A month after the Texas Ninth District Court of Appeals upheld his conviction, former Beaumont police officer Todd Burke took his case to the Texas Court of Criminal Appeals.
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. He was charged with official oppression and first tried in Jefferson County.
After a mistrial in April 2010, the case was transferred to San Antonio. A jury there found Burke guilty of official oppression and he was sentenced to 90 days probation and a $350 fine.
Burke appealed the conviction on Oct. 12, 2010, arguing that the trial court erred in denying juror challenges during voir dire.
Burke's attorney, Brian Wice of Houston, filed a petition for review with the Court of Criminal Appeals on Sept. 20, court records show. The petition to review was granted Nov. 16.
Wice told the Southeast Record that the appeal will focus on how the defense was forced to use one of its peremptory strikes to eliminate a potential juror who indicated that he could not be fair or impartial because of a past experience with police.
He said the defense should have been granted an additional strike.
"While Appellant challenged (the potential juror) because his personal experience with police would affect his ability to be fair and impartial, his challenge was denied," Burke's petition for review states.
"Appellant objected to the denial of his challenges, exhausted his peremptory strikes to remove, inter alia (potential juror) and requested an additional peremptory strike to remove juror number five, whom he found objectionable. The trial court denied Appellant's request for an additional peremptory strike."
Burke is now asking the Court of Criminal Appeals to reverse the Ninth Court's Aug. 24 decision affirming his conviction and remand the case to the trial court for a new trial.
Burke's brief will be filed in the next 30 days, Wice said.
Trial Case No. 09-07066
Ninth Court case No. 09-10-00456-C
Criminal Appeals case No. PD-1398-11