             In the
        Court of Appeals
Second Appellate District of Texas
         at Fort Worth
      ___________________________

           No. 02-17-00317-CR
      ___________________________

  GERRY HANDSBOROUGH, Appellant

                      V.

          THE STATE OF TEXAS


  On Appeal from the 372nd District Court
         Tarrant County, Texas
       Trial Court No. 1396805D


Before Sudderth, C.J.; Pittman and Birdwell, JJ.
  Memorandum Opinion by Justice Pittman
                          MEMORANDUM OPINION

      Gerry Handsborough appeals from his murder conviction and seventy-five year

sentence. See Tex. Penal Code Ann. § 19.02. In two points on appeal, he challenges

the sufficiency of the evidence to support his conviction and the trial court’s

admission of five photographs over his rule 403 objections. Tex. R. Evid. 403. We

affirm.

                        SUFFICIENCY OF THE EVIDENCE1

      Handsborough acknowledges in his first point that the evidence shows

someone murdered Eric Peterson, an employee of Military Gun Supply in Fort

Worth, but he claims that the evidence is not sufficient to establish that he was the

perpetrator.

I.    Sufficiency Due-Process Standard of Review

      Federal due process requires that the State prove beyond a reasonable doubt

every element of the crime charged. Jackson v. Virginia, 443 U.S. 307, 316, 99 S. Ct.

2781, 2787 (1979); see U.S. Const. amend. XIV. In our due-process evidentiary-

sufficiency review, we view all the evidence in the light most favorable to the verdict

to determine whether any rational factfinder could have found the crime’s essential

elements beyond a reasonable doubt. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789;

Queeman v. State, 520 S.W.3d 616, 622 (Tex. Crim. App. 2017).

      1
       Because Handsborough’s first point requires a discussion of the evidence, we
dispense with a background section.


                                          2
      The factfinder alone judges the evidence’s weight and credibility. See Tex. Code

Crim. Proc. Ann. art. 38.04; Queeman, 520 S.W.3d at 622. Thus, when performing an

evidentiary-sufficiency review, we may not re-evaluate the evidence’s weight and

credibility and substitute our judgment for the factfinder’s. Queeman, 520 S.W.3d at

622. Instead, we determine whether the necessary inferences are reasonable based on

the evidence’s cumulative force when viewed in the light most favorable to the

verdict. Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App. 2015); see Villa v. State,

514 S.W.3d 227, 232 (Tex. Crim. App. 2017) (“The court conducting a sufficiency

review must not engage in a ‘divide and conquer’ strategy but must consider the

cumulative force of all the evidence.”). We must presume that the factfinder resolved

any conflicting inferences in favor of the verdict, and we must defer to that resolution.

Murray, 457 S.W.3d at 448–49.

II.   Evidence Adduced at Trial

      A.     The Crime and Police Response

      Steven Hunt, a former employee of Military Gun Supply, testified that on

December 13, 2014, he was working at the store with Peterson. Business was slow

that day, so Hunt had spent time gunsmithing in the back of the store. A few minutes

before closing time, which was at 6:00 p.m., he heard “a lot of loud noises” that

sounded like fireworks. But he then noticed smoke coming through the warehouse

door; when he looked through the office, he saw “broken glass and things broken.”



                                           3
       Hunt called out to Peterson, but he did not answer. Hunt grabbed his shotgun

and began looking around the storefront and warehouse area. When he circled back

to the retail area, he saw Peterson lying on the ground with multiple gunshot wounds,

so he locked the front door, grabbed his cell phone to call the store’s owner, and

simultaneously called 911 from the office phone. He stayed in the retail area until the

police arrived at 6:08 p.m.

       Although Hunt did not think Peterson was breathing, he still performed CPR.

He did not think Peterson was alive when the police arrived. He did not know who

shot Peterson and never saw anyone come into the store.

       Fort Worth police officer Brian Hardin was dispatched to the gun store in

response to the murder. He and Officer Quintana noticed “a good amount of”

smoke lingering in the air when they arrived. They backed out, made a tactical plan,

and then went back inside. When they found Peterson, they took him outside so that

he could get medical attention.

       Officer Nicholas Maddock also responded to the call at approximately

6:07 p.m. As he and the other officers entered, he saw “a thick cloud of what [he]

kn[e]w . . . to be burned gunpowder.” He remembered stepping on and seeing several

spent rifle casings that appeared to be from a long rifle. He also saw Hunt doing CPR

on Peterson.

       A photograph of the outside of the store shows a motorcycle out front;

Peterson’s mother identified it as his at trial.

                                              4
       Officer J.J. Jeanes, a crime scene officer, photographed the scene and dusted

the glass countertop in the store room for fingerprints.            He had watched the

surveillance video of the shooting and deliberately dusted in the location on the

countertop where the shooter had placed his hands flat with his fingertips on glass. 2

He was able to lift several latent prints. Jeanes collected thirty-four bullet casings.

       Peterson died from multiple high-velocity gunshot wounds to the chest.

       B.     Store’s Surveillance System Reveals a Person of Interest

       Sergeant Billy Randolph, Jr. was called to preserve video footage from the

store’s surveillance cameras. Randolph downloaded video footage for December

11th, 12th, and the 13th. He noted that the system had incorrectly recorded time, a

common problem with surveillance systems; this system was an hour ahead. The

State published the surveillance footage that Randolph preserved for the jury.

       Randolph explained that at 5:56 p.m. on December 13th, a person came into

the store and purchased an item; Randolph thought the person acted strangely

because he walked right up to a shelf, pulled off an item, and immediately walked to

the counter. Randolph said that in his experience, a person needing gun parts would

have needed to check that the part was the correct type for the particular gun,

indicating to him that the person in the video had been in the store before.



       The officer who reviewed and preserved the surveillance video testified that
       2

the shooter was wearing gloves.


                                             5
      At 5:58 p.m., what appeared to be the same person walked back into the store,

shot Peterson, spraying the area around Peterson and an enclosed office area. This

person, a black male, was wearing a gas mask and the same clothing––dark colored

clothes, a hoodie, and a tan, knit cap––as the person who had made the 5:56 p.m.

purchase. He looked bulkier, however, and Randolph thought that the shooter had

been wearing additional clothing or a bulletproof vest underneath the outer clothing.

      Based on the surveillance footage and the shell casings found at the scene,

officers determined the shooter had used an AR-15 with a flashlight or laser

attachment and a dual drum magazine. The 5.56 rounds recovered were stamped

“Lake City Ordinance.”

      After comparing video from the 11th and 12th of December with the 13th,

Randolph thought that the person who had bought an item on the 13th (and, in his

opinion, the shooter) had also been in the store on the previous two days. On the

11th, that person could be seen holding a gun; he held it in the same, identifiable way

the shooter had. Randolph explained that manner to the jury:

             Q. Why does the manner in which he’s holding that firearm stand
      out to you?

            A. Most people are going to shoulder a weapon and they’re going
      to shoulder it the same way.

            So if I’m using my rifle, I’m going to shoulder it. If I’m using my
      shotgun, I’m going to shoulder it. Where I place it, it’s not going to be
      the same as somebody else. Somebody else may place it further in the
      pocket of the shoulder.



                                          6
            In this case he positions it high, so if you look at the . . . stock of
      the gun is actually sitting about that far above his shoulder.

On the 12th, around 5:56 p.m., that person bought a dual-drum magazine of the type

that could be attached to an AR-15.

      C.     Police Issue Press Release With Handsborough’s Photo

      Detective Matthew Barron testified that when watching the surveillance video

from the 13th, he noticed that the shooter came into the store only sixty-eight

seconds after the last-minute customer had come in and left. The shooter and

customer appeared to be dressed identically: “the things that we saw were this

pullover-type shirt here, specifically the emblem over here, this watch-style cap here,

and on a different angle and some turns when slowing it down that the tennis shoes

looked identical.” Because of the similarity in dress and physical build, and the timing

of the shooting, Barron believed the shooter and customer were the same person.

      Barron used still photographs from the surveillance footage to issue a press

release to media outlets on December 14, 2014. At trial, Handsborough’s mother

identified Handsborough as the person shown in the photographs.

      D.     Handsborough’s Mother Calls 911

      On the morning of December 15th, Handsborough’s mother called 911 and

told the operator she had seen something on the news about her son. She knew the

police wanted to speak to the person who had been at the gun store. She told the

operator that Handsborough had told her that on the 13th, he had been robbed at the



                                           7
gun store. He told her that he had bought a speed loader, and when he went back to

his car, someone hit him in the head, knocked him out, and took all of his clothing

and an AR-15 and a cell phone he had in the car with him.                 According to

Handsborough, he woke up at Lake Arlington with no clothes on. But he was able to

find his car nearby and drove to his cousin Jabborr Williams’s apartment in Fort

Worth.

      Handsborough was with his mother when she made the call. Although she was

not at home, she arrived at her house within an hour to meet with detectives.

Handsborough went home with her but left before the detectives arrived.

      Although Handsborough’s mother had seen him on December 13th, he did not

tell her anything about the robbery at that time, and he appeared “physically all right.”

She admitted at trial that he went to Military Gun Supply often.

      E.     Detectives Find Additional Evidence Connecting Handsborough
             to the Murder

      Barron interviewed Handsborough’s mother about forty minutes after receiving

the December 15th 911 call. She told Barron and another investigating detective that

she recognized Handsborough’s hoodie because she had bought it at Walmart.

      Handsborough’s mother consented to a search of the home where she and

Handsborough lived. The detectives found a box for an AR-15 and a reflex sight that

would be mounted on that type of weapon. They discovered that the gun had been

purchased from an Academy Sports store in Arlington.



                                           8
        Handsborough’s mother admitted at trial that she had bought an AR-15 for

Handsborough at Academy about two to three weeks before the murder. He had

been with her at the time. The jury was able to view video showing the purchase.

        After talking with Handsborough’s mother, officers found Handsborough’s car

at Williams’s apartment. In the car, they found a camouflage hoodie that looked

similar to the one the shooter wore in the video, a gas mask, and the bag for the gas

mask.

        Officers also searched Williams’s apartment. They found a high capacity drum

magazine and a user manual for it. Handsborough’s mother admitted at trial that he

had bought a drum magazine as an attachment for his AR-15. In a second search of

Handsborough’s residence, they found a manual for an AR-15 under a mattress in a

bedroom where they also found Handsborough’s social security card. They also

found a 5.56 ammunition box in a trash bin behind the residence.

        Officers took samples of Handsborough’s fingerprints. In March 2015, a latent

print examiner at the Fort Worth Crime Lab compared the prints Jeanes took from

the countertop at the gun store to Handsborough’s prints; the left ring fingerprint

matched.




                                          9
       F.    Cell Phone Evidence

       FBI Special Agent Mark Sedwick, a member of the Cellular Analysis Survey

Team, analyzed cell phone data for numbers associated with Handsborough3 and

Williams. At 6:05 and 6:06 p.m. on December 13, 2014, Handsborough’s cell phone

pinged a tower with a coverage area that included the crime scene. Sedwick could

exclude Handsborough’s residence as a potential location for the cell phone at that

time because it would not have pinged that particular tower. At 6:16 p.m., the phone

had moved toward Williams’s apartment. Additionally, the records showed calls were

made from that cell phone to Williams’s cell phone at 6:05, 6:06, and 6:16 p.m.

III.   Evidence of Identity Sufficient

       Handsborough’s argument focuses on what the evidence does not show: it

does not show that he had a motive for the murder, that he owned a bulletproof vest,

or that the gas mask contained gunshot residue. But we do not view the evidence for

sufficiency purposes based on what might be lacking; instead, we must consider

whether in reaching their verdict, the jurors made reasonable inferences from the

“combined and cumulative force of all the evidence.” See Hooper v. State, 214 S.W.3d

9, 15, 17 (Tex. Crim. App. 2007).

       We conclude that the jury did so here. Handsborough was confirmed on video

as being at the gun store immediately before the shooting; he placed himself there

       Handsborough’s cell phone account was in his mother’s name, but he had
       3

previously listed it as his number on a traffic ticket.


                                          10
with his attempted alibi, which the jury was free to disbelieve. Handsborough and the

shooter were wearing the same clothing. Fingerprint evidence confirms his presence

at the scene and his identity as the shooter; the jury could reasonably infer that even if

Handsborough had been wearing gloves, they might not have covered his entire hand.

Handsborough owned the same type of weapon that was used in the shooting. The

location in which the drum magazine and manuals were located showed an attempt to

hide them. Additionally, Handsborough left his home before the detectives could

arrive and question him, which the jury could consider as some evidence of guilt. See,

e.g., Foster v. State, 779 S.W.2d 845, 859 (Tex. Crim. App. 1989). Finally, cell phone

evidence supports that Handsborough not only was the shooter, but instead of being

driven to Lake Arlington around the time of the murders, was driving to Williams’s

apartment, where some of the evidence was found.

      We hold that the evidence is sufficient under the appropriate standard of

review to prove that Handsborough murdered Peterson. We overrule his first point.

            PHOTOGRAPHIC EVIDENCE PROPERLY ADMITTED

      In his second point, Handsborough complains that the trial court improperly

overruled his timely rule 403 objections to three photographs showing shell casings

lying in blood––which he contends were inflammatory and calculated to create an

emotional reaction in the jury––and photographs of the drum magazine box and

manual seized from Williams’s apartment––which he argues have no connection to

him. From Handsborough’s objections and the trial court’s responses, we discern

                                           11
that the trial court understood the rule 403 objections to focus on the photographs’

potential for unfair prejudice. See State v. Rosseau, 396 S.W.3d 550, 555 (Tex. Crim.

App. 2013).

      Even if evidence is admissible under other rules, it may nevertheless be

inadmissible under rule 403 if its probative value is substantially outweighed by a

danger of unfairly prejudicing the defendant. Tex. R. Evid. 403. The rules of

evidence favor the admission of relevant evidence and carry a presumption that

relevant evidence is more probative than prejudicial. Jones v. State, 944 S.W.2d 642,

652 (Tex. Crim. App. 1996).

I.    Shell Casing Photographs Admissible Under Rule 403

      When the evidence challenged is a photograph, a court may consider many

factors in determining whether the photograph’s probative value is substantially

outweighed by its inflammatory nature: the number of exhibits offered, their

gruesomeness, their detail, their size, whether they are in color or black-and-white,

whether they are close-up, whether a body depicted is clothed or naked, the

availability of other means of proof, and other circumstances unique to the individual

case. Williams v. State, 301 S.W.3d 675, 690 (Tex. Crim. App. 2009).

      Exhibits 44 and 45 are close-up shots of the floor where certain shell casings

were found behind the counter. They show mostly the blood on the floor next to the

shells; the blood appears to have partly congealed. Exhibit 43 shows the full area



                                          12
behind the counter, the location of the eight shells found there, and the pool of

blood.

         Although the photographs are gruesome and Exhibits 44 and 45 show the

blood in detail, and although there are several other photographs of the various

locations of the numerous shell casings found at the scene, we cannot say that the trial

court abused its discretion by admitting the three photographs. The photographs give

context to Jeanes’s description of the scene, help explain the way in which the

investigation discovered additional links to Handsborough through the type of

weapon used, and give credence to the manner in which Jeanes processed the scene.

See Fields v. State, 515 S.W.3d 47, 56 (Tex. App.––San Antonio 2016, no pet.). We

hold that the trial court did not abuse its discretion by overruling Handsborough’s

rule 403 objection to Exhibits 43 through 45.

II.      Drum Magazine Box and Manual Photographs Also Admissible

         Handsborough contends the photographs of the drum magazine box and

manual that were seized from his cousin’s apartment were unfairly prejudicial because

“the [S]tate offered no evidence to tie these two exhibits” to him.

         When considering if evidence is admissible despite a rule 403 objection, a court

must consider (1) the inherent probative force of the proffered item of evidence along

with (2) the proponent’s need for that evidence and balance those factors against

(3) any tendency of the evidence to suggest decision on an improper basis, (4) any

tendency of the evidence to confuse or distract the jury from the main issues, (5) any

                                            13
tendency that a jury that has not been equipped to evaluate the probative force of the

evidence would give it undue weight, and (6) the likelihood that presentation of the

evidence will consume an inordinate amount of time or merely repeat evidence

already admitted. Gigliobianco v. State, 210 S.W.3d 637, 641–42 (Tex. Crim. App. 2006);

Alami v. State, 333 S.W.3d 881, 889 (Tex. App.––Fort Worth 2011, no pet.).

      Here, the State presented evidence that Handsborough owned an AR-15 and a

drum magazine––the same type of weapon and attachment that the shooter used, that

calls were made from Handsborough’s cell phone number to Williams’s cell phone

number immediately after the murder, that Handsborough’s cell phone was located

heading toward Williams’s apartment immediately after the murder, and that

Handsborough’s car was found at Williams’s apartment two days after the murder.

Thus, the State showed Handsborough’s link to the evidence and the apartment

where it was found.

      The State had a need for the evidence, as Handsborough’s first point

demonstrates. This was a circumstantial case, and evidence linking Handsborough to

the scene and the weapon used was necessary. The only eyewitness was the deceased.

The State’s evidence showed a link between Handsborough and the evidence found at

Williams’s apartment and, therefore, when compared to the evidence’s probative

value, diminished any likelihood that the jury would have been prejudiced or

convicted on an improper basis. Thus, we hold that the trial court did not abuse its

discretion by admitting the evidence over Handsborough’s rule 403 objection.

                                          14
      We overrule Handsborough’s second point.

                                 CONCLUSION

      We affirm the trial court’s judgment.




                                                 /s/ Mark T. Pittman
                                                 Mark T. Pittman
                                                 Justice

Do Not Publish
Tex. R. App. P. 47.2(b)

Delivered: June 13, 2019




                                         15
