AUSTIN - Texas Attorney General John Cornyn offers the following information on John Albert Burks who is scheduled to be executed after 6 p.m., Wednesday, June 14th.
John Albert Burks was convicted and sentenced to death for murdering Jesse Contreras, the owner of Jesse's Tortilla Factory located in Waco, Texas, during the course of a robbery, on Jan. 20, 1989.
FACTS OF THE CRIME
The evidence introduced at Burks' trial reflects that Burks had planned and solicited the offense with several individuals.
Aaron Bilton testified that, sometime in January, but before the offense, Burks told him that he needed money and on the day before the offense, Burks told him that he was going to "knock off Jesse." Burks wanted Bilton to go inside Jesse's Tortilla Factory first to see who was there. Burks had planned the offense for noon the next day, but because Bilton had to be at work at 11:00 a.m., Burks agreed to do it earlier. Burks had planned the offense for the next day, which was Friday, because he knew Jesse Contreras cashed checks on Friday. Bilton testified that Burks had already discussed the matter with Mark McConnell, a half brother of Burks and that Mark was to receive $100 for his participation. On the morning of the offense, Burks and Mark arrived at Bilton's home in Mark's green four-door Chevrolet between 10:15 a.m. and 10:30 a.m. The three men proceeded to Bilton's uncle's house. On the way, Burks stated that he was going to "knock off Jesse today." When they arrived, Bilton went into his uncle's house and watched television while Mark drove Bilton's aunt downtown. Burks did not go with Mark nor did he go inside the house. When Mark returned five minutes later, the three men drove to Jesse's Tortilla Factory in Mark's car.
Once there, Bilton entered the store and attempted to purchase some corn tortillas, but Contreras said that they did not have any. Bilton returned to the car and told Burks that they did not have corn tortillas and that Contreras was the only one inside. Burks told him to go back and purchase some flour tortillas and make certain that Contreras was alone. Bilton purchased the flour tortillas and reassured Burks that Contreras was alone. Burks told Mark to let him out and then drive around to Twelfth Street and park. Wearing a blue or black stocking cap, Burks got out of the car. About five minutes later, Burks walked towards the car holding his stocking cap in his hands. Bilton testified that the stocking cap appeared to have something in it. Burks laid down in the backseat, stated that he didn't get anything and told Mark to drive off. Bilton testified that after they dropped him off at work that morning, he did not see Burks again until after Bilton's arrest for the offense.
Bilton's testimony was corroborated by other evidence, including eyewitness testimony and Burks' admissions and solicitations to others.
At approximately 11:00 a.m. on the day of the offense, Victor Macias drove to Jesse's Tortilla Factory to cash a check. Macias observed an African-American man carrying a black object in his hand and walking towards a green late sixties model car parked on the side of the road near Jesse's Tortilla Factory. The man got into the backseat of the green car. When Macias arrived at Jesse's Tortilla Factory, he saw Contreras running towards the side of the building and he also saw blood on the pavement leading to the front door of the building. No one was inside the store, but there was blood on the floor. Macias went back outside where he saw the green car speeding away. Macias testified that he saw the driver and another man seated in the backseat, but did not see anyone else in the car. When Macias went back inside the building, he saw Contreras calling his daughter on the telephone. Macias stayed until she arrived.
When Gloria Contreras Diaz, the victim's daughter, arrived at the store, her mother was tending to her father who was spitting up blood and appeared to be in pain. Diaz testified that her father told them an African-American man with a mask had attempted to steal his money, but he threw a trash can at the perpetrator who then shot him. Contreras died 27 days later as a result of multiple gunshot wounds.
A firearms expert testified that two .25 caliber bullets removed from Contreras' body were fired from the same gun, probably a .25 caliber semi- automatic Raven Arms pistol--a compact pistol easily carried in a pocket without notice or discomfort and sometimes referred to as a "Saturday Night Special." Four other spent bullets found at the crime scene and admitted in evidence, while not identifiable as having been fired from the same gun as the other two, were .25 caliber. Also found at the crime scene were five spent .25 caliber shell casings. The shell casings were manufactured by three different manufacturers which could mean they were obtained from different sources. The number of bullets contained in a .25 caliber semi-automatic Raven Arms pistol is six.
Louis McConnell, the half-brother of Burks, testified that two weeks before the instant offense Burks asked him whether he owned a gun or knew someone who did; Louis responded negatively. Louis McConnell lived with his father, Bishop McConnell, Jr., and his brother, Bishop McConnell III. The following week, Louis came home from work around 5 p.m. and saw a small caliber pistol and a dark navy or black stocking cap on a table. Burks, Bishop McConnell III, Carlton Johnson, and Victor Monroe were at the house. Louis McConnell testified that he saw Burks pick up the gun and walk toward the door. Even though Louis McConnell saw Burks leave with the stocking cap, he did not actually see Burks leave with the gun. However, after Burks left, Louis McConnell noticed the gun was no longer in his house.
Johnny Cruz, a local grocer, testified that one week before the offense, Burks approached him looking for .25 caliber bullets for an automatic handgun. After the shooting, Cruz saw Mark McConnell driving a late sixties model green Chevrolet Impala.
Ike Weeks, a cousin of Burks', testified that in late December Burks asked him to participate in a robbery, but he refused. The day before the offense, Weeks saw Burks, Mark McConnell and Aaron Bilton standing in an alley. Weeks overheard Burks tell Mark that he would call him the next day at 9:00 a.m. so that Mark could pick him up, and that Mark would receive a $10 bag of marihuana and some money. Weeks further testified that sometime in January, but before the offense, Burks asked him whether he had any bullets.
Vincent Guillem, a mechanic, was in his yard between 10:00 a.m. and 10:30 a.m. on the morning of the offense when Mark McConnell drove up in his green Chevrolet. Guillem saw four people in the car--Bishop McConnell III, Mark McConnell, Burks, and another person. Burks got out of the car and asked Guillem whether he had any .25 caliber bullets. When he said no, Burks walked across the street to his house and returned to Mark's car. Guillem stated that Burks left with Mark McConnell driving the car. Mark McConnell was the only person Guillem said left with Burks. Guillem did not mention the accomplice, Bilton, or Bishop McConnell being with Burks. Sometime later Guillem heard ambulance sirens, and 10 to 15 minutes after the sirens, he saw Mark's car drive by very fast.
An aunt of Burks' testified that a few days after the offense she accused Burks of having been seen at Jesse's Tortilla Factory when Contreras was shot. Burks denied this, claiming that no one had been there when he left, and he threatened her when she said that she would notify the police if she found out that he had shot Contreras. Another relative of Burks' admitted during cross-examination that he had told his boss after the shooting that he had heard something about Burks planning to rob Jesse's Tortilla Factory and had begged Burks not to do it because Jesse was a good man.
While separately talking to Contreras and Macias, Detective Price of the Waco Police Department obtained a description of the suspect as being an African-American male possessing a black ski mask, small build, 5'6" to 5'7". Price found out during separate conversations with Macias and Guillem that the vehicle involved was a green four-door mid- to-late sixties model Chevrolet with a specific license plate number. Four days after the offense Price observed Mark McConnell driving a car matching that description.
In Feb. 1989, Detective Price notified the police in Harlingen, Texas, that a warrant had been issued for Burks' arrest in connection with this offense. Burks sometimes resided in Harlingen.
During the first week of March 1989, two Harlingen police officers in a patrol car noticed Burks walking on a sidewalk in the west part of town and drove up behind him. When Detective Davilla called Burks' name and identified himself as police, Burks ran. Davilla chased him on foot, but then lost him. Detective Saldivar observed Burks hiding in someone's garage. When Burks saw Saldivar, Burks began running again. Saldivar chased him on foot to a fenced enclosure where she drew her weapon and told him to stop as he attempted to climb over the fence. Davilla arrived shortly thereafter, and Burks was taken into custody.
On Feb. 23, 1989, Burks was indicted in McLennan County, Texas, for the capital offense of murdering Jesse Contreras during the course of committing and attempting to commit robbery. Burks was tried before a jury upon a plea of not guilty. The jury found him guilty on July 11, 1989. Following a separate punishment hearing, the jury answered affirmatively the two special sentencing issues submitted pursuant to state law and the trial court assessed Burks' punishment at death.
Appeal was automatic to the Texas Court of Criminal Appeals, which affirmed the conviction and sentence on March 9, 1994, and denied rehearing on May 25, 1994. The United States Supreme Court denied Burks' petition for writ of certiorari on Jan. 17, 1995. Burks next filed an application for state writ of habeas corpus with the convicting court on July 31, 1995. After conducting an evidentiary hearing, the convicting court recommended that relief be denied. On Oct. 16, 1996, the Court of Criminal Appeals adopted the trial court's findings and denied relief. The United States Supreme Court denied Burks' petition for writ of certiorari on March 17, 1997. Burks next filed a federal habeas petition in the United States District Court for the Western District of Texas, Waco Division, on July 21, 1997. On March 4, 1998, the district court entered an order denying habeas relief and entered final judgment against Burks. The district court later granted Burks permission to appeal. The United States Court of Appeals for the Fifth Circuit affirmed the district court's denial of relief on Jan. 7, 2000, and denied Burks' petition for rehearing on Feb. 9, 2000. Burks then filed a petition for writ of certiorari to the United States Supreme Court which is pending before the Court.
PRIOR CRIMINAL HISTORY
At the punishment phase of trial, the State presented evidence that Burks had been twice convicted of the offense of burglary of a building, in 1977 and 1986. A tow truck driver testified that he was called by police to pick up and impound a car in 1981 and that Burks threatened and physically assaulted him after the police left, forcing him to unhook and leave the car. Burks' former spouse testified that he took her van without permission in November of 1988 and returned it on Dec. 24, 1988. Upon returning it, Burks assaulted a man who attempted to intervene in the ensuing argument between Burks and his former spouse and broke out the windows of the man's car then fled from the police. One of Burks' aunts testified that Burks had threatened to kill a man who owed him money. Finally, the State presented evidence that Burks admitted to committing a murder in Waco, Texas, in Aug. 1982, after breaking into a Texaco station.
DRUGS AND/OR ALCOHOL
No evidence was presented demonstrating that the instant offense was attributable to drug or alcohol use.
06/15/2000 Paul Selso Nuncio (Hale County)
06/22/2000 Gary Graham (Harris County)
06/28/2000 Joe Lee Guy (Hale County)
06/29/2000 Jessy Carlos San Miguel (Dallas County)
If this execution is carried out, will be the 221st execution since executions resumed in Texas in December 1982 and the 57th since General Cornyn took office. This case is being handled by Assistant Attorney General Tommy Skaggs of the Capital Litigation Division.
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