       TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



                                      NO. 03-18-00546-CR



                             Andrew Lenard Hardesty, Appellant

                                                 v.

                                  The State of Texas, Appellee




                 FROM THE 264TH DISTRICT COURT OF BELL COUNTY
             NO. 75106, THE HONORABLE JOHN GAUNTT, JUDGE PRESIDING



                            MEMORANDUM OPINION


               A jury convicted appellant Andrew Lenard Hardesty of the offense of capital

murder. See Tex. Penal Code § 19.03(a)(3). The district court rendered judgment on the verdict

and sentenced Hardesty to life imprisonment without parole, as required by law.             See id.

§ 12.31(a)(2). In two issues on appeal, Hardesty asserts that the district court erred in failing to

include a “jailhouse informant” instruction in the jury charge and abused its discretion in

admitting hearsay. We will affirm the district court’s judgment.


                                        BACKGROUND

               The jury heard evidence that on the morning of October 20, 2014, Hardesty shot

Christine Watkins, an African-American woman, twelve times outside her home in Killeen as

she was approaching her car to go to work. Christine’s husband, Kenneth, who was also outside
at the time of the shooting, testified that as he was walking toward his truck, he heard Christine

say, “Oh no,” followed by multiple gun shots. 1 Kenneth, afraid that the shooter was going to

come for him next, jumped into his truck and drove down the street to his son’s house to get

help. Kenneth testified that he was not able to identify the person who shot Christine, but he

thought he saw a white or Hispanic male, wearing black or dark gray clothing and either a ski

mask or stocking cap over his face.

               The shooting was recorded by a security camera placed above the Watkins’ front

door, and a copy of the recording was admitted into evidence and played for the jury. In the

recording, Kenneth can be seen leaving the house, followed shortly thereafter by Christine. As

Christine is approaching her car, a man wearing black pants and what appears to be a gray

hoodie can be seen running toward her, firing a gun. Christine retreats and falls to the ground,

while the man continues shooting her at close range.

               William Camacho lived next door to the Watkins. Camacho testified that on the

morning of October 14, 2014, six days before the shooting, he went outside his house and saw a

man, dressed in a black hoodie and black pants, “coming out of [a] bush” and walking toward

him. The man told Camacho, “Good morning,” and Camacho did the same. Camacho estimated

that the person was “no more than seven feet” away from him at the time of the encounter.

Camacho did not see the man again. The following night, Camacho heard a noise outside his

house and learned the next morning that someone had set fire to the Watkins’ curtains. Several

months later, the police showed Camacho a photo lineup and Camacho identified Hardesty as the

man he had seen outside his house. Camacho also identified Hardesty during trial.


       1
           Because Christine and Kenneth share the same surname, we will refer to them using
their first names.
                                                2
               The lead investigator in the case was Detective Terry Kaiser of the Killeen Police

Department. During the investigation, Detective Kaiser learned that there had been a lawsuit

between the Watkins and one of their neighbors across the street, Jo Ann Wilbert, and that

Wilbert had lost the lawsuit. Kaiser testified that he had interviewed Wilbert several hours after

the shooting and that, following the interview, Wilbert “packed up and moved to Florida.”

               Kenneth testified that Wilbert had been “constantly harassing” him and his wife

prior to the shooting. Kenneth explained that he and his wife owned rental homes on their street,

and they rented one of their homes to a Hispanic couple. This angered Wilbert, who “didn’t like

Hispanics.” In an apparent act of retaliation for the rental decision, Wilbert took down a fence

that separated her property from one of the properties owned by the Watkins and demanded that

the Watkins “pay half to put the fence back up.” Kenneth refused to do so, which led to

Wilbert’s lawsuit. After Wilbert lost the suit, she began filing complaints with the City of

Killeen asserting that the Watkins were violating city code provisions. The complaints were

found to be without merit. Wilbert would also flash her outside lights on and off at night to

harass the Watkins.

               Detective Kaiser testified that Wilbert was the “primary suspect” in the murder.

Kaiser’s investigation of Wilbert led him to other individuals, including Jack Dutton, who acted

as a “bodyguard” for Wilbert, 2 and John Horn, Wilbert’s former friend, both of whom had

knowledge of Wilbert’s history with the Watkins. Kaiser also interviewed individuals who were

associated with Hardesty, including Greg Pickens, Julia Driskell, and Jermie Romel, each of

whom testified at trial.

       2
          The record is unclear as to how Dutton acted as a “bodyguard” for Wilbert, although
Kaiser testified that Dutton drove Wilbert to Florida and “was watching her house for some
time.”
                                                3
               Greg Pickens, who had been friends with Hardesty at the time of the murder,

testified that Hardesty had borrowed money from him in December 2014.               As collateral,

Hardesty gave Pickens a black, semi-automatic handgun that “seemed like it was brand new.”

When Pickens asked Hardesty why he had not simply sold the gun for money at a pawn shop,

Hardesty told him that he “didn’t want to put the gun in the system.” Based on ballistics testing

performed on shell casings, projectiles, and bullet fragments recovered from the crime scene, the

police determined that this was the same firearm that had been used in the shooting. The gun

was admitted into evidence as State’s Exhibit 43.            Detective Kaiser learned that on

October 8, 2014, Wilbert had purchased a .40 caliber Sig Sauer semi-automatic handgun, along

with a box of .40 caliber ammunition, from a pawn shop in Killeen. Kaiser testified that this was

the same gun that had been marked as State’s Exhibit 43. Kaiser also testified that the gun had

never been reported as stolen.

               Julia Driskell, Hardesty’s ex-girlfriend, testified that she and Hardesty knew Jack

Dutton, Wilbert’s “bodyguard.” Driskell testified that in 2014, Hardesty began meeting with

Wilbert. Hardesty told Driskell that he had been doing various “jobs” for Wilbert, that Wilbert

had bought Hardesty a gun and hired him to kill a woman, and that Wilbert owed Hardesty

money for the job. Driskell also testified that Hardesty told her that he had shot the woman and

that after the shooting, he gave the gun to Pickens. Hardesty also told Driskell that on an earlier

occasion, he had started a fire in the woman’s house.

               Jermie Romel, an Army veteran who was acquainted with Hardesty through Jack

Dutton, a mutual friend, testified that Hardesty claimed that he had served as a sniper in the

military. During one of their conversations, Hardesty told Romel that he had been hired by



                                                4
Dutton for a “job” that involved “a lady that lived somewhere in Killeen that someone wanted

removed or wanted to get them out of the area or something like that.” Romel elaborated:



       He had said . . . the job was . . . getting some lady to move out of the area. You
       know, he tried to get this lady to move. After a few days and not being able to get
       her to move, he actually said he dressed up in a suit and depicted himself as the
       devil and walked up the driveway and exchanged fire between her and her
       husband, some lady and her husband. And supposedly the lady got shot.


When asked to describe what he meant when he said that Hardesty had depicted himself as “the

devil,” Romel testified, “Blacked out with a mask on.” Romel further testified that Hardesty told

him that he had been paid $20,000 for the job by a woman and that this woman “never really

paid him” but instead “took off for Florida.”

               Russell Parrish, an inmate in the Bell County Jail, shared a jail cell with Hardesty.

Parrish testified that Hardesty told him that he had killed a woman by hiding out as a “sniper” in

her yard and that he “shot her without her husband even being able to see him.” Hardesty also

told Parrish that he had earlier set fire to the woman’s house.

               The jury found Hardesty guilty of capital murder. This appeal followed.


                                           ANALYSIS

Charge error

               In his first issue, Hardesty asserts that two of the State’s witnesses, Russell

Parrish and Jermie Romel, were “jailhouse informants” and that the district court erred in failing

to include in the jury charge a jailhouse-informant instruction relating to their testimony. A

jailhouse-informant instruction, when applicable, should track the language of article 38.075 of

the Code of Criminal Procedure, which includes the following:


                                                 5
       (a)     A defendant may not be convicted of an offense on the testimony of a
               person to whom the defendant made a statement against the defendant’s
               interest during a time when the person was imprisoned or confined in the
               same correctional facility as the defendant unless the testimony is
               corroborated by other evidence tending to connect the defendant with the
               offense committed.


       (b)     Corroboration is not sufficient for the purposes of this article if the
               corroboration only shows that the offense was committed.


Tex. Code Crim. Proc. art. 38.075.

               As an initial matter, we disagree with Hardesty’s contention that Romel was a

“jailhouse informant” as that term is defined in Article 38.075. Romel testified that he was

incarcerated in the Bell County Jail on drug possession charges from January 2018 through

May 31, 2018. The statements that Hardesty made to Romel were made prior to Hardesty’s

arrest in 2015, at a time when neither Romel nor Hardesty were in jail. Thus, those statements

were not made “during a time when [Romel] was imprisoned or confined in the same

correctional facility as the defendant,” and Article 38.075 does not apply to Romel’s testimony.

               On the other hand, Parrish, who shared a jail cell with Hardesty at the time of

their conversation, qualifies as a “jailhouse informant.” Accordingly, the State concedes that the

district court erred in failing to provide a jailhouse-informant instruction relating to Parrish’s

testimony.

               When there is jury-charge error, we apply the familiar Almanza framework for

assessing harm. See Almanza v. State, 686 S.W.2d 157, 171-72 (Tex. Crim. App. 1985) (op. on

reh’g). “Under Almanza, the degree of harm required for reversal depends on whether the error

was preserved in the trial court.” Villarreal v. State, 453 S.W.3d 429, 433 (Tex. Crim. App.

2015) (citing Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005); Almanza, 686 S.W.2d


                                                6
at 171). Here, Hardesty did not object to the charge at trial. Thus, “reversal is required only if

the error was fundamental in the sense that it was so egregious and created such harm that the

defendant was deprived of a fair and impartial trial.” Id. “Charge error is egregiously harmful if

it affects the very basis of the case, deprives the defendant of a valuable right, or vitally affects a

defensive theory.” Id. “Egregious harm is a ‘high and difficult standard’ to meet, and such a

determination must be ‘borne out by the trial record.’” Id. (quoting Reeves v. State, 420 S.W.3d

812, 816 (Tex. Crim. App. 2013)).

               Jailhouse-informant testimony under Article 38.075 is treated similarly to

accomplice-witness testimony under Article 38.14. See Tex. Code Crim. Proc. art. 38.14 (“A

conviction cannot be had upon the testimony of an accomplice unless corroborated by other

evidence tending to connect the defendant with the offense committed; and the corroboration is

not sufficient if it merely shows the commission of the offense.”); Phillips v. State, 463 S.W.3d

59, 67 (Tex. Crim. App. 2015) (“Just as Article 38.14 was enacted to address how to handle

accomplice-witness testimony, Article 38.075 was enacted to similarly address the unreliability

of jailhouse-witness testimony.”); see also Brooks v. State, 357 S.W.3d 777, 781–82

(Tex. App.—Houston [14th Dist.] 2011, pet. ref’d).            Therefore, under an egregious-harm

analysis, the omission of a jailhouse-informant instruction is “generally harmless” unless the

corroborating evidence is “‘so unconvincing in fact as to render the State’s overall case for

conviction clearly and significantly less persuasive.’” Herron v. State, 86 S.W.3d 621, 632

(Tex. Crim. App. 2002) (quoting Saunders v. State, 817 S.W.2d 688, 692 (Tex. Crim. App.

1991)); see Brooks, 357 S.W.3d at 782.

               In this case, the evidence that “tended to connect” Hardesty to the offense, apart

from Parrish’s testimony, was strong. This evidence included: (1) Hardesty’s statements to Julia

                                                  7
Driskell that Wilbert had hired him to kill a woman, that Wilbert had bought a gun for him to

use, that he had shot the woman, and that after shooting her, he gave the gun to their friend, Greg

Pickens; (2) ballistics evidence establishing that the gun found in the possession of Greg Pickens

was the same gun that was used in the shooting; (3) Detective Kaiser’s testimony that the gun

Wilbert had purchased in October 2014 was the same gun that was found in the possession of

Pickens; (4) the testimony of the Watkins’ next-door neighbor, William Camacho, that he had

seen a man dressed in dark clothing outside his house several days before the murder and

identified this man, both in a photo lineup and at trial, as Hardesty; (5) Hardesty’s statements to

Romel that he had been hired to “get[] some lady to move out of the area,” that when his efforts

failed, he went to her house dressed in black and shot her, and that the woman who had agreed to

pay him for the job “never really paid him” but instead “took off for Florida”; and (6) Driskell’s

testimony that Hardesty knew Jack Dutton, Wilbert’s bodyguard, and that she had seen Wilbert

and Hardesty together. We cannot say that this evidence is “so unconvincing in fact as to render

the State’s overall case for conviction clearly and significantly less persuasive.” See State v.

Ambrose, 487 S.W.3d 587, 598–99 (Tex. Crim. App. 2016); Casanova v. State, 383 S.W.3d 530,

539–40 (Tex. Crim. App. 2012); Herron, 86 S.W.3d at 633–34; Brooks, 357 S.W.3d at 782–84.

We also observe that the State mentioned the jailhouse-informant testimony on only one

occasion during its closing argument and instead emphasized the other evidence in the case,

summarized above. On this record, we cannot conclude that Hardesty was “egregiously harmed”

by the omission of the jailhouse-informant instruction in the jury charge.

               We overrule Hardesty’s first issue.




                                                 8
Hearsay

              In his second issue, Hardesty asserts that the district court abused its discretion in

admitting hearsay statements made by Wilbert, which came in through the testimony of two

witnesses. The first witness was Kenneth, who testified as follows:



       Q.                    And did you, at some point, have a disagreement with Jo
                             Ann Wilbert over one of your rent houses?


       A.                    Yes, I did.


       Q.                    And tell us what happened with that.


       A.                    I had a—I owned a rent house down at 1310 Pine that I
                             rented to a Hispanic couple. And she seemed like she
                             didn’t like Hispanics.


       Q.                    Did she say that that was a problem? I’m talking about Jo
                             Ann.


       A.                    Yes.


       Q.                    And did your relationship go south from that point on?


       A.                    Yes, it did. She told us—


       [Defense counsel]:    Hearsay, Your Honor. Objection.


       [Statement]:          Judge, it’s the statement of a co-conspirator.


       [The court]:          It’s admissible.


       Q.                    What did she say?

                                                9
       A.                    She told us if we rented that house to the Hispanic couple,
                             that we would regret it for the rest of our life.


The second witness was Wilbert’s former friend, John Horn, who testified as follows:



       Q.                    Did something cause your relationship with Ms. Wilbert to
                             sort of start coming apart?


       A.                    Yes.


       Q.                    Did she ever talk to you about one of her neighbors?


       A.                    Yes.


       Q.                    What did she tell you about that?


       [Defense counsel]:    Objection; hearsay, Your Honor.


       [The court]:          Sustained.


       [The State]:          Your Honor, part of this goes to the relationship we’re
                             talking about. We’ve already put in evidence that Jo Ann
                             Wilbert is the intellectual author of this solicitation of
                             capital murder. If someone else was asked to do something
                             beforehand like that, that’s relevant to the solicitation.


       [The court]:          It’s a statement by a co-conspirator. I’ll allow it.


       [The State]:          Thank you.


       Q.                    Tell us about that, sir.


       A.                    She had a real hate for Mrs. Christine Watkins, the
                             neighbor. And that progressed. I mean, I thought, you
                             know, it was just someone angry. It was over a boundary
                                                10
                             dispute that she had with the neighbor because she had also
                             owned the house next to Mrs. Wilbert.


       Q.                    Did she ask you to assist her in any way to do anything to
                             Christine Watkins?


       A.                    Yes, she did. . . . [S]he wanted me to come into this
                             courtroom and testify that I saw [her neighbor] trespassing.
                             I didn’t do it. And that’s when everything went really bad
                             because I told her, look, I’m not going to come into court
                             and lie about it.


       Q.                    Besides asking you to commit perjury in court, did she ask
                             you to do anything else to cause harm to Christine
                             Watkins?


       A.                    She asked me on several different times if I knew someone
                             in the KKK that wouldn’t mind getting rid of a ni**er.


              Hardesty argues that Wilbert’s statements to both Kenneth and Horn were

inadmissible hearsay. See Tex. R. Evid. 801(d) (defining hearsay as out-of-court statement

offered in evidence to prove truth of matter asserted), 802 (providing that hearsay is generally

inadmissible unless exception applies). The State argues in response that the statements were

admissible under the co-conspirator exception to the hearsay rule, which provides that a

statement is not hearsay if it is offered against an opposing party and “was made by the party’s

co-conspirator during and in furtherance of the conspiracy.”      Tex. R. Evid. 801(e)(2)(E).

Hardesty contends that the co-conspirator exception does not apply here, because Wilbert’s

statements were made neither “during” nor “in furtherance of” any conspiracy. See Byrd v.

State, 187 S.W.3d 436, 440–44 (Tex. Crim. App. 2005); Meador v. State, 812 S.W.2d 330, 333–

34 (Tex. Crim. App. 1991); see also Tex. Penal Code § 15.02(a) (“A person commits criminal



                                              11
conspiracy if, with intent that a felony be committed, he agrees with one or more persons that

they or one or more of them engage in conduct that would constitute the offense; and he or one

or more of them performs an overt act in pursuance of the agreement.”).

               We agree with Hardesty that Wilbert’s statements to Kenneth and Horn did not

fall under the co-conspirator exception to the hearsay rule. For that exception to apply, a

conspiracy must have existed at the time the statements were made.           See Deeb v. State,

815 S.W.2d 692, 697 (Tex. Crim. App. 1991); Williams v. State, 790 S.W.2d 643, 644

(Tex. Crim. App. 1990). A conspiracy exists if, with intent that a felony be committed, a person

agrees with another that they, or one of them, engage in conduct constituting an offense, and one

of them performs an overt act in pursuance of the agreement. See Tex. Penal Code § 15.02(a).

There is no evidence in the record indicating that at the time Wilbert made her statements to

Kenneth and Horn, any person had agreed with Wilbert to murder Christine. Thus, Wilbert’s

statements were not made “during” a conspiracy, nor were they made “in furtherance of” a

conspiracy. Accordingly, the statements were inadmissible under the co-conspirator exception to

the hearsay rule, and the State never urged an alternative basis for their admission. See Byrd,

187 S.W.3d at 443–44 (explaining that co-conspirator exception to hearsay rule is “very

narrow”).

               However, we cannot conclude on this record that Hardesty was harmed by the

admission of the statements. “The erroneous admission of evidence is non-constitutional error.”

Gonzalez v. State, 544 S.W.3d 363, 373 (Tex. Crim. App. 2018) (citing Taylor v. State, 268

S.W.3d 571, 592 (Tex. Crim. App. 2008)). “Non-constitutional errors are harmful, and thus

require reversal, only if they affect Appellant’s substantial rights.” Id. (citing Tex. R. App. P.

44.2(b)). The Court of Criminal Appeals has construed this to mean that “an error is reversible

                                               12
only when it has a substantial and injurious effect or influence in determining the jury’s verdict.”

Id. (citing Taylor, 268 S.W.3d at 592). “If we have a fair assurance from an examination of the

record as a whole that the error did not influence the jury, or had but a slight effect, we will not

overturn the conviction.” Id.

               When assessing the harm from improperly admitted hearsay, it is well established

that “[i]f the fact to which the hearsay relates is sufficiently proved by other competent and

unobjected to evidence . . . the admission of the hearsay is properly deemed harmless.”

Anderson v. State, 717 S.W.2d 622, 627 (Tex. Crim. App. 1986); see Marshall v. State, 210

S.W.3d 618, 630–31 (Tex. Crim. App. 2006); Brooks v. State, 990 S.W.2d 278, 287 (Tex. Crim.

App. 1999); Burks v. State, 876 S.W.2d 877, 898 (Tex. Crim. App. 1994); Temple v. State, 342

S.W.3d 572, 600–01 (Tex. App.—Houston [14th Dist.] 2010), aff’d, 390 S.W.3d 341 (Tex.

Crim. App. 2013); Matz v. State, 21 S.W.3d 911, 912–13 (Tex. App.—Fort Worth 2000, pet.

ref’d); see also Thorpe v. State, No. 03-18-00070-CR, 2019 Tex. App. LEXIS 4292, at *8–9

(Tex. App.—Austin May 24, 2019, no pet. h.) (mem. op., not designated for publication).

               In this case, the hearsay statements relate to Wilbert’s hostility toward the

Watkins. Hardesty asserts that he was harmed by this evidence because it established the

element of “remuneration,” i.e., that Wilbert paid him to kill Christine. In this case, evidence of

remuneration was essential to elevate the offense of murder to capital murder. See Tex. Penal

Code § 19.03(a)(3) (providing that person commits offense of capital murder if “the person

commits the murder for remuneration or the promise of remuneration”).

               However, there was other evidence presented at trial of Wilbert’s hostility toward

the Watkins that was admitted without objection. For example, when Kenneth was asked if

Wilbert had told him that renting a house to a Hispanic couple would be “a problem,” Kenneth

                                                13
testified without objection, “Yes.” Kenneth also testified without objection that after they had

rented to a Hispanic couple, Wilbert was “constantly harassing” them, had filed a lawsuit against

them, and, when that failed, had reported them to the City for code violations that were found to

be without merit.

               Regarding Horn’s testimony, Horn testified without objection that Wilbert had

asked him if he “knew someone in the KKK that wouldn’t mind getting rid of a ni**er.” 3

Similarly, a letter that Wilbert had written to Horn, referring to the lawsuit that Wilbert had filed

against the Watkins, was admitted without objection. In the letter, Wilbert told Horn that he

needed to testify against the Watkins and referred to either Christine or Kenneth using a racial

slur:



        John


        I know you don’t want to testify in court but I paid you good money, I treated you
        good and you are going to keep up your end of the bargain. You need to testify
        against the ni**er or I will subpoena you as a witness. If you fail to show up for
        court—it is a felony.


        You owe me big time.


This evidence establishes Wilbert’s hostility toward the Watkins and tends to show that she was

willing to pay others “good money” to harm them.




        3
          Although Hardesty objected when the State first asked Horn to describe what Wilbert
had told him regarding the Watkins, he failed to obtain a running objection to that line of
questioning. See Valle v. State, 109 S.W.3d 500, 509 (Tex. Crim. App. 2003) (explaining that
defendant “must object each time the inadmissible evidence is offered or obtain a running
objection”). Thus, when the State asked Horn additional questions relating to Wilbert’s
statements, they were admitted without objection.
                                                 14
              Additionally, there was evidence in the record other than Wilbert’s statements to

Kenneth and Horn tending to show that Hardesty had killed Christine for remuneration,

specifically the statements that Hardesty had made to Julia Driskell and Jermie Romel. In those

statements, Hardesty admitted that Wilbert had hired him to kill a woman, that he had done so,

and that Wilbert had failed to pay him for the murder. In light of this and other evidence, we

cannot conclude that Wilbert’s statements had “a substantial and injurious effect or influence in

determining the jury’s verdict.” Thus, their admission was harmless. See Anderson, 717 S.W.2d

at 627 (concluding that any error in admission of hearsay was harmless when other evidence

establishing motive to commit murder was admitted without objection).

              We overrule Hardesty’s second issue.


                                        CONCLUSION

              We affirm the district court’s judgment of conviction.



                                            __________________________________________
                                            Gisela D. Triana, Justice

Before Chief Justice Rose, Justices Triana and Kelly

Affirmed

Filed: August 29, 2019

Do Not Publish




                                               15
