law-hearsay-and-exception-to-hearsay-rule | admission and exclusion of evidence | affidavits | witnesses
Hearsay is a statement, other than one made by the declarant while testifying at
trial, that is offered to prove the truth of the matter asserted. Tex. R. Evid. 801(d).
Hearsay statements are inadmissible except as provided by statute or rule. Tex. R. Evid.
A party‟s own statements are not hearsay. See Tex. R. Evid. 801(e)(2).
Hearsay evidence may be admitted if it is a
record [or] report . . . in any form of acts, events, [or] conditions . . . made at or near the time by, or from
information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business
activity, and if it was the regular practice of that business activity to make the . . . report [or] record . . . all as
shown by the testimony of the custodian or . . . by affidavit that complies with Rule 902(10).
TEX. R. EVID. 803(6).
WHAT IS HEARSAY - LEGALLY DEFINED
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). The rules of evidence classify
some evidence as non-hearsay and some evidence as hearsay that is admissible under an exception to the
hearsay rule. See Tex. R. Evid. 802 ("Hearsay is not admissible except as provided by statute or these rules
. . . ."); Tex. R. Evid. 803 ("The following are not excluded by the hearsay rule . . . ."). For example, one
exception to the hearsay rule is records of "regularly conducted activity." Tex. R. Evid. 803(6).
Marin's complaint on appeal is that Moody testified to hearsay, which only an expert can do. But Exhibits 6
and 7 were not offered to prove the truth of the matter asserted and, therefore, were not hearsay. See Tex.
R. Evid. 801; Ash v. Hack Branch Distrib. Co., 54 S.W.3d 401, 411 (Tex. App.--Waco 2001, pet. denied)
(concluding out-of-court statements not hearsay because not offered for truth of matter asserted).
Marin v. IESI TX Corporation (Tex.App.- Houston [1st Dist.] Feb. 11, 2010)(Opinion on rehearing by Alcala)
(forgery, misapplication of fiduciary property, fraud, and conversion of checks, exemplary damages)
We conclude that the trial court did not err in the admission of the evidence, that the evidence is legally and factually sufficient,
and that the trial court properly awarded exemplary damages. We affirm.
AFFIRM TC JUDGMENT: Opinion by Justice Elsa Alcala
Before Justices Keyes, Alcala and Hanks
01-08-00539-CV Janell S. Marin v. IESI TX Corporation
Appeal from 412th Judicial District Court of Brazoria County
Trial Court Judge: Hon. W. Edwin Denman
Hearsay is a statement, other than one made by the declarant while testifying, offered in evidence to prove
the truth of the matter asserted. Tex. R. Evid. 801(d). Hearsay is not admissible unless it meets an
exception created by statute or under the Texas Rules of Evidence. Tex. R. Evid. 802. Otherwise
inadmissible hearsay may be admitted into evidence if it meets the hearsay exception for business records.
See Tex. R. Evid. 803(6).
Cano v. Nino's Paint and Body Shop (Tex.App.- Houston [14th Dist.] Apr. 16, 2009)(Boyce)
(admission of business records, business records affidavit,
failure to disclose documentary evidence in discovery, attorneys fees on breach of contract, presentment of
claim as condition precedent)
The business records exception has four requirements: (1) the records were made and kept in the course
of a regularly conducted business activity; (2) it was the regular practice of the business activity to make the
records; (3) the records were made at or near the time of the event that they record; and (4) the records
were made by a person with knowledge who was acting in the regular course of business. In re E.A.K., 192
S.W.3d 133, 141 (Tex. App.- Houston [14th Dist.] 2006, pet. denied). These requirements must be
established by testimony from the custodian of the records or another qualified witness. Texmarc Conveyor
Co. v. Arts, 857 S.W.2d 743, 748 (Tex. App.- Houston [14th Dist.] 1993, writ denied). Otherwise
inadmissible hearsay must be shown to be reliable or trustworthy in order to be admitted under the business
records exception. See Garcia v. Dutcher Phipps Crane & Rigging Co., No. 08-00-00387-CV, 2002 WL
467932, at *1 (Tex. App.- El Paso Mar. 28, 2002, pet. denied) (not designated for publication); see also
Martinez v. Midland Credit Mgmt., Inc., 250 S.W.3d 481, 485 (Tex. App.- El Paso 2008, no pet.).
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