                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                 March 15, 2007

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 05-50574
                          Summary Calendar


RANDY ARROYO,

                                     Petitioner-Appellant,

versus

NATHANIEL QUARTERMAN, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

                                     Respondent-Appellee.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                           (5:01-CV-976)
                       --------------------

Before SMITH, WIENER, and OWEN, Circuit Judges.

PER CURIAM:*

     Petitioner-Appellant Randy Arroyo, Texas prisoner # 999261,

was convicted in 1998, along with Vincent Gutierrez, of the capital

murder of Jose Cobo and was sentenced to death.    After his state

appeal and state post-conviction efforts were unsuccessful, he

sought relief in federal court via a 28 U.S.C. § 2254 petition.

The district court granted conditional relief on Arroyo’s Eighth

Amendment claims in light of Roper v. Simmons, 125 S. Ct. 1183

(2005), and Arroyo’s sentence was subsequently commuted to life in


     *
       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this opinion should not be published and is not precedent except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.
prison.   The district court denied relief on all other claims, but

granted a certificate of appealability on two related Confrontation

Clause claims.   Arroyo appeals the district court’s decision as to

those claims only.   Finding no error, we affirm.

     Arroyo asserts that his Sixth Amendment right to confront

witnesses was violated when the trial court admitted the testimony

of Christopher Suaste and Sean Lowe about statements of Gutierrez

that implicated Arroyo in Cobo’s murder.       Arroyo complains in

particular about Suaste’s testimony that he was told by Gutierrez

of being told by Arroyo to shoot Cobo while he was trying to

escape. Lowe similarly testified that Gutierrez had said there was

mention made of shooting Cobo because of his attempted escape,

although precisely who had made the statement was not known.    The

district court concluded that, given the other evidence of guilt,

any constitutional error was harmless.    We agree.

     The admission of third party testimony about a non-testifying

co-defendant’s statement that implicates another defendant may

violate the Confrontation Clause, but this rule is subject to

exceptions.   Lilly v. Virginia, 527 U.S. 116, 123 (1999); Bruton v.

United States, 391 U.S. 123, 17-28 (1968). Such error is generally

referred to as Bruton error and is subject to harmless error

review.    United States v. Nutall, 180 F.3d 182, 188 (5th Cir.

1999).    Under the harmless error standard, federal habeas relief

may not be granted for constitutional error that did not “have a

substantial and injurious effect or influence in determining the

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jury’s verdict.”   Brecht v. Abramson, 507 U.S. 619, 623 (1993).      We

and the Supreme Court have found Bruton error harmless when the

erroneously admitted statements are “merely cumulative of other

overwhelming and largely uncontroverted evidence.”         See Brown v.

United States, 411 U.S. 223, 231-32 (1973); see also United States

v. Lage, 183 F.3d 374, 388 (5th Cir. 1999).      We review the district

court’s harmless error determination de novo.            See Jordan v.

Hargett, 34 F.3d 310, 315-16 (5th Cir. 1994).

      Although   Arroyo   takes   issue   with   the   district   court’s

formulation of the harmless error test and complains that the court

failed to give sufficient weight to the prosecution’s reliance on

the contested testimony, our de novo review persuades us that the

district court correctly determined that any error was harmless.

The evidence overwhelmingly showed that Arroyo planned the theft of

Cobo’s Mazda RX-7 to steal parts for his own car, cased Cobo’s

apartment complex before the theft, purchased gloves in advance to

avoid leaving fingerprints, directed Suaste to Cobo’s apartment

complex and entered the gate code, and stole the car with Cobo in

it.   Further, both Arroyo and Gutierrez were armed.

      The evidence also showed that Arroyo drove the car during the

commission of the theft, admitted his involvement to a police

officer afterwards, and led the officer along the route, showing

him where he and Gutierrez disposed of the guns and abandoned the

car. Witnesses saw the RX-7 being driven erratically, saw a person

inside struggling, and heard gunshots while the car was moving; and

                                    3
one witness saw Cobo’s body thrown from the car.                   The guns were

later found, and ballistics evidence matched the bullets in Cobo’s

body   to     one   of     the   guns.    Further,    garments     matching    the

description of Gutierrez’s clothing were found and they were

stained with blood that was consistent with Cobo’s blood.

       This    evidence      overwhelmingly     satisfies    the   standard    for

finding Arroyo criminally culpable for Cobo’s death under Texas

law.   See TEX. PENAL CODE ANN. § 7.02(b) (Vernon 2003); see also Ruiz

v. State, 579 S.W.2d 206, 207 (Tex. Crim. App. 1979).                We will not

say that the testimony by Suaste and Lowe, even if erroneously

admitted, had a substantial and injurious effect on the verdict, as

it   was    merely    cumulative     of   other    overwhelming     and   largely

uncontroverted evidence.           Given our conclusion that any error was

harmless, we need not reach Arroyo’s contentions that the district

court erroneously failed to make a determination of Confrontation

Clause      error    and    misapplied    the     analysis   required     by   the

Antiterrorism and Effective Death Penalty Act.

       The judgment of the district court appealed from is, in all

respects,

AFFIRMED.




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