      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-07-00191-CR



                   Charles Ray Gibson AKA Charles Ray Farris, Appellant

                                                  v.

                                   The State of Texas, Appellee


      FROM THE DISTRICT COURT OF BELL COUNTY, 264TH JUDICIAL DISTRICT
            NO. 59781, HONORABLE RICK MORRIS, JUDGE PRESIDING



                             MEMORANDUM OPINION


               Charles Ray Gibson AKA Charles Ray Farris appeals his conviction by a jury

of aggravated sexual assault of a child under 14 years of age. See Tex. Penal Code Ann.

§ 22.021(a)(2)(B) (West Supp. 2007). The jury found the enhancement allegations to be true and

assessed punishment at thirty years’ confinement. In two issues, appellant contends that the trial

court erred in (i) admitting evidence of out-of-court statements made by the victim to a social worker

and (ii) ordering appellant to pay restitution in an amount set forth on the judgment “to be

determined.” For the reasons that follow, we modify the judgment to delete any reference to

restitution, and we affirm the judgment of conviction, as modified.

               Appellant, who was twenty years old at the time of the offense, was indicted for the

offense of aggravated sexual assault against J.A., a child under 14 years of age. The evidence at

trial showed that on December 31, 2005, appellant met J.A. through mutual friends. J.A., who had
turned thirteen years old in October, was with her friend R.S., who was also thirteen and lived with

her family at the Belle Oaks Apartments in Belton. At the apartment complex, J.A. and R.S.

encountered R.S.’s boyfriend, who was fifteen years old. He was accompanied by appellant, an older

male the girls did not know. The two males returned to R.S.’s apartment with J.A. and R.S. No one

else was present at the apartment. The males had alcoholic beverages with them and offered drinks

to the girls. J.A. testified that she took a sip.

                At some point, appellant took J.A. into a bedroom and engaged in sexual intercourse

with her. Appellant and R.S.’s boyfriend then left. J.A. testified that she spent the night at R.S.’s

house that night but did not tell R.S. or her family what had happened. Approximately two weeks

later, J.A. reported the event to her aunt. When J.A. and her aunt later encountered appellant at the

apartment complex and J.A. identified appellant to her aunt as the person who had assaulted her,

J.A.’s mother reported the offense to the police.

                At trial, the State presented the testimony of J.A., her mother and aunt, the two Belton

police officers who investigated the case, Deborah Kleypas, a registered nurse and sexual assault

nurse examiner at Scott & White Hospital who examined J.A., and Diane Campbell, a clinical social

worker in private practice.

                In his first issue, appellant contends that the trial court erred in overruling appellant’s

hearsay objection to Campbell’s testimony in which Campbell related to the jury out-of-court

statements made by J.A. to her. Campbell testified that she had counseled J.A. after J.A. was

referred to her by the district attorney’s office.        Appellant does not challenge Campbell’s

qualifications to testify. Appellant contends that any statements made by J.A. to Campbell are



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inadmissible hearsay and that the trial court committed reversible error in admitting them. The State

responds that Campbell’s testimony was properly admitted and did not contain inadmissible hearsay.

                A trial court’s decision to admit or exclude evidence is afforded a great deal of

discretion; thus, we review a trial court’s ruling on admissibility or exclusion of evidence under an

abuse of discretion standard. See Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We

will uphold a trial court’s evidentiary ruling if it is reasonably supported by the record and is correct

under any theory of applicable law. Martin v. State, 173 S.W.3d 463, 467 (Tex. Crim. App. 2005);

Sauceda v. State, 129 S.W.3d 116, 120 (Tex. Crim. App. 2004).

                Our review of the record shows Campbell testified that she is a licensed social worker

who has been in private practice for 16 years. She runs a clinic in Harker Heights with her husband

who is a psychologist. Campbell testified that she has a Master’s Degree in clinical social work from

the University of Texas at Austin and has received additional specialized training in her area. She

had been employed as the director of social work at a private psychiatric hospital. She testified that

J.A. was referred to her by the victim coordinator at the district attorney’s office because J.A. was

a victim of sexual assault. Campbell also has a contractual relationship with Child Protective

Services and receives referrals from them.

                At trial, Campbell testified that she met with J.A. at her clinic and diagnosed her as

having post-traumatic stress disorder and depression brought on by the sexual assault. Campbell

explained to the jury what the criteria were for diagnosing a person with post-traumatic stress

disorder. At that point, during the State’s direct examination, the following testimony occurred:


        Q.      Now, what is the basis that you use to make that diagnosis with [J.A.]?

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       A.      Well, primarily as—as I’m visiting with a patient, or with [J.A.] in this case,
               I may ask some specific questions, but usually I just listen to what they tell
               me, and as they talk about certain things then—that I know fit the criteria,
               that’s how I make the diagnosis.

       Q.      What types of things did [J.A.] talk about that allowed you to make the
               diagnosis of Post Traumatic Stress Disorder as a result of being sexually
               assaulted?


After the trial court overruled appellant’s hearsay objection, Campbell responded:


               There were numerous things with [J.A.] For one thing, she was very clear to
       me that she doesn’t like to talk about the sexual assault. Any time I would approach
       the subject with her—and, of course, you know, she’s a child, so I try to do it
       carefully and gently—but she—she would frequently cry, become kind of inward.
       You know, I could almost visually see her take a big, deep breath before she would
       answer my question. She talked about being very, very fearful, not only for her own
       safety but also the safety of some loved ones around her. When she was living with
       Mrs. Baker, she saw Mrs. Baker’s daughters as like her sisters, and she told me that
       now she knows what can happen to women, so she worries about that. She told me
       that she had a fear now of older men, that she would get nervous and anxious around
       those individuals. She had a great difficulty sleeping. She was having problems with
       concentrating at school. Let me think what else. Those were primarily the issues.


               Other than the single hearsay objection, there were no other objections to Campbell’s

testimony. Assuming that this objection was preserved because similar testimony was admitted

during other parts of the trial, see Anderson v. State, 717 S.W.2d 622, 627 (Tex. Crim. App. 1986)

(holding admission of hearsay testimony was harmless where complained-of testimony was generally

cumulative of other unobjected-to testimony), we conclude that the trial court did not abuse its

discretion in admitting Campbell’s testimony.

               Even assuming the statements are hearsay, they fall under Rule 803 hearsay

exceptions, including Rule 803(4) allowing the admission of symptoms or the “inception or general

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character of the cause” that relates to J.A.’s treatment. See Perez v. State, 113 S.W.3d 819, 828

(Tex. App.—Austin 2003, pet. ref’d); Moore v. State, 82 S.W.3d 399, 404-05 (Tex. App.—Austin

2002, pet. ref’d). Campbell testified to her qualifications and experience as a clinical social worker

who diagnosed and treated J.A. The trial court did not abuse its discretion in overruling appellant’s

objection and admitting the testimony.

               In his second issue, appellant urges that the trial court committed reversible error

when it ordered appellant in the judgment to pay restitution in an amount “to be determined.” The

State urges that the judgment should be reformed and the reference to restitution deleted to make the

judgment comport with the sentence pronounced orally.

               The court that sentences a defendant may order him to make restitution to the victim

of the offense. See Tex. Code Crim. Proc. Ann. art. 42.037(a) (West 2006). The court must resolve

any dispute relating to the proper amount or type of restitution, and it is the State’s burden to prove

the amount of the victim’s loss by a preponderance of the evidence. Id. art. 42.037(k). Due process

requires that there be evidence in the record to show that the amount of restitution ordered has a

factual basis. Campbell v. State, 5 S.W.3d 693, 696 (Tex. Crim. App. 1999); Cartwright v. State,

605 S.W.2d 287, 289 (Tex. Crim. App. 1980).

               When the trial court pronounced sentence in response to the verdict of the jury as

to punishment, it assessed a sentence of thirty years in prison. The trial court did not mention

restitution nor set an amount. There was no evidence in the record to establish any amount of

restitution. There was no mention of restitution on the docket sheet of the trial court. Nevertheless,




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in the written judgment and sentence of the court, under the heading of “restitution” appeared the

words “to be determined.”

               Because of the complete absence of factual basis, we agree that any reference to

restitution should be deleted. See Wallace v. State, 75 S.W.3d 576, 583 (Tex. App.—Texarkana

2002); cf. Taylor v. State, 131 S.W.3d 497, 502 (Tex. Crim. App. 2004) (affirming deletion of fine

from judgment where fine was not assessed when sentence was orally pronounced). We therefore

modify the judgment to delete any reference to restitution. See Tex. R. App. P. 43.2(b).

               Having overruled appellant’s issues, we modify the judgment, and we affirm the

judgment of conviction, as modified.




                                             __________________________________________

                                             Jan P. Patterson, Justice

Before Justices Patterson, Puryear and Pemberton

Modified and, as Modified, Affirmed

Filed: November 29, 2007

Do Not Publish




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