business records exception in Texas

2023In re E.A.K., 192 S.W.3d 133, 141 (Tex. App.—Houston [14th Dist.] 2006, pet. denied).

2021In re E.A.K., 192 S.W.3d 133, 141 (Tex. App.—Houston [14th Dist.] 2006, pet. denied).

2013Good v. Baker, 339 S.W.3d 260, 273 (Tex.App.-Texarkana 2011, pet. denied); see Powell v. Vavro, McDonald, & Assocs., L.L.C., 136 S.W.3d 762, 765 (Tex.App.-Dallas 2004, no pet.).

2011Powell v. Vavro, McDonald, & Assocs., 136 S.W.3d 762, 765 (Tex.App.-Dallas 2004, no pet.).

2023App. 2004), for its proposition that “[w]hen a business receives information from a person who is outside the business and who has no business duty to report or to report accurately, those statements are not covered by the business records exception.” Id. at 926 .

2023But “[w]hen a business receives information from a person who is outside the business and who has no business duty to report or to report accurately, those statements are not covered by the business records exception.” Garcia v. State, 126 S.W.3d 921, 926 (Tex. Crim.

1997In Cole v. State, 839 S.W.2d 798 (Tex.Cr.App.1990), the Texas Court of Criminal Appeals examined the relationship between the business records exception and Rule 803(8), the hearsay exception for “Public Records and Reports.” Rule 803(8) provides an exception to the hearsay rule for [rjecords, reports, statements, or data compilations, in any form, of public offices or agencies setting forth (A) the activities of the office or agency, or (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, matters observed by 'police officers

1995On appeal Appellant contended the test results were hearsay, not subject to the business records exception of Tex.R.Crim.Evid. 803(6), [1] relying on Cole v. State, 839 S.W.2d 798 (Tex.Cr.App.1990).

1993As the Supreme Court made clear in Skillern & Sons, Inc. v. Rosen, supra: "Some employee or representative who either made the record or transmitted the information to another to record must have had personal knowledge of the act, event or condition in order for such record to be admissible under the business records exception to the hearsay rule.... [Statements as to how an accident happened or where it happened, age, medical history, etc., do not become particularly trustworthy just because it is hospital routine to record them and they should be excluded [unless admissible on other grounds]

1993As the Supreme Court made clear in Skillern & Sons, Inc. v. Rosen, supra: "Some employee or representative who either made the record or transmitted the information to another to record must have had personal knowledge of the act, event or condition in order for such record to be admissible under the business records exception to the hearsay rule.... [Statements as to how an accident happened or where it happened, age, medical history, etc., do not become particularly trustworthy just because it is hospital routine to record them and they should be excluded [unless admissible on other grounds]

2022Father relies on In re K.C.P., in which the Texarkana Court of Appeals held that drug test results were improperly admitted as exhibits under the business- records exception in a termination case because they indicated a lack of trustworthiness where the affidavit contained “no information as to the qualifications of the person or the equipment used, the method of administering the test, and whether the test was a standard one for the particular substance.” In re K.C.P., 142 S.W.3d 574, 580 (Tex. App.—Texarkana 2004, no pet.).

2021Any Error in Admitting Drug Test Results Was Rendered Harmless by Substantially Similar Testimony Admitted Without Objection We have previously decided that the drug test results were improperly admitted as exhibits under the business-records exception in a parental-rights termination case because they indicated a lack of trustworthiness where the affidavit contained “no information as to the qualifications of the person or the equipment used, the method of administering the test, and whether the test was a standard one for the particular substance.” In re K.C.P., 142 S.W.3d 574, 580 (Tex. App

2021See Nissan Motor Co., 145 S.W.3d at 140 (under the business records exception, the employee making the record must have personal knowledge, and any hearsay within hearsay in company records requires a separate exception in addition to that for business records generally).

2011See Nissan Motor Co. v. Armstrong, 145 S.W.3d 131, 140 (Tex.2004) (discussing the “hearsay within hearsay” problems raised by manufacturer’s documentation of consumer complaints, and noting that to the extent complain records were offered to prove the truth of the matters asserted, such records could not be admissible under the business records exception “unless the employee making the record had personal knowledge of each [complaint]”); In re A.T., No. 02-04-00355-CV, 2006 WL 563565 , *3 (Tex.App.-Fort Worth March 9, 2006, pet. denied) (mem. op., not designated for publication) (a business re

2006Powell v. Vavro, McDonald, and Assocs., L.L.C., 136 S.W.3d 762, 765 (Tex.App.-Dallas 2004, no pet.); Daimler-Benz Aktiengesellschaft v. Olson, 21 S.W.3d 707, 716 (Tex.App.-Austin 2000, pet. dism’d w.o.j.).

2006Powell v. Vavro, McDonald, and Assocs., L.L.C., 136 S.W.3d 762, 765 (Tex.App.-Dallas 2004, no pet.); Daimler-Benz Aktiengesellschaft v. Olson, 21 S.W.3d 707, 716 (Tex.App.-Austin 2000, pet. dism'd w.o.j.).

2015See Huff v. State, 897 S.W.2d 829, 843 (Tex. App.—Dallas 1995, pet. ref’d).

2000Huff v. State , 897 S.W.2d 829, 843 (Tex. App.--Dallas 1995, pet. ref'd) (citing Roberts , 448 U.S. at 66 n.8).

2011See Dulong v. Citibank (S.D.), N.A ., 261 S.W.3d 890, 893 (Tex. App.––Dallas 2008, no pet.).

2010Dulong v. Citibank (South Dakota), N.A., 261 S.W.3d 890, 893 (Tex. App.—Dallas 2008, no pet.); Seidner v. Citibank (South Dakota), N.A. , 201 S.W.3d 332, 334-35 (Tex. App.—Houston [14th Dist.] 2006, pet. denied); Choctaw Props., L.L.C. v. Aledo I.S.D., 127 S.W.3d 235, 241 (Tex. App.—Waco 2003, no pet.).

2010Dulong v. Citibank (South Dakota), N.A., 261 S.W.3d 890, 893 (Tex. App.—Dallas 2008, no pet.); Seidner v. Citibank (South Dakota), N.A. , 201 S.W.3d 332, 334-35 (Tex. App.—Houston [14th Dist.] 2006, pet. denied); Choctaw Props., L.L.C. v. Aledo I.S.D., 127 S.W.3d 235, 241 (Tex. App.—Waco 2003, no pet.).

2009Dulong v. Citibank (South Dakota), N.A., 261 S.W.3d 890, 893 (Tex. App.—Dallas 2008, no pet.); Seidner v. Citibank (South Dakota), N.A., 201 S.W.3d 332, 334-35 (Tex. App.— Houston [14th Dist.] 2006, pet. denied); Choctaw Props., L.L.C. v. Aledo I.S.D., 127 S.W.3d 235, 241 (Tex. App.—Waco 2003, no pet.).

2009See Curran , 711 S.W.2d at 292-96 ; McAllen State Bank , 695 S.W.2d at 16-17 .

2009See Curran , 711 S.W.2d at 292-96 ; McAllen State Bank , 695 S.W.2d at 16-17 .

2009App. 1998); Beheler v. State, 3 S.W.3d 182, 187 (Tex. App.—Fort Worth 1999, pet. ref’d) (the unobjected-to introduction of evidence from one source forfeits subsequent complaints about the same evidence from another source). 61  541 U.S. 36 , 124 S. Ct. 1354 (2004). 62  Melendez-Diaz v. Massachusetts, — U.S. —, 129 S. Ct. 2527 , 2533 n.2 (2009); See Crawford, 541 U.S. at 42, 56 , 124 S. Ct. at 1359, 1367 ; Berkley v. State, —S.W.3d—, No. 04-08-00381-CR, 2009 WL 2524926, at *3 (Tex. App.—San Antonio Aug. 19, 2009, no pet.); Sullivan v. State, 248 S.W.3d 746, 750 (Tex. App.—Houston [1st Dist.]

2009See Sullivan v. State , 248 S.W.3d 746, 750 (Tex. App.—Houston [1st Dist.] 2008, no pet.) (holding that substance abuse counselor’s notes on appellant’s history of drinking, which were contained in medical records, were not testimonial, and their admission into evidence did not violate the Confrontation Clause); Felix v. State , No. 05-04-01322-CR, 2005 WL 3163677 , at *5 (Tex. App.—Dallas Nov. 29, 2005, no pet.) (not designated for publication) (holding that results of blood alcohol test are not testimonial); Eslora v. State , No. 04-04-00112-CR, 2005 WL 763233 , at *4 (Tex. App.—San Antonio

2008Brooks v. Housing Auth. of City of El Paso, 926 S.W.2d 316, 321 (Tex.App.-El Paso 1996, no writ).

2008Brooks v. Housing Auth. of City of El Paso, 926 S.W.2d 316, 321 (Tex. App.--El Paso 1996, no writ).

2007In Melendez v. State , 194 S.W.3d 641, 644 (Tex.App.--Houston [14 th Dist.] 2006, pet. ref’d), the Court stated: [T]he predicate for the business records exception to the hearsay rule may be established either by the custodian of the records or another qualified witness .

2007In Melendez v. State , 194 S.W.3d 641, 644 (Tex.App.--Houston [14 th Dist.] 2006, pet. ref'd), the Court stated: [T]he predicate for the business records exception to the hearsay rule may be established either by the custodian of the records or another qualified witness .

2010GT & MC, Inc. v. Tex. City Ref., Inc., 822 S.W.2d 252, 258 (Tex.App.Houston [1st Dist.] 1991, writ denied).

2007Inc. , 822 S.W.2d 252 (Tex. App.—Houston [1st Dist.] 1991, writ denied), we held that invoices authored by outside vendors and submitted to TCR fell within the business records exception because TCR had written information on the invoices, such as the date of receipt and identity of the recipient.

2020EVID. 803(6)(E) (providing that record is admissible as business record if, in addition to other requirements, opponent to admission of record “fails to demonstrate that the source of information or the method or circumstances of preparation indicate a lack of trustworthiness”); Philpot v. State, 897 S.W.2d 848, 852 (Tex. App.—Dallas 1995, pet. ref’d) (“[E]vidence that qualifies under the business-records exception [to the hearsay rule] may still be excluded if the evidence does not have adequate indicia of trustworthiness.”); see also Porter v. State, 578 S.W.2d 742, 746 (Tex. Crim.

2012See id.; Philpot, 897 S.W.2d at 852 ; see also TEX.

2018See Melendez–Diaz v. Massachusetts, 557 U.S. 305 , 312 n.2, 129 S. Ct. 2527 , 2533 n.2 (2009); see also Weiss v. State, No. 02-07-00390–CR, 2009 WL 4757379 , at *12–13 (Tex. App.—Fort Worth Dec. 10, 2009, pet. ref’d) (mem. op., not designated for publication) (recognizing that “[m]edical records created for purposes of treatment and admitted under the business records exception are not testimonial under Crawford”); see generally Davis v. State, 169 S.W.3d 660, 667 (Tex. App.—Austin 2005), aff’d, 203 S.W.3d 845 (Tex. Crim.

2018See Melendez–Diaz v. Massachusetts, 557 U.S. 305 , 312 n.2, 129 S. Ct. 2527 , 2533 n.2 (2009); see also Weiss v. State, No. 02-07-00390–CR, 2009 WL 4757379 , at *12–13 (Tex. App.—Fort Worth Dec. 10, 2009, pet. ref’d) (mem. op., not designated for publication) (recognizing that “[m]edical records created for purposes of treatment and admitted under the business records exception are not testimonial under Crawford”); see generally Davis v. State, 169 S.W.3d 660, 667 (Tex. App.—Austin 2005), aff’d, 203 S.W.3d 845 (Tex. Crim.

2002Coulter v. State , 494 S.W.2d 876, 884 (Tex. Crim.

1987Appellant’s final case, Coulter v. State, 494 S.W.2d 876 (Tex.Cr.App.1973), involved the business records exception to the hearsay rule where marihuana was placed into an envelope and the chemists who placed their initials on the envelope were not available as witnesses at the time of trial.

2016Simien v. Unifund CCR Partners, 321 S.W.3d 235 , 240– 41 (Tex. App.—Houston [1st Dist.] 2010, no pet.).

2016However, Abrego does “not hold that verification of accuracy is the sole means of admitting third-party documents under the business records exception.” See Simien, 321 S.W.3d at 243 (citing Martinez, 250 S.W.3d at 485 ).

2015Evid. 803(6), established the Intoxilyzer was properly calibrated through the use of a reference sample (Prong One) and -that the technical supervisor regularly maintained the device (Prong Two), See Grady v. State, 962 S.W.2d 128, 131 (Tex.App.— Houston [1st Dist.] 1997, pet. ref d)(Intoxi- ' lyzer reports, admissible into evidence as business records). .

2015See Grady v. State, 962 S.W.2d 128, 131 (Tex.App.--Houston [1st Dist.] 1997, pet. ref’d)(Intoxilyzer reports admissible into evidence as business records).

2010Defense counsel claimed that the business records exception to the hearsay rule was not met, but he never said on the record that admission of the evidence would violate the Confrontation Clause, though he did make a general statement about "recent Court of Criminal Appeals cases." In its ruling, the trial court referred to Russeau v. State , 171 S.W.3d 871 (Tex. Crim.

2010Although the reports were admitted under the business-records exception to the hearsay rule, we determined that “the statements in the reports amounted to unsworn, ex parte affidavits of government employees and were the very type of evidence the Clause was intended to prohibit.” Id. at 881 .

2023Id. at 784–85. 7 (D) all these conditions are shown by the testimony of the custodian or another qualified witness, or by an affidavit or unsworn declaration . . . ; and (E) the opponent fails to demonstrate that the source of information or the method or circumstances of preparation indicate a lack of trustworthiness.

2015In Skillern & Sons, Inc. v. Rosen, which involved the question of whether a patient’s statements recorded in her hospital records were admissible under the business records exception, the Texas Supreme Court employed an analysis that mirrored the one used in Garcia and Stapleton, the latter of which cited Skillern.4 See Skillern & Sons, Inc. v. Rosen, 868 S.W.2d at 784 & 785, f.n. #5.

2020EVID. 803(6)(E) (providing that record is admissible as business record if, in addition to other requirements, opponent to admission of record “fails to demonstrate that the source of information or the method or circumstances of preparation indicate a lack of trustworthiness”); Philpot v. State, 897 S.W.2d 848, 852 (Tex. App.—Dallas 1995, pet. ref’d) (“[E]vidence that qualifies under the business-records exception [to the hearsay rule] may still be excluded if the evidence does not have adequate indicia of trustworthiness.”); see also Porter v. State, 578 S.W.2d 742, 746 (Tex. Crim.

1988Although not exclusive or exhaustive, see the list of the ways this may be accomplished that is set out in Littles v. State, supra. Also see Jones v. State, 500 S.W.2d 661 (Tex.Cr.App.1973), but also see and compare Porter v. State, 578 S.W.2d 742 (Tex.Cr.App.1979); Denby v. State, supra, (On original submission), concerning the fact that not everything within a State's "jail file" or "jail record" on a named individual becomes admissible evidence under the business records exception to the hearsay rule of evidence.

2014Because we so conclude, it is unnecessary for us to address Cox’s complaints that the SOBERLINK data was inadmissible under Bullcoming v. New Mexico, — U.S. —, 131 S.Ct. 2705 , 180 L.Ed.2d 610 (2011), and Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct. 2527 , 174 L.Ed.2d 314 (2009), and that the records were improperly admitted under the business records exception to the rule against hearsay.

2014Because we so conclude, it is unnecessary for us to address Cox’s complaints that the SOBERLINK data was inadmissible under Bullcoming v. New Mexico, — U.S. —, 131 S.Ct. 2705 , 180 L.Ed.2d 610 (2011), and Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct. 2527 , 174 L.Ed.2d 314 (2009), and that the records were improperly admitted under the business records exception to the rule against hearsay.

2019The business records exception to the hearsay rule also states that “[f]or good cause shown, the court may order that a business record be treated as presumptively authentic even if the proponent fails to comply with subparagraph (A).” Id.

2013See Owens-Corning Fiberglas Corp., 972 S.W.2d at 43 .

2016However, Abrego does “not hold that verification of accuracy is the sole means of admitting third-party documents under the business records exception.” See Simien, 321 S.W.3d at 243 (citing Martinez, 250 S.W.3d at 485 ).

2009See Garcia v. Dutcher Phipps Crane & Rigging Co. , No. 08-00-00387-CV, 2002 WL 467932 , at *1 (Tex. App. C 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. C El Paso 2008, no pet.).

2015Good v. Baker, supra. To shore up some of these evidentiary defects, Home Owner did present the affidavit of Gayle King.

2013Good v. Baker, 339 S.W.3d 260, 273 (Tex.App.-Texarkana 2011, pet. denied); see Powell v. Vavro, McDonald, & Assocs., L.L.C., 136 S.W.3d 762, 765 (Tex.App.-Dallas 2004, no pet.).

2015In support of this assertion, appellants principally rely on Ortega v. Cach, LLC, 396 S.W.3d 622 (Tex. App.—Houston [14th Dist.] 2013, no pet.).

2015The court concluded that the three –4– affidavits were not admissible under the business records exception because the affidavits were prepared for the purpose of litigation. 1 Id. at 630-31 .