Appeals court upholds Burke conviction

August 24, 2011

Law & Courts

A Texas appellate court on Wednesday upheld the conviction of former Beaumont police officer David Todd Burke for official oppression.

Last September, a Bexar County jury found Burke guilty of wrongfully using his police baton to strike Derrick Newman 13 times while knowing that he was acting illegally during a late-night traffic stop on Aug. 24, 2007.

In the 13-page decision, a three-judge panel of the Ninth Court of Appeals overruled Burke’s appeal issues that state district Judge Layne Walker improperly denied defense attorneys’ request to strike three jurors who had said during voir dire that they might have a problem being objective because of previous encounters with law enforcement. The justices found that the defense had not shown that the jurors could not follow the law.

The appellate court also overruled Burke’s contention that Walker, of Jefferson County, improperly excised a phrase sought by the defense in the jury charge relating to the “reasonableness” of Burke’s actions.

Father-and-son defense attorneys  Joseph and Zack  Hawthorn (now a federal magistrate) had sought the following instruction:  “The ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” (Italics indicate the phrase Walker omitted.)

“(The) language that Burke requested and the trial court omitted was merely a shade of the same objective standard which the trial court had in substance given to the jury in the submitted charge,” Justice Hollis Horton wrote in the ruling.

In his trial, Burke testified that he used his baton against Newman because the other man had been struggling with James Cody Guedry, then a rookie officer, during a pat-down search. He said that Newman made a furtive movement toward his waistband, possibly reaching for a weapon. (Newman was not armed.)

Following the jury’s verdict, Walker sentenced Burke to 180 days in state jail, but probated the sentence for one year. [Burke’s first trial in April 2010 ended in a hung jury and mistrial, after which Walker ordered a change of venue. For more background on the case and a link to a police video of the incident, click here.]

Guedry was tried in late November and early December for the same offense. Guedry, who had initiated the pat-down search of Newman, was charged specifically with twice using a Taser against Newman while knowing it was wrong.

A Jefferson County jury convicted Guedry, after which state district Judge John Stevens Jr. ordered a presentencing investigation. On January 18, Stevens sentenced Guedry to 30 days in state jail, probated for 90 days. [Click to read Stevens’ sentencing memorandum, provided by The Beaumont Enterprise.]

On April 1, however, Stevens ruled that Guedry was entitled to a new trial, based on arguments presented by Glen Moran, Guedry’s new attorney, that trial attorney Mitch Adams had provided ineffective counsel based largely on a conflict of interest. At the time of Guedry’s trial, Adams was representing Burke in his appeal of his conviction.

On June 12, Beaumont Police Chief Frank Coffin reinstated Guedry to the force as a community services officer, citing Stevens’ ruling. The Jefferson County Criminal District Attorney’s Office is appealing the ruling.

Meanwhile, a civil rights lawsuit filed by Newman against Burke, Guedry and three other officers is pending in a federal court.

After originally filing the lawsuit in a Jefferson County civil court (and after the defense removed the case to federal court), Newman’s attorney, Langston Adams (no relation to Mitch Adams), added the city, Coffin and City Manager Kyle Hayes as defendants.

On May 4, U.S. District Judge Ron Clark dismissed the claims against them based on the fact that Newman and Adams had waited beyond the two-year statute of limitations to file those claims. Newman is appealing the ruling at the U.S. Fifth Circuit Court of Appeals.

UPDATES:  On Sept. 20, Burke filed notice of appeal a petition for discretionary review of the Ninth Court’s ruling to the Texas Court of Criminal Appeals, based largely on the question of whether Judge Walker erred in not allowing Burke’s trial attorneys to strike a potential juror for cause.

In the petition, attorney Brian Wice wrote in seeking oral argurment that “this case presents an important case of law that defines the lengths to which a trial court may go in seating a juror who has made it unmistakenly clear that his personal experiences with law enforcement would make it impossible for him to be a fair and impartial juror where the accused is a law enforcement officer charged with official oppression.”

The appeals court heard oral arguments in the case on March 21, 2012. On June 27, 2012, the court ruled that because Walker failed to grant a defense motion to strike for cause a potential juror who had expressed doubts about being impartial, Burke should receive a new trial.

On Sept. 23, 2011, Clark, the federal judge in the civil rights case, granted summary judgment to three of the officers named as defendants, but ruled that the claims against Burke and Guedry should go to trial. Burke and Guedry appealed the ruling to the U.S. Fifth Circuit Court of Appeals, and on Oct. 25, Clark cancelled the case’s Nov. 28 trial setting pending the resolution of the appeal. On Nov. 10, Langston Adams, Newman’s attorney, filed a notice of cross-appeal of the portion of Clark’s ruling granting summary judgment to officers Torres, Brown and Duchamp. On May 8, 2012, the appeals court denied that appeal, saying it was premature.

On Dec. 21, 2012, in a 2-1 decision, a three-judge Fifth Circuit panel denied the Burke and Guedry’s appeal of Clark’s summary judgment ruling. On Jan. 4, 2013, the officers’ attorneys filed a motion for rehearing en banc of the decision by the Fifth Circuit Court.

On Sept. 5, 2012, the Ninth Court of Appeals in Beaumont upheld Stevens’ ruling granting Guedry a new trial. Jefferson County prosecutors have filed a petition for discretionary review of the decision with the Texas Court of Criminal Appeals.

On the final two days of 2014, after Newman signed an affidavit stating he did not want to continue with the criminal complaints, Jefferson County prosecutors dismissed the official oppression charges against Burke and Guedry. As part of his agreement with prosecutors, Burke stipulated that he would not seek employment as a peace officer in Texas for ten years.

NOTE:  Since it was first published, this post has been expanded to more fully describe the appellate court’s ruling.

RELATED: Beaumont police chief says department will rebound from setbacks

Find links to full coverage of the Guedry and Burke cases here.

Copyright © 2011 Ken Fountain. All rights reserved.

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About Ken Fountain

I'm a journalist and writer in Houston, Texas. My areas of specialty include law and courts, local government and energy and environmental issues. You can follow me on Twitter at and email me at kenfountain1 (at) gmail (dot) com.

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