THE ATTORNEY GENERAL OF TEXAS
Ken Paxton

Media Advisory: Donald Keith Newbury Scheduled for Execution

Monday, February 2, 2015 – Austin, Texas

Pursuant to a court order by the 283rd District Court in Dallas County, Donald Keith Newbury is scheduled for execution after 6 p.m. on Feb. 4, 2015.

In January 2002, a Dallas County jury found Newbury guilty of the Dec. 24, 2000, murder of City of Irving police officer Aubrey Hawkins.

FACTS OF THE CASE

The U.S. Court of Appeals for the Fifth Circuit described the murder of Officer Hawkins as follows:

A Texas jury convicted Newbury of capital murder and sentenced him to death for his role in the shooting death of a City of Irving police officer. The evidence presented at trial showed that Newbury and several fellow prison inmates escaped from prison and committed a series of armed robberies. When the group robbed a sporting goods store in Irving, a police officer encountered them. As the group fled the crime scene, group members shot and killed the officer. After the shooting, Newbury and others in the group escaped to Colorado where law enforcement eventually arrested them.

PRIOR CRIMINAL HISTORY

Under Texas law, the rules of evidence prevent certain prior criminal acts from being presented to a jury during the guilt-innocence phase of the trial. However, once a defendant is found guilty, jurors are presented information about the defendant’s prior criminal conduct during the second phase of the trial – which is when they determine the defendant’s punishment.

During the penalty phase of Newbury’s trial, jurors learned that Newbury had three prior convictions for aggravated robbery: one in 1981 for which he received a 10-year prison sentence; one in 1987 for which he received a 15-year prison sentence; and one in 1998, which included a deadly weapon finding, for which he received a 99-year prison sentence. The evidence also showed that after Newbury and six others escaped from prison, they committed two armed robberies in Houston before committing the armed robbery which resulted in this capital murder conviction.

The jury heard the details of the violent escape from TDCJ resulting in the capital murder conviction. Specifically, a total of 14 prison employees were bound and placed in a room after being attacked by the seven escapees. Regarding Newbury’s involvement, the jury heard that Newbury tried to enter the room where the hostages were being held, just as some of the bound hostages were beginning to get loose. The hostages prevented Newbury from entering the room, catching his arm in the door; however, Newbury waived a “shank” at the hostages and tried to stab anything within arm’s reach. The jury heard testimony that two of these hostages were surrounded by six of the seven escapees and were knocked down by blows to the head. Newbury placed a “shank” with a twelve-inch blade to the throat of one, while escapee Rivas threatened to kill him if he resisted. This hostage was made to crawl on his stomach to the room where the other hostages were being held. Newbury and escapee Garcia kicked him while he was crawling. When the hostage resisted attempts to bind and gag him, Newbury struck him three times before he went unconscious. The hostage received a broken nose, bruises, a black eye, a separated shoulder, and a broken thumb in the attack. Other hostages described similar accounts of Newbury’s involvement in the attack and escape, one indicating that Newbury held a “shank” to his throat; and another indicating that Newbury put him in a headlock and threw him face-down on the ground, then grabbed him by the hair and hit him twice in the face. 

The State introduced other evidence of Newbury’s bad conduct while incarcerated, including testimony that in 1981, Newbury and two other inmates who were housed in the maximum security area of the Travis County Jail, attempted to escape by attacking two jail guards as they were making nightly rounds. Newbury held a broken florescent light tube to a guard’s throat during this attack. Between 1981 and 1985, while in the department of corrections, Newbury was disciplined for the following infractions: nine instances of fighting without a weapon, three instances of failure to obey an order, and one instance of destruction of state property. TDCJ records from 1987 through 1988 show that Newbury was disciplined on two instances for fighting without a weapon. 

PROCEDURAL HISTORY           

On Feb. 7, 2001, Newbury was indicted on capital murder charges for both the killing of a peace officer acting in the lawful discharge of his official duty, and intentionally causing the death of an individual while in the course of committing a robbery.

In January 2002, a jury from the 283rd Judicial District Court of Dallas County, Texas, convicted Newbury and sentenced him to death. 

On April 21, 2004, the Texas Court of Criminal Appeals affirmed Newbury’s conviction on direct appeal.

On Nov. 15, 2004, the United States Supreme Court denied certiorari review of his direct appeal.

After exhausting his direct appeals, Newbury sought to appeal his conviction and sentence by seeking an application for a state writ of habeas corpus with the Texas Court of Criminal Appeals. On June 7, 2006, the Court of Criminal Appeals denied Newbury’s application for state habeas relief.

On June 4, 2007, Newbury attempted to appeal his conviction and sentence in the federal district court for the Northern District of Texas, Dallas Division. The federal district court denied his application for a federal writ of habeas corpus on Sept. 21, 2010, and also denied a certificate of appealability.

On July 14, 2011, the U.S. Court of Appeals for the Fifth Circuit also denied Newbury’s request for a certificate of appealability, and thus denied him a federal writ of habeas corpus. Newbury sought certiorari review of this decision from the U.S. Supreme Court, who granted Newbury’s petition for certiorari review, vacated the judgment of the Fifth Circuit, and remanded for further consideration in light of Martinez.

The Fifth Circuit again denied COA. Newbury requested a stay of execution and certiorari review of this decision. Once again, the U.S. Supreme Court granted the stay, vacated the judgment, and remanded to the Fifth Circuit for further consideration in light of Trevino.

The Fifth Circuit denied COA for a third time, and an execution date was set for Feb. 4, 2015. Newbury filed a petition for writ of certiorari in the U.S. Supreme Court on Dec. 2, 2014. The State filed a brief in opposition on Jan. 5, 2015. That petition is still pending.

On Jan. 6, 2015, Newbury filed a motion for stay of execution in the Fifth Circuit Court of Appeals, seeking a stay pending the outcome of the petition for writ of certiorari pending in the U.S. Supreme Court. That motion is also still pending.

MISCELLANEOUS

For additional information and statistics, please access the Texas department of Criminal Justice website at www.tdcj.state.tx.us.