REVISED, October 27, 1999

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 98-40171

BILLY GEORGE HUGHES Petitioner-Appellant

versus

GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION Respondent-Appellee

Appeal from the United States District Court For the Southern District of Texas

October 5, 1999

Before KING, Chief Judge, and HIGGINBOTHAM and DAVIS, Circuit Judges.

HIGGINBOTHAM, Circuit Judge:

Twelve years after the crime, a Texas jury convicted Billy

George Hughes of the capital murder of Texas state trooper Mark

Frederick and sentenced him to death. See Hughes v. State,

(Tex. Crim. App. 1994).1 This was the second

1 Hughes was initially tried for the murder in 1976 and was sentenced to death; the conviction and sentence were affirmed on direct appeal. See

at 288 n.1; Hughes v. State,

(Tex. Crim. App. 1978). In 1987, The Texas Court of Criminal Appeals granted Hughes’s state postconviction application and

1 conviction and death sentence for this murder. The jury found

Hughes guilty of violating TEX. PENAL CODE ANN. § 19.03(a)(1),

which provides that a person commits capital murder if “the

person murders a peace officer who is acting in the lawful

discharge of an official duty and who the person knows is a peace

officer.”

I.

A. On the evening of April 4, 1976, two Texas state troopers

pulled over the 1975 Ford LTD Hughes was driving on Interstate 10

near Sealy, Texas. See Hughes,

. The troopers

were responding to a dispatcher’s report that a man driving a

similar car had attempted to use a stolen credit card at a nearby

motel. See

After Hughes pulled onto an interstate exit ramp,

Trooper Frederick approached the driver’s side of the Ford. See

Trooper Jack Reichert got out of the patrol car almost immediately

after Frederick did. See

Approaching the Ford behind

Frederick, Reichert heard a “muffled shot” and saw Frederick “lurch” to the side. Frederick had sustained a fatal wound. As

the Ford sped away, Reichert shot several times at the car.

An abandoned car with matching description was found several

miles away. The car had many bullet holes, and its trunk contained

reversed Hughes’s conviction. See Hughes,

n.1; Ex parte Hughes,

(Tex. Crim. App. 1987).

2 a loaded, sawed-off shotgun and several other weapons. Two days

later, a helicopter approached a field where a suspect was

reportedly seen. The suspect, Hughes, at first pointed a pistol at

the helicopter, but then threw the gun down and surrendered.

Ballistics experts identified the pistol as the murder weapon.

The jury convicted, and at the punishment phase answered the

three special issues in the affirmative.2 First, the jury

determined that the conduct causing Trooper Frederick’s death was

committed “deliberately.” Id. at 289; see TEX. CODE CRIM. PROC. art. 37.071(b)(1) (West 1981). Trooper Reichert was certain that

Frederick had not fired his gun at any time, and there was evidence

that the murder weapon had an unusually hard trigger pull. See

Hughes,

.

Second, the jury determined that there was a probability that

Hughes would commit criminal acts of violence that would constitute

a continuing threat to society. See

at 291 & n.8; art.

37.071(b)(2). The evidence offered by the State in support of this

second special issue is quickly summarized. There was testimony by

Hughes’s ex-wife that Hughes beat her many times and that his acts of criminal violence escalated during their marriage; testimony

that Hughes was disfellowshipped from his Jehovah’s Witness

congregation for writing bad checks and lying; testimony that

2 The third special issue asks whether “the conduct of the defendant in killing the deceased was unreasonable in response to the provocation, if any, by the deceased.” Art. 37.072(b)(3). The application of this provision is not at issue in this case.

3 Hughes threatened to kill a church elder who sat in on the

disfellowship proceedings; that Hughes had been convicted for a

federal extortion offense in which he made several bomb threats, an

offense for which Hughes was on probation at the time of the

murder; testimony by an FBI agent who investigated the extortion

offense that he believed Hughes would be a continuing violent

threat to society; evidence of Hughes’s written plans to rob a bank

with firearms and the large quantity of guns and ammunition found

in Hughes’s car trunk; testimony by Hughes’s own witness, a prison warden who stated that Hughes was a “con man”; testimony by an

assistant prison warden that Hughes was manipulative, dangerous,

and violent; testimony that Hughes aimed his pistol at the

helicopter just before his surrender.

On direct appeal, Hughes raised 55 points of error. Many of

the claims were stated separately under both the Federal and Texas

Constitutions. The Texas Court of Criminal Appeals affirmed

Hughes’s conviction and sentence in 1994, and the United States

Supreme Court denied certiorari. See Hughes v. Texas,

(Tex. Crim. App. 1994), cert. denied,

(1995). Hughes then filed a state action seeking postconviction

relief, which the Texas Court of Criminal Appeals denied in

February 1997. In September 1997, Hughes, represented by the same

attorney who defended him at trial in 1988, filed the instant

habeas petition with 24 claims spread over a 232-page

petition. The district court stayed execution.

4 The district court in a published opinion granted the State’s

motion for summary judgment and dismissed Hughes’s § 2254 petition.

See Hughes v. Johnson,

(S.D. Tex. 1998). The

court also denied Hughes a certificate of appealability (COA).

Hughes timely filed a notice of appeal and applied for a COA in

this court with a supporting brief. The State has filed a brief in

response.

B. Hughes filed his federal habeas application in September 1997,

after the April 24, 1996 effective date of the Antiterrorism and

Effective Death Penalty Act (AEDPA), and is required to obtain a

COA before proceeding with his appeal. A COA will be granted only

if Hughes makes a substantial showing of the denial of a

constitutional right. See

(c)(2). The issue must

be debatable among jurists of reason to proceed further. See

Fuller v. Johnson,

(5th Cir.), cert. denied, 118.

S. Ct. 399 (1997).

II.

A.

Before proceeding to the substantive claims, we treat Hughes’s

contention that the standards of review prescribed by the AEDPA are

unconstitutional. Wrapping his argument in Marbury v. Madison,

(1803), Hughes maintains that the standards

5 violate the command of Article III of the Constitution in that they

delegate the “final exercise” of the “judicial power of the United

States” to decide federal constitutional issues to state court. He

argues that this review process “guts the Supremacy Clause” by

giving conclusive effect to state court decisions on constitutional

questions in an Article III case or controversy. The argument

continues that these constitutional questions should be reviewed de

novo by federal courts.3

We recently rejected the same arguments in a § 2254 appeal filed on behalf of a death row inmate by the same attorney who has

filed Hughes’s appeal. See Corwin v. Johnson,

(5th Cir. 1998). The appeal “must be reviewed in accordance with

this Circuit’s interpretations of the AEDPA, as established in

Drinkard.”

B.

Hughes has not briefed here several claims made below: that

the trial court erred in instructing the jury as to the meaning of

the words “intentionally” and “knowingly”; that the jury’s finding regarding his use of a deadly weapon violated the Ex Post Facto

Clause; that the prosecution made several improper jury arguments

during the trial’s punishment phase; that the trial court

improperly denied his motion to suppress evidence seized in

3 Hughes has not argued his substantive claims within the context of the standards of review as modified by the AEDPA.

6 violation of the fourth Amendment; and that the trial court

violated his constitutional rights by sustaining the prosecution’s

challenge of a veniremember for cause. Issues not raised in the

brief filed in support of Hughes’s COA application are waived. See

Moawad v. Anderson,

, 945 n.1 (5th Cir. 1998).

C.

Hughes brings us eleven issues, and we will address each in

turn.4

4 The issues are as follows:

1. Whether the trial court should have specifically instructed the jury that the term “probability,” as used in the context of the second special issue at the penalty phase, meant “more likely than not,” and whether this claim was procedurally defaulted. 2. Whether the trial court erred in permitting Dr. John Nottingham, a rebuttal witness for the State, to testify during the penalty phase, allegedly based on a 1976 examination of Hughes conducted without the presence of counsel in violation of Estelle v. Smith,

(1981). 3. Whether the trial court erred in refusing to instruct the jury as to the consequences of its answers to the special issues.

4. Whether the evidence was sufficient to support the jury’s answers to the first and second “special issues” at the penalty phase:

(a) Whether the conduct which caused the death of the victim was committed “deliberately”; (b) Whether there was a probability that Hughes would commit criminal acts of violence that would constitute a continuing threat to society.

5. Whether the Texas Court of Criminal Appeals erred in refusing to consider mitigating evidence “independently.”

6. Whether the jury’s reliance on information that was at least 12 years old, with regard to the second special issue, violated Hughes’s Eighth Amendment rights. 7. Whether jury instructions at the penalty phase of the trial violated Hughes’s constitutional rights under Penry v. Lynaugh,

7 1.

Hughes contends that the trial court erred in refusing to

instruct the jury in the second special issue that the word

“probability” means “more likely than not” rather than “some

probability” or “any probability.”

He observes that at the penalty phase, the State called a

psychiatrist, Dr. John Nottingham, as a rebuttal witness. Dr.

Nottingham had examined Hughes following the offense in 1976 and

had concluded that he was legally sane. On cross-examination, Dr. Nottingham testified that he did not know what the Texas

legislature meant when it used the word “probability” in drafting

the second special issue regarding “future dangerousness,” Hughes’s

counsel having suggested that it meant “more likely than not.” Dr.

Nottingham declined to “put a number on it.” Responding to the

(1989):

(a) Alleged burden-shifting instruction; (b) Use of word “should” rather than “must”;

(c) Trial court’s failure to instruct jury on effect of mitigating evidence. 8. Whether jury instructions on the victim’s status as a “peace officer” improperly amounted to a directed verdict on an essential element of the offense.

9. Whether the inclusion of irrelevant instructions on causation violated Hughes’s constitutional rights.

10. Whether the statutory requirement that 10 or more jurors vote “No” to enter a negative finding on special issues violated Hughes’s Eighth and Fourteenth Amendment rights. 11. Whether the prosecution withheld exculpatory evidence in violation of Brady v. Maryland,

(1963).

8 defense counsel, he then added that when he used the term, it means

“any probability.”

Hughes concedes that a Texas trial court ordinarily is not

required to define the word “probability” in the context of the

second special issue, but he argues that Dr. Nottingham’s

“misinterpretation” of the word possibly gave the jury an erroneous

view of the law that the trial court was required to correct in its

instructions. Hughes also concedes that the Texas Court of

Criminal Appeals deemed this claim barred by Hughes’s failure to advance a procedurally correct objection to the charge. He

maintains that, under TEX. CODE CRIM. P. art. 36.15, no

particularized objection is required as long as the defendant

offers “special requested instructions” to call the trial court’s

attention to the alleged error. He asserts that he requested

exactly such an instruction.

In rejecting a similar claim by Hughes on direct appeal, the

Court of Criminal Appeals determined that Hughes had failed to

preserve error on this issue because he “made no objection to the

court’s refusal to define ‘probability’ based on Nottingham’s allegedly erroneous definition,” but he instead objected only that

the “term was unconstitutionally vague and that without guidance

the jury was left to speculate as to the meaning of the term.” See

Hughes,

.

The district court concluded, and the state now argues, that

this claim was procedurally defaulted, based on the Texas appellate

9 court’s conclusion that Hughes failed to preserve this claim for

review. Hughes,

.

The procedural default doctrine, resting on our confinement to

review of federal questions, precludes federal habeas review when

the last reasoned state court opinion addressing a claim explicitly

rejects it on a state procedural ground. See Ylst v. Nunnemaker,

(1991). When the state court has relied on

an independent and adequate state procedural rule, federal habeas

review is barred unless the petitioner demonstrates either cause and prejudice or that a failure to address the claim will result in

a fundamental miscarriage of justice. See Coleman v. Thompson,

(1991). The doctrine presumes that a state

procedural ground is adequate and independent – the rule must, for

instance, be regularly followed – and, ordinarily, the burden is on

the habeas petitioner to demonstrate otherwise. See Sones v.

Hargett,

(5th Cir. 1995) (citations omitted).5

In determining that Hughes had failed to preserve this claim

for appeal, the Texas Court of Criminal Appeals relied on a version

of Texas’s contemporaneous objection rule. See Hughes,

(“[A]ppellant’s claim on appeal does not comport with his

5 Although federal courts will “presume the adequacy and independence of a state procedural rule when the state court expressly relies on it in deciding not to review a claim for collateral relief, . . . [t]he presumption of adequacy can be rebutted . . . if the state’s procedural rule is not strictly or regularly followed.” Sones,

(internal quotation marks and citations omitted). “The Supreme Court has further defined this concept of adequacy . . . to include a state procedural ground that is strictly or regularly applied evenhandedly to the vast majority of similar claims.” Amos v. Scott,

(5th Cir. 1995).

10 objections at trial . . . .”); see also Muniz v. Johnson,

(5th Cir.) (citing TEX. R. APP. P. 52(a) as source of

contemporaneous objection rule), cert. denied,

(1998); Sheridan v. State,

(Tex. App. 1997)

(citing Rule 52(a) for requirement that complaint on appeal must

“comport” with complaint made at trial). We have held that Texas

applies its contemporaneous objection rule “strictly and regularly”

and that it is an “independent and adequate state-law procedural

ground sufficient to bar federal habeas review of federal claims.” Amos v. Scott,

(5th Cir. 1995).

Hughes contends that TEX. CODE CRIM. PROC. art. 36.15 required

only that he present “special requested instructions” to the trial

court and that “no other exception or objection to the court’s

charge shall be necessary to preserve any error reflected by any

special requested instruction which the trial court refuses.” But

this argument takes the statute too far. This language means only

that to preserve an error for an appeal regarding jury

instructions, a party who has already requested a certain

instruction is not then required to object to the charge actually given by the trial court, after the court has decided to reject the

requested instruction. See Vasquez v. State,

, 435

& n.4 (Tex. Crim. App. 1996).

Under TEX. R. APP. P. 52(a), a party still must inform the

trial court of any “specific defect” in the charge in order to

preserve error. See Davis v. State,

(Tex.

). Under art. 36.15, “[a] defendant preserves error for

appellate review if the request is specific enough to put the trial

court on notice of an omission or error in the charge.” Brazelton

v. State,

(Tex. App. 1997). It is undisputed

that Hughes did not make the argument to the state trial court that

Dr. Nottingham’s suggestion that “probability” meant “any

probability” that Hughes would commit criminal acts of violence

created a misimpression that the trial court was required to

correct through jury instructions. In any event, if both we and the courts preceding before us

are in error, Hughes’s claim lacks merit. As conceded by Hughes,

the Texas courts repeatedly have rejected claims that in the

penalty phase of a capital murder case the trial court is required

to define terms, such as “probability,” which are included in the

statutory special issues. See Corwin v. State,

(Tex. Crim. App. 1993) (en banc). Those courts have held that the

failure to define such terms within TEX. CODE CRIM. P. art. 37.071,

§ (b)(2) does not render them unconstitutionally vague under the

Eighth and Fourteenth Amendment. See id. We similarly have rejected contentions that “probability” and other terms included in

the statutory special issues are unconstitutionally vague. See

Woods v. Johnson,

(5th Cir. 1996) (and cases

cited therein).

Of course, since trial, Hughes has been arguing more than that

the trial court’s definition of “probability” was

12 unconstitutionally vague; he has maintained that the trial court

was required to correct any misperception regarding the meaning of

that term that was created by Dr. Nottingham’s testimony. “The

proper standard for reviewing a challenged jury instruction in the

capital sentencing context is ‘whether there is a reasonable

likelihood that the jury has applied the challenged instruction in

a way that prevents the consideration of constitutionally relevant

evidence.’” Drinkard, 97 F.3d at 757 (quoting Boyde v. California,

(1990)). “This ‘reasonable likelihood’ standard does not require the petitioner to prove that the jury ‘more likely

than not’ interpreted the challenged instruction in an

impermissible way; however, the petitioner must demonstrate more

than ‘only a possibility’ of an impermissible interpretation.”

(citing Boyde,

).

Hughes’s contention is that the single reference by Dr.

Nottingham to the phrase “any probability” required the trial court

to ensure that the jury understood that such term meant “more

likely than not.” He argues this point, notwithstanding Texas

cases holding that its trial courts are not required to define the term “probability.” As we put it,

[t]o the extent that the words strike distinct chords in individual jurors, or play to differing philosophies and attitudes, nothing more is at work than the jury system . . . . The answer is that such words, often of great consequence, do have a common understanding in the sense that they ultimately mean what the jury says by their verdict they mean.

James v. Collins,

(5th Cir. 1993) (quoting

13 Milton v. Procunier,

(5th Cir. 1984)). Given

these statements, Hughes cannot say that his proposed definition of

“probability” is any more appropriate than the allegedly erroneous

interpretation of the term stated by Dr. Nottingham. Hughes has

not made a substantial showing of the denial of a constitutional

right as to this claim.

2.

Hughes contends that the trial court erroneously permitted Dr. Nottingham to testify as a rebuttal witness at the penalty phase.

Dr. Nottingham, he urges, used his notes from his examination of

Hughes in 1976. Hughes maintains that the examination in 1976

violated Estelle v. Smith,

(1981), and that Dr.

Nottingham’s use of that interview was tainted.

On direct appeal, the Texas Court of Criminal Appeals rejected

this claim on its merits. See Hughes,

. It

explained that the State had conceded that Hughes’s 1976 interview

was conducted in violation of Smith. See

. Dr.

Nottingham had examined Hughes again in 1988 in the presence of Hughes’s attorneys; in doing so, he had refreshed his memory with

notes taken during the 1976 examination. See

Hughes’s attorney asked Dr. Nottingham in a voir dire

examination whether he could have recalled inconsistencies between

Hughes’s answers in 1976 and 1988 without having referred to the

1976 report. See

. Dr. Nottingham responded that,

14 but for his 1976 notes, he probably would not have remembered

Hughes’s stated reason for traveling around the country at the time

of the offense. See

.

The Texas Court of Criminal Appeals rejected Hughes’s Estelle

v. Smith contention because “[r]eview of Nottingham’s testimony

shows that his conclusions were based upon the 1988 interview

alone.”

That court found that “[t]here is no indication in

the record that [Nottingham’s] testimony was influenced by or

derived from his earlier examination of [Hughes].”

. Hughes does not now specifically dispute the Texas appellate

court’s factual findings and legal conclusion. In determining that

Nottingham’s testimony was neither “influenced by or derived from”

the earlier interview, the court cited Ex parte Woods,

(Tex. Crim. App. 1988), which in turn relied on White v.

Estelle,

(5th Cir. 1983). More recently, this court

addressed a habeas appeal by the same state prisoner who had filed

the state postconviction application in Ex parte Woods. See Woods

v. Johnson,

(5th Cir. 1996). This court rejected the

prisoner’s Estelle v. Smith claim primarily on the ground that any error was harmless because the psychiatrist’s testimony was based

on a hypothetical question rather than on the tainted examination

of the prisoner, see

, but it also “agree[d] with the

assessment of the state habeas court that ‘[a] jury could not

reasonably construe [the psychiatrist’s] testimony . . . as being

influenced by or derived from the court-ordered pretrial

15 psychiatric examination of applicant.’”

at 1028 (citing Woods,

) (emphasis added). This court concluded in part

that the psychiatrist’s opinion testimony as to future

dangerousness “derived from and related to the acts of violence

detailed in the prosecutor’s [hypothetical] question . . . , not

from [the psychiatrist’s] examination of [the prisoner].” Id. at

1029.

A review of Dr. Nottingham’s testimony at the penalty phase

shows that the prosecutor’s questions were tailored to elicit responses about Nottingham’s 1988 examination of Hughes. Hughes

has not suggested how Nottingham’s testimony might have been

“influenced by and derived from” his 1976 examination of Hughes.

We are persuaded that the Texas appellate court’s conclusion

that Nottingham’s review of the notes did not influence his

testimony was not an “unreasonable application of[] clearly

established Federal law[] as determined by the Supreme Court.” See

(d)(1). We also reject Hughes suggestion that the

“taint” of the earlier examination was incurable; that it created

an absolute bar to any expression of opinion by Nottingham.

3.

Hughes contends that the trial court erred in refusing to

instruct the jury that, if Hughes were given a life sentence, he

would be required to serve at least 20 years in prison without the

possibility of parole. Citing Simmons v. South Carolina,

154 (1994), Hughes contends that the Texas statutory prohibition of

disclosure to the jury of the consequences of its verdict precluded

the jury from rationally determining the consequences of its

deliberations. He suggests that the Texas statutory scheme, which

shielded information regarding the 20-year mandatory minimum prison

term, posed a significant risk that jurors might mistakenly assume

that he could potentially have been “paroled immediately” in the

absence of a death sentence. Hughes raises a similar issue with

respect to the trial court’s refusal to instruct the jury with respect to the consequences of its finding on the “so-called

‘affirmative finding on use of a deadly weapon’ issue,” under TEX.

CODE CRIM. P. art. 42.12, § 3(g), and art. 42.18, § 8(b). Citing

Caldwell v. Mississippi,

(1985), he suggests

that these instructions are unconstitutional because they “do not

explicitly require the jury to assume legal and moral

responsibility for imposing the death penalty.”

At the time of Hughes’s trial, TEX. CODE CRIM. P. art. 37.071(g)

stated: “The court, the attorney for the state, or the attorney for

the defendant may not inform a juror or a prospective juror of the effect of failure of the jury to agree on an issue submitted under

this Article.” (This provision has since been recodified at art.

37.071, § 2(a) (Supp. 1998).)

In rejecting Hughes’s Simmons-type claim on direct appeal, the

Court of Criminal Appeals stated, “[t]his Court has repeatedly held

that declining to inform the jury of the effect of their answers to

17 the submitted issues does not render article 37.071

unconstitutional.” Hughes,

. This holding was

based on pre-Simmons case law. See

In Simmons, the Supreme Court held that a trial court in a

South Carolina capital murder case was required to instruct a

sentencing jury about the parole implications of a life sentence

where future dangerousness is at issue and where the alternative

life sentence is without parole eligibility. See Simmons, 512 U.S.

at 161-62. We have repeatedly rejected identical claims based on Simmons.

In Allridge v. Scott,

(5th Cir. 1994), we

distinguished Simmons on the ground that South Carolina law in

Simmons made the petitioner legally ineligible for parole, whereas

Texas capital defendants who are sentenced to life become eligible

for parole after a term of years. See also Muniz,

;

Johnson v. Scott,

(5th Cir. 1995); Montoya v.

Scott,

(5th Cir. 1995). But see Brown v.

Texas,

, 355-57 (1997) (Stevens, J.) (opinion

regarding denial of certiorari, indicating that Texas’s statutory prohibition of instructing juries about parole eligibility is in

“obvious tension” with Simmons). Hughes has not made a substantial

showing of the denial of a constitutional right as to his Simmons

claim.

Hughes’s variation upon this theme rests on Caldwell v.

Mississippi,

(1985), under which “it is

18 constitutionally impermissible to rest a death sentence on a

determination made by a sentencer who has been led to believe that

the responsibility for determining the appropriateness of the

defendant’s death rests elsewhere.”

. We have

observed:

In Dugger v. Adams,

, . . . (1989), the Supreme Court clarified its holding in Caldwell and held that to “establish a Caldwell violation, a defendant necessarily must show that the remarks to the jury improperly described the role assigned to the jury by local law.”

at 407 . . . ; accord Sawyer v. Butler,

(5th Cir. 1989) (en banc), aff’d,

. . . (1990). In evaluating a Caldwell claim, we look to the “total trial scene,” including jury selection, the guilt phase of the trial, and the sentencing hearing, examining both the court’s instructions and counsel’s arguments to the jury. Id. at 1286-87.

Montoya,

. Hughes concedes that “throughout the voir

dire examination, each prospective juror was told of the

consequences of affirmative answers to each of the penalty

questions,” but he suggests that one or more jurors “may well have

forgotten” these “preliminary remarks.” He argues that the trial

court was thus constitutionally required to include a specific

instruction regarding the consequences of the jury’s answers to the special issues.

In Montoya, a voir dire instruction like the one referred to

by Hughes was held to be sufficient to inform the jury of its role

under Texas law. See Montoya,

. Moreover, in its

closing statement, the prosecution stated

I suggest to you the severity of the punishment should

19 fit the severity of the crime.

Under the law you have only two choices: Life imprisonment or death by lethal injection.

You will determine which of those punishments the defendant should be sentenced to by your answers to three special issues, which probably all of you know by heart now because we went over them individually when you were selected as a juror.

If the jurors had forgotten the instructions on the

consequences of their answers to the special issues, these

statements reminded them of their role. In his closing statement,

Hughes emphasized the jury’s responsibility by asking the jury in his opening “not to kill Bill George Hughes.” The “total trial

scene” makes plain that the jury well knew its role. The Caldwell

claim is meritless.

4.

Hughes contends that the evidence was constitutionally

insufficient under the standard of Jackson v. Virginia,

(1979), to support “Yes” findings to the first two special

issues: (a) that the conduct causing the death of Trooper Frederick was committed deliberately, and (b) that Hughes probably would

commit criminal acts of violence that would constitute a continuing

threat to society. See TEX. CODE CRIM. P. art. 37.071(b)(1) and (2).

The State contends that claims of insufficient evidence to

support the special issues in Texas lack constitutional support.

The State argues that, even if the evidence at the penalty stage is

20 to be reviewed by the Jackson standard, a rational trier of fact

could have answered “Yes” to both special issues; the State also

points out that, on direct appeal, the Court of Criminal Appeals

rejected evidentiary challenges on both special issues.

The Court of Criminal Appeals did address and reject Hughes’s

sufficiency-of-the-evidence challenges on the merits, using the

Supreme Court’s Jackson standard. See Hughes,

-

93. The federal district court agreed with the respondent’s

contention that, “under the circumstances and so long as the sentence is not arbitrary or capricious, no review is required of

the jury’s answers to the special issues under the teachings of

Teague[ v. Lane].” Hughes,

. The court noted

that under Teague, “federal habeas may not be granted on rules of

constitutional law yet to be announced.” See id. at n.4. The

court did not address whether this court’s precedent permitted

review of the evidentiary sufficiency of special issues. See id.

The court, however, proceeded to address the merits of the claims

“in an abundance of caution.” Id.

We have on several occasions addressed the merits of challenges to the sufficiency of evidence supporting a jury’s

answers to special issues at the penalty phase of a death penalty

trial. See, e.g., Callins v. Collins,

(5th Cir.

1993); Johnson v. Collins,

(5th Cir. 1992);

Fierro v. Lynuaugh,

(5th Cir. 1989); Evans v.

McCotter,

(5th Cir. 1985). Assuming but not

21 deciding that we must do so, we will address this claim.

Our standard of review for an insufficient evidence claim in

a federal habeas corpus proceeding is “whether, after reviewing 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.” Jackson,

. In

applying this standard, a federal habeas court refers to the

state’s criminal law for the substantive elements of the offense.

(a) First Special Issue

As for the first special issue, Hughes emphasizes that the

term “deliberately” is not functionally equivalent to the terms

“intentionally” and “knowingly,” which are among the elements of

murder under TEX. PENAL CODE §§ 6.03 and 19.02. He asserts that only

Trooper Reichert’s testimony could conceivably support a finding

that he acted “deliberately,” but he contends that Reichert’s

testimony was in fact “utterly inadequate to provide a sufficiently

rational evidentiary foundation” for such a finding. Hughes

identifies a number of evidentiary inferences that were allegedly assumed by Reichert’s testimony and then attempts to show that

other trial evidence rendered those inferences either impossible or

extremely unlikely.

As we have explained, under the first special issue,

“deliberately” is not a term of art and is not defined in the jury

instructions. See Johnson,

. Instead, the term

22 “‘is to be taken and understood in its normal use and common

language.’”

(quoting Carter v. State,

(Tex.

Crim. App. 1986)). The prosecution need not show that the

defendant “‘carefully weighed or considered or carefully studied

the situation immediately prior to killing the deceased in order

for the jury to’ decide the defendant acted ‘deliberately.’”

(quoting Carter,

). In Webster’s Dictionary,

“‘deliberately’ is defined as ‘with careful consideration or

deliberation; circumspectly; not hastily or rashly; slowly; as a resolution deliberately formed.’”

For there to be an act of

deliberateness, “‘there must be the moment of deliberation and

determination on the part of the actor to kill. Such determination

must necessarily be found from the totality of circumstances in the

individual case.’”

(citing Cannon v. State,

(Tex. Crim. App. 1985)).

The Court of Criminal Appeals concluded that a rational trier

of fact could have believed the State’s theory of the case and

disbelieved Hughes’s version of the events. See Hughes,

. It found that Hughes, who had been traveling around the country for months, had “numerous reasons to fear being pulled over

by DPS troopers,” including violating the terms of his probation

for the extortion offense by leaving Alabama, driving a stolen

rental car, and living off of forged checks and stolen credit

cards. Just before the shooting, Hughes had fled a nearby motel

after being questioned about a stolen credit card. Finally, the

23 trunk of the car he was driving was full of guns and ammunition.

According to Trooper Reichert, Hughes sat in the car staring

straight ahead as Trooper Frederick approached. Reichert testified

that just after Frederick turned to face Hughes and just before

Frederick fell to the ground, he heard a single muffled gunshot.

He was positive that Frederick had not fired his gun at any time.

The State’s firearms expert testified that an “unusually hard pull”

was required to fire the gun Hughes used, which would have taken a

deliberate act. Hughes’s testimony was that he fired only after being fired

upon first by the troopers, after he reached for his wallet in the

glove compartment so that he could retrieve his driver’s license.

Hughes now calls Trooper Reichert’s account “ridiculous, absurd,

and inherently incredible.” He contends that other evidence

suggests that either Reichert or Trooper Frederick “drew his gun

and fired one o[r] more shots before Hughes fired.” This

contention is based primarily on evidence that, after the shooting,

Frederick’s gun was found in Frederick’s hand, and that it was only

half-loaded and apparently inoperable. According to Hughes, the record establishes Frederick’s “exceptional competence as a law

enforcement officer,” making it nearly impossible that he would

have carried around a half-loaded, inoperable gun for a week before

he was shot.

As Hughes concedes, Dr. Joseph Jachimczyk testified that

Frederick could have drawn his gun after being shot but before

24 dying. A firearms expert testified that the gun was inoperable,

although it could have been made so by striking the ground after

Frederick was shot. Reichert testified that Frederick did not fire

his pistol and that he did not know whether Frederick drew his gun

before or after Hughes fired.

Hughes’s contention rests largely on the notion that it was

nearly impossible for Frederick to be found at the scene and not

have fired his gun. This scenario, ably argued, depends almost

entirely on the argument that Frederick never would have conducted a highway stop with a half-loaded, inoperable pistol. But this

determination was for the jury. Trooper Frederick died of a single

bullet that passed through his left arm through his chest cavity

where it struck his heart and aorta. He lived ten to fifteen

minutes but was quickly down. There was medical testimony that

Frederick could have crawled or staggered back the ten feet or so

behind Hughes’s car where he was found. The jury could have

concluded that Trooper Riechert’s testimony was credible - that

Trooper Frederick was shot standing at the front of Hughes’s car

door, driver’s side, while his left shoulder was turned to the window. The Court of Criminal Appeals did not unreasonably apply

the Jackson v. Virginia standard in finding the evidence sufficient

to show that Hughes “deliberately” killed Trooper Frederick.

(b) Second Special Issue

Regarding “future dangerousness,” Hughes argues that the

25 State’s evidence was “wholly insufficient to establish the

probability of his future dangerousness with the degree of

certainty necessary to render the jury’s verdict a rational one.”

He argues that the nature and circumstances of the offense charged

did not in themselves establish such “unnecessary infliction of

pain and suffering, callousness, or depravity” as to warrant the

finding. Hughes maintains that his previous criminal history shows

that, except for the three-year period preceding the murder, he has

committed “no criminal or other anti-social act whatever,” and, even during that three-year period, he engaged only in threats of

violence. He also asserts that although the State went to great

lengths to portray him as a thief, liar, and manipulative “con

artist,” no demonstrable relationship exists between these traits

and the potential for being a violent or dangerous person in the

future. Hughes argues that Dr. Nottingham, the State’s own

witness, could not state with any degree of certainty that Hughes

would likely commit criminal acts of violence in the future. He

claims that the totality of “credible” evidence “overwhelmingly

militates against the imposition of the death penalty.” The Court of Criminal Appeals rejected Hughes’s challenge.

See Hughes,

. The court acknowledged that none

of Hughes’s prior convictions involved physical violence. See

. The court also noted that the instant offense involved

neither “the type of calculated prior planning” nor “facts that

were so shockingly brutal or heinous” as to alone support an

26 affirmative finding on this issue.

. However, the court

observed that Hughes’s extortion conviction involved threats of

violence, that the testimony of Hughes’s ex-wife showed that Hughes

was “capable of more than threats of violence,” and that Hughes’s

collection of weapons during his string of crimes in the months

before the shooting “indicates that [Hughes’s] violent tendencies

were escalating.”

.

Hughes faces a formidable task in establishing that the state

appellate court’s ruling as to this claim was an unreasonable application of clearly established federal law. The Texas Court of

Criminal Appeals listed considerable evidence: Hughes’s carrying

of guns in the trunk of his stolen rental car; his aiming a pistol

at the helicopter before his arrest; and his written plans to rob

a bank. See

. The Court of Criminal Appeals pointed

to evidence that Hughes’s prior extortion conviction and additional

actions involved threats of violence, that Hughes’s string of

crimes in the months preceding the homicide involved a personal

accumulation of firearms and ammunition, and that Hughes had in

fact engaged in violent acts against his then-wife. See

. It did not unreasonably apply the Jackson standard in

concluding that a rational trier of fact could have reached the

same conclusion beyond a reasonable doubt.

5.

Relatedly, Hughes contends that the “totality of the evidence

27 in this monumental record overwhelmingly militates against the

imposition of the death penalty,” even if the State’s evidence by

itself were “minimally” sufficient to support the jury’s

affirmative findings with regard to the special issues. Citing

Solem v. Helm,

(1983), he maintains that art. 37.071,

as applied to him, violates the Eighth Amendment because the death

sentence is grossly disproportionate in light of the uncontradicted

mitigating evidence.

Hughes also argues that the Court of Criminal Appeals erred in refusing to consider the mitigating evidence “independently,”

suggesting that the appellate court should have conducted a

de novo review of that evidence. He maintains that a state

appellate court’s limitation of its review in capital cases to the

constitutional sufficiency of aggravating factors to support a

death sentence, while “totally ignoring” compelling and

uncontradicted mitigating evidence, violates his due process

rights. Hughes asserts that the Court of Criminal Appeals’s

refusal to review the mitigating factors independently violated his

right to “meaningful appellate review of his death sentence” under the Constitution. He lists several allegedly mitigating factors

that the state appellate court refused to consider, focusing mainly

upon evidence that, except for the three-year period preceding the

killing of Trooper Frederick, his life has been crime-free.

On direct appeal, the Court of Criminal Appeals refused to

conduct an independent review of the aggravating and mitigating

28 evidence to determine Hughes’s “deathworthiness.” Hughes,

. The court stated that in Pulley v. Harris,

(1984), the Supreme Court held that such review is not required

under the Eighth and Fourteenth Amendments. See

(a) Eighth Amendment Claim

In Harris, the Supreme Court held that a state appellate court

was not required to perform a proportionality review by comparing

the death sentence before it to death sentences imposed in other cases. See

.

Hughes emphasizes that Harris distinguished between two types

of proportionality review. The first type asks simply whether the

death penalty is inherently proportionate “to the [statutory] crime

for which it was imposed.” Harris,

& n.6. The

second type assumes that “the death sentence is not

disproportionate to the crime in the traditional sense,” but

“purports to inquire instead whether the penalty is nonetheless

unacceptable in a particular case because disproportionate to the

punishment imposed on others convicted of the same crime.”

.

Hughes asserts that, during the last nine years, Texas

appellate courts have sustained death sentences “on only minimally

sufficient aggravating evidence” and will no longer “independently

consider a defendant’s mitigating evidence at all,” whereas the

same courts in the late 1970s and early 1980s would focus on a

29 defendant’s “deathworthiness” by weighing the aggravating factors

against mitigating factors. Hughes contends that the Court of

Criminal Appeals misconstrued Harris in concluding that the Supreme

Court did not require such an independent review on direct appeal

from a death sentence. He argues that Harris rejected only the

notion that a defendant who has been sentenced to death is entitled

to a “comparative proportionality review,” by which the

constitutional propriety of his death sentence would be measured by

comparison with other death-penalty cases. Hughes emphasizes that he did not seek such a review on direct appeal.

Inasmuch as Hughes seeks to raise an Eighth Amendment

proportionality claim now, it is his own analysis of Harris that is

incorrect. He is not in fact contending that his death sentence is

unconstitutional under the first type of proportionality review

(although he implies that this is his argument) because he does not

suggest that the death penalty is disproportionate to the statutory

offense of the intentional murder of a peace officer in Texas.

Instead, he suggests that his death sentence is disproportionate in

the circumstances of his case because mitigating circumstances should have rendered him ineligible for the death penalty.

Implicit in this suggestion is the notion that the death penalty

would be a proportionate sentence for other Texas capital

defendants. The claim is barred by Harris, as the state appellate

court is not required to conduct such a comparative proportionality

review.

30 (b) Fourth Amendment Claim

Hughes argues that due process requires that he be afforded

“independent” appellate review of whether mitigating circumstances

undermine his “deathworthiness.” Hughes implicitly acknowledges

that no Supreme Court or Fifth Circuit authority expressly requires

the “independent” review that he requested from the state appellate

court. In a creative turn, he cites Honda Motor Co., Ltd. v.

Oberg,

(1994). In Honda, the State of Oregon had constitutional standards limiting punitive damages and restricting

their post-verdict review. See Honda,

. The

Supreme Court concluded that the statute’s abrogation of the

common-law protection against excessive punitive-damages awards

violated due process. See

. Hughes contends that the

Texas appellate court’s refusal to review his death sentence

“independently” similarly violates due process.

Hughes’s reliance upon Honda is unconvincing. Of course,

“[s]tate capital sentencing procedures must . . . satisfy the

requirements of the Due Process Clause of the Fourteenth Amendment.” Williams v. Cain,

(5th Cir. 1997)

(citing Clemons v. Mississippi,

(1990)), stay

granted,

(Jun. 18, 1998). When a state provides

for the imposition of the death penalty

in the discretion of the trial jury, . . . the defendant’s interest in the exercise of that discretion is [not] merely a matter of state procedural law. The

31 defendant in such a case has a substantial and legitimate expectation that he will be deprived of his liberty only to the extent determined by the jury in the exercise of its statutory discretion, and that liberty interest is one that the Fourteenth Amendment preserves against arbitrary deprivations by the State.

Id. (quoting Hicks v. Oklahoma,

(1980)) (internal

quotation marks omitted).

Some states require independent review of a trial court’s

imposition of a death sentence, but Texas does not. See Harris,

. We repeat, Texas is a “non-weighing state” in that

its capital-sentencing scheme does not direct the appellate court or even the jury to “weigh” aggravating factors against mitigating

ones. See James v. Collins,

(5th Cir. 1993);

Williams,

. In such states, “statutory

aggravating factors serve principally to address the concerns of

the Eighth Amendment--that is, the role of the statutory

aggravators is to narrow and channel the jury’s discretion by

separating the class of murders eligible for the death penalty from

those that are not.” Williams,

. For the purpose

of initially determining whether a defendant is “death-eligible,” the jury need find only a statutory aggravating factor.

Hughes’s contention that he was entitled to an “independent”

consideration on direct appeal of mitigating circumstances is not

supported by this precedent.

6.

32 Emphasizing that almost all of the evidence relied upon by the

State to support a finding of “future dangerousness” in the second

special issue dated from at least 12 years before his 1988 trial,

Hughes contends that the “passage of time had made the

evidence . . . inherently unreliable” and that the evidence could

not provide a “constitutional foundation” to support a death

sentence. He relies on Simmons,

, for the proposition

that the Eighth Amendment requires a “heightened standard” for the

reliability of evidence offered in support of a death sentence. Hughes asserts that, at this time, he has not committed a criminal

act or engaged in any other “antisocial conduct” in more than 20

years and that he has shown, by his “exemplary public behavior,

educational attainments, [and] charitable works,” that he does not

pose a risk of future danger to society.

First, we are uncertain whether this claim was exhausted,

although the district court rejected it on the merits. See Hughes,

. Citing Jurek v. Texas,

(1976),

the district court in a careful opinion observed that the Supreme

Court had approved Texas’s death-sentencing scheme by stating that “‘all possible relevant information about the individual defendant’

should be presented to the decision maker.”

(citing Jurek,

). The district court observed that the Supreme Court

in Simmons supported the use of all available evidence, contrary to

Hughes’s apparent interpretation of that case. See

(citing

Simmons,

). The court emphasized that during the

33 penalty phase Hughes himself presented evidence that was older than

that he now asserts is “inherently unreliable.”

The State replies that no statutory or case authority places

an “age limit” on the information that may be considered by a jury

in determining whether there is a probability that the defendant

would commit criminal acts of violence that would constitute a

continuing threat to society. Hughes is thus asking this court to

approve a “new rule” of constitutional law. Regardless, the

state’s rejection of this claim was not contrary to and did not involve an “unreasonable application of[] clearly established

Federal law[] as determined by the Supreme Court of the United

States.”

(d)(1).

7.

Hughes mounts a three-pronged assault on the trial court’s

jury instructions at the penalty phase. First, he argues that the

court’s instruction on mitigation impermissibly shifted the burden

of proof to him by requiring that at least 10 jurors credit the

mitigating evidence he offered, rather than requiring the jury to find unanimously beyond a reasonable doubt that his mitigating

evidence did not militate against imposition of the death penalty.

Second, Hughes contends that the court erred in instructing the

jury that it “should,” rather than “must,” answer “No” to any of

the special issues if it believed that circumstances “mitigated

against” the death penalty, which allegedly gave the jury

34 “unlimited” discretion to “disregard” mitigating evidence. Third,

Hughes maintains that the charge failed to apprise the jury of how

to “reconcile the mitigation instruction with its obligation to

answer the penalty questions factually.” Hughes asserts that the

trial court failed to tell the jury what to do if it concluded not

only that the evidence mandated affirmative answers to the special

issues but also that his “mental, emotional, or psychological

state” before and during the shooting constituted a mitigating

circumstance warranting only a life sentence. The State contends that, to mandate these special instructions

for anything less than a severe mental impairment, like the one at

issue in Penry v. Lynaugh,

(1989), would require the

formulation of a “new rule” that would be barred by Teague

principles. In Drinkard, however, the petitioner asserted that

special instructions were required to address mitigating evidence

that he was intoxicated at the time of the offense. See Drinkard,

97 F.3d at 756. This court concluded that granting such relief

would not be a “new rule” under Teague because it would constitute

an “application of ‘a well-established constitutional principle to govern a case which is closely analogous to those which have been

previously considered in the prior case law.’” Id. at 757 n.8

(quoting Penry,

).

Hughes’s claims here address the following instructions:

2.

The burden of proof in this phase of the trial still

35 rests upon the State and never shifts to the Defendant. Each Special Issue submitted must be proved by the State beyond a reasonable doubt; therefore, before any issue may be answered “Yes,” all jurors must be convinced by the evidence beyond a reasonable doubt that the answer to such issues should be “Yes.”

. . .

You are further instructed that if any Juror, after considering the evidence and these instructions, has a reasonable doubt as to whether the answer to a Special Issue should be answered “Yes,” then such Juror should vote “No” to that Special Issue in the Jury’s deliberations.

If ten (10) Jurors or more vote “No” as to any Special Issue, then the answer of the Jury shall be “No” to that issue. . . .

You are further instructed that the Jury may not answer any issue “Yes” unless it agrees unanimously. The Jury may not answer any issue “No” unless then [sic] (10) or more Jurors agree that the answer should be “No.”

. . .

5.

You are instructed that you should answer “No” to any of the foregoing Special Issues if at least ten (10) or more jurors find and believe, based upon the evidence presented to you in this case, that the Defendant’s character or record or any of the circumstances of the offense mitigate against the imposition of the death penalty in this case. (emphasis by petitioner) On direct appeal, the Court of Criminal Appeals addressed and

rejected Hughes’s challenges to these instructions, which were

deemed “various Penry-related errors.” See Hughes,

. The court did not address the claims separately as they

were set forth by Hughes but generally concluded the court’s

instructions permitted the jury to consider evidence of Hughes’s

36 alleged mental and emotional impairment within the scope of the

special issues, as required by Penry. See

.

As emphasized by the district court in disposing of Hughes’s

challenges to these instructions, the Texas special-issues scheme

has been deemed constitutional in the contexts of a wide variety of

other constitutional challenges. See Hughes,

;

see, e.g., Jurek,

; Franklin v. Lynaugh,

(1988) (and citations therein) (noting that the “Texas

scheme has continued to pass constitutional muster”).

(a) Alleged Burden-Shifting Instruction

Hughes admits that the trial court instructed the jury at the

punishment phase that “[t]he burden of proof in this phase of the

trial still rests with the State and never shifts to the

Defendant.” He nonetheless argues that another sentence in the

instructions shifted the burden back to him: “The Jury may not

answer any issue ‘No’ unless [ten] (10) or more Jurors agree that

the answer should be ‘No.’”

At the time of Hughes’s 1988 trial, the trial court was statutorily required to instruct the jury that it “may not answer

any [special] issue ‘no’ unless 10 or more jurors agree.” See TEX.

CODE CRIM. P. art. 37.071(d)(2) (1981);6 see, e.g., Cordova v.

Johnson,

, 492 n.93 (W.D. Tex. 1998).

6 Under 1991 amendments, virtually the same language is retained. See art. 37.071(d)(2) (West Supp. 1998).

37 We have rejected similar claims. See, e.g., Jacobs v. Scott,

(5th Cir. 1994). In Mills v. Maryland,

(1988), the Supreme Court reversed a death sentence under

Maryland’s capital sentencing scheme whereby an instruction

required all 12 jurors to agree on the existence of a particular

circumstance before they could consider mitigating evidence. See

The Court held that this system impermissibly permitted a

single juror to block consideration of mitigating evidence and

required the jury to assess a death penalty. See

We have distinguished Mills on the ground that the Texas system permits all

jurors to consider any mitigating evidence and does not allow a

single juror to preclude the entire jury from considering such

evidence. See Jacobs,

. This court’s holding in

Jacobs appears to render Hughes’s claim meritless.

In any event, we are not persuaded that the challenged

instruction “shifts the burden” of proof to the defendant in a

capital trial, in that he was required to “persuade” 10 jurors that

mitigating evidence required a life sentence. The instructions

emphasize that the “burden of proof never shifts to the Defendant” and that unanimous agreement is required to return “Yes” answers to

the special issues. Moreover, art. 37.071(e) required the court to

sentence the defendant to life imprisonment if the jury was unable

to answer any special issue. This provision ensured that anything

short of unanimous agreement on the special issues would spare the

defendant’s life. The claim is meritless.

38 (b) Use of “Should” Rather Than “Must”

Hughes maintains that the instruction that the jury “should”

answer “No” to any special issue as to which 10 or more jurors

agree gave jurors “virtually unlimited” discretion to reject

mitigating evidence.

This argument invokes the “technical parsing” of language

against which the Supreme Court has cautioned in the context of

reviewing jury instructions. See Johnson, 509 U.S. at 368. If the instruction is analyzed with the “commonsense understanding of the

instructions in the light of all that has taken place at the

trial,” see id., then it is unreasonable to believe that a jury

confronted with a life-or-death decision would interpret the trial

court’s direction as providing a license to ignore evidence and

answer “Yes.” The Court of Criminal Appeals’s rejection of this

claim was not an “unreasonable application of[] clearly established

Federal law.” See

(d)(1).

(c) Failure to Instruct Jury on Effect of Mitigating Evidence Hughes’s third contention here is more akin to a standard

Penry claim. He asserts that the jury was never told “what to do”

if it determined that the evidence mandated affirmative answers to

the three special issues, but also concluded that mitigating

evidence compelled a “life-sparing decision.” Citing Penry,

, Hughes suggests that the charge failed to provide the

39 jury a “vehicle for expressing the view that [Hughes] did not

deserve to be sentenced to death based upon his mitigating

evidence” of “mental and emotional problems from 1973 onward.”

The trial court instructed the jury to answer “No” to any of

the special issues if at least 10 or more jurors determined that,

“based upon the evidence . . . the Defendant’s character or record

or any of the circumstances of the offense mitigate against the

imposition of the death penalty in this case.”

If Hughes was suffering from a mental or emotional problem when he shot Trooper Frederick, the jury could have given effect to

that mitigating evidence in the first special issue addressing

whether the shooting was “deliberate.” See Lucas,

(noting that the jury could have considered mitigating aspect of

defendant’s psychosis and schizophrenia under first special issue).

Hughes did not suggest that he was still suffering from such a

problem at the time of the shooting. Rather, he urged that he had

been rehabilitated during his twelve years in prison. We thus

reject his claim.

8.

Relying on United States v. Gaudin,

(1995),

Hughes argues that the trial court violated his constitutional

right to have the jury render a verdict on each and every element

of the offense, when the court effectively instructed the jury that

Mark Frederick was a “peace officer acting in the lawful discharge

40 of an official duty.” He maintains that, under TEX. PENAL CODE §

19.03(a)(1), the victim’s status as a peace officer acting in the

discharge of duty was an essential element of the capital offense

with which he was charged. Hughes concedes that the trial evidence

was “amply sufficient” to prove that the Trooper Frederick was

indeed a peace officer acting in the lawful discharge of an

official duty.

In Gaudin, a direct appeal from a federal conviction, the

Supreme Court held that “the Constitution gives a criminal defendant the right to demand that a jury find him guilty of all

the elements of the crime with which he is charged.” United States

v. Hebert,

(5th Cir. 1997) (quoting Gaudin,

), cert. denied,

(1998).

Before Gaudin, it was established that a State was required to

prove each and every element of an offense charged and to persuade

the factfinder beyond a reasonable doubt of the facts necessary to

establish each of those elements. See Sullivan v. Louisiana,

(1993); see also In re Winship,

(1970). A judge may not direct a verdict of guilty in a criminal case no matter how conclusive the evidence. See Connecticut v.

Johnson,

(1983).

The Texas Court of Criminal Appeals did not specifically

address this claim, instead focusing on another aspect of Hughes’s

“peace officer” claim: that Frederick was not in fact acting in

his duty as a “peace officer” because the stop of Hughes’s car was

41 unlawful. See Hughes,

. The district court

did address and reject Hughes’s Gaudin claim, concluding that a

“fair reading” of the trial court’s instructions showed that the

“ultimate decision” on whether Frederick was acting as a peace

officer lay with the jury. Hughes,

.

Hughes challenges the following portion of the jury charge:

[B]earing in mind the foregoing instructions, if you believe from the evidence beyond a reasonable doubt that on or about the 4th day of April, 1976, in Austin County, Texas, the defendant, Billy George Hughes, Jr., did intentionally or knowingly cause the death of Mark A. Frederick, a peace officer acting in the lawful discharge of an official duty, by shooting him with a gun, and the said Billy George Hughes, Jr., then and there knew that the said Mark A. Frederick was a peace officer, then you will find the defendant, Billy George Hughes, Jr., guilty of capital murder as charged in the indictment and so say by your verdict. . . .

(emphasis as added by Hughes)

One of the “foregoing instructions” stated:

Before you can find the defendant guilty of capital murder, you must find from the evidence beyond a reasonable doubt that the defendant intentionally or knowingly caused the death of Mark A. Frederick by shooting him with a firearm, namely, a gun, and at the time of the shooting, if any, the deceased, Mark A. Frederick, was then and there a peace officer acting in the lawful discharge of an official duty, and the defendant then and there knew, at the time of the shooting, if any, that Mark A. Frederick was a peace officer.

If you should have a reasonable doubt as to the existence of any of the foregoing elements, then you cannot find the defendant guilty of capital murder.

(emphasis added)

Thus, the trial court explicitly instructed the jury that, in

42 order to convict Hughes of capital murder, it was required to find

that the victim was a “peace officer acting in the lawful discharge

of an official duty.”

When reviewing a challenged jury instruction under § 2254,

the Supreme Court has directed that “‘[t]he only question . . . is

whether the ailing instruction by itself so infected the entire

trial that the resulting conviction violates due process.’” Weeks

v. Scott,

(5th Cir. 1995) (quoting Estelle v.

McGuire,

(1991)) (internal quotation omitted). “It is well-established that the instruction may not be judged in

artificial isolation, but must be considered in the context of the

instructions as a whole and the trial record.” McGuire,

(internal quotation marks omitted). The court is to address

whether there is a “reasonable likelihood” that the jury applied

the challenged instruction in a “way that violates the

Constitution.”

(internal quotation marks omitted). Viewed

against this precedential backdrop, and considering the trial

court’s explicit instruction regarding the element in question, we

conclude that Hughes’s complaint regarding the instruction is without merit.

9.

Hughes argues that the trial court’s instruction on causation

was unconstitutional in that it included an irrelevant and

“egregiously prejudicial” incorrect causation instruction when the

43 evidence in his case presented no issue as to whether some cause

other than his conduct might have caused the death. Hughes also

complains that another section of the instruction permitted the

jury to infer that he was guilty of capital murder if he had

actually intended only to commit “a different offense” from the one

with which he was charged. He cites Beck v. Alabama,

(1980), in support of this claim.

Contrary to what Hughes says, these instructions imply a

defendant may be found guilty of capital murder only if he intentionally or knowingly causes the death of another in specified

circumstances.

The jury charge contained the following paragraphs:

A person is criminally responsible if the result would not have occurred but for his conduct, operating either alone or concurrently with another cause, unless the concurrent cause was clearly sufficient to produce the result and the conduct of the actor clearly insufficient.

A person is nevertheless criminally responsible for causing a result if the only difference between what actually occurred and what he desired, contemplated, or risked is that:

(1) a different offense was committed, or (2) a different person or property was injured, harmed, or otherwise affected.

(language challenged by Hughes emphasized)

Acknowledging that Hughes had raised his causation-instruction

claim under a constitutional rubric, the Court of Criminal Appeals

rejected the claim on state-law grounds. See Hughes,

. That court determined that the “concurrent causation” charge

44 was erroneous because no real issue of concurrent causation was

presented by the evidence.

The court reasoned, however, that

the error did not require reversal for essentially the same reason:

The jury was not authorized to convict on the “theory of causation”

because the “abstract paragraph on causation did not apply that

theory to the facts of the instant case.”

The “concurrent causation” instructions challenged by Hughes

were meaningless surplusage. That an instruction is erroneous

under state law is not a basis for federal habeas relief. See McGuire,

. The controlling question is

“whether the ailing instruction by itself so infected the entire

trial that the resulting conviction violates due process.”

(citation and internal quotation marks omitted). As the Court

of Criminal Appeals reasoned, it is highly unlikely that the jury

in Hughes’s case misapplied the erroneously included instruction,

because no factual question of concurrent causation was presented

by the trial evidence. See Hughes,

.

Accordingly, no due process violation could have resulted from the

instruction’s inclusion in the overall charge.

10.

In an argument that closely tracks themes of his other claims,

Hughes maintains that the trial court erred in rejecting his

requested verdict form that would have allowed the jury to

“implement a life-sparing decision” on the basis of reliance by

45 “any single juror” on “any single mitigating circumstance.” He

relies primarily on McKoy v. North Carolina,

(1990),

and Mills v. Maryland,

(1988), for the proposition

that any death-sentence system that prevents a single juror from

effecting such a decision violates the Eighth and Fourteenth

Amendments. Hughes refers to a hypothetical scenario in which nine

jurors had concluded that his life should be spared because of

mitigating circumstances but would still be unable to effect that

decision because the Texas death-sentencing scheme requires at least 10 jurors to agree that the answer to a special issue should

be “No.”

The Court of Criminal Appeals rejected these same contentions

after a thorough discussion of McKoy. See Hughes,

. The court stressed that the death-sentencing scheme at

issue in McKoy violated the Constitution because it “prevented the

jury from considering any mitigating factor it did not unanimously

find.”

(emphasis added). In contrast, the Texas scheme “does

not require jurors to agree on the same mitigating evidence.”

The “Texas scheme allows a single juror to give effect to mitigating evidence by voting ‘no’ on any special issue. The fact

that they do not know the effect of their answers does not subject

[Hughes] to cruel and unusual punishment.”

We have read McKoy in a similar fashion. In Jacobs, we

observed that “[t]he law in Texas is completely different from that

in Mills.” Jacobs,

. The system at issue in Mills

46 did not permit the jury to leave the mitigating-circumstances issue

blank and proceed to the next issue; only a unanimous decision on

the issue of mitigating circumstances could spare a defendant from

death row. See Mills,

. Unlike the systems

discussed in Mills and McKoy, a single juror in Texas cannot

preclude the remainder of the jury from considering mitigating

evidence. See Jacobs,

. As suggested by the Texas

appellate court, a juror in a Texas death-penalty case can give

effect to mitigating evidence by voting “No” to special-issue questions. The court’s disposition of Hughes’s McKoy-Mills claim

did not involve an unreasonable application of clearly established

federal law.

11.

Hughes speculates that the prosecution withheld exculpatory

evidence in violation of Brady v. Maryland,

(1963) and

Kyles v. Whitley,

(1995): “If . . . the [Department

of Public Safety] conducted an internal investigation of the

circumstances surrounding Officer Frederick’s shooting that uncovered facts inconsistent with, or directly contrary to, the

version of events set forth in Officer Reichert’s statement, those

undisclosed facts amount to a Brady-Kyles violation” (emphasis

added). He asserts that the district court erred by denying his

request for an evidentiary hearing on this matter.

A defendant’s right to due process is violated when, upon a

47 request for exculpatory evidence, the government conceals evidence

that is both favorable to the defendant and material to the

defendant’s guilt or punishment. See Brady,

.

Exculpatory evidence as well as impeachment evidence falls under

the Brady rule. See Giglio v. United States,

(1972). Evidence is material when a reasonable probability exists

that its disclosure would have caused a different outcome at trial.

United States v. Bagley,

(1985). If the

nondisclosure could put the case in a completely different light so as to undermine confidence in the outcome of the proceeding, the

defendant will have demonstrated the reasonable probability

necessary under this test. See Kyles,

.

Materiality is judged according to the cumulative effect of all the

undisclosed evidence. See

.

Hughes’s conclusionary Brady claim is purely speculative. His

allegations on this matter reflect that he has no idea whether

there even was an internal investigation, much less whether such an

investigation revealed exculpatory facts. Such speculation does

not support a Brady claim. See United States v. Pretel,

(5th Cir. 1991).

Nor is Hughes entitled to an evidentiary hearing. “When there

is a factual dispute, [that,] if resolved in the petitioner’s

favor, would entitle [him] to relief and the state has not afforded

the petitioner a full and fair evidentiary hearing, a federal

habeas corpus petitioner is entitled to discovery and an

48 evidentiary hearing.” Goodwin v. Johnson,

(5th

Cir. 1998). Hughes’s conclusory allegations, however, are not

sufficient to require an evidentiary hearing. See Harris v.

Johnson,

(5th Cir. 1996).

In conclusion, we acknowledge Hughes’s able counsel’s

thorough, exhaustive, and creative effort, but we are unpersuaded

that a Certificate of Appealability should issue on any of Hughes’s

claims.

DENIED.

49