Seeking justice for the “burned boy”

On June 28, 1998, Colleen Middleton watched as her son, Robbie Middleton, ran down the front porch steps, through the front yard, across the street, and into the woods. It was his 8th birthday, and he was headed to a friend’s house to invite him to spend the night.
    Less than 30 minutes later Colleen Middleton saw her son again. He was lying in the street, just down from their house, surrounded by neighbors. She did not recognize him and could not comprehend what she saw in front of her. Robbie was naked; his skin was melting off his body; and his eyelids, ears, hair, lips, and genitals were all burned off. Eight-year-old Robbie had suffered deep, third-degree burns to 99.5 percent of his body.
    Despite predictions that he would not survive his injuries, Robbie suffered through unimaginable pain and over 200 surgeries until, 12 years later, he died from skin cancer, a direct result of the injuries he suffered on June 28, 1998. One of the neighbors watching as Robbie laid in the street that day was 13-year-old Don Wilburn Collins, who nearly 17 years later, would be convicted of capital murder for Robbie’s death.
    The investigation into the burning and ultimate death of Robbie stretched over 16 years and consisted of more than 200 witness interviews, thousands of miles traveled, the cooperation of multiple law enforcement agencies, the cooperation of the Montgomery County Attorney and Montgomery County District Attorney’s Office, and the miracles and knowledge of the expert medical personnel at Shriner’s Burn Hospital in Galveston. After waiting for justice for years and enduring a civil trial, juvenile certification hearing, motion to transfer venue hearing, and jury trial, the Middleton family was finally able to see justice served when a Galveston County jury held Collins responsible for molesting Robbie, setting him on fire, and killing him.
    Rob Freyer, Mark Brumberger, and I handled the Collins prosecution.1 The case presented numerous legal issues and the expected factual challenges that arise with a 17-year-old case, but we were all committed to seeing that justice was done for Robbie and his family and to prevent Collins from being released back into society. At the time of his jury trial Collins had a pending felony case in Liberty County for failing to register as a sex offender, and he spent most of the trial sitting at counsel table reading the newspaper.

The horrifying crime
The Middletons’ home was located in a rural area of east Montgomery County on a small dead-end street. Everyone on the street knew one another. The kids in the neighborhood were routinely unsupervised while outside riding bikes, swimming, and playing. For Robbie’s birthday his family celebrated by having a small family party and a cake his mom bought from a local grocery store. He got a tent and little bit of money from his uncle, and Robbie wanted to sleep outside in his new tent. He waited all day for his friend, Analverto “Beto” Padilla to get home.2 Once he did, Robbie began walking to Beto’s house to see if he could camp out with him. Beto lived in a neighborhood separated from Robbie’s home by about five acres of woods. There was a small trail through the woods that kids used to get from one neighborhood to the other. The woods were also the perfect location for Collins to wait for unsuspecting victims.
    Robbie was popular, loving, friendly, and caring—everything Collins was not. The younger boy enjoyed riding bikes, fishing, and joking around—he had a sarcastic sense of humor. His personality and positive outlook on life helped him survive for 12 years after his fateful meeting with Collins.
    On the other hand, Collins was the kind of person who stomped kittens to death and molested children.3 After his mother died when he was 8, Collins lived with his father. He began drinking alcohol and smoking marijuana. Eventually, his father was sent to prison, and Collins then bounced between family members who were willing to take him in, sleeping on their floors and couches. He eventually went to live with his maternal aunt and uncle, who lived in Robbie’s neighborhood. He got along with no one, had no friends his age, and appeared to “stalk” younger children, especially children of whom he was jealous, like Robbie. No parents in the neighborhood allowed their children to play with Collins. He was just 13.
    Two weeks before setting Robbie on fire, Collins sexually assaulted him in the wooded area by their homes. Like many victims of sexual abuse, Robbie did not tell anyone because he was embarrassed and scared. Collins admitted to multiple people that he had sexually assaulted Robbie and that Collins was scared that Robbie would outcry. It was this fear of being caught that led Collins to lie in wait for Robbie in the woods, tie him to a tree, pour gasoline on him, and light him on fire.
    Robbie was approximately 200 feet into the woods when Collins attacked him. On fire and blinded, Robbie somehow retraced his steps to get out of the woods. Neighbor Mark Currier was driving his two boys to choir practice and Chad and Laura Thomason were coming home from playing bingo at the local VFW when they noticed Robbie stumbling out of the woods. They testified that he appeared to be naked and covered in mud. They stopped their cars and watched as Robbie stumbled across the road and sat down. As they approached him, they realized he wasn’t muddy—he had been burned. Robbie’s body was still smoking, he smelled of gasoline, his eyes were completely white, his skin was melting off of his body, he was naked, and his eyelids, lips, hair, and genitals were burned off. Currier noticed smoke coming from the woods, and he ran down the trail to make sure the fire was no longer burning. Currier testified that he found the burned area along the trail about 100 yards from the street. A small tree had been burned, the ground was saturated with gasoline, and the smell of gas filled the air. He also noticed small burned areas and clothing scattered down the trail that showed Robbie’s path out of the woods as he tripped, fell, and ran into trees in an effort to get back home.
    According to Currier and the Thomasons, Robbie did not appear to be in any pain as he sat calmly on the hot asphalt. He kept saying that he couldn’t see and that he was cold and thirsty. Others in the neighborhood brought water, blankets, and ice, but Chad Thomason, who is an off-shore diver, told everyone not to touch Robbie or give him anything to drink because he knew it would make things worse. By this time Colleen heard that Robbie had been burned and was with Robbie on the street. Everyone was asking Robbie what happened—was it an accident? And who did this to him? Robbie kept saying that he didn’t know, but after repeated questions, he finally said; “Rex got mad at me and threw gas in my face.”
    From the street, Robbie was transferred by Life Flight to Memorial Herman in Houston and then to Shriner’s Burn Hospital in Galveston. Doctors at Shriner’s testified that Robbie had deep, third-degree burns over 99.5 percent of his body and that he was not expected to live through the night. Once at Shriner’s, Robbie was taken directly into surgery to remove all of the burned skin on his body, and the process of replacing his skin with both cadaver and lab-grown skin immediately began. The only portion of Robbie’s body that was not burned was a small, quarter sized spot on the bottom of his right foot. Doctors took very thin scrapings of healthy skin from that area and re-grew thousands of pieces of skin to patch together new skin for the boy, and over the next 12 years, he endured 200-plus surgeries and thousands of procedures.
    During the original investigation, detectives were unfortunately not called out to the scene until the next day. They knew from interviews with people in the neighborhood that Robbie said a boy named Rex had burned him. Detectives spoke with Rex Taylor, a teenage boy who lived on Robbie’s street. Rex told detectives that at the time Robbie was burned, he was swimming in the San Jacinto River with three of his friends. He stated that because he was being named as Robbie’s attacker, one of the parents came and got them and brought them back home to speak with officers. Rex and all of the teenagers who were with him were completely cooperative during the entire investigation, and they each testified at Collins’s juvenile certification hearing and at the trial. All of them stayed in touch with Robbie up until his death and it was clear to everyone, including Colleen, that Rex had nothing to do with setting Robbie on fire. Collins, on the other hand, told anyone that would listen, including news reporters, specific details about how he thought Rex had burned Robbie and that “Rex told everyone he was swimming, but I know that he had the time to do it.”
    Detectives turned their attention toward Collins after they saw him on television talking to reporters about the case. Collins gave impromptu interviews on the street to two different news stations about what he saw and what he had done the day Robbie was burned. While speaking with the media, he gave details about the crime that only someone at the scene would have known. He also talked about playing with gas and burning his hand, said he was having nightmares about what he had seen, and discussed how long it took Robbie to make it out of the woods. He noted that Robbie had fallen four times on his way out of the woods, which was consistent with what detectives and Currier saw on the trail. Detectives also learned that Collins had collected and saved pieces of Robbie’s burned clothing from the trail, and Collins eventually provided them to police.
    Within a few days, Detective Bruce Zenor contacted Colleen Middleton at Shriner’s Hospital. Colleen stated that Robbie had told her that “Don” (Collins) had burned him. Shriner’s Hospital nurses Ellen Cox Robinson and Chris Easter had also been present and heard Robbie whisper “yes,” when Colleen asked him, “Did Don do this to you?” That same day detectives obtained a Juvenile Order of Apprehension from the Montgomery County Attorney’s Office for Collins’ arrest for aggravated assault. Collins was detained and spoke with detectives after being magistrated. During the interview, he admitted to being involved in Robbie’s attack.
    On July 31, 1998, against the advice of Dr. David Herndon, Robbie’s treating physician, detectives met with Robbie and Colleen at the hospital and conducted an audio-recorded interview with Robbie. Robbie told detectives that he did not see anyone because he was ambushed. He remembered seeing paper, a jug, and dogs, and he recalled hearing a car door slam. Robbie then remembered being on fire. During the attack, Robbie stated that he recognized Collins’s voice and also heard the voice of an older boy but did not recognize it. At the time of this interview, near-lethal amounts of pain and anxiety medication were being administered to the boy.
    A few days later, detectives spoke with Colleen by phone. She said that Robbie told her that “Tracey,” “Chris,” “Don,” and “Richard” were present when he was burned and that “Richard” had tied him to the tree and set him on fire. On August 7, 1998, detectives spoke with Colleen again, and she told him that Robbie told her that “Richard” had “hung” him upside down in a tree, and that “Tracy” was “choking” him with fishing wire. Colleen would later testify at trial that Richard Scoggin did in fact hang Robbie from a tree while all the kids were playing at the river, but it had happened about year before Robbie was burned.
    While hospitalized, Robbie also stated that his grandmother poured hot coffee on him and that their dog slammed the back door causing the house to blow up, which burned him. It was clear that Robbie was hallucinating and that his mental faculties were impaired from the trauma and large amounts of medication. (At trial, Dr. Herndon was able to explain Robbie’s mental state when these statements were made and why they were inconsistent. He testified that for months after he was injured, Robbie was having night terrors, extreme anxiety, and hallucinations, and that his heart rate and metabolism were the equivalent of a long-distance runner who had just run a race.)
    Meanwhile, Collins was in juvenile detention. Detention officers began contacting detectives on the case to say that other juveniles in the facility were reporting that Collins was making horrific statements to them about what he had done to Robbie. Three juveniles came forward and said that Collins would get mad at other kids and threaten to burn them like he burned “that other kid.” Collins told one of them that he burned Robbie because he and his uncle raped Robbie, and they were afraid he was going to tell his parents. Collins also told the same young man that he thought it was funny how Robbie’s eyes looked after he set him on fire—like they were going to pop out of his head.
    Collins was released after spending six months in juvenile detention awaiting trial, but in January 2000, the Montgomery County Attorney’s Office dismissed the case against him. Authorities there believed that his statement was inadmissible because detectives did not follow the correct legal procedure while taking it. Prosecutors were also concerned that Robbie had made inconsistent statements to law enforcement about who burned him, and they chalked up Collins’s statements while in juvenile detention to simple teenage bragging and trying to seem tough to all the other kids.
    Despite the Middleton family’s efforts to reopen the case and continue the investigation, it sat cold until they enlisted the help of Craig Sico, a plaintiff’s attorney from Corpus Christi, in 2010. Sico helped them file a lawsuit against Collins in an effort to get a copy of the offense report, just so they could learn what work had been done on the case. Sico’s only goal in filing a civil suit against Collins was to breathe life back into the criminal case. He was able to obtain the case file from the 1998 investigation, and he took depositions from one of the responding officers, both of Robbie’s treating physicians, and two nurses who treated Robbie. Sico also took a videotaped deposition from Robbie—a mere 17 days before he died, as it turned out. During the deposition Robbie testified that Collins poured gasoline on him and lit him on fire. He also stated that approximately two weeks prior to being burned, Collins had sexually assaulted him.
    While the civil suit was pending, Collins was serving a prison sentence for failing to register as a sex offender.4 In December 2011, the civil trial was held in Fayette County, where the Middletons were living at the time. Collins did not appear at the trial. After hearing the testimony, which consisted of videotaped depositions, the jury awarded the Middleton family over $150 billion in damages. This remains the largest civil verdict ever awarded in United States history.5 After the civil trial, the Montgomery County Sheriff’s Office and the County Attorney’s Office reopened the criminal investigation, which ultimately led to filing a Petition for Discretionary Transfer on September 16, 2013. At the time, Don Collins was 28 years old.
    Judge Kathleen Hamilton in the 359th District Court of Montgomery County heard the petition; Mark Brumberger and Amanda Hill with the Montgomery County Attorney’s Office handled the certification hearing. They presented witnesses who testified regarding the admissibility of Collins’ statement, about what Collins told them he did to Robbie, causation of Robbie’s death, and the investigation. The central legal issues that Mark and Amanda had to deal with were whether Collins could be certified as an adult for capital murder or murder, whether the State showed due diligence in its investigation, and whether the State had probable cause to prosecute Collins prior to his 18th birthday. Collins was certified to stand trial as an adult, and the case was transferred to the DA’s Office.

Transfer to Galveston
In 1998 this case was covered extensively by the media in Montgomery County and the surrounding areas. News crews camped out 24 hours a day in the neighborhood where Robbie and Collins lived and tracked the moves of the detectives on the case, including following them to their homes and anywhere they drove. The media again became involved in the case when the civil case was filed and when the certification hearing was heard. We expected the defense to file a motion to transfer venue due to the media coverage, which they did. Judge Hamilton presided over Collins’s trial, and after a hearing on the defense’s motion to transfer venue, she decided to move the case to Galveston County.6
    Putting on this type of case in another jurisdiction created a logistical nightmare. Every investigator in our office was on call in case we needed witnesses transported, and we had to coordinate housing and transportation for all of us, our staff, and more than 40 witnesses. Most of our witnesses were very low-income, did not want to miss work, did not have transportation, and did not have money to spend on food and gas while out of town. Our victim-witness coordinators, Danielle Murray and Ilda Rupert, were amazing and did an incredible job of coordinating all of the witnesses and their needs. DA Investigator Rico Cano was by our side during the entire trial and spent two weeks away from his family to ensure we had everything we needed.
    Additionally, 10 of our witnesses were incarcerated in TDCJ. Because we did not want these witnesses to be labeled “snitches” by other TDCJ inmates, we did not want to bench warrant them through the normal procedures. We coordinated with TDCJ-OIG and scheduled to have all 10 inmates available for testimony on one day. Two days before, all 10 inmates were picked up from TDCJ units all over the state and transported to Montgomery County Jail, where they spent the night. They were then transported by the Montgomery County Sheriff’s Office to the Galveston County Jail the night before they were to testify. After they testified, they were transported directly back to their units, or if we thought their safety was at issue, they were transported to a different unit. As you can imagine, this could not have been accomplished without a coordinated effort between TDCJ-OIG, the Montgomery County Sheriff’s Office, the Montgomery County District Attorney’s Office, and the Galveston County Sheriff’s Office.
    Because there was still some publicity involved with the trial even with the transfer to Galveston County, we began voir dire with a questionnaire. Galveston County issued summons to 300 potential jurors. Potential juror excuses were heard by Judge Hamilton, and we were left with 191 potential jurors. Rob Freyer handled voir dire. He had to address many different issues, such as the fact that the crime occurred 17 years ago, some witnesses had criminal convictions, some witnesses were children when the offense occurred but were now adults, lost and destroyed evidence, a 30-year-old defendant who was a juvenile at the time he committed the offense, difficulties in the investigation of the case, the horrific nature of the offense, causation for Robbie’s death 12 years after the offense, and a hybrid range of punishment.7
Our case in chief
Because of the extensive and complicated nature of the case, we knew that it should not be tried in a linear, timeline fashion. We opted to begin with the medical testimony regarding Robbie’s injuries, mental state, and cause of death. We also wanted Dr. Herndon, who has been the chief of staff at Shriner’s since 1981, who treats burned children from all over the world, who does speaking engagements all over the world, and who developed the procedures that prolonged Robbie’s life, to be our first witness. Also, because he had treated Robbie for so long, he talked about him like he was his son. Dr. Herndon not only testified about the extraordinary and amazing things he and other doctors did to extend Robbie’s life, but he was also able to talk about Robbie’s mental state while his body was on fire, immediately after being burned, and during the months afterwards.
    Because Robbie survived for 12 years after the attack, causation was a central issue at trial. Dr. Herndon testified about the cancer that Robbie developed from the child’s many skin grafts—they prolonged his life and eventually caused his death. Dr. Herndon’s expert opinion was that there was no doubt in his mind that the cancer was a direct result of Robbie being burned. Dr. Robert McCauley, an expert in the field of treating and repairing burned children and Robbie’s plastic surgeon and oncologist, as well as Dr. Hal Hawkins, a forensic pathologist who performed Robbie’s autopsy, also testified that Robbie’s death was directly caused by the burns he received 12 years earlier.
    In a suppression hearing prior to trial, Judge Hamilton ruled that procedural errors occurred when Collins gave his statement to detectives, and she granted the defense’s motion to suppress. The jury was never going to hear his recorded confession. Because of this, we wanted Robbie to tell the jury that Collins caused his injuries and to provide the jury with the reason why, and we did it through Robbie’s videotaped deposition. His deposition was essential to our capital murder case, as it established that the murder was committed as part of a retaliation to conceal Collins’s rape of Robbie. Proving that the statement was a dying declaration was essential to its admission and it was also a very contested part of the trial. Dr. Herndon and Dr. McCauley laid the predicate for its admission by testifying that when Robbie gave his civil deposition, Robbie knew that his death was imminent.8 We also argued that because Collins set Robbie on fire to keep him from telling anyone that Collins had raped him, Robbie’s deposition should be admissible under the theory of forfeiture by wrongdoing. Judge Hamilton ruled that the deposition was admissible under both theories, and jurors watched the video of Robbie, who was extremely weak and barely able to speak, testify that Collins set him on fire after sexually assaulting him a few weeks before.
    The jury was then presented with witnesses and evidence related to the initial investigation in 1998. This evidence included testimony from witnesses at the scene, Robbie’s prior inconsistent statements about how he was injured, testimony regarding Robbie’s burned clothing recovered from Collins several days after the incident, and disproving that Rex was involved. Jurors also watched the news footage of Collins speaking to reporters the day after Robbie was burned.
    We then moved into the 2011 investigation with Montgomery County Sheriff Detective Tommy Duroy, who re-interviewed all the earlier witnesses and located additional ones who were not willing to come forward in 1998. Two of those whom Duroy located were key to our case. Heather White, Collins’s cousin who was 13 at the time of the incident, testified that the night of Robbie’s burning, she was sleeping with Collins on the couch in the living room when he admitted that he tied Robbie to a tree with fishing wire, poured gas on him, and lit him on fire. Heather testified that when she told another family member about what Collins said to her, she was told, “The adults will handle it.” Sandra Holloman, a family friend of Collins’s relatives who was also teenager at the time, testified that two days after the attack she was at a party with Collins and he bragged to her that he was the one who had burned Robbie.
    Next we called 12 witnesses who were in juvenile detention along with Collins in 1998, and they all testified to admissions that he made to them while in detention. We also called Michael Crawford, who was incarcerated with Collins in 2010 in the Liberty County Jail. He testified that he was talking to Collins about Collins being accused of burning Robbie, and Collins told Crawford that he was a juvenile at the time so that there was nothing that he could be prosecuted for now and that he guessed he “got away with one.”
    Our final witness was Collins’s cousin, R.M., who was raped by Collins in 2001, when R.M. was 8 years old. R.M. testified that after the rape, Collins told him “that if you tell anyone I will burn you like I burned Robbie.”
    After closing arguments, the jury deliberated for approximately five hours before reaching a verdict and convicting Collins of capital murder.

Punishment
We then began the punishment phase of the trial. We called Colleen Middleton back to the stand to talk about Robbie and everything the Middleton family had gone through over the last 17 years. Then we called two other people whom Collins had raped when he was a juvenile, and we called Robbie Middleton’s sister, Heather, to talk about the time when Collins stomped her kitten to death because she refused to come outside and play with him. She also testified about a time when Collins tried to molest her.
    The last witness we called was Rebecca Whitlock, Robbie’s physical therapist at Shriner’s Hospital. She told us about how Shriner’s is set up, all the things it does for burned children, and what happened to Shriner’s after Hurricane Ike in 2008. After Ike hit Galveston, Shriner’s contemplated shutting the hospital down, but Robbie raised money, passed out pamphlets, and testified at the Shriner’s Convention in San Antonio about how Shriner’s Hospital saved his life, and to this day, Shriner’s is still in Galveston. Whitlock talked about how Robbie never let his burn injury define him, how he did so much over his young life to help other burned children, and how he used to sit outside grocery stores and raise money for burned children to travel to Shriner’s and receive the treatment they needed. She developed a very close relationship with the boy, like everyone else at Shriner’s. She put the finishing touches on the person Robbie really became and everything he meant to the people of Galveston.
    The defense did not call any witnesses during the punishment phase. On the record and outside of the presence of the jury, they stated that they had spoken to members of Collins’s family and even retained a “mitigation expert” to investigate any possible mitigation evidence to present; however, none was found and, in fact, testimony from those witnesses would have been detrimental to Collins’s case.
    The jurors deliberated punishment for about an hour before sentencing him to the maximum, 40 years in the Texas Department of Criminal Justice (TDCJ). The world is a safer place with Don Wilburn Collins locked in a prison cell. However, the sentence he received is truly lacking when compared to the unimaginable, horrific injuries Robbie suffered, the pain and suffering he endured the rest of his life, and the devastation to Robbie’s family. The only silver lining to the story is that Robbie and his family became true advocates and were able to help an unknown number of burned children from all over the world by raising funds for them to travel to Shriner’s Hospital. Robbie’s injury and death furthered research in the type of skin cancer that he developed due to his injuries, and he became a living example that some people are truly good and their lives make this world a better place just for being in it.

Endnotes

1 Rob Freyer is the Chief Assistant District Attorney over the Major Offender’s Division at the Montgomery County District Attorney’s Office, and Mark Brumburger is an Assistant County Attorney for the Montgomery County Attorney’s Office. In Montgomery County, the County Attorney’s Office handles juvenile cases, and the District Attorney’s Office handles adult felony and misdemeanor offenses. We were also assisted in prosecuting Collins by Brett Ligon, District Attorney; J.D. Lambright, County Attorney; Assistant District Attorneys Brittany Litaker, Lora Ciborowski, and Wes Lerouax; and Amanda Hill, Assistant County Attorney.
2 Padilla is currently serving a 25-year sentence in the Texas Department of Criminal Justice for aggravated robbery. He testified in the certification hearing; however, he refused to testify at trial because he did not want to be labeled a “snitch” against Collins.
3 Heather Middleton, Robbie’s sister, testified that Collins stomped her kitten to death right in front of her because she would not come outside to play with him. In addition to sexually assaulting Robbie, testimony at trial established that Collins sexually assaulted two other children: R.N. when she was 6 years old, and R.M. when he was 8. Collins was charged as a juvenile with molesting R.M., and, at age 16, was given an indeterminate TYC sentence, from which he was released when he was 21 years old. Our investigation also led us to believe that Collins also sexually assaulted J.T., Collins’s 4-year-old cousin. One witness also testified that “every dog in the neighborhood hated Don Collins.”
4 Collins was required to register as a sex offender due to his conviction for sexually assaulting R.M. in 2001.
5 The civil trial was one of the biggest attacks the defense mounted in the criminal trial. Defense counsel continually argued that the only reason this case was going forward was because of a money-grubbing, fame-seeking civil attorney and that Craig Sico that was the puppet master behind the entire thing. We decided to not hide from the civil trial. Like every other weakness in our case, we tackled it head on, addressed it, and moved on. We spent a lot of time talking with Sico prior to the trial and getting to know him as a person. He too was concerned about seeking justice for Robbie, but he never once told us how to do our job. Sico is an extremely successful and wealthy plaintiff’s attorney, but he is also a father of small children and a great family man. He spent thousands of his own dollars fighting for Robbie and never received a dime for his work. He never expected to—the Middletons have no money to pay him, and Collins was in prison with no assets. From the very beginning in opening statements, the defense tried to demonize Sico and make him out to be somebody we knew he was not. Prior to trying to introduce Robbie’s video deposition, we called Sico to the stand. The jury was ready to see a slimy plaintiff’s attorney, but that is not what they got. He was very down to earth, never got argumentative, did a great job explaining his reasons for filing a civil suit against Collins, and was also able to tell the jury a little bit about who Robbie was. By the time he was finished testifying, the “civil trial defense” had been put to bed and was no longer an issue.
6 Montgomery County district courts are courts of general jurisdiction. At the time, Judge Hamilton was handling all juvenile cases in addition to her civil and criminal dockets.
7 Judge Hamilton decided the range of punishment for this offense was capped at 40 years.
8 In fact, Robbie died 17 days after giving his deposition.