AFFIRM; and Opinion Filed May 12, 2015.




                                         S   In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                      No. 05-13-00839-CR

                              TOREY LAQUON BOYKIN, Appellant
                                            V.
                                THE STATE OF TEXAS, Appellee

                       On Appeal from the 366th Judicial District Court
                                    Collin County, Texas
                           Trial Court Cause No. 366-82130-2012

                               MEMORANDUM OPINION
                          Before Justices Bridges, Fillmore, and Brown
                                  Opinion by Justice Fillmore
       A jury convicted Torey LaQuon Boykin of aggravated robbery and assessed punishment

of forty years’ imprisonment. In three issues, Boykin asserts the evidence is insufficient to prove

he committed the offense, and the trial court erred by admitting into evidence a juvenile

judgment of delinquency and statements made by a police officer during an interview of Boykin

that the officer represented had been made by Boykin’s accomplice to the robbery. We affirm

the trial court’s judgment.

                                          Background

       At approximately 7:20 a.m. on June 19, 2012, Richard Valentine, who was a junior in

high school, was walking to the bus stop to go to summer school. Valentine was wearing his

“Dr. Dre Beats” headphones.        Valentine described the headphones as “real expensive.”

       Valentine noticed two “guys” riding bicycles. One of the men was black and the other
one was white. The black man was wearing a white t-shirt and blue jeans and was riding a black

bicycle. Valentine noticed the black man giving him a “weird stare, like he was noticing my

stuff.” The two men got off their bicycles, and the black man began walking toward Valentine.

The man pointed a black gun at Valentine and demanded Valentine’s property. Valentine was

scared, nervous, and felt threatened. He did not want to get shot and did not want to die.

Valentine gave the man the headphones, his cell phone, and a backpack containing his house

key, a Lakers’ cap, some socks, and a pair of flip-flops. The man told Valentine to walk away.

Valentine ran to the bus stop.

       When the bus arrived, Valentine told the bus driver about the robbery. Josh Haley, a

student who was already on the bus, overheard the conversation and indicated he had a similar

experience that morning. The police were contacted after the bus arrived at school. Two days

later, Valentine was shown a photographic line-up. Valentine picked a photograph of Boykin

and indicated he was seventy percent certain Boykin was the robber. Valentine was unable to

identify Boykin at trial.

       Haley testified that on June 19, 2012, at approximately 7:00 or 7:05 a.m., he was walking

to the bus stop to go to summer school when he was approached by a black man and a white man

on bicycles. The two men said they were lost and asked if they could borrow Haley’s phone.

Haley refused, said he needed to use the phone, and called his father. The men left, and Haley

got on the bus. At the next stop, Valentine got on the bus and said he had been robbed.

Valentine and Haley decided they had been approached by the same men because the men were

on bicycles and one of the bicycles had bright orange rims. According to Haley, a person on a

bicycle could get from the place he encountered the two men to the place where Valentine was

robbed in approximately fifteen minutes. Haley was shown a photographic line-up, but was

unable to identify the black man who approached him.

                                             –2–
          Detectives Trevor Taylor and Brad Thomason of the Frisco Police Department

interviewed both Valentine and Haley. Further, Taylor and Thomason spoke to a “guy at the

pool,” who told them that, at approximately 7:15 a.m. on June 19, 2012, he saw a black man and

a white man on bicycles at a location that would have made it impossible for those two men to

have robbed Valentine at 7:20 a.m. 1 Taylor and Thomason obtained historical call data for

Valentine’s phone and learned the cell phone had been used approximately twelve hours after the

robbery. Using the number contacted by the cell phone, they traced the cell phone to Sang Shi

“Connor” Lee. Lee testified he saw an advertisement on Craig’s List for the cell phone. In the

evening of June 19, 2012, he met a black man and a white man at a park in Frisco and purchased

the cell phone. Lee was shown a photographic line-up and, although he was unable to positively

identify the black man from the park, he indicated Boykin’s picture was the “closest.”

          Taylor and Thomason searched Craig’s List and found an advertisement for some Dr. Dre

Beats headphones that contained the same telephone number as in the advertisement for the cell

phone purchased by Lee. An undercover officer for the Frisco police department contacted the

telephone number on the advertisement and arranged to purchase the headphones on June 21,

2012. Three men, including Boykin and Ryan Rosenberg, met the undercover officer and were

arrested. The serial number on the headphones recovered from the three men matched the serial

number on the box for the headphones belonging to Valentine. Boykin had a silver .380 caliber

pistol and was charged with unlawfully carrying a weapon.

          Taylor and Thomason interviewed Boykin following his arrest. Boykin told the officers

he had been staying in a shed behind Rosenberg’s house. Boykin said he and Rosenberg were

riding bicycles on June 19, 2012, when they saw a “kid” with a cell phone. They asked to

borrow the cell phone, but the “kid” refused. Boykin denied being involved in the robbery of

   1
       This evidence was brought out on cross-examination of Taylor and there was no evidence Boykin was one of these two men.



                                                                   –3–
Valentine. Taylor testified that, when asked whether he used the .380 caliber handgun to rob

Valentine, Boykin responded he did not use that gun. This caused Taylor to believe there was

another gun that was used in the robbery.

       Boykin denied any knowledge of Valentine’s cell phone. Boykin said he found the

headphones on a bench in a park and later found the .380 caliber pistol on a trail in a park. He

picked up the .380 caliber handgun so that a child would not find the gun and get hurt. Taylor

told Boykin that Rosenberg had said he found the headphones “somewhere else.” Boykin

responded, “he did” and said Rosenberg “came up with those” while the two men were riding

bicycles. Later in the interview, Boykin again claimed he found the headphones in a park, but

the headphones were on the grass and not on a bench. Boykin said he “threw in” the bench to

make it seem as if somebody had left the headphones. Boykin finally stated that “we” found the

headphones. Both Taylor and Thomason admitted it was not impossible that Boykin found the

headphones and the .380 caliber handgun in a park.

       Taylor obtained a search warrant for Rosenberg’s house. In a shed behind Rosenberg’s

house, the police found a backpack, a Lakers’ cap, Valentine’s house key, and a black .9

millimeter handgun.

                                  Sufficiency of the Evidence

       In his first issue, Boykin asserts the evidence is insufficient to establish he committed the

aggravated robbery because Valentine’s and Haley’s descriptions of the robber were

inconsistent; neither Valentine nor Haley accurately described him to the police or were able to

identify him in court; Valentine was only seventy percent certain of his identification of Boykin

in the photographic line-up; there were no recordings of the robbery and no fingerprints taken

from the gun or the cell phone; and a witness saw him and Rosenberg at a time and place that

would have made it impossible for him to have committed the robbery.

                                               –4–
       We review the sufficiency of the evidence under the standard set out in Jackson v.

Virginia, 443 U.S. 307 (1979). Matlock v. State, 392 S.W.3d 662, 667 (Tex. Crim. App. 2013).

We examine all the evidence in the light most favorable to the verdict and determine whether any

rational trier of fact could have found the essential elements of the offense beyond a reasonable

doubt. Jackson, 443 U.S. at 319; Matlock, 392 S.W.3d at 667. This standard recognizes “the

responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the

evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Jackson, 443

U.S. at 319; see also Adames v. State, 353 S.W.3d 854, 860 (Tex. Crim. App. 2011). As the fact

finder, the jury is entitled to judge the credibility of the witnesses, and can choose to believe all,

some, or none of the testimony presented by the parties. Chambers v. State, 805 S.W.2d 459,

461 (Tex. Crim. App. 1991); see also Wise v. State, 364 S.W.3d 900, 903 (Tex. Crim. App.

2012) (“The factfinder exclusively determines the weight and credibility of the evidence.”).

       We defer to the jury’s determinations of credibility, and may not substitute our judgment

for that of the jury. Jackson, 443 U.S. at 319; Thornton v. State, 425 S.W.3d 289, 303 (Tex.

Crim. App. 2014); King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000) (in conducting

legal sufficiency analysis, appellate court “may not re-weigh the evidence and substitute our

judgment for that of the jury”). When there is conflicting evidence, we must presume the

factfinder resolved the conflict in favor of the verdict, and defer to that resolution. Jackson, 443

U.S. at 326; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). Circumstantial

evidence is as probative as direct evidence and, alone, can be sufficient to establish guilt.

Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). Evidence is sufficient if “the

inferences necessary to establish guilt are reasonable based upon the cumulative force of all the

evidence when considered in the light most favorable to the verdict.” Wise, 364 S.W.3d at 903.




                                                 –5–
          A person commits robbery if, in the course of committing theft and with intent to obtain

or maintain control of the property, he intentionally or knowingly threatens or places another in

fear of imminent bodily injury or death. TEX. PENAL CODE ANN. § 29.02(a)(2) (West 2011). A

person commits theft if he unlawfully appropriates property with intent to deprive the owner of

it. Id. § 31.03(a) (West Supp. 2014). Appropriation is unlawful if it is without the owner’s

effective consent. Id. § 31.03(b)(1). A person commits aggravated robbery if he uses or exhibits

a deadly weapon during the commission of a robbery. Id. § 29.03(a)(2) (West 2011). A firearm

is a deadly weapon. Id. § 1.07(a)(17)(A) (West Supp. 2014). Boykin challenges only whether

the evidence is sufficient to prove he committed the underlying theft.

          The jury may draw an inference of guilt when a defendant is found in unexplained

possession of recently stolen property. Hardesty v. State, 656 S.W.2d 73, 76 (Tex. Crim. App.

1983); Uyamadu v. State, 359 S.W.3d 753, 760 (Tex. App.—Houston [14th Dist.] 2011, pet.

ref’d); see also Rollerson v. State 227 S.W.3d 718, 724–25 (Tex. Crim. App. 2007). However,

before such an inference of guilt may be drawn, the State must establish the defendant’s

possession was personal, recent, unexplained, and involved a distinct and conscious assertion of

right to the property.            Sutherlin v. State, 682 S.W.2d 546, 549 (Tex. Crim. App. 1984). 2

Generally, if a defendant offers an explanation for his possession of stolen property, the record

must demonstrate the explanation is false or unreasonable before the evidence to support a

conviction will be deemed sufficient. Adams v. State, 552 S.W.2d 812, 815 (Tex. Crim. App.

1977); Reyes v. State, 422 S.W.3d 18, 24 (Tex. App.—Waco 2013, pet. ref’d). The falsity of the

explanation may be shown by circumstantial evidence. Adams, 552 S.W.2d at 815. Whether a

defendant’s explanation for possession of recently stolen property is true or reasonable is an


     2
       See also Pedraza v. State, No. 05-11-00396-CR, 2012 WL 2308256, at *5 (Tex. App.—Dallas June 19, 2012, no pet.) (mem. op., not
designated for publication).



                                                               –6–
issue to be determined by the fact finder. Id.; Marmon v. State, 704 S.W.2d 90, 92 (Tex. App.—

Dallas 1985, pet. ref’d). 3

           When Boykin, along with Rosenberg and another man, were arrested, they were in

possession of Valentine’s headphones. Further, Lee indicated Boykin’s picture was the “closest”

to the black man who participated in selling him Valentine’s phone.             Finally, Valentine’s

backpack, house key, and Laker’s cap were found in the shed where Boykin was staying.

Boykin offered no explanation as to why Valentine’s backpack, house key, and Lakers’ cap were

in the shed where he was staying and denied any knowledge of Valentine’s cell phone. Boykin’s

explanation for his possession of the headphones was inconsistent. He first claimed to have

found the headphones on a bench in a park. He then claimed Rosenberg found the headphones

while the men were riding bicycles. He then said he found the headphones in the grass in a park.

Finally, he asserted that he and Rosenberg found the headphones together. Boykin’s inconsistent

explanations for his possession of the headphones, coupled with his failure to explain his

possession of Valentine’s other property, permitted an inference that he committed the robbery.

See Hardesty, 656 S.W.2d at 76; see also Poncio v. State, 185 S.W.3d 904, 905 (Tex. Crim. App.

2006); Reyes, 422 S.W.3d at 25 (rational jury could reasonably reject defendant’s explanation for

possession of stolen property as incredible).

           Further, all the evidence, viewed in the light most favorable to the verdict, supports the

jury’s finding Boykin was the robber. Boykin was staying in a shed behind Rosenberg’s house,

which was in the same area as the robbery. Boykin admitted he and Rosenberg were riding

bicycles on June 19, 2012, and approached a “kid” with a cell phone who would not let them

borrow the phone. Haley testified that, on June 19, 2012 at 7:00 a.m. or 7:05 a.m., he was

approached by a black man and a white man riding bicycles who asked to use his cell phone.

    3
        See also Pedraza, 2012 WL 2308256, at *5.



                                                    –7–
According to Haley, this encounter occurred at a location approximately fifteen minutes, by

bicycle, from the location of robbery. Valentine testified that, at approximately 7:20 a.m. on

June 19, 2012, he saw a black man and a white man riding bicycles. The black man approached

him, pointed a black gun at him, and demanded his property. Valentine was scared and afraid he

was going to be shot. Valentine gave the man his cell phone, his headphones, and a backpack

containing his house key, a Lakers’ cap, some socks, and some flip-flops. Valentine identified

Boykin as the robber from a photographic line-up, but indicated he was only seventy percent

certain of the identification.

        On the date of the robbery, Lee purchased Valentine’s cell phone from a white man and a

black man. Although Lee indicated he could not make a positive identification of the black man

from the photographic line-up, he stated Boykin’s picture was the “closest.” The police located a

Craig’s List advertisement for a pair of headphones containing the same contact number as in the

Craig’s List advertisement for Valentine’s cell phone.        Two days after the robbery, an

undercover officer made arrangements to purchase the advertised headphones.              Boykin,

Rosenberg, and another individual were arrested with the headphones, and the serial number on

the headphones established they belonged to Valentine. The police found Valentine’s house key,

backpack, and Lakers’ cap and a black .9 millimeter gun in the shed behind Rosenberg’s house

where Boykin was staying.

        The State was not required to present direct evidence, such as recordings or fingerprints

or definite eyewitness testimony, that Boykin was the robber. Rather, circumstantial evidence

alone can be sufficient to support a conviction. Hooper, 214 S.W.3d at 13. Viewing the

evidence in the light most favorable to the verdict, we conclude a rational juror reasonably could

find, based on all the evidence and the inferences that can be drawn from the evidence, that




                                               –8–
Boykin committed the aggravated robbery. See Jackson, 442 U.S. at 319; Wise, 364 S.W.3d at

903. Accordingly, we resolve Boykin’s first issue against him.

                                      Evidentiary Issues

       In his second and third issues, Boykin complains the trial court erred by admitting into

evidence a juvenile judgment of delinquency and statements made by Taylor, while interviewing

Boykin, representing Rosenberg had said he, rather than Boykin, found the headphones.

                                      Standard of Review

       We review a trial court’s admission or exclusion of evidence for an abuse of discretion.

Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010). We will not reverse the trial

court’s ruling unless it falls outside the “zone of reasonable disagreement.”     Id.; see also

Manning v. State, 114 S.W.3d 922, 926 (Tex. Crim. App. 2003) (quoting Montgomery v. State,

810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op. on reh’g)).

                               Judgment of Juvenile Delinquency

       In his second issue, Boykin asserts the trial court erred by admitting a judgment of

juvenile delinquency because it does not reflect he was properly warned in the juvenile

proceeding that the record of the proceeding could be used in a subsequent criminal case and,

therefore, the judgment is “fundamentally defective.”

       While he was a juvenile, Boykin was adjudicated delinquent because he committed a

robbery. At the beginning of the punishment phase of the trial in this case, Boykin’s counsel

objected to the admission of the judgment of juvenile delinquency on the ground “that it

happened prior to him becoming an adult, and I don’t think it’s proper to put before the jury at

this time.” The trial court overruled the objection. The State presented its punishment phase

case without offering the judgment of juvenile delinquency.




                                              –9–
       Boykin testified in his case-in-chief and requested the jury recommend that he be placed

on probation. Boykin testified he had not previously been convicted of a felony, but that

“something happened” when he was a juvenile that did not “count as a legal conviction.” On

cross-examination, Boykin admitted he had been charged with robbery when he was a juvenile.

The State then offered the judgment of juvenile delinquency pertaining to the robbery. Boykin’s

counsel objected that it was “under the Family Code, and it’s dealing with an adjudication of a

juvenile robbery. And I don’t think it’s appropriate for the jury to consider it.” The trial court

admitted the judgment of juvenile delinquency into evidence. Boykin then testified about the

circumstances surrounding the robbery.

       To preserve a complaint for appellate review, the record must show a specific and timely

complaint was made in the trial court and the trial court ruled on the complaint. Clark v. State,

365 S.W.3d 333, 339 (Tex. Crim. App. 2012); see also TEX. R. APP. P. 33.1(a). The complaining

party must have informed the trial court what was wanted, and why the party was entitled to it.

Clark, 365 S.W.3d at 339. The specificity requirement is met if the complaint made at trial was

clear enough so as to permit the trial judge to take corrective action when the complaint was

made. Lovill v. State, 319 S.W.3d 687, 691 (Tex. Crim. App. 2009). The purpose of requiring a

specific objection in the trial court is twofold: (1) to inform the trial judge of the basis of the

objection and give him the opportunity to rule on it; and (2) to give opposing counsel the

opportunity to respond to the complaint. Resendez v. State, 306 S.W.3d 308, 312 (Tex. Crim.

App. 2009). A complaint is not preserved if the legal basis of the complaint on appeal varies

from the complaint at trial. Lovill, 319 S.W.3d at 691–92. Boykin’s complaint on appeal, that

the record does not reflect he was properly admonished in the juvenile proceedings, does not

comport with his objection in the trial court and, therefore, was not preserved for appellate




                                              –10–
review. See TEX. R. APP. P. 33.1(a); Clark, 365 S.W.3d at 340 (appellant failed to preserve

complaint for review when trial objection did not comport with issue raised on appeal).

           Boykin does not dispute that he failed to raise his complaint on appeal in the trial court,

but asserts a juvenile court’s failure to give the required admonishments before accepting a guilty

plea is a fundamental error that may be raised for the first time on appeal. At the beginning of

any adjudication of delinquency hearing, the juvenile must receive a number of admonishments,

including being admonished on the “law relating to the admissibility of the record of a juvenile

court adjudication in a criminal proceeding.” TEX. FAM. CODE ANN. § 54.03(b)(2) (West 2014).

In order to preserve error for appeal, the juvenile must object to the trial court’s failure to give

the required admonishments before testimony begins or, if the adjudication is uncontested,

before the juvenile pleads to the petition or agrees to the stipulation of evidence. Id. § 54.03(i).

Further, the juvenile court’s failure to properly admonish the juvenile as to the potential use of

the record from a juvenile proceeding in a future criminal case is subject to a harm analysis. In

re D.I.B., 988 S.W.2d 753, 758–59 (Tex. 1999).

           Boykin offers no authority that he can attack the judgment of juvenile delinquency for the

first time in this appeal from a later criminal conviction. However, we need not reach this issue

because we do not have a reporter’s record from the adjudication hearing in the juvenile court,

and the judgment of delinquency does not reflect either Boykin’s plea or what admonishments, if

any, were given by the juvenile court judge prior to the adjudication hearing. 4 Therefore, we

cannot determine whether Boykin preserved error in the juvenile court based on any failure by

the juvenile court to admonish him that the record from the proceeding could potentially be used


           4
              The judgment of delinquency states Boykin waived his right to a jury trial. The juvenile court “after hearing the pleadings of all the
parties and after hearing the evidence and argument of counsel,” adjudicated Boykin delinquent. It then notified Boykin of his right to appeal the
determination. At a subsequent hearing, the juvenile court placed Boykin on probation of a period of eighteen months and ordered he be placed
outside of the home.




                                                                      –11–
in a future criminal case or whether he was harmed by any such error. Boykin had the burden of

bringing forward a record on appeal sufficient to show the trial court erred in its ruling. See

Amador v. State, 221 S.W.3d 666, 675 (Tex. Crim. App. 2007). Because he failed to do so, we

cannot conclude the trial court erred by admitting the judgment of delinquency. See TEX. CODE

CRIM. PROC. ANN. art. 37.07 § 3(a)(1) (West Supp. 2014) (evidence may be offered by either

party of an adjudication of delinquency based on violation by defendant of a penal law of the

grade of felony); TEX. PENAL CODE ANN. § 29.02(b) (robbery is second degree felony).

       We resolve Boykin’s second issue against him.

                                  Statements Attributed to Accomplice

       In his third issue, Boykin asserts the trial court erred by admitting portions of his

interview during which Taylor told Boykin that Rosenberg claimed he found the headphones. At

trial, Boykin objected that Rosenberg’s purported statements were hearsay and violated his right

to confront the witnesses against him. The trial court overruled the objections, but instructed the

jury the statements were not offered for the truth of the matter asserted, but to show the effect of

the statements on the listener.

       Hearsay is a statement, other than one made by the declarant while testifying at trial, that

a party offers to prove the truth of the matter asserted. TEX. R. EVID. 801(d), 60 TEX. B.J. 1129

(1998, amended 2015). Hearsay statements are inadmissible, except as provided by statute or

other rule. TEX. R. EVID. 802 (1998, amended 2015). A statement that is not offered to prove

the truth of the matter asserted, but rather is offered for some other reason, does not constitute

hearsay. Guidry v. State, 9 S.W.3d 133, 152 (Tex. Crim. App. 1999); Dinkins v. State, 894

S.W.2d 330, 347 (Tex. Crim App. 1995). Specifically, “[a]n extrajudicial statement or writing

which is offered for the purpose of showing what was said rather than for the truth of the matter

stated therein does not constitute hearsay.” Dinkins, 894 S.W.2d at 347; see also Bell v. State,

                                                 –12–
877 S.W.2d 21, 24 (Tex. App.—Dallas 1994, pet. ref’d) (statement is not hearsay if relevancy

does not hinge truthfulness of statement); Parker v. State, 192 S.W.3d 801, 807 (Tex. App.—

Houston [1st Dist.] 2006, pet. ref’d).

          There is no dispute that Rosenberg did not make the statements attributed to him by

Taylor. However, the relevance of Rosenberg’s purported statements did not turn on their

accuracy. Rather, the purported statements were relevant to show what was said to bring about

certain responses from Boykin. See Guidry, 9 S.W.3d at 152; Dinkins, 894 S.W.2d at 347. As

such, the truthfulness or accuracy of the statements Taylor attributed to Rosenberg had no

bearing on their relevance. See Bell, 877 S.W.2d at 24. Because the purported statements were

not offered to prove the truth of the matter asserted, they do not constitute inadmissible hearsay.

See Guidry, 9 S.W.3d at 152; Dinkins, 894 S.W.2d at 347; Parker, 192 S.W.3d at 807.

          We next turn to Boykin’s complaint that his right to confront the witnesses against him

was violated by the admission of Rosenberg’s purported statements. The Sixth Amendment of

the United States Constitution provides that “[i]n all criminal prosecutions, the accused shall

enjoy the right . . . to be confronted with the witnesses against him[.]” U.S. CONST. amend VI. 5

An accused’s right to confront the witnesses against him is violated by the admission of an out-

of-court statement made by a nontestifying declarant if the statement was testimonial and the

accused did not have a prior opportunity to cross-examine the declarant.                                             Crawford v.

Washington, 541 U.S. 36, 59, 68 (2004); Woodall v. State, 336 S.W.3d 634, 642 (Tex. Crim.

App. 2011).

          However, a statement is not objectionable under the Confrontation Clause to the extent it

is offered for some evidentiary purpose other than the truth of the matter asserted. Crawford,


     5
       The Confrontation Clause was made applicable to the States through the Fourteenth Amendment. Pointer v. Texas, 380 U.S. 400, 403,
406 (1965).



                                                                –13–
591 U.S. at 59 n.9; Langham v. State, 305 S.W.3d 568, 576 (Tex. Crim. App. 2010). “When the

relevance of an out-of-court statement derives solely from the fact that it was made, and not from

the content of the assertion it contains, there is no constitutional imperative that the accused be

permitted to confront the declarant.” Langham, 305 S.W.3d at 576. In this situation, the witness

against the accused is not the out-of-court declarant, but the witness who testifies the statement

was made. Id. at 576–77 (citing Tennessee v. Street, 471 U.S. 409, 414 (1985) (“The nonhearsay

aspect of [the out-of-court declarant’s] confession—not to prove what happened at the murder

scene but to prove what happened when respondent confessed—raises no Confrontation Clause

concerns. The Clause’s fundamental role in protecting the right of cross-examination . . . was

satisfied by [the interrogating officer’s] presence on the stand.”)).

            We have already determined the statements made by Taylor while interrogating Boykin

were not made to establish the truth of the matters allegedly asserted by Rosenberg. Rather, they

were admitted as part of Boykin’s recorded interview and served to establish Boykin’s reactions

to the statements. Thus, the relevance of the out-of-court statements derives solely from the fact

Taylor made them during the interrogation and not from their content. See Langham, 305

S.W.3d at 576. 6 Taylor, not Rosenberg, was the person “bearing witness” against Boykin and

was available for confrontation and cross-examination at trial. Thus, Boykin’s rights under the

Confrontation Clause were not violated by the admission of the statements. Id at 576–77. 7 We

resolve Boykin’s third issue against him.




     6
       See also Ferralez v. State, No. 13-12-00651-CR, 2013 WL 7208820, at *2 (Tex. App.—Corpus Christi Feb. 13, 2013, no pet.) (mem. op.,
not designated for publication) (relevance of third-party statements used by detectives during interview of defendant derived solely from
defendant’s responses to them and not from their content); Humphrey v. State, No. 01-08-00820-CR, 2012 WL 4739925, at *2, 4 (Tex. App.—
Houston [1st Dist.] Oct. 4, 2012, no pet.) (mem. op., not designated for publication) (concluding admission of video containing interview with
defendant, which included officers challenging defendant’s version of events with third-party statements, did not violate defendant’s right to
confrontation because statements were not offered to prove truth of matter asserted).
     7
         See also Ferralez, 2013 WL 7208820, at *2; Humphrey, 2012 WL 4739925, at *4.



                                                                   –14–
       We affirm the trial court’s judgment.




                                                  /Robert M. Fillmore/
                                                  ROBERT M. FILLMORE
                                                  JUSTICE



Do Not Publish
TEX. R. APP. P. 47

130839F.U05




                                               –15–
                                       S
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

TOREY LAQUON BOYKIN, Appellant                        On Appeal from the 366th Judicial District
                                                      Court, Collin County, Texas,
No. 05-13-00839-CR        V.                          Trial Court Cause No. 366-82130-2012.
                                                      Opinion delivered by Justice Fillmore,
THE STATE OF TEXAS, Appellee                          Justices Bridges and Brown participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 12th day of May, 2015.




                                               –16–
