Lonnie Bill Burcham v. the State of Texas ( 2023 )

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
LONNIE BILL BURCHAM, § No. 08-22-00196-CR
Appellant, § Appeal from the
v. § 385th Judicial District Court
THE STATE OF TEXAS, § of Midland County, Texas
Appellee. § (TC# CR55841)
MEMORANDUM OPINION
Appellant Lonnie Bill Burcham pleaded guilty to one count of murder and one count of
aggravated assault with a deadly weapon. Following a trial on punishment, the jury assessed
punishment of 80 years’ imprisonment for Appellant’s murder conviction and 15 years’
imprisonment for his aggravated-assault conviction. Appellant challenges his punishments in one
issue, arguing that the evidence is legally and factually insufficient to have allowed the jury to
reject his claim that he acted under the influence of sudden passion when he committed the
offenses. For the following reasons, we affirm Appellant’s punishment for both of his convictions. 1
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This case was transferred from our sister court in Eastland, and we decide it in accordance with the precedent of that
court to the extent required by TEX. R. APP. P. 41.3.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Factual background
(1) Pre-offense events
In 2011, Appellant began a romantic relationship with Brandy Snider. Later that year, the
couple moved into a house in Midland, Texas, along with Brandy’s children, Makenzie and Cody.
Appellant and Brandy were informally married in 2016. Makenzie testified that Appellant would
often get angry at Brandy during the relationship and recalled several incidents in which Appellant
physically pushed Brandy and Makenzie. Makenzie also recalled that Appellant and Brandy
engaged in frequent verbal fights prior to the end of their relationship. On September 1, 2020,
Brandy met John Davis through “Tinder,” a dating app. Brandy and Davis began sending sexually
themed text messages to each other.
On September 5, 2020, Makenzie overheard Appellant and Brandy arguing at their house.
Cody became involved in the argument, then Appellant pushed Brandy and Makenzie and Cody
began striking Appellant, knocking him down. Police Officer Xzavier Martinez arrived at the
house and arrested Appellant for the incident. After this incident, Appellant and Brandy ended
their relationship, Appellant moved out of the house, and Brandy changed the locks on the doors
to the house. Nevertheless, Brandy continued send text messages to Appellant on an almost-daily
basis for the next several weeks, including texts of a romantic or sexual nature. After Appellant
moved out, Makenzie saw Appellant driving down the street and “watching” the house on several
occasions. Meanwhile, Brandy and Davis met each other in person on September 25, 2020, and
they continued communicating with each other daily. On September 28, 2020, Brandy was
involved in a car accident, received treatment at a hospital, and was discharged and sent home.
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(2) The shooting
On September 29, 2020, Brandy invited Davis over to her house for dinner. Davis arrived
at the house at approximately 5:00 or 6:00 p.m. and spent time watching television in Brandy’s
bedroom with Brandy and Makenzie after dinner. Cody was also present at the house that night.
Davis testified that on the night in question, he and Brandy consumed alcohol together at Brandy’s
house and he eventually fell asleep on Brandy’s bed.
According to Appellant’s cell phone records, Appellant sent a message to Brandy’s cell
phone at 6:38 p.m. asking “Who you got over there?” to which Brandy replied “Patrick’s dad and
helper looking at house.” Several hours later, Appellant asked if the man was still there and told
Brandy he was going to come over to pick up some of his belongings. Appellant repeatedly
expressed suspicion about the man’s presence at the house, and Appellant’s last message, sent at
1:53 a.m. on September 30, read “Why is he still there[?]”
Later that night, Davis woke up in Brandy’s bed to Appellant and Brandy arguing in a
“[c]alm” manner with “no yelling or screaming.” Davis saw that Appellant had a handgun in his
hand. Davis told Appellant he could not be at the house and needed to leave, and Appellant stated,
“I’m done. I’m tired of this shit. I’m not doing this anymore.” Brandy asked, “Why do you have a
gun?” and Appellant responded, “Because I’m going to stop this stuff tonight.” Appellant also
stated, “Nobody leaves this house tonight . . . . First, I’m going to kill this old boy right here,” and
he pointed the handgun at Davis. Appellant then explained that Brandy was going to watch Davis
die, then Appellant was going to shoot Brandy’s children, then he would then kill Brandy, and
finally he was “going to take care of [himself]” after the police arrived. Davis recalled that
Appellant was “calm [and] collected . . . [and] wasn’t enraged” when he made these statements.
Appellant told Davis that Brandy “does this all the time” (i.e., have extramarital affairs), and
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Brandy denied the accusation. Davis started to get up and attempted to leave, but Appellant pointed
the handgun at his face and told him to get back on the bed.
After Appellant and Brandy eventually left the room, Davis called 911 but was unable to
speak to the dispatcher. Appellant, Brandy, and Davis ended up in the area between the kitchen
and living room, and Appellant ordered them to go back into the bedroom. Makenzie walked into
the bedroom and told Appellant that he was not supposed to be in the house, and Appellant told
her to leave. Makenzie left after Brandy and Davis begged her to do so, and Mackenzie and Cody
both called 911. Davis’s cell phone began ringing, and Appellant took the phone and put it in his
pocket. Eventually, the argument between Appellant and Brandy became louder, and Appellant
told Davis that “[t]he cops are going to find you the way I found you” and that he was going to
take a picture of Davis with his phone, presumably after Appellant killed Davis and Brandy.
After Appellant had spoken to Brandy and Davis for approximately 25 to 45 minutes,
Appellant looked out the window and saw that police officers had arrived and were beginning to
surround the house. When officers knocked on the front door and announced their presence,
Appellant said, “It’s time,” raised his handgun, and began shooting. Davis ran from the bedroom
but was hit in the back by one round and fell to the floor in the hallway in front of several Midland
Police Department officers who had arrived on scene.
One of the officers was Xzavier Martinez, who had previously been dispatched to Brandy’s
house and had arrested Appellant for the September 5 incident. At 2:12 a.m. on the night of the
shooting, Martinez was dispatched to Brandy’s house in reference to a disturbance with weapons
and recognized Appellant’s vehicle as he pulled up to the house. Martinez heard several gunshots,
immediately ran to the front door, and saw Davis crawling on the floor with a gunshot wound to
his back. Martinez and other officers walked into the bedroom and found Brandy and Appellant
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laying on the floor. Appellant had a self-inflicted gunshot wound to his head and Martinez initially
thought he was dead. A handgun was laying on the floor next to Appellant. Brandy suffered a
gunshot wound to her chest and died at the scene. Appellant was treated at a hospital and arrested.
Appellant’s medical records showed he had an elevated level of ethanol in his blood and was
diagnosed with alcohol intoxication. Brandy’s autopsy revealed that she died from a gunshot
wound to her chest, and a medical examiner who examined the autopsy report opined that her
manner of death was homicide.
(3) Other evidence
Michael Traughber, Appellant’s friend, testified that he consumed alcohol with Appellant
on the night of the shooting. Traughber noticed that Appellant had access to the Ring door camera
at Brandy’s house through his cell phone, and Appellant mentioned seeing a man at Brandy’s
house on the camera that night. According to Traughber, Appellant seemed to be “normal” and
was playing with Traughber’s children before he left Traughber’s house to go back to his motel
room. Traughber also testified that Appellant’s prior wife had cheated on him and that despite the
fact Brandy would flirt with other men in Appellant’s presence and had engaged in “multiple
infidelities” over the years, Appellant was determined that he “was not going to lose” his
relationship with Brandy.
Sandra Fowler, Appellant’s sister, testified in Appellant’s case-in-chief that she did not see
Appellant and Brandy getting into fights during their relationship. Fowler also testified that she
had a phone conversation with Appellant the day before the murder wherein Appellant expressed
his suspicion about a truck parked outside Brandy’s house. Esther Burcham, Appellant’s mother,
also testified that Appellant “adored” Brandy and that when she (Esther) spoke to Appellant the
day before the murder, she had no indication anything was wrong or the shooting would occur.
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B. Procedural history
The State of Texas initially charged Appellant with one count of capital murder of Brandy.
The State later amended the indictment to charge Appellant with one count of capital murder of
Brandy (Count I), one count of attempted capital murder of Mackenzie or Davis (Count II), one
count of murder of Brandy (Count III), one count of aggravated assault with a deadly weapon
against Davis (Count IV), and one count of aggravated kidnapping of Davis (Count V). The State
and Appellant entered a plea agreement in which Appellant would plead guilty to Counts III and
IV and the State would dismiss Counts I, II, and V. Appellant entered a written judicial confession
admitting his guilt to Counts III and IV and his written waiver of appeal of the guilt-innocence
portion of trial. Both parties waived a jury trial on guilt-innocence. Appellant entered an open plea
in the trial court with a jury to determine his punishment.
After the trial court accepted Appellant’s guilty pleas on Counts III and IV, the case was
tried to a jury on punishment. Appellant raised the issue of sudden passion, and the trial court
charged the jury on the same. The jury found against Appellant on the sudden-passion issue and
assessed punishment of 80 years’ imprisonment on Count III and 15 years’ imprisonment on Count
IV. The State dismissed Counts I, II, and V. The trial court certified Appellant’s right to appeal
the punishment phase of trial. Appellant filed a motion for new trial on punishment that appears to
have been overruled by operation of law. This appeal followed.
II. DISCUSSION
In his sole issue on appeal, Appellant challenges his punishment for Counts III and IV,
arguing the evidence was legally and factually insufficient to support the jury’s rejection of his
sudden-passion claim.
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A. Standard of review
For elements of a criminal offense where the State has the burden of proof beyond a
reasonable doubt, we review sufficiency of the evidence under the Jackson v. Virginia standard.
See Jackson v. Virginia, 443 U.S. 307, 315–16 (1979); Brooks v. State, 323 S.W.3d 893, 912
(Tex. Crim. App. 2010). However, for matters in which the defendant bears the burden of proof
by a preponderance of the evidence—such as the sudden-passion claim Appellant raised at
punishment—we employ the civil standards of review for legal and factual sufficiency of the
evidence. See Rankin v. State, 617 S.W.3d 169, 184–85 (Tex. App.—Houston [1st Dist.] 2020,
pet. ref’d); Gonzales v. State, No. 11-17-00245-CR, 2019 WL 3727509, at *1-2
(Tex. App.— Eastland Aug. 8, 2019, pet. ref’d) (mem. op., not designated for publication); see
also Matlock v. State, 392 S.W.3d 662, 671 (Tex. Crim. App. 2013) (recognizing that a factual-
sufficiency review applies to issues where the burden of proof is by a preponderance of the
evidence because that standard is the same used in various civil proceedings).
As applied to a sudden-passion claim, we review the evidence for legal sufficiency by
examining the record for any evidence that supports the jury’s finding while ignoring all evidence
to the contrary unless a factfinder could not. Matlock, 392 S.W.3d at 669; Rankin, 617 S.W.3d at
185. If no evidence supports the jury’s finding, we review the entire record to determine whether
the evidence establishes the opposite as a matter of law. Matlock, 392 S.W.3d at 669; Rankin, 617
S.W.3d at 185.
We review the evidence for factual sufficiency to support the jury’s finding by examining
all of the evidence in a neutral light to determine whether the verdict is “so against the great weight
and preponderance of that evidence to be manifestly unjust.” See Matlock, 392 S.W.3d at 671(citation and internal quotation marks omitted); Rankin, 617 S.W.3d at 185–86; see also Meraz v.
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State, 785 S.W.2d 146, 154–55 (Tex. Crim. App. 1990) (en banc) (setting forth this standard). We
may only sustain a factual-sufficiency challenge “if, after setting out the relevant evidence and
explaining precisely how the contrary evidence greatly outweighs the evidence supporting the
verdict, the court clearly states why the verdict is so much against the great weight of the evidence
as to be manifestly unjust, conscience-shocking, or clearly biased.” See Matlock, 392 S.W.3d at
671.
In reviewing both legal and factual sufficiency of the evidence, we must defer to the jury’s
role as sole judge of the weight and credibility of the evidence and recognize that the jury is free
to accept or reject a defendant’s version of the events supporting his sudden-passion claim. See
Rankin, 617 S.W.3d at 185; Gonzales, 2019 WL 3727509, at *2.
B. Applicable law
Murder is normally a felony offense of the first degree. TEX. PENAL CODE ANN. § 19.02(c).
However, § 19.02(d) of the Texas Penal Code allows a defendant to raise the issue of sudden
passion in the punishment phase of a trial for murder. See id. § 19.02(d). In particular, § 19.02(d)
provides:
At the punishment stage of a trial, the defendant may raise the issue as to whether
he caused the death under the immediate influence of sudden passion arising from
an adequate cause. If the defendant proves the issue in the affirmative by a
preponderance of the evidence, the offense is a felony of the second degree.
Id. “Adequate cause” means a “cause that would commonly produce a degree of anger, rage,
resentment, or terror in a person of ordinary temper, sufficient to render the mind incapable of cool
reflection.” Id. § 19.02(a)(1). “Sudden passion” means “passion directly caused by and arising out
of provocation by the individual killed or another acting with the person killed which passion arises
at the time of the offense and is not solely the result of former provocation.” Id. § 19.02(a)(2). The
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defendant has the burden of production and persuasion to prove sudden passion. Wooten v. State,
400 S.W.3d 601, 605 (Tex. Crim. App. 2013).
C. The evidence is legally sufficient to support the jury’s negative sudden-
passion finding
We first review the evidence supporting the jury’s rejection of Appellant’s sudden-passion
claim. See Gonzales, 2019 WL 3727509, at *1. At trial, the State established that Appellant and
Brandy had a strained relationship at various times, and Appellant had been arrested for assaulting
Brandy and Makenzie on September 5, 2020, less than a month before the shooting. Nevertheless,
cell-phone records showed that after Appellant was arrested for the September 5 incident,
Appellant and Brandy continued to plan dates with each other and communicate in a sexual and
often contentious manner.
Traughber testified that on the night of the shooting, Appellant used his cell phone to access
the Ring door camera on Brandy’s house to see Davis coming into the house before Appellant left
Traughber’s house and went to his motel. Hospital records showed that Appellant had “[a]lcohol
intoxication” and an ethanol level of 167 mg/dL when he was admitted to the hospital after the
shooting, and Traughber testified that Appellant was consuming alcohol with him that night.
Appellant’s cell-phone records showed that in the hours prior to the shooting, Appellant repeatedly
asked Brandy who was at the house, and Brandy told him it was Patrick’s dad and helper looking
at the house and the computer systems and venting in the house. Appellant expressed his suspicion
that Brandy was lying by saying “Ya right,” repeatedly asking why the man was there, and
repeatedly commenting on the length of time the man had been in the house. Appellant told
Brandy, “L[ast] night you said you loved me and cared about me and now this,” and he called her
“heartless.” Appellant became angry that Brandy was not timely responding to his messages and
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told her he was coming over, ostensibly to pick up more of his belongings. In his final message,
sent at 1:53 a.m., Appellant asked Brandy, “Why is he still there[?]”
Davis testified that after he fell asleep in Brandy’s bed, he woke up late at night to
Appellant and Brandy arguing over their relationship in a “calm [and] collected” manner.
Appellant was not screaming or yelling at the time. Appellant had a handgun and repeatedly
pointed it at Brandy and Davis, telling them he was going to kill them. Appellant also explained
that he was going to kill Makenzie and Cody, then himself. When Appellant saw that the police
had arrived at the house, he told Brandy and Davis “It’s time” and began shooting at them, striking
Davis in the back and Brandy in the chest before shooting himself in the head.
On appeal, Appellant argues that he shot Brandy because of her prior abusive behavior and
infidelities in the relationship and after “discovering [Brandy’s] brazen infidelity in their marital
bed,” which constituted adequate provocation to support a finding of sudden passion. Appellant
further contends that there was “no opportunity for cool reflection; [he] was so overwhelmed in
that moment that his mind was incapable of cool reflection.” Appellant did not testify at trial, and
there is no direct evidence of his state of mind at the time of the offenses. The record only contains
circumstantial evidence of that matter. Although it is understandable that Appellant would be
angry upon discovering Brandy in bed at night with another man, the final message between
Appellant and Brandy shows Appellant knew that a man was still at Brandy’s house before he
went there, suggesting his premeditation to commit the offenses. See Naasz v. State, 974 S.W.2d
418, 424–25 (Tex. App.—Dallas 1998, pet. ref’d) (defendant’s preexisting suspicion that his wife
was having an extramarital affair prior to going to her boyfriend’s apartment and shooting her was
evidence of his “methodical and deliberate” conduct). After arriving at the house, Appellant held
Brandy and Davis at gunpoint for approximately 25 to 45 minutes before shooting them, all the
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while repeatedly verbalizing his intent and plan in a calm and collected manner to kill them and
Brandy’s children.
As such, the jury could have found that Appellant did not simply “snap” and shoot Brandy
and Davis. Instead, the evidence suggests that Appellant suspected Brandy of infidelity prior to
the shooting and that even after Appellant found Brandy and Davis in bed together, he was calm
while speaking to Brandy and Davis for approximately 25 to 45 minutes. Moreover, the 911 calls
Cody and Makenzie made after they discovered Appellant in the house each lasted approximately
seven minutes before gunshots can be heard. Thus, the record suggests that Appellant had enough
time for cool reflection before he shot Brandy and Davis and that he was not overwhelmed in a
moment by the emotional impact of discovering Brandy in bed with Davis. The record shows
Appellant was aware of Brandy’s prior infidelities and was intentional and deliberative in his
words and conduct immediately prior to the shooting. This evidence supports the jury’s implied
findings that Appellant was still capable of cool reflection and that his actions did not arise from
an adequate cause. See TEX. PENAL CODE ANN. § 19.02(a)(1); see also Dudley v. State, 992 S.W.2d
565, 568– 69 (Tex. App.—Texarkana 1999, no pet.) (evidence was legally and factually sufficient
to support jury’s negative sudden-passion finding where defendant shot victim “about twenty or
thirty minutes” after initial confrontation, reasoning that defendant “had sufficient time to cool
off”).
Moreover, the evidence suggests that Appellant provoked the confrontation by traveling to
Brandy’s house while suspecting her of infidelity at the time. “[A] defendant may not rely on a
cause of his own making, such as precipitating a confrontation, to support his argument that he
acted out of sudden passion arising from adequate cause.” Gonzales, 2019 WL 3727509, at *2
(quoting Smith v. State, 355 S.W.3d 138, 149 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d)
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(internal quotation marks omitted). The jury could have rationally concluded that because
Appellant went to Brandy’s house to confront her and Davis, Appellant precipitated the
confrontation that ultimately led to the shooting, thus allowing the jury to reject a finding of
adequate cause. See id.In sum, the record contains some evidence supporting the jury’s negative finding of sudden
passion, and thus legally sufficient evidence supports the jury’s finding. See Ballesteros v. State,
No. 07-14-00025-CR, 2015 WL 513154, at *2 (Tex. App.—Amarillo Feb. 5, 2015, no pet.) (mem.
op., not designated for publication) (evidence was legally sufficient to support jury’s negative
sudden-passion finding where the evidence showed defendant and victim had a contentious
relationship and defendant suspected the victim of infidelity prior to her murder).
D. The evidence is factually sufficient to support the jury’s negative sudden-
passion finding
Regarding factual sufficiency, “we review all the evidence in a neutral light to determine
if the contrary evidence greatly outweighs the evidence that supports the jury’s determination.”
Gonzales, 2019 WL 3727509, at *3 (citing Matlock, 392 S.W.3d at 671). Again, Appellant did not
testify at trial and the record contains no other direct evidence of his state of mind when he shot
Brandy and Davis. According to Appellant, the evidence supporting Appellant’s sudden-passion
claim shows Brandy had previously “toyed with [his] emotions and affections, both by flirting
with [other] men in front of him and then by engaging in multiple infidelities,” and continued to
string Appellant along up to the day of the shooting. The evidence showed that although Appellant
seemed calm when he spoke to his sister and mother the day prior to the shooting and when he
was at Traughber’s house the night of the shooting, Appellant became upset and irrational after he
observed Brandy in bed with Davis and shot himself after shooting Brandy and Davis. This
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evidence could support the notion that Appellant became incapable of cool reflection after he
discovered Brandy in bed with Davis, which could arguably be an adequate cause giving rise to
sudden passion.
But given the evidence addressed above, the jury could have rejected Appellant’s
contention that this event overwhelmed him with emotion and the jury could have found that
Appellant’s acts were purposeful and made after cool reflection instead of in sudden passion from
adequate provocation. In particular, Appellant’s pre-existing suspicion that Brandy was engaging
in an extramarital affair with a man that night, Appellant’s calm and collected demeanor when he
spoke to Brandy and Davis in the bedroom immediately prior to the shooting, and the amount of
time he had for cool reflection during that interaction suggest that he did not act in sudden passion
when he shot Brandy and Davis. See Ballesteros, 2015 WL 513154, at *2; Dudley, 992 S.W.2d at568–69.
Viewing all of the evidence in a neutral light and deferring to the jury’s determination of
the weight and credibility of the testimony and evidence, we cannot say that the evidence against
the jury’s finding greatly outweighs the evidence supporting it. Neither can we say that the jury’s
negative finding on the sudden-passion claim is so weak as to be “manifestly unjust, conscience-
shocking, or clearly biased.” Thus, factually sufficient evidence supports the jury’s negative
finding of sudden passion. See Matlock, 392 S.W.3d at 671; see also Gonzales, 2019 WL 3727509,
at *2–3 (factually sufficient evidence supported the jury’s negative finding on sudden passion
where the evidence, when viewed in a neutral light, showed that the defendant’s actions were
“purposeful” and thus not the result of sudden passion); Ballesteros, 2015 WL 513154, at *2
(factually sufficient evidence supported the jury’s negative finding on sudden passion despite that
defendant attempted to kill himself after committing the murder; the fact that defendant “may have
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sought his own death after the murder or an increased punishment does not necessarily mean he
did not plan to commit it”); Dudley, 992 S.W.2d at 568–69.
Accordingly, Appellant’s sole issue is overruled.
III. CONCLUSION
We affirm the judgment supporting Appellant’s conviction.
LISA J. SOTO, Justice
May 30, 2023
Before Rodriguez, C.J., Soto, J., Marion, C.J. (Ret.)
Marion, C.J. (Ret.) (sitting by assignment)
(Do Not Publish)
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