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 

 

1See Tex. R. App. P. 47.4.
2

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.2The 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 

 

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

do the same.
3

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.3In 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.
4

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 

 

4A ―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.
5

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 codefendant.

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

State that there is no meaningful distinction between the Clewis v. State5factual 

sufficiency standard and the Jackson v. Virginia6legal 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).
6

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 
7

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 
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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 
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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 
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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 
11

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 
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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