Andrew Lenard Hardesty v. State ( 2019 )

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
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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:
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(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
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