Appeals court grants Burke a new trial

June 27, 2012

Law & Courts

Texas’ highest criminal court has ordered that former Beaumont police officer David Todd Burke will get a new trial following his conviction for official oppression.

In August 2011, the Ninth Court of Appeals in Beaumont upheld a Bexar County jury’s September 2010 verdict that Burke wrongfully used his custom-made police baton to strike Derrick Newman 13 times while knowing that he was acting illegally following a late-night traffic stop on Aug. 24, 2007. [For more background on the case and a link to a police video of the incident, click here.]

In their order, the three-judge panel 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.

In March, Brian Wice, Burke’s appellate attorney, and Jefferson County Assistant Criminal District Attorney Rod Conerly argued before the Texas Court of Criminal Appeals in Austin.

Wice told the jurists that Walker abused his discretion in denying Burke’s trial attorneys, Joseph “Lum” and Zack Hawthorn, their motion to strike for cause a potential juror who had indicated he would not be able to be impartial because of an experience when he was young when he’d felt mistreated by police. The trial attorneys were forced to use a preemptory strike against the man, resulting in another juror they found objectionable on the panel that convicted Burke.

Conerly, however, argued that Walker properly used his own reading of the totality of the situation to deny the attorneys’ objection the the potential juror.

In an 11-page, unsigned opinion issued Wednesday, the appeals court said that the prospective juror’s comments required that Walker grant the defence attorneys’ motion to strike.

“We find that (the man’s) testimony, taken as a whole, established that his prejudice toward police officers would not allow him to follow the juror’s oath and deliver a verdict that was based only on the evidence presented to the jury at trial,” the judges wrote.

“From this record, it is clear (the man) understood the law requiring him to decide the case based on the evidence presented to the jury.  It is equally clear that he had a prejudice against police officers and could not overcome it well enough to follow his oath as juror,” they wrote.

The judges said Walker erred in not granting the motion to strike the prospective juror. They ordered that Burke’s case be sent back to Walker’s court for a new trial.

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, Judge Walker sentenced Burke to 90 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 to Bexar County.

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 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 appealling Clark’s ruling to the U.S. Fifth Circuit of Appeals, and Clark has indefinitely postponed the trial.

UPDATES:  On Sept. 5, 2012, the Ninth Court of Appeals in Beaumont upheld Stevens’ ruling granting Guedry a new trial. 

After hearing oral arguments in October 2012, a three-judge  Fifth Circuit panel on Dec. 21, in a 2-1 decision, 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. After the court denied that motion in March, the attorneys filed a writ of certiorari with the U.S. Supreme Court. The case is on hold pending the resolution of the writ.

Burke’s retrial was tentatively set for August 19, 2013. On that date,  state Judge Layne Walker granted a motion for continuance filed by Burke’s new attorneys. According to attorney Nicole De Borde of Houston, Burke is recovering from a recent surgery and so could not be present for trial. The trial is now tentatively set for November 18.

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.

CLARIFICATION and CORRECTION:  The ruling, which was delivered by Judge Cheryl Johnson, was an 8-1 decision, with Judge Paul Womack dissenting. This post originally misstated the number of days Burke was sentenced to jail (suspended).

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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