Leonard Charles Gibson v. the State of Texas

Court of Appeals Tenth Appellate District of Texas 10-25-00255-CR Leonard Charles Gibson, Appellant v. The State of Texas, Appellee On appeal from the 19th District Court of McLennan County, Texas Senior Judge Roy Sparkman, presiding Trial Court Cause No. 2024-298-C1 JUSTICE SMITH delivered the opinion of the Court. MEMORANDUM OPINION Leonard Charles Gibson pled guilty to possession of methamphetamine in an amount of four grams or more but less than two hundred grams and elected for the jury to assess punishment. Following a punishment hearing, Gibson was sentenced to eleven years in prison and a $5,000 fine. On appeal, Gibson contends that the trial court abused its discretion by permitting the State to question a witness about the contents of the witness’s out-of-court recorded statement without laying the hearsay exception predicate under Rule of Evidence 803(5). See TEX. R. EVID. 803(5). We affirm. ANALYSIS The witness in question testified that on the night of the offense, after drinking with friends, he parked at a gas station because he felt unsafe to drive. The witness fell asleep, and later awakened to find Gibson seated in his passenger seat. At the center of Gibson’s appellate complaint is the State’s line of questioning about the witness’s statement to law enforcement that Gibson exposed his penis. This statement was apparently recorded on body camera video, though the body camera video was not admitted into evidence. The following exchange occurred: [The State]: [D]id you watch the body cam where you told Officer Lindsey that you saw the Defendant have his penis out? [Defense Counsel]: Objection, Your Honor. Leading. The Court: Any - - [The State]: And - - and, Judge, I’m just refreshing this witness’s recollection. He testified that he did watch those videos of himself and - - and making those statements. The Court: All right. Let me see the lawyers up here for just a minute. (Court and counsel at the bench, off the record) Leonard Charles Gibson v. The State of Texas Page 2  The Court: All right. The objection’s overruled. You may proceed. [...] [The State]: [Y]ou told her that it was really weird that the Defendant had his dick out, that he literally had his dick out. Right? [The Witness]: I mean, I don’t – I don’t remember. [The State]: And then that’s just what – is that what was said on that video? [The Witness]: I think so, the video. On appeal, Gibson complains that the State failed to lay the proper foundation for the statement’s admissibility as a recorded recollection under Rule of Evidence 803(5). See TEX. R. EVID. 803(5). Gibson acknowledges that his trial objection was not based on hearsay, though he “suggests it was clear to the Court that was the substance of the objection” following the off-the- record bench conference. Nothing in the trial court’s statement after the bench conference or elsewhere in the record indicates that the trial court understood Gibson’s objection to leading the witness as an objection to hearsay or to improper foundation to establish a hearsay exception. Because Gibson’s appellate complaint does not comport with his objection at trial, Gibson has failed to preserve his complaint for appellate review. See TEX. R. APP. P. 33.1(a). Leonard Charles Gibson v. The State of Texas Page 3  Moreover, even had Gibson preserved his hearsay complaint, we find no error in the trial court’s admission of the statement. "[O]verruling an objection to evidence will not result in reversal when other such evidence was received without objection, either before or after the complained-of ruling." Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998). Any error in admitting the witness’s statement about Gibson possibly exposing his penis was cured because the same or similar evidence was admitted through Gibson’s own testimony without objection. See id. During the State’s questioning, Gibson denied exposing his penis to the witness but explained that the witness thought Gibson exposed his penis when he “reached in and grabbed the meth” that was hidden beneath his testes. We overrule Gibson’s sole issue on appeal and affirm the trial court’s judgment. STEVE SMITH Justice OPINION DELIVERED and FILED: September 3, 2026 Before Chief Justice Johnson, Justice Smith, and Justice Harris Affirmed Do Not Publish CR25 Leonard Charles Gibson v. The State of Texas Page 4