AUSTIN - by Scott Lawrence - The Texas Court of Criminal Appeals has reversed the official oppression conviction of former Beaumont police officer Todd Burke and remanded the case for re-trial.
Click here to read the entire opinion
The court released its opinion Wednesday. The vote was 8-1 in favor of reversing and remanding. Jefferson County District Attorney Tom Maness told KFDM News his office plans to re-try the case unless it can be resolved.
Burke was tried on a change of venue in Bexar County in September of 2010. His first case ended in a mistrial.
A jury convicted Burke of a Class A Misdemeanor and Judge Layne Walker sentenced him to one year probation for his actions during a traffic stop in Beaumont in August of 2007. He struck a passenger, Derrick Newman, about a dozen times with his baton. Burke said he felt Newman was acting in a threatening manner. Newman denied his actions were threatening and said he was only reacting to what he called his beating.
Burke's trial attorney, Lum Hawthorn, asked that one potential juror be excused for cause because of concerns the potential juror couldn't be fair and impartial. The potential juror said he tried to steal a beer as a child and was taken into custody. He said police in Bexar County beat him.
Judge Walker denied the excusal for cause. Hawthorn was forced to use one of three preemptory challenges to remove the potential juror. Hawthorn later objected to another potential juror but ran out of challenges and that person served on the jury.
"I'm not surprised at the ruling," Hawthorn told KFDM News. "We thought it was an error at the time of the trial court's ruling. We're happy with the Appellate Court's decision."
Burke's appellate attorney, Brian Wice of Houston, asked the 9th Court of Appeals in Beaumont to overturn the conviction. The court rejected the request and Wice argued his case before the Texas Court of Criminal Appeals earlier this year.
"I'm gratified the Court recognized that the most important part of Mr. Burke's trial, the jury selection process, was fundamentally unfair," Wice told KFDM News by phone Wednesday morning. "I want the case retried in Jefferson County. I don't want a change of venue. We have every confidence in the ability of six good folks from Jefferson County giving him a fair shot."
"We'll definitely re-try the case and reschedule it unless we can get something resolved," District Attorney Tom Maness told KFDM News.
Although Burke left the Beaumont Police Department, he still has his Texas Peace Officer's license, according to a spokeswoman for TCLEOSE, the Texas Commission on Law Enforcement Officer Standards and Education.
She said the agency won't take any action until there is a final decision and outcome of his case.
Another Beaumont officer, Cody Guedry, was convicted of Official Oppression during a trial in Jefferson County and sentenced to 90 days probation. Judge John Stevens later threw out the conviction and ordered a new trial. The District Attorney's Office appealed the decision and is awaiting a ruling. Guedry remains a Beaumont police officer.