Hearsay is defined as an out-of-court statement offered into evidence to prove the truth of the matter
asserted therein. TEX. R. EVID. 801(d).
HEARSAY RULE AND BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE
"`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 proponent of hearsay has the
burden of showing that the testimony fits within an exception to the general rule prohibiting the admission of
hearsay evidence. Volkswagen of Am., Inc. v. Ramirez, 159 S.W.3d 897, 908 n.5 (Tex. 2004).
Rule 803(6) of the Texas Rules of Evidence provides the following exception to the hearsay rule for business
A . . . record . . . 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 memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or
other qualified witness, or by affidavit that complies with Rule 902(10), unless the source of information or the
method or circumstances of preparation indicate lack of trustworthiness.
TEX. R. EVID. 803(6); see In re E.A.K., 192 S.W.3d 133, 141 (Tex.App.-Houston [14th Dist.] 2006, pet. denied).
The business records "shall be admissible in evidence in any court in this state upon the affidavit of the person
who would otherwise provide the prerequisites of Rule 803(6) or (7)." TEX. R. EVID. 902(10)(a).
Rule 902(10) provides a form for the affidavit and states it "shall be sufficient if it follows this form though this form
shall not be exclusive, and an affidavit which substantially complies with the provisions of this rule shall suffice."
TEX. R. EVID. 902(10)(b). The form language provided is as follows:
My name is ______, I am of sound mind, capable of making this affidavit, and personally acquainted with the facts
I am the custodian of the records of ______. Attached hereto are ______ pages of records from ______. These
said ______ pages of records are kept by ______ in the regular course of business, and it was the regular
course of business of ______ for an employee or representative of ______, with knowledge of the act, event,
condition, opinion, or diagnosis, recorded to make the record or to transmit information thereof to be included in
such record; and the record was made at or near the time or reasonably soon thereafter. The records attached
hereto are the original or exact duplicates of the original.
Rule 803(6) creates a hearsay exception for properly authenticated business records. See TEX. R. EVID. 803(6).
The foundation for 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. Powell v.
Vavro, McDonald, & Assocs., 136 S.W.3d 762, 765 (Tex. App.-Dallas 2004, no pet.).
JAMES R. WINN, M.D. v. SPECTRUM PRIMARY CARE, INC.; from Denton County; 2nd district
(02-07-00038-CV, ___ SW3d ___, 04-24-08, pet denied Aug. 2008) (employment agreement, notice of
termination, bonus, hearsay objection to summary judgment evidence sustained)
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