Appeals court hears arguments in Burke case

March 21, 2012

Law & Courts

AUSTIN — Texas’ highest criminal court will decide if the judge in the trial in which former Beaumont police officer David Todd Burke was convicted of official oppression erred by not allowing defense attorneys to strike for cause a potential juror who indicated he might not be able to be fair.

The  Texas Court of Criminal Appeals on Wednesday heard arguments in Burke’s appeal of a lower court’s ruling upholding Burke’s conviction by a San Antonio jury in September 2010.

In Burke’s second trial (after his first in Jefferson County ended in a hung jury and mistrial), the six-person jury convicted him of the Class A misdemeanor for using his custom-made police baton 13 times against an unarmed Derrick Newman following a late-night traffic stop in Beaumont’s South End on Aug. 24, 2007.

Following the jury’s verdict, state district Judge Layne Walker of Jefferson County sentenced Burke to 90 days in state jail, but probated the sentence for one year. [For more background on the case and a link to a police video of the incident, click here.]

In August 2011, the Ninth Court of Appeals in Beaumont overruled Burke’s appeal issues that Walker improperly denied defense attorneys’ request to strike for cause 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.

In the appeal to the higher court, Brian Wice, Burke’s Houston attorney, pared down the argument to one potential juror, who during voir dire indicated that he might not be able to give Burke “a fair shake” because of an incident when the juror was young in which he felt he’d been mistreated by police.

“This case is not even close,” Wice told eight members of the appeals court in his initial argument, as Burke, his wife and several supporters (including at least two Beaumont police officers) watched from the court’s plush gallery.

The potential juror in question during the general voir dire gave a somewhat ambiguous answer to whether he could be impartial in Burke’s case, Wice told the jurists. But later, when he was questioned alone by Walker and the attorneys at the bench, the juror gave a fuller account of his prior encounter with law enforcement and indicated that would impair him from taking his oath.

When Walker later refused to grant the request by defense attorneys Joseph “Lum” and Zack Hawthorn to strike the juror for cause, they used a “preemptory” strike agaisnt him. That resulted in another juror, who the lawyers deemed less objectionable, on the jury.

In denying the initial strike, Wice argued, Walker abused his discretion and deprived Burke of the “most fundamental tenet” of the U.S. justice system, the right of the accused to a fair trial.

Later, he said, the Ninth Court “uncritically embraced” the argument by the state that Walker acted properly by basing his ruling on his own observations of the totality of the situation.

Judge Cathy Cochran asked Wice how his argument differed from the “reasonable man” standard, by which jurors may say they have some biased feelings but can follow their oath to consider a case impartially.

Wice said there was a “critical difference” — that Burke’s case, the man was not a “vacillating juror,” but instead had stated “unequivocally” during his individual questioning that he would have a difficult time being fair to Burke. He even presented the judges a handout of the transcript that he said showed the “depth of feeling” the juror had about his earlier encounter with law enforcement that he said would might bias him.

It was only when he was asked a “multifarious question” — a long question with multiple parts — that the potential juror gave a “papery, two-word answer” indicating that he could be fair, Wice argued.

Judge Michael Keasler asked Wice if it would have made a difference whether the man”s answers were reversed — that is, if he’d been more emphatic during the initial phase of jury selection but more equivocal during his individual questions.

Even if that were so, Wice allowed, “The timing is in our favor.”

More interestingly, Wice argued, after the defense attorneys finished questioning the potential juror, prosecutors Ed Shettle and Pat Knauth did not ask any follow-up questions to “rehabilitate” him for jury service. “Their silence speaks volumes,” he said.

“They were afraid they’d get even worse answers,” Judge Paul Womack joked.

In his argument, Assistant Jefferson County Criminal District Attorney Rod Conerly told the jurists that “This is a vacillating juror case. That’s the whole point of the case.”

He called the judges’ attention to a statement by the juror that he said Wice failed to mention in any of his briefs or argument, in which the man said at the beginning voir dire he could follow his oath and remain impartial.

“You have to look at the entirety of the record. That’s the law,” Conerly told the judges.

Judge Keasler asked Conerly if Walker should have given more weight to the man’s later answer, during an individual setting, when he might be “more introspective, more candid,” rather than his initial answer in a group setting.

Conerly said Walker, the trial judge, used reasonable discretion in determining, based on the totality of the answers and the man’s demeanor, that he should be allowed on the jury.

During Wice’s follow-up argument, Presiding Judge Sharon Keller asked him how a trial judge could be instructed to take into account only the most specific and latest answers, and only those that were spoken at the bench.

“I don’t think we’re asking for a Herculean standard,” Wice said.  A judge would only have to use “common sense”, based on his or her observations, in order to make the correct decision.

Wice implored the court to directly rule that Burke should be granted a new trial, not send the case back to the Ninth Court for another review.

With that, Keller thanked the attorneys and closed the session. It is unknown when the appeals court will make a decision.

At 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, as if reaching for a weapon.

Guedry, who repeatedly used a Taser against Newman in the incident, was convicted of the same offense by a Jefferson County jury in December 2010, and sentenced him to probation the following month.

In April 2011, however, state district Judge John B. Stevens Jr. ruled that Guedry was entitled to a new trial, based on arguments that Guedry’s trial lawyer had provided ineffective counsel largely due to a conflict of interest. The Jefferson County Criminal District Attorney’s Office is appealing the ruling.

Meanwhile, Burke and Guedry are the only remaining defendants in a federal civil rights lawsuit filed by Newman after a summary judgment ruling by U.S. District Judge Ron Clark. However, Burke and Guedry are appealing Clark’s ruling to the U.S. Fifth Circuit of Appeals, and Clark has indefinitely postponed the trial, which had been set to begin Nov. 28, pending the appeal’s resolution.

UPDATES:  On June 27, 2012, the appeals court ruled that because Walker failed to grant a defense motion to strike the potential juror, Burke should receive a new trial.

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 ruling 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.

On Dec. 21, 2012, in a 2-1 decision, a Fifth Circut panel denied Burke and Guedy’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.

CORRECTION: This post originally stated that the potential juror in question was seated on the jury. In fact, defense attorneys used a preemptory strike against him, resulting in another juror they deemed objectionable on the panel. The post also gave the incorrect number of days Burke was sentenced to jail (probated).

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

Copyright © 2012 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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3 Comments on “Appeals court hears arguments in Burke case”

  1. nero Says:

    ” . . . potential juror who indicated he might be able to be fair.”

    Might “not” be able to be fair?


  2. Bruce W. Cobb Says:


    The real problem is whether the potential juror had a bias against the law or a bias

    against the Defendant. It’s a different subdivision of Article 35.16 CCP. It appears the

    juror’s bias was directed against Officer Burke. If the bias is against the defendant or

    any criminal defendant, you cannot rehabilitate. It is not a “vacillating juror” case. That

    person is disqualified as a matter of law. But, if the bias is ” against the law”, that

    person can be rehabilitated if they testify that they can put the bias aside and follow

    the law. Then, its the trial court’s discretion not to dismiss the potential juror..


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