Tuesday, April 20, 2010
Media Advisory: Samuel Bustamante scheduled for execution

AUSTIN – Texas Attorney General Greg Abbott offers the following information on Samuel Bustamante, who is scheduled to be executed after 6 p.m. on April 27, 2010. Bustamante was sentenced to death for the murder and attempted robbery of Rafael Alvarado in Fort Bend County.

FACTS OF THE CRIME

On the night of January 17, 1998, Bustamante and three of his friends drove to Rosenberg to find, beat and rob a man after the bars closed. At first, the group had trouble finding a victim. But just as they were about to give up, they came upon Rafael Alvarado. Bustamante noted that Alvarado’s clothes were in good condition and his watch looked like it was made of “real gold.”

Alvarado offered to pay the driver of the truck to give him a ride across town. The men agreed, and Alvarado climbed into the bed of the pickup, along with Bustamante and two of the other men. After a few minutes, Bustamante stood up and stabbed Alvarado ten times with a knife.

Alvarado managed to break free and fell to the ground. When the truck stopped, Bustamante and the others looked for Alvarado, but were unable to see him because it was dark, so they left. One of the men with Bustamante admitted at trial that, had they found Alvarado, they probably would have robbed him.

PROCEDURAL HISTORY

Bustamante’s conviction was affirmed on appeal by the Texas Court of Criminal Appeals. The Court of Criminal Appeals denied his state habeas application in a written order on May 19, 2004. Bustamante’s federal habeas petition was filed on May 19, 2005. The court granted summary judgment for the State on December 6, 2006, and the United States Court of Appeals for the Fifth Circuit affirmed the judgment of the federal district court on July 8, 2008. Bustamante did not file a petition for writ of certiorari with the U.S. Supreme Court.

PRIOR CRIMINAL HISTORY

At the punishment phase of his trial, it was revealed that Bustamante had confessed to the murder of Lloyd Harold Turner, whose body was found February 13, 1998, in an area underneath an overpass on Highway 59 in Wharton County, where Turner had lived for about a year. Bustamante’s signed, written confession was read and admitted into evidence.

Texas Execution Information Center by David Carson.

Samuel Bustamante, 40, was executed by lethal injection on 27 April 2010 in Huntsville, Texas for killing a man in an attempted robbery.

On 18 January 1998, Bustamante, then 28; Dedrick Depriest, 20; Arthur Escamilla, 29; and Walter Escamilla drove from El Campo to Rosenberg, southwest of Houston. Before leaving, Bustamante told Solomon Escamilla and Brandy Riha that he and the others were going "shopping" - their term for finding a "wetback" (i.e. an illegal Mexican immigrant) after the bars closed, offering him a ride, taking him to a deserted location, beating him, and stealing his money and jewelry.

After some time, they noticed Rafael Alvarado. Bustamante observed that Alvarado's clothing was in good condition, and his watch appeared to be made of "real gold". Alvarado offered to pay the men to give him a ride across town. They agreed, so Alvarado climbed into the bed of the pickup, with Bustamante and Walter. Depriest was in the cab of the truck along with Arthur, who was driving. After about fifteen minutes, Bustamante asked Walter if he was ready. Walter told him to wait. Nevertheless, Bustamante then stood up and stabbed Alvarado ten times with a knife. Alvarado struggled against his attackers and broke free, falling to the ground from the moving truck. The men stopped the truck to look for him, but were unable to find him in the darkness, so they left.

After returning from Rosenberg, Bustamante told Solomon and Richard Escamilla to wash the truck before daylight. There was blood in the bed of the truck and a handprint on the tailgate. Bustamante told Solomon that they had gotten hold of a man, but he fell out of the truck. Later that day, Bustamante's brother, Bill, 25, drove them back to the scene to search for the victim, but they were unable to find him.

Following a trail of blood, Rosenberg police found Alvarado's body in a ditch in Fort Bend county. His death was caused by stab wounds to the heart and liver and the attendant loss of blood. In order to qualify as capital murder, one or more aggravating factors must be present. Texas' capital murder statute includes attempted robbery in its list of aggravating factors.

At his trial, Bustamante admitted killing Alvarado. He also admitted that he and the others went to Rosenberg to go "shopping", and that was code for picking up someone from a bar and robbing him. Nonetheless, he claimed that he did not intend to rob Alvarado. In addition to Bustamante's own incriminating testimony and the testimonies of Solomon Escamilla and Brandy Riha, Dedrick Depriest testified that, as they searched for Alvarado in the darkness for about fifteen minutes, Bustamante stated that he wanted the victim's boots.

Bustamante had served parts of three different prison sentences. In December 1988, he began serving a 5-year sentence for burglary of a building. He was paroled after a year. While on parole, he received a new conviction for possessing a prohibited weapon. He served 6 months of a 4-year sentence before receiving parole again in February 1991. (At the time, early release was common in Texas due to strict prison population caps imposed by U.S. District Judge William Wayne Justice.)

After receiving parole, Bustamante moved to North Carolina. He was quickly in prison again, on a 1-year sentence for forgery that began in April 1991. He was paroled after serving 5 months. After that, he racked up convictions for shooting a gun within city limits, carrying a concealed weapon, making threatening communications, resisting arrest, and possessing marijuana. Some time after his last conviction in December 1992, he returned to Texas.

During the punishment phase of his capital murder trial, Bustamante confessed to the murder of Lloyd Harold Turner on 13 February 1998. He said that he and his brother targeted the homeless man to "work out some aggravation". He stabbed Turner ten to twenty times while his brother beat him with a baseball bat. They left his body under an overpass of highway U.S. 59.

A jury convicted Bustamante of capital murder in March 2001 and sentenced him to death. The Texas Court of Criminal Appeals affirmed the conviction and sentence in June 2003. All of his subsequent appeals in state and federal court were denied. He was also sentenced to 40 years in prison for Turner's killing.

Dedrick Deshone Depriest, Walter Escamilla, and Arthur Escamilla pleaded guilty to aggravated robbery and received 8-year sentences, which they have completed. Bill Bustamante is still serving a 40-year sentence for Turner's murder.

Samuel Bustamante granted a reporter's request for an interview prior to his execution, but he failed to keep the appointment. On an anti-death-penalty web site, Bustamante stated, "I did do wrong, yet there is a lot more good in me than bad. We are all human and make mistakes. Yet, do we not deserve the benefit of the doubt?"

Bustamante's execution was attended by four women he invited. No one attended on behalf of the victims. The condemned man made no last statement before the lethal injection was given. He was pronounced dead at 6:22 p.m.

Houston Chronicle

"Killer in 1998 Rosenberg robbery very quiet at execution," by Alan Turner. (April 27, 2010 7:45PM)

HUNTSVILLE — Samuel Bustamante, sentenced to die for stabbing a man to death during a 1998 robbery in Rosenberg, silently went to his death in the state's execution chamber Tuesday. The lethal drugs were administered at 6:14 p.m. He was declared dead eight minutes later.

Bustamante made no final statement. Four women, identified as Bustamante's friends, witnessed the execution. No victim's witnesses were present.

Bustamante killed Rafael Alvarado early on the morning of Jan. 18, 1998, after Bustamante and three companions spotted him walking near a Rosenberg tavern. Bustamante's group had cruised the neighborhoods surrounding the city's bars in search of potential robbery victims. After Alvarado, 27, accepted a ride with the men, Bustamante stabbed him 10 times.

Earlier Tuesday, Bustamante, 40, met with friends, Walls Unit Warden Charles O'Reilly and a prison chaplain. “He answered questions with ‘yes' and ‘no'” said prison spokesman Jason Clark. “He was very quiet.”

For his last meal, Bustamante ordered four fried chicken legs and thigh quarters, macaroni and cheese, fried okra, jalapeno peppers, 10 flour tortillas and a six pack of cola.

Bustamante's execution happened about 90 minutes after the U.S. Supreme Court declined to review an earlier state court decision that the killer failed to qualify as mentally retarded. Bustamante's Houston lawyers, Philip Hilder and James Ryttner, argued that their client was mildly mentally retarded, and therefore covered by the Supreme Court's 2002 ruling that banned execution of mentally retarded killers. “They make a murder look very easy,” said Houston anti-capital punishment activist Gloria Rubac, who was among Bustamante's friends. “They've gotten very good at it.”

Previously, Bustamante had been convicted of theft, burglary and possession of a prohibited weapon. Shortly after his conviction in the Alvarado case, Bustamante pleaded guilty to murdering a homeless El Campo man.

Bustamante's brother, Bill Bustamante, was an accomplice in the El Campo killing and is serving a a 40-year murder setence. Bustamante's accomplices in Alvarado's murder — Diedrich Depriest, Arthur Escamilla and Walter Escamilla — were sentenced to eight years for aggravated robbery and since have been released.

Bustamante was the seventh Texas killer to be executed this year, and the fourth killer from Fort Bend County to be put to death since the state resumed executions in 1982.

Huntsville Item

"Man executed for 1998 stabbing," by Mary Rainwater. (April 27, 2010)

HUNTSVILLE — Texas inmate Samuel Bustamante was executed Tuesday for the fatal stabbing of an illegal immigrant in 1998, making him the seventh prisoner executed so far this year. Bustamante, 40, made no final statement, only shaking his head when asked by the warden if he wanted to do so. His death was witnessed by four friends he invited to attend. No friends or relatives of the victim were present. He was pronounced dead at 6:22 p.m., just eight minutes after the lethal injection began.

Bustamante was convicted of the slaying of Rafael Alvarado, 27, a Mexican national in Fort Bend County, southwest of Houston, who became a target of what Bustamante and some of his friends called “shopping trips” where they would hunt illegal immigrants, then beat and rob them.

The punishment came about 90 minutes after the U.S. Supreme Court rejected a last-ditch appeal from Bustamante's attorneys. The Texas Court of Criminal Appeals, the state’s highest criminal court, had refused a similar appeal Monday. The Texas Board of Pardons and Paroles also declined a clemency request.

In a taped confession to detectives, Bustamante said he and three friends — Dedrick Depriest and brothers Walter and Arthur Escamilla, all from El Campo, about 70 miles southwest of Houston — spent the day in January 1998 eating and drinking. He said they decided to go "shopping" in Rosenberg, 40 miles to the northeast, as bars were closing at 2 a.m. Alvarado, after leaving a Rosenberg bar, approached the pickup driven by Arthur Escamilla and offered to pay for a ride home to nearby Richmond. Alvarado joined Walter Escamilla and Bustamante in the bed of the truck and they drove off. After a few minutes, Bustamante told officers, he pulled a knife and began stabbing Alvarado as Escamilla held him down. Alvarado managed to break free and bail out of the speeding truck. Police following a trail of blood the next morning found Alvarado's body in a ditch. He'd been stabbed at least 10 times.

Two months later, with Bustamante jailed on an unrelated charge in Wharton County, authorities notified Rosenberg police after receiving a tip he was involved in Alvarado's slaying. “I don’t need a judge and I don't need a jury to tell me I'm guilty,” Bustamante, a former oil field worker, told detectives.

Bustamante was listed in prison records as 5-foot-7 and 264 pounds. Known as “Fat Boy,” he had at least three earlier convictions — one in North Carolina for forgery and two others in Texas, one in Wharton County for burglary and one in Dallas for possession of a prohibited weapon while on parole.

Headed to the death chamber after Bustamante is 41-year-old Kevin Varga, on May 12. Varga, a Michigan native who’d been imprisoned in South Dakota, was condemned for the 1998 fatal beating of a North Carolina man with a hammer and tree limb. One of Varga’s accomplices, 41-year-old Billy Galloway, is scheduled for lethal injection the next day.

ProDeathPenalty.Com

On January 17, 1998, Walter Escamilla, Arthur Escamilla, Dedrick Depriest, and Samuel Bustamante planned a robbery. Walter suggested that the four of them go to the town of Rosenberg to go “shopping.” According to Bustamante, “shopping” entailed finding a “wetback” after the bars closed, offering him a ride, taking him to a deserted location, beating him, and stealing his money and jewelry. Bustamante told Solomon Escamilla and Brandy Riha that he was going "shopping" in Rosenberg with Walter, Arthur, and Dedrick. Riha was the ex-girlfriend of Bustamante’s brother, Bill Bustamante. Solomon was apparently aware of the criminal usage of the word “shopping” while Riha was not.

Solomon testified that one meaning of shopping was to “roll wetbacks,” that is, to beat and rob them. Riha testified that she thought it was strange that Bustamante and the other men would go shopping so late at night. The four men, traveling in Arthur’s pickup truck, arrived in Rosenberg at about 2:00 a.m., just after the bars had closed. At first the group had trouble finding a victim. But just as they were about to give up, they came upon Rafael Alvarado, a Hispanic male. Bustamante noted that Alvarado’s clothes were in good condition and his watch looked like it was made of “real gold.” Alvarado offered to pay the driver of the truck to give him a ride across town. The men agreed, and Alvarado climbed into the bed of the pickup.

Arthur and Depriest sat in the truck cab while Bustamante, Walter, and the victim sat in the truck bed. After about fifteen minutes, Bustamante asked Walter what he was going to do. Walter told Bustamante to wait but Bustamante stood up and began stabbing Alvarado with a knife. Bustamante stabbed him ten times. When Alvarado tried to escape, Walter caught him by the shirt and made an effort to pull him back in. Bustamante also tried to pull Alvarado in, but the victim managed to break free and fall to the ground. Walter yelled at the driver of the truck to stop, but by the time he did, Bustamante and the others were unable to see Alvarado because of the darkness. Bustamante told Depriest that he wanted the victim’s boots. After the men walked around the area for several minutes without finding the victim, Bustamante decided that they should leave. Depriest admitted that, had they found the victim, they probably would have robbed him. As the truck drove away, the others in the group remarked that Bustamante was crazy.

The police followed a trail of blood from the west city limits of Rosenberg to where Alvarado’s body was found, in a ditch in Fort Bend county. He was wearing a watch, a gold necklace, and a ring. He also had a hundred dollars in his pockets and his wallet was undisturbed. His death was caused by stab wounds to the heart and liver and the attendant loss of blood.

After returning from Rosenberg, Bustamante told Solomon and Richard Escamilla to wash the truck before daylight. There was blood in the bed of the truck and a hand-print on the tailgate. Bustamante told Solomon that things went wrong and that someone had gotten in the way of what Bustamante does. Bustamante explained that he had gotten hold of a man the night before and the man had fallen out of the truck. When Solomon showed Bustamante a story about the victim in the paper, Bustamante responded, “That’s what I told you, nobody gets away,” saying that when he kills somebody, he knows he kills them. Solomon and Richard joked with Bustamante by telling him not to stab them and by trying to give him their money.

Bustamante v. State, 106 S.W.3d 738 (Tex.Crim.App.,2003). (Direct Appeal)

Defendant was convicted in the District Court, Fort Bend County, Thomas R. Culver, III, J., of capital murder and sentenced to death. Defendant appealed. The Court of Criminal Appeals, Keller, P.J., held that: (1) evidence was legally and factually sufficient to prove that defendant committed the underlying offense of attempted robbery at the time of the murder, and (2) written statement from defendant's brother, which was not admitted at trial but mistakenly given to jury during deliberations, was not “received” by jury so as to warrant mistrial. Affirmed. Johnson, J., dissented.

Appellant was convicted of capital murder and sentenced to death. FN1 On direct appeal to this Court he raises four points of error. We shall affirm.

FN1. TEX. PEN. CODE § 19.03(a); Art. 37.071 § 2(g). Unless otherwise indicated all references to Articles refer to the Texas Code of Criminal Procedure.

I. SUFFICIENCY OF THE EVIDENCE
A. Background

Viewed in the light most favorable to the verdict, the evidence at trial shows the following: On January 17, 1998, Walter Escamilla, Arthur Escamilla, Dedrick Depriest, and appellant planned a robbery. Walter suggested that the four of them go to the town of Rosenberg to go “shopping.” According to appellant,FN3 “shopping” entailed finding a “wetback” FN4 after the bars closed, offering him a ride, taking him to a deserted location, beating him, and stealing his money and jewelry. Appellant told Solomon Escamilla FN5 and Brandy Riha FN6 that he was going shopping in Rosenberg with Walter, Arthur, and Dedrick.FN7 The four men, traveling in Arthur's pickup truck, arrived in Rosenberg at about 2:00 a.m., just after the bars had closed. At first the group had trouble finding a victim. But just as they were about to give up, they came upon Rafael Alvarado, a hispanic male. Appellant noted that Alvarado's clothes were in good condition and his watch looked like it was made of “real gold.”

FN3. Appellant made two confessions-an electronically-recorded oral confession and a written confession-in which he related the events of the crime. FN4. A “wetback” appears to refer to an illegal alien of Hispanic origin. FN5. Solomon was Walter and Arthur's brother. They had another brother named Richard. Solomon was also appellant's brother-in-law (married to appellant's sister). FN6. Riha was the ex-girlfriend of appellant's brother, Bill Bustamante. FN7. Solomon was apparently aware of the criminal usage of the word “shopping” while Riha was not. Solomon testified that one meaning of shopping was to “roll wetbacks,” that is, to beat and rob them. Riha testified that she thought it was strange that appellant and the other men would go shopping so late at night.

Alvarado offered to pay the driver of the truck to give him a ride across town. The men agreed, and Alvarado climbed into the bed of the pickup. Arthur and Depriest sat in the truck cab while appellant, Walter, and the victim sat in the truck bed. After about fifteen minutes, appellant asked Walter what he was going to do. Walter told appellant to wait but appellant stood up and began stabbing Alvarado with a knife. Appellant stabbed him ten times. When Alvarado tried to escape, Walter caught him by the shirt and made an effort to pull him back in. Appellant also tried to pull Alvarado in, but the victim managed to break free and fall to the ground. Walter yelled at the driver of the truck to stop, but by the time he did, appellant and the others were unable to see Alvarado because of the darkness.FN8 Appellant told Depriest that he wanted the victim's boots. After the men walked around the area for several minutes FN9 without finding the victim, appellant decided that they should leave. Depriest admitted that, had they found the victim, they probably would have robbed him. As the truck drove away, the others in the group remarked that appellant was crazy.

FN8. Apparently the victim was still able to walk and eluded his captors. FN9. According to appellant, they looked for the victim for less than fifteen minutes.

The police followed a trail of blood from the west city limits of Rosenberg to where Alvarado's body was found, in a ditch in Fort Bend county. He was wearing a watch, a gold necklace, and a ring. He also had a hundred dollars in his pockets and his wallet was undisturbed. His death was caused by stab wounds to the heart and liver and the attendant loss of blood.

After returning from Rosenberg, appellant told Solomon and Richard Escamilla to wash the truck before daylight. There was blood in the bed of the truck and a hand-print on the tailgate. Appellant told Solomon that things went wrong and that someone had gotten in the way of what appellant does. Appellant explained that he had gotten hold of a man the night before and the man had fallen out of the truck. When Solomon showed appellant a story about the victim in the paper, appellant responded, “That's what I told you, nobody gets away,” saying that when he kills somebody, he knows he kills them. Solomon and Richard joked with appellant by telling him not to stab them and by trying to give him their money.

Viewing the record in a neutral light reveals the following evidence favorable to appellant. Depriest claimed that the group had not formulated a robbery plot but traveled to Rosenberg to “have fun and party.” He further stated that he assumed the group was going to drop Alvarado off at his desired destination.

B. Analysis

In points of error one and two, appellant contends that the evidence is legally and factually insufficient to show that he committed the underlying offense of robbery or attempted robbery. In his brief, he concedes that his confessions “indicate that the group had originally planned to go to Rosenberg to rob illegal aliens,” but he argues that the murder was not connected to that plan. In support of his argument that the murder was not connected to the prior plan to rob someone, appellant points out that no money or property was taken from the deceased and that no one in the group had demanded money from the deceased. Appellant also points to testimony of Depriest that they did not intend to rob anyone but went to Rosenberg to party and that the group actually intended to fulfill the agreement to give Alvarado a ride home for money. Finally, appellant contends that the murder “shocked the other participants, who seemed to have been taken aback by appellant's actions.”

Evidence is legally insufficient if, viewed in the light most favorable to the prosecution, no rational jury could find the defendant guilty beyond a reasonable doubt.FN10 Evidence is factually insufficient if, viewed without the prism of “the light most favorable to the verdict,” the evidence supporting the verdict is so weak or so against the overwhelming weight of contrary evidence as to render the verdict clearly wrong and manifestly unjust. FN11

FN10. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). FN11. Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App.2000).

We find appellant's claims to be without merit. While no completed theft occurred, proof of a completed theft is not required to establish the underlying offense of robbery or attempted robbery.FN12 Moreover, an intent to steal may be inferred from circumstantial evidence. FN13 Here, there was direct evidence from appellant's own confessions that the group intended to rob someone in Rosenberg, and further, that the group intended to rob the victim. Appellant told two other people that he intended to go shopping (despite the late hour), which appellant acknowledged was code for robbing someone. The fact that appellant noticed the victim's watch was made of real gold indicates that robbery was still on his mind. The intent to rob is not necessarily negated by the fact that he attacked the victim earlier than the rest of the group anticipated-a rational jury could have believed that appellant intended to start the robbery early. Furthermore, his desire to retrieve the victim's boots is evidence that appellant did indeed intend to steal from the victim at the time he committed the murder. Finally, appellant's failure to contradict Solomon's and Richard's jokes about stealing money could be interpreted as tacit acceptance of the idea that the murder was part of an attempted robbery. The jury could have rationally found appellant guilty of the underlying offense.

FN12. Maldonado v. State, 998 S.W.2d 239, 243 (Tex.Crim.App.1999). FN13. Wolfe v. State, 917 S.W.2d 270, 275 (Tex.Crim.App.1996).

Likewise, we find the evidence to be factually sufficient. Even looking at the evidence in a neutral light and considering Depriest's exculpatory statements, the evidence is sufficient to show a robbery or attempted robbery. The jury was well within its discretion to believe Depriest's and appellant's prior incriminating statements and to disbelieve the self-serving statements made by Depriest on the witness stand. Moreover, even if the jury fully believed Depriest's statements, the evidence would nevertheless support a conclusion that appellant intended to rob the victim at the time of the murder, even if the others did not. The evidence supporting appellant's guilt is not so weak or so against the overwhelming weight of the contrary evidence so as to render the jury's verdict clearly wrong and manifestly unjust. Points of error one and two are overruled.

II. JURY DELIBERATIONS
A. Background

During the course of their investigation, police officers interviewed appellant's brother, Bill Bustamante, and procured from him a signed, written statement. During the guilt/innocence phase of trial, the State called Bill to testify, but he declined. Upon the State's request, the trial court granted Bill immunity for any testimony given at the trial and ordered him to testify. Bill Bustamante persisted in his refusal to testify and the trial court held him in contempt. His written statement, which had been marked State's Exhibit 107, was never admitted into evidence. Another item, a chart or graph, was later marked as Exhibit 107 and admitted into evidence.

Both items marked “Exhibit 107” were included with the exhibits in the jury room. During jury deliberations on guilt, one of the jurors read the Bill Bustamante statement aloud while others listened with varying degrees of attentiveness. After the statement was read, the jurors became concerned about whether it was properly before them. As a result, the jury foreman sent a note to the trial judge asking, “Judge, can we use exhibit 107 in making our decision?” The trial judge subsequently discovered that Bill Bustamante's written statement was in the jury room and had it removed.

From questioning the foreman, the trial judge ascertained that the jurors were indeed inquiring about the Bill Bustamante statement. The trial judge proceeded to question each juror individually about the statement, how much of it they had read or heard, whether it presented anything new, whether it had influenced them, and whether they could follow an instruction to disregard the exhibit. Nine jurors said that they had not read the statement but had heard some or all of it being read. Three jurors said they had read the statement or parts of it, aloud or to themselves. Of the twelve jurors, five said that they learned nothing new from the statement, three said that they learned that appellant had “gone shopping” before, and four said they learned about an incident at a truck stop, after the murder, in which appellant apparently started to break into another vehicle occupied by a sleeping person. One juror said she also learned that appellant had told his brother before leaving for Rosenberg that he intended to rob someone. Before being asked whether they could follow an instruction to disregard, eight jurors said that the evidence would not influence their decision. The other four were not asked that question. One juror told the court that a round of voting had already occurred before the statement was read, and three jurors volunteered they had already made up their minds before the statement was read. Several said that they were not paying much attention to the statement when it was read. Finally, all twelve jurors said that they could completely disregard the exhibit if instructed to do so.

After questioning all the jurors, the trial court brought them into the courtroom as a group and issued an instruction to disregard the Bill Bustamante statement:

Members of the jury, now that I've had an opportunity to talk to each one of you 12 jurors individually, I need to give you an additional admonition; and that admonition is as follows: Because of the factors that we discussed here individually a few minutes ago, specifically that there were two State's exhibit number 107 marked in this case. Only the first State's exhibit 107 was actually admitted by me into evidence. That State's exhibit number 107 is this plat which is down here on the floor. That may be considered by you, and I'm answering your question now. That exhibit number 107 may be used in making your decision in this case. The second State's exhibit number 107 was mismarked. That purports to be a statement by Mr. Bill Bustamante. That State's exhibit number 107 was never put into evidence, and you are not to consider it as evidence of any kind for any purpose at any stage of this trial. You are to make a decision in this case based only on the law and the evidence, specifically the evidence which has been admitted before you for your consideration, which would be the physical pieces of evidence that are admitted and the testimony that you've heard from the witness stand in here. In short, you're not to use anything that you may have read or heard from the purported Bill Bustamonte statement for any purpose whatsoever. That's an additional admonition that you are charged to follow.

After the jury was sent back to the jury room to deliberate, appellant moved for a mistrial on the basis that the jury had received other evidence during deliberations. After hearing arguments on the matter, the trial court denied the motion. The jury later came back with a guilty verdict for the offense of capital murder. Appellant also complained about this matter in a motion for new trial, which was denied.

B. Analysis

In points of error three and four, appellant contends that the trial court should have granted a mistrial or a new trial because the jury's examination of the Bill Bustamante statement constituted the receipt of evidence that was not admitted at trial. The pertinent rule regarding a new trial is Texas Rule of Appellate Procedure 21.3(f), which requires, in relevant part, that a new trial be granted “when, after retiring to deliberate, the jury has received other evidence.” Before the rules of appellate procedure were adopted, this rule was codified, in virtually identical language, at Texas Code of Criminal Procedure 40.03(7).FN14 We shall construe Rule 21.3(f) in the same manner as we construed its predecessor statute. FN15

FN14. The statute required that a new trial be granted “[w]here the jury, after having retired to deliberate upon a case, has received other evidence.” FN15. See, e.g., Salazar v. State, 38 S.W.3d 141 (Tex.Crim.App.2001)(caselaw construing Article 40.03 valid in construing Tex.R.App. P. 23.1).

Under caselaw from this Court construing the predecessor statute, a two-prong test must be satisfied for the defendant to obtain a new trial: (1) the evidence must have been received by the jury, and (2) the evidence must be detrimental or adverse to the defendant.FN16 In determining whether evidence was “received” by the jury, a court may consider how extensively the evidence was examined by the jury and whether the jury was given an instruction to disregard.FN17 In Eckert v. State, we observed that an instruction to disregard at the deliberations stage is “similar to the corrective action of an instruction to disregard evidence improperly introduced at trial.” FN18 If the trial court gives an instruction to disregard and that instruction is found to be effective, then under our law, it is as though the evidence was never “received” by the jury.FN19

FN16. Eckert v. State, 623 S.W.2d 359, 364 (Tex.Crim.App.1981), overruled on other grounds, Reed v. State, 744 S.W.2d 112 (Tex.Crim.App.1988); Stephenson v. State, 571 S.W.2d 174, 176 (Tex.Crim.App.1978). FN17. Eckert, 623 S.W.2d at 364; Stephenson, 571 S.W.2d at 176. FN18. Eckert, 623 S.W.2d at 364. FN19. Id.

Caselaw is not clear on whether the same standards apply to mistrials-where the issue is manifested before the jury has reached a verdict. Several cases involving unauthorized communications, covered in the same new trial rule as the receipt of other evidence, have not distinguished between new trial and mistrial situations.FN20 In Brown v. State, the receipt of other evidence and a mistrial were at issue, but we did not address whether raising the issue before or after trial made a difference.FN21 Instead, we simply observed that we were confronting a different case because the events at issue occurred before deliberations had begun.FN22 Nevertheless, we analogized to other situations, including the new trial rule, and determined that a mistrial was not required if an instruction to disregard would have cured the error.FN23 This holding is in line with Eckert, a new trial case, holding that an instruction to disregard during deliberations was comparable in effect to an instruction to disregard inadmissible evidence.FN24 At least with respect to whether an instruction to disregard can cure the error, then, the standards are the same.

FN20. Moody v. State, 827 S.W.2d 875, 899-900 (Tex.Crim.App.1992); Robinson v. State, 851 S.W.2d 216, 230 (Tex.Crim.App.1991); Williams v. State, 463 S.W.2d 436, 440 (Tex.Crim.App.1971). FN21. 516 S.W.2d 145, 146 (Tex.Crim.App.1974). FN22. Id. FN23. Id. FN24. See above discussion.

In this case, the jurors recognized that there was a potential problem with the Bill Bustamante statement and queried the trial judge for instructions. The trial judge then carefully examined all of the jurors regarding the matter. In response to the trial judge's questioning, all the jurors stated that they could follow an instruction to disregard the statement. The trial judge subsequently issued an instruction to disregard. Under the circumstances presented here, we find that the Bill Bustamante statement was not “received” by the jury and any error associated with that statement was cured by instruction. Points of error three and four are overruled.

The trial court's judgment is affirmed. JOHNSON, J. dissented.

Bustamante v. Quarterman, 284 Fed.Appx. 183 (5th Cir. 2008). (Habeas)

Background: Following affirmance of capital murder conviction, 106 S.W.3d 738, petition for writ of habeas corpus was filed. The United States District Court for the Southern District of Texas, Gray H. Miller, J., 2006 WL 3541565, denied the petition. Petitioner appealed.

Holding: The Court of Appeals held that defense counsel's failure to inspect trial exhibits before they were given to jury did not prejudice defendant. Affirmed.

PER CURIAM:

Petitioner Samuel Bustamante (“Bustamante”), convicted of capital murder in Texas and sentenced to death, appeals the denial of federal habeas relief. Bustamante contends that his counsel rendered ineffective assistance at trial in violation of the Sixth Amendment. On September 20, 2007, this Court granted a Certificate of Appealability (“COA”) with respect to this claim. See 28 U.S.C. § 2253(c).

Bustamante has not shown that the state court's decision-no reasonable probability that but for counsel's performance, the outcome of the proceeding would have been different-is objectively unreasonable. We therefore affirm the district court's denial of federal habeas relief.

I. BACKGROUND

On January 17, 1998, Bustamante, Walter Escamilla (“Walter”), Arthur Escamilla (“Arthur”), and Dedrick Depriest (“Depriest”) planned a robbery. Walter suggested that the four of them drive to Rosenberg, Texas, to go “shopping.” “Shopping” entailed offering a ride to an apparently illegal alien, taking him to a deserted location, beating him and stealing his money and jewelry. Arthur drove the group in his pickup truck, and they arrived in Rosenberg at 2:00 a.m., the time the bars closed. The group spotted Rafael Alvarado (“Alvarado” or “victim”), and Bustamante noted that Alvarado was “dressed real decent” and his watch appeared to be “real” and looked expensive, “like a yellow gold.”

Alvarado offered to pay for a ride across town, and they “told him to get in.” Arthur and Depriest sat in the truck cab and Bustamante and Walter rode in the truck bed with Alvarado. After about fifteen minutes, Bustamante asked Walter a question, and Walter said Bustamante should wait. Bustamante stood up and stabbed Alvarado ten times with a knife. Alvarado managed to break free and fall out of the truck to the ground. Walter shouted at the driver to stop, but by the time the truck stopped, they were unable to find Alvarado after searching for several minutes in the darkness. As they drove away, the other men called Bustamante crazy. Later that day, Bustamante's brother, Bill Bustamante (“Bill”), drove them back to the scene to search for the body. Their search was unsuccessful.

Subsequently, the police discovered Alvarado's body in a ditch. He was wearing a watch, a gold necklace, and a ring. His wallet contained one hundred dollars. The cause of death was stab wounds to the heart and liver and the attendant loss of blood.

A grand jury indicted Bustamante on the charge of capital murder. He was tried before a jury on the charge of capital murder in Fort Bend County, Texas. During the guilt phase of the trial, Bustamante's brother, Bill, was called to the stand and refused to testify. Thus, Bill's written statement was not admitted into evidence. The statement contained information about the murder as related by Bustamante to Bill. In addition to the facts of the instant offense, it provided that Bill had gone “shopping” with Bustamante one time. Additionally, the statement provided that after the murder the four men stopped at a truck stop. Walter, Arthur, and Depriest went inside and when “they came out they found [Bustamante] trying to get into a car that had the windows cracked a little bit, trying to get a person who was asleep in the car. They told [Bustamante] that was enough.”

At the conclusion of the guilt phase of the trial, Bill's written statement was inadvertently submitted to the jury with the properly admitted exhibits. The statement was labeled exhibit 107 and another properly admitted exhibit was given the same number.FN1 Realizing that the exhibit might have been erroneously provided to them, the jurors notified the trial judge, who questioned the jurors. This questioning revealed that three jurors had read the statement or portions of it either silently or aloud. Bustamante v. State, 106 S.W.3d 738, 742 (Tex.Crim.App.2003). Nine jurors had not read it themselves but had heard some or all of it read aloud. Id. Five jurors said that “they learned nothing new from the statement, three said that they learned that [Bustamante] had ‘gone shopping’ before, and four said they learned about an incident at a truck stop, after the murder, in which [Bustamante] apparently started to break into another vehicle occupied by a sleeping person.” Id. Additionally, “[o]ne juror said she also learned that [Bustamante] had told his brother before leaving for Rosenberg that he intended to rob someone.” Id.

FN1. The record reveals that the district attorney's office had mistakenly labeled two of its exhibits with the number 107.

The judge overruled Bustamante's motion for mistrial and instructed the jurors not to consider that statement “as evidence of any kind for any purpose at any stage of this trial.” The jury found Bustamante guilty as charged. After the sentencing phase, the jury answered the special issues, and the judge imposed a death sentence.

After exhausting his direct appeal and state habeas remedies, Bustamante filed the instant federal habeas petition. The district court denied relief and a COA. This Court granted Bustamante's request to issue a COA with respect to whether counsel rendered ineffective assistance during the guilt phase of the trial.

II. STANDARD OF REVIEW

Bustamante filed his § 2254 petition for a writ of habeas corpus after the effective date of the Antiterrorism and Effective Death Penalty Act (AEDPA). The petition, therefore, is subject to AEDPA. See Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). Pursuant to the federal habeas statute, as amended by AEDPA, we defer to a state court's adjudication of a petitioner's claims on the merits unless the state court's decision was: (1) “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States”; or (2) “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). A state court's decision is deemed contrary to clearly established federal law if it reaches a legal conclusion in direct conflict with a prior decision of the Supreme Court or if it reaches a different conclusion than the Supreme Court based on materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 404-08, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). A state court's decision constitutes an unreasonable application of clearly established federal law if it is “objectively unreasonable.” Id. at 409, 120 S.Ct. 1495.

III. INEFFECTIVE ASSISTANCE OF COUNSEL

To establish ineffective assistance of counsel, Bustamante must show (1) defense counsel's performance was deficient and (2) this deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). We must find that trial counsel “made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed ... by the Sixth Amendment.” Id. The Supreme Court instructs courts to look at the “norms of practice as reflected in the American Bar Association standards” and to consider “all the circumstances” of a case. Id. at 688, 104 S.Ct. 2052. While “[j]udicial scrutiny of counsel's performance must be highly deferential,” Bustamante can demonstrate deficient performance if he shows “that counsel's representation fell below an objective standard of reasonableness.” Id. at 688, 104 S.Ct. 2052. However, “[t]here is a ‘strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.’ ” United States v. Webster, 392 F.3d 787, 793 (5th Cir.2004) (quoting Strickland, 466 U.S. at 689, 104 S.Ct. 2052). Strickland's “prejudice” prong requires a reasonable probability that, but for the deficient performance of his trial counsel, the outcome of his capital murder trial would have been different. Strickland, 466 U.S. at 694, 104 S.Ct. 2052. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id.

Bustamante contends that counsel rendered ineffective assistance by failing to inspect the trial exhibits before they were given to the jury, thus allowing an exhibit that had not been admitted to be considered by the jury. Although Bustamante cites various cases from our sister circuits and state courts that indicate it is counsel's responsibility to ensure that only admitted exhibits are provided to the jury, there is no case cited (and we are aware of none) which holds that failure to do so constitutes deficient performance under Strickland. We will assume for purposes of this appeal that such an omission by counsel satisfies the first prong of Strickland.FN2

FN2. “If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.” Strickland, 466 U.S. at 697, 104 S.Ct. 2052.

With respect to the prejudice prong of Strickland, the crux of Bustamante's argument is that but for his brother's statement, there is a reasonable probability that at least one juror would have found that he did not intend to rob the victim. Under that scenario, Bustamante would not be guilty of capital murder.FN3 In other words, Bustamante apparently concedes that based on all the incriminating evidence against him, the jury would have found that he killed the victim. Nevertheless, he insists that the evidence of his intent to rob was weak and thus his brother's statement providing that Bustamante told Bill that they “were going to Rosenberg shopping” demonstrates prejudice. Bustamante also points to the portions of the statement providing that: (1) Bustamante and Bill had gone “shopping” on one other occasion; and (2) Bustamante apparently tried to rob a person sleeping in a car after the murder. To determine whether Bustamante has shown prejudice, we start by reviewing the strength of the government's evidence that was properly admitted before the jury.

FN3. Tex. Pen.Code § 19.03(a)(2)(“A person commits an offense if the person commits murder as defined under Section 19.02(b)(1) and ... the person intentionally commits the murder in the course of committing or attempting to commit ... robbery....”).

Bustamante's Confession

In Bustamante's confession to the police, he stated that on the day of the murder he had been “[b]arbecuing and drinking” with Walter, Arthur and “Dee” (Depriest). It had been Walter's idea to drive to Rosenberg to go “shopping.” He explained that “shopping” meant “they pick up-they call them wetbacks. They pick them up, act like they're going to give them a ride or something, they catch him leaving the bars at closing.” “And they catch them or they catch them walking down the street.” “And they beat the heck out of them.” Bustamante further confessed “[t]hey do it for money.” More specifically, they “[b]eat them and take it.” “They'd been doing that for years.”

On the night of the murder, they started driving to Rosenberg with the intention of arriving before the bars closed at 2:00 am. Arthur drove his pickup truck, with Depriest as a passenger in the cab and Walter and Bustamante sitting in the bed of the truck. They drove by “Mexican bars” for over two hours. Then “[w]e found this one. He asked us to give him a ride.” Alvarado, the soon-to-be victim, said he would pay for the ride. “So naturally we all told him to get in.” Bustamante described the victim as “dressed real decent” with two or three gold chains and a watch that looked “real,” “like a yellow gold,” and expensive. Alvarado rode in the bed of the pickup with Bustamante and Walter. The plan was to drive the victim to “someplace, Rabbit Road,” FN4 and “everybody was going to have a piece of him, be involved.” But Bustamante “didn't let him make it that far.” Although the other three men told Bustamante to “wait,” he nonetheless began stabbing the victim with a knife. Bustamante further explained that Walter tried to restrain the victim, who struggled while Bustamante stabbed him about ten times. During the struggle, the victim fell out of the truck bed.

FN4. Bustamante didn't know “where that is, or if there even is a Rabbit Road.” According to other evidence at trial, there is a Jackrabbit Road in the Rosenberg area.

After alerting the driver of the truck, they made a U-turn and went back to find the body. After searching for a while, Bustamante and the other men could not find him in the dark and drove home. Later that day, they drove back to the scene to search for the body. Bustamante wanted to “comb the area more carefully and thoroughly to find him.” However, they failed to discover him because they did not realize the victim would have been able to walk that far.

Other testimony

Solomon Escamilla (“Solomon”) testified that he is married to Bustamante's sister Nancy. Walter and Arthur are Solomon's brothers. On the night of the murder, Solomon was drinking and “hanging out” with his wife, Bustamante, Bill, Bill's girlfriend Brandy Riha (“Riha”) and Riha's mother. Later that evening, Walter, Arthur and Depriest arrived in a pickup truck. The three men informed Solomon they were going “shopping.” When the three men departed, Bustamante jumped in the bed of the pickup and left with them.

Solomon testified that “shopping” meant to “roll wetbacks.” When pressed for more description, Solomon explained as follows: “Get ahold of them, beat them down, do what you've got to do to take their money.” Solomon saw Bustamante after the murder and Bustamante told him that “things went wrong.” Bustamante told him that “they had gotten ahold of a man last night; and he got out [of] the truck, well, fell out of the truck.” Solomon testified that Bustamante was upset about the man escaping. Solomon's testimony indicates that Bustamante was upset because they were unable to rob the victim once he escaped from the truck.

Bustamante's codefendant Depriest, who had been seated in the cab of the truck, testified that he had pleaded guilty to the robbery of the victim in the case at bar. Depriest testified that the reason they turned the truck around was to “go back ... [f]or the man.” When asked what they were intending to do if they found him, Depriest responded they “[p]robably would have robbed him.” He further testified that Bustamante got out of the truck to look for the victim. Bustamante said that he wanted the boots that the victim was wearing. Depriest's testimony demonstrates Bustamante's intent to rob the victim.

Brandy Riha, erstwhile girlfriend of Bill, testified that on the night of the murder, Bustamante told her they were driving to Rosenberg to go shopping. She thought it was strange to go shopping so late at night. Riha's testimony also provides evidence of Bustamante's intent to rob the victim.

Although Bustamante concedes there is overwhelming evidence that he murdered Alvarado, he asserts that the evidence that he killed the victim during the course of a robbery was largely circumstantial. He argues that his brother's statement was prejudicial because it was direct evidence of his intent to rob.

We understand Bustamante's argument to be that his brother's statement prejudiced him because the properly admitted evidence of his intent to rob was weak. We disagree. As outlined above, Bustamante's own confession provided damning evidence of his intent to rob. In his confession, Bustamante described the plan to find an apparently illegal alien who was leaving a bar and, under the ruse of giving him a ride, take him to a remote vicinity and all four men would beat the victim. Bustamante's confession shows that he had taken notice of the victim's gold chains and apparently expensive watch. In addition to Bustamante's confession, Depriest testified that, as they were searching for the victim, Bustamante stated that he wanted the victim's boots. Riha testified that on the night of the murder Bustamante told her he was leaving to go “shopping”; however, she did not understand what Bustamante meant at the time. Further, Solomon testified that Bustamante appeared upset when he told Solomon that the victim had escaped.

Contrary to Bustamante's assertion, we conclude that, aside from his brother's statement, there is overwhelming evidence of Bustamante's intent to rob the victim. Bustamante correctly asserts that the Strickland prejudice test is not simply whether there was sufficient evidence to convict him of capital murder without his brother's statement. Nonetheless, the strength of the incriminating evidence informs the determination of prejudice. See Williams v. Taylor, 529 U.S. 362, 398, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (explaining that in making the prejudice determination under Strickland the court “correctly emphasized the strength of the prosecution evidence”).

In Miller v. Dretke, the petitioner moved for a COA, alleging that counsel rendered ineffective assistance by failing to object to admission of evidence of an extra-judicial confession of a codefendant that implicated the petitioner. 404 F.3d 908, 918 (5th Cir.2005). This Court found that, “in light of the other overwhelming evidence against” the petitioner, there was not a reasonable probability that he would be found not guilty. Id. Among other things, a witness testified that the petitioner had admitted shooting the victims. Id. at 919.

Here, the Texas Court of Criminal Appeals found no reasonable probability that but for Bustamante's brother's statement, the jury would have acquitted him of capital murder. In other words, it found no reasonable probability that, but for the brother's statement, the jury would not have found that the killing occurred during the course of a robbery. As previously set forth, we are constrained under AEDPA to determine whether the state court's conclusion is “contrary to, or involved an unreasonable application of, clearly established Federal law.” § 2254(d).

Bustamante has failed to “show a ‘reasonable probability’ that the jury would have otherwise harbored a reasonable doubt concerning guilt.” Emery v. Johnson, 139 F.3d 191, 196 (5th Cir.1997) (citation omitted). Most of Bill's statement was duplicative of other testimony at trial. To the extent Bill's statement was duplicative, it fails to demonstrate prejudice. See id. at 197 (explaining that “testimony about the confession was duplicative of [other] testimony” and thus the petitioner “cannot demonstrate that a third source of the same confession would have sufficed to change the result of his trial”).

There are, however, two pieces of information in Bill's statement that were not duplicative or cumulative of the evidence admitted at trial. Bill's statement provided that “I have gone one time with [Bustamante] to roll wetbacks.” It further provided that during the drive home after the instant murder, the four men stopped at a truck stop and Bustamante attempted “to get to a person who was asleep in the car.” The other three men persuaded him to stop. This evidence is incriminating and should not have been considered by the jury. Nonetheless, it pales in comparison to the overwhelming evidence demonstrating this brutal, unprovoked stabbing death that occurred during the course of an attempted robbery. Cf. Henderson v. Cockrell, 333 F.3d 592, 603 (5th Cir.2003) (holding that in view of the “brutal and senseless nature of the crime” and the overwhelming evidence of guilt, including petitioner's confession to a cellmate, there was not a reasonable probability that the evidence of petitioner's gang affiliation affected the guilty verdict).

Simply put, in light of the strength of the prosecution's evidence that Bustamante intended to rob the victim during the course of the murder, Bustamante has not shown there is a reasonable probability of a different verdict. Strickland, 466 U.S. at 694, 104 S.Ct. 2052. Thus, we must conclude that the state court's conclusion is not objectively unreasonable. FN5

FN5. Bustamante challenges the state court's findings and conclusions and its analysis. This Court has “conclude[d] that our focus on the ‘unreasonable application’ test under Section 2254(d) should be on the ultimate legal conclusion that the state court reached.” Neal v. Puckett, 286 F.3d 230, 246 (5th Cir.2002) (en banc). “[T]he only question for a federal habeas court is whether the state court's determination is objectively unreasonable.” Id. Here, the Texas Court of Criminal Appeals cited Strickland and opined, inter alia, that in light of the overwhelming evidence against Bustamante, there was no reasonable probability that but for counsel's performance the outcome of the proceeding would have been different. As set forth above, we find that the state court's conclusion is not objectively unreasonable.

IV. CONCLUSION