## In the Court of Appeals Second Appellate District of Texas

at Fort Wor th

___________________________ No. 02

- 23

- 00296

- CR

__________

________ _________

On Appeal from Criminal District Court No. 1

Tarrant County, Texas Trial Court No. 175 4322

Before Sudderth, C.J.; Bassel and Womack, JJ. M emorandum Opinion by Chief J ustice Sudderth 

### T ROY 

### A NTHONY 

### K ELLEY 

### J R


### . , Appellant

V


### . T HE 

### S TATE OF 

### T EXAS2 MEMORANDUM OPINION Appell a nt Troy Anthony Kelley, J r . appeals h is sentence of 40 years ’
incarceration for aggravated robbery

. I n a single issue , Kelley argu es that the trial
court erred during the trial ’ s punishment phase by admitting a n out

- of

- court

sta tement made by Ke lley ’ s accomplice in violation of t h e Sixth Amendment ’ s Confrontation Clause

. We agree that the trial court erred and that the error was
har mful , and we therefore rev e r se Kelley ’ s sentence and remand for a new puni shment trial.
I
. B ACKGROUND Kelley w as indicte d for aggravated r obbery with a deadly wea pon, a fir s t

- degree felony

. See Tex. Penal Code Ann. §§ 29.02, 29.03(a)(2), (b). The indic tment also
included a repeat

- offender notice all eging th at Kelley ha d been previously convicted of a felony , th us raisin g his punishment range to impr isonment for 15 to 99 years or
life. See id. § 12.42(c)(1). At trial, the State presented evidence showi ng that Kell ey had ro bbed the clerk of an Arlington Circle K c onven ience stor e at gunpoint on the night of October 29,
2022

. T he clerk testified that one of the sta cks of money that she handed to Kelley
contained an elect ronic tracking device , which en abl e d Arlington police officers to quickly locate Kel ley ’ s veh icle , a r ed Dodge Caravan

. Accordi ng to respondin g officers , Kell ey ignor e d their attempts to pull over his vehicle an d instead led them on a high

- speed chase

. The evidence showed that Kelley ult imately lo st con trol of his3

vehicle and crashed and that both Kelley and his lone p assenger

— later identified a s his nephe w Qu entr ell Schexnayder

— were arrested after a brief foot chase. Based on this evidence, the jury fo und Kelley guilty. Kelley elected to have the trial court assess his punishme nt. After Kell e y pleaded “ t rue ” to the indictment ’ s repeat

- off ender paragraph, the S t ate presented additional punishment evide nce , including the testim ony of Arlington p oli ce dete ctive Anthony Stafford. De te ctiv e St afford had investigated both the October 29, 2 022
Circle K robbery and a similar robbery that had taken place at an Arlington 7

- E leven the previous night. Although Dete ctive Staff ord bel ie ved that the two robber ies were
connected because both involved two su spects wea ring similar c lothes and t raveling in
a similar vehicle , the State presented no evidenc e identifying Kelley as one of the
susp ects in the 7

- Eleven robbery except for Dete ctive Stafford ’ s testimony elicited during the following exc hange:

[P R OSECUTOR]: And did [ Schexnayde r ] 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 jus t described him as his uncle, Mr. Troy Anthony Kelley. [PROSECUTOR]: And to be specifi c, he said that’s w ho was with him on the night of [ the ] 29th; is that right? [WITNESS]: Yes, sir.4 [PROSECUTOR]: However, did you ask him if he was involved on the 28th? [WITNESS]: I did. [PROSECUTOR]: And did he indicate that Mr. Kelley w a s also

-- [DEFENSE C OUNSEL]: Yo u r 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 some body e lse has said, and we have the right to confrontation. So he is sayin g t hat a

-- that a suspe ct started s aying 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 Ame ndment constitutional right.

THE COURT: Are you offering it as a st a tem ent of a co

conspirato r? [PROSEC U TOR ] : Yes, Your Honor. THE COURT: And so that objection is overruled. [ PROSECU TOR]: And did he indicate if Mr. Kelley was also invol ve d in the robbe ry from 7

- E leven on 10/28? [ WITNESS]: Yes, he did. During its cl osi n g a rgument, the S t ate

— p ointing to nothing in the record other than
the fact that Kelle y had committed two ro bberies in two night s
— asked the tria l court to sentence Kelley to 40 years ’ incarceration

. During his closing ar gument, Kelley argued that the Sta t e h ad failed t o prove that he was involved in the uncharged 7

- Eleven robbery and requested that th e trial court sentence him to 15 ye ars ’
incarceratio n.5

Based on K elley ’ s plea, t he trial court found the indictment ’ s repeat

- offender

en hancement parag raph to be t rue an d sentenced Kelley to 40 years ’ incarcerat ion. This appeal followed.
II. D ISCUSSION In a singl e issue , Kelley argues that the tri al court erred by admitting Schexnayder ’ s out

- of

- court s tate ment tying Kelley to the 7

- Eleven robbery in
viola t ion of Kelley ’ s rights under th e Sixt h Amendment ’ s Confrontation Clause

. See
U.S. Const. amend. VI. T he S tate concedes the point , and we agree. A. Applicable Law Generally , a n out

- of

- court statement offered for the truth of the matter asserted consti t utes inadm issible hearsay

. Tex. R. Evid. 801(d), 802. But u nder the
Texas Rules of Evidence , a n out

- o f

- co urt statement is not hearsay if it is offered against a party and was made by a co

- conspirator “during and in furtherance of t he conspiracy.” T e x. R . Evid. 801(e)(2)(E). The out

- of

- court statemen t by a co

conspirator must be more than merely related to the conspiracy; it mus t further the conspiracy. Guidry v. State , 9 S.W.3d 133, 148 (Tex. Crim. App. 1999)

. A statement only f urthers a c onspi racy i f 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. Ap p. 2005). I n the
face of a hear say objection, the trial court has discretion to det e rmine the admissibility
of statement s unde r the co

- con spirator rule. Legate v. State , 52 S.W.3d 797, 803 (Tex. App.

— San Antonio 2001, pet. ref ’ d). But no hearsay objecti on was lodged here.6

As ide from hears a y obje ctions, o ut

- of

- court statements may also be subject to Confrontation Clause ob jectio n s. Cf. United States v. Cain , 615 F.2d 380, 381

– 82 (5th Cir. 1980) (explaining that a statement admissible under a hearsay excl usion may still violate the Confrontation Clause). The Confrontation Clause, contai ned in the Sixth Amendment, provides that i n all criminal prosecutions, the ac cused shall have the right to be confronted by the witnesses against him. U.S. C onst. amend. VI. The clause applies not only to in

- court testimony, but also to out

- of

- court sta tements that
are testimonial in natur e. Cr a wford v. Washington , 541 U.S. 36, 51, 124 S. Ct. 1354, 1364 (2004). “ Statements taken by police officers in the course of inter rogations are
testimo nial. ” Hale v. State , 139 S.W.3 d 418, 421 (Tex. App.

— F ort Wort h 2004, no
pe t. ) (citing Cr

awford , 54 1 U.S. at 51, 124 S

. Ct . at 1364 ). Here, Kelley objected t o the test imony on Confrontation Clause grounds. We
review a trial court ’ s d etermination of a Conf rontation Clause objection de novo.
Wall v. State , 184 S.W.3d 730, 742 (Tex. Crim. App. 2006).
Whe n the t rial court admits evidence in violation of the Confrontation Clause,
Texas Rule o f Appellate Procedure 44.2( a) requires us to re verse the judgm ent unless we determine beyond a reasonable doubt that the trial court ’ s a dmission of the
evidence did not contr i bute to the conviction or punishment

. See Tex. R. App. P. 44.2(a); Williams v. S tate , 958 S.W.2d 186, 194 (Tex. Crim. Ap p. 1997 ). I n conduct ing
this harmless

- error test , we evaluate the entire record in a neutral, i mpartial, and even

handed manner , not i n the light most favorable to the prosecution. Harris v. State ,7

790 S.W.2d 568, 586 (Tex. Crim. App. 1989), disagreed with in p art on other grounds by
Snowden v. State , 353 S.W.3d 815, 821

– 22 (Tex. Crim. App. 2011). B. Analysis Here, though Kelle y obje c ted t o Schexnayder ’ s out

- of

- court statement on Con frontation C lause grounds, the tri al court

— seemingly treating Kelley ’ s complai nt as a hearsay objection

— admitted it under th e co
- conspirator exc eption to the hearsay

r ule. See Tex. R. Evid. 801(e)(2 )(E)

. But e ven if an out

- of

- court statement is

a dmissible u nder the evidentiary rules, the Confrontat ion Clause may still requ ire the

statem ent ’ s e xclusion if it is testimonial in natu re. See Avan t v. S tate , 499 S.W.3d 123 , 126 (Tex. App.

— San Antonio 2 01 6 , no p et.) ( citing Go nzalez v. State , 195 S.W.3d 114, 116 (Tex . Crim. App. 2006) ). Bec au s e it was made to a police officer during the
course of an in terrogation , Schexnayder ’ s statement was clearly testimon ial. S ee Hale , 139 S.W.3 d at 421 . Thus, ev en a ssu min g that Schexnayder ’ s statement fe ll with in the

co
- conspi rator exc eption to the hearsay rule, 1 we must never the less concl ude that the

1 But Sche xnayder ’ s statement did not fall within the co

- conspirator exception. Because the statem ent was made to law enforcement du r ing an in terrogation after th e offense was committed , it did not further the conspiracy ; th us , it d id not fall w ithin the co

- conspir ator exception to the hearsay rule. See In re K.P.S. , 840 S.W.2d 706, 710 (Tex. App.

— Cor pus Christi 1992, no writ ) (holdin g that co
- co nspirators ’ confession s were not made in furtherance of a conspiracy for purposes o f Rule 801 (e) (2) (E) because “ the c o
- co n spirators were in custody when they made their confessions, the objects of the consp iracy had been completed, and the co

- c o nspira tors were not attempting to conceal the crime or their cohorts ” ).8

tria l court erred by admitting it because doing so violated Kelley ’ s rights under th e Con frontat

ion Clause. Further, be cau s e the State ’ s sole basis for seeki ng a 40

- year pr ison s entence for Kelley was that he had committed two robberies in tw o nights and because the only
evidence definitively linking him to the uncharged 7

- Eleven robbery was Schexnayder ’ s out

- of

- court s tat eme n t, we can not conclude beyond a reasonable d ou bt
that th e error did n ot contribute t o the punishment

. See Tex. R. App. P. 44.2(a)

. Th erefore , the error was harmful , and Kelley is entitled to a new punishment trial.
We sustain Kelley ’ s sole issue.
III
. C ONCLUSION Having sustained Kelley ’ s sole issue, we rev erse the portion of the trial court ’ s judgment imposing sentence and remand this matter to the trial court for a new punishment t rial consistent with thi s opin ion

. We affirm the trial co urt ’ s j ud g men t in all other respects. /s/ Bonnie Sudderth
Bonnie Su dderth Chief Justice
Do Not Publish Tex. R. App. P. 47.2(b)
Delivered : June 27, 2024