Scottie Heath Gibson v. the State of Texas

IN THE
TENTH COURT OF APPEALS

No. 10-23-00131-CR

SCOTTIE HEATH GIBSON,
Appellant
v.

THE STATE OF TEXAS,
Appellee

From the 18th District Court
Johnson County, Texas
Trial Court No. DC-F202000027

MEMORANDUM OPINION

Scottie Heath Gibson appeals his convictions for one count of continuous sexual

abuse of a young child, seven counts of sexual assault of a child, and two counts of

indecency with a child. A jury found him guilty and assessed punishment at confinement

in the Texas Department of Criminal Justice—Institutional Division for forty years for

count one, thirty-five years each for counts two and three, and ten years each for counts

four through ten. The trial court ordered that his sentences for counts one, two, and three
shall run consecutively, and the sentences for the remainder of the counts shall run

concurrently will all counts. In thirteen issues, Gibson contends the trial court violated

his constitutional rights to a speedy trial, to be free of unreasonable searches and seizures,

and to confront witnesses, the trial court erred in admitting certain evidence, and the

evidence is legally insufficient to support the convictions of any of the ten counts. We

affirm.

Speedy Trial

In his first issue, Gibson contends the trial court violated his constitutional right to

a speedy trial. He complains of a thirty-seven-month delay between his arrest and trial.

He claims he asserted his right to a speedy trial multiple times, and all of the delays were

caused by the State or an overcrowded docket, or were unexplained, resulting in

prejudice and requiring dismissal of the prosecution.

APPLICABLE LAW

An accused is guaranteed the right to a speedy trial under the Sixth Amendment

of the United States Constitution, Article 1, Section 10 of the Texas Constitution, and

article 1.05 of the Texas Code of Criminal Procedure. U.S. CONST. amend. VI; TEX. CONST.

art. I, § 10; TEX. CODE CRIM. PROC. ANN. art. 1.05. In determining whether the accused has

been denied the right to a speedy trial, the court must weigh and balance four factors: (1)

length of the delay; (2) reason for the delay; (3) assertion of the right; and (4) prejudice to

the accused. Barker v. Wingo, 407 U.S. 514, 530 (1972); Dragoo v. State, 96 S.W.3d 308, 313

Gibson v. State Page 2
(Tex. Crim. App. 2003). This balancing test requires weighing case-by-case the conduct

of both the prosecution and the accused. Barker, 407 U.S. at 530.

In reviewing a trial court's decision on a speedy trial claim, the appellate court

gives almost total deference to the trial court's findings of fact that the record supports,

and we draw reasonable inferences from those facts necessary to support the trial court's

findings. Balderas v. State, 517 S.W.3d 756, 767-68 (Tex. Crim. App. 2016). But the

balancing test as a whole is a purely legal question that we review de novo. Id. at 768.

Length of Delay

In general, courts deem delay approaching one year to be "unreasonable enough

to trigger the Barker enquiry." Id. The extent to which the delay exceeded the minimum

needed to trigger judicial examination factors into our assessment of the first Barker

factor. Id. In this case, Gibson was arrested in December 2019 and tried in January 2023,

an interval of about three years. Because this delay stretched far beyond the minimum

needed to trigger the inquiry, the first Barker factor weighs heavily in favor of finding a

violation of Gibson's speedy-trial right. See id.

Reason for the Delay

In assessing the reason for the delay, different weights should be assigned to

different reasons for the delay. Id. Some reasons are valid and serve to justify an

appropriate delay. Id. Deliberate delay intended to hamper the defense weighs heavily

against the State, while more neutral reasons, such as negligence or overcrowded courts,

Gibson v. State Page 3
weigh less heavily. Id. Additionally, we consider whether the government or the

criminal defendant is more to blame for the delay. Id.

Jury trials were either banned or restricted from spring 2020 through early 2021.

See e.g., Seventeenth Emergency Order Regarding the Covid-19 State of Disaster, 609 S.W.3d

119, 120 (Tex. 2020); Thirty-Third Emergency Order Regarding the Covid-19 State of Disaster,

629 S.W.3d 179, 179-80 (Tex. 2021); see also Covid-19 Operating Plan for the Johnson County

Judiciary Guinn Justice Center and Justice of the Peace Offices, May 20, 2020 (prohibiting jury

trials in Johnson County). At the October 6, 2020 hearing on counsel's motion to

withdraw, counsel stated there have been some COVID-related delays. Delay caused by

the onset of the pandemic cannot be attributed as fault to the State. State v. Conatser, 645

S.W.3d 925, 930 (Tex. App.—Dallas 2022, no pet.). At the November 24, 2020 pretrial

hearing, defense counsel asked for a pass until January 14, 2021 because she did not think

anything could be resolved at that hearing. Due to the fact this overlapped with the

Covid delay time period, we decline to weigh it against Gibson.

Additionally, we should not hold the first few months after the arrest against the

State because the State is allowed a reasonable period to prepare its case. See Shaw v.

State, 117 S.W.3d 883, 889-90 (Tex. Crim. App. 2003); Wade v. State, No. 02-21-000125-CR,

2023 Tex. App. LEXIS 1716, at *13 (Tex. App.—Fort Worth March 16, 2023, pet. ref'd)

(mem. op., not designated for publication) (not holding first three months against State);

State v. Echols, No. 11-19-00209-CR, 2021 Tex. App. LEXIS 4219, at *10 (Tex. App.—

Gibson v. State Page 4
Eastland May 28, 2021, pet. ref'd) (mem. op., not designated for publication) (seven

months attributable to State's preparation not held against the State).

Gibson's actions contributed to the delay. On December 12, 2019, the trial court

appointed Gibson's first attorney. On May 24, 2022, the trial court appointed Gibson's

seventh attorney. One attorney withdrew due to a conflict of interest. However, in

motions to withdraw, six of the attorneys cited "fundamental communication" issues,

personality conflicts, Gibson's combativeness, and Gibson's desire to engage in hybrid

representation and inability to take legal advice, barring effective representation. The

trial court could infer that Gibson contributed to the delay because of his inability to

effectively communicate with appointed counsel. See Balderas, 517 S.W.3d at 767-68.

On September 10, 2021, Gibson filed a petition for writ of mandamus in this Court.

At the September 16, 2021 pretrial hearing, the case was reset to January 13, 2022 because

the petition remained pending. See In re Gibson, No. 10-21-00228-CR, 2021 Tex. App.

LEXIS 9192 (Tex. App.—Waco November 10, 2021, orig. proceeding) (mem. op.). Because

Gibson's petition delayed the trial, this delay does not count in support of his speedy trial

claim.1 See United States v. Loud Hawk, 474 U.S. 302, 316 (1986).

1 Gibson appealed the denial of his pretrial application for writ of habeas corpus to this Court which
affirmed it. See Ex parte Gibson, No. 10-21-00273-CR, 2022 Tex. App. Lexis 1113 (Tex. App.—Waco February
16, 2022, pet. ref'd) (mem. op., not designated for publication). The record does not indicate that appeal
contributed to the delay.

Gibson v. State Page 5
Defense counsel did not attend the January 20, 2022 pretrial hearing so the case

was reset. This delay can be attributed to Gibson. See Balderas, 517 S.W.3d at 768. The

next pretrial hearing was May 24, 2022 at which time the court allowed attorney number

six to withdraw, appointed attorney number seven, and set a jury trial date for September

19, 2022.

On September 12, 2022, the State filed a motion for continuance to complete DNA

testing. The estimated time for completion of the testing was the end of October 2022. At

the September 15, 2022 pretrial hearing, defense counsel stated he had no objection to the

State's motion for a continuance based on the need for DNA testing. The court reset the

trial date to October 31, 2022. The delay caused by an agreed reset should not be counted

in calculating the time period between arrest and trial. See Orellana v. State, 706 S.W.2d

660, 661-62 (Tex. Crim. App. 1986) (per curiam).

There is no explanation in the record for the delay from October 31, 2022 and

December 20, 2022. In the absence of an assigned reason for the delay, a court may

presume neither a deliberate attempt on the part of the State to prejudice the defense nor

a valid reason for the delay. Dragoo, 96 S.W.3d at 314.

At the December 20, 2022 status conference, the court reset the trial date to January

23, 2023, the next trial setting. The record before us indicates that the delays in trying this

case can be, in large part, attributable to Covid restrictions and Gibson's actions.

Gibson v. State Page 6
Assertion of the Right

Beginning at least in September 2020 and continuing through November 2022,

Gibson filed pro se motions asserting, among other things, his constitutional right to a

speedy trial. However, as explained above, Gibson was represented by counsel at all

times. A defendant is not entitled to hybrid representation and the trial court was not

required to rule on the motions filed by Gibson. See Robinson v. State, 240 S.W.3d 919, 922

(Tex. Crim. App. 2007); Floyd v. State, 959 S.W.2d 706, 710 (Tex. App.--Fort Worth 1998,

no pet.); see also Wade, 2023 Tex. App. LEXIS 1716, at *19 & n.15. Gibson's pro se motions

cannot be considered as an assertion of his speedy trial right. See Torres v. State, No. 04-

16-00622-CR, 2017 Tex. App. LEXIS 11053, at *13 (Tex. App.—San Antonio, November 29,

2017, no pet.) (mem. op., not designated for publication).

Prejudice

In determining prejudice, we consider the delay's effect on three categories of

interests: (1) preventing oppressive pretrial incarceration; (2) minimizing anxiety and

concern of the accused; and (3) limiting the possibility that the defense will be impaired.

Dragoo, 96 S.W.3d at 315. A defendant has the burden to make some showing of

prejudice, but a showing of actual prejudice is not required. Balderas, 517 S.W.3d at 772.

If the defendant makes a prima facie showing of prejudice, the burden shifts to the State

to show that the prejudice did not exceed that which occurs from the ordinary and

inevitable delay. State v. Munoz, 991 S.W.2d 818, 826 (Tex. Crim. App. 1999). The

Gibson v. State Page 7
possibility of prejudice is not sufficient to support a defendant's position that his speedy

trial rights were violated. Loud Hawk, 474 U.S. at 315.

Gibson has not shown the effect the incarceration had on him. See Munoz, 991

S.W.2d at 828-29. There is no showing that his pre-trial incarceration was oppressive or

that his defense was impaired. Although Gibson mentioned in his pro se motions that he

had experienced anxiety, those motions are not evidence, and the trial court rightly

ignored them. See Newman v. State, 331 S.W.3d 447, 449 (Tex. Crim. App. 2011). Gibson

failed to show any prejudice beyond that which usually arises from pretrial incarceration

or from being accused of a crime. We therefore conclude that any prejudice that he

suffered was minimal.

Balancing

Although the length of delay favors Gibson's position, the reasons for the delay

are largely neutral or attributable to Gibson. There was no evidence of bad faith on the

part of the State or that the State engaged in purposeful dilatory tactics. Moreover,

Gibson's pro se motions cannot be considered an assertion of his speedy trial rights, and

he has shown little or no prejudice resulting from the delay. Balancing these factors, we

conclude that Gibson was not denied his right to a speedy trial. See Webb v. State, 36

S.W.3d 164, 176 (Tex. App.—Houston [14th Dist.] 2000, pet. ref'd) (op. on reh'g, en banc).

We overrule Gibson's first issue.

Gibson v. State Page 8
Sexual Assault Examination Evidence

In his twelfth issue, Gibson asserts the trial court erred in allowing Dr. Jayne

Coffman to testify as to the Sexual Assault Nurse Examination (SANE) report. Because

Coffman was not present at the complainant's interview, he contends his constitutional

right to confront witnesses was violated. He also contends the trial court erred in

admitting the report, claiming it is hearsay.

The Confrontation Clause dictates that an accused "shall enjoy the right . . . to be

confronted with the witnesses against him." U.S. CONST. amend. VI. The clause does not

bar admission of a statement so long as the declarant is present at trial to defend or

explain it. Crawford v. Washington, 541 U.S. 36, 59 n.9 (2004). Accordingly, to implicate

the Confrontation Clause, the challenged out-of-court statement must be made by a

witness absent from trial and be testimonial in nature. Id. We review a constitutional

ruling de novo. See Wall v. State, 184 S.W.3d 730, 742 (Tex. Crim. App. 2006).

The person who made the statement is the declarant. TEX. R. EVID. 801(b). Here,

the complainant was the declarant of the challenged statements. She testified at trial and

was subject to cross-examination. Because Dr. Coffman was not the declarant of the

statements in the SANE report, her testimony did not violate the Confrontation Clause.

See Wells v. State, 558 S.W.3d 661, 667 (Tex. App.—Fort Worth 2017, pet. ref'd).

Gibson asserts that the SANE report was inadmissible hearsay. We review

hearsay challenges under an abuse of discretion standard. Wall, 184 S.W.3d at 743.

Gibson v. State Page 9
Hearsay is a statement, other than one made by the declarant while testifying at the trial

or hearing, offered into evidence to prove the truth of the matter asserted. TEX. R. EVID.

801(d). Generally, the object of a sexual assault exam is to determine whether the child

complainant has been sexually abused and whether further medical attention is needed.

Wells, 558 S.W.3d at 668. Statements made for the purposes of medical diagnosis and

treatment are admissible under an exception to the hearsay rule. TEX. R. EVID. 803(4).

Therefore, this exception justified admission of the SANE report. See Wells, 558 S.W.3d

at 668.

Because the trial court did not err in allowing Coffman's testimony or in admitting

the SANE report, we overrule Gibson's twelfth issue.

Arrest Warrant

In his thirteenth issue, Gibson asserts that his constitutional right to be free of

unreasonable searches and seizures was violated by his warrantless arrest.2 He contends

he is entitled to be acquitted of all charges.

Officer Michael Ridling was involved in investigating the claims against Gibson.

He spoke to the woman to whom the complainant made an outcry. The following day,

he encountered Gibson outside of Gibson's home. Gibson was loading items into his

truck and appeared to be about to leave. Believing that Gibson might flee, the officer

2An arrest warrant was procured and is included in the clerk's record in this case. Additionally, the record
reflects that Gibson was provided a copy of the arrest warrant at a pretrial hearing held July 15, 2021.
Gibson v. State Page 10
detained Gibson while a detective obtained an arrest warrant. Gibson was then arrested

pursuant to the arrest warrant.

Assuming Gibson was arrested from the point Ridling detained Gibson, it was a

lawful detention. Ridling was aware of the allegations against Gibson, some of which

were felonies, and he believed Gibson was about to escape. These facts satisfy the

requirements for a warrantless arrest. See TEX. CODE CRIM. PROC. ANN. art. 14.04. We

overrule Gibson's thirteenth issue.

Sufficiency of the Evidence

In issues two through eleven, Gibson contends the State did not prove all of the

elements of the offenses alleged in Counts 1 through 10. The gravamen of his argument

is that the complainant, M.P., was not believable. He also contends a fatal variance exists

between the dates the offenses alleged in Count 1 were alleged to have been committed

and the dates proven at trial. Specifically as to Counts 9 and 10, Gibson asserts the

evidence is insufficient to show that he engaged in sexual contact with the intent to arouse

or gratify his sexual desires.

STANDARD OF REVIEW

In evaluating a challenge to sufficiency of the evidence supporting a criminal

conviction, we view the evidence in the light most favorable to the verdict and determine,

based on that evidence and any reasonable inferences from it, whether any rational trier

of fact could have found the elements of the offense beyond a reasonable doubt. Edward

Gibson v. State Page 11
v. State, 635 S.W.3d 649, 655 (Tex. Crim. App. 2021). The jury is the exclusive judge of the

credibility of the witnesses and the weight to be given to the evidence. Id. Further, we

defer to the jury's responsibility to fairly resolve conflicts in testimony and to draw

reasonable inferences from basic facts to ultimate facts. Id.

APPLICABLE LAW

A person commits the offense of continuous sexual abuse of a young child if: (1)

during a period that is thirty or more days in duration, the person commits two or more

acts of sexual abuse; and (2) at the time of the commission of each of the acts of sexual

abuse, the actor is seventeen years of age or older and the victim is a child younger than

fourteen years of age. TEX. PENAL CODE ANN. § 21.02(b). An act of sexual abuse is an act

that violates one or more specified penal laws, including indecency with a child under

Penal Code Section 21.11(a)(1) and sexual assault under Penal Code Section 22.011. Id.

§ 21.02(c).

A person commits the offense of indecency with a child, who is younger than

seventeen years of age, by engaging in sexual contact with the child or causing the child

to engage in sexual contact. Id. § 21.11(a). Sexual contact includes touching of the anus,

breast, or any part of the genitals of a child, if committed with the intent to arouse or

gratify the sexual desire of any person. Id. § 21.11(c).

A person commits the offense of sexual assault if the person intentionally or

knowingly causes the penetration of the anus or sexual organ of a child by any means or

Gibson v. State Page 12
causes the penetration of the mouth of the child by the sexual organ of the actor. Id.

§ 22.011(a)(2).

A person commits the offense of prohibited sexual conduct if the person engages

in sexual intercourse with another person the actor knows to be the actor's current or

former stepchild. Id. § 25.02(a)(2).

Discussion

M.P. was born in 2003. Her mother married Gibson when she was approximately

nine years old. Even after her mother and Gibson divorced, M.P. lived with Gibson most

of the time. The first instance of sexual abuse occurred when she was eight or nine and

they lived in Joshua. He showed her pornography and placed a vibrator on her vagina.

After that, the sexual abuse would happen on and off when no one else was in the house.

He showed her pornography and touched her breasts, vagina, and "just kind of

everywhere" under her clothes. She testified that he first tried to have sex with her when

she was eight or nine and "eventually it did go in." She clarified that his penis and her

vagina touched. He assaulted her five to ten times at the house in Joshua.

Later, when she was in fifth grade, at the age of eleven or twelve, which would

have been 2014 or 2015, they moved to a house on Madison Street in Cleburne where the

assaults became more frequent. She testified that, when she was twelve, Gibson

explained to M.P.'s mother that he had taken her virginity because he thought M.P.

should lose her virginity to someone she knows and trusts. By the time she was twelve,

Gibson v. State Page 13
"[i]t was happening frequently" and she "had gotten accustomed to it," so she had sex

with him to maintain the peace. She testified that Gibson wanted her to sleep in his bed

at night. On at least one occasion he woke her up by rubbing his fingers on her vagina

and then had sex with her.

After they moved to the Madison Street house, sex toys were used more often. She

explained that they used a variety of sex toys after intercourse and that Gibson inserted

the sex toys in her vagina. She testified that they were used because Gibson wanted to

make sure she "was pleasured." She explained that he seemed like he wanted to do it and

he would try to talk her into having "female ejaculations." When she was twelve or

thirteen, they had anal sex.

M.P. testified that when she was fourteen, in the summer of 2017, she became

pregnant by Gibson, and he and her mother forced her to have an abortion. The sex with

Gibson resumed about a month after the abortion. She described a time when she was

fifteen when he penetrated her vagina, explaining that they had sex whenever he wanted

it. They had sex vaginally about two or three times a week. They had sex anally less than

five times, during which his penis touched her anus. Every now and then, starting before

they moved to the house on Madison Street, Gibson placed his penis in her mouth.

M.P. explained that if Gibson wanted sex and he got sex, then he would be in a

good mood. He treated her "pretty fairly" as long as he got what he wanted. He promised

to buy her things and provide things for her, apparently in exchange for sex.

Gibson v. State Page 14
M.P. estimated that, prior to turning thirteen years old, Gibson had sex with her

over fifty times. After she turned thirteen, he had sex with her "definitely over 75" times.

The testimony of a child victim, standing alone and without corroboration, is

sufficient to support a conviction for continuous sexual abuse of a young child, sexual

assault of a child, and indecency with a child. TEX. CODE CRIM. PROC. ANN. art. 38.07.

M.P.'s testimony was sufficient to prove, beginning when she was under the age of

fourteen, Gibson, her stepfather for a time, intentionally or knowingly penetrated her

sexual organ with his sexual organ and sex toys, Gibson penetrated M.P.'s anus and

mouth with his sex organ, and Gibson touched her genitals. See TEX. PENAL CODE ANN.

§§ 21.02(b), 21.11, 22.011(a)(2).

Gibson contends the State did not prove the sexual abuse alleged in Count 1 took

place between the dates alleged. Count 1 alleged that, during a period that was thirty or

more days in duration, namely from on or about June 15, 2014 through on or about

January 28, 2015, Gibson committed two or more acts of sexual abuse against the

complainant. The "on or about" language in the indictment allows the State to prove a

date other than the one alleged in the indictment as long as the date is anterior to the

presentment of the indictment and within the statutory limitation period. State v. West,

632 S.W.3d 908, 913 (Tex. Crim. App. 2021). The record shows the sexual abuse occurred

prior to presentment of the indictment. Further, there is no limitations period for

continuous sexual abuse of a young child, the crime alleged in Count 1. See TEX. CODE

Gibson v. State Page 15
CRIM. PROC. ANN. art. 12.01(1)(D). Gibson's argument that the State failed to prove the

dates of the offense of continuous sexual abuse of a young child has no merit.

Gibson asserts the evidence is insufficient to support his convictions for indecency

with a child because it was not shown that he touched M.P.'s genitals with the intent to

arouse or gratify his sexual desire as required by the statute. See TEX. PENAL CODE ANN.

§ 21.11. We disagree.

The requisite specific intent to arouse or gratify the sexual desire of any person can

be inferred from the defendant's conduct, his remarks, and all surrounding

circumstances. See McKenzie v. State, 617 S.W.2d 211, 216 (Tex. Crim. App. 1981). Gibson's

contact with M.P.'s genitals can only be described as sexual in nature. See Montgomery v.

State, 810 S.W.2d 372, 396 (Tex. Crim. App. 1991) (op. on reh'g) (finding sufficient

evidence of intent because the vaginal contact described by complainants "can hardly be

attributed to normal parental caretaking"). The jury heard testimony that, over the course

of eight or nine years, Gibson repeatedly touched M.P.'s breasts and genitals, had sex

with her over 125 times, impregnated her, and used sex toys on her. See Ranson v. State,

707 S.W.2d 96, 97 (Tex. Crim. App. 1986) (noting that evidence of common pattern of

similar acts is admissible as tending to prove intent); C.F. v. State, 897 S.W.2d 464, 472

(Tex. App.—El Paso 1995, no pet.) (holding that appellant's repeat conduct gives rise to

the conclusion that he acted with intent to arouse or gratify his sexual desire). Gibson

did these things only when no one else was in the home. See Montgomery, 810 S.W.2d at

Gibson v. State Page 16
396 (evidence demonstrating consciousness of guilt leads to an inference that appellant

harbored a specific intent to arouse and gratify his own sexual desire). Accordingly, the

element of intent is supported by legally sufficient evidence. See McKenzie, 617 S.W.2d at

216.

Viewing the evidence in the light most favorable to the jury's verdict and deferring

to the jury's responsibility to both weigh the evidence and draw reasonable inferences

from it, we conclude that a rational trier of fact could have found Gibson guilty of

continuous sexual abuse of a young child, sexual assault of a child, and indecency with a

child beyond a reasonable doubt. See Edward, 635 S.W.3d at 655. We overrule Gibson's

issues two through eleven.

Conclusion

Having determined that Gibson's constitutional rights to a speedy trial, to confront

witnesses, and to be free of unreasonable searches and seizures have not been violated,

the trial court did not err in admitting the SANE report, and the evidence is legally

sufficient to support the convictions, we affirm the trial court's judgment.

STEVE SMITH
Justice

Gibson v. State Page 17
Before Chief Justice Gray,
Justice Johnson, and
Justice Smith
(Chief Justice Gray concurs)
Affirmed
Opinion delivered and filed March 7, 2024
Do not publish
[CRPM]

Gibson v. State Page 18