Ryan Lance Hudnall v. State

Opinion issued July 31, 2008

In The

Court of Appeals

For The

First District of Texas  

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NO. 01-07-00858-CR

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RYAN LANCE HUDNALL, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 179th District Court

Harris County, Texas

Trial Court Cause No. 1128677

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MEMORANDUM OPINION

A jury found appellant, Ryan Lance Hudnall, guilty of the offense of aggravated kidnapping, ⁽¹⁾ and the trial court assessed his punishment at confinement for fifteen years. Appellant presents six issues for our review. In his fourth and fifth issues, appellant contends that the evidence is legally and factually insufficient to support his conviction. In his second and third issues, appellant contends that the trial court erred in allowing the State to call a codefendant to testify and in refusing to instruct the jury that it could draw no inference of appellant's guilt from the codefendant's silence. ⁽²⁾ In his first issue, appellant contends that the trial court erred in admitting the codefendant's testimony in violation of his Sixth Amendment ⁽³⁾ right to confrontation. In his sixth issue, appellant contends that the trial court erred in determining his punishment absent a valid waiver of his right to have the jury determine his punishment.

We reverse and remand.

Factual Background

Mike Duke, the complainant, testified that in 1995, he and appellant's brother, Rodney Hudnall, became instant friends when the complainant, a general manager at a local Comp USA store in Oklahoma City, worked with Rodney as his boss. In 1997, Comp USA promoted the complainant to a position as a regional manager, and Rodney moved to Houston to work under the complainant. In 1999, when Kinko's hired the complainant, Rodney left Comp USA and went to Kinko's. By 2004, the complainant and Rodney both worked as store managers for different Best Buy stores in the Houston area. The complainant and Rodney opened two restaurants together in 2004. Rodney contributed $105,000 to the venture before both restaurants went bankrupt in 2004 and 2006. Rodney eventually sued the complainant, alleging that his money in the restaurants was a loan, not a capital contribution. Before April 2, 2006, however, the trial court dismissed the lawsuit.

The complainant further testified that on April 2, 2006, he called Rodney and left him a voice message. Rodney returned his call, and the complainant told Rodney that he would talk to Rodney after he finished work at Best Buy. Leaving work at approximately 3:00 p.m., the complainant was on his cellular telephone talking with Rodney and walking towards his car, when, suddenly, he heard car brakes squealing behind him. An African-American assailant quickly got out of the passenger seat of a car, pointed a gun at his head, and screamed, "[Y]ou're under arrest [and] [g]et on the ground." The complainant dropped to the ground and was handcuffed with a zip-tie while a gun was mashed against his head. The other assailant, who was Caucasian, had a gun pointed at the complainant while the first assailant attempted to force the complainant into the car. The complainant last remembered seeing a police officer before paramedics took the complainant to the hospital.

Dawn Creason testified that, on April 2, 2006 at approximately 3:00 p.m., after parking her car at a Best Buy store, a white, four-door, "Lincoln Town Car" pulled into the parking lot and two men, wearing black ski masks and "SWAT" and "NARCOTICS" shirts, exited the car with guns. The men forced the complainant onto his knees with his hands behind his head. Initially, Creason believed that the two men were police officers, but this impression faded when she saw the two men slam the complainant onto the ground and kick him while attempting to force him into their car. Pasadena Police Department Officer J. Eilers ran out of Best Buy, causing the assailants to flee without the complainant. Creason described one of the assailants as an African-American male and the other assailant as an African-American or a Hispanic male.

Officer Eilers testified that, while working off-duty as a security officer at Best Buy, the two assailants attempted to force the complainant into a white "Mercury," and, when Eilers ran outside, the assailants fled, leaving the complainant handcuffed with a zip-tie and bleeding. Eilers could not identify either the race of the assailants or the model of the Mercury. However, he remembered that the Mercury's license plate number was "Y22GMJ." Pasadena Police Department Officer R. Hunt testified that on April 2, 2006, after the offense and less than one mile from Best Buy, police officers located a red, Ford Taurus with a front license plate number that matched the license plate number of the car that Officer Eilers saw at the scene. The back license plate of the Ford Taurus was missing.

Pasadena Police Department Detective I. Villarreal testified that on April 14, 2006, he learned from The Hertz Corporation ("Hertz") that appellant had rented a white Mercury Grand Marquis from April 1, 2006 through April 2, 2006. ⁽⁴⁾ Appellant secured the rental with his Visa credit card before paying cash. Hertz's business records also showed that on March 31, 2006, appellant's friend, Clayton Adams, tried to change the reservation. With the credit card lead from Hertz, Villarreal obtained appellant's Visa credit records, which showed a transaction at approximately midnight on April 1, 2006 with the Carter Bonding Company in Big Cabin, Oklahoma.

Detective Villarreal further testified that he obtained appellant's cellular telephone records, which showed that appellant's cellular telephone was used in Kansas City. However, appellant's cellular telephone records also showed that on April 1, 2006 and April 2, 2006, his cellular telephone was used in Houston. Specifically, the records showed that the telephone company's tower closest to the Best Buy registered three hits and the tower closest to the Leisure Inn ⁽⁵⁾ registered thirty-eight hits from appellant's cellular telephone. ⁽⁶⁾ When Villarreal and local law enforcement arrested appellant in Kansas City, they did not discover any evidence in appellant's house which directly linked him to the offense. ⁽⁷⁾  

Clayton Adams, after being granted use immunity, testified that on March 31, 2006, he, appellant, and Derrick Henderson left their hometown of Kansas City for a car trip to Houston. Appellant's brother, Rodney, had told Adams that he would pay Adams $500 to go on the trip. When the State asked what he was going to do when he got to Houston, Adams responded, "Just going to basically go down there and talk to somebody and intimidate some guy about some money that was owed." Adams explained that the money was owed to appellant's "brother." ⁽⁸⁾ Although he did not know many details of the plan, Adams did remember that they were to wear "D.E.A. shirts."

Adams explained that he did not make it with appellant and Henderson to Houston because, when they were in Big Cabin, Oklahoma, police officers stopped Henderson, who was driving the car, for making an illegal left turn. The officers discovered that Adams was on parole and was not allowed outside of the Kansas City metropolitan area. Adams was returned to Kansas City, and appellant and Henderson continued their car trip to Houston. After April 2, 2006, Adams talked to Rodney about what occurred in Houston, and Rodney said, "[I]t just didn't go right."

Adams, after listening to a tape recording made by the Pasadena Police Department, conceded that on June 7, 2006, he had previously told police officers that Henderson had explained to him that the person they were going to intimidate was being "watched," and, when they actually confronted the person, they were going to "[j]ust talk to him, put hands on him if need be[,] . . . [and] zip-tie him." Adams also recalled that they were going to use a rental car for transportation while in Houston. On cross-examination, Adams stated that he was on parole for two felony narcotics convictions and, although he had not been paid, the State offered him $5,000 "for talking."

Alicia McGrew, appellant's ex-girlfriend, testified that she had dated and lived with appellant for approximately six months. Appellant initially told McGrew that he went to Houston "[t]o retrieve some money" from an escort service that he and Rodney owned. Appellant subsequently told McGrew that he had reserved a rental car for use in Houston with his credit card, but then paid cash for it. When asked if appellant had told her what kind of car he had rented, McGrew responded, "I believe it was either a Crown Victoria, or something very similar." Appellant and McGrew also "talked about [appellant] dressing up as a police officer and having full police uniforms and picking--trying to pick somebody up because of a debt they [sic] owed his brother to try to get the money back from him or to try to do something to him." Appellant explained to McGrew that a "guy borrowed a lot of money" from Rodney. McGrew reemphasized that,

[Appellant] told me that he rented a car, that he went to go get the guy from his place of employment, and that he was dressed up as an officer and that he arrested the guy at his place of employment. And then when the guy got in the car, the guy realized that he was not actually being arrested, because the car had leather seats and no police officer's car would have leather seats and maybe even a sunroof, but I'm not sure about that.

On cross-examination, McGrew agreed that she and appellant stopped seeing each other under less than "amicable circumstances" and that she had been arrested in relation to the offense, but she explained that the case against her was dismissed. McGrew also conceded that she suffered from an anxiety disorder and is bipolar, for which she takes medications such as Lamictal, Risperdal, and Xanax.

Legal Sufficiency

In his fourth issue, appellant argues that the evidence is legally insufficient to support his conviction because a "review of the facts . . . shows that a completed offense of aggravated kidnapping never occurred." He asserts that the "most the evidence shows is an attempt to commit the offense of aggravated kidnapping."

We review the legal sufficiency of the evidence by viewing the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex. Crim. App. 2005). In conducting our legal sufficiency review, we are mindful that the trier of fact is the sole judge of the weight and credibility of the evidence. Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim. App. 2000). Thus, when performing our review, we may not reevaluate the weight and credibility of the evidence and substitute our judgment for that of the fact-finder. Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). We must resolve any inconsistencies in the evidence in favor of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000).  

A person commits the offense of aggravated kidnapping if the person intentionally or knowingly abducts another person and uses or exhibits a deadly weapon during the commission of the offense. Tex. Penal Code Ann. § 20.04(b) (Vernon 2003). "Abduct" includes restraining a person with intent to prevent his liberation by using or threatening to use deadly force. Id. § 20.01(2) (Vernon 2003). "Restrain" means to restrict a person's movements without consent, so as to interfere substantially with the person's liberty, by moving the person from one place to another or by confining the person. Id. § 20.01(1) (Vernon 2003). Restraint is without consent if it is accomplished by force, intimidation, or deception. Id. § 20.01(1)(A). No specific time requirement exists for determining whether a restraint has taken place. Hines v. State, 75 S.W.3d 444, 447-48 (Tex. Crim. App. 2002).

Here, viewing the evidence in the light most favorable to the verdict, the complainant testified that appellant's brother, Rodney, believed that the complainant owed Rodney $105,000 from a loan to Rodney and the complainant's failed business venture. Adams testified that on March 31, 2006, he, appellant, and Henderson were to drive from Kansas City to Houston in order to "intimidate" and "zip-tie" a "guy" that owed money to appellant's brother. McGrew testified that appellant told her that he went from Kansas City to Houston to "try to do something" to a person, "at his place of employment," who owed a debt to his brother, Rodney. Appellant explained to McGrew that he rented a car, dressed as a police officer, and "arrested" somebody. However, appellant added that the person that he attempted to arrest "realized that he was not actually being arrested."

In accord with Adam's and McGrew's testimony and circumstantial evidence, the complainant, Creason, and Officer Eilers testified that two assailants, dressed as police officers, actually restrained the complainant and attempted to force the complainant into a car, while both the complainant and Creason testified that the assailants were armed with firearms. Also, the complainant and Eilers both testified that the two assailants handcuffed the complainant with zip-ties. A rational trier of fact could have found, beyond a reasonable doubt, that appellant intentionally or knowingly abducted the complainant and exhibited a deadly weapon during the commission of the offense. See Holmes v. State, 873 S.W.2d 123, 125-26 (Tex. App.--Fort Worth 1994, no pet.) (concluding that evidence was legally sufficient to support defendant's aggravated kidnapping conviction when defendant used force to unsuccessfully make complainant go into complainant's car). Accordingly, we hold that the evidence is legally sufficient to support the jury's finding that appellant committed the offense of aggravated kidnapping.

We overrule appellant's fourth issue.

Henderson's Testimony

In his second and third issues, appellant argues that the trial court erred in allowing "the State to call . . . Henderson to the stand" and in refusing to instruct the jury that it could draw no inference of appellant's guilt from Henderson's silence.
Before the State called Henderson to testify, Henderson's attorney informed the trial court that, because Henderson pleaded not guilty at his trial and his case was on appeal, Henderson would assert his Fifth Amendment privilege against self-incrimination, even if it subjected him to criminal contempt charges. The State argued that Henderson could not assert the Fifth Amendment privilege because Henderson waived the privilege by testifying at his trial. The trial court denied appellant's request that Henderson testify outside the presence of the jury. Appellant then objected to Henderson's testimony as a violation of his right to confrontation and added, "You can't knowingly put [Henderson] on in front of [the] jury if he's going to take [t]he Fifth." The trial court granted Henderson use immunity and stated, "We all know [Henderson's] going to take [t]he Fifth." Partially in front of and outside the presence of the jury, the following exchange occurred:

[The State]: And you previously testified in a proceeding in this court on August 24th, 2007, correct?

[Henderson]: Plead the Fifth.

[The State]: State asks witness be instructed to testify.

[The trial court]: Give me that date again.

[The State]: August 24th, 2007.

[The trial court]: Mr. Henderson, you're instructed to answer the question. The question was: Did you previously testify on August 24th, 2007, in this court?

[Henderson]: I plead the [F]ifth; because my case is on appeal, Your Honor.

[The State]: And the State would ask that the--

[Appellant]: Objection. This is improper at this point. This is clearly prejudicial.

[The trial court]: It's overruled.

[Appellant]: Can we have a running objection to any questions that elicit the Fifth Amendment?

[The trial court]: You may.

[The State]: And you were previously granted--you were granted use immunity today and previously shown a form signed by the Judge of this [c]ourt granting you use immunity for any testimony that you give here today, correct?

[Henderson]: Plead the Fifth.

[The State]: The State asks that the witness be instructed to answer the question.

[The trial court]: You're instructed to answer that question, sir.

[Henderson]: I still plead the Fifth.

[Appellant]: Renew my objection and ask for a mistrial, Judge.

[The trial court]: Denied.

[The State]: And did you testify previously that you had done a lot of soul-searching and you were ready to honor, obey[,] and glorify God?

[Appellant]: I'm going to object as to the relevance of that, in the first place.

[The trial court]: Sustained.

[Henderson]: Plead the Fifth.

[The trial court]: Just a moment. The objection was sustained.

[The State]: Goes to his reason for testifying previously.

[The trial court]: It's overruled. Go ahead.

[The State]: Did you testify in a previous proceeding that [appellant] asked you to come down to Houston?

[Appellant]: Objection, improper impeachment; and also, he--it's improper impeachment.

[Trial court]: It's overruled.

[Henderson]: I, once again, plead the [F]ifth.

[The State]: State asks that the defendant--or that the witness be instructed to answer this question.

[Appellant]: I'd ask for a limiting instruction, once again, renew our objection, Judge.

[The trial court]: A limiting instruction as to what?

[Appellant]: That his failure to answer these particular questions can't be viewed in any way, shape[,] or form as damaging my client in reference to his invoking the Fifth Amendment, his silence.

[The trial court]: A limiting instruction, at this point, your motion is denied. You're instructed to answer the last question, sir.

[Henderson]: I still plead the Fifth, Your Honor.

[The State]: Did you testify in a previous proceeding, on August 24th, 2007, that [appellant] asked you to come down to Houston and participate in an ordeal to admit [sic] fear into someone, to either make this guy submit money back that they had felt he had stolen or go to a court date or something?

[Appellant]: Objection as to leading the witness, Judge.

[The trial court]: Don't lead your witness, sir.

[Appellant]: Ask for a ruling on this particular question.

[The trial court]: Objection sustained.

[Appellant]: Ask for an instruction for the jury to disregard the question.

[The trial court]: Disregard the last question by the State, ladies and gentlemen.

[Appellant]: Once again, ask for a mistrial.

[The trial court]: Denied.

[The State]: And, Judge, at this time the State would ask for permission to treat this witness as hostile.

[Appellant]: Object, Your Honor. The witness is invoking his rights. That does not make him hostile. It makes him basically--

[The trial court]: Approach, please. . . . Take the jury out, please. (Outside jury's hearing)[.] So, basically, the whole idea is to put all this witness'[s] testimony before the jury[?]

[Henderson]: I, once again, plead the [F]ifth.

[The State]: We want to ask him about relevant portions of what he testified to, yes, Judge, for sure.

[The trial court]: So, you'll get to look at a transcript; and he could say, I'm taking [t]he Fifth. You . . . just pass it to the jury?

[The State]: At this time we're ordering him to answer the questions, because he doesn't have a Fifth Amendment privilege, not now. He's previously testified to matters that are important in this proceeding, and certainly relevant, since he has knowledge of what happened. So, we're asking that the [c]ourt order him to answer the questions. If he refuses to answer those questions, then we'd ask the [c]ourt to hold him in contempt. And we'd also, of course, ask we be entitled to impeach him regarding the prior testimony. . . .

[The trial court]: I have great concern about unfairly prejudicing [appellant] to go forward. . . . And we are trying [appellant]. We're not trying [Henderson]. . . .

[The State]: And[,] he doesn't have a right to take the [F]ifth.

[The trial court]: We're not in complete agreement on that. We're not going to proceed with anymore questions of [Henderson]. Now, what else do you have? . . .

[The State]: Not that I can think of. . . .

[Appellant]: I would just renew our motion for mistrial based on the fact the witness stated he had already been convicted of this offense. . . . (Jury enters courtroom)[.]

[Appellant]: I object to any further testimony on the part of [Henderson].

[The trial court]: Objection sustained. He may stand down.

When a witness has a valid Fifth Amendment privilege, it is generally error for the State to call a witness when it knows that the witness will assert his or her Fifth Amendment privilege. Coffey v. State, 796 S.W.2d 175, 177 n.4 (Tex. Crim. App. 1990); Mathis v. State, 469 S.W.2d 796, 801 (Tex. Crim. App. 1971); Washburn v. State, 164 Tex. Crim. 448, 452, 299 S.W.2d 706, 708 (1957). On the other hand, after a witness is granted immunity, it is generally permitted for the State to call a witness to the stand to assert his or her Fifth Amendment privilege, even if the State knows that the witness will assert his or her Fifth Amendment privilege. Coffey, 796 S.W.2d at 177. The rationale is that, when a witness is granted immunity for his or her testimony, the witness does not have a valid basis for refusing to testify. Id. at 179.

However, the Texas Court of Criminal Appeals has found error when the State called a convicted codefendant to the stand, knowing that the codefendant would invoke his Fifth Amendment privilege. Vargas v. State, 442 S.W.2d 686, 687 (Tex. Crim. App. 1969); see Coffey, 796 S.W.2d at 177 n.4. The State had told the jury that the codefendant had "already been convicted of the offense" and the court did not address the fact that the witness did not have a valid Fifth Amendment privilege. Vargas, 442 S.W.2d at 687; see Coffey, 796 S.W.2d at 177 n.4. Also, the Texas Court of Criminal Appeals has explained that even if it is "constitutionally permissible" to call a witness asserting his or her Fifth Amendment privilege, the State could "unfairly prejudice[]" a defendant by asking "a series of damaging questions in such a way as to invite the jury to assume that the answers to each question would have been in the affirmative." Coffey, 796 S.W.2d at 179 n.6.

In Taylor v. State, the defendant was convicted of the offense of murder, and, at his trial, although circumstantial evidence showed that the defendant murdered the complainant, the State, knowing that the witness would assert her Fifth Amendment privilege, asked her if she had told police officers that the defendant had murdered the complainant. 653 S.W.2d 295, 298-301 (Tex. Crim. App. 1983). The witness asserted her Fifth Amendment privilege. Id. at 299. The Texas Court of Criminal Appeals reversed, explaining that, "[o]f course, with the [State's] assertion of the fact that [the witness] told an investigator [the defendant] 'shot [the complainant],' any reasonable doubt harbored by a juror was no doubt dispelled." Id. at 301. The court reasoned that the State "was not entitled to have the witness invoke the Fifth Amendment repeatedly and, knowing she would do so, seize upon her refusal to testify as an opportunity to place before the jury parts of her [inadmissible] hearsay statement." Id. at 303-04. The court also stated, "Neither was it possible to erase this critical 'evidence' from the jury's collective consciousness by an instruction to disregard it." Id. at 301.

Here, appellant objected to Henderson's testimony and unsuccessfully sought for Henderson to testify outside of the jury's presence. The State and the trial court knew that Henderson would assert the Fifth Amendment privilege. Although the trial court did eventually stop the State's questioning of Henderson because it had "great concern about unfairly prejudicing" appellant, it did not do so until after Henderson, known by the jury to be a codefendant, had repeatedly asserted his Fifth Amendment privilege. While asserting the Fifth Amendment privilege, Henderson explained that his case was on "appeal," and the State subsequently questioned Henderson as to whether he had testified in "a previous proceeding" that he had come with appellant to Houston. As the trial court instructed the jury in its charge on the law of parties, Henderson's testimony served to establish appellant's guilt because it showed that Henderson was a convicted codefendant who had come to Houston with appellant to aid him in the commission of the offense. See Taylor, 653 S.W.2d at 301 (finding reversible error due to State's calling witness who asserted her Fifth Amendment privilege because State's questioning of witness's inadmissible statement secured defendant's conviction); Gearns v. Berghuis, 104 F. App'x 517, 520 (6th Cir. 2004) (reasoning that Confrontation Clause was violated when State used witness's assertion of the Fifth Amendment privilege to establish elements of its case). Although the trial court did instruct the jury to disregard the State's question to Henderson about whether appellant came with him to Houston to strike "fear" into someone in order to get back "stolen" money, such a question dispelled "any reasonable doubt harbored by a juror" and the trial court's instruction to disregard could not "erase this critical 'evidence' from the jury's collective consciousness." See Taylor, 653 S.W.2d at 301.   

The State was not entitled to call Henderson, knowing that he would assert his Fifth Amendment privilege, to "seize upon [his] refusal to testify as an opportunity to place before the jury" inadmissible evidence. See id. at 303-04. Although the State's questioning of Henderson was "not technically testimony," it formed "a crucial link" in the proof against appellant and was the "equivalent . . . of testimony" because the State's "reliance upon the privilege created a situation in which the jury might improperly infer both that the statement[s] had been made and that [they] were true." See Douglas v. Alabama, 380 U.S. 415, 419, 85 S. Ct. 1074, 1077 (1965); see also Coffey, 796 S.W.2d at 179 n.6 (noting that it was error for State to call witness and ask damaging questions as witness asserts Fifth Amendment privilege because jury assumes answers would be in affirmative). Accordingly, we hold that the trial court erred in allowing the State to question Henderson in the jury's presence and in admitting Henderson's testimony to the extent that it did.

In his third issue, appellant argues that the trial court erred in denying his request for a limiting instruction to the jury that it could draw no inference of appellant's guilt from Henderson's invocation of his Fifth Amendment privilege against self-incrimination.

Texas Rule of Evidence 105(a) provides in part, "When evidence which is admissible . . . for one purpose but not admissible . . . for another purpose is admitted, the [trial] court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly . . . ." Tex. R. Evid. 105(a). Texas Rule of Evidence 513(d) provides in part, "[U]pon request[,] any party against whom the jury might draw an adverse inference from a claim of privilege is entitled to an instruction that no inference may be drawn therefrom." Tex. R. Evid. 513(d). A defendant has a right to remain silent when arrested, and the exercise of this right may not be used against the defendant as a circumstance tending to show guilt. Sanchez v. State, 707 S.W.2d 575, 578 (Tex. Crim. App. 1986).

It is undisputed that appellant requested a limiting instruction that the jury draw no inference against him from Henderson's invocation of the Fifth Amendment privilege against self-incrimination. The State implicated Henderson in the offense, starting with the opening statement. Moreover, Adams and Ramirez implicated Henderson as a party to the offense. In fact, because appellant was subsequently charged as a party to Henderson's offense, "such an inference could also tend to incriminate appellant, his co-defendant." Torres v. State, 137 S.W.3d 191, 198 (Tex. App.--Houston [1st Dist.] 2004, no pet.). In other words, "by creating an inference that [Henderson] was guilty, the State needed only then to prove that appellant 'solicited, encouraged, directed, aided, or attempted to aid'" Henderson. Id.; see also McKaine v. State, 170 S.W.3d 285, 293 (Tex. App.--Corpus Christi 2005, no pet.) (reasoning that "witness's assertion of his or her Fifth Amendment rights and refusal to testify is not evidence and the jury is not allowed to draw any inferences from such actions"). Accordingly, we hold the trial court erred in denying appellant's request for a limiting instruction.

Next, we must determine whether appellant suffered harm. See Tex. R. App. P. 44.2. We assume, without deciding, that the trial court's errors in allowing Henderson to repeatedly invoke his Fifth Amendment privilege and in denying appellant's request for a limiting instruction to the jury that it could draw no adverse inference of appellant's guilt from Henderson's invocation of his Fifth Amendment privilege against self-incrimination were nonconstitutional errors subject to a harm analysis under Texas Rule of Appellate Procedure 44.2(b). See id.

Rule 44.2(b) requires us to disregard a nonconstitutional error that does not affect a criminal defendant's substantial rights. See id. We may not reverse a defendant's conviction for nonconstitutional error if, after examining the record as a whole, we have fair assurance that the error did not have a substantial and injurious effect or influence in determining the jury's verdict. Garcia v. State, 126 S.W.3d 921, 927 (Tex. Crim. App. 2004). "A conviction should not be overturned unless, after examining the record as a whole, a court concludes that an error may have had 'substantial influence' on the outcome of the proceeding." Burnett v. State, 88 S.W.3d 633, 637 (Tex. Crim. App. 2002) (quoting Bank of Nova Scotia v. United States, 487 U.S. 250, 256, 108 S. Ct. 2369, 2374 (1988)). In other words, if we have "'a grave doubt' that the result was free from the substantial influence of the error," then we must reverse. Id. A "grave doubt" means that, "in the judge's mind, the matter is so evenly balanced that he feels himself in virtual equipoise as to the harmlessness of the error." Id. at 637-38. Thus, the Texas Court of Criminal Appeals has concluded that "'the presence of overwhelming evidence of guilt plays a determinative role'" in this analysis. Neal v. State, No. AP-75406, 2008 WL 2437667, at *14 (Tex. Crim. App. June 18, 2008) (quoting Motilla v. State, 78 S.W.3d 352, 356 (Tex. Crim. App. 2002)).

Setting aside Henderson's testimony, the State's evidence of appellant's involvement in this case, in summary, consisted of the following: (1) appellant's brother, Rodney, believed that the $105,000 that he gave to the complainant in a failed business venture was an unpaid loan, rather than a lost capital contribution, (2) appellant traveled with Henderson from Kansas City to Houston two days before the attack and left Houston to return to Kansas City hours after the attack, (3) appellant rented a car in Houston which resembled the car that the two assailants used in their attack on the complainant, (4) Henderson rented a hotel room the night before the attack, (5) Adams, appellant's friend, testified that he, Henderson, and appellant were going "to intimidate some guy" and "zip-tie" him, and (6) appellant's ex-girlfriend, McGrew, testified that appellant told her that he went to Houston to rent a car, dress as a police officer, and "arrest" a guy.

No direct evidence linked appellant to the offense nor could anyone identify appellant or Henderson as one of the assailants. Other than Henderson's testimony, the State's case was principally based on Adam's and McGrew's testimony. Although their testimony certainly linked appellant to the offense, Henderson's testimony dispelled "any reasonable doubt harbored by a juror" by conclusively proving the State's case. See Taylor, 653 S.W.2d at 301. The jury charge authorized appellant's conviction if Henderson committed the offense of aggravated kidnapping and appellant, "with the intent to promote or assist the commission of the offense, if any, solicited, encouraged, directed, aided or attempted to aid Derrick Henderson to commit the offense." Not only did Henderson's assertion of the Fifth Amendment privilege against self-incrimination leave the jury with the indelible impression that Henderson had already been convicted of the offense, as he stated that his case was on "appeal," the State's questioning of Henderson also left the jury with the indelible impression that appellant directly participated with Henderson in committing the offense by accompanying Henderson on a trip to Houston. This indelible impression was only compounded when the trial court refused to grant appellant's limiting instruction that Henderson's assertion of the Fifth Amendment privilege against self-incrimination could not be used against him. See Torres, 137 S.W.3d at 198.

We cannot conclude with "fair assurance," as the rule of law requires, that the trial court's errors in allowing Henderson to repeatedly invoke his Fifth Amendment privilege and in denying appellant's request for a limiting instruction to the jury that it could draw no adverse inference of appellant's guilt from Henderson's invocation of his Fifth Amendment privilege against self-incrimination "did not influence the jury, or had but a slight effect" on the jury's determination on whether appellant committed the offense of aggravated kidnapping. See Reese v. State, 33 S.W.3d 238, 243 (Tex. Crim. App. 2000). We hold that the errors affected appellant's substantial rights. See Tex. R. App. P. 44.2(b).

We sustain appellant's second and third issues. ⁽⁹⁾  

Conclusion

We reverse the judgment of the trial court and remand the cause for proceedings consistent with this opinion.

Terry Jennings

Justice

Panel consists of Justices Taft, Jennings, and Bland.

Do not publish. Tex. R. App. P. 47.2(b).

1.

See Tex. Penal Code Ann. § 20.04(b) (Vernon 2003).

2.

See U.S. Const. amend. V.

3.

See U.S. Const. amend. VI.

4.

Jason McCoin, a manager for Hertz, testified that Hertz's business records showed that, on April 1, 2006 at approximately 10:04 a.m., appellant rented a white, Mercury Grand Marquis, which was returned on April 2, 2006 at approximately 4:29 p.m. The business record also showed that the Mercury Grand Marquis's license plate number was "260LHN."

5.

Eyennidth Ramirez, a front desk clerk at the Leisure Inn in Houston, testified that on April 1, 2006, a business record showed that "Derrick Henderson" stayed overnight at the Leisure Inn. Ramirez also identified Henderson when police officers showed her a photographic array. Ramirez remembered that, when Henderson checked out the next day, he was "worried."

6.

Houston Police Department Sergeant B. McDaniel testified that, in urban areas, a cellular telephone caller is usually within two miles of the cellular telephone tower that initially processes a telephone call. Appellant's cellular telephone records also showed that, after the rental car under appellant's name was returned to Hertz at approximately 4:20 p.m. on April 2, 2006, appellant quickly made his way back to Kansas City.

7.

Detective Villareal did testify that police officers found a black shirt with the word "HOMICIDE," "BDUs," i.e., "utility pants," and zip-ties, which did not match any of the zip-ties recovered at the scene of the offense.

8.

Adams did not know the name of appellant's "brother."

9.

Having sustained appellant's second and third issues, we need not address his first issue, in which he asserts that the trial court erred in admitting Henderson's testimony in violation of appellant's Sixth Amendment right to confrontation; his fifth issue, in which he asserts that the evidence is factually insufficient to support his conviction; and his sixth issue, in which he asserts that the trial court erred in determining his punishment absent a valid waiver of his right to have the jury determine his punishment. See Tex. R. App. P. 47.1.