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 § 19.03.1In five issues appellant challenges the trial court’s admission of 

1 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.
2

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 Brady2information. 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 

2 Brady v. Maryland, 373 U.S. 83, 87 (1963) (“We now hold that the suppression by the 

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.”).
3

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.
4

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?
5

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. 
6

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 
7

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 
8

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. 
9

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 
10

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 strictliability rule, especially considering its notation that a continuance could have been an appropriate 

remedy.
11

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, 
12

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 crossexamining 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 crossexamined 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 
13

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).