Court upholds ‘‘shopping’’ murder conviction

July 08, 2008 03:50 pm

Court upholds ‘‘shopping’’ murder conviction

HOUSTON (AP) — The conviction and sentence of a Texas man condemned for a fatal stabbing during what was described as a ‘‘shopping’’ trip to rob illegal immigrants was upheld Monday by a federal appeals court.

The 5th U.S. Circuit Court of Appeals rejected arguments from Samuel Bustamante, a former oilfield worker from El Campo, who contended his trial attorney mistakenly allowed jurors during deliberations to see an incriminating written statement that had not been allowed into evidence during his trial in suburban Houston’s Fort Bend County.

The jury decided Bustamante, now 38, should die for the January 1998 slaying of Rafael Alvarado, 27. Alvarado was stabbed at least 10 times after he was picked up by Bustamante and three friends in Rosenberg.

In his appeal to the New Orleans-based 5th Circuit, Bustamante argued the statement police took from his brother, Bill, prejudiced jurors because they learned from it that he had ‘‘gone shopping’’ before and had told his brother he intended to rob someone. Bill Bustamante, charged with murder in another case, had refused to testify. Prosecutors had attempted to have the statement read into testimony by a police officer, but the trial judge refused.

Samuel Bustamante contended his trial lawyers were deficient because they didn’t inspect the exhibits before they were given to the jury and failed to recognize an improper exhibit was among them.

The appeals court, in its ruling, said ‘‘overwhelming evidence’’ showed Bustamante intended to rob the victim during the murder.

‘‘Bustamante’s own confession provided damning evidence of his intent to rob,’’ the court said.

Two items carried the same exhibit number 107, one of them the statement not allowed into evidence and the other a chart or graph that was admitted properly.

Jurors inspecting evidence at the trial in 2001 discovered the statement and sent a note to the judge, who then questioned them individually. Three jurors said they had read at least portions of the statement and nine said they heard at least some of it read aloud. All 12 said they could disregard the statement if the judge instructed them to do so.

State District Judge Thomas Culver III gave them that instruction and denied a mistrial request from Bustamante’s lawyers.

Bustamante’s lawyers didn’t dispute he killed Alvarado but insisted the victim wasn’t robbed, meaning it shouldn’t be a capital offense punishable by death.

Alvarado was attacked while riding in the back of a pickup truck. He apparently managed to climb from the moving truck as it drove down a deserted road and his body was found the next morning. He still had his money and his jewelry.

Alvarado had been offered a ride by Bustamante and his companions some time after 2 a.m., outside a bar in Rosenberg, southwest of Houston. Their scheme was to pick up illegal immigrants after the bars closed and rob them.

Court records show Alvarado, a construction worker living in adjacent Richmond, was singled out because his clothes were in good condition and he was wearing gold jewelry. Court records did not indicate his immigration status.

Bustamante and his brother also were charged with the murder a month later of a homeless man in Wharton County. Bill Bustamante agreed to a plea bargain in that case and went to prison for 40 years.

Samuel Bustamante, who does not have an execution date, is known on death row as ‘‘Fat Boy,’’ according to a Web site where he seeks pen pals. His prison record lists him at 5-feet-7 and 264 pounds. He had a previous record for forgery in North Carolina, where he served six months of a one-year prison term.

In Texas, he received five years in Wharton County for burglary, was released on parole but returned with another four-year term for possession of a prohibited weapon. He was paroled from that conviction in 1991.