Former prosecutor’s cases under review in wake of alleged withheld evidence

By Mycah Hatfield

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    GALVESTON COUNTY, Texas (KTRK) — The Galveston County District Attorney’s Office terminated a prosecutor whom it said “failed to disclose exculpatory information in a criminal trial.”

Clay Hearrell, who joined the district attorney’s office in March 2020, was terminated almost a year after the murder trial in question.

Thomas Overhouse and Jessica Ebbs represented Rondell Smith, who was charged with murder and aggravated assault with a deadly weapon in a June 2019 double shooting in Texas City. Smith was accused of shooting Richard Steans to death and wounding Kendrek Gordon.

The case went to trial in September 2022.

“It started in the middle of the jury selection process, where Clay (Hearrell) had come up to us and said, ‘Hey, there’s something I need to tell you guys. This other guy – he’s saying he was never shot,'” Overhouse recalled.

According to Overhouse, he and Ebbs laughed off Hearrell’s statement because of ongoing issues with uncooperative witnesses throughout the case. He said Hearrell promised to provide an official disclosure of the information that they did not immediately receive.

The defense attorneys said they later realized something was off when Gordon, the surviving victim, was not being called by the prosecutor to testify during the trial.

Ebbs interviewed Gordon, who was being held in jail on unrelated matters, in the middle of trial.

“It’s at this point that he tells her, not verbatim, but basically, ‘Well, your guy was not the one who was the shooter,'” Overhouse said.

Gordon allegedly told Ebbs that the description and skin tones of the suspect and Smith did not match.

“He says, ‘Well, a few weeks ago, I told the district attorney’s office,'” Overhouse said of Ebbs’ conversation with Gordon.

When Hearrell learned that the defense attorneys spoke to Gordon, Overhouse said the prosecutor left the courtroom and returned with the formal disclosure he promised days before recounting details from the investigator’s July 25 meeting with Gordon.

In it, he writes, “Gordon made the statements, ‘No body shot me,’ ‘it’s all water under the bridge,’ and ‘he ain’t shot nobody.'”

In the document dated Sept. 15, he admitted that he relayed Gordon’s statement “no body shot me” to defense attorneys two days prior but said he followed up with the investigator who spoke to Gordon and he provided all of the statements listed.

Defense attorneys called Gordon to the stand, where they said he gave the same testimony, and Smith was found not guilty of murder by a jury in about 15 minutes.

“The juries here, they take crime very seriously, so a life sentence is definitely a possibility of what would have happened in a situation like this,” Overhouse said.

Overhouse adds that Gordon did not provide an explanation for why the information was not shared.

“His only answer when we were in chambers discussing the issue was, ‘I don’t know. I don’t know what happened,'” Overhouse said.

The district attorney’s office later told defense attorneys that Hearrell had a lot going on at the time, according to Overhouse.

Overhouse and his colleagues said they requested the investigator’s notes on the conversation with Gordon the following day and were told they would not be released because they were a “work product.”

The Galveston County District Attorney’s Office said in a statement to ABC13 that they received a criminal complaint in November 2022 regarding the evidence being withheld. A spokesperson said they immediately recused themselves, and a judge appointed the Fort Bend County District Attorney’s Office to investigate the case in April 2023. Based on the findings of the investigation, Hearrell was terminated on July 27, 2023.

Hearrell continued trying cases after the district attorney’s office was alerted to the issue.

“Mr. Hearrell was allowed to continue trying cases after the September 2022 incident, because we did not believe that the conduct had occurred in any other cases,” a spokesperson for the GCDAO said in a statement. “To date, that continues to hold true. Ultimately, Mr. Hearrell’s termination was a personnel decision.”

“These things don’t come to light very often,” Overhouse said. “They don’t really happen. It’s just huge. The implications of this are far-reaching.”

An audit is being conducted of all his cases that resulted in a conviction or deferred adjudication, according to the district attorney’s office.

“We have already notified the defendants and their attorneys in all such cases so that they may take appropriate action,” a GCDAO spokesperson said in a statement Wednesday. “We have received no additional formal complaints concerning Mr. Hearrell, nor have any other similar issues been discovered in his cases under review.”

Hearrell formerly worked at the Comal County District Attorney’s Office. ABC13 reached out to Comal County to find out if his cases were being reviewed for similar issues but did not receive an answer.

The issue of withholding evidence was taken to a grand jury for possible criminal charges on Sept. 21, but he was not indicted.

Overhouse said he and his colleagues are continuing to press for the investigator’s notes to be released. Based on what they find in those documents, he said they may file a complaint with the Texas State Bar Association.

Hearrell declined to comment on the record to ABC13 on Wednesday over the phone.

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