* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

REVISED AUGUST 20, 2008

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-70002

SAMUEL BUSTAMANTE

Petitioner-Appellant

v.

NATHANIEL QUARTERMAN,

Director, Texas Department of Criminal Justice, 

Correctional Institutions Division

Respondent-Appellee

Appeal from the United States District Court 

for the Southern District of Texas

USDC No. 4:05-CV-01805

Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges.

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

United States Court of Appeals

Fifth Circuit

F I L E D

July 7, 2008

Charles R. Fulbruge III

Clerk
No. 07-70003

2

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 Rosenburg, 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

Rosenburg 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. 
No. 07-70003

1 The record reveals that the district attorney’s office had mistakenly labeled two of

its exhibits with the number 107.

3

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.1 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 thatthey learned that[Bustamante]
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4

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 Rosenburg that he intended to rob someone.” Id. 

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 (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
No. 07-70003

5

reaches a different conclusion than the Supreme Court based on materially

indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 404-08 (2000). A state

court’s decision constitutes an unreasonable application of clearly established

federal law if it is “objectively unreasonable.” Id. at 409. 

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 (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 “allthe circumstances”

of a case. Id. at 688. 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. 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). Strickland’s “prejudice” prong requires a

reasonable probability that, butfor the deficient performance of his trial counsel,

the outcome of his capital murder trial would have been different. Strickland,

466 U.S. at 694. “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
No. 07-70003

2

“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.

3 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....”).

6

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.

2

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 atleast 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.3In 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. 

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.
No. 07-70003

4 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. 

7

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 soonto-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,”4 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. 

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
No. 07-70003

8

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” meantto “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 Bustmante 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. 
No. 07-70003

9

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 thoughtit 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 thatthe 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 argumentto 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.
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10

Taylor, 529 U.S. 362, 398 (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,theTexas 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
No. 07-70003

5 Bustamante challenges the state court’s findings and conclusions and its analysis.

Here the state habeas court applied the proper test, concluding that “there is no reasonable

probability that but for trial counsel’s performance the proceeding would have been different.”

The court arrived at this conclusion “in light of the overwhelming evidence of [Bustamante’s]

guilt, including his confession to the crime.” Because the state court’s adjudication of the claim

was not an unreasonable application of federal law, its decision must be afforded AEDPA

deference. SeePanetti v. Quarterman, __ U.S. __, 127 S.Ct. 2842, 2858 (2007). Even assuming

arguendo that AEDPA deference is not warranted under § 2254(d), under de novo review we

would nonetheless find that in light of the overwhelming evidence, he has not shown

Strickland prejudice. See Williams v. Collins, 16 F.3d 626, 634 (5th Cir. 1994) (holding that

Stricklandprejudicewas not shown because ofthe overwhelming evidence) (pre-AEDPA case).

11

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. Thus, we must conclude that the state

court’s conclusion is not objectively unreasonable.5

IV. CONCLUSION

For the above reasons, the district court’s judgment is AFFIRMED.
No. 07-70003

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