), (2) ( B). Following a jury
trial and a punishment hearing at which Gi bson plea ded tr ue to three prior felony convictions for

sex offenses committe d in other states , the district court found that Gibson wa s a habitual
offender and sentenced him to life imprisonment without parole. See id . § 12.42(c)(4)(B). In a single point of e rro r o n a pp eal, Gibson asserts that the district court abused its discretion in allowing multiple individuals to testify as ou tcry witnesses. We will affirm the district court ’ s judgment.
BACKGROUND
Gibson was charged in a four

- count indict ment with t he off ens es of aggravated sexual assault of a child (Counts 1 and 2), indecency with a child by contact (Count 3), and2 indecency with a child by exposure (Count 4) , a l l a r i s i n g o u t o f a single i n c i d e n t

. The victim in
the case was F.M. (the child) , who was fo ur yea rs old at the time of the incide nt

. The child lived
with her mother, A.M. (the mother) ; her great

- aunt, Joan Wor kman; Joan ’ s adult son, Chris
Work man ; and Joan ’ s husband , Gibson

. The child referred to Gibson as “ Uncle Andy. ”
At tria l, the jury he ard ev id ence that on January 8 , 2017, th e mother was working
in the kitchen when the child told her that “ she didn ’ t want to suck Uncle Andy ’ s stick

anymore
. ” The m other testified that she initially thought that the child was referring to “ some
k ind of pi xie st ic k ” and asked the child if “ the s tick ” was candy

. According to the mother, the child told her, “ [N]o, it ’ s his thingy where the magic juice comes out. ” At that point, Chris came
into the k itchen and the mother told him what the child had told h er.
C hri s, who had worked for Child Pro tective Services, asked the mother if she
wanted him to talk to the child. The mother indicated that she did , and Chris proceeded to ask
the child , in the mother ’ s presence, about “ the stick. ” The mother testifi ed tha t C hri s asked the
child whether she w as referring to “ a stick that we can throw awa y. ” The child told Chris, “ [ N ] o,

no, it ’ s his thingy, it ’ s his front butt

. ” At th at point, Chris and the mother stopped talking to the
child

. Gibson then came into the ki tch en and wanted to take the child ou t side , but the mother told the child to stay inside where the mother could see her

. Joan, who had been in her bedroom, later came out and was told by the mother
and Chris what the child had said

. The mother test ifi ed that Joan then “ pointblank asked [ the
child ] if Uncle Andy put h is stick in her mouth and she had said yes. ” Joan , who did not testify

as to what she heard the child say but testified as to the child ’ s demeanor , explained that the
child ’ s tone was “ mos tly mat ter of fact, ” and the child did n ot sound as if she had been coached or was reciting memo r ized lines.3 Chris also testified as to what the child told him, and hi s testimony was similar to
that of the mother

. Chris testified that he first as ked th e child to find “ the stick ” so that t hey
could “ t h row it away

. ” The child told Chris that the y could not do so because the stick belonged

to “ Uncle Andy. ” When Chris asked the child to identify the location of the stick , she told him
that it was “ o n h er front b utt. ” Chris then asked the ch ild to identify the location of her “ front butt, ” and “ she pointed to her groin. ” The next day , the mother and Chris went to the police station and reported what the child had told them. Krista Wold, a forensic int erviewer with the Center for Chil d Protection in Travis County , interviewed the child

. Wold testified that when she asked the child to “ tell [her] about Uncle Andy, ” the child responded, “ He always wants me to suck his thing. ” The child al so told
Wold th at this happen ed “ seven days times, ” 1 that it happen ed “ at home in Uncle Andy ’ s room
in a chair that ’ s black and has wheels and is by his computer , ” that “ she was standing and that he was sitting ” when it happened , and “ [t]hat he keeps it a sec ret. ” The c hild als o told Wold tha t
Gibson ’ s “ thing ” went inside her mouth , that “ magic juice ” c ame out of Gibson ’ s “ thing , ” and
that the “ magic juice ” went “ into [ her ] body ” and “ to [her] bones. ” Because the child had used
the word “ thing y ” to des c ri be Gibson ’ s pen is, Wold showed the child an anatomical male doll and asked her if she could identify where the “ thingy ” was located . According to Wold, the
child “ ended up taking off the pants and then the underwear from the doll and then pointing to

t h e pen is on the ma le doll

. ” Wold ’ s interview of the child was recorded, and a copy of the recording was admitted i nto evidence without objection

.

1 T he record does not reflect what the child mea nt by this

. Du ring the interview, Wold initially heard the child say “ seven days, ” but th e child corrected her and said “ seven day s t im es
. ”4 The child , who was six years old at the time of trial, also testified in court. Th e
child testified that she li ked “ Uncle A ndy ” “ un til he played a game ” with her and “ [t]he thing

came. ” When asked if Gibson had ever d one anything to her that she did not like, the child testified, “ Y es. O ne single thing. ” When asked to describe what t hat thing was, the chil d

t est ified, “ His penis, t he thing. ” During her te stim ony, the child drew a picture of herself “ hiding ” from Gibson
under his desk. When asked why she was “ hiding from Uncle Andy, ” the child testified,

“ Because I didn ’ t want him to do that. ” When aske d t o e xplain what she did not want Gibson to do, the chil d testified, “ Making me suck his penis

. ” When asked if someone told her to say that
or if it “ really happened, ” the child testified, “ It ’ s what really happened. Rea lly. Real ly. Really. Really. ”
Ot her evidence admitted at trial included a n earlier drawing by the child, similar
to the one that the child drew during her testimony

. The prosecutor explained that the child had drawn this picture when the prosecutor had first discussed the incident w it h h er . The dr awing , whi ch was admitted without objection , includ ed a male stick figure that appear ed to have an erect penis and was standing next to the child , in front of a desk

. During her testimony, t he child
ide ntified th e male figure in the draw ing as “ Uncle Andy

. ” Also a dmitted into evidence was a
recorded jail c all between Gibson and Joan that was made following Gibson ’ s arrest. In the call,
Gibson complained that the charges against him made it appear that he was violent with the child

o r that h e h ad “ f orced ” her to do things

. In response, Joan told Gibson, “ Of course she was
forced into it. Children can ’ t give consent. ”5 The jury co nvicted Gibson of aggravated sexual assault of a child as alleged in
Count 1 of the indictment

. 2 Gibson filed a mo tion for ne w trial th at was overruled by operation
of law

. Th is ap peal followed.

STANDARD OF REVIEW
We review a trial cou rt ’ s admission of testimony from an outcry witness under an
abuse

- of

- discretion standard. See Garcia v. State , 792 S.W.2d 88, 92 (Tex. Crim . App. 1990) ;
Buent ello v. St ate , 512 S.W.3d 508 , 516

– 17 (Tex. App.

— Houston [1st Dist. ] 2016 , pet. ref ’ d)

. A
tria l court has “ broad discretion ” in d etermining who qualifies as a proper outcry witness, and we will uphold the trial court ’ s ruling if it is r easonably su pported by the re cord and within the zone of reasonable disagreement. See Garcia , 792 S.W.2d at 92 ; Buentell o , 512 S.W.3d at 516

– 17.

ANALYSIS
At the hearing on the admissibility of outcry testimony, the State argued that the

mot her, Chris Workman, and Krista Wold all qual ified as outcry witnesses because the child
made “partial outcries ” to the mother and Work man and a “more complete out cry ” to Wold.
Gibson objected, argu ing that the proper outcry witness was the first person to whom the c hild
described the offense in a d iscernible manner , which Gibson a sserted was the mother

. The
district court overruled Gibson ’s objec tion and allowe d all three individuals to testify as outcry
witnesses . The district court provided the followi ng explanat ion for its ru ling :

I n this instance, we ’ ve got four counts and each of the outcry witnesses that have testified here this morning at least allude to different parts of the indictment as far as different counts, as far as giving outcries as to w hat has occ urred, so I am goin g

2 Counts 2, 3, and 4 of the indictment were charged as alternatives to Count 1 and thus the jury made no findings as to those coun ts

.6 to overrule the objection and allow each to testify to their specific observations and relative to what we entert ained here this morning. So that is my ruling as far as the outcry is concerned.

In his sole point of error on appeal, Gi bson argues th at th e district court abused its discretion in allowing multiple individuals to testify as outcry witnesses to the child ’ s statements

. Specifica lly, Gibson asserts that the mother was the proper outcry witn ess , while Chris Workman
and Wold w ere improper. 3

“ Hearsay statements, while general ly inadmissi ble, may be admitted under specific conditions when public policy supports their use, and the circumsta nces surrounding the making of th ose stat ements pedigree their reliability. ” Martinez v. State , 178 S

. W.3d 806 , 810 ( Tex

. Crim. App. 2005). Article 38. 072 of the Texas Code of Criminal Procedure, also known as the outcry statute, creates a hearsay except ion in the prosecution of certain sexual offenses
committed against children f or the admi ssion of a ch i ld ’ s first outcry of sexual abuse to an adult.
Se e Tex. Code Crim. Proc. art. 38.072; Bays v. State , 396 S.W.3d 580, 581 n.1 (Tex. Crim. App. 2013)

. “ B ecause it is ofte n traumatic for children to testify in a courtroom setting, e specially

a

bout sexual o ff ense s committed against them, the Legislature ena cted Article 38.072 to admit

3 The State asserts in its brief that Gibson did not preserve error on this point because his complain t in the d istri ct court was not sufficiently spe cific

. H owever, all tha t is required to p reserve a complaint for app ellate review is for t he record to show that the objection “ stated the grounds for the ruling that the compl aining party sought from the tr ial court with suffi cient specificity to make th e trial court aware of t he complaint, unle ss the specific grounds were apparent from the context. ” See Tex. R. App. P. 33.1(a)(1). Here, t he record reflects that Gibson argued at the hearing that the only p roper outc ry wi tness was the mo ther because she was the first person to whom the child des cribed the offense in a discerni ble manner

. We conclude that this wa s sufficient to preserve error as to the district court ’ s decision to allow additional outcry wit nesses to testi fy

. See Lankston v. State , 827 S .W.2d 907 , 909 (Tex. Crim. App. 1992) ( “ As regards s pecificity, all a party has to do to avoid the forfeiture of a complaint on appeal is to let the trial judge know what he wants, why he thinks himself en tit led to it, and to do so clearly enough for the j udge to understand him at a time when the trial cour t is in a proper p osition to do something about it. ” )7 the testimony of the first adult a child confides in reg arding the abuse. ” Martin ez , 178 S.W.3d at
810

– 11. “ This witness may recite the child ’ s out

- of

- court stat ements concer ni ng t he offense, and that testimony is substantive evidence of the crime. ” Id . at 811.
To be admissible under Article 38.072 , among other requirements , “ [ t ] he
statement must be ‘ mor e than w ords which give a general allusion that something in the a rea o f
chil d abuse is going on ’ ; it must be made in so me discern i ble manner and is event

- specific rather than person

- specific. ” Lopez v. State , 343 S.W.3d 137 , 140 (Tex. Crim. App. 2011) (q uoting
G arcia , 792 S.W.2d at 91 ). Thu s , “ [ t ] here may be only one outcry witness per ev ent. ” Id

.

“ Hearsay testimony from more than one outcry witness may be admissible under article 38.072

o nly if the witnesses testify ab out diff erent events. ” Id .; see H ernandez v. S tate , 973 S .W.2d
787 , 78 9 (T ex . App.

— Austin 1998, pet. ref ’ d). In this case, the mother, Workman , and Wold all testified to the child ’ s statements concerning a s ingle event

— the child “ sucking ” Gibson ’ s “ thing

. ” The State did not allege that
th is occurre d on multip le occasions or tha t Gibson had committed additi onal sexual offenses against the child on other occasions . Although the indi ctment contained four counts , each count
was al leged in the alternative and concerned the same eve nt that occurred “ on o r about Aug ust 1,
2016

. ” Count s 1 and 2 alleged alternat e ways in which Gibson had sexual ly assault ed the child
on that date , while Counts 3 and 4 alleged lesser

- included offenses of the sexual assault

. 4 Accordingly, only one outcry witness should have t estified to the child ’ s sta tements , and the

4 Count 1 alleged that Gibson caused the penetration of the child ’ s mout h with his sexual organ . C oun t 2 allege d tha t Gibson caused the child ’ s mouth to contact his sexual organ. Count 3 alleged that Gibson touch ed the child with his genitals. Count 4 alleged that Gibson expos ed his genitals to the child

.8 d istrict court a bused its discretion in allow ing multiple witnesses to testify to those statements

. See Brown v. State , 189 S.W.3d 382 , 387 (Tex. App.

— T exarkana 2006, pet. ref ’ d)

. We must next determine if Gib son was har med by th is error
. “The erroneous
adm ission of ev idence is non

- constitutional err or.” Go nzalez v. State , 544 S.W.3d 363, 373 (T ex. Crim. App. 2018) (citing Taylor v. State , 268 S.W.3d 571, 592 (Te x . Crim. App. 2008)).
“Non

- constitutional er ro rs are harm ful, and thus requ ire reversal, only i f they affect Appellant’s substantial rights .” Id

. (citing Tex. R. App. P. 44.2(b)). T he Court of Criminal Appeals has
construed this to mean that “an error i s reversible only when it has a substantial a nd injurious
effect or influenc e in determining the jury’s verdi ct.” Id . (citing Taylor , 268 S .W.3d at 592). “If
we have a fair assurance fr om an examination of the record as a whole that the error did not
inf l uence the jury, or ha d but a slight effect, we will not o verturn the convic tion.” Id

. In cases involving the impro per admission of outcr y testimony, the error is
harmless when the victim testifies in court to the same or si milar statements that were improperly
admitted or other evidence setting for th the same facts is admitted without objection

. See, e.g

. , A llen v. State , 436 S. W.3d 815 , 822 (Tex. App.

— Texarkana 2014, pet. ref ’ d) ; Zarco v. State , 210 S.W.3d 816, 833 (Tex. App.

— Houston [14th Dist.] 2006, no pet.) ; Duncan v. State , 95 S.W.3d
669 , 672 (Tex. App.

— Houston [1st Dist .] 2002, pet. ref ’ d) ; see also Fo ster v. State, N o . 01

- 18

- 00006

- CR , 2019 Tex. App. LEXIS 2967 , at *12

– 13 (Tex. App.

— Houston [1st Dist.] Apr. 11,
2 019, pet. ref ’ d) (mem. op., not desig n ated for publication) ; Garcia v. State , No. 03

- 14

- 0026 9

- CR, 2016 Tex. Ap p. LEXIS 4219, at *11 (Tex. App.

— Austin Apr. 22, 2 016, pet. ref ’ d) (mem. op., not designated for publication). Here, the child testified that Gibson made her “ suck his penis ” and that it “ really happen ed. ” The child also testi fied that she liked Gibson “ until he played a game” with her and “ [ t ] h e t h i n g c a m e , ” which the child identified as Gibson ’ s pe nis.9 The State emphasized the child ’ s testimony in its closing argument. Also admitted into evidence during the child ’ s testimon y w as a dr awing made by the c hi ld showing a male stick figure, wh ich
the child identified as Gibson, standing next to the child with what appeared to be an erect penis

. Additionally , a copy of the recording of the child ’ s forensic intervi ew was admitted i nto
eviden ce without objection

. Th us, the jury heard for itsel f the same statements to which Wold
had testified

. Other evidence considered by the jury in cluded a jail call between Gibson and his
wife in which Gibson d enied that he was “ violent ” with the child or t hat he “ forced ” her to do anything , which the jury co uld have reasonably construed as an admissio n that Gibson had don e something w ith the child but that he did not view it as non

- consensual

. On this record , we h ave
fair assurance that the distr ict court ’ s error in admitting the tes timony of multiple outcry
witnesses did not have a substantial and injurio us effect on the jury ’ s verdict

. We overrule Gibson ’ s sole point of error.

CONCLUSION
We affirm the district cour t ’ s judgment of convicti on.

_

________________________ _________________ Gisela D. Triana , Justice
Before Chief Justice Rose, Justices T riana a nd Smith
Affirm ed
Filed: January 29, 2020
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