Revised November 13, 2001

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________________

No. 00-50222

_______________________

JOSE SANTELLAN, SR.,

Petitioner-Appellee-Cross-Appellant,

versus

JANIE COCKRELL, Director, Texas Department of Criminal Justice,

Institutional Division,

Respondent-Appellant-Cross-Appellee.

_________________________________________________________________

Appeals from the United States District Court

for the Western District of Texas 

_________________________________________________________________

October 17, 2001

Before JOLLY, JONES, and BENAVIDES, Circuit Judges.

EDITH H. JONES, Circuit Judge:

The district court granted a writ of habeas corpus to

Jose Santellan, a death-sentenced Texas prisoner, after it

concluded that no rational jury could find that he murdered his exgirlfriend while in the course of attempted kidnapping. The

federal court also concluded that the Texas Court of Criminal

Appeals affirmed Santellan’s conviction on a factual basis

sufficiently different from that espoused by the state at trial as
2

to deny due process. Based on the appropriately deferential

(AEDPA) standard of review of the state court’s decision, we hold

that the state court did not unreasonably apply clearly established

federal law and reverse the district court’s judgment. We also

reject Santellan’s cross-appeal urging an ineffective assistance of

counsel claim. 

BACKGROUND

On the afternoon of August 22, 1993, Santellan confronted

his former girlfriend, Yolanda Garza, as she left work at the Hill

Country Memorial Hospital in Fredericksburg, Texas. Garza had been

walking through the parking lot with a co-worker, Norma Hoffman.

As the two women parted, Santellan approached Garza; he might have

emerged from behind some dumpsters or a wall at the end of the

parking lot. Garza veered from her previous course along with

Santellan and walked away from her automobile. Hoffman watched

Garza and Santellan talking, but at a distance of 70 feet, she

could not understand what was being said or whether the two were

arguing. The last time Hoffman saw Yolanda standing, she was about

five feet from Santellan and about 20 feet from where she had met

him. 

Garza suddenly screamed, “Think of my kids!” Santellan

was now standing over her with his pistol drawn. Hoffman heard two

shots and saw Santellan shake his gun as if to dislodge a jam, but
3

she acknowledged that other shots might have been fired before she

took notice. Santellan continued to stand over Yolanda’s body. 

At about this time, a second eye-witness, hospital housekeeper Guadalupe Noriega, entered the parking lot. She saw Garza

bleeding and motionless and rushed back into the hospital to seek

help. Returning to the parking lot, Noriega saw Santellan’s car

parked next to the victim as he loaded her into the passenger seat,

put in her backpack and drove away.

Santellan later confessed that he absconded with Garza’s

dying body because he “just wanted to get away and be with her and

spend some time together.” Santellan drove west for several hours

before checking into a motel in Camp Wood, Texas. He carried

Garza’s body into the hotel room. During the next night and day,

Santellan engaged in various sex acts with the corpse. He poured

perfume on the body to alleviate the growing stench of

decomposition. He also drafted several letters to family members,

asking their forgiveness for the murder. The police found and

arrested Santellan at the motel on August 24th. Santellan

confessed voluntarily. 

In April 1994, Santellan was indicted for the capital

murder of Yolanda Garza while in the course of attempting to kidnap

her. He was tried, convicted and sentenced to death a year later.

The Texas Court of Criminal Appeals affirmed his conviction.

Santellan v. Texas, 939 S.W.2d 155 (Tex. Crim. App. 1997).
1 The district court rejected several other issues raised

by Santellan, but he has not appealed them. 

4

Santellan then unsuccessfully sought habeas corpus relief in state

court. 

His quest for habeas relief prevailed, however, in the

federal district court. The district court found the evidence

constitutionally insufficient to support a conviction for murder in

the course of attempted kidnapping, and it refused to defer to the

state court’s decisions. The federal court first rejected the

state’s principal theory of the crime, as it concluded that, “No

rational jury could have found beyond a reasonable doubt that

[Santellan] attempted to abduct or restrain the victim by use of

deadly force when he approached the victim in the parking lot.”

Second, the federal court held that the Texas Court of Criminal

Appeals unreasonably affirmed the conviction on a factual and legal

basis that the state had “disavowed” before the jury; the court

considered this alleged modification of the basis for the verdict

to violate Santellan’s due process rights. Finally, while the

court agreed with Santellan that his attorney rendered

unconstitutionally deficient performance by not investigating the

petitioner’s possible organic brain damage, it found that this

error did not prejudice Santellan.1 
5

The State has appealed from the grant of habeas corpus

relief, and Santellan appeals the single claim of defective

attorney performance.

Standard of Review 

The federal courts’ review of this habeas petition is

governed by the Antiterrorism and Effective Death Penalty Act

(“AEDPA”), 28 U.S.C. §§ 2241 et seq. See Lindh v. Murphy, 521 U.S.

320, 335, 117 S.Ct. 2059, 2067 (1997) (applying AEDPA to all habeas

petitions filed on or after April 24, 1996). Under AEDPA, a

federal court may grant a prisoner’s petition only where the state

court’s “decision” was “contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by

the Supreme Court of the United States” or 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).

Pursuant to the Supreme Court’s recent interpretive decisions, the

“unreasonable application” inquiry asks whether a state court’s

application of clearly established law was “objectively

unreasonable.” Williams v. Taylor, 529 U.S. 362, 409, 120 S.Ct.

1495, 1521-22 (2000). The “most important point” of the Williams

decision is that an “incorrect application of federal law is not

necessarily unreasonable.” Williams, 529 U.S. at 411-12, 120 S.Ct.

at 1522-23. We consider, then, whether the Texas courts’
6

“decisions” applying long-established constitutional law principles

were “objectively unreasonable.” 

The key to this case is the federal district court’s

revisiting of the evidence because it believed that the Texas Court

of Criminal Appeals should not have affirmed Santellan’s capital

murder conviction on a factual theory different from the theory

principally advocated by the State at trial. Santellan never

denied that he murdered Garza, but he challenged the enhancement to

capital murder based on attempted kidnapping, and he contended that

his acts did not meet state law criteria for the enhancement crime.

The federal district court agreed for two reasons. In the court’s

view, not only had the State “disavowed” the theory adopted by the

Court of Criminal Appeals, but that court’s analysis implicitly

rejected the State’s approach. The switching and contradiction of

theories violated the due process clause, according to the district

court. And in any event, neither theory of attempted kidnapping

was supported by constitutionally sufficient evidence. We shall

address the insufficiency point first. 

Sufficiency of the Evidence

In considering challenges to the sufficiency of evidence

in habeas proceedings, “the relevant question is whether, after

viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.”
7

Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789 (1979).

Whether the appellate court views the evidence as sufficient is

irrelevant. Jackson, 443 U.S. at 318-19, 99 S.Ct. at 2789. The

Jackson inquiry “does not focus on whether the trier of fact made

the correct guilt or innocence determination, but rather whether it

made a rational decision to convict or acquit.” Herrera v.

Collins, 506 U.S. 390, 402, 113 S.Ct. 853, 861 (1993). The Texas

Court of Criminal Appeals invoked, recited and applied the Jackson

standard on Santellan’s direct appeal. Santellan, 939 S.W.2d at

160. While its decision was thus not “contrary to clearly

established Federal law”, it could be an “unreasonable application”

thereof. Williams, supra at 529 U.S. at 413, 120 S.Ct. at 1523.

The federal district court declared, after an independent review of

the evidence that ignored circumstantial inferences and, by its

selectivity, did not view the evidence in the light most favorable

to the verdict, that the evidence of attempted kidnapping was

constitutionally insufficient and, therefore, the state court’s

contrary determination was incorrect. We disagree with the

district court’s conclusion.

To begin with, the court appeared to interpret AEDPA to

authorize habeas relief solely because it found the state court’s

reasoning unsatisfactory. The plain language of AEDPA, as well as

the rulings of our sister circuits, renders this reasoning
8

untenable. AEDPA authorizes a federal court to grant habeas relief

only where a state court’s “decision” (a) was contrary to, or

involves a clearly unreasonable application of federal law, or

(b) was based on an unreasonable determination of the facts. 28

U.S.C. § 2254(d)(1), (2). The statute compels federal courts to

review for reasonableness the state court’s ultimate decision, not

every jot of its reasoning. As the Second Circuit recently noted,

even where a state court made a mistake (in relying on an

interrogating officer’s subjective state of mind as part of a

Miranda inquiry), “we are determining the reasonableness of the

state court’s ‘decision,’ . . . not grading their papers.” Cruz v.

Miller, 255 F.3d 77, 86 (2d Cir. 2001). Other circuit courts

likewise focus on the result of a state court’s consideration of a

prisoner’s claim. Long v. Humphrey, 184 F.3d 758, 760-61 (8th Cir.

1999); Matteo v. Superintendent, 171 F.3d 877, 891 (3d Cir. 1999)

(en banc); Aycox v. Lytle, 196 F.3d 1174, 1178 (10th Cir. 1999) (“.

. . we cannot grant relief unless the state court’s result is

legally or factually unreasonable”). This approach is consistent

with the federal courts’ view that if a state court denies a

prisoner’s claim without reasoning of any sort, our authority under

AEDPA is still limited to determining the reasonableness of the

ultimate decision. See, e.g., Bell v. Jarvis, 236 F.3d 149 (4th

Cir. 2000), cert denied, Bell v. Beck, 2001 WL 379029 (2001);
9

Sellan v. Kuhlman, 261 F.3d 303, 311 (2d Cir. 2001). It would be

odd to require a less deferential approach to reasonableness in

cases where the state courts attempted to articulate reasons for

their decisions than in those where they did not. 

In this case, the foregoing authorities dictate that

while it is not irrelevant that the Texas Court of Criminal Appeals

appears to have affirmed Santellan’s conviction on a theory of

attempted kidnapping that differs from the State’s preferred theory

at trial, because the inconsistency may shed light on the

sufficiency of either theory, that is not the whole story.

Instead, we focus, as does the Jackson standard itself, on what

inferences could have been drawn by any rational jury. The

elements of the offense and the facts and inferences supporting the

verdict must be considered.

Santellan was charged with capital murder by

intentionally committing murder in the course of attempting to

commit kidnapping. See Tex. Penal Code Ann. § 19.03(a)(2). The

State had to prove beyond a reasonable doubt that he had the

specific intent to commit kidnapping and that he committed an act

amounting to more than mere preparation for kidnapping Garza. See

Tex. Penal Code Ann. § 15.01 (defining criminal attempt). In

Texas, kidnapping is the intentional or knowing abduction of

another person. Tex. Penal Code. Ann. § 20.03. To “abduct” means
10

to restrain a person with the intent to prevent his liberation by

either (1) secreting or holding her in a place where she is not

likely to be found or (2) using or threatening to use deadly force.

Tex. Penal Code Ann. § 20.01(2). Under the law of criminal

attempt, the Texas Court of Criminal Appeals has held that “the

criminal act element of the attempted offense entailed proof beyond

a reasonable doubt that [Santellan] committed an act amounting to

more than mere preparation for the restraint of the victim.”

Santellan, 939 S.W.2d at 162. “Restraint” is defined as a

substantial interference with the victim’s liberty through the use

of deadly force, intimidation, or deception. Tex. Penal Code §

20.01(1). The assailant need not, however, have restrained the

victim for any certain period of time. Sanders v. State, 605

S.W.2d 613, 614 (Tex. Crim. App. 1980). 

That Santellan had the specific intent to kidnap Garza

before or during the commission of the murder was proved by the

State, was carefully explained by the Texas Court of Criminal

Appeals, was implicitly confirmed by the federal district court,

and is not challenged by Santellan on appeal. Nevertheless, a

recitation of facts that proved Santellan’s intent is helpful in

explaining his actions toward Garza as he committed the crime. In

his confession, Santellan admitted his desire to “get away and be

with [Yolanda] and spend some time together.” Rather than fleeing
11

the scene after he shot her, he lingered, bringing his car around

to collect her body and backpack. Santellan stated at one point

that Garza may have been alive when he placed her in his car. He

made no effort to hide or dispose of the evidence. Santellan’s

bizarre treatment of Garza’s corpse, including his cleaning it,

dressing it in his underwear, and repeatedly engaging in sexual

relations with it, evinces a desire to possess or control the

victim. He admitted his sexual abuse of her corpse was motivated

by a desire to “show how much I really loved her.” Although

Santellan also confessed that he went to the hospital intending to

“say goodbye”, a reasonable jury could conclude that Santellan’s

intent in going armed to the hospital that day was to force Garza

to stay with him until she reciprocated his affections.

The parties diverge over the basis for the jury’s

conclusion that Santellan committed an act amounting to more than

mere preparation for the restraint of Garza. Santellan asserts and

the district court ruled that it is impossible to conclude beyond

a reasonable doubt that Santellan “attempted to abduct or restrain

the victim by use of deadly force when he approached the victim in

the parking lot.” As stated, we disagree. The prosecution showed

that Santellan drove to the hospital, just as Garza was leaving

work, for the confessed purpose of saying goodbye. But he brought

along a loaded handgun, emerged from behind some concealment on the
2 Santellan’s confession does not detail the specifics of

this conversation, but it made him angry: “Yolanda became abusive,

my mind went blank, I pulled out a handgun with a full clip.” 

3 The psychiatric report prepared by Dr. Lee Simes in 1994

concluded that while Santellan was mentally ill and suffering from

a depressive disorder, intermittent explosive disorder, alcohol

abuse, and personality disorder, he was not mentally retarded and

was competent to stand trial and assist in his own defense.

12

edge of the parking lot and intercepted Garza after she had parted

company with Norma Hoffman. Santellan diverted Garza from the path

to her car and led her away from her car. He began talking to her.

Santellan did not like the result of this conversation and2, in

response, produced his pistol. He emptied his clip, shooting Garza

four times, but there could have been a pause between the intervals

of shooting, since Hoffman heard two shots and then saw Santellan

shake the pistol. 

All of these facts are undisputed. Given Santellan’s

specific intent to kidnap Garza, this series of acts permitted a

reasonable jury to find more than “mere preparation” to restrain

Garza through the use of deadly force, intimidation, or deception.

Santellan armed himself, stalked his estranged ex-girlfriend

through the parking lot, confronted her verbally and prevented her

from reaching her car, brandished his pistol, and ultimately shot

her. Garza knew she was threatened – why else would she have

screamed at him in fear? Indeed, taking into account that

Santellan was mentally competent,3 a failed kidnapping coherently
13

explains the “diversion of path” scenario pressed by the State at

trial.

The district court’s contrary conclusion rests on two

erroneous premises. First, the court simply ignored Yolanda’s

dreadful scream when it concluded that no evidence supported the

theory that Santellan brandished his pistol at her or attempted to

restrain her liberty with the threat of deadly force. The court

relied solely on the petitioner’s, not the State’s, evidence in

this regard. Second, the district court relied on the fact that

the Court of Criminal Appeals did not expressly affirm the

constitutional sufficiency of evidence on this theory, but instead

held that Garza’s heart might still have been beating when

Santellan placed her in his car. The district court inferred that

the Court of Criminal Appeals also rejected the “diversion of path”

theory. 

Whether the Court of Criminal Appeals rejected the

“diversion of path” theory is not entirely clear, but is also

irrelevant to the ultimate question under Jackson. As we have

noted, the test in Jackson is whether any rational jury could have

found the elements of guilt beyond a reasonable doubt. The

“diversion of path” theory was sufficiently established. The facts

may be interpreted in other ways, with varying levels of

evidentiary support. The Court of Criminal Appeals affirmed on the
4 We have no need to reach Santellan’s additional

contention that the “still alive” and “fatal shot in the car”

theories allege not an attempted, but a completed kidnapping under

Texas law, which introduced a fatal variance. See United States v.

Miller, 471 U.S. 130, 105 S.Ct. 1811 (1985); Stirone v. United

States, 361 U.S. 212, 80 S.Ct. 270 (1960).

14

basis that Garza may have been “still alive” because forensic

evidence suggested her heart may have been beating after Santellan

loaded her into his car. The State alternatively hypothesizes that

Santellan struck Garza before shooting her, thereby knocking her to

the ground and effecting a restraint. Finally, Santellan may have

fired the fatal shot after Garza was already in his car, since

bullet casings were found there. Santellan urges that none of the

alternative theories of attempted kidnapping satisfies the Jackson

standard.4

Like the district court, Santellan recognizes that he

must defeat all of the theories of attempted kidnapping in order to

obtain relief. The Supreme Court has ruled that where a jury is

given the option of choosing between factually adequate and

factually inadequate theories of guilt, jurors “are well equipped

to analyze the evidence” and can be counted upon to base their

verdict upon the factually adequate theory. See Griffin v. United

States, 502 U.S. 46, 59, 112 S.Ct. 466, 474, 116 L.Ed.2d 371

(1991). In Griffin, the Supreme Court refused to overturn a

general guilty verdict because one of the possible bases of
5 Santellan alternatively argues that, as applied in this

case, the Texas capital punishment statute is unconstitutional for

vagueness and because it does not sufficiently narrow the class of

death-eligible defendants. These arguments are meritless.

Attempted kidnapping is a statutory aggravating factor that

elevates Santellan’s crime above the offense of ordinary murder and

15

conviction was unsupported by sufficient evidence. As an example,

the Court noted that invalidating a conviction on evidentiary

grounds was not appropriate if “an indictment charg[ed] murder by

shooting or drowning, where the evidence of drowning proves

inadequate.” 502 U.S. at 56, 112 S.Ct. at 472. Thus, the possible

insufficiency of the evidence to prove more than mere preparation

for restraint under one or more theories is irrelevant, where there

remains a sufficiently supported theory of guilt. As the Seventh

Circuit has put it:

It is one thing to negate a verdict that, while supported

by evidence, may have been based on an erroneous view of

the law; it is another to do so merely on the chance--

remote, it seems to us--that the jury convicted on a

ground that was not supported by adequate evidence when

there existed alternative grounds for which the evidence

was sufficient. 

United States v. Townsend, 924 F.2d 1385, 1414 (7th Cir. 1991).

Because the diversion of path theory of attempted

kidnapping is factually adequate, this portion of Santellan’s

argument fails. The Court of Criminal Appeals’ “decision”

upholding the constitutional sufficiency of the evidence of

attempted kidnapping was not unreasonable.5 
narrows the class of crimes to which the d death penalty may

attach. See Tex. Penal Code § 19.03; Jurek v. Texas, 428 U.S. 262,

268-72, 96 S.Ct. 2950, 2954-56 (1976); Lowenfield v. Phelps, 484

U.S. 231 at 243-46, 108 S.Ct. 546, 554-55 (1988). The offense of

attempted kidnapping requires both specific intent and more than

mere preparation to “restrain” the victim. Santellan’s argument

ignores the evidence of specific intent to kidnap and the evidence

of attempted intimidation and restraint by means of deadly force.

As the State observes, not only could a reasonable jury infer both

specific intent and the requisite amount of pre-murder restraint,

but the evidence of Santellan’s specific intent to kidnap Garza

distinguishes his case from ordinary murders. It is thus incorrect

to assert, as Santellan does, that his capital murder conviction

threatens to transform every murder into a death-eligible crime.

16

Due Process Claim 

Santellan, supported by the district court, also argues

that the reliance by the prosecution at trial and by the Court of

Criminal Appeals on separate theories of attempted kidnapping

violated his due process rights and warrants the granting of habeas

relief. In support, he points to the Supreme Court’s decisions in

McCormick v. United States, 500 U.S. 257, 111 S.Ct. 1807 (1991) and

Dunn v. United States, 442 U.S. 100, 99 S.Ct. 2190 (1979). 

Dunn stands for the proposition that “[t]o uphold a

conviction on a charge that was neither alleged in the indictment

nor presented to a jury at trial offends the most basic notions of

due process.” Dunn, 442 U.S. at 106, 99 S.Ct. at 2194. In Dunn,

the defendant was indicted, tried, and convicted on the theory that

he had lied under oath at a particular proceeding in September

1976. When the appeals court looked at the conviction, however, it
17

concluded that the September 1976 proceeding was not within the

coverage of the applicable criminal statute, and it chose instead

to affirm on the basis of a statement that the defendant had made

at an October 1976 proceeding not mentioned in the indictment. The

Supreme Court found this to be a due process violation. Similarly,

in McCormick, the jury instructions explained that a campaign

contribution could be proscribed by the Hobbs Act even where there

was no expectation of benefit by the contributor. The Tenth

Circuit disagreed, holding that the Hobbs Act required a quid pro

quo and listing a seven-factor test for such an arrangement.

Rather than remand the case, however, the court affirmed the

conviction on this new legal basis, thereby violating due process.

McCormick, 500 U.S. at 269-270, 111 S.Ct. at 1814-15.

The present case is readily distinguishable from Dunn and

McCormick. The indictment of Santellan alleged attempted

kidnapping only in general terms and did not commit the State to

prosecuting any one factual theory. Similarly, the jury

instructions described the law of kidnapping and criminal attempt

in considerable detail, but do not bind the State to a particular

interpretation of the facts or theory of attempted kidnaping. In

contrast to Dunn, the incident for which Santellan was convicted by

the jury--the murder and attempted kidnaping of Yolanda Garza in

Fredericksburg on August 22, 1993--was also definitively the basis
18

of the appellate court’s affirmance of his conviction. As

distinguished from the federal circuit court in McCormick, the

Texas Court of Criminal Appeals did not reinterpret the relevant

criminal statute or apply different legal standards than the trial

court in Santellan’s case. Instead, the court focused on a

different interpretation of the facts than that emphasized by the

prosecution at trial. Contrary to Santellan’s suggestion, the

Court of Criminal Appeals did not “disavow” the diversion of path

theory of attempted kidnaping, but raised and discussed the theory,

albeit somewhat briefly, in its published opinion. Santellan, 939

S.W.2d at 162-63 and 165. Because of the general nature of the

indictment and the jury charge, and because the Court of Criminal

Appeals affirmed on the basis of the same law and the same ultimate

acts that underlay the conviction in the trial court, neither Dunn

nor McCormick is applicable to Santellan’s case.

The Texas Court of Criminal Appeals did not unreasonably

apply federal law in rejecting a due process claim and sustaining

Santellan’s conviction.
19

Ineffective Assistance of Counsel Claim

Santellan has challenged on cross-appeal the denial of

his habeas claim based on his trial counsel’s failure to introduce

potentially mitigating psychiatric evidence during the punishment

phase of trial. He faults counsel’s failure to investigate,

prepare, and present mitigating evidence that Santellan suffers

from organic brain damage. Had the jury been presented with this

evidence, he contends, there is a reasonable probability that he

would have received a life sentence rather than death. See Glenn

v. Tate, 71 F.3d 1204 (6th Cir. 1995)(holding that trial counsel’s

failure to present evidence of the defendant’s brain damage

required reversal of his death sentence). 

The standard for ineffective assistance of counsel is

well established: Petitioner must show that (1) his counsel’s

representation was deficient, and (2) that the deficient

performance was so serious that it prejudiced his defense. See

Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064

(1989). For a federal court to grant habeas relief, the state

court must have unreasonably applied the Strickland standard. See

Williams, 529 U.S. at 413, 120 S.Ct. at 1523. The federal district

court held that while the Court of Criminal Appeals unreasonably

applied the deficiency prong of Strickland, its conclusion that

Santellan suffered no prejudice as a result of this deficient
20

performance was reasonable. Based on the district court’s

evaluation of the prejudice prong, and expressing no opinion on its

decision as to the first prong, we affirm.

Overwhelming evidence illustrated Santellan’s history of

displaying a violent personality and behavior wholly apart from the

kidnapping and murder of Garza. Considering that history in light

of the horrific nature of this offense, a reasonable court could

conclude that there was no substantial likelihood that the outcome

of the punishment phase would have been altered by evidence that he

suffered organic brain damage. Under the deferential standard of

Section 2254(d), the Texas court did not unreasonably apply the

second prong of Strickland to Santellan’s case. 

Conclusion

Based on the foregoing discussion, the Texas Court of

Criminal Appeals did not unreasonably apply clearly established

federal law to Santellan’s insufficiency of the evidence, due

process or ineffective assistance of counsel claims. Accordingly,

the judgment of the district court granting the relief under § 2254

is REVERSED.