In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
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No. 06-07-00189-CR
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TOMMIE LOYD PRATER, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 336th Judicial District Court
Fannin County, Texas
Trial Court No. 21977
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Justice Moseley
MEMORANDUM OPINION
Tommie Loyd Prater appeals from his conviction by a jury for sexual assault of a child with A.C.P. The jury assessed his punishment at twenty years' imprisonment and a $10,000.00 fine. Prater presently has seven other convictions currently on appeal before this Court. (1)
On appeal, Prater contends that 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 her 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.
We addressed this issue in detail in our opinion of this date on Prater's appeal in cause number 06-07-00187-CR. For the reasons stated therein, we likewise conclude that error has not been shown.
We affirm the judgment.
Bailey C. Moseley
Justice
Date Submitted: August 8, 2008
Date Decided: September 15, 2008
Do Not Publish
1. Prater appeals from eight convictions. In cause number 06-07-00187-CR, he appeals from his conviction of indecency with a child (A.C.P.) by sexual contact; in cause numbers 06-07-00188-CR through 06-07-00192-CR, he appeals his convictions of sexual assault of a child (A.C.P.). In each of these cases, Prater was sentenced to twenty years' imprisonment, to run consecutively, and $10,000.00 fines.
Prater appeals his conviction in cause number 06-07-00193-CR of indecency with a child (J.A.P.) by sexual contact. Prater was sentenced in this case to twenty years' imprisonment, to run consecutively, and a $10,000.00 fine.
Prater also appeals his conviction in cause number 06-07-00194-CR of aggravated sexual assault of a child (T.L.P.). He was sentenced to life imprisonment, to run consecutively, and a $10,000.00 fine.
0;
Before Morriss, C.J., Ross and Carter, JJ.
Opinion by Chief Justice Morriss
O P I N I O N
Pilgrim's Pride Corporation (Pilgrim's Pride) has filed a petition for writ of mandamus. The underlying litigation is a suit on sworn account filed by Poultry Plant Refrigeration and Maintenance (PPR&M) against Pilgrim's Pride. Pilgrim's Pride has asserted several affirmative defenses, including satisfaction, offset, and setoff. Pilgrim's Pride has further asserted counterclaims for breach of contract, declaratory relief, fraud, and civil conspiracy.
Pilgrim's Pride's petition for writ of mandamus asks this Court to order the Honorable Ralph K. Burgess, presiding judge of the 5th Judicial District Court of Bowie County, Texas, to (1) reverse that court's decision not to compel production of documents ostensibly related to Pilgrim's Pride's affirmative defenses and counterclaims, (2) continue the trial of the underlying litigation to a date on or after August 28, 2006, and (3) enter a scheduling order allowing the parties a reasonable opportunity to conduct additional discovery.
For the reasons set forth below, we deny Pilgrim's Pride's petition.
A. Standard for Mandamus Relief
Mandamus relief is appropriate only when the mandamus record establishes (1) a clear abuse of discretion or the violation of a duty imposed by law (which is often described as a "ministerial" act), and (2) the absence of a clear and adequate remedy at law. Cantu v. Longoria, 878 S.W.2d 131, 132 (Tex. 1994); Walker v. Packer, 827 S.W.2d 833, 839–40 (Tex. 1992). "With respect to resolution of factual issues or matters committed to the trial court's discretion, the reviewing court may not substitute its judgment for that of the trial court." Walker, 827 S.W.2d at 839–40. "The relator must establish that the trial court could reasonably have reached only one decision." Id. This Court would grant mandamus relief in this case if Pilgrim's Pride demonstrated from the mandamus record that the act sought to be compelled is purely "ministerial" and that Pilgrim's Pride has no other adequate legal remedy. See State ex rel. Rosenthal v. Poe, 98 S.W.3d 194, 198 (Tex. Crim. App. 2003). A remedy is not inadequate merely because it may involve more expense or delay than obtaining an extraordinary writ. Walker, 827 S.W.2d at 842.
B. Pilgrim's Pride Has Not Provided an Adequate Record
Pilgrim's Pride contends the trial court abused its discretion by failing to grant a continuance of the trial date, by sustaining PPR&M's objections to Pilgrim's Pride's discovery requests, and by refusing to enter a scheduling order, when PPR&M did not present any evidence on those issues. But Pilgrim's Pride has not brought forth a reporter's record from the January 3, 2006, hearing in the trial court. Thus, we cannot determine from the record before us whether PPR&M produced any evidence in support of its positions opposing Pilgrim's Pride's requested relief in the trial court. Without a reporter's record, we could only speculate whether there was evidence to support the trial court's denial of Pilgrim's Pride's motions to compel discovery, to delay the trial date, and to enter a scheduling order.
C. Conclusion
Because the record before us is inadequate to support the issuance of a writ of mandamus, we deny Pilgrim's Pride's petition for writ of mandamus.
Josh R. Morriss, III
Chief Justice
Date Submitted: February 15, 2006
Date Decided: February 16, 2006