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Local Rule 47.5 provides: "The publication of opinions that
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Pursuant to that Rule, the Court has determined that this opinion
should not be published.
UNITED STATES COURT OF APPEALS
for the Fifth Circuit
_____________________________________
No. 93-8769
Summary Calendar
____________________________________
Eddie R. Aurispa, et al.,
Plaintiffs-Appellants,
VERSUS
Texas Department of Commerce, et al.,
Defendants-Appellees
______________________________________________________
Appeal from the United States District Court
for the Western District of Texas
(A 92 CV 168)
_____________________________________________________
September 11, 1995
Before HIGGINBOTHAM, DUHÉ, and GARZA, Circuit Judges.
PER CURIAM:1
Plaintiffs Eddie R. Aurispa, Raymond I. Barnes, Sr., and James
Mikus appeal the jury verdict in favor of defendants Texas
Department of Commerce, Ann Richards, Alan Kahn, Richard L. Moya,
Cathy Bonner, and Margaret Donaldson, in their individual and
official capacities. Plaintiffs' sole contention on appeal
concerns the propriety of the trial court's exclusion of three
pieces of evidence. We affirm.

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Plaintiffs also raised age discrimination claims in the district
court. These claims were dismissed by the district court in an
order entered on September 29, 1993 granting the defendants' oral
motion for directed verdict. Plaintiffs do not urge error in these
dismissals.
2
FACTS
In January 1991, Ann Richards, a Democrat, was sworn into
office as Governor of Texas. At that time, plaintiffs, who are
Republicans, were employees of the Texas Department of Commerce
(TDOC). Shortly after her election, Governor Richards appointed
and assigned the remaining named defendants, all of whom are
Democrats, to high-level positions at TDOC. Subsequently, in the
Spring of 1991, plaintiffs were terminated by TDOC allegedly as
part of an agency reorganization. Plaintiffs sued under 42 U.S.C.
§§ 1983 and 19852 claiming defendants violated their constitutional
rights, including their First Amendment right of association, by
predicating plaintiffs' terminations on their political
affiliation. A jury decided in favor of the defendants.
Plaintiffs appealed.
DISCUSSION
Plaintiffs contend the trial judge erred in excluding from
evidence certain summaries of the voting records of Travis County,
Texas, that purported to reflect the political affiliations of
other persons discharged by TDOC simultaneously with plaintiffs and
testimony by plaintiff James Mikus that he had personal knowledge
of these listed persons' political affiliations. Additionally,

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plaintiffs assert error in the trial court's refusal to allow
plaintiffs to call as witnesses persons listed on the summaries.
1.) The summaries.
Federal Rule of Evidence 401 defines relevant evidence as
"evidence having any tendency to make the existence of any fact
that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence."
Thus, the standard for relevance is a liberal one. E.E.O.C. v.
Manville Sales Corp., 27 F.3d 1089, 1093 (5th Cir. 1994), cert.
denied, __ U.S. __, 115 S.Ct. 1252, 131 L.Ed.2d 133 (1995).
Accordingly, the district court was probably incorrect in holding
that the summaries were irrelevant. Nonetheless, assuming the
summaries to be relevant, Federal Rule of Evidence 403 allows the
exclusion of otherwise relevant evidence "if its probative value is
substantially outweighed by the danger of . . . misleading the
jury." The summaries purported to establish the political
affiliation of the persons listed, when in fact the summarized
information only indicated in which political primary these persons
had most recently voted. Accordingly, the potential for these
summaries to confuse the jury was a sufficient basis for their
exclusion. When the judgment of the district court is ultimately
correct, it may be affirmed on appeal for reasons other than those
relied on by the district court. Terrell v. University of Texas
System Police, 792 F.2d 1360 (5th Cir. 1986), cert. denied, 479
U.S. 1064, 107 S.Ct. 948, 93 L.Ed.2d 997 (1987).

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The relevant testimony was as follows:
Q. Were there a list -- was there a group of people
terminated in April from the Department of Commerce?
A. Yes, sir, there was.
Q. All right. Do you know the political affiliation
from your own personal knowledge of those people
terminated?
A. Yes, sir, I do.
Q. All right. And what was the political affiliation of
those people from your personal knowledge?
A. From my personal knowledge -- my personal knowledge,
seventeen of the eighteen were republicans.
(Tr. vol. 1, p. 91, lines 19-25 to p. 92, lines 1-3).
4
2.) James Mikus's testimony.3
After exclusion of the summaries, Plaintiff Mikus attempted to
testify that he had personal knowledge of the listed persons
political affiliations. On voir dire examination following
defendants' objection, Mikus admitted his knowledge resulted from
seeing these persons at republican events and fund raisers, working
with them on republican campaigns, and having discussions wherein
they told him they were republicans.
Federal Rule of Evidence 602 provides that a witness is not
competent to testify to a matter about which he does not have
personal knowledge. Mikus's statement that these persons declared
their affiliation to him is inadmissible hearsay and insufficient
to give him personal knowledge of the declarants' political
affiliations. See Fed. R. Evid. 801 and 802; United States v.
Quezada, 754 F.2d 1190 (5th Cir. 1985); Elizarraras v. Bank of El
Paso, 631 F.2d 366 (5th Cir. 1980). "If the testimony on its face
purports to be based on observed facts but is actually based on an
out-of-court statement, the objection should be lack of personal
knowledge." 27 Charles A. Wright & Victor J. Gold, Federal

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See Tr. vol. 2, pp. 59-69.
5
Practice and Procedure: Evidence § 6026, p. 225 (1990). Likewise,
Mikus's observing the participation of these persons in republican
events made him competent to testify about such participation, but
he was not thereby competent to testify to the fact of their actual
political affiliations. "Rule 602[, as opposed to Rule 701,]
applies when the testimony on its face purports to relate facts but
there is no showing that those facts are within the personal
knowledge of the witness." 27 Wright & Gold, Evidence § 6022, p.
190. Thus, the trial court was correct in sustaining defendants'
objection to Mikus's testimony based on his lack of personal
knowledge.
3.) Refusal to allow witnesses.
Plaintiffs contend in this Court that the trial court refused
to allow them to call as witnesses persons on the excluded
summaries to prove those persons' political affiliations. This
assertion by plaintiffs is without merit. In fact, the trial judge
clearly informed plaintiffs' counsel that he could call the persons
on the summaries and have them testify as to their political
affiliations. (Tr. vol. 1, p. 102, lines 18-25 to p. 103, lines 1-
13).
Plaintiffs, on the other hand, have misinterpreted the portion
of the trial transcript upon which they rely in making this
assertion of error. On redirect examination of James Mikus,4
plaintiffs' counsel inquired into Mikus's associations with the
other persons fired from TDOC "to establish an associational

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pattern under Rutan." (Tr. vol. 2, p. 66, line 23). At the time of
defendants' objection to this testimony, Mikus had described his
interactions with five persons. When counsel for plaintiffs
indicated he had six more persons about whom to inquire, the court
properly sustained defendants' objection to continuation of this
testimony under Federal Rule of Evidence 403 as repetitious or
needlessly cumulative.
Appellate courts show considerable deference to evidentiary
rulings of the district court, reviewing them only for abuse of
discretion. Johnson v. Ford Motor Co., 988 F.2d 573, 579 (5th Cir.
1993). Accordingly, for the reasons stated above, we conclude the
trial court did not abuse its discretion in making any of the
evidentiary rulings about which plaintiffs complain.
For the foregoing reasons, the decision of the trial court is
AFFIRMED.

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