Friday, February 3, 2012

The No Longer Impending Execution of Donald Newbury

Donald Keith Newbury sits on Texas Death row, temporarily relieved of his February 1 execution date. Newbury was granted a stay one week earlier by the U.S. Supreme Court. His attorneys argued that he should be granted a stay until after the Supreme Court decides an Arizona case that questions whether death row inmates are entitled to better legal representation during initial appeals.

Donald Newbury is infamous as one of the Texas 7 who managed an elaborate escape from a maximum-security prison. While on the run, the escapees killed a police officer during a robbery. From the adverse opinion in Newbury v. Thaler, I offer the following summary. As usual, I replaced each occurrence of the word "appellant" with the appellant's name. I also removed the legal references.
The TCCA recited the following brief factual background in its opinion on direct appeal: 
The evidence shows that Newbury and others (the `Texas 7') escaped from prison. They later murdered a [Irving] police officer in a volley of gunfire during a robbery on Christmas Eve. 
On December 24, 2000, the murder victim, Aubrey Hawkins, was working as a peace officer for the City of Irving Police Department when he responded to a call from dispatch indicating that suspicious persons had been reported at an Oshman's Super Center ("Oshman's"). Shortly after hearing Hawkins indicate over the radio that he had arrived at Oshman's, a responding officer found Hawkins's lifeless body lying face-down in the store's loading dock. Autopsy results confirmed that Hawkins had been shot eleven times in the upper part of his body and suffered injuries consistent with having been run over or dragged by a car. The medical examiner determined that Hawkins died of multiple gunshot wounds and ruled his death a homicide.
In a sworn statement to the police, which was read to the jury during the guilt-innocence phase of trial, Newbury described his involvement in the robbery that resulted in Hawkins's death and commented on the incident:

Our first night out of prison we went to San Antonio and stayed in a hotel. The very next morning we got up and went to Houston. We got a hotel in Houston and stayed there a few days. I believe that we came to the Dallas area to do a robbery at Oshman's. I was against this plan because I didn't feel we were ready to do a job that big. They didn't listen to me. We ended up in a hotel in Carrollton off Interstate 35, got one room and it was Harper that got it. 
Over the next few days we spent time casing stores and making plans to do the robbery. I was with the guys when they went to the store in Arlington and bought the smoke grenade and the security stuff. We actually cased the store for three days before the robbery. We watched the store two nights before the robbery. That night we watched them close and saw a police officer drive through the parking lot which we made note of. 
The next day we did a driveby of the store. The night of the robbery we left the hotel around 5:00 p.m. in the Honda and the Suburban. We drove to Irving. I was riding in the Suburban. We drove the Honda to an apartment complex behind the Oshman's. We had already selected this location because if we needed to get away on foot, we could run across the field and get into the car. After parking the Honda we then drove back to the parking lot where the Oshman's is located. 
Once there we went into the store at different times. My assignment was to go to the gun department and keep the manager and employees occupied. While I was doing this Rivas and Larry came in posing as security. They had taken some pictures out of the newspaper and made photocopies of them and used them as lineups. They were wearing ADT T-shirts that we got from the Salvation Army. 
So they started showing the lineups and Rivas started talking to employees and getting them to come up to the front of the store. As he was I pushed the shopping cart that I had put radios and other merchandise in up to the front of the store so that the manager in the gun department would go up front. 
Once everyone was up front, Rivas pulled his gun and announced the robbery. I had a .357 Mag. and as the gun manager went for his radio, I poked him in the back with the gun. I told him not to. There was another employee who I thought was reaching for a panic button that I had to stop. I then checked the rest of the store to make sure no one was left. I found Manny in the back with an employee. I cuffed her up and had him take her up to the front. I then make another sweep and as I was going back to the front, they were bringing the employees to the back. 
Once in the back I began searching the employees, taking money, jewelry, and weapons from them. I also was tying them up. Garcia was in the room with me, keeping everyone covered. I kept doing this until Garcia told me we had to roll. I grabbed at the bag that I had put all the property in and headed to the back door.  
Rivas had pulled the Explorer around back. We all made it to the back door and we are getting ready to go out when Harper sent someone else after something. We waited until we could see him coming back before we all left out. 
I was about the third or fourth guy out. When I got to the Explorer, there was already some stuff on the ground. I started loading the bags into the back of the Explorer. I was on the passenger side of the Explorer. I was putting the bags in the cargo over the back seat because we couldn't get the hatch open. 
The cop pulls in and rams the Explorer with his car. I then hear gunplay go off. I jumped into the front passenger seat of the vehicle and Junior jumped in on top of me. The Explorer started back and I thought we had run over a bag, but later I heard it was the officer. 
As we were pulling out I saw someone get out of the police car dressed in blue and come running toward the Explorer, carrying a gun. I thought it was the officer, so I fired three rounds at him. Junior was jumping around and messed up my shots. I shot through the window of the Explorer on the front seat of the passenger side. I didn't hit the guy and saw it was Garcia. I later learned that Rodriguez had pulled the officer out of the car, took his gun, and Garcia got into the car and backed it up. 
We drove to the complex where the Honda was. We unloaded the Explorer and waited until Angel showed up. I got into the back seat of the Honda and we left and headed back to the hotel. I reloaded everyone's gun in the Honda. 
Once back at the hotel we unloaded everything and then me and another guy went to get medical supplies. We made two stops and got our stuff at a 24-hour Walgreen on Josey around Beltline. We then went back to the room and I doctored everyone up. 
We were up all night and the next morning we loaded up and headed out. We counted our money and come up with about $73,000. We had another $20,000 or so in checks. We tore all those up and threw them away. We kept what we needed of the employees property and got rid of the rest. 
We drove and finally ended up in Colorado. We each got a grand a piece off the back. It wasn't until later that I was able to persuade them to divide the rest of the money. We then got $5,510 each. 
I believe that if the street cops would have been trained better, this situation never would have occurred. The officer should not have approached seven armed individuals without waiting on backup. It was obvious that we were all armed. It is tragic that it happened, but a longer training with rookies, it could have been prevented. 
My heart goes out to the little boy who lost his dad on Christmas Eve and to his wife and his mother. They are the one that got the loss.

On January 21, 2001, law enforcement surrounded five members of the "Texas 7" in two locations in Woodland Park, Colorado. One of the men committed suicide, and the other four surrendered. Two days later, petitioner and the remaining member of the group were discovered in a Holiday Inn in Colorado Springs, Colorado. After several hours of negotiations, the two men surrendered. Ten loaded handguns and two loaded shotguns, along with nearly $5,000 in cash, were recovered from the men's hotel room.
When writing of impending executions, I oppose the execution or I stand mute based on the my assessment of the condemn's factual innocence or guilt. Regarding the case of Donald Keith Newbury, there is no question regarding his involvement in the murder. When and if he once again faces the needle, I will stand mute with respect to the propriety of his execution.

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