                        COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                            NOS. 02-09-00426-CR
                                 02-09-00427-CR
                                 02-09-00428-CR

GARY NOLEN HUDDLESTON                                             APPELLANT

                                       V.

THE STATE OF TEXAS                                                     STATE


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          FROM THE 415TH DISTRICT COURT OF PARKER COUNTY

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                       MEMORANDUM OPINION1
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                               I. INTRODUCTION

      A jury found Appellant Gary Nolen Huddleston guilty of two counts of

aggravated kidnapping and one count of conspiracy to commit aggravated

robbery. Huddleston pleaded ―true‖ to the enhancement allegations, and the jury

assessed punishment at life imprisonment in the two aggravated kidnapping


      1
      See Tex. R. App. P. 47.4.
causes and at ninety-nine years’ imprisonment for the conspiracy cause. In four

points, Huddleston challenges the sufficiency of the evidence. We will affirm.

                   II. FACTUAL AND PROCEDURAL BACKGROUND

        On January 16, 2007, Casey McCarter received a call at work from his

mother, who lives near Casey’s residence. She asked Casey to come home

because she saw someone that she did not recognize at Casey’s house. When

Casey arrived home, he was confronted by an armed man wearing all black, a

mask, and sunglasses. The man told Casey, ―We’re just here for the money. Do

what you’re told and no one will get hurt.‖ When Casey began to question the

man, a second armed intruder stepped out of the kitchen behind him; the man

told Casey to shut up and that they would ask the questions. 2 The men made

Casey sit in a chair, and they blindfolded him.

        The men interrogated Casey about employees of the Wells Fargo Bank

where his wife worked. Casey became angry at one point, took off the blindfold,

stood up, and grabbed the barrel of No. 1’s gun. No. 2 pointed a black Beretta

pistol at Casey’s head and threatened to kill him. Following this exchange, the

intruders blindfolded Casey again and bound his arms and legs to a chair with zip

ties.

        Casey’s wife Dawn McCarter arrived home from work soon thereafter. The

intruders confronted Dawn while brandishing firearms, blindfolded her, and

        2
       At trial the two intruders were referred to as ―No. 1‖ and ―No. 2.‖ We will
do the same.


                                         2
interrogated the McCarters for several hours about Wells Fargo Bank’s

employees, procedures, and safeguards.          Casey testified that during this

interrogation, the men threatened to cut off his fingers if he did not respond

truthfully to the questions. Dawn informed the men that another bank employee

was scheduled to open the bank the next morning instead of her. The duo’s plan

continued to evolve as they learned more information about the bank and its

procedures.

      The next morning, No. 2 took Casey’s vehicle to the other bank

employee’s house to disable her car, in the hopes that Dawn would then have to

open the bank. No. 1 drove Dawn in her car to the bank, leaving Casey tied to a

chair in the house. However, while No. 2 was attempting to disable the bank

employee’s car, he was spotted by that employee’s husband, who gave chase

and called the police. No. 2 used a cell phone to call No. 1. No. 2 informed No.

1 that he was fleeing from the police and told No. 1 to abort their plan to rob the

bank. As a result, No. 1 left Dawn in her own vehicle, and he fled with No. 2.

      The police conducted DNA testing on a clear drinking glass, a Styrofoam

cup, and a paper napkin that had been used by the kidnappers in the McCarters’

home.     DNA testing revealed that Huddleston was the major contributor of

genetic material to a scientific certainty.3   In Casey’s vehicle, police found a

handgun, a pair of sunglasses consistent with those worn by No. 1 and No. 2

      3
       The probability of selecting an unrelated person at random who could
have been the source of the DNA was 1 in 460 quintillion, or expressed another
way, 1 in 70 billion times the world’s population.

                                         3
during the kidnapping, and a blood stain on the driver’s side window.           DNA

testing of the blood stain proved, to a scientific certainty, that Huddleston was the

single contributor of genetic material and that he had been inside that vehicle.

      Cell phone records revealed a number of calls between Huddleston and

his codefendant, Cary McGowen, during the alleged offenses. Police learned

that Huddleston and McGowen were cellmates during a period of incarceration

and that Huddleston had five prior convictions for offenses ranging from armed

bank robbery in two different states to involvement in a ―chop-shop‖ operation.4

      A search of Huddleston’s home also revealed a gym bag similar to the one

described by the McCarters containing a wig, zip ties, gloves, a police scanner, a

screwdriver, a hammer, and a crowbar. Casey identified the hammer, which had

been taken from his garage, as his father’s.

                            III. SUFFICIENCY OF THE EVIDENCE

      Huddleston’s first three points complain of the sufficiency of the evidence

to support his conviction for conspiracy to commit aggravated robbery.

Huddleston argues in his first two points that the evidence supporting the

conspiracy conviction is factually insufficient because the evidence shows, at

best, Huddleston’s mere presence at the crime scene at some point in time and

because there is a lack of evidence to show an agreement between Huddleston

      4
        A ―chop-shop‖ is generally a location or business that disassembles stolen
vehicles for the purpose of selling them for parts. The State presented evidence
of Huddleston’s previous conviction for the removal or alteration of vehicle
identification numbers during the punishment phase of trial.


                                         4
and McGowen. Huddleston argues in his third point that the evidence is legally

insufficient to support his conspiracy conviction because it fails to show an

agreement that a gun would be used to rob the bank. In his fourth point,

Huddleston argues that the evidence is factually insufficient to support his

aggravated kidnapping convictions because there was no evidence that he was

the individual who displayed a deadly weapon or restrained the victims and there

was no evidence that he was in agreement with the actions taken by his co-

defendant.

      Because the Texas Court of Criminal Appeals recently held in Brooks v.

State that there is no meaningful distinction between the Clewis v. State5 factual

sufficiency standard and the Jackson v. Virginia6 legal sufficiency standard, we

will analyze Huddleston’s arguments under the standard set forth in Jackson.

See Brooks, 2010 WL 3894613, at *8.

                             A. Standard of Review

      In reviewing the sufficiency of the evidence to support a conviction, we

view all of the evidence in the light most favorable to the prosecution in order to

determine whether any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt. Jackson, 443 U.S. at 319, 99

S. Ct. at 2789; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).

      5
      922 S.W.2d 126 (Tex. Crim. App. 1996), overruled by Brooks v. State, No.
PD-0210-09, 2010 WL 3894613, at *8 (Tex. Crim. App. Oct. 6, 2010).
      6
       443 U.S. 307, 99 S. Ct. 2781 (1979).


                                        5
      This standard gives full play to the responsibility of the trier of fact to

resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable

inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319, 99 S. Ct.

at 2789; Clayton, 235 S.W.3d at 778. The trier of fact is the sole judge of the

weight and credibility of the evidence. See Tex. Code Crim. Proc. Ann. art. 38.04

(Vernon 1979); Brown v. State, 270 S.W.3d 564, 568 (Tex. Crim. App. 2008),

cert. denied, 129 S. Ct. 2075 (2009).       Thus, when performing a sufficiency

review, we may not re-evaluate the weight and credibility of the evidence and

substitute our judgment for that of the factfinder. Dewberry v. State, 4 S.W.3d

735, 740 (Tex. Crim. App. 1999), cert. denied, 529 U.S. 1131 (2000). Instead,

we Adetermine whether the necessary inferences are reasonable based upon the

combined and cumulative force of all the evidence when viewed in the light most

favorable to the verdict.@ Hooper v. State, 214 S.W.3d 9, 16B17 (Tex. Crim. App.

2007). We must presume that the factfinder resolved any conflicting inferences

in favor of the prosecution and defer to that resolution. Jackson, 443 U.S. at 326,

99 S. Ct. at 2793; Clayton, 235 S.W.3d at 778.

      The standard of review is the same for direct and circumstantial evidence

cases; circumstantial evidence is as probative as direct evidence in establishing

the guilt of an actor. Clayton, 235 S.W.3d at 778; Hooper, 214 S.W.3d at 13.

                          B. Aggravated Kidnapping

      To prove aggravated kidnapping, the State must prove that the accused

intentionally or knowingly abducted another person and used or exhibited a

                                        6
deadly weapon during the commission of the offense. Tex. Penal Code Ann.

20.04(b) (Vernon 2003); Hines v. State, 75 S.W.3d 444, 446 (Tex. Crim. App.

2002).   ―Abduct‖ means to restrain a person with the intent to prevent his

liberation by either secreting or holding him in a place where he is not likely to be

found, or using or threatening to use deadly force.        Tex. Penal Code Ann.

§ 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).   Such restraint is without consent if it is accomplished by force,

intimidation, or deception. Id. § 20.01(1)(A). Thus, kidnapping is a completed

offense when (1) a restraint is accomplished and (2) there is evidence that the

actor had the specific intent to prevent liberation by secretion or by the use or

threatened use of deadly force. Santellan v. State, 939 S.W.2d 155, 163 (Tex.

Crim. App. 1997) (holding that the only requirement for restraint is that the

interference with liberty be substantial); Jenkins v. State, 248 S.W.3d 291, 293

(Tex. App.—Houston [1st Dist.] 2007, pet ref’d).

      For certain offenses, such as burglary, fingerprints or DNA evidence

constitute direct evidence of the ultimate fact to be proved and therefore are

sufficient to sustain a conviction without further identification evidence. Clayton,

235 S.W.3d at 779.      When DNA does not constitute direct evidence of the

ultimate fact to be proved, it merely establishes the defendant’s presence at the

scene at some time.         Id.   However, this type of evidence constitutes


                                         7
circumstantial evidence to be considered with the remaining direct and

circumstantial evidence. Id.

      Here, Casey’s testimony establishes that two men, both brandishing

firearms, restrained him by threatening to hurt or kill him and later by tying his

arms and legs to a chair with zip ties. See Tex. Penal Code Ann. § 20.01(1)(A);

Santellan, 939 S.W.2d at 163; see also Hines, 75 S.W.3d at 448 (holding that

brandishing a shotgun and ordering a bank employee to disable the bank’s alarm

and open the vault constituted restraint); Jenkins, 248 S.W.3d at 295 (holding

sufficient evidence of restraint existed when defendant forced his way into a

home, brandished a gun, and refused to let victims leave). Casey was still bound

to his chair with zip ties and had to be freed by police the following morning. The

McCarters’ testimony further establishes that the two men also restrained Dawn

in the couple’s living room by threatening her while brandishing firearms and by

forcing her to move from her home to the bank in the passenger side of her

vehicle. See Hines, 75 S.W.3d at 446.

      Huddleston argues that because the McCarters never identified him as one

of the intruders and because the DNA evidence placing him at the McCarters’

house does not establish when he was there, the evidence was insufficient to

identify him as one of the kidnappers.       But evidence at trial, including the

testimony of Chief Edward Crowdis and Officer Anne Hollis of the Springtown

Police Department, who conducted a crime scene investigation in the McCarters’

home, further corroborated the McCarters’ testimony and identified Huddleston


                                        8
and McGowen as the two men who kidnapped the McCarters and conspired to

rob the bank. See Clayton, 235 S.W.3d at 779. Officer Hollis located DNA

evidence showing Huddleston’s presence inside the McCarters’ home and

Casey’s vehicle. The McCarters testified that they did not know Huddleston or

McGowen, that the two men had never been granted access to their house or

vehicles, and that the DNA evidence that police found in their house had been

left during the intrusion and kidnapping. The same type of zip ties used to tie

Casey to the chair, in addition to a hammer and crowbar taken from the

McCarters’ house, were later found in Huddleston’s belongings. Evidence at trial

showed that Huddleston repeatedly used his cell phone near the McCarters’

home on the morning of the offense to call McGowen, whose DNA was also

found at the McCarter’s house. The DNA evidence circumstantially established

Huddleston’s presence at the crime scene, and when combined with the

McCarters’ testimony and subsequent evidence discovered by police, was

sufficient to prove Huddleston’s identity as one of the kidnappers. See Clayton,

235 S.W.3d at 779 (holding evidence sufficient for murder conviction when

defendant’s bloody prints were found at the scene and additional circumstantial

evidence existed).

      Viewing the evidence in the light most favorable to the jury’s verdict, we

hold that a rational trier of fact could have found beyond a reasonable doubt that

Huddleston was one of the kidnappers who restrained the McCarters while

exhibiting a firearm and that he acted with the specific intent to prevent their


                                        9
liberation through force and threats of force. See Jackson, 443 U.S. at 319, 99

S. Ct. at 2789. Accordingly, we hold that the evidence is sufficient to support

Huddleston’s   convictions     for   aggravated   kidnapping,   and   we   overrule

Huddleston’s fourth point.

               C. Conspiracy to Commit Aggravated Robbery

      A person commits criminal conspiracy if, with intent that a felony be

committed, (1) he agrees with one or more persons that they or one or more of

them engage in conduct that would constitute the offense and (2) he or one or

more of them performs an overt act in pursuance of the agreement. Tex. Penal

Code Ann. § 15.02(a) (Vernon 2003); McCann v. State, 606 S.W.2d 897, 898

(Tex. Crim. App. [Panel Op.] 1980). An agreement constituting a conspiracy may

be inferred from the acts of the parties.     Tex. Penal Code Ann. § 15.02(b)

(Vernon 2003); McCann, 606 S.W.2d at 898.

      Huddleston argues that there is insufficient evidence to show an

agreement with McGowan to commit aggravated robbery or that a gun would be

used during the robbery. But the evidence produced at trial suggests otherwise.

We have already detailed the evidence identifying Huddleston as one of the

kidnappers. Additionally, the McCarters testified that both men who broke into

their house interrogated them and formulated a plan to rob a Wells Fargo Bank

the following morning.       Phone records admitted at trial show multiple calls

between the two of them on the morning of the planned bank robbery. Dawn

was compelled to provide both men with maps and diagrams of the bank and to


                                         10
explain the bank’s security measures, procedures, and other employees,

including their home addresses. The statements made by the kidnappers were

indicative of a conspiracy to commit an aggravated robbery: ―We’re just here for

the money,‖ ―We’ll ask all the questions,‖ ―We have another one of the tellers

already abducted and we’ve got a phone connection between us and if you lie to

us, we’re going to cut your fingers off.‖

      Huddleston performed numerous overt acts, including breaking into the

McCarters’ home, threatening the McCarters while brandishing a gun, driving

Dawn to the bank the following morning, and deliberately planning the robbery

with McGowan. The evidence at trial showed both men exhibited a firearm at all

times while the McCarters were restrained, kidnapped, and interrogated. The

McCarters testified that the men planned to abduct the second bank employee

inside the bank the following morning to gain access to the safe. Both men wore

gloves to avoid leaving fingerprints and wore masks to conceal their identities.

When McGowan was discovered flattening the tires of the bank supervisor’s car,

he called Huddleston for help while eluding police.        Huddleston picked up

McGowen, and the two fled together. McGowen left a handgun loaded with

fifteen rounds of live ammunition in one vehicle and fled with Huddleston in

another.

      Viewing the evidence in the light most favorable to the verdict, we hold that

a rational trier of fact could have inferred that Huddleston agreed with McGowen

to commit aggravated robbery and that Huddleston performed overt acts in


                                            11
pursuance of the agreement. See Tex. Penal Code Ann. § 15.02(a); Jackson,

443 U.S. at 319, 99 S. Ct. at 2789; McCann, 606 S.W.2d at 898; see also

Campbell v. State, 128 S.W.3d 662, 671–72 (Tex. App.—Waco 2003, no pet.)

(noting that it is doubtful one can exhibit a deadly weapon during the commission

of a felony without using it to achieve an intended result). Accordingly, we hold

that the evidence is sufficient to support Huddleston’s conviction for conspiracy to

commit aggravated robbery, and we overrule Huddleston’s first, second, and

third points.

                                    IV. CONCLUSION

      Having overruled Huddleston’s four points, we affirm the trial court’s

judgments.


                                                   SUE WALKER
                                                   JUSTICE

PANEL: GARDNER, WALKER, and GABRIEL, JJ.

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

DELIVERED: December 2, 2010




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