Tuesday’s child is not hearsay

Hearsay must be “offer[ed] in evidence to prove the truth of the matter asserted in the statement.” Tex. R. Evid. 801(d)(2). Conversely, if an “[a]greement was offered to show that an agreement had been made and what its terms were,” then “[]he [a]greement was not hearsay.” In re: M.S. , 115 S.W.3d 534, 543 (Tex. 2003). The recitals in a substitute trustee’s deed present a close choice between these two principles, which the Fifth Court has resolved in favor of admissibility: “The recitals in the trustee’s deed set forth the facts on which the foreclosure sale was based and are germane to the deed’s purpose,” and are thus not excluded by the hearsay rule. Mack v. Tuesday Real Estate LLC, No. 05-18-00105-CV (Feb. 5, 2019) (mem. op.)