
In The


Court of Appeals


Ninth District of Texas at Beaumont


____________________


NO. 09-06-307 CR

____________________


KAIL EDWARD GIBSON, Appellant


V.


THE STATE OF TEXAS, Appellee




On Appeal from the 411th District Court
Polk County, Texas

Trial Cause No. 18385




OPINION
 A jury convicted Kail Edward Gibson of aggravated sexual assault of a child and
sexual assault of a child.  The jury assessed his punishment at fifty years' imprisonment for
the aggravated sexual assault and ten years' imprisonment for the sexual assault.  The trial
court ordered the sentences to run concurrently.  Gibson filed this appeal, in which he raises
three issues.  We affirm.

The Evidence
	The victim testified regarding her father's sexual abuse.  When the victim was
approximately twelve and one-half years old, she woke up and found Gibson "feeling" her
female sexual organ.  She described that this conduct progressed to Gibson's digital
penetration of her female sexual organ and to sexual intercourse.  The progression to sexual
intercourse occurred by her thirteenth birthday.  The victim testified that Gibson told her he
would kill himself if she reported him.  She also testified that when she requested that Gibson
stop his advances toward her, he got angry and mistreated her mother and her two siblings. 
	The victim testified that Gibson began sleeping regularly in her bed with her. 
According to the victim, her mother began questioning Gibson regarding this behavior; he
responded that it was none of the mother's business, and "that he would raise his daughter
how he wanted to."  Because Gibson had threatened to commit suicide, the victim told her
mother that nothing inappropriate had occurred with her father.
	After her parents divorced, the victim testified that she voluntarily chose to live with
Gibson because she did not get along well with her mother, and "with [Gibson] I got to do
what I wanted to because I had something over his head."  Gibson's behavior toward the
victim continued after they moved in with his mother.  The victim testified that she and
Gibson had intercourse approximately three or four times a week.   
	The evidence admitted at trial included letters and a poem from Gibson to the victim. 
The victim testified that a letter in which Gibson wrote, "[h]ope you got a good nites [sic]
sleep last night!! That[']s what you ask[ed] for," referred to a night that she begged Gibson
to let her sleep instead of "messing" with her as usual.  The victim stated that Gibson
continued to have sex with her until she told her mother about the abuse in January 2005.  
	The victim's mother testified that around the summer of 2001, she began finding
Gibson in her daughter's bed.  The mother repeatedly questioned her daughter and Gibson
concerning whether anything inappropriate was happening between them.  They denied any
inappropriate behavior, but the mother testified that Gibson reacted defensively, and told her
that "nobody was going to tell him how he could or could not love his kids."  According to
the mother, Gibson continued to sleep with the victim despite the mother's objections to him
doing so.  The mother also testified that Gibson attempted to prevent her from knowing when
he slept with the victim.  The  mother stated that this behavior occurred over an approximate
three-year period and that she was aware that Gibson was sleeping in the victim's bed
approximately four times a week before she and Gibson divorced.    	
	Three of Gibson's co-workers testified regarding Gibson's relationship with the
victim.  All three of them recalled Gibson speaking of the victim more often than he spoke
of his other children.  One co-worker testified that he became concerned with a letter he
found written by Gibson to the victim and reported his concern about the letter to another co-worker who also served as a deputy sheriff with the Polk County Sheriff's Department.  The
deputy sheriff testified that some of the letter's content was unusual, but he took no further
action.  Nonetheless, the deputy sheriff elaborated that Gibson commented on the victim
wearing "G-string" underwear and that Gibson told him that he sometimes climbed in bed
with the victim.  Another of Gibson's co-workers testified that Gibson seemed infatuated
with the victim and made inappropriate comments regarding her, including the development
of the victim's breasts.  
	Several of Gibson's sisters also testified at trial.  Each explained that after the victim
told her mother about the alleged abuse, they assisted Gibson in obtaining psychiatric
treatment because he seemed depressed.
	Pradeep Kumar Roy, a licensed psychiatrist, treated Gibson.  Dr. Roy testified that his
medical records reflected that Gibson admitted sexually abusing the victim and that the
victim had reported the abuse.  Dr. Roy's records were not offered as exhibits at the trial.  
	Gibson testified in his defense.  Although he admitted to sleeping in his teenage
daughter's bed, he denied ever molesting his daughter.  Gibson also attempted to explain that
Dr. Roy's note was taken out of context and that he did not tell Dr. Roy that he had molested
his daughter.  Rather, Gibson testified that his daughter accused him of sexual molestation
because she wanted to live with her mother, which he attributed to his "cracking down on her
and finding out things that she was doing and the crowd that she was hanging around[.]" 
Legal Sufficiency Challenges
	In issues one and two, Gibson asserts that the evidence is legally insufficient to
support his convictions.  When reviewing the legal sufficiency of the evidence, we view the
evidence in the light most favorable to the verdict and determine whether any rational fact-finder could have found the essential elements of the offense beyond a reasonable doubt. 
Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Ross v.
State, 133 S.W.3d 618, 620 (Tex. Crim. App. 2004).
	In count one of the indictment, the State charged Gibson under section
22.021(a)(1)(B)(i), (2)(B) of the Penal Code.  It provides:  "A person commits an offense.
. . if the person. . . intentionally or knowingly. . . causes the penetration of the anus or sexual
organ of a child by any means; [and] . . . the victim is younger than 14 years of age[.]"  Tex.
Pen. Code. Ann. § 22.021(a)(1)(B)(i), (2)(B) (Vernon Supp. 2006).  In count two of the
indictment, the State charged Gibson under section 22.011(a)(2)(A) of the Penal Code.  It
provides: "A person commits an offense if the person. . . intentionally or knowingly. . .
causes the penetration of the anus or sexual organ of a child by any means[.]" Id. §
22.011(a)(2)(A) (Vernon Supp. 2006).  "Child" is defined under section 22.011 as "a person
younger than 17 years of age who is not the spouse of the actor."  Id. § 22.011(c)(1) (Vernon
Supp. 2006).  Both counts of the indictment further alleged that Gibson penetrated the
victim's female sexual organ by digital penetration and through sexual intercourse.  
	We have previously described the testimony of the witnesses regarding Gibson's
conduct toward the victim.  There is sufficient evidence to show Gibson's penetration of the
sexual organ of the victim prior to the victim's fourteenth birthday and after the victim's
fourteenth birthday.  Viewing the record in the light most favorable to the verdict, a rational
jury could have concluded beyond a reasonable doubt that Gibson was guilty of aggravated
sexual assault of a child and sexual assault of a child.  See Tex. Pen. Code. Ann. §§
22.021(a)(1)(B)(i), (2)(B); 22.011(a)(2)(A); Jackson, 443 U.S. at 318-19; Ross, 133 S.W.3d
at 620.  We overrule issues one and two.
Admission of Evidence Challenge
	In his third issue, Gibson asserts the trial court erroneously admitted Dr. Roy's
testimony that he admitted to sexually abusing the victim.  Gibson argues that the State
illegally obtained his medical records and concludes that the evidence obtained from those
records is rendered inadmissible by article 38.23 of the Texas Code of Criminal Procedure. 
See Tex. Code Crim. Proc. Ann. art. 38.23 (Vernon 2005) (generally barring admission of
evidence obtained in violation of law).    
	 We review a trial court's ruling on the admission of evidence under an abuse of
discretion standard.  See Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000). 
We will not disturb the trial court's ruling on appeal unless it lies outside the zone of
reasonable disagreement.  See id. 
	Prior to the trial court's admission of this evidence, Gibson objected to the evidence
and asserted that the State obtained his medical records in violation of the Health Insurance
Portability and Accountability Act of 1996 ("HIPAA").  See Pub. L. No. 104-191, 110 Stat.
1936 (1996) (codified primarily in titles 18, 26, and 42 of the United States Code).  Gibson
argued that the State failed to comply with HIPAA's procedures in obtaining his records
because the State did not notify him that it had requested them.  See 45 C.F.R. § 164.512
(2006).  The State maintained that it validly obtained the records through a grand jury
subpoena pursuant to a HIPAA exception. 
	HIPAA specifically authorizes a covered entity to disclose protected health
information for a law enforcement purpose without an individual's permission in response
to a grand jury subpoena.  45 C.F.R. § 164.512(f)(1)(ii)(B); see also In re Grand Jury
Subpoena, 197 F. Supp. 2d 512, 515 (E.D. Va. 2002).  Gibson did not contend, at trial or on
appeal, that his medical records were obtained by means other than a grand jury subpoena.
Because the record does not show that Gibson's medical records were obtained in violation
of any law, the trial court did not err in rejecting Gibson's claim that article 38.23 prohibited
the admission of Dr. Roy's testimony.  See Tex. Code Crim. Proc. Ann. art. 38.23. 
	Gibson also asserts a Fifth Amendment claim and argues that no one warned him that
his statements during his diagnostic interview could be used against him at trial.  However,
Gibson was not in custody during his hospital admission; and Dr. Roy was not an agent of
the State.  See Miranda v. Arizona, 384 U.S. 436, 444, 16 L.Ed.2d 694, 86 S.Ct. 1602 (1966);
see also Rhode Island v. Innis, 446 U.S. 291, 301, 64 L.Ed.2d 297, 100 S.Ct. 1682 (1980);
Paez v. State, 681 S.W.2d 34, 37 (Tex. Crim. App. 1984).  Because Gibson's statements were
not products of a custodial interrogation, Gibson's Fifth Amendment argument fails.  
	We hold that the trial court did not abuse its discretion in admitting Dr. Roy's
testimony.  Accordingly, we overrule Gibson's third issue and affirm the trial court's
judgment. 
	AFFIRMED.
								____________________________
									HOLLIS HORTON
										Justice

Submitted on February 15, 2007
Opinion Delivered May 23, 2007
Publish

Before McKeithen, C.J., Gaultney and Horton, JJ.
