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Click here for the full text of this decision “[T]estimony reflecting that records are maintained as part of a business does not relieve a party from otherwise showing that the records were kept in the course of a regularly conducted business activity and that it was the regular practice of that business activity to make the records.” FACTS:The appellant was the business manager for the Moody Health Center Clinic from December 1998 to Aug. 29, 2001. Pursuant to her daily duties, appellant received from each of the clinic’s front-desk personnel all money received the day before, as well as a report of the prior day’s transactions. The appellant entered the information obtained from the front-desk personnel into the computer system and generated a deposit report indicating the clinic’s total revenue from the day before. The appellant then prepared the daily deposit. At trial, the state presented evidence supporting its theory that appellant stole a total of $8,019.24 from the clinic between April 4, 2001, and Aug. 29, 2001. Specifically, the state’s theory asserted that, on numerous occasions, appellant kept cash she received from the front-desk personnel instead of including it with the daily deposit. To conceal her theft, the appellant then erased from the computer system cash transactions equaling the amount she kept. In presenting its theory to the jury, the state relied upon three bodies of evidence of which appellant complains on appeal. The complained-of evidence consists of 1. appellant’s Gulf Coast Federal Credit Union account records (exhibit 28) (hereinafter “bank records”) and summaries thereof (exhibits 29A, 29B, 35 and 36), 2. the clinic’s business records (exhibit 23) and summaries thereof (exhibits 3, 4, 5, 24-27 and 34), and 3. bank records of Margarita Rodriguez, another employee of the clinic (exhibit 33). HOLDING:Reversed and remanded. The appellant contends that the trial court erred in admitting the bank records because the state failed to establish a proper foundation for admittance of the records under Texas Rule of Evidence 803(6). Specifically, appellant argues that the state failed to elicit testimony from Terri Wollard showing that 1. the records were made in the course of a regularly conducted business activity; and 2. it was the regular practice of that business activity to make the records. The state counters that the term “business,” as defined by Rule 803(6), connotes both regularity in the activity recorded, as well as regularity in keeping the records. The state concludes that Wollard’s testimony that the bank records were “maintained by the credit union as part of its business,” satisfied these foundational requirements. The definition of “business” found in Rule 803(6) must be considered within the context of the rule itself. Within the context of Rule 803(6), the term acts as one of two restrictive modifiers, limiting the records to which the exception applies to those of “regularly conducted business activities.” Because Rule 803(6) expressly provides that an activity to which records pertain must not only be a business activity but also a “regularly conducted” activity, “business” cannot connote a regularity in the activity recorded. Otherwise, the phrase “regularly conducted” would become superfluous. For the same reason, it would be improper to conclude that the term “business” connotes a regularity in keeping the records, as such a connotation would render unnecessary the rule’s language requiring that the regular practice of a business activity be to keep the records at issue. The court concludes testimony reflecting that records are maintained as part of a business does not relieve a party from otherwise showing that the records were kept in the course of a regularly conducted business activity and that it was the regular practice of that business activity to make the records. The state also asserts that the trial court was entitled to look to the bank records themselves to determine if they were admissible under Rule 803(6). However, an examination of the bank records does not establish that the records were of a regular conducted activity or that it was the regular practice of the bank to make such records. There is no presumption that bank records have any more reliability than other business records, such that bank records are immune from Rule 803(6) foundational requirements. Other than Wollard’s testimony, there was no testimony establishing the foundation required by Rule 803(6). Consequently, the admissibility of appellant’s bank records depended on whether Wollard’s testimony satisfied the rule’s foundational requirements. The court concludes that Wollard’s testimony did not establish that appellant’s bank records were made in the course of a regularly organized activity or that it was the regular practice of that business activity to make such records. The court holds that the trial court erred in admitting the appellant’s bank records, because the state failed to establish a proper foundation for their admittance. Because the summaries of appellant’s bank records were predicated on the improperly admitted bank records, the court further holds that the trial court erred in admitting the summaries of the appellant’s bank records as well. The court concludes the trial court’s admittance of the appellant’s bank records and the summaries of appellant’s bank records could have influenced the jury and had more than a slight effect on the verdict. The court holds that the admittance of this evidence affected the appellant’s substantial rights. OPINION:Higley, J.

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