Summary:

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.

An accomplice, Aaron Bilton testified at trial that he, Burks, and Burks's half-brother Mark McConnell, drove to Jesse's Tortilla Factory in Mark's car. Burks had told both men of his intentions to "knock off Jesse today." Earlier he had solicited other acquaintances to assist him, but they turned him down.

Once there, Bilton entered the store and made sure Contreras was the only one inside. Burks told McConnell to let him out and then drive around the block and park. Wearing a dark stocking cap, Burks got out of the car.

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 eyewitness testimony and Burks' admissions and solicitations to others.

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.

Bilton received immunity and walked away free after his testimony despite admitting that he went inside the store to check things out before Burks went in with the gun. McConnell rejected the immunity deal, did not testify and is serving a 40-year prison term for robbery and burglary. Burks had two prior burglary convictions and was on parole at the time of the murder.

Texas Attorney General

MEDIA ADVISORY: JOHN ALBERT BURKS SCHEDULED TO BE EXECUTED

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 January 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.

PROCEDURAL HISTORY

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.

ProDeathPenalty.com

Burks was convicted of capital murder in the January 20, 1989 armed robbery of Jesse's Tortilla Factory in Waco, Texas. Jesse Contreras was shot in the mouth and the chest with a .25 caliber pistol. He died of his wounds almost a month later, on February 16, 1989.

As the state prepares to execute John Albert Burks, the oldest daughter of Burks' victim says she envisioned her father welcoming Burks into heaven as she prayed for Burks' soul.

Gloria Torres, the oldest of Contreras' six children, pleaded with Burks during an emotional hearing in March to "meet Jesus" before his death. "I would like to know that he has made peace with the Lord and prepared himself for eternity," Torres said. "That has been my whole family's sentiment, or most of them, anyway. It lifts my spirit that there is a chance that we snatched him out of the enemy's hands. In light of eternity, we are all going to die. He shortened my dad's life. There is no question about that. But as long as we are rescued from eternal torment, that is the bottom line."

After Burks' execution date was set in March, Torres talked on the phone to her mother's sister, who also is a devout Christian, and they discussed Torres' message to Burks about salvation. "She said, 'Let's pray for him again right now and ask the Holy Spirit to nourish the seeds that we planted in court,'" Torres said. "And I closed my eyes, and in my spirit mind's eye, I envisioned Daddy welcoming Mr. Burks to heaven. He was embracing him, actually. He reached over and hugged him, and I just felt really good about that."

Apparently, the only part of Torres' moving words of forgiveness that hit home for Burks was when she told him that he not only killed the beloved patriarch of her close-knit family, but that he also cheated his family. "You robbed them of joyous times that you would have had spent living among them," Torres told Burks in March. "One of the last times we were in court there was a gentleman that pleaded with me not to let them put you to death. 'He is a good boy. He just messed up a little bit,' he said. Mr. Burks, your family is hurting for you. They don't want to see this happen to you. Believe it or not, there are even some people in my family that don't want to see you executed. But it is out of our hands. Your sentence comes from the state of Texas, not from the Contreras family," she said.

Burks a twice-convicted burglar, said, "Tell the Contreras family that I am sorry for their loss, but they are looking at somebody to be the scapegoat and I guess I'm the scapegoat. The person who killed Jesse is still out there. I didn't do it, but the courts said I did and I am ready to go."

Former prosecutors Ralph Strother and Paul Gartner introduced evidence at his trial that showed Burks was the primary suspect in the 1982 stabbing death of Warner, a service station attendant who was sleeping at a Texaco station at Interstate 35 and South 17th Street when he was killed during a burglary at the station. Burks was arrested in Warner's slaying, but authorities later dismissed the charges, saying they didn't have the evidence for a conviction.

Burks' Waco victim, 63-year-old Contreras, was well-liked around the South Waco neighborhood where he raised his 5 daughters and a son, sponsored Little League teams, built up his business, which he started in 1960, and fed half of Waco.

He was hard-working, proud and looked forward to the time when he and his wife of 42 years, Esther, could retire to a 95-acre plot near Mart that he mowed on his days off from the tortilla factory, his widow said. "He was a provider. He was a hard-working fellow. He didn't need to be pushed to do anything. He was ambitious. He wanted to have something, and we sent our kids all through school just making tortillas and tamales," Esther Contreras said.

Since his death, a daughter, Alicia, and her family have been running the tortilla factory. On the day Burks walked into his shop wearing a dark ski mask and brandishing a .25-caliber pistol, Contreras was in no mood to give up his hard-earned money without a fight. Contreras threw trash cans and other items at the gunman before suffering multiple gunshot wounds.

When Gloria and Esther heard about the shooting and rushed to the store, a critically wounded Contreras defiantly proclaimed that the masked gunman "didn't get one red cent." "The first thing he told me was, 'I am dying and I want you to forgive me.' And I forgave him with all my heart," Esther Contreras said. "I said, 'Honey, ask the Lord to forgive you.' I really didn't think that he was as bad off as he was because he was walking around and talking. I told him to sit down. He said he never thought that he would go this way." Contreras died about a month later at a local hospital.

Burks grew up on South 10th Street and said he frequented a "boys' club" near the tortilla factory at 1226 Webster Ave. "I knew Jesse way back when I was a kid from being around the neighborhood. He was a good guy, but I hadn't been around there for a long time," Burks said. "I didn't kill Jesse." Burks and his half-brother, Mark McConnell, and his cousin, Aaron Bilton Jr., were charged with capital murder in Contreras' death.

Witnesses saw Burks leaving the scene and identified McConnell's green Chevrolet Impala as the getaway car. Bilton testified against Burks at trial, but only implicated Burks as the triggerman after Gartner agreed to grant him total immunity and dismiss the capital murder charge. Bilton walked away free after his testimony despite admitting that he went inside the store to check things out before Burks went in with the gun. McConnell rejected the immunity deal, did not testify and is serving a 40-year prison term for robbery and burglary.

Esther Contreras, 72, who never remarried, although she has had offers, has no animosity toward Burks. She will not travel to Huntsville to watch him die, although three of her daughters and her son will witness the execution. "I really don't hold a grudge against him," she said. "I can't say that he did do it or that he didn't do it. But the fellows who were with him told off on him and they said he did it. I think he is just lying about it now."

For Strother, who is now judge of 19th State District Court in Waco, there is no doubt. "There is no question in my mind. We had a lot of credible testimony, not only from accomplices but from other people," Strother said. "He basically admitted to an aunt that he was at the scene, that he was there. We had people talking about him looking for a gun and then looking for bullets for the gun, how he had planned to rob Jesse on a Friday, when he cashed checks at his business. No, there is no doubt in my mind that he killed a brave, respected member of the community in a cold-blooded, cowardly act."

06/14/00 UPDATE - A federal appeals court Wednesday lifted a reprieve given to a condemned Texas inmate, moving the convicted killer a step closer to his scheduled evening execution. Acting on an appeal from the Texas attorney general's office, the 5th U.S. Circuit Court of Appeals in New Orleans removed the stay of execution that could have blocked John Albert Burks from lethal injection, Heather Browne, a spokeswoman for Attorney General John Cornyn said. U.S. District Judge Walter Smith on Tuesday had ordered the state to halt the punishment, saying a reprieve he issued more than 2 years ago remained in effect because Burks, with a petition before the U.S. Supreme Court, had not exhausted all his appeals.

Burks, convicted of killing Waco tortilla shop owner Jesse Contreras more than 11 years ago, lost his final hope for a court-ordered reprieve Wednesday afternoon when the U.S. Supreme Court turned him aside. Contreras was well-known and liked in his south Waco neighborhood, where the tortilla shop he started in 1960 flourished. "He was just a super great guy," says Paul Gartner, now a federal prosecutor in Fort Worth. "And the people in the area of his little store thought he was a super individual."

Texas Execution Information Center

Txexecutions.org

John Albert Burks, 44, was executed by lethal injection on 14 June in Huntsville, Texas for the murder of a store owner.

On a Friday in January 1989, a man walked into Jesse Contreras' tortilla factory wearing a dark ski mask and brandishing a .25-caliber pistol. Contreras, determined not to give up his money without a fight, threw trash cans and other items at the gunman before being shot four times.

When his wife and daughter made it to the store, Contreras was walking around and talking. He told them that the gunman "didn't get one red cent." He died of his wounds at a local hospital about a month later.

Also charged in the murder were Burks' half-brother, Mark McConnell, and his cousin, Aaron Bilton Jr. Witnesses saw Burks leaving the scene and identified McConnell's green Chevrolet Impala as the getaway car. According to the prosecutor, witnesses also heard Burks talking about getting a gun and planning to rob Jesse Contreras on a Friday.

Bilton, who was granted total immunity for his testimony, testified that he went inside the store to check it out before Burks went in with the gun. McConnell rejected the immunity deal and is serving a 40-year prison term for robbery and burglary.

Burks had two prior convictions for burglary. He served five months in prison in 1978 then and served the remainder of his 3-year sentence on parole. In 1987, he was paroled after serving 6½ months of an 8-year sentence. He was also the prime suspect in a 1982 fatal stabbing, but prosecutors had to drop the charges for lack of evidence.

Burks, who knew Contreras, claimed innocence. "The person who killed Jesse is still out there. I didn't do it, but the courts said I did and I am ready to go," he said in an interview last week. Of his co-defendants, he stated, "Mark is doing 40 years basically for having a green Chevrolet. ... I can't say I'm mad at Aaron. I think he was just doing what he thought he had to do to get out of that mess we was in."

In his final statement, Burks assured his family that everything was "going to be all right." He added, "The Raiders are going all the way, y'all." He was pronounced dead at 6:18 p.m.

After the execution, an investigator hired by the defense told reporters that Burks all but confessed to Contreras' murder to him. "He told me he threw the gun in the Gulf of Mexico", the investigator said. He said he withheld that information from Burks' lawyers until after the execution so as not to impair their efforts to defend him.