SAN ANGELO, Texas — Malcolm Guy McBurnett grew up in a white-collar, influential West Texas family. Donald John Di Pietro was the child of a working-class family in Lincoln Park, a suburb of Detroit, Michigan. Neither man knew of the other’s existence, but on the night of March 9, 2013, their paths crossed in San Angelo. Donald Di Pietro, a sergeant in the Marines, did not survive the encounter.
Malcolm Guy McBurnett
Malcolm was born into a middle-class family on Jan. 8, 1948, in San Angelo. His father, Malcolm C. McBurnett, was a successful automobile salesman who, having been in the business since 1936, knew many prominent people in town.
Malcolm’s family made their mark on San Angelo. His father was related to Christopher Columbus McBurnett, a wealthy local rancher and financier who contributed to the San Angelo skyline by developing some of the town’s tallest buildings, including the McBurnett Building, known now as Beauregard Tower, on the southwest corner of Irving Street and West Beauregard Avenue.
Before Malcolm was born, his parents had adopted a baby, Jerry. The family lived on Guadalupe Street in central San Angelo, where the brothers grew up.
Recalling their childhood, Jerry said that Malcolm, 18 months younger than him, was a quicker study in school, somewhat eccentric and given to spending his leisure time with friends. Jerry, in contrast, was family oriented and believed from a young age in hard work to get ahead in life.
“He wasn’t as close in the family as I was. I did more with the family. He did more with his friends,” Jerry said. “He’d come in and ask Mother, ‘Well, what are we having for lunch?’ She’d tell him and he’d say, ‘Oh, I’ll just go eat out.’ So he’d just go eat out with this friends.”
As a boy, Malcolm slept in a cluttered room while Jerry always kept his room neat. In high school, Malcolm became class president at Central High School and ran with the more affluent crowds. He was frivolous with his spending, Jerry said, and particular about his belongings. He wanted all his shirts ironed, and his older brother would often sneak into Malcolm’s room and try to take a shirt, knowing that Malcolm didn’t want him wearing them.
“He’d buy the best. I might buy a $10 shirt, and he’ll by a $15 shirt,” Jerry said with a chuckle. “He made real good grades all through high school and didn’t have to study much. If we had a book to read, I’d have to read it twice, and he could read it one time.”
The differences in the brothers’ personalities and habits would manifest themselves as time passed. Jerry eventually became executor of his parents’ estate, worth almost a million dollars.
Malcolm, 69, is now in Tulia Transfer Facility, a state prison in the Texas Panhandle, serving a 35-year sentence for intoxicated manslaughter.
Donald John Di Pietro
Donald was born into a working-class family on June 5, 1984, in a suburb of Detroit. The family lived in a two-story white house in a big-city type of neighborhood where stores and bars could be found at every street corner.
When the weather was nice, Donald and his younger brother, Robert, frequently went with their mother bicycling down Biddle Avenue, a road that runs alongside the mighty Detroit River, which led to the city of Wyandotte and to their destination at Bishop Park. The trio could see Canada on the other side as they rode along the river.
Donald was an average American boy who grew up playing sports and video games with his younger brother and friends. The brothers were inseparable, and Donald protected and took care of Robert while they were growing up.
Robert, 18 months younger than Donald, came home one day when Donald was 14 and told his older brother that two other boys had bullied him. Donald went tearing down the street that day after the two bullies. Their mother, Teresa, said she felt proud knowing Robert could count on Donald.
“Donald was his own person who I would just look at with admiration and say to myself, ‘This kid is too good to be true,”‘ Teresa said. “He was walking at nine months. Anything he tried, he accomplished extremely well. He was never off the honor roll, and as a fourth-grader, I remember him setting his alarm clock and getting up early to finish his homework.”
The family didn’t always have the best of things, but they certainly didn’t lack love. Donald came from a line of military men. His grandfather was a Marine who had earned a Purple Heart at the Battle of Iwo Jima during World War II, and Donald’s uncle Bob served in the Army, dying in Vietnam when he was 24.
Teresa wasn’t shocked when Donald told her that he wanted to take on the ultimate mental and physical challenge. He joined the Marines in 2005 after a year in college.
One of Donald’s consuming passions in life was motorcycles. He was introduced to motorcycles by his family within his first month of life. Teresa was originally attracted to the man who would become Donald’s father when she saw his Harley-Davidson motorcycle. The couple met in 1979 after Teresa already had been admiring the Harley for a while.
Donald’s love of motorcycles has become inextricably entangled with his death in his mother’s mind.
“Motorcycles were a love that Donald was born into, but now I wish I never had loved motorcycles,” Teresa said. “I feel it was a huge mistake on my part.”
Donald was destined to be a Marine and to ride motorcycles, a destiny that led him to San Angelo and a chance encounter with Malcolm McBurnett.
Lives moving toward collision
Malcolm left San Angelo after attending Angelo State University briefly in the late 1960s. He moved to Lubbock, where he graduated from Texas Tech University with a business degree. It was the era of the 1960s counterculture, and his stepbrother saw its effect on Malcolm.
“He went through the hippie deal” and adopted an environmental conscience, Jerry said. “If somebody threw a piece of paper on the highway, he didn’t like that. He was against that.”
Malcolm let his hair grow past his shoulders, picked up eating tofu and smoked weed, Jerry recalled. From the 1970s through the 1990s, Malcolm lived in numerous cities and worked a number of odd jobs while he traveled abroad and across the United States. His wanderings took him to Washington, New York and up north to Canada.
He worked in the oilfield in Dallas; he rented a house and lived in Austin for several years; he went to Eugene, Oregon, and worked for the post office; and he went to Houston to work on railroads.
“He had an old truck with a camper on it. Him and his girlfriend, and they had a dog,” Jerry said. “They would just take off. … He toured the whole United States, and he was away a whole lot. I think he missed out a whole lot for not being around.”
Malcolm spent much of his adult life away from home, only dropping in once in a blue moon to visit his family. Jerry took a different route. He remained in San Angelo with his parents after graduating from Angelo State University, got married and had three children. Malcolm never married or had children.
“I enjoy working. He didn’t,” Jerry said. “I wanted to work and get ahead. He just wanted to have a good time and spend money.”
On March 9, 1988, exactly 25 years before his path crossed that of Donald Di Pietro, Malcolm racked up his first drunken-driving arrest. It occurred in Tom Green County when Malcolm was 40. He pleaded no contest and received to two years probation.
On the other side of the country, Donald was a little over 3 years old. Donald’s family had just bought their first house in March 1988, but his father got laid off from work, so his mother returned to the workforce as a full-time secretary to support the family.
“None of the other moms worked in our neighborhood, but we had no one to lean on, so it was either work or go under,” Teresa said. “I worried so much being a working mom, but as it turns out, I look back now and think I set a good example for being a hard worker and showed my boys that no one gives you anything. You have to earn it.”
Donald spent his childhood days with a babysitter, at a nursery school or as a latchkey kid because once his mother went back to work full time, she never stopped.
Malcolm’s second DWI came three years after the first — on July 9, 1991 — in Tom Green County. He pleaded no contest and received 15 days in jail.
He committed a third DWI violation six years later — on Aug. 2, 1997 — also in Tom Green County, this time a third-degree felony. He was released the day after his arrest on a $1,000 bond, and less than a month later was arrested on a fourth DWI, on Aug. 30, 1997, in Tom Green County. The cases were addressed concurrently in court. He pleaded guilty to both charges and was sentenced to five years in prison. He was released in 2001.
Malcolm got his fifth DWI on March 26, 2002, in Mason, Texas, when he was 54. He was prosecuted by the 452nd District Attorney’s Office in the 198th District Court in Kerrville, which returned a judgment of 10 years confinement. The sentence was probated for 10 years, and he was ordered to attend a substance abuse program for felons.
There is no one-size-fits-all conviction process for DWI offenders in Texas. A judge could impose probation even on a fourth DWI conviction, depending on the circumstances, location of arrests and the magnitude of the charges sought by prosecutors.
“He got thrown in jail in Mason for drinking,” Jerry said. “He called Melvin, and Melvin went over there, and they did the paperwork while he was in jail.”
Melvin Norman Gray, an attorney who had practiced law in San Angelo for 50 years, entered the picture from that moment by being Malcolm’s defender and later becoming his employer.
“When he got out of prison, they told him to go see his mother, and the second day she died,” Jerry said. “I think she stayed alive just long enough to see him one more time. I think that’s kind of what she wanted.”
Malcolm’s father had died before his mother several years earlier. The brothers inherited equal parts of their parents’ estate, worth almost a million dollars. Their parents, however, named Jerry as the executor of the entire estate.
“I was in charge of the estate. That made him mad,” Jerry said. “I was the executor, and he didn’t like that. He thought he should’ve got all of it, because I’m adopted.”
The brothers’ relationship began to deteriorate shortly after both their parents died and as Malcolm’s drinking habit got increasingly out of hand.
“He could stay away from the alcohol for a little while, and then all of a sudden one drink and that was it. That’s all it took,“ Jerry said. “He went to the extreme, and you couldn’t talk to him about it. He’d get mad, and he got mad at me for I don’t know why, because I helped him.”
Malcolm wanted ownership of his half of the inheritance, but Jerry wouldn’t sign it over. He would ask for spending money constantly, Jerry said. Malcolm would ask for a few hundred dollars to go drinking, and Jerry would cut him a check.
“He enjoys spending money. He said money was made to spend,” Jerry said. “I was the opposite. I saved mine. And he said, ‘Why do you want to save it?’ He said, ‘You’re only here a little while, spend it. Have a good time.’”
Malcolm’s attorney also took part in acquiring Malcolm’s inheritance.
“Melvin would come to my office and he’d say, ‘Well, you’ve handled it long enough,’” Jerry said. “‘You took care of it real good, but your brother wants his part.’”
This went on daily for almost a year, Jerry said, and he finally became fed up and signed Malcolm’s half of the inheritance over to Melvin.
“I wished I could have helped him,” Jerry said. “We could have taken the money and did a lot with it, but he said no, Melvin’s going to take care of it.”
Jerry’s attorney had recommended taking the matter to court because most people believed Malcolm was not mentally capable of handling his inheritance and thought that he would squander the whole thing.
“I said no. I just want out, because he was in my office wanting money all the time. He just burns money just like that,” Jerry said.
Malcolm then went to work for Gray on his ranch and lived there while he was on probation. Gray took care of Malcolm’s legal matters and gave money to Malcolm when he needed it, Jerry said.
For the next 10 years, there is no record of arrests in Tom Green County for Malcolm.
March 9, 2013
By age 28, Donald had become a decorated sergeant in the Marines and a fervent motorcycle enthusiast who had ridden thousands of miles. He had received numerous awards and commendations during his time in the military, including four personal awards — two Navy and Marine Corps Achievement Medals and two Joint Service Achievement Medals.
He was assigned to Goodfellow Air Force Base from San Antonio in August 2010 as an intelligence instructor for the Marine Corps detachment. By then, his mother had relocated to Texas to live with Donald in San Antonio. Donald and Teresa met almost every weekend and spent time together after his reassignment as he adjusted to life in San Angelo.
“The very last second I saw Donald was when he was on his bike, leaving to go back to San Angelo. I stood in the yard and watched until I couldn’t see him anymore,” Teresa said. “He stopped at the stop sign a block away and turned left, but instead of looking forward, he looked to the left, directly at me, and he did not look away until a house got in the way of us seeing each other. At the time it happened, I did not like it. It creeped me out. It was unusual. Now I know why. My poor child.”
On Nov. 3, 2012, Malcolm was arrested on his sixth DWI in Tom Green County and was released the same day on a $100,000 bond.
Malcolm was arrested eight more times in the next five months in San Angelo. Those arrests were misdemeanor allegations including public intoxication, theft, criminal trespass and marijuana possession, among others. The arrests resulted either in no charges or dismissals.
He was fired by his employer and longtime attorney, Melvin Gray, in late 2012, Gray told the Standard-Times in a story published April 12, 2014.
Gray also sold him a derelict 1991 Chevrolet Cheyenne pickup truck with a salvage title.
On March 9, 2013, Malcolm was out drinking and stopped at the Party Ranch bar on Christoval Road.
Donald was riding his 2012 Victory Highball motorcycle down a dark stretch of Christoval Road, making his way to meet a fellow Marine for dinner at the Texas Roadhouse restaurant that Saturday night.
“I was there waiting when I started to get worried because he was late,” said Douglas Richard Stinebiser, a retired Marine staff sergeant. “He wasn’t the type of man to be late.”
Donald took the fastest route to the restaurant, which would take him past the Party Ranch.
Evidence and testimony in court chronicled the evening’s events in detail.
Malcolm walked stiffly as he entered the bar at 5:02 p.m., sat on a stool directly across from the bartender and did not move from there until he left.
Malcolm was a regular patron of the bar and had bought drinks for about six people that night. The bartender said she had paid for a cab to take him home two nights before and told him to make sure he had enough for a cab ride home.
Malcolm drank three 12-ounce longneck bottles of Lone Star Beer before upending his last drink at 7:19 p.m. and leaving the bar.
He staggered as he walked to his pickup, which was parked directly outside the building and just a few feet from Christoval Road. The truck was registered to Gray, according to public data.
Malcolm had trouble opening the driver’s side door of the truck and held onto it for support as he made his way to the front to raise the hood when the vehicle wouldn’t start.
The pickup was dead; one way to get it started would be to push it forward and pop the clutch while it was still moving. Malcolm went back into the bar and recruited an acquaintance, Allen Lee Schmidt, to assist him. Schmidt used his vehicle to push Malcolm’s stalled truck into the roadway.
The pickup was now disabled in the roadway and perpendicular to the flow of traffic. The lights on the pickup were not turned on. Malcolm was behind the steering wheel attempting to start it. It was dark, and no one attempted to stop traffic.
Donald was southbound on Christoval Road around 7:30 p.m., having left his house on the motorcycle about five minutes earlier. Down the road, an inert piece of steel sat across the pavement like a gate slammed against what remained of his future.
Police said that evidence at the scene showed the motorcycle’s brakes were applied almost 80 feet before it fell on its left side. It slid 18 more feet before crashing into the pickup.
“As my son lay dying in the road, his helmet cracked from the impact and blood from his severed organs due to his ribs being crushed, flowing out of his mouth, nose and ears,” Schmidt went back into the bar and started drinking again, Teresa said. “This by far is the most painful aspect of this horrific tragedy for me, next to imagining my poor son’s final seconds as he knew he was going to die.”
Schmidt’s actions were documented by the bar’s video security system and entered into evidence during his court case.
Donald crashed into the back of the pickup and died at the scene. His death certificate shows that he died as a result of blunt force injuries to the head and torso. The toxicology report from his autopsy showed no intoxicants in his system..
Malcolm was arrested at 10:35 p.m. and charged with intoxication manslaughter with a vehicle. He had no injuries.
Schmidt was convicted on a charge of manslaughter by a Tom Green County jury on Aug. 20, 2014, for his involvement in Donald’s death. He was given a 10-year sentence, probated for 10 years, because he didn’t have any prior felony conviction. Jurors also ordered that he pay a $10,000 fine.
From the time of his arrest to his conviction date, Malcolm was transferred in and out of jail to numerous hospitals around Texas for competency testing. The case dragged on for more than three years.
The case was ultimately decided on Oct. 4, 2016. Malcolm, standing at 6 feet, 6 inches, hurriedly entered a Tom Green County courtroom with a slight limp, in an orange jail suit and handcuffs for a plea hearing. He didn’t make eye contact with anyone and spoke softly when he needed to.
He pleaded guilty to intoxication manslaughter with a vehicle — a first-degree felony punishable by five to 99 years in prison — as part of a plea agreement with prosecutors and was sentenced to 35 years in prison. The court action included a no-contest plea to the November 2012 DWI charge, for which he received a 15-year concurrent sentence.
Malcolm’s stepbrother wasn’t present during the punishment hearing. Jerry hadn’t been in contact with Malcolm for the last decade. He learned of his younger brother’s fate by reading newspaper accounts and hearing it from friends and family.
“He’s real kind-hearted, he’s just got that sickness. … Why he didn’t stay away from it, I can’t tell you, because I don’t know,” Jerry said. “He’s really not a bad person. Everything was at the wrong time at the wrong place, but I had a feeling something was going to happen because he would drive, especially driving that old pickup.”
Malcolm’s criminal record shows 32 arrests dating back to his first on April 12, 1974, for marijuana possession in Dallas County, for which he was convicted and received six months probation, according to records from The Texas Department of Public Safety and Criminal History and Tom Green County court records.
The majority of Malcolm’s arrests were misdemeanor offenses for drug possession, public intoxication and criminal trespass among others, for which some of the charges were never filed or dismissed. Felony convictions were for intoxication manslaughter with a vehicle, four DWIs and theft between $750 and $20,000 or livestock worth less than $20,000 on July 18, 1994, in Tom Green County, to which Malcolm pleaded guilty and received 10 years confinement probated for 10 years.
Malcolm declined a Standard-Times request for an interview through the Texas Department of Criminal Justice.
“He always said if you got money you can beat the system,” Jerry said. “But he pretty much squandered all of his money, I think. I don’t know what’s left.”
Jerry and Malcolm’s relationship became estranged through the years because of death, money and crimes. “He would always say, ‘Well, why worship the dollar? If I die, the county will bury me; you’ll have to pay for yours. If I need something to eat I can go to the Salvation Army or go to church. They’ll feed me.’ He said, ‘You need to spend your money and have a good time, because you’re only here a little while.’”
Teresa filed a lawsuit in March 2015 against Malcolm Guy McBurnett, Schmidt, Party Ranch owner Tracy Lawson and PartyRanch LLC,. A hearing in the case is scheduled for April 11, 2017. The bartender pleaded no contest to selling alcohol to a certain person, which is a misdemeanor, and received one year probation. The Party Ranch shut down permanently in summer 2014, and the building on Christoval Road remains vacant.
Four years since the fatal encounter, Teresa still struggles with grief and holds resentment against Malcolm.
“It’s been four long years of being buried in a black hole of grief, but now God is pulling me out,” Teresa said. “No one understands why Donald was killed. It’s so senseless.”
Donald was buried at Great Lakes National Cemetery in Holly, Michigan.
“One of my favorite memories of Donald was how easygoing he could be and funny. He loved to laugh,” Teresa said. “He was always a happy baby. At 18 months old when I walked in holding his new baby brother, he reached out his arms and made me give him the baby. Even that young, he was loving and wanted to take care of others.”
Malcolm’s case is scheduled for its first parole review on March 22 by a parole board in Amarillo.
Teresa recently started a petition that’s garnered about 700 signatures, with a goal of 1,000, which she will present to the parole board in hopes that they will deny any bid Malcolm makes for release on parole.
Find the original story at gosanangelo.com.