Howard Joseph Burton v. the State of Texas

Affirmed and Opinion filed May 7, 2024.

In The

Fourteenth Court of Appeals

NO. 14-22-00794-CR

HOWARD JOSEPH BURTON, Appellant

V.
THE STATE OF TEXAS, Appellee

On Appeal from the 185th District Court
Harris County, Texas
Trial Court Cause No. 1633406

OPINION

A jury convicted appellant Howard Joseph Burton of capital murder and
punishment was automatically assessed at life without the possibility of parole in the
Institutional Division of the Texas Department of Criminal Justice. See Tex. Penal
Code § 19.03.1 In five issues appellant challenges the trial court’s admission of

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The trial court pronounced sentence in open court that appellant would be confined for
life, which is an illegal sentence for a person found guilty of capital murder. The judgment
correctly states the sentence as life without parole.
evidence. Concluding the trial court did not abuse its discretion when it admitted
surveillance videos into evidence, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Appellant was charged by indictment for murdering the complainant in the
course of a robbery or attempted robbery on or about May 11, 2019.

Motion to Suppress Video Evidence

On October 15, 2019, appellant filed a request for discovery, notice of
extraneous bad acts, and Brady2 information. Appellant’s requests asked for, among
other things, “all discovery evidence including but not limited to offense reports,
witness statements, photographs, recordings and any other material items within the
State’s possession.” On December 16, 2019, appellant filed another request for
discovery pursuant to article 39.14 of the Code of Criminal Procedure, commonly
known as The Michael Morton Act. The State produced copies of three surveillance
videos on January 28, 2022. On March 31, 2022, appellant filed a motion to suppress
the videos because they were not produced as soon as practicable pursuant to article
39.14.

On October 24, 2022, at trial, before testimony and after jury selection,
appellant urged his motion to suppress the surveillance videos that had not been
turned over in discovery until January 28, 2022. Appellant’s trial counsel asserted
that when they learned of the videos, it changed their view of the evidence and
impacted their defense. Officer Armand Gemelo recovered the surveillance videos
on the day of the offense. The videos consisted of several camera angles from the

Brady v. Maryland, 373 U.S. 83, 87 (1963) (“We now hold that the suppression by the
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prosecution of evidence favorable to an accused upon request violates due process where the
evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of
the prosecution.”).

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Chevron service station where the offense occurred and several camera angles from
a Conoco station across the street.

Appellant objected to admission of the surveillance videos because they were
not disclosed to the defense as soon as practicable. The trial court admitted the
videos, finding no willful conduct on the part of the State. The trial court granted
appellant a running objection to the surveillance videos.

The Offense

On the night of May 10, 2019, from approximately 10:00 p.m. until around
3:00 the next morning appellant wandered in and out of a Chevron gas station in
Houston, Texas, and interacted with people gambling at a bank of slot machines at
the back of the convenience store.3 Around 11:30 p.m., the complainant left the
Haverstock Hills apartment complex nearby and walked to the same Chevron
station. Two other men, one named Jasqueinne Brown, and another known only by
his nicknames “Usher” and “UPS” were also at the Chevron station. The men hung
out, drinking and socializing with other people in the store, until around 3:00 the
next morning. During those hours, the complainant bought drinks and snacks for
others, which led appellant, Brown, and “Usher” to realize that the complainant had
cash in his backpack.

After 3:00 a.m. appellant and “Usher” went outside the Chevron station and
“Usher” gave appellant a handgun, which appellant tucked into his waistband.
Appellant then walked around to the back of the gas station and hid inside a concrete
barrier, which housed a dumpster. “Usher” went back to the area around the front
entrance of the service station store. Brown approached the complainant and told

3
Testimony at trial reflected that the Chevron surveillance video cameras were seven
minutes fast. In this opinion, we refer to the times stamped on the Chevron surveillance videos.

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him to go outside of the store to talk to “Usher”; the complainant left the store at
approximately 3:20 a.m. “Usher” led the complainant to the dumpster enclosure
where appellant was hiding. Video evidence shows that appellant reached out from
his hiding place and tried to grab the complainant’s backpack. Appellant was not
able to pull the backpack off of the complainant’s back. Appellant then shot the
complainant and ran away. The complainant ran past the front door of the service
station and collapsed near the front of the Chevron station.

In testifying about the video evidence Detective Demetrius Lewis of the
Harris County Sheriff’s Department testified that one of the 16 cameras installed at
the Chevron station, camera 9, was not working on the night of the offense. Lewis
testified that a “big monitor in the middle of the store” broadcast the view from all
the working cameras. Lewis testified that an individual who frequented the Chevron
station could have learned that camera 9 was not working. Camera 9, which did not
record, was facing the open end of the dumpster area where appellant hid before
shooting the complainant.

A jury subsequently convicted appellant of capital murder. Appellant was
sentenced to confinement for life without the possibility of parole. See Tex. Pen.
Code § 12.31.

ISSUES PRESENTED

Appellant raises the following five issues on appeal, which we repeat in their
entirety:

1. Whether the trial court used the correct standard – willfulness –
to determine whether the State violated Article 39.14?
2. What is the correct mens rea to be used in reviewing the State’s
failure to provide discovery pursuant to Article 39.14?
3. What is the meaning of “as soon as practicable” for purposes of
Article 39.14?
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4. Does the prosecutor have a duty to find and produce discovery
held by other agencies subject to Article 39.14?
5. What is the proper remedy when the State fails to produce
discovery sought under Article 39.14?

In appellant’s prayer for relief, he requests reversal and remand for a new trial. We
construe appellant’s issues as challenging the trial court’s denial of his motion to
suppress and admission of the surveillance videos at trial. By asking this court to
determine the “correct mens rea,” the meaning of “as soon as practicable,” and the
prosecutor’s duty to produce discovery held by other agencies, appellant invites us
to issue an advisory opinion, which the Texas Constitution prohibits. See Tex. Const.
art. II, § 1 (separation of powers article prohibits courts from issuing advisory
opinions because such is the function of the executive rather than the judicial
department). We will address appellant’s complaint that the trial court erred in
denying his motion to suppress.

ANALYSIS

I. Standard of Review

We review a trial court’s ruling on a motion to suppress evidence under a
bifurcated standard of review. Lerma v. State, 543 S.W.3d 184, 189–90 (Tex. Crim.
App. 2018). At the hearing on the motion, the trial court is the sole factfinder and
judge of the credibility of the witnesses and of the weight to be given their testimony.
Id. at 190. We therefore afford almost complete deference to the trial court’s
determinations of historical facts. Id. But, we review de novo the legal significance
of the facts found by the trial court. Ramirez-Tamayo v. State, 537 S.W.3d 29, 35
(Tex. Crim. App. 2017).

We must view the evidence in the light most favorable to the trial court’s
decision on the motion. State v. Garcia, 569 S.W.3d 142, 152–53 (Tex. Crim. App.

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2018). When, as here, the trial court does not make explicit findings of fact, we
presume that the court made implicit findings of fact, if supported by the record.
Ford v. State, 158 S.W.3d 488, 493 (Tex. Crim. App. 2005). We sustain the trial
court’s decision on the motion if it is correct under any applicable theory of law.
State v. Cortez, 543 S.W.3d 198, 203 (Tex. Crim. App. 2018). We may reverse only
when the decision is arbitrary, unreasonable, or outside the zone of reasonable
disagreement. Id.

II. The Michael Morton Act

The Court of Criminal Appeals recognized that the “wrongful conviction of
Michael Morton provided a significant spark the Legislature needed to completely
change criminal discovery in Texas.” Watkins v. State, 619 S.W.3d 265, 274–75
(Tex. Crim. App. 2021). The Michael Morton Act (the Act) broadened criminal
discovery for defendants in Texas, making disclosure the rule and non-disclosure the
exception. Id. at 277. Under article 39.14 of the Act, the State is obligated “as soon
as practicable after receiving a timely request from the defendant” to “produce and
permit the inspection and the electronic duplication, copying, and photographing, by
or on behalf of the defendant” of the following items:

[A]ny offense reports, any designated documents, papers, written or
recorded statements of the defendant or a witness, including witness
statements of law enforcement officers but not including the work
product of counsel for the state in the case and their investigators and
their notes or report, or any designated books, accounts, letters,
photographs, or objects or other tangible things not otherwise
privileged that constitute or contain evidence material to any matter
involved in the action and that are in the possession, custody, or control
of the state or any person under contract with the state.
Tex. Code Crim. Proc. art. 39.14(a).

To satisfy this obligation, “[t]he state may provide to the defendant electronic

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duplicates of any documents or other information described by this article.” Id.
“[B]efore trial, each party shall acknowledge in writing or on the record in open
court the disclosure, receipt, and list of all documents, items, and information
provided to the defendant under this article.” Id. art. 39.14(j).

III. Appellant failed to show prejudice in the State’s delayed disclosure of the
video evidence.

The trial court held a hearing on appellant’s motion to suppress before hearing
testimony. It was undisputed that the surveillance videos recorded activity beginning
the night before the complainant was killed and going through the offense and its
aftermath. Some of the videos began at 10:00 p.m. on May 10, 2019, and continued
through 5:00 a.m. on May 11, 2019. Appellant robbed and killed the complainant at
approximately 3:23 a.m. on May 11, 2019. Appellant timely requested discovery of
the videos pursuant to article 39.14 of the Code of Criminal Procedure. It was also
undisputed that the State produced the videos to the defense on January 28, 2022.
On February 9, 2022, appellant agreed to a continuance of trial from February 14,
2022 to March 28, 2022. The March 2022 trial date was postponed again to July
2022. Trial began nine months after disclosure of the video evidence on October 24,
2022.

At the hearing on appellant’s motion to suppress appellant argued that the
surveillance videos were “crucial” to the State’s case because they showed the
offense and appellant’s participation in it. Appellant’s counsel further asserted that
when the videos were disclosed in January, it “changed our view of what the nature
of the evidence was against our client and it completely impacted . . . how we
planned to defend him and our advice to him[.]” Counsel explained that until January
2022, they understood the evidence against appellant was “exclusively based” on a
co-defendant’s testimony. Before receiving the surveillance videos, counsel advised

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appellant not to engage in plea bargaining with the State because, without the video
evidence, counsel believed the evidence against appellant was insufficient to sustain
a conviction. The record is silent as to any efforts at plea bargaining between the
time they received the videos and trial.

At the conclusion of the hearing on the motion to suppress, the trial court
found no “wilful [sic] conduct” of the prosecutor and admitted the video evidence at
trial.

On appeal, appellant asserts the court erred in admitting the videos because:
(1) trial courts should not be required to find willful intent of the prosecutor before
excluding evidence under the Act; (2) this court should define “as soon as
practicable” for purposes of the Act to include a “reasonable period” for compliance;
(3) prosecutors should be required to inquire about the existence of evidence subject
to disclosure; (4) this court should give guidance to trial courts in the exercise of
their discretion in fashioning remedies under the Act; and (5) this court should “fill
gaps left by the Legislature” in the Act.

Historically, courts have held “evidence willfully withheld from disclosure
under a discovery order should be excluded from evidence.” Francis v. State, 428
S.W.3d 850, 854–55 (Tex. Crim. App. 2014) (quoting Hollowell v. State, 571
S.W.2d 179, 180 (Tex. Crim. App. 1978)). “Extreme negligence or even
recklessness on the prosecutor’s part in failing to comply with a discovery order will
not, standing alone, justify the sanction of excluding relevant evidence.” Id. at 855
(citing State v. LaRue, 152 S.W.3d 95, 97 (Tex. Crim. App. 2004)). Exclusion of
evidence in this context constitutes a court-fashioned sanction for prosecutorial
misconduct that hinges on the prosecutor’s intent. Oprean v. State, 201 S.W.3d 724,
726–27 (Tex. Crim. App. 2006). A continuance can be an appropriate remedy for
failure to timely disclose evidence that is within the trial court’s discretion. State v.

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Heath, 642 S.W.3d 591, 598 (Tex. App.—Waco 2022, pet. granted).

In Heath, the Tenth Court of Appeals noted the historical significance of the
extreme remedy of exclusion of evidence, but determined that the “old concept of
‘willful violations’ and ‘bad faith’” no longer applied to the trial court’s decision to
exclude evidence under the Act. Id. at 598. The Tenth Court held that, in light of the
requirement under the Act that discovery be produced “as soon as practicable,” a
defendant need not show the State’s delay in producing evidence was willful or done
in bad faith to justify the trial court’s exclusion of the evidence. Id. at 597. In Heath,
the State appealed an order granting Heath’s motion to suppress a 9-1-1 recording
that was not produced by the State “as soon as practicable.” Id. at 593. In that case,
the prosecutor learned of the 9-1-1 recording six days before trial and produced it to
the defendant the same day. Id. at 594. Heath filed a motion to suppress the 9-1-1
recording, which the trial court granted. Id. Heath sought exclusion of the recording
solely because it was not produced “as soon as practicable” pursuant to the Act. Id.
at 594–95. The parties did not dispute that the recording was in the possession of the
State or that it was material. Id. at 595. In excluding the evidence, the trial court
made specific findings that the prosecutor had a duty to ascertain what evidence was
held by the police and was under a “statutory duty” to disclose the evidence to the
defense “as soon as practicable.” Id. at 595–96. The trial court made no findings as
to the intent of the prosecutor. Id. at 596. On appeal, the State argued that the trial
court abused its discretion by granting the motion to suppress because the
prosecutor’s failure to produce the evidence was not a willful violation of the Act.
Id.

The Heath court recognized that “[h]istorically, the exclusion of evidence is
at its essence a court-fashioned sanction for prosecutorial misconduct.” Id. (citing
Francis, 428 S.W.3d at 855). The court further noted that the Legislature made a

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substantive change to the process of disclosure of requested items in that, before
enactment of the Act, a trial court order was required for discovery and that order
would control the timing of disclosure. Heath, 642 S.W.3d at 597. After passage of
the Act, the Act’s requirement that discovery be disclosed “as soon as practicable”
supplanted the requirement of a trial court order. Id. The Tenth Court held, “a failure
to at least inquire about the existence of discoverable items in response to a proper
request in a timely manner is all the evidence necessary to show that the failure to
timely produce the item in discovery was due to what was previously characterized
as a ‘willful violation’ or ‘bad faith.’” Id. Further, noting “[a] continuance could
have been an appropriate remedy within the trial court’s discretion,” since the trial
court granted Heath’s motion and excluded the evidence, the trial court did not abuse
its discretion by failing to make a finding of willfulness. Id. at 598.

Here, both appellant and the State argue that the court in Heath fashioned a
“strict liability” extreme sanction of exclusion of evidence even if nothing in the
record shows the State willfully withheld the evidence.4 We are not bound by the
Tenth Court of Appeals’ decision in Heath. See Cannon v. State, 691 S.W.2d 664,
679–80 (Tex. Crim. App. 1985) (“It is rudimentary that courts are not bound by
decision of other courts of equal jurisdiction.”).

Even if we were to adopt the Tenth Court’s holding, the decision in Heath
does not impact whether the trial court abused its discretion in this case because even
willfully withheld discovery is admissible if the defendant fails to show how he was
prejudiced by the late disclosure. See Jackson v. State, 17 S.W.3d 664, 673 (Tex.
Crim. App. 2000) (no prejudice shown where the State revealed the requested

4
There is room to discuss whether the Tenth Court’s holding fashioned such a strict-
liability rule, especially considering its notation that a continuance could have been an appropriate
remedy.

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information in time for the defendant to use it on cross-examination of the State’s
witness). To the extent Heath holds that evidence not timely produced in discovery
must be excluded despite a showing of prejudice to the defendant, we decline to
follow that holding as it is contrary to high court authority and this court’s authority.
See Francis, 428 S.W.3d at 859; Hernandez v. State, 610 S.W.3d 106, 115 (Tex.
App.—Houston [14th Dist.] 2020, pet. ref’d) (defendant must show prejudice to
exclude evidence not promptly turned over in discovery under the Michael Morton
Act); see also Watkins, 619 S.W.3d at 291 (remanding to court of appeals for harm
analysis).

It is undisputed that the State did not turn over the surveillance videos “as
soon as practicable.” Even if appellant was not required to show willful conduct on
the part of the State, appellant “must still carry his burden of proving that he was
prejudiced.” Hernandez, 610 S.W.3d at 115. In Francis, the Court of Criminal
Appeals observed that exclusion of evidence was not the only remedy available
when the State’s conduct was of a less culpable nature than willfulness. 428 S.W.3d
at 859. In addressing exclusion of evidence that was not produced timely in
discovery, the court noted that the due process rights of the defendant were not
violated despite the State’s tardy production of evidence in that case. Id. The court
held that the trial court had granted a continuance to allow the defendant to review
the evidence and the defendant was not disadvantaged in a material way by his
belated receipt of the evidence or even notification of the full significance of the
evidence. Id.

Here, appellant received the service station videos nine months before trial,
on January 28, 2022. At that time, trial was scheduled on February 14, 2022. On
February 9, 2022, appellant filed an agreed motion for continuance in which
appellant and the State requested a new trial date of March 28, 2022. On March 21,

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2022, appellant filed a motion to suppress the surveillance videos on the ground they
were not produced as soon as practicable. According to the court’s docket sheet
appellant’s counsel and the State sought a further continuance on July 11, 2022 and
the case was reset to July 18, 2022. The docket sheet further reflects the case was
reset by agreement again on July 18, 2022. Trial commenced on October 24, 2022.
In the trial court appellant argued that before the late disclosure of the videos he was
confident the State lacked sufficient evidence to convict him, and he was
uninterested in engaging in plea negotiations. The record is silent about any efforts
toward plea negotiations after disclosure of the service station videos.

Appellant has not shown he was prejudiced pretrial, nor does the evidence
support such a contention. The record reflects appellant and his counsel agreed to
continue trial at least three times giving them ample time to become familiar with
the content of the videos. During opening statement appellant’s counsel argued the
videos did not definitively show that appellant committed the offense. When cross-
examining Detective Lewis, appellant’s counsel referred to “camera 15” as the angle
that showed the offense, evidencing familiarity with the multiple camera angles that
made up State’s Exhibit 100. Counsel also challenged the State’s theory that Brown,
Usher, and appellant coordinated the attack on the complainant because none of the
surveillance videos showed all three men together. Counsel thoroughly cross-
examined Lewis on whether the video actually showed appellant shooting the
complainant.

After considering appellant’s issues, we have no basis for questioning the trial
court’s decision because appellant has not pointed to any evidence showing that the
untimely disclosure resulted in prejudice. See Smith v. State, 779 S.W.2d 417, 431
(Tex. Crim. App.1989) (no harm shown when the State revealed the requested
information in time for the defendant to use it on cross-examination of the State’s

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witness). Because appellant failed to establish that he was prejudiced by the untimely
disclosure of the surveillance videos, we conclude the trial court did not err in
denying appellant’s motion to suppress. See State v. Copeland, 501 S.W.3d 610,
612–13 (Tex. Crim. App. 2016) (“When reviewing a trial court’s ruling on a motion
to suppress, appellate courts uphold the ruling of the court if it is correct under any
‘theory of law applicable to the case,’ even if the trial court did not rely on that theory
in making its ruling.”).

Appellant further requests that we determine the correct “mens rea” to be used
in reviewing disclosure under the Act, define the meaning of “as soon as
practicable,” determine whether a prosecutor owes a duty to find and produce
discovery held by other agencies, and determine the proper remedy for a violation
of the Act. We need not address those issues because they are not necessary to final
disposition of this appeal. See Tex. R. App. P. 47.1 (“The court of appeals must hand
down a written opinion that is as brief as practicable but that addresses every issue
raised and necessary to final disposition of the appeal.”). Because appellant has not
established he was prejudiced by the untimely disclosure of the evidence, we need
not address whether the remedy of exclusion of evidence requires a finding of
willfulness. The trial court did not abuse its discretion in admitting the surveillance
videos into evidence. We overrule appellant’s issues on appeal.

CONCLUSION

We affirm the judgment of conviction.

/s/ Jerry Zimmerer
Justice

Panel consists of Justices Bourliot, Zimmerer, and Spain.
Publish — Tex. R. App. P. 47.2(b).

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