                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana

         ______________________________

               No. 06-07-00187-CR
         ______________________________


         TOMMIE LOYD PRATER, Appellant

                           V.

          THE STATE OF TEXAS, Appellee



    On Appeal from the 336th Judicial District Court
                Fannin County, Texas
                Trial Court No. 21975




      Before Morriss, C.J., Carter and Moseley, JJ.
        Memorandum Opinion by Justice Carter
                                   MEMORANDUM OPINION

       Tommie Loyd Prater has brought eight separate appeals from eight jury convictions for

various sexual crimes against three of his children. In this appeal, from trial court number 21975,

he was convicted of indecency with a child by sexual contact.

       Prater has filed a single brief addressing all of his appeals. This contention is common to five

of the convictions, for acts involving A.C.P., his fifteen-year-old daughter.1 The evidence generally

shows multiple sexual encounters with this victim, over a period of approximately three months.

       Prater contends that, in the prosecutions for various sexual activities involving A.C.P., the

trial court erred in allowing the introduction of hearsay statements through the testimony of Judith

Hart, a nurse who examined A.C.P. during her initial hospital visit. Prater argues that Hart's

testimony and records were inadmissible because they were hearsay, not made admissible under a

medical exception, and that the outcry exception did not apply because Hart was not the outcry

witness.

       Prater complains of the admission of Hart's "clinical report," and of her testimony about the

same matters. Hart was the nurse who initially triaged A.C.P. when she arrived at the hospital



       1
        In this appeal, from trial court number 21975, he was convicted of indecency with a child
by sexual contact. The other cause numbers involving A.C.P. are: 06-07-00188-CR, 06-07-00189-
CR, 06-07-00190-CR, 06-07-00191-CR, and 06-07-00192-CR.
        The two other convictions involve J.A.P. as the victim, in 06-07-00193-CR and T.L.P. as the
victim in 06-07-00194-CR.
        The arguments addressed in this opinion do not apply to the last two cases.


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complaining of "vaginal itching," "possible pregnancy," and a "history of alleged sexual assault by

her father." Hart did a general physical examination, although not a genital examination, and wrote

down A.C.P.'s statements to her as a part of that process. Hart testified that she took the statements

down as part of information gathering for the purpose of medical treatment or diagnosis.

       "'Hearsay' is a statement, other than one made by the declarant while testifying at the trial or

hearing, offered in evidence to prove the truth of the matter asserted." TEX . R. EVID . 801(d). Hearsay

testimony is generally inadmissible at trial. TEX . R. EVID . 802. Texas Rule of Evidence 803(4)

provides an exception to the hearsay rule for "[s]tatements made for purposes of medical diagnosis

or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the

inception or general character of the cause or external source thereof insofar as reasonably pertinent

to diagnosis or treatment." TEX . R. EVID . 803(4).

        It is apparent that the testimony was hearsay. There is no indication or argument made that

Hart was the outcry witness in this case. Thus, the question is whether the court abused its discretion

by allowing the testimony under the medical diagnosis or treatment exception to the hearsay rule.

We review a trial court's admission or exclusion of evidence for abuse of discretion. Casey v. State,

215 S.W.3d 870, 879 (Tex. Crim. App. 2007). A trial court abuses its discretion when its decision

is so clearly wrong as to lie outside that zone within which reasonable persons might disagree. Id.

       As specified by the rule, the crucial issue under Rule 803(4) of the Texas Rules of Evidence

is whether the out-of-court statement was reasonably pertinent to medical diagnosis or treatment.



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Gregory v. State, 56 S.W.3d 164, 183 (Tex. App.—Houston [14th Dist.] 2001, pet. dism'd).

Compare Garcia v. State, 126 S.W.3d 921, 927 (Tex. Crim. App. 2004) (exception inapplicable

when no evidence showed victim was seeking medical treatment).

        Prater argues that, because of the nature of the complaints, it was apparent that the child

would be transferred to another facility and that this hospital would provide no medical care or

diagnosis, the report was outside the scope of the rule. We find this argument unpersuasive. The

medical treatment exception to the hearsay rule is based on the assumption that the patient

appreciates that the effectiveness of the treatment may depend on the accuracy of the information

provided to the medical provider. Fleming v. State, 819 S.W.2d 237, 247 (Tex. App.—Austin 1991,

pet. ref'd) citing McCormick on Evidence § 292 (3d ed. 1984). Since proper medical treatment

depends on a reliable diagnosis, patients have a strong motivation to be truthful. See Cathy Cochran,

Texas Rules of Evidence Handbook, art. VIII, at 854 (7th ed. 2007). Here, there is no suggestion

that the child was aware of any hospital policy concerning transferring patients reporting a sexual

assault. The evidence shows the child appeared at this hospital for diagnosis and treatment and

provided the nurse information that would assist medical personnel to properly diagnose and treat

her. It is clear that the determination of transferring the child would not be made until after the

review by the nurse was complete.

        The nature of the statements made is in each instance connected with the complaints that

A.C.P. made in the course of seeking medical care. We cannot say that the court's determination that



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the evidence was admissible was outside the zone of reasonable disagreement. Accordingly, no

abuse of discretion has been shown, and the contention of error is overruled.

       We affirm the judgment.



                                                     Jack Carter
                                                     Justice

Date Submitted:       August 8, 2008
Date Decided:         September 15, 2008

Do Not Publish




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