Texas Department of Criminal Justice

Texas Attorney General Media Advisory

AUSTIN – Texas Attorney General Greg Abbott offers the following information about 28-year-old Jasen Shane Busby, who is scheduled to be executed after 6 p.m. Wednesday, August 25, 2004. In 1996, the Smith County native was sentenced to die for the 1995 capital murders of two teenage girls in Cherokee County in East Texas.

FACTS OF THE CRIME

Busby was convicted of capital murder and sentenced to death for murdering sixteen-year-old Brandy Gray and eighteen-year-old Tennille Thompson. Busby also shot and attempted to kill his friend, 18-year-old Chris Kelley at the same time.

On April 17, 1995, Busby and Gray, Thompson, Kelley, and a fifth person went to a trailer in Antioch after purchasing some marijuana joints. Around 10 p.m., Busby walked out of the trailer. Kelley heard the sound of a gun being loaded. Kelley began to open the door while someone from the outside was opening it at the same time. Kelley saw the end of the gun barrel, was shot in his neck, and fell onto his back. He then heard Gray scream and another gunshot. Next, Kelley heard Thompson beg for her life and a third gunshot. Although he could not see because of the darkness, Kelley recognized Busby’s voice. Busby walked over to Kelley, poked him with the gun, and asked him if he was alright. Kelley did not respond. Busby rolled Kelley over, took his wallet, car keys, and $15.00 out of Kelley’s front pocket, and walked out the door. Kelley heard his truck start, crawled over to the door, and saw the taillights of his truck move out of sight.

Kelley then ran down the road and banged on the front door of a house to ask for help. Kelley told authorities that Busby shot him and the two girls and drove away in Kelley’s red truck. Officers found Gray and Thompson lying on the floor of the trailer and spent shell bullet cases inside the trailer and bullet holes in a wall of the trailer.

A police officer stopped the red truck after spotting it heading eastbound on Highway 79 in Jacksonville. Busby was then handcuffed and placed in the patrol vehicle. Officers found an SKS rifle along a highway where Busby had dumped it. Larry Fletcher, a firearms examiner, conducted ballistics tests on the shell casings retrieved by the police at the crime scene. He found that an unspent cartridge was ejected from the SKS rifle and that one spent cartridge was fired from the rifle.

Busby later admitted to committing the murders. Busby told an officer that the “Devil made me do it.”

Mark Oppen, a friend of Busby’s, testified that Busby wrote him several letters while he was confined in the Cherokee County Jail. In these letters, Busby admitted to killing the victims and described the shootings. He also stated that he wanted to kill two other persons and then himself during the night in question. Further, the letters contained threats against others, including the trial judge and Kelley.

PROCEDURAL HISTORY

On June 20, 1995, Busby was indicted in the 2nd Judicial District Court of Cherokee County, Texas, for the capital offense of murdering Tennille Thompson and Brandy Gray during the same criminal incident. After Busby pleaded not guilty, a jury found him guilty of the capital offense on July 19, 1996. On July 27, 1996, after a separate punishment hearing, the court sentenced Busby to death by lethal injection. The Texas Court of Criminal Appeals affirmed Busby’s conviction and sentence in a published opinion delivered on March 31, 1999. Busby’s petition for writ of certiorari was denied by the U.S. Supreme Court on January 10, 2000.

Busby filed a state application for writ of habeas corpus in the trial court on November 20, 1998. Following a hearing, the trial court entered findings of fact and conclusions of law recommending that Busby be denied relief. The Court of Criminal Appeals adopted the trial court’s findings and conclusions and denied relief on September 13, 2000.

Busby filed a federal petition in the U. S. District Court for the Eastern District of Texas, Sherman Division, on September 12, 2001. On March 31, 2003, the district court denied Busby’s federal writ petition. However, on April 25, 2003, the district court granted Busby permission to appeal four issues. Busby also sought to appeal several remaining issues, but the 5th U.S. Circuit Court of Appeals denied Busby permission to appeal these issues on August 15, 2003. With respect to the four issues on which Busby was granted permission to appeal, the Fifth Circuit affirmed the district court’s decision in a published opinion on February 4, 2004. Busby subsequently petitioned the U.S. Supreme Court for certiorari review. The Supreme Court denied the petition on June 7, 2004.

CRIMINAL HISTORY/PUNISHMENT PHASE EVIDENCE

In 1993, Busby was convicted of Class B misdemeanor theft over $20 but less than $200. In 1995, Busby was convicted of burglary of a vehicle, a Class A misdemeanor.

At the punishment phase of Busby’s capital murder trial, the State introduced other letters written by Busby while in pretrial detention. In these letters, which were addressed to friends and relatives, Busby admitted in graphic detail to the killings, and he stated that he felt he did Gray a favor by killing her, that he killed because he was on drugs, and that he was glad he was in jail so that he would not hurt anyone else. He even expressed a desire to escape from jail.

Cynthia Neely, April Davenport, and Erin Isenburg testified about verbal and nonverbal threats of violence by Busby. Busby also made statements in jail to a man named Byers regarding Busby’s lack of remorse and plans of future violence. Busby told Byers that the murders “don’t bother me a bit,” and that “[i]f they think I went on the rampage that time let me get a gun and a hit of acid. I will get out of here and show them how to go on a rampage.”

Dr. Tom Allen, a psychologist, testified as to the probability that Busby would commit future acts of dangerousness. Dr. Allen stated that Busby’s actions prior to committing the murders pointed toward future dangerousness. Allen concluded that Busby constituted “a significant risk to commit continuing acts of violence against society.”

ProDeathPenalty.com

Jasen Shane Busby, his friend Christopher Kelley, and Kelley’s girlfriend Brandy Gray lived together in a cabin in Maydelle, Texas. On Sunday, April 16, 1995, they spent the night in a trailer in Antioch with Tenille Thompson, an acquaintance. The next morning, Busby drove Kelley’s truck to buy donuts for the group for breakfast. When Busby returned, he was accompanied by Darrell Smith. The group made several trips to various places that day, and at one point some members of the group, including Busby, took turns shooting an assault rifle outside of the Maydelle cabin. During the course of the day they also purchased some marijuana, which some of the group, including Busby, smoked later that night at the Antioch trailer.

Around ten o’clock that night, Busby and Smith went outside the trailer. Kelley, who was still inside the trailer, heard them loading a gun and talking about how many bullets were in it. Kelley started to open the door but found that someone else was already opening it from the other side. Busby then shot Chris Kelley, Brandy Gray, and Tenille Thompson and then drove off in Kelley’s truck with Smith. The two women were dead. Chris Kelley, with a gunshot wound in the neck, went to a neighboring house for help.

He described Busby and the truck to the police. Chris Kelley survived his wound and would testify at Busby’s trial, providing many of the details recounted above. The police took Busby and Smith into custody on the night of the shootings after an officer spotted Kelley’s truck on the highway. Busby had a clip of bullets in his pocket. Investigators spoke to both men late that night and into the next morning. After being read his rights, Busby gave a taped confession, which he would later claim was the product of drug intoxication. Smith told investigators that Busby had hidden the murder weapon, and Smith showed them where to find it. The authorities recovered the gun, which was later linked to shells found at the scene of the killings.

Busby was indicted for capital murder. Busby also wrote letters from jail to family and friends in which he admitted to the killings, described them in detail and made what appeared to be threats against others, namely Chris Kelley and the judge in the case. Kelley testified that three days before the shootings Busby said that he had sold his soul to the devil.

UPDATE: Condemned inmate Jasen Shane Busby was executed for the fatal shooting of two teenage girls more than nine years ago in Cherokee County in East Texas. In a brief, final statement, Busby thanked his family for "standing by me" and expressed love for them. He turned to relatives of his victims and said that he "didn't do what I did to hurt you all. I am sorry that I did what I did. I don't think you know the true reason for doing what I did, but Brandy and I had a suicide pact and I just didn't follow through with it. That did not come out in the trial. I am not trying to hurt you by telling you this. I am trying to tell you the truth," he said. After saying that he was ready and that he would "see you later." Busby remarked as the lethal drugs began to flow, "Here it comes. I can feel it." He took a couple of breaths and then slipped into unconsciousness. Nine minutes later at 6:20 p.m., he was pronounced dead.

Texas Execution Information Center by David Carson.

Jasen Shane Busby, 28, was executed by lethal injection on 25 August 2004 in Huntsville, Texas for murdering two teenagers.

On 16 April 1995, Busby, then 19, and three friends spent the night in a trailer home in Antioch. Christopher Kelley, 19 was Busby's friend. Brandy Gray, 16, was Kelley's girlfriend. Tenille Thompson, 18, was Gray's cousin. The trailer home was owned by Thompson's stepfather. On the morning of 17 April, Busby drove Kelley's red pickup truck to by donuts for the group. When he returned, he was accompanied by Darrell Smith. The group made trips to various places that day, including one where they shot Busby's parents' SKS semiautomatic rifle. They also purchased some marijuana.

At about 10:00 p.m., after smoking the pot, Busby and Smith walked outside. When Kelley opened the door of the mobile home to walk outside, Busby shot him in the neck. Busby then walked inside and shot Gray and Thompson. He then took money from Kelley's billfold and drove off in his truck with Smith. Kelley survived his wound, but the two girls died.

After Busby drove away, Kelley ran to a neighbor's house and asked for help. He reported that he and two others had been shot, and he described Busby and his truck to police. A police officer spotted the truck that night and arrested Busby and Smith. Busby had a clip of bullets in his pocket. He gave a confession, and Smith told police where to find the murder weapon, which Busby had discarded along the highway. Busby told police that he shot the teenagers because he was high on drugs, and that "the Devil made me do it."

Christopher Kelley testified at Busby's trial. He said that he heard someone outside talking about loading a gun. He opened the door to go out, and, at the same time, someone outside was opening it to go in. The next thing Kelley saw was the barrel of a gun, then he was shot and fell onto his back. He heard Brandy Gray scream, then another gunshot. Next, he heard Tenille Thompson beg for her life, then a third shot. Kelley testified that he recognized the assailant's voice as Busby's. He said that Busby walked over to him, poked him with the gun, and asked him if he was alright. Kelley did not respond. Busby then rolled Kelley over, taking his wallet, car keys, and cash. Kelley heard his truck start, crawled over to the door, and saw the taillights as the truck left.

A ballistics expert testified that the SKS rifle recovered from the highway was the same weapon used in the murders.

At Busby's trial and punishment hearing, the state presented dozens of letters Busby wrote from jail, in which he admitted to the killings and described them in detail. Busby also wrote that he did Gray a favor by killing her. In the letters, he also made threats against Kelley and the trial judge.

Busby had previous misdemeanor convictions for burglary of a vehicle and theft.

A jury convicted Busby of capital murder in July 1996 and sentenced him to death. The Texas Court of Criminal Appeals affirmed the conviction and sentence in March 1999. All of his subsequent appeals in state and federal court were denied.

"I don't think you know the true reason for doing what I did," Busby said in his final statement. "Brandy and I had a suicide pact, and I just didn't follow through with it. That did not come out in the trial. I am not trying to hurt you by telling you this. I am trying to tell you the truth," he said. He also apologized to his victims' relatives, saying "I am sorry that I did what I did." He also expressed love for his family and thanked them for their support. After Busby said, "See you later," the warden signaled for the lethal injection to start. As the lethal drugs began to flow into his body, Busby remarked, "Here it comes. I can feel it." He then took a couple of breaths and lost consciousness. He was pronounced dead at 6:20 p.m.

Huntsville Item

"Tyler man executed for 1995 killing of two teenage girls," by Amy Roberts, (August 25, 2004)

Jasen Shane Busby, 28, became the 11th Texas prisoner to be executed this year Wednesday evening at the Huntsville "Walls" Unit.

Busby was executed by lethal injection for the 1995 murder of cousins Tenille Thompson, 18, and Brandy Gray, 16. A third person, 18-year-old Christopher Kelley, was also shot by Busby but survived his wound. Busby was arrested within an hour after gunning down Thompson and Gray in a mobile home in Antioch, just west of Jacksonville. It was his third victim, Kelley, who called for help and identified Busby as the gunman and later testified against him.

At the time of the crime Busby was 19 years old. He confessed to police but argued later in appeals that he was high on drugs when he made his statement. The courts rejected the argument.

In his final statement Wednesday, Busby thanked his family for "standing by me," and apologized for all of the pain he caused them. At the point when he addressed the victim's family, he turned to them and expressed remorse. "I want to tell everyone, my family, thanks for standing by me. I want to tell Mr. and Mrs. Gray and everyone that I didn't do what I did to hurt you all. I am sorry that I did what I did," he said.

Busby further tried to explain the reasoning behind the murder of Brandy Gray. "I don't think you know the true reason for doing what I did, but Brandy and I had a suicide pact and I just didn't follow through with it. That did not come out in the trial. I am not trying to hurt you by telling you this. I am trying to tell you the truth," he said. "I want Cindy to know that I know she is out there - and Vicente Hernandez that I love them. Thank you for all you have done and I want to make sure you are all right," Busby said. After saying that, Busby said he was ready and that he would "see you later." Busby remarked as the lethal drugs begin to flow, "Here it comes. I can feel it." He took a couple of breaths, closed his eyes and then slipped into unconsciousness. Nine minutes later at 6:20 p.m., Busby was pronounced dead.

Today, death row inmate James Vernon Allridge, 41, is scheduled for lethal injection for the 1985 fatal shooting of a Fort Worth convenience store clerk. Allridge, whose brother, Ronald, was executed in 1995 for the slaying of a woman during a restaurant robbery in Fort Worth, was condemned for the slaying of store clerk Brian Clendennen, 21, during a $300 robbery in Fort Worth. Ronald Allridge, drove the getaway car.

Dallas Morning News

"Man executed for East Texas slayings." (AP August 25, 2004)

HUNSTVILLE, Texas -- Convicted killer Jasen Shane Busby of Tyler wasexecuted Wednesday for a 1995 double slaying at a mobile home in Antioch. The two girls were cousins – 18-year-old Tennille Thompson and 16-year-old Brandy Gray. A third person, 18-year-old Christopher Kelley, was wounded but managed to call for help.

Court records showed Busby and the victims had been partying and smoked marijuana. Busby confessed to officers, but later argued that his statement was the result of drug intoxication. The courts rejected that argument.

Busby was the eleventh convicted killer in Texas to have his punishment carried out this year.

In his final statement, Busby thanked his family for standing by him and expressed love for them. He turned to relatives of his victims and said that he "didn't do what I did to hurt you all. I am sorry that I did what I did. "I don't think you know the true reason for doing what I did, but Brandy and I had a suicide pact and I just didn't follow through with it. That did not come out in the trial. I am not trying to hurt you by telling you this. I am trying to tell you the truth."

Denton Record-Chronicle

"Convicted murderer executed for double slaying in East Texas," by Michael Graczyk. (AP August 25, 2004)

Condemned inmate Jasen Shane Busby was executed Wednesday for the fatal shooting of two teenage girls more than nine years ago in Cherokee County in East Texas.

In a brief final statement, Busby thanked his family for "standing by me" and expressed love for them. He turned to relatives of his victims and said that he "didn't do what I did to hurt you all. I am sorry that I did what I did." "I don't think you know the true reason for doing what I did, but Brandy and I had a suicide pact and I just didn't follow through with it.," he said. "That did not come out in the trial. I am not trying to hurt you by telling you this. I am trying to tell you the truth." After saying he was ready and would "see you later," Busby remarked as the lethal drugs began to flow, "Here it comes. I can feel it." He took a couple of breaths and then slipped into unconsciousness. Nine minutes later, at 6:20 p.m., he was pronounced dead.

Busby, 28, of Tyler, became the 11th Texas prisoner executed this year. A second execution is scheduled Thursday night at the Texas Department of Criminal Justice Huntsville Unit with James Vernon Allridge, 41, set for lethal injection for the fatal shooting of a Fort Worth convenience store clerk in 1985.

Busby was arrested within an hour after cousins Tennille Thompson, 18, and Brandy Gray, 16, were gunned down at a mobile home in Antioch, just west of Jacksonville. A third person, Christopher Kelley, then 18, was shot in the neck but managed to call for help. He identified Busby as the gunman and testified against him. Busby was caught with Kelley's red pickup truck. Ammunition from the assault rifle used in the slayings was scattered in the back of the truck. Records showed he told an officer the "devil made me do it."

"He made a bad choice, and bad choices cost pretty dearly sometimes," James Cromwell, the now-retired Cherokee County district attorney who prosecuted Busby, said this week. Court records also showed Busby and the victims had been partying for several hours and had smoked marijuana. Busby, who was 19 at the time, gave a confession to police but argued later in appeals that his statement was the result of drug intoxication. The courts rejected the argument.

Busby declined to speak with reporters in the weeks leading up to his execution date. In letters he wrote to friends while in jail awaiting trial, he described the slayings in graphic detail. In unsuccessful appeals, he contended authorities improperly viewed and made copies of the letters.

"His letters, his confession, the testimony of the eyewitness, we had a lot of evidence," Cromwell said. "The facts fit the need for the death penalty and the state sought the death penalty. We didn't make up the facts." In similar appeals to the courts, attorneys for both Busby and Allridge challenged the way Texas juries decide death penalties. The Texas Court of Criminal Appeals rejected the claims, sending the cases into the federal courts. The U.S. Supreme Court rejected Busby's appeals Wednesday.

Defense lawyers argued a U.S. Supreme Court ruling in June in a Washington state case makes improper the question of whether convicted murderers present a future danger. It's one of the questions Texas jurors are asked when they consider whether a capital murder convict should be sentenced to death.

The appeals also contended a life prison term is the maximum sentence a judge can impose if a jury can't agree on the so-called special issue questions that can lead to a death sentence. But the appeals argued a death sentence based on a jury's answers to those questions is a "tail that wags the dog" escalation of the statutory maximum sentence and improper under recent Supreme Court decisions.

In addition, lawyers for Allridge, whose brother, Ronald, was executed in 1995 for the slaying of a woman during a restaurant robbery in Fort Worth, contended he's been rehabilitated during his 17 years in prison and executing him after his rehabilitation would be improper cruel and unusual punishment. Allridge's lawyers also argued jurors deliberating his punishment were not allowed to properly consider his abusive childhood and his domination by his violent older brother.

Reuters News

"Texas Man Executed for 1995 Murder Rampage." (Wed Aug 25, 2004)

HUNTSVILLE, Texas (Reuters) - A Texas man was put to death by lethal injection on Wednesday for murdering two teen-agers while high on drugs in 1995. Jasen Busby, 28, was condemned for killing Tenille Thompson, 18, and Brandi Gray, 16, in a April 17, 1995, rampage in a Jacksonville, Texas, mobile home. He also critically wounded Christopher Kelley, 19.

In a final statement while strapped to a gurney in the death chamber, Busby thanked his family and spoke to Gray's parents. "I am sorry that I did what I did," he said. "I don't think you know the true reason for doing what I did, but Brandi and I had a suicide pact and I just didn't follow through with it. That didn't come out in the trial. I am not trying to hurt you by telling you this. I am trying to tell you the truth."

Busby was the 11th person executed in Texas this year and the 324th since the state resumed capital punishment in 1982, six years after the U.S. Supreme Court lifted a national death penalty ban. Both totals lead the nation.

For his final meal, Busby requested fried chicken breasts, jalapenos, barbecue ribs, catfish with tartar sauce, a medium steak, french fries with ketchup, plain M&M's candy, cherries, strawberries, and a peach. He also had milk mixed with chocolate syrup.

James Allridge III is scheduled for execution on Thursday for the 1985 robbery and murder of a Fort Worth, Texas, convenience store clerk. Allridge has been pen pals for several years with actress Susan Sarandon, who visited him in July.

Houston Chronicle

"Inmate executed for double slaying." (Associated Press Aug. 25, 2004, 6:48PM)

HUNTSVILLE -- Condemned inmate Jasen Shane Busby was executed today for the fatal shooting of two teenage girls more than nine years ago in Cherokee County in East Texas.

In a brief, final statement, Busby thanked his family for "standing by me" and expressed love for them. He turned to relatives of his victims and said that he "didn't do what I did to hurt you all. I am sorry that I did what I did." "I don't think you know the true reason for doing what I did, but Brandy and I had a suicide pact and I just didn't follow through with it. That did not come out in the trial. I am not trying to hurt you by telling you this. I am trying to tell you the truth," he said. After saying that he was ready and that he would "see you later." Busby remarked as the lethal drugs began to flow, "Here it comes. I can feel it." He took a couple of breaths and then slipped into unconsciousness. Nine minutes later at 6:20 p.m., he was pronounced dead.

Busby, 28, of Tyler, became the 11th Texas prisoner executed this year. A second execution is scheduled Thursday night at the Texas Department of Criminal Justice Huntsville Unit.

James Vernon Allridge, 41, was set for lethal injection Thursday evening for the fatal shooting of a Fort Worth convenience store clerk in 1985.

National Coalition to Abolish the Death Penalty

Jasen Busby, TX - August 25, 2004 6 p.m. CST

The state of Texas is scheduled to execute Jasen Shane Busby, a white man, Aug. 25 for the 1995 murders of 18 year old Tennile Thompson and 16 year old Brandy Gray in Cherokee County. Mr. Busby was 19 years old at the time of the crime, had no previous criminal record, and was under the influence of marijuana. Mr. Busby had no previous record of arrest or drug use.

There are 19,000 murders per year. Approximately 0.4% of these murders end with an execution. Mr. Busby, a 19 year-old with no record, does not belong in this group. Who does belong in the group? While blacks and whites are victims of violent crime in almost equal numbers, 8 out of every 10 executions involve a white victim. Ninety-five percent of people on death row could not afford an attorney. Those who can afford attorneys do not get sent to death row, barring extreme circumstances.

Until 2002, the group including the mentally retarded. Until 1986 the group included the insane. Today it still includes juveniles and the severely schizophrenic or mentally ill. Cherokee County had never tried a death penalty case before, and a jury determined that Jasen Busby would be one of the 0.4% to die.

If the execution proceeds as scheduled, he will receive a lethal injection at 6:00 p.m. CST. Please keep him, his family, and the families of Tennile Thompson and Brandy Gray in your thoughts.

Canadian Coalition to Abolish the Death Penalty

JASEN BUSBY'S CCADP PEN PAL REQUEST:

Death Row is boring. Unless you are into watching TV all day like a mindless idiot, that is, and don't care about what is happening to you and the world around you. My name is Jason Busby and they call me the Buzz for obvious reasons. I've been sitting around here for about three years now, and am having trouble keeping myself occupied. If you're bored too, or maybe have plenty to do and just want to holler at somebody for awhile, or help a fellow out ---here I am! Twenty three years old, I weigh about 140 nd am 5'7 tall, if that helps you any. Plus I'm white and blue eyed. I like to draw and lots of other art related hobbies, but if you really want to know who I am, write and tell me about yourself. I have plenty of time, and you'll probably get a lengthy response. This feels like I am applying for a job or something...What do you think? Am I hired? Hopefully yours,

JASEN BUSBY 999201
Polunsky Unit D.R.
3872 FM 350 South
Livingston Texas 77351 USA

Jacksonville Daily Progress

"Jasen Busby set for execution," by Jennifer Gruber and Samantha Swindler. (August 24, 2004)

The final conclusion in a saga that began nine years ago is about to come for convicted murderer Jasen Shane Busby. Busby is scheduled for execution Wednesday for the 1995 shooting deaths of 18-year-old Tenille Hamilton Thompson and 16-year-old Brandy Gray in Antioch, just outside of Jacksonville.

Jacksonville Police Department officers Greg Ray, Tonya Harris and Jesse Maberry were on duty the night Busby was taken into custody. Ray is now an officer with the Jacksonville ISD Police Department. Harris - still with JPD - is now a detective, and Maberry is a sergeant with the JPD.

Nearly 10 years later, Ray still remembers the traffic stop that ended with Busby's arrest - ammunition scattered in the back of the vehicle, a pair of purses in the front passenger seat. "We had just gotten on shift that night," Ray said. "Jesse Maberry found the vehicle right after we got on the street (at 11 p.m.)" Busby's vehicle was identified by his third victim - Christopher Kelley, 18 at the time of the crime, was shot in the neck but survived his wounds to call police after Busby left the crime scene.

According to information from the Texas Department of Criminal Justice Web site, Busby, along with another teen and the three victims, smoked marijuana at a mobile home in Antioch when Busby walked outside, grabbed the automatic assault rifle he had stolen from his parent's house in Tyler and shot Kelley, Thompson and Gray. Maberry said Kelley was able to walk down the road and called the sheriff's department.

"We were on the lookout for the vehicle," Maberry said. "I spotted the vehicle matching the description (of the suspect's vehicle) on East Rusk Street." After calling for backup, Maberry performed a normal traffic stop on Busby's small, red truck. "We didn't do a felony stop on the vehicle or anything," Maberry said, because officers had only a general description of the truck - and not a license plate. "We didn't want to scare somebody half to death who wasn't involved."

Busby stepped out of the truck when stopped, Ray said, and he did not fight with police during his arrest. "We didn't take any chances with him, but he didn't offer any resistance," Ray said. "We just got him out of the vehicle."

Because Busby's charges didn't go through Jacksonville Police Department, JPD detained Busby until Cherokee County Sheriff's Department officials arrived. "He (Busby) acted like nothing had happened, like he hadn't done anything wrong," Ray said. "He was very cold and calculated. He was just a very scary individual."

In one short conversation that night, Ray said Busby asked if police officers wore bullet-proof vests. Busby then said it didn't matter because "everybody knows to shoot cops in the head."

Though some of the details from the arrest are fading for Maberry, he said he'll always remember Busby's demeanor at the time of the arrest - about 30 minutes after the crimes were reported. "He didn't give the outward appearance of having just committed a crime," Maberry said, adding Busby was neither nervous nor showed signs of trying to hide anything. However, Maberry realized at the time Busby probably thought the crimes were not yet discovered. "It's my understanding that as soon as Busby left, he (Kelley) walked down the road and reported the incident to the sheriff's department," Maberry said. "His thoughts (Busby's thoughts) were probably that those three people were dead."

During his time as a police officer, Maberry said he's never dealt with a situation like the one that happened the night he arrested Busby. "It kind of was a remarkable deal," Maberry said. "It's something we'll remember forever."

Busby is scheduled to die Wednesday by lethal injection at the TDCJ prison in Huntsville.

Busby v. State, 990 S.W.2d 263 (Tex.Crim.App. 1999) (Direct Appeal).

Defendant was convicted in the District Court, Cherokee County, John Robert Adamson, J., of capital murder. Defendant appealed. The Court of Criminal Appeals, Keller, J., held that: (1) personal knowledge was not required for state's controverting affidavits on motion to change venue; (2) defense counsel was not ineffective in requesting that peremptory challenges be exercised after voir dire; (3) warrantless arrest of defendant was valid; (4) due process clause did not require that jury consultant be appointed for an indigent defendant; and (5) failure to appoint a substance abuse expert did not violate due process. Affirmed. Johnson, J., filed a concurring opinion in which Myers and Price, JJ., joined.

KELLER, J., delivered the opinion of the Court.
At a trial beginning in May 1996, appellant was convicted of capital murder, committed on or about April 17, 1995. Texas Penal Code § 19.03(a)(7)(A). Pursuant to the jury's answers to the special issues set forth in Texas Code of Criminal Procedure Article 37.071 §§ 2(b) and 2(e), the trial judge sentenced appellant to death. Article 37.071 § 2(g). [FN2] Direct appeal to this Court is automatic. Article 37.071 § 2(h). Appellant raises eleven points of error, ten in his original brief and one in a supplemental brief. We will affirm.

§ 19.03(a)(7)(A) provides that a person commits capital murder when he murders "more than one person"..."during the same criminal transaction" (ellipsis inserted).

On April 17, 1995, appellant shot Chris Kelley, Tennille Thompson, and Brandy Gray. Thompson and Gray died, while Kelley was wounded. Appellant then drove off in Kelley's pickup truck. Because appellant does not challenge the sufficiency of the evidence, we dispense with a more detailed recitation of the facts except as relevant to his points of error.

* * * *

The judgment of the trial court is affirmed.

Busby v. Dretke, 359 F.3d 708 (5th Cir. 2004) (Habeas).

Background: After affirmance of his conviction of capital murder and death sentence, 990 S.W.2d 263, petitioner sought a writ of habeas corpus. The United States District Court for the Eastern District of Texas, David Folsom, J., denied the petition, and petitioner appealed.

Holdings: The Court of Appeals, King, Chief Judge, held that: (1) appellate counsel's decision not to pursue issue of admissibility of petitioner's inculpatory jailhouse letters was not outside the wide range of professionally competent assistance that petitioner was entitled to; (2) jail's policy of reading outgoing non-privileged correspondence and turning inculpatory letters over to the prosecutors did not violate the First Amendment; (3) petitioner's pretrial publicity claim was procedurally defaulted; and (4) prejudice sufficient to warrant a change of venue could not be presumed by virtue of pretrial press coverage, and therefore petitioner was not entitled to venue change absent proof that jurors were actually biased against him. Affirmed.

KING, Chief Judge:
Petitioner-appellant Jasen Shane Busby has been convicted of capital murder in the Texas state courts and sentenced to death. The district court denied Busby's petition for a writ of habeas corpus but granted Busby a certificate of appealability (COA) on several issues. This court later denied Busby's request for a COA on additional claims. We now address the issues for which Busby was granted a COA. Finding them without merit under the governing standards, we affirm the district court's denial of habeas relief.

I. FACTUAL AND PROCEDURAL BACKGROUND

The basic facts of the crime are no longer disputed at this stage of the proceedings. Busby, his friend Christopher Kelley, and Kelley's girlfriend Brandy Gray lived together in a cabin in Maydelle, Texas. On Sunday, April 16, 1995, they spent the night in a trailer in Antioch with Tenille Thompson, an acquaintance. The next morning, Busby drove Kelley's truck to buy donuts for the group for breakfast. When Busby returned, he was accompanied by Darrell Smith. The group made several trips to various places that day, and at one point some members of the group, including Busby, took turns shooting an assault rifle outside of the Maydelle cabin. During the course of the day they also purchased some marijuana, which some of the group, including Busby, smoked later that night at the Antioch trailer.

Around ten o'clock that night, Busby and Smith went outside the trailer. Kelley, who was still inside the trailer, heard them loading a gun and talking about how many bullets were in it. Kelley started to open the door but found that someone else was already opening it from the other side. Busby then shot Kelley, Gray, and Thompson and drove off in Kelley's truck with Smith. The two women were dead. Kelley, with a gunshot wound in the neck, went to a neighboring house for help. He described Busby and the truck to the police. Kelley survived the wound and would testify at Busby's trial, providing many of the details recounted above.

The police took Busby and Smith into custody on the night of the shootings after an officer spotted Kelley's truck on the highway. Busby had a clip of bullets in his pocket. Investigators spoke to both men late that night and into the next morning. After being read his rights, Busby gave a taped confession, which he would later claim was the product of drug intoxication. Smith told investigators that Busby had hidden the murder weapon, and Smith showed them where to find it. The authorities recovered the gun, which was later linked to shells found at the scene of the killings. Busby was indicted for capital murder.

The legal claims in this appeal arise from two sets of circumstances that occurred while Busby was awaiting trial. First, Busby claims that pretrial publicity poisoned the atmosphere in Cherokee County, the site of the trial. At the time, Cherokee County had a population of approximately 42,000 people. The only local daily newspaper was the Jacksonville Daily Progress, with a paid circulation of around 5,500. The paper ran at least a dozen articles about the murders on its front page, including articles and photographs that identified Busby as the only suspect, cited evidence against him, referred to a confession, pictured him in handcuffs, and reported an allegation that he was a Satanist. The Cherokeean Herald, a weekly paper with a circulation of about 3,500, gave the case less prominent coverage but also ran articles about the case, including stories concerning the amount of fees that Busby's court-appointed lawyers were incurring at the taxpayers' expense.

Busby filed a motion to change venue. During a hearing on the motion, the court heard testimony from several prominent citizens who opined, based on their reading of community sentiment, that many residents of the county had already decided that Busby was guilty. The county sheriff testified that there were threats against Busby's life; he stated that he had opposed the defense team's request to visit the crime scene because he feared violence. Other citizens who testified at the hearing, including some of those called by Busby, said that there had been relatively little discussion of the case in the community and that many people had not heard of Busby. The trial judge denied the motion to change venue.

The second set of facts relevant to this appeal involves certain letters that Busby wrote to friends and family while in pretrial detention. The jail's policy manual stated that all outgoing non-privileged inmate mail could be inspected and read, and it regularly was. Pursuant to this policy, jail staff came across letters in which Busby admitted to and described the killings, made what appeared to be threats against others, and suggested that a correspondent send him drugs. (This was after Busby had already admitted to the killings in the taped confession, mentioned above.) Before sending the letters off to their addressees, the jailers copied them and turned the copies over to investigators.

At trial, Busby objected to the state's use of the letters against him. He pointed out that no warrant had been issued to search Busby's mail, and he contended that reading the letters constituted an illegal interrogation. Relevant to this appeal, Busby also claimed that the jail's policy violated the First Amendment, although that was not the primary basis for his objection. In deciding whether to admit the letters, the trial judge heard testimony from the county sheriff and the jail administrator, who testified regarding the jail's mail policies. They stated that jail staff read mail in order to watch for suicide risks, escape plans, threats of violence, and other dangers to jail safety and security. It does not appear from the record that Busby was targeted in particular for surveillance, nor does it appear that the mail policy, which accorded with state jail regulations, [FN1] was directed at detecting inculpatory communications. The jail administrator testified that inmates were not given copies of the jail's policy manual, which explicitly authorized the reading of inmates' non-privileged mail. The inmates instead received a brief inmate handbook, which did not explicitly warn inmates that their mail would be read. The inmate handbook did, however, instruct inmates not to seal outgoing envelopes unless the envelope contained privileged mail; according to the handbook, sealed non-privileged mail would be rejected. Accordingly, the practice within the jail was that non-privileged mail was given to jailers unsealed. Some of Busby's letters, including his early letters, suggest that Busby suspected that jailers could read his mail. The trial judge overruled Busby's objections to using the letters at trial.

FN1. In 1994, the Texas Commission on Jail Standards adopted new regulations concerning inmates' mail privileges. The regulations provided, regarding non-privileged mail: "Outgoing correspondence may be opened and read. Correspondence may be censored provided a legitimate penological interest exists. A copy of the original correspondence should be retained." 19 Tex. Reg. 9880 (Dec. 13, 1994) (codified as amended at 37 TEX. ADMIN. CODE § 291.2(3)(B) (West 2003)).

During the guilt phase of the trial, the state called Mark Oppen, a friend who had received some of the letters the jailers had read and copied. Through Oppen, the state introduced two letters in which Busby described the killings. On cross-examination, the defense introduced another letter that Busby wrote to Oppen in which Busby denied committing the murders and told Oppen to throw away the previous letters.

The state introduced dozens more letters in the punishment phase of the trial. Some of these letters showed Busby as remorseless and revealed violent thoughts directed at Kelley and the judge. Other letters--including some of those introduced by the state as well as letters put into evidence by the defense--were more sympathetic in that they showed Busby's love for his family and his newfound devotion to the Bible; many of the letters were arguably mitigating because they suggested that Busby had been in a marijuana- and LSD- induced daze on the night of the killings. Apart from the letters, the state's case in the punishment phase included testimony from people to whom Busby had made arguably threatening remarks, testimony from an inmate who had overheard Busby saying that he would go on a shooting "rampage" if he got out, and expert testimony from a psychologist who opined that there was a significant risk that Busby would commit future acts of violence. The defense called a dozen witnesses in the punishment phase, including jail employees who testified to Busby's good behavior in jail, two medical experts, and ministers, friends, and family who spoke of Busby's non-violent character.

Busby was sentenced to death on July 27, 1996. The conviction was automatically appealed to the Texas Court of Criminal Appeals. His direct appeal asserted eleven points of error, but the state's use of the letters was not among them. The Court of Criminal Appeals affirmed Busby's conviction and sentence on March 31, 1999. Busby v. Texas, 990 S.W.2d 263 (Tex.Crim.App.1999). Busby unsuccessfully sought certiorari from the United States Supreme Court. Busby v. Texas, 528 U.S. 1081, 120 S.Ct. 803, 145 L.Ed.2d 676 (2000).

On November 20, 1998, Busby filed an application for post-conviction relief in state court. Following an evidentiary hearing, the trial court entered findings of fact and conclusions of law and recommended that Busby's request for habeas relief be denied. [FN2] In a brief order, the Texas Court of Criminal Appeals adopted the lower court's findings, conclusions, and recommendation without further comment. Ex parte Busby, No. 28,761- 01 (Tex.Crim.App. Sept. 13, 2000).

FN2. Both sides submitted proposed findings and conclusions to the court. The findings and conclusions issued by the court are in all material respects the same as those proposed by the state.

On September 12, 2001, Busby filed a petition for federal habeas corpus relief in the United States District Court for the Eastern District of Texas. The district court granted the state's motion for summary judgment in an unpublished order and accompanying memorandum opinion. Busby v. Cockrell, No. 5:02cv264 (E.D.Tex. Mar. 31, 2003). The district court did, however, grant a COA on the following issues: 1. Whether Busby's appellate attorney's decision not to appeal the trial court's denial of Busby's motion to exclude the letters constituted ineffective assistance of counsel? 2. Whether the trial court's denial of Busby's motion to suppress the letters violated the First Amendment? 3. Whether the trial court's denial of Busby's motion for a change of venue deprived him of a fair trial? 4. Whether the change of venue/fair trial issue was exhausted? [FN3]

FN3. Busby's habeas petition, and his brief here, phrase the issues somewhat differently, as we explain later. We recognize that the question whether Busby's change of venue claim was properly exhausted is not itself a ground for relief; it is not an issue that raises "a substantial showing of the denial of a constitutional right." See 28 U.S.C. § 2253(c)(2) (2000). But the lack of exhaustion can be a barrier to relief on the underlying substantive claim, and so our opinion must address exhaustion in that context.

As we have already denied Busby's request for a COA on additional issues, Busby v. Cockrell, 73 Fed.Appx. 49 (5th Cir.2003), today's decision considers only the three issues listed above.

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For the foregoing reasons, the district court's judgment denying habeas relief is AFFIRMED.