Former BPD officer loses appeal of official oppression conviction

David Yates Aug. 25, 2011, 11:51am


The Texas Ninth Court of Appeals upheld the conviction of a former Beaumont police officer on Wednesday, finding that the trial court did not err in denying his challenge of three jurors.

Appellant David Todd Burke was one of five officers involved with the Aug. 24, 2007, beating of Derrick Newman. Court records show Burke struck Newman 13 times with a baton.

Following an April 2010 mistrial, the case was transferred to San Antonio. Seven months later, a jury found the former officer guilty of official oppression.

Burke was sentenced to 90 days of probation and a $350 fine, court records show.

Burke appealed the conviction on Oct. 12, 2010, arguing that the trial court erred in denying the challenges for cause that he lodged against three of the prospective jurors during jury selection, court papers say.

According to court papers, during voir dire the three jurors in question indicated that a past bad experience with law enforcement would impact their ability to serve as a fair and impartial juror.

The first three issues of Burke's appeal focused on the selection of the alleged bias jurors.

In fourth and final issue of his appeal, Burke claimed that the trial court also erred by refusing to use the language he requested in an instruction concerning the standard to be used to judge his conduct in assisting another officer in making an arrest.

The Ninth Court's memorandum opinion, authored by Justice Hollis Horton, overruled Burke's issues and affirmed 252nd District Court Judge Layne Walker's decisions.

"The instruction the trial court gave in this case allowed Burke's decision to use force to be judged from an objective standard," the opinion states. "We conclude that the language the trial court refused to include in the charge regarding Burke's claim that he was justified constitutes a variation of the statutory definition of 'reasonable belief.'"

Houston attorney Brian Wice represents Burke.

Trial Case No. 09-07066
Appeals case No. 09-10-00456-C

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