law-hearsay-and-exception-to-hearsay-rule | admission and exclusion of evidence | affidavits | witnesses
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.).