In the

Court of Appeals

Second Appellate District of Texas

at Fort Worth

___________________________

No. 02-23-00296-CR

___________________________

On Appeal from Criminal District Court No. 1

Tarrant County, Texas

Trial Court No. 1754322

Before Sudderth, C.J.; Bassel and Womack, JJ.

Memorandum Opinion by Chief Justice Sudderth

TROY ANTHONY KELLEY JR., Appellant

V.

THE STATE OF TEXAS
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MEMORANDUM OPINION

Appellant Troy Anthony Kelley, Jr. appeals his sentence of 40 years’

incarceration for aggravated robbery. In a single issue, Kelley argues that the trial 

court erred during the trial’s punishment phase by admitting an out-of-court

statement made by Kelley’s accomplice in violation of the Sixth Amendment’s 

Confrontation Clause. We agree that the trial court erred and that the error was 

harmful, and we therefore reverse Kelley’s sentence and remand for a new 

punishment trial.

I. BACKGROUND

Kelley was indicted for aggravated robbery with a deadly weapon, a first-degree 

felony. See Tex. Penal Code Ann. §§ 29.02, 29.03(a)(2), (b). The indictment also 

included a repeat-offender notice alleging that Kelley had been previously convicted 

of a felony, thus raising his punishment range to imprisonment for 15 to 99 years or 

life. See id. § 12.42(c)(1).

At trial, the State presented evidence showing that Kelley had robbed the clerk 

of an Arlington Circle K convenience store at gunpoint on the night of October 29, 

2022. The clerk testified that one of the stacks of money that she handed to Kelley 

contained an electronic tracking device, which enabled Arlington police officers to 

quickly locate Kelley’s vehicle, a red Dodge Caravan. According to responding 

officers, Kelley ignored their attempts to pull over his vehicle and instead led them on 

a high-speed chase. The evidence showed that Kelley ultimately lost control of his 
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vehicle and crashed and that both Kelley and his lone passenger—later identified as

his nephew Quentrell Schexnayder—were arrested after a brief foot chase. Based on 

this evidence, the jury found Kelley guilty.

Kelley elected to have the trial court assess his punishment. After Kelley

pleaded “true” to the indictment’s repeat-offender paragraph, the State presented

additional punishment evidence, including the testimony of Arlington police detective 

Anthony Stafford. Detective Stafford had investigated both the October 29, 2022 

Circle K robbery and a similar robbery that had taken place at an Arlington 7-Eleven 

the previous night. Although Detective Stafford believed that the two robberies were 

connected because both involved two suspects wearing similar clothes and traveling in 

a similar vehicle, the State presented no evidence identifying Kelley as one of the 

suspects in the 7-Eleven robbery except for Detective Stafford’s testimony elicited

during the following exchange:

[PROSECUTOR]: And did [Schexnayder] indicate who the other 

person in the car was with him on the night of 10/29?

[WITNESS]: He did.

[PROSECUTOR]: And who was that?

[WITNESS]: He just described him as his uncle, Mr. Troy 

Anthony Kelley.

[PROSECUTOR]: And to be specific, he said that’s who was 

with him on the night of [the] 29th; is that right?

[WITNESS]: Yes, sir.
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[PROSECUTOR]: However, did you ask him if he was involved 

on the 28th?

[WITNESS]: I did.

[PROSECUTOR]: And did he indicate that Mr. Kelley was also --

[DEFENSE COUNSEL]: Your Honor, I’m going to 

object at this time under the Sixth Amendment of the Constitution of 

the United States. He is now testifying as to what somebody else has 

said, and we have the right to confrontation. So he is saying that a --

that a suspect started saying my client was involved. I have the right to 

cross-examine that witness to determine the credibility of what he was 

saying, and that’s a Sixth Amendment constitutional right.

THE COURT: Are you offering it as a statement of a coconspirator?

[PROSECUTOR]: Yes, Your Honor.

THE COURT: And so that objection is overruled.

[PROSECUTOR]: And did he indicate if Mr. Kelley was also 

involved in the robbery from 7-Eleven on 10/28?

[WITNESS]: Yes, he did.

During its closing argument, the State—pointing to nothing in the record other than 

the fact that Kelley had committed two robberies in two nights—asked the trial court 

to sentence Kelley to 40 years’ incarceration. During his closing argument, Kelley 

argued that the State had failed to prove that he was involved in the uncharged 7-

Eleven robbery and requested that the trial court sentence him to 15 years’

incarceration.
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Based on Kelley’s plea, the trial court found the indictment’s repeat-offender 

enhancement paragraph to be true and sentenced Kelley to 40 years’ incarceration.

This appeal followed.

II. DISCUSSION

In a single issue, Kelley argues that the trial court erred by admitting 

Schexnayder’s out-of-court statement tying Kelley to the 7-Eleven robbery in

violation of Kelley’s rights under the Sixth Amendment’s Confrontation Clause. See

U.S. Const. amend. VI. The State concedes the point, and we agree. 

A. Applicable Law

Generally, an out-of-court statement offered for the truth of the matter 

asserted constitutes inadmissible hearsay. Tex. R. Evid. 801(d), 802. But under the 

Texas Rules of Evidence, an out-of-court statement is not hearsay if it is offered 

against a party and was made by a co-conspirator “during and in furtherance of the 

conspiracy.” Tex. R. Evid. 801(e)(2)(E). The out-of-court statement by a coconspirator must be more than merely related to the conspiracy; it must further the 

conspiracy. Guidry v. State, 9 S.W.3d 133, 148 (Tex. Crim. App. 1999). A statement 

only furthers a conspiracy if it advances the cause of the conspiracy or serves to 

facilitate it. Id.; see Byrd v. State, 187 S.W.3d 436, 443 (Tex. Crim. App. 2005). In the 

face of a hearsay objection, the trial court has discretion to determine the admissibility 

of statements under the co-conspirator rule. Legate v. State, 52 S.W.3d 797, 803 (Tex.

App.—San Antonio 2001, pet. ref’d). But no hearsay objection was lodged here.
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Aside from hearsay objections, out-of-court statements may also be subject to 

Confrontation Clause objections. Cf. United States v. Cain, 615 F.2d 380, 381–82 (5th 

Cir. 1980) (explaining that a statement admissible under a hearsay exclusion may still 

violate the Confrontation Clause). The Confrontation Clause, contained in the Sixth 

Amendment, provides that in all criminal prosecutions, the accused shall have the 

right to be confronted by the witnesses against him. U.S. Const. amend. VI. The 

clause applies not only to in-court testimony, but also to out-of-court statements that 

are testimonial in nature. Crawford v. Washington, 541 U.S. 36, 51, 124 S. Ct. 1354, 1364 

(2004). “Statements taken by police officers in the course of interrogations are 

testimonial.” Hale v. State, 139 S.W.3d 418, 421 (Tex. App.—Fort Worth 2004, no 

pet.) (citing Crawford, 541 U.S. at 51, 124 S. Ct. at 1364).

Here, Kelley objected to the testimony on Confrontation Clause grounds. We 

review a trial court’s determination of a Confrontation Clause objection de novo. 

Wall v. State, 184 S.W.3d 730, 742 (Tex. Crim. App. 2006).

When the trial court admits evidence in violation of the Confrontation Clause, 

Texas Rule of Appellate Procedure 44.2(a) requires us to reverse the judgment unless 

we determine beyond a reasonable doubt that the trial court’s admission of the 

evidence did not contribute to the conviction or punishment. See Tex. R. App. P. 

44.2(a); Williams v. State, 958 S.W.2d 186, 194 (Tex. Crim. App. 1997). In conducting

this harmless-error test, we evaluate the entire record in a neutral, impartial, and evenhanded manner, not in the light most favorable to the prosecution. Harris v. State, 
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790 S.W.2d 568, 586 (Tex. Crim. App. 1989), disagreed with in part on other grounds by 

Snowden v. State, 353 S.W.3d 815, 821–22 (Tex. Crim. App. 2011).

B. Analysis

Here, though Kelley objected to Schexnayder’s out-of-court statement on 

Confrontation Clause grounds, the trial court—seemingly treating Kelley’s complaint 

as a hearsay objection—admitted it under the co-conspirator exception to the hearsay 

rule. See Tex. R. Evid. 801(e)(2)(E). But even if an out-of-court statement is 

admissible under the evidentiary rules, the Confrontation Clause may still require the 

statement’s exclusion if it is testimonial in nature. See Avant v. State, 499 S.W.3d 123, 

126 (Tex. App.—San Antonio 2016, no pet.) (citing Gonzalez v. State, 195 S.W.3d 114, 

116 (Tex. Crim. App. 2006)). Because it was made to a police officer during the

course of an interrogation, Schexnayder’s statement was clearly testimonial. See Hale, 

139 S.W.3d at 421. Thus, even assuming that Schexnayder’s statement fell within the 

co-conspirator exception to the hearsay rule,1 we must nevertheless conclude that the 

1But Schexnayder’s statement did not fall within the co-conspirator exception. 

Because the statement was made to law enforcement during an interrogation after the 

offense was committed, it did not further the conspiracy; thus, it did not fall within 

the co-conspirator exception to the hearsay rule. See In re K.P.S., 840 S.W.2d 706, 710 

(Tex. App.—Corpus Christi 1992, no writ) (holding that co-conspirators’ confessions 

were not made in furtherance of a conspiracy for purposes of Rule 801(e)(2)(E)

because “the co-conspirators were in custody when they made their confessions, the 

objects of the conspiracy had been completed, and the co-conspirators were not 

attempting to conceal the crime or their cohorts”).
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trial court erred by admitting it because doing so violated Kelley’s rights under the 

Confrontation Clause.

Further, because the State’s sole basis for seeking a 40-year prison sentence for 

Kelley was that he had committed two robberies in two nights and because the only 

evidence definitively linking him to the uncharged 7-Eleven robbery was 

Schexnayder’s out-of-court statement, we cannot conclude beyond a reasonable doubt 

that the error did not contribute to the punishment. See Tex. R. App. P. 44.2(a). 

Therefore, the error was harmful, and Kelley is entitled to a new punishment trial.

We sustain Kelley’s sole issue.

III. CONCLUSION

Having sustained Kelley’s sole issue, we reverse the portion of the trial court’s 

judgment imposing sentence and remand this matter to the trial court for a new 

punishment trial consistent with this opinion. We affirm the trial court’s judgment in 

all other respects. 

/s/ Bonnie Sudderth

Bonnie Sudderth

Chief Justice

Do Not Publish

Tex. R. App. P. 47.2(b)

Delivered: June 27, 2024