1.

Hughes contends that the trial court erred in refusing toinstruct the jury in the second special issue that the word"probability" means "more likely than not" rather than "someprobability" or "any probability."

He observes that at the penalty phase, the State called apsychiatrist, Dr. John Nottingham, as a rebuttal witness. Dr. Nottingham had examined Hughes following the offense in 1976 andhad 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 defense counsel, he then added that when he used the term, it means "any probability."

Hughes concedes that a Texas trial court ordinarily is notrequired 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 erroneousview 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 topreserve 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 thatthe "term was unconstitutionally vague and that without guidance the jury was left to speculate as to the meaning of the term." See Hughes , 897 S.W.2d at 301-02.

The district court concluded, and the state now argues, thatthis claim was procedurally defaulted, based on the Texas appellate court's conclusion that Hughes failed to preserve this claim forreview. Hughes , 991 F. Supp. at 636.

The procedural default doctrine, resting on our confinement toreview of federal questions, precludes federal habeas review whenthe last reasoned state court opinion addressing a claim explicitly rejects it on a state procedural ground. See Ylst v. Nunnemaker ,501 U.S. 797, 801, 803 (1991). When the state court has relied onan 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 ina fundamental miscarriage of justice. See Coleman v. Thompson , 501U.S. 722, 750 (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 onthe habeas petitioner to demonstrate otherwise. See Sones v.Hargett , 61 F.3d 410, 416-17 (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 versionof Texas's contemporaneous objection rule. See Hughes , 897 S.W.2dat 301-02 ("[A]ppellant's claim on appeal does not comport with hisobjections at trial . . . ."); see also Muniz v. Johnson , 132 F.3d214, 221 (5th Cir.) (citing Tex. R. App. P. 52(a) as source ofcontemporaneous objection rule), cert. denied , 118 S. Ct. 1793(1998); Sheridan v. State , 950 S.W. 2d 755, 757 (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 or regularly" and that it is an "adequate and independent state-law procedural ground sufficient to bar habeas review of federal claim." Amos v.Scott , 61 F.3d 333, 345 (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'scharge 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 , 919 S.W. 2d 433, 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 topreserve error. See Davis v. State , 905 S.W. 2d 655, 664 (Tex.App. 1995). Under art. 36.15, "[a] defendant preserves error for appellate review if the request is specific enough to put the trialcourt on notice of an omission or error in the charge." Brazeltonv. State , 947 S.W.2d 644, 647 (Tex. App. 1997). It is undisputed that Hughes did not make the argument to the state trial court thatDr. 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 usare in error, Hughes's claim lacks merit. As conceded by Hughes, the Texas courts repeatedly have rejected claims that in thepenalty 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 , 870 S.W.2d 23, 36(Tex. Crim. App. 1993) (en banc). Those courts have held that thefailure 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 inthe statutory special issues are unconstitutionally vague. See Woods v. Johnson , 75 F.3d 1017, 1033-34 (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 unconstitutionally vague; he has maintained that the trial court was required to correct any misperception regarding the meaning ofthat term that was created by Dr. Nottingham's testimony. "The proper standard for reviewing a challenged jury instruction in thecapital sentencing context is 'whether there is a reasonable likelihood that the jury has applied the challenged instruction ina way that prevents the consideration of constitutionally relevant evidence.'" Drinkard , 97 F.3d at 757 (quoting Boyde v. California ,494 U.S. 370, 380 (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 morethan 'only a possibility' of an impermissible interpretation." Id . (citing Boyde , 494 U.S. at 380).

Hughes's contention is that the single reference by Dr. Nottingham to the phrase "any probability" required the trial courtto ensure that the jury understood that such term meant "morelikely than not." He argues this point, notwith standing Texasc ases 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 , 987 F.2d 1116, 1120 (5th Cir. 1993) (quoting Milton v. Procunier , 744 F.2d 1091, 1096 (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 1976violated Estelle v. Smith , 451 U.S. 454 (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 , 897 S.W.2d at 302-04. Itexplained that the State had conceded that Hughes's 1976 interview was conducted in violation of Smith . See id . at 302. Dr. Nottingham had examined Hughes again in 1988 in the presence ofHughes's attorneys; in doing so, he had refreshed his memory with notes taken during the 1976 examination. See id .

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 the1976 report. See id . at 302-03. Dr. Nottingham responded that, 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 id . at 303.

The Texas Court of Criminal Appeals rejected Hughes's Estellev. Smith contention because "[r]eview of Nottingham's testimony shows that his conclusions were based upon the 1988 interview alone." Id . That court found that "[t]here is no indication inthe record that [Nottingham's] testimony was influenced by orderived from his earlier examination of [Hughes]." Id . at 304.

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 , 745 S.W.2d21, 26 (Tex. Crim. App. 1988), which in turn relied on White v.Estelle , 720 F.2d 415 (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 Woodsv. Johnson , 75 F.3d 1017 (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 id . at 1026-33, but it also "agree[d] with the assessment of the state habeas court that '[a] jury could notr easonably construe [the psychiatrist's] testimony . . . as being influenced by or derived from the court-ordered pretrial psychiatric examination of applicant.'" Id . at 1028 (citing Woods ,745 S.W. 2d at 26) (emphasis added). This court concluded in partthat the psychiatrist's opinion testimony as to future dangerousness "derived from and related to the acts of violencedetailed in the prosecutor's [hypothetical] question . . . , not from [the psychiatrist's] examination of [the prisoner]." Id . at1029.

A review of Dr. Nottingham's testimony at the penalty phase shows that the prosecutor's questions were tailored to elicitresponses about Nottingham's 1988 examination of Hughes. Hugheshas 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 conclusionthat Nottingham's review of the notes did not influence histestimony was not an "unreasonable application of[] clearlyestablished Federal law[] as determined by the Supreme Court." See 28 U.S.C. � 2254(d)(1). We also reject Hughes suggestion that the"taint" of the earlier examination was incurable; that it createdan 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, hewould be required to serve at least 20 years in prison without the possibility of parole. Citing Simmons v. South Carolina , 512 U.S.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 prisonterm, 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 withrespect 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 , 472 U.S. 320, 328-29 (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 forthe defendant may not inform a juror or a prospective juror of the effect of failure of the jury to agree on an issue submitted underthis 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, theCourt of Criminal Appeals stated, "[t]his Court has repeatedly held that declining to inform the jury of the effect of their answers tothe submitted issues does not render article 37.071 unconstitutional." Hughes , 897 S.W.2d at 301. This holding was based on pre- Simmons case law. See id .

In Simmons , the Supreme Court held that a trial court in aSouth 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 , 41 F.3d 213, 220-22 (5th Cir. 1994), we distinguished Simmons on the ground that South Carolina law in Simmons made the petitioner legally ineligible for parole, whereasTexas capital defendants who are sentenced to life become eligiblefor parole after a term of years. See also Muniz , 132 F.3d at 224; Johnson v. Scott , 68 F.3d 106, 111 (5th Cir. 1995); Montoya v.Scott , 65 F.3d 405, 416-17 (5th Cir. 1995). But see Brown v.Texas , 118 S. Ct. 355, 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 , 472 U.S. 320 (1985), under which "it is 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." Id . at 328-29. We have observed:

In Dugger v. Adams , 489 U.S. 401, . . . (1989), the Supreme Court clarified its holding in Caldwell and heldthat to "establish a Caldwell violation, a defendant necessarily must show that the remarks to the jury improperly described the role assigned to the jury bylocal law." Id . at 407 . . . ; accord Sawyer v. Butler ,881 F.2d 1273, 1285 (5th Cir. 1989) (en banc), aff'd ,497 U.S. 227 . . . (1990). In evaluating a Caldwell claim, we look to the "total trial scene," including jurys election, the guilt phase of the trial, and the sentencing hearing, examining both the court's instructions and counsel's arguments to the jury. Id . at1286-87.

Montoya , 65 F.3d at 420. Hughes concedes that "throughout the voirdire 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 trialcourt 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 toby Hughes was held to be sufficient to inform the jury of its role under Texas law. See Montoya , 65 F.3d at 421. Moreover, in itsclosing statement, the prosecution stated

I suggest to you the severity of the punishment shouldfit 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 trialscene" 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 , 443 U.S.307 (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 isto 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 , 897 S.W.2d at 289-93. 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 , 991 F. Supp. at 628. The court notedthat under Teague , "federal habeas may not be granted on rules ofc onstitutional 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 , 998 F.2d 269, 276 (5th Cir.1993); Johnson v. Collins , 964 F.2d 1527, 1530-31 (5th Cir. 1992); Fierro v. Lynuaugh , 879 F.2d 1276, 1280 (5th Cir. 1989); Evans v. McCotter , 790 F.2d 1232, 1242-43 (5th Cir. 1985). Assuming but not 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 , 443 U.S. at 319. 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 ofmurder under Tex. Penal Code �� 6.03 and 19.02. He asserts that only Trooper Reichert's testimony could conceivably support a findingthat 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 , 964 F.2d at 1531. Instead, the term"'is to be taken and understood in its normal use and common language.'" Id . (quoting Carter v. State , 717 S.W.2d 60, 67 (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.'" Id . (quoting Carter , 717 S.W.2d at 67). In Webster's Dictionary ,"'deliberately' is defined as 'with careful consideration or deliberation; circumspectly; not hastily or rashly; slowly; as are solution deliberately formed.'" Id . 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.'" Id . (citing Cannon v. State , 691 S.W.2d 664,677 (Tex. Crim. App. 1985)).

The Court of Criminal Appeals concluded that a rational trierof fact could have believed the State's theory of the case and disbelieved Hughes's version of the events. See Hughes , 897 S.W.2dat 290. It found that Hughes, who had been traveling around the country for months, had "numerous reasons to fear being pulled overby 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 motelafter being questioned about a stolen credit card. Finally, the 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 adeliberate 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 onlyhalf-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 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 sobehind 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 cardoor, 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 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 "conartist," 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 , 897 S.W.2d at 291-93. The court acknowledged that none of Hughes's prior convictions involved physical violence. See id .at 293. The court also noted that the instant offense involved neither "the type of calculated prior planning" nor "facts thatwere so shockingly brutal or heinous" as to alone support an affirmative finding on this issue. Id . at 291. 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." Id . at 293.

Hughes faces a formidable task in establishing that the stateappellate 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   id . at 291-92. 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   id . at293. It did not unreasonably apply the Jackson standard inconcluding 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 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 , 463 U.S. 277 (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 processrights. Hughes asserts that the Court of Criminal Appeals'srefusal to review the mitigating factors independently violated hisright 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 evidence to determine Hughes's "death worthiness." Hughes , 897S.W.2d at 294. The court stated that in Pulley v. Harris , 465 U.S.37 (1984), the Supreme Court held that such review is not required under the Eighth and Fourteenth Amendments. See id .

(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   id . at 43-44, 50-51.

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] crimefor which it was imposed." Harris , 465 U.S. at 43 & 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." Id . at43.

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 adefendant's "death worthiness" 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 appealfrom a death sentence. He argues that Harris  rejected only thenotion 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 byc omparison with other death-penalty cases. Hughes emphasizes thathe 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 nots uggest 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 inthe circumstances of his  case because mitigating circumstancess hould 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 proportionalityr eview.

(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 requiresthe "independent" review that he requested from the state appellatec ourt. In a creative turn, he cites Honda Motor Co., Ltd. v.Oberg , 512 U.S. 415 (1994). In Honda , the State of Oregon had constitutional standards limiting punitive damages and restricting their post-verdict review. See Honda , 512 U.S. at 418. The Supreme Court concluded that the statute's abrogation of thec ommon-law protection against excessive punitive-damages awards violated due process. See id . at 430-32. 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 , 125 F.3d 269, 281 (5th Cir. 1997)(citing Clemons v. Mississippi , 494 U.S. 738, 746 (1990)), stay granted , 118 S. Ct. 2338 (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 discretionis [not] merely a matter of state procedural law. The 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 ofits statutory discretion, and that liberty interest is one that the Fourteenth Amendment preserves against arbitrary deprivations by the State.

Id . (quoting Hicks v. Oklahoma , 447 U.S. 343, 346 (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 ,465 U.S. at 44. We repeat, Texas is a "non-weighing state" in that its capital-sentencing scheme does not direct the appellate cour tor even the jury to "weigh" aggravating factors against mitigating ones. See James v. Collins , 987 F.2d 1116, 1120 (5th Cir. 1993); Williams , 125 F.3d at 281, 283. 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 , 125 F.3d at 283. For the purposeof initially determining whether a defendant is "death-eligible,"the jury need find only a statutory aggravating factor. Id . Hughes's contention that he was entitled to an "independent" consideration on direct appeal of mitigating circumstances is not supported by this precedent.

6.

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 theevidence . . . inherently unreliable" and that the evidence couldnot provide a "constitutional foundation" to support a death sentence. He relies on Simmons , 512 U.S. 154, 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 20years and that he has shown, by his "exemplary public behavior, educational attainments, [and] charitable works," that he does notpose 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 ,991 F. Supp. at 631. Citing Jurek v. Texas , 428 U.S. 262 (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's hould be presented to the decision maker." Id . (citing Jurek , 428U.S. at 263). The district court observed that the Supreme Courtin Simmons supported the use of all available evidence, contrary to Hughes's apparent interpretation of that case. See   id . (citing Simmons , 512 U.S. at 163). The court emphasized that during the penalty phase Hughes himself presented evidence that was older than that he now asserts is "inherently unreliable." Id .

The State replies that no statutory or case authority places an "age limit" on the information that may be considered by a juryin determining whether there is a probability that the defendant would commit criminal acts of violence that would constitute acontinuing 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 notinvolve an "unreasonable application of[] clearly established Federal law[] as determined by the Supreme Court of the United States." 28 U.S.C. � 2254(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 ofthe special issues if it believed that circumstances "mitigated against" the death penalty, which allegedly gave the jury "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 toanswer 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 , 492 U.S. 302 (1989), would require theformulation 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 reliefwould 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 , 492 U.S. at 319).

Hughes's claims here address the following instructions:

2.

The burden of proof in this phase of the trial still 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.

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 , 993 F. Supp. 473, 492 n.93 (W.D. Tex. 1998).

1.   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 id . at 288 n.1; Hughes v. State , 563 S.W.2d 581 (Tex. Crim. App. 1978). In 1987, The Texas Courtof Criminal Appeals granted Hughes's state postconviction application and reversed Hughes's conviction. See Hughes , 897 S.W.2d at 288 n.1; Ex parteHughes , 728 S.W.2d 372 (Tex. Crim. App. 1987).

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