                                   NO. 07-06-0360-CR

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL D

                                   APRIL 11, 2007
                          ______________________________

                                CLARENCE M. BOYD, JR.

                                                                Appellant

                                             v.

                                THE STATE OF TEXAS,

                                                      Appellee
                        _________________________________

            FROM THE 364TH DISTRICT COURT OF LUBBOCK COUNTY;

             NO. 2005-409,674; HON. BRAD UNDERWOOD, PRESIDING
                       _______________________________

                                Memorandum Opinion
                          ______________________________

Before QUINN, C.J. and CAMPBELL and PIRTLE, JJ.

       Clarence M. Boyd, Jr. was convicted of aggravated robbery and given a life

sentence. In challenging the conviction, he argues that 1) the evidence was factually

insufficient to support the verdict due to the unreliable in-court identification, and 2) the

court erred in admitting testimony from Brandi Anderson about what was said in her

presence after the robbery because it denied appellant his right of confrontation. We

overrule the issues and affirm the judgment.
        Background

        On July 1, 2005, Darla Reno and her husband Roger were working at the Dalton

Floors store in Lubbock which they managed. Jarrod Hull was also employed at the store.

Around 11:30 a.m., a black man, later identified as appellant, entered the store and asked

Darla about carpet measurements. She directed the man to Roger who was behind the

counter. As Roger began to calculate the measurements, appellant pulled a gun on Roger

and demanded cash which Roger gave him from the cash drawer. Appellant then asked

for the “other money.” Under the counter were two other bags. One of those bags

contained overflow money and the other one was a “dummy bag.” Roger gave the dummy

bag to appellant who then asked for the other money. At that point, Roger suspected

someone who worked at the store was involved. Roger gave appellant the overflow bag,

and appellant left.

        Several days after the robbery, Brandi Anderson made a phone call to Roger during

which she told him she had been in the parking lot of an apartment complex when she

heard appellant and Jarrod talking about taking money from the store. She also told

Roger that after the robbery, Jarrod had come back to the apartment complex looking for

appellant in order to split the proceeds of the robbery.1

        Issue 1 - Factual Sufficiency of the Evidence

        Appellant initially contends that the evidence is factually insufficient to support the

identification of him as the perpetrator of the charged offense. The standard by which we



        1
          Appellant’s girlfriend, who was a friend of Brandi, testified that Brandi was never in a position to have
heard the alleged conversation between Jarrod and appellant and that Jarrod never cam e to her apartm ent
looking for appellant as Brandi testified.

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review factual sufficiency challenges is set forth in Watson v. State, 204 S.W.3d 404 (Tex.

Crim. App. 2006). We refer the parties to that opinion. And, in considering that standard,

we overrule the issue.

       Neither Darla nor Roger were able to identify appellant in a photo spread prior to

trial. Nor did Darla identify appellant at trial as the robber. However, Roger did, and in

doing so, he testified that he had looked at appellant’s face and that he was “100 percent

sure” . . . “[b]ecause you don’t forget somebody that puts a gun on you.” He also explained

his inability to identify appellant in the photo spread because “[n]ot everybody photographs

the same as they look in person.” In short, Roger’s in-court identification was unequivocal.

That he could not remember what shirt or pants the robber wore or that his identification

was not made until approximately eleven months after the event go to the weight and

credibility of the identification, which, in turn, is for the jury to determine. Sosa v. State,

177 S.W.3d 227, 230 (Tex. App.–Houston [1st Dist.] 2005, no pet.) (holding that the

contention that an identification was unreliable because the intruder wore a mask goes to

the witness’ credibility); Harvey v. State, 3 S.W.3d 170, 175 (Tex. App.–Houston [14th Dist.]

1999, pet. ref’d) (holding that the argument that the witness did not have the time,

opportunity, or emotional wherewithal to get a good look at the gunman went to the weight

of the evidence and the credibility of the witness). And, a verdict is not rendered factually

insufficient simply because the jury resolved those credibility issues against the accused.

Harvey v. State, 3 S.W.3d at 175.

       We further note that a police officer was allowed to testify that Jarrod identified

appellant as the robber from a photo spread and that Brandi identified appellant as one of



                                              3
the persons having a discussion about taking money from the store. Appellant contends

that no weight should be assigned this evidence because Jarrod was an accomplice and

Brandi was a felon attempting to obtain a reward for her testimony. Yet, those matters too

are for the jury to weigh in determining the credibility of those witnesses. See Wesbrook

v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000) (holding that the jury is the exclusive

judge of the credibility of the witnesses and the weight to be given their testimony). And,

when considering both their testimony and the applicable standard of review, we cannot

say that the evidence of guilt was weak or overwhelmed by contrary evidence. In short,

the verdict enjoys the support of factually sufficient evidence.2

        Issue 2 - Confrontation Clause

        Appellant next complains of the decision to admit Brandi’s reiteration of what Jarrod

said after the robbery about wanting his share of the money. This decision purportedly

denied him his right of confrontation.3 We overrule the issue.

        In determining whether one has been denied his right of confrontation, we must

determine whether the statement is testimonial or non-testimonial.                                 Crawford v.

Washington, 541 U.S. 36, 68, 124 S.Ct. 1354, 1374, 158 L.Ed.2d 177, 203 (2004). If


        2
          Pending before the court are two m otions requesting that we assist appellant in securing effective
assistance of counsel. Appellant asserts that his appellate counsel was defective because he failed to
question the legal sufficiency of the evidence supporting guilt. Yet, having found the evidence to be factually
sufficient, we im plicitly found it legally sufficient as well. See Jones v. State, No. 07-06-0244-CR, 2006 Tex.
App. L EXIS 9684 at *4 n.1 (Tex. App.–Am arillo Novem ber 8, 2006, no pet.) (not designated for publication).
Thus, counsel cannot be faulted for om itting the topic. Appellant also criticizes his appellate counsel for failing
to assert that in allowing the police officer to reiterate Jarrod’s identification of appellant as the robber,
appellant was denied his right of confrontation. This argum ent too lacks m erit since no one at trial objected
to the testim ony on that basis. Thus, the contention was waived. Reyna v. State, 168 S.W .3d 173, 179 (Tex.
Crim . App. 2005) (stating that an objection on the grounds of hearsay fails to preserve a com plaint of violation
of the confrontation clause). Given that they lack basis, the m otions are overruled.

        3
           Appellant also objected to the statem ent during trial as hearsay. However, the State proffered the
com m ent as a statem ent against interest. More im portantly, he does not argue on appeal that the utterance
fell outside that exception to the hearsay rule.

                                                         4
testimonial, then admission of the hearsay statement violated a defendant’s right to

confrontation unless the defendant had the opportunity to cross-examine the declarant.

Id. Next, statements are testimonial when they are akin to1) ex parte in-court testimony

or its functional equivalent such as affidavits, custodial examinations, or prior testimony

that the defendant was unable to cross-examine, 2) pretrial statements that the declarant

would expect to be used in a prosecution, 3) extra-judicial statements in formalized

materials such as affidavits, depositions, prior testimony, or confessions, or 4) statements

made under circumstances that would lead an objective witness to believe that the

statement would be used in a future judicial proceeding. Wall v. State, 184 S.W.3d 730,

735 (Tex. Crim. App. 2006). Indicia surrounding the utterance which should be considered

include 1) to whom it was made, 2) whether it was volunteered or solicited, 3) the setting

in which the utterance was made, and 4) the time it was made. Flores v. State, 170

S.W.3d 722, 724 (Tex. App.–Amarillo 2005, pet. ref’d).

       Here, Jarrod’s comment about looking for appellant to retrieve his portion of the

stolen money could reasonably be deemed as against Jarrod’s interests and not one which

the declarant would want others to hear. Nor was it said under oath, at any trial, during any

pretrial proceeding, or during discovery. Rather, the words were volunteered to appellant’s

girlfriend during a conversation in an apartment while explaining why the declarant sought

appellant after the robbery. Finally, nothing of record suggests that the information was

part of a conversation involving an attempt to obtain evidence for use in a later prosecution.

Given these indicia, we cannot say that the trial court’s decision to overrule the reiteration

non-testimonial fell outside the zone of reasonable disagreement.



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      The judgment of the trial court is affirmed.



                                                Per Curiam



Do not publish.




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