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Click here for the full text of this decision FACTS:A jury convicted appellant Steven Charles Landrum of theft and sentenced him to 15 years confinement. The appellant contends the trial court erred in overruling his objection to the admission of business records via a custodian of records affidavit because the State did not strictly comply with the filing deadlines prescribed by the Texas Rules of Evidence. HOLDING:Affirmed. Although Texas Rule of Evidence 902(10) provides that “[n]otice shall be deemed to have been promptly given if it is served in the manner contemplated by Rule of Civil Procedure 21a fourteen days prior to commencement of trial in said cause,” it makes no reference to Texas Rule of Civil Procedure 4. Rule 4 provides a method to compute time periods “prescribed or allowed by these rules, by order of court, or by any applicable statute.” Because the Rules of Evidence are not statutes, Rule of Civil Procedure 4, by its express terms, has no applicability to them. Before the adoption of the Rules of Evidence, the Business Records Act regulated the admission of business records into evidence in criminal and civil cases. Like the current rule, the former statute made no reference to Rule of Civil Procedure 4 or its predecessor. Rule 4 has no applicability to the resolution of the issue presented here because it requires the opposing party to respond to the filing. Rule 4 applies when an act is required or allowed to be done within a specified time. In contrast, unlike the discovery rules, Rule 902(10) does not require that the other party respond in any way. Instead, where a party has established an adequate predicate or foundation for the admission of business records, they may be admitted as an exception to the hearsay rule. That is, the state had the burden to prove each of the elements set out in Rule 902(10) to establish the foundation for the admission of the evidence. Johnson v. Brown, 560 S.W.2d 763 (Tex.Civ.App. – Eastland 1978, writ ref’d n.r.e). Under Rule 902(10), records are admissible under the business records exception to the hearsay rule if the records and accompanying custodian of records affidavit “are filed with the clerk of the court for inclusion with the papers in the cause in which the record or records are sought to be used as evidence, at least fourteen days prior to the day upon which trial of said cause commences . . . .” Because Rule 902(10) did not require appellant to do anything in response to the state’s filing, the court concludes that Rule of Civil Procedure 4 has no application to the question of whether the state met its burden of proof for the admission of the business records. Having found Rule of Civil Procedure 4 to be inapplicable, the court addresses the appropriate method for determining whether the business records were timely filed with the clerk of the court at least 14 days prior to the day upon which the trial commenced. The court notes that an instrument is deemed filed when it is placed in the custody or control of the clerk. Standard Fire Ins. Co v. LaCoke, 585 S.W.2d 678 (Tex. 1979). Such is the rule in both civil and criminal cases. The court concludes that the challenged records were filed for purposes of Rule 902(10) when they and their supporting affidavits were presented to the court clerk on April 7, 2004. Then, counting the 7th as day one, the 8th as day two, and so on, the court holds that day 14 was April 20, 2004. As a result, the records were filed with the clerk at least 14 days prior to the commencement of trial on April 21, 2004. OPINION:Reavis, J.; Johnson, C.J., and Reavis and Campbell, JJ.

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