Burton v. State

694 S.W.3d 892

Howard Joseph BURTON, Appellant

v.The STATE of Texas, Appellee

NO. 14-22-00794-CR

Court of Appeals of Texas, Houston (14th Dist.).

Opinion filed May 7, 2024

Discretionary Review Refused August 21, 2024

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

Thomas D. Moran, Houston, for Appellant.

Kim K. Ogg, Houston, Jessica Alane Caird, Melissa H. Stryker, for Appellee.

Panel consists of Justices Bourliot, Zimmerer, and Spain.

OPINION

Jerry Zimmerer, Justice

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 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 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 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

[1] 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?

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

[2, 3] 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).

[4–7] 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. 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 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 ...