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Click here for the full text of this decision FACTS:The appellant was found guilty of murdering a police officer and sentenced to death. HOLDING:Affirmed. At the punishment phase, the state offered business records from the Bexar County Battered Women’s Shelter through its custodian of records, Joyce Coleman, and the trial court admitted those records under Texas Rule of Evidence 803(6), the business records exception to the hearsay rule. Coleman testified that the records were kept in the regular course of business and were created by an employee of the shelter. The records reflect that, on Dec. 16, 1994, the appellant’s wife reported to the employee that she had been physically and psychologically abused by appellant. The appellant’s claim is correct. Jessica Garcia’s out-of-court statements to an employee at the Battered Women’s Shelter did not lose their hearsay status simply because the employee had a business duty to accurately record what she said. Rule of Evidence 803(6) provides that “records of regularly conducted activity” may be admitted as an exception to the hearsay rule, even if the declarant is available to testify. Coleman testified that she was the legal custodian of the business records in question, that the records were kept in the regular course of business, and that the information contained in the records was recorded by an employee of the shelter at or near the time of the stated events. The state laid a proper foundation for admission of the shelter’s business records under Rule 803(6). The records themselves were admissible, but that does not mean that all information, from whatever source or of whatever reliability, contained within those business records is necessarily admissible. When 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. Those statements must independently qualify for admission under their own hearsay exception � such as statements made for medical diagnosis or treatment, statements concerning a present sense impression, an excited utterance, or an admission by a party opponent. The state argues that Jessica’s oral statements concerning appellant’s physical and psychological abuse made to the shelter employee were themselves admissible under Rule 803(4) as statements made for purposes of medical diagnosis or treatment. They were not. There is no evidence that Jessica Garcia went to the shelter to seek medical treatment, nor is there any evidence that the shelter provided either medical diagnosis or treatment. The state points to testimony that the shelter will provide assistance to any battered woman who asks for help and will supply medical attention, including mental health treatment. Indeed, that may be true, but there is still no evidence that Jessica was specifically seeking medical treatment when she spoke to the shelter employee. The court concludes that the trial court erred in admitting Jessica’s out-of-court oral statements that were transcribed into the otherwise admissible business records of the Bexar County Battered Women’s Shelter. After examining the record of appellant’s trial as a whole, the court has a fair assurance that the error in question did not have a substantial and injurious effect or influence in determining the jury’s verdict at the punishment phase. The court overrules appellant’s other assertions of error. OPINION:Holcomb, J.; Keller, P.J., Meyers, Price, Womack, Johnson, Keasler and Cochran, JJ., join. Hervey, J., did not participate.

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