                           COURT OF APPEALS
                            SECOND DISTRICT OF TEXAS
                                 FORT WORTH

                                NO. 02-16-00208-CR


ROMON J. HENDERSON                                                 APPELLANT

                                         V.

THE STATE OF TEXAS                                                      STATE


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           FROM THE 396TH DISTRICT COURT OF TARRANT COUNTY
                       TRIAL COURT NO. 1446985R

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                           MEMORANDUM OPINION1

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      In a pretrial confession to the police, appellant Romon J. Henderson

admitted that he and his half-brother, Ra’an Henderson, broke into a business to

steal guns and money and that Ra’an fired gunshots at one of the business’s

employees.       That night, the employee died from gunshot wounds.      A jury




      1
          See Tex. R. App. P. 47.4.
convicted appellant of capital murder, and the trial court sentenced him to

confinement for life.

      In appellant’s sole point on appeal, he argues that the trial court erred by

overruling his hearsay objection to testimony by Anticia Jackson, Ra’an’s

girlfriend at the time of the shooting, concerning a statement that Ra’an made to

her that connected Ra’an to the murder weapon. We conclude that in light of

appellant’s confession that independently linked him and Ra’an to the shooting,

no harm could have resulted from the trial court’s admission of the challenged

testimony. Therefore, we affirm.

                              Background Facts

      One night in April 2014, Ra’an and appellant broke into 4 A Good Auction

to burglarize the business and to rob Shelia Johnson, who worked there. Ra’an

previously worked at the auction house, and he knew Johnson would likely be

staying overnight on the premises to protect the property from invasion.

Appellant stated in his pretrial confession that he and Ra’an had planned on

holding Jackson at gunpoint and stealing guns and money. During the burglary,

by appellant’s admission, Ra’an fired shots at Johnson, and both Ra’an and

appellant fled the scene. The following morning, Johnson was found dead by co-

owners Beverly Carter and Bob Crowder.

      Jackson, who was dating Ra’an, visited Ra’an at a jail. During her visit

with Ra’an, Ra’an asked Jackson to get rid of everything that belonged to him

that was in her apartment and in her car. Ra’an then made a “gun” hand gesture.


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Jackson found Ra’an’s gun on the top shelf of her closet and threw it in a sewer

drain.

         Later, police officers interviewed Jackson, and she took them to the gun

disposal site. The police found the gun. A firearm identification expert matched

casings found at the scene of the murder to that gun.

         A grand jury indicted appellant with committing capital murder by

intentionally killing Johnson while committing burglary or robbery. The trial court

appointed counsel to represent appellant, and he pled not guilty.         The State

opted to not seek the death penalty in the event of appellant’s conviction.

         At trial, appellant objected to Jackson’s testimony that linked Ra’an to the

murder weapon as hearsay.           The State contended that Jackson’s testimony

about Ra’an’s statement was excepted from exclusion as hearsay because it

qualified as an admission by a co-conspirator and as a statement against

interest.        The court overruled appellant’s hearsay objection and allowed

Jackson’s testimony.         The court also admitted a recording of appellant’s

confession. The jury found appellant guilty of capital murder. The trial court

imposed an automatic life sentence,2 and appellant brought this appeal.

                            Even Assuming Error, No Harm

         On appeal, appellant argues that Ra’an’s statement to Jackson was

inadmissible hearsay.         He contends that the statement was not subject to


         2
             See Tex. Penal Code Ann. § 12.31(a)(2) (West Supp. 2016).


                                            3
admission as non-hearsay on the ground that it was a statement by a co-

conspirator in furtherance of a conspiracy. See Tex. R. Evid. 801(e)(2)(E). He

asserts that the statement was not in furtherance of the conspiracy to burglarize

4 A Good auction and rob Johnson and was therefore inadmissible. See id.

Appellant asserts that the conspiracy of breaking into 4 A Good Auction and

robbing Johnson was already complete when Ra’an spoke to Jackson and that,

therefore, Ra’an’s statement to Jackson was merely an act of concealment to

cover up the crime.

      The State relies on Texas Rule of Evidence 801(e)(2)(E) to assert that

Ra’an’s statement to Jackson was admissible because it was “advancing” the

original and only conspiracy of burglarizing 4 A Good Auction and robbing

Johnson. See id. The State also relies upon Texas Rule of Evidence 803(24),

contending that Ra’an’s statement to Jackson was excepted from hearsay

because it was a statement against interest. See Tex. R. Evid. 803(24).

      Under the facts presented here, we need not resolve these disputes

concerning the application of these evidentiary rules. Instead, we conclude that

even if the admission of Jackson’s testimony was error, the error was harmless

and does not warrant reversal.3



      3
        An error analysis is not required when a harm analysis is dispositive. See
Wooten v. State, 400 S.W.3d 601, 607 (Tex. Crim. App. 2013) (“Finding our harm
analysis thus dispositive, we need not address whether the trial court did, in fact,
err not to include the instruction.”).


                                         4
      Assuming without deciding that the trial court erred by admitting the

challenged testimony, we must still conduct a harm analysis to determine

whether the error calls for reversal of the judgment. Tex. R. App. P. 44.2. When

the error is of a non-constitutional character, we apply rule 44.2(b) and disregard

the error if it did not affect appellant’s substantial rights. Tex. R. App. P. 44.2(b);

see Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998) (op. on reh’g),

cert. denied, 526 U.S. 1070 (1999).           The erroneous admission of hearsay

evidence is non-constitutional error. See Johnson v. State, 967 S.W.2d 410, 417

(Tex. Crim. App. 1998).

      A substantial right is affected when the error had a substantial and

injurious effect or influence in determining the jury’s verdict. King v. State, 953

S.W.2d 266, 271 (Tex. Crim. App. 1997) (citing Kotteakos v. United States, 328

U.S. 750, 776, 66 S. Ct. 1239, 1253 (1946)). Conversely, an error does not

affect a substantial right if we have “fair assurance that the error did not influence

the jury, or had but a slight effect.” Solomon v. State, 49 S.W.3d 356, 365 (Tex.

Crim. App. 2001); Johnson, 967 S.W.2d at 417. In making this determination, we

review the record as a whole, including any testimony or physical evidence

admitted for the jury’s consideration, the nature of the evidence supporting the

verdict, and the character of the alleged error and how it might be considered in

connection with other evidence in the case. Motilla v. State, 78 S.W.3d 352, 355

(Tex. Crim. App. 2002).




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      A trial court’s error in admitting evidence is harmless when similar facts are

proved by other properly admitted evidence. Sandone v. State, 394 S.W.3d 788,

794 (Tex. App.—Fort Worth 2013, no pet.). For example, in Sanders v. State, we

held the erroneous admission of evidence could not cause harm when other

unobjected-to evidence established the facts of the case. 422 S.W.3d 809, 817–

18 (Tex. App.—Fort Worth 2014, pet. ref’d). There, the appellant contested a

trial court’s admission of a recording of a 911 call between the operator and a

hospital employee reciting an assault on the victim, contending that the recording

contained   hearsay   and     violated   the   appellant’s   constitutional   right   of

confrontation. Id. at 816–17. Even assuming the trial court’s error in admitting

the recording, we reasoned no harm occurred because unobjected-to testimony

from the victim along with concessions from appellant’s counsel during an

opening statement and during closing argument established the same facts of

the assault. Id. at 817–18.

      Similarly, if the trial court erred by admitting Jackson’s testimony over

appellant’s hearsay objection, we conclude that appellant was not harmed by the

admission because appellant’s pretrial confession connects him to the crime and

substantiates the same facts as Jackson’s testimony. See id. at 818. The record

shows that apart from the admission of the challenged testimony, appellant’s

confession detailed his active participation in the burglary and robbery. In the




                                          6
confession,4 after some coaxing from the investigating officers, appellant

conceded the following:

       Ra’an and appellant discussed breaking into 4 A Good Auction and
        committing theft there;

       Ra’an knew the business had money and guns that he could steal;

       Ra’an and appellant were going to split the money;

       Ra’an knew that a woman was likely staying overnight at the auction
        business;

       Ra’an planned on holding the woman at gunpoint to get money from
        her;

       Ra’an brought a gun with him and wore a mask;

       Ra’an brought appellant with him in case there was more than one
        person in the auction house when they got there;

       Ra’an and appellant entered the auction house together;

       appellant took a bag into the store to carry out any items that he and
        Ra’an stole;

       Ra’an and Johnson exchanged gunshots, and Ra’an later told appellant
        that Johnson “might have been shot”;

       Ra’an and appellant fled the scene together;

       Ra’an “ran out of bullets”;

       Ra’an later told appellant that he had returned to the scene that night
        and did not see any police activity;


      4
       Appellant filed a motion to suppress the confession. Before trial, the trial
court denied the motion to suppress. On appeal, appellant does not challenge
the denial of that motion.


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       because no police arrived at the auction house after the shooting,
        appellant believed that Ra’an had killed Johnson;

       as opposed to Ra’an, appellant was not “stupid enough to go back to
        [the] crime scene”; and

       Ra’an had a girlfriend named Anticia, and the gun that Ra’an used to
        shoot Johnson could be at Anticia’s house.

      Although appellant asserts that Jackson’s testimony was the basis for

admitting the gun into evidence, for the firearms expert’s testimony, and for the

imputed guilt from Ra’an’s connection to the murder weapon, the record is clear

that appellant’s own confession shows he was a party to the crime and that he

knew Ra’an shot Johnson. Thus, in light of appellant’s confession that explicitly

and directly connected Ra’an to the gun and connected both Ra’an and him to

Johnson’s murder, we conclude that any error in admitting Jackson’s testimony,

which cumulatively served to connect Ra’an to the gun and the murder, did not

have a substantial or injurious effect in determining appellant’s conviction.

      We conclude that, in the context of the entire case against appellant, the

trial court’s alleged error in admitting the testimony in question did not have a

substantial or injurious effect on the jury’s verdict and did not affect appellant’s

substantial rights. See King, 953 S.W.2d at 271. Thus, we disregard the alleged

error. See Tex. R. App. P. 44.2(b). We overrule appellant’s only point.




                                         8
                                     Conclusion

         Having overruled appellant’s only point, we affirm the judgment of the trial

court.


                                                     /s/ Terrie Livingston

                                                     TERRIE LIVINGSTON
                                                     CHIEF JUSTICE

PANEL: LIVINGSTON, C.J.; GABRIEL and KERR, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: July 27, 2017




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