Affirmed and Memorandum Opinion filed December 3, 2013.

In The

Fourteenth Court of Appeals

NO. 14-12-00905-CV

STEVEN R. LEVY, Appellant

V.

CACH, L.L.C., Appellee

On Appeal from the County Civil Court at Law Number 1

Harris County, Texas

Trial Court Cause No. 1003903

M E M O R A N D U M O P I N I O N

A debtor challenges a creditor’s collection judgment on the grounds that the 

trial court erred in admitting business records reflecting the debt. The debtor 

argues that inconsistencies in the business records showed they were untrustworthy 

and therefore inadmissible hearsay. He further asserts that the trial court violated 

his due-process rights by allowing the creditor’s counsel to testify in support of 

admitting the business records. We conclude that the trial court did not abuse its 
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discretion in admitting the records at issue over the debtor’s “untrustworthiness”

objection. Moreover, the challenged statements of the creditor’s counsel were 

arguments of counsel, not testimony, and the debtor did not preserve error as to the 

due-process claim he asserts on appeal. Accordingly, we affirm the judgment of 

the trial court. 

I. FACTUAL AND PROCEDURAL BACKGROUND

Appellant/defendant Steven R. Levy, in 2003, co-signed Derrick 

McDonald’s application for a credit card with U.S. Bank National Association ND 

(the “Bank”). Levy understood that he was financially responsible for payment of 

the amounts charged on the credit card, but Levy thought that the account was 

closed in 2006, and disputed his liability for the outstanding balance. The Bank 

sold this account to appellee/plaintiff CACH, L.L.C. in 2009, and CACH filed suit 

against Levy asserting a claim for breach of contract. Humberto Zamora, an 

employee of the Bank, executed an affidavit establishing the Bank’s sale of this 

account to CACH and the account balance when the Bank sold the account to 

CACH. In this affidavit, Zamora also stated that the original credit card 

application for this account had been destroyed or was no longer accessible to him.

Tom Vigil, an authorized agent and records custodian of CACH, executed a 

business-records affidavit, attempting to prove that the documents attached to the 

affidavit were business records of CACH. Included in these documents was a form 

of the Bank’s cardmember agreement and the Zamora affidavit.

The case proceeded to a bench trial. During trial, CACH sought to introduce 

into evidence the business-records affidavit and attached documents. Levy 

objected to the admission of the documents on the grounds that the records are 

hearsay not meeting the requirements of the business-records exception to the 

hearsay rule because inconsistent information in the documents shows that they are 
3

not trustworthy. Specifically, Levy asserted that, Zamora testified in his affidavit 

that the original credit-card application for this account had been destroyed or was 

no longer accessible to him, yet a cardmember agreement dated 2006 was attached 

to Vigil’s affidavit. Levy also argued that Zamora testified that the balance Levy 

owed when the Bank sold the account was $8,514.53, yet the last credit-card 

statement contained in the business records allegedly showed a zero balance. The 

trial court overruled Levy’s objection and admitted the evidence. The trial court 

rendered judgment in favor of CACH in the amount of $8,514.53 in actual 

damages as well as reasonable attorney’s fees. 

II. ISSUES AND ANALYSIS

In his first appellate issue, Levy argues that the trial court erred in admitting 

Vigil’s business-records affidavit over Levy’s objection. Under his second issue, 

Levy complains that the trial court erred in allowing CACH’s counsel to testify 

over Levy’s objection. Levy also asserts that the trial court violated his 

constitutional right to due process by depriving him of the opportunity to confront 

and cross-examine the business-records custodian regarding inconsistencies in the 

business records. 

A. Did the trial court err in admitting Vigil’s business-records affidavit

over Levy’s objection?

We review a trial court’s evidentiary ruling for abuse of discretion. See KMart Corp. v. Honeycutt, 24 S.W.3d 357, 360 (Tex. 2000) (per curiam). A trial 

court abuses its discretion if its decision is arbitrary, unreasonable, or without 

reference to guiding principles. See id. An abuse of discretion does not occur 

merely because the appellate court would have decided a discretionary matter in a 

different way than the trial court. See Downer v. Aquamarine Operators, Inc., 701 

S.W.2d 238, 242 (Tex. 1985). 
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In his objection, Levy asserted that the records contained in Vigil’s affidavit 

were hearsay that did not meet the requirements of the business-records exception 

to the hearsay rule because two inconsistencies in the documents shows that they 

are not trustworthy. “‘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). Under the business-records 

exception to the hearsay rule, the following is not excluded even though the 

declarant is available as a witness:

A memorandum, report, record, or data compilation, in any form, of 

acts, events, conditions, opinions, or diagnoses, made at or near the 

time by, or from information transmitted by, a person with 

knowledge, if kept in the course of a regularly conducted business 

activity, and if it was the regular practice of that business activity to 

make the memorandum, report, record, or data compilation, all as 

shown by the testimony of the custodian or other qualified witness, or 

by affidavit that complies with Rule 902(10), unless the source of 

information or the method or circumstances of preparation indicate 

lack of trustworthiness.

Tex. R. Evid. 803(6). Third-party documents can become the business records of 

an organization and, consequently, admissible under rule 803(6), if (1) the

documents are incorporated and kept in the course of the testifying witness’s 

business; (2) the business typically relies upon the accuracy of the contents of the 

documents; and (3) the circumstances otherwise indicate the trustworthiness of the 

documents. See Kirkpatrick v. LVNV Funding, L.L.C., No. 01-11-00382-CV, 2012 

WL 1564294, at *8 (Tex. App.—Houston [1st Dist.] May 3, 2012, no pet.) (mem. 

op). In his objection, Levy challenged only the last element, arguing that the two 

discrepancies are circumstances indicating that the documents are not trustworthy.1

The first alleged discrepancy is that Zamora testified in his affidavit that the 

 

1

Levy does not challenge the other elements of the business-records exception. 
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original credit-card application for this account had been destroyed or was no 

longer accessible to him, yet a cardmember agreement dated 2006 was attached to 

Vigil’s affidavit. But, the trial court reasonably could have concluded that there 

was no discrepancy. Vigil did not testify that the form of cardmember agreement 

attached to his affidavit was the original credit-card application for this account. 

No document attached to Vigil’s affidavit purports to be the 2003 credit-card 

application that Zamora said had been destroyed or was not accessible to Zamora. 

The cardmember agreement attached to Vigil’s affidavit is a form agreement 

showing the terms of the cardmember agreement. It does not purport to be an 

agreement specifically between the Bank and Levy. The trial court did not abuse 

its discretion by impliedly concluding that the circumstances indicated the 

trustworthiness of the documents, despite this alleged discrepancy. See Truong v. 

Dodeka, L.L.C., No. 14-10-00818-CV, 2011 WL 2693504, at *2–4 (Tex. App.—

Houston [14th Dist.] Jul. 12, 2011, no pet.) (mem. op) (holding that trial court did 

not abuse its discretion by admitted documents under business-records exception to 

the hearsay rule over appellant’s objection that two discrepancies showed that the 

documents were not trustworthy). 

The second alleged discrepancy made the subject of Levy’s objection is that

Zamora testified that the balance Levy owed when the Bank sold the account was 

$8,514.53, yet the last credit-card statement contained in the business records 

allegedly showed a zero balance. Though the last credit-card statement does 

contain conflicting information, it does not reflect a zero balance. The prior 

statements in the business records are consistent and reflect the balance on the 

account at the end of each billing period. The balance prior to the final statement 

was $8,328.93. Part of the final statement reflects a balance of $8,328.93, which 

had accrued $185.60 in interest. The sum of these two amounts is $8,514.53. But, 
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other parts of this statement contain data that conflicts with the foregoing 

information. In these conflicting portions, there are statements that (1) the 

previous balance is $7,385.60; (2) there are no new finance charges; (3) the 

outstanding balance is $7,200; (4) there is no revolving line of credit; (5) there is 

no minimum payment due or past due; and (6) payments and credits have been 

made in the amount of $8,328.93 based upon reversal of late payment fees, a credit 

for interest, and a “credit adjustment charge off.” This statement contains 

conflicting statements and inaccuracies regarding the amount owed by Levy. 

Nonetheless, a failure by the Bank to keep accurate records of its customers’ 

credit-card debt could result in criminal or civil penalties. See Tex. Fin. Code Ann. 

§ 392.304(a)(8) (West 2013) (prohibiting misrepresentations of the amount of a 

consumer debt); id. § 392.402 (West 2013) (providing for criminal penalties for 

violations of chapter 392 of the Texas Finance Code); Kirkpatrick, 2012 WL 

1564294, at *8. We conclude that the trial court did not abuse its discretion by 

impliedly determining that the circumstances indicated the trustworthiness of the 

documents, despite these issues with the final statement.2 See Kirkpatrick, 2012 

WL 1564294, at *8; Truong, 2011 WL 2693504, at *2–4. Likewise, we find no 

abuse of discretion in the trial court’s admission of the records at issue over Levy’s 

“untrustworthiness” objection.3 Accordingly, we overrule Levy’s first issue.

 

2 Levy argues that the Simien case is not on point and urges this court not to rely upon it. See 

Simien v. Unifund CCR Partners, 321 S.W.3d 235, 243–45 (Tex. App.—Houston [1st Dist.] 

2010, no pet.). We do not rely on the Simien case in deciding this case. 

3

In Ortega v. Cach, L.L.C., the court addressed the admissibility of hearsay statements in certain 

paragraphs of affidavits dealing with the assignment and sale of the account; the court did not 

address the admissibility of the billing statements or credit-card agreements. See 396 S.W.3d 

622, 629–32 (Tex. App.—Houston [14th Dist.] 2013, no pet.). The Ortega case is not on point.

See id. 
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B. Did the trial court err in allowing CACH’s counsel to testify regarding 

the final credit card statement over Levy’s objection?

Under his second issue, Levy complains that the trial court erred in allowing 

CACH’s counsel to testify regarding the final credit-card statement over Levy’s 

objection. Levy also asserts that the trial court violated his constitutional right to 

due process by depriving him of the opportunity to confront and cross-examine the 

business-records custodian regarding inconsistencies in the business records.

When CACH offered Vigil’s business-records affidavit into evidence at trial, 

Levy asserted his “untrustworthiness” objection. In arguing this objection to the 

court, Levy asserted that there were discrepancies in the final credit card statement. 

In response, CACH’s counsel twice asserted that this statement was “the chargeoff statement.” Each time, Levy objected that CACH’s counsel was testifying. 

The trial court stated that it thought that CACH’s counsel was responding to 

Levy’s objection rather than testifying. Presuming for the sake of argument that 

Levy preserved error on this issue, we conclude that his objection lacked merit 

because CACH’s counsel was arguing Levy’s objection to the court rather than 

giving testimony. See Cleveland v. Taylor, 397 S.W.3d 683, 693 (Tex. App.—

Houston [1st Dist.], 2012, pet. denied) (stating that an attorney’s arguments do not 

constitute evidence); Brogan v. Brownlee, 358 S.W.3d 369, 371 (Tex. App.—

Amarillo, 2011, no pet.) (noting that comments or argument made by attorneys 

during trial are not evidence). 

As to Levy’s argument that the trial court violated his constitutional right to 

due process, Levy did not voice this complaint in the trial court and thus failed to 

preserve error. See Santos v. Comm’n for Lawyer Discipline, 140 S.W.3d 397, 

404–05 (Tex. App.—Houston [14th Dist.] 2004, no pet.); Lee v. City of Houston, 

No. 14-05-00366-CV, 2006 WL 2254401, at *3–4 (Tex. App.—Houston [14th 

Dist.] August 8, 2006, pet. denied). 
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We overrule Levy’s second issue.

III. CONCLUSION

The trial court did not abuse its discretion in admitting the records at issue

over Levy’s “untrustworthiness” objection. Presuming for the sake of argument 

that Levy preserved error on this issue, we conclude that the trial court did not err 

in overruling Levy’s objection that CACH’s counsel was giving testimony. Levy 

failed to preserve error in the trial court regarding his complaint that the trial court 

violated his constitutional right to due process. Accordingly, we affirm the trial 

court’s judgment.

/s/ Kem Thompson Frost

Chief Justice

Panel consists of Chief Justice Frost and Justices Jamison and Donovan.