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Billy George HUGHES Jr.





Classification: Murderer
Characteristics: Robberies
Number of victims: 1
Date of murder: April 4, 1976
Date of arrest: 2 days after
Date of birth: January 28, 1952
Victim profile: Mark Frederick, 25 (Texas Public Safety Officer)
Method of murder: Shooting (.9mm handgun)
Location: Austin County, Texas, USA
Status: Executed by lethal injection in Texas on January 24, 2000


On April 4, 1976, when confronted about his use of a stolen credit card, Hughes fled a Days Inn Hotel near Houston.

Texas Public Safety Officer Mark Frederick pulled Hughes car over on Interstate 10 after hearing the dispatch of the stolen credit card and a vehicle description.

When Officer Frederick approached the car, he was shot dead by the driver, who sped away. The car was abandoned and after a massive manhunt, Hughes was found hiding in a field six miles away.

Weapons, ammunition, and a Days Inn room key was found in the vehicle, which was stolen. A .9mm handgun taken from Hughes was determined to be the murder weapon.

Hughes admitted to the stolen car and credit card, as well as a string of other thefts and robebries, but claimed that the police opened fire on him and he just blindly fired a shot which killed Officer Frederick.

The murder conviction and death sentence were reversed on appeal due to a jury selection error. In 1988, on retrial Hughes was again convicted and sentenced to death. Hughes earned two college degrees in religion while on death row.


Texas Attorney General

Media Advisory


AUSTIN - Friday, January 21, 2000 - Texas Attorney General John Cornyn offers the following information on Billy George Hughes who is scheduled to be executed after 6 p.m., Monday, January 24th:


On the evening of April 4, 1976, Billy George Hughes checked into the Days Inn Motel in Brookshire (west of Houston), Texas, using a stolen credit card. When the clerk confronted Hughes in his room about the stolen card, she noticed a gun on his bed.

The clerk then left Hughes's room to notify the motel security guard of the problem. After the clerk left his room, Hughes got into his car and sped away on Interstate 10 heading west.

Texas Department of Public Safety (DPS)Troopers Jack Reichert and Mark Frederick pulled over the 1975 Ford LTD Hughes was driving on Interstate 10 near Sealy, Texas; they 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.

The troopers followed Hughes's car on Interstate 10 until it exited the highway. At this point, Trooper Frederick, who was driving, turned on the overhead lights, and Hughes pulled over to the shoulder of the exit ramp.

Trooper Frederick exited the police car and walked up to the driver's side door of Hughes's car. Trooper Reichert got out of the patrol car almost immediately after Frederick did. Approaching the Ford behind Frederick, Reichert heard a muffled shot and observed Frederick grunt and lurch to the side.

Hughes immediately sped away from the scene as Trooper Reichert fired six times at the fleeing vehicle. Trooper Reichert then called for assistance and tended to Trooper Frederick; however, Reichert could find no pulse. Trooper Mark Frederick was later declared dead in the ambulance en route to the Sealy Medical Center.

Upon hearing of the shooting, DPS Troopers Randall Baisch and Rodney Green were proceeding toward the scene when they discovered Hughes's abandoned car approximately three miles from the scene of the shooting. The troopers observed that the car had been struck by several bullets, and inside the car was a holster and a room key from the Days Inn Motel in Brookshire.

Soon thereafter, a massive manhunt began for Hughes, involving as many as five hundred law enforcement officers. Approximately two-and-a-half days after the shooting, Texas Ranger Ray Scholton, who was in charge of the investigation, received a report that a possible suspect had been sighted six miles south of Sealy.

Ranger Scholton went to the location by helicopter, where he spotted Hughes hiding under a mesquite tree in a pasture. As the helicopter hovered a few feet above the ground, Hughes pointed a gun at the helicopter. As soon as Ranger Scholton pointed his gun out the helicopter at Hughes, Hughes dropped his weapon and was taken into custody.

A check of Hughes's car revealed that it had been reported stolen. A search of the car revealed the following items: one holster for an automatic handgun on the front seat, one holster for a revolver in the glove compartment, and the following items in the trunk of the car: a fully loaded .30 caliber carbine; a loaded, sawed-off short barrel twelve-gauge shotgun; a .300 Magnum rifle; extra .38 caliber shotgun ammunition; and a Halloween mask. Additionally, Hughes had a 9 millimeter handgun loaded with thirteen or fourteen rounds on him when he was captured.

Dr. Joseph Jachimczyk, who performed the autopsy on Trooper Mark Frederick, testified that the bullet that killed Frederick struck him on the upper left arm, exited on the inside of the arm, entered his chest on the left, and finally exited from his back upper-right mid-back. Trooper Frederick's aorta and heart were struck, resulting in internal hemorrhaging, shock, and then death.

Dr. Jachimczyk found that the wounds that Trooper Frederick received were consistent with being shot with a 9 millimeter handgun, with Frederick's left side turned down toward the driver, and that the gun fired at Frederick was at least two feet away from him.

Ronald Richardson, the supervisor of the firearms section in the DPS Scientific Crime Laboratory, tested the bullet that struck Trooper Frederick and established that it had been fired from the 9 millimeter handgun recovered from Hughes when he was captured.

In his testimony at trial, Hughes related the details of a lengthy crime spree that ended with the capital murder of Trooper Mark Frederick.

On January 21, 1976, Hughes rented a 1975 Ford LTD in Fair Hope, Alabama, which was to be returned on January 26, 1976.

Hughes then drove to Pensacola, Florida, where he passed a worthless one hundred fifty dollar check. Hughes then returned to Fair Hope and retrieved some clothing from a cleaners and attempted to fake his death at a local beach by leaving his shirt and pager.

Hughes then decided to head back to Pensacola, but he first bought gas and food with another worthless check. Hughes only stayed in Pensacola for a day or two before leaving for Orlando.

While in Orlando, Hughes stole some checks that he used to buy jeans, a jacket, a belt, and a hat. He then left Orlando for Daytona Beach, where he was robbed after leaving a nightclub. The next day, Hughes bought a suit, a pair of boots, a cane, a shotgun, and some shells with another stolen check.

Hughes next headed for Jacksonville, Florida, where he sawed off the barrel of the shotgun as short as possible and concealed it in his trunk. Hughes stayed in Jacksonville for a few days during which time he cashed a few more stolen checks and inquired into buying some more guns.

Hughes then went to Atlanta, Chattanooga, and Nashville. While in Nashville, Hughes purchased a .45 automatic handgun with another stolen check and stole an Alabama license plate from another car.

A few days later, Hughes returned to Chattanooga where he bought ten-dollar traveler's checks, cashed two, reported all ten stolen and received a one-hundred dollar refund.

Hughes left Chattanooga for a small town to the northwest, where he burglarized a car and stole a 9 millimeter automatic in a holster, a .45 pistol in a holster, a .300 Magnum rifle with a scope, a .30 caliber carbine, .38 caliber shells, and an empty holster. This theft occurred sometime during the second or third week of February.

Hughes continued his trek throughout the southeast during the early spring of 1976. Hughes stopped in Gatlinburg, Tennessee; Washington, D.C.; and Baltimore, Maryland. Hughes then headed into the Carolinas where he repeated his traveler's check scheme.

Hughes returned to Nashville, Tennessee, where his car was broken into and two .45's were stolen. Hughes then left Nashville and headed for Montgomery, Alabama.

While in Alabama, Hughes stole Harold Martin's credit card, a diamond ring from Sam Caldwell, and some checks from Caldwell. Hughes used one of the stolen checks to buy a CB radio from Radio Shack.

On March 30, 1976, Hughes left Montgomery for Louisiana, where he used Martin's credit card for food, motels, and gasoline. Hughes left behind some papers in Kenner, Louisiana, which detailed plans to continue the traveler's check scam, to rob a small-town bank, and to set up apartments in New Orleans, Daytona Beach, and Atlanta, and rob banks in the various cities.

Hughes left Louisiana for Texas, staying in Beaumont, Texas, on the night of April 2, 1976. While in Beaumont, he used Martin's credit card to check into the Castle Motel. Hughes continued heading west until he attempted to use Martin's credit card at the Days Inn in Brookshire on April 4, 1976.

Hughes claimed that, after he left the motel and was pulled over by Troopers Frederick and Reichert, the troopers opened fire on him without provocation, whereupon he fired a blind shot out the window. Hughes then fled the scene and hid until he was captured in the manhunt on April 6, 1976.


In April 1976, a grand jury in Austin County, Texas, indicted Hughes for the capital murder of Mark A. Frederick, a peace officer acting in the lawful discharge of an official duty. The case was tried on a change of venue in Matagorda County, Texas, and Hughes entered a plea of "not guilty."

On September 16, 1976, a jury found Hughes guilty of capital murder. Following a punishment hearing, Hughes was sentenced to death. Hughes's conviction was automatically appealed to the Texas Court of Criminal Appeals and was affirmed in a published opinion.

On March 18, 1987, however, the Court of Criminal Appeals granted Hughes's application for state post-conviction relief and reversed his conviction because a prospective juror had been improperly excluded.

In June 1988, Hughes was retried for Mark Frederick's capital murder in the the 23rd District Court of Matagorda County, Texas.

On June 9, 1988, a jury found Hughes guilty of the charged capital offense. Following a punishment hearing, Hughes was sentenced to death. Hughes' second conviction and sentence were automatically appealed to the Texas Court of Criminal Appeals.

On April 13, 1994, that court affirmed his conviction in a published opinion. Hughes' petition for writ of certiorari was denied by the Supreme Court of the United States on May 15, 1995.

On October 14, 1996, Hughes filed an application for state habeas corpus relief. The Court of Criminal Appeals denied Hughes's request for relief on February 26, 1997. Hughes then filed a petition for certiorari in the Supreme Court which was denied on October 14, 1997.

On June 17, 1997, the trial court scheduled Hughes's execution for September 19, 1997.

On September 10, 1997, Hughes filed a petition for writ of habeas corpus and a motion to stay his September 19, 1997, execution in federal district court.

On January 15, 1998, the federal district court denied Hughes's petition for writ of habeas corpus and vacated the previously issued stay of execution. The court also denied permission to appeal.

Hughes filed a notice of appeal on February 11, 1998, but the United States Court of Appeals for the Fifth Circuit on October 5, 1999, also denied permission to appeal. A petition for writ of certiorari is pending in the Supreme Court.


Retired Agent Gene Owens of the Federal Bureau of Investigation investigated a series of extortion attempts and bomb threats of three banks in Mobile, Alabama, from October 1973 until early 1975.

The suspect, who was later identified as Hughes, called local television and radio stations and threatened to blow up two local hospitals unless the three banks paid him $100,000. Hughes also claimed to have kidnapped two small children.

Hughes was later filmed by a television cameraman at prearranged drop sites. Hughes was indicted for extortion and pled guilty, receiving probation. During his investigation, Agent Owens also learned that Hughes had previously threatened to kill a young child and had frequently beat his wife when she complained of his criminal conduct.

Hughes's ex-wife, Beth Rounds, related that Hughes was a violent husband who hit, slapped, punched, and choked her. Both Rounds and Hughes were members of the Jehovah's Witnesses until Hughes was expelled from the group for incessant lying and bad-check writing.

Rounds also corroborated Agent Owens's version of Hughes's extortion attempts, and she described Hughes as a methodical, deliberate person. Rounds further testified that Hughes liked guns and was a good shot, and that he once choked her until her mother intervened.

Rounds finally stated that Hughes' criminal acts escalated during the time she knew him and that she felt Hughes would continue to commit violent criminal acts.


Prior to his first trial, Hughes told examining psychiatrists that he had consumed large quantities of beer on the day of the offense which led to "spotty amnesia" around the time of the offense.

However, at a second psychiatric interview prior to his second trial, he denied having any amnesia and stated that he recalled everything about the offense. His initial account of being intoxicated prior to the offense is also contradicted by testimony from other trial witnesses who observed him at that time.

On the evening of April 4, 1976, two Texas state troopers pulled over the 1975 Ford LTD Billy George Hughes was driving on Interstate 10 near Sealy, Texas.

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.

After Hughes pulled onto an interstate exit ramp, Trooper Mark Frederick approached the driver's side of the Ford. Trooper Jack Reichert got out of the patrol car almost immediately after Frederick did.

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 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 took only 47 minutes to sentence Hughes to death.


Reflections of a witness at an execution

Billy Hughes #556 was executed January 24th in Huntsville.

By Charles Sullivan -

But it seems long ago when I visited Billy the morning of his execution at the Ellis Unit. I asked him what he wanted to do--Billy answered with one word, "Party!" Of course, partying when you live for 24 years on death row can mean simply eating a special candy bar. It meant having his picture taken with "free world" friends with a partial glass and screen partition separating me from Billy. We were never allowed to touch or embrace him. But, most of all, "partying" was a lot of laughs. There were "wisecracks" and jokes, even gallows humor. Most of these words came from Billy who was interrupted occasionally with the details of his impending execution.

A correctional officer wanted to know his request for his last meal. Billy asked us to help him with the menu. Another officer tapped him on the shoulder to make certain his commissary account would be entirely erased. "What if I receive a stay?" Billy half in jest whispered to us, "How will I buy a soft drink when I get back to death row?" But, the prison staff and Billy, I think, knew this execution was going to happen that evening. Billy, however, joked with everybody including his keepers.

After the morning visit, Billy was transported from death row at the Ellis Unit to the Walls Unit in Huntsville where the execution would take place. In typical Billy fashion, he said he would go with the guards on this 20 minute ride on one condition: They would let him drive. The staff replied in kind, "Billy if you get a stay, we'll let you drive back!" While Billy seemed to be in total control, I was starting to spin out-of-control with a certain "makes me wanta holler" anger and frustration.

There was an orientation for witnesses at 3 PM. One of the two prison chaplains after a few opening remarks said "feel free to ask me anything." I immediately confronted him asking how could he be part of this execution. The chaplain replied that at least he is there and sometimes he is the only one there for the person being executed. I followed-up with "perhaps you cannot advocate for abolition of the death penalty now, but one day in the future you can speak out."

I then asked about the role of the physician in the execution. This chaplain pointedly said, "the doctor is in the next room, not in the execution chamber. He comes in only to pronounce death." "What if after examination the doctor detects a heartbeat?" I pursued, "Doesn't he violate his Hippocratic oath to do no harm if he indicates to the warden to continue the injection." "That has never happened," the chaplain kindly informed me.

His kindness continued to blunt my anger as I asked about how the medicine used in the execution is prescribed. "There must be a prescription somewhere that is signed by a doctor. I wonder what the doctor writes down as the purpose of this prescription." "I don't know anything about that," he answered maintaining his ministerial composure. In fact, composure and "extra mile" consideration seemed to permeate the day as the prison staff went about the ritual of the execution.

Because of past executions, they were probably used to disgruntled witnesses like me. For example, this chaplain had been present in over 100 executions. Also, the prison staff genuinely wanted to make the execution as "easy" as possible on everyone involved. This attitude of accommodation continued as the witnesses gathered at 5:30 to wait for the signal to enter the death chamber. The execution was scheduled for 6 PM.

Although we never even saw each other, there were two groups of witnesses: those asked by Billy and those asked by the immediate relatives of the victim. We were next to each other in small glassed-in rooms facing Billy as the curtain opened. Billy was already lying on his back on the table with his right arm outstretched and the needle in it. His hands were tied open with ace bandages to make certain they wouldn't become distorted when he died. Billy continued his control.

While I went from sobbing to anger, Billy winked at us. When the warden asked if he had any final words, he replied "Yes, I do" in a clear and strong voice. "I want to tell you all how much I love you all, how much I appreciate everything. I love you all and my family. I treasure every moment that I have had. I want the guys to know out there not to give up, not to give in, that I hope someday the madness in the system--something will come about, something will be resolved. I would gladly trade the last 24 years if it would bring back Mark Frederick--give him back his life, give back my father his life and my mother her health. All I ask is that I have one day, and all the memories of you and my family and all the things that have happened.

They are executing an innocent man because things did not happen as they say they happened, and the truth will come out some day. I am not the same person I was 24 years ago. Who would have thought it would have taken 24 years to get to this moment? Don't give up, don't give in. If I am paying my debt to society, I am due a rebate and a refund. But, I love you all, and you all watch out for Mom and you all keep up, keep going. Thank you, Warden."

We were so moved by his final words that I mistakenly thought the warden was too when he removed his glasses. Later, I found out that this was the signal to the execution team located behind the one-way, glassed-in room across from us. As the injection began to take effect, I thought he might miraculously open his eyes and say, "Don't worry, I'm still here!" That would be Billy. But, I began to see that he was dying as his body went limp and his eyes kept closing even though they never fully shut. The doctor came in and pronounced him dead. We were ushered out. It was over in 15 minutes!

Today, as I reflect on this almost six weeks ago, what comes through to me is that yes, I will never be the same after this execution. A witness to another execution had said this to me. Also, and I'm not sure I can write this thought clearly. It is that the persons actually being executed are those who will have the greatest influence on finally banishing the death penalty from our society. Undoubtedly, Billy Hughes was an exceptional human being. But, he is not that unique in character from others on death row.

The person preceding him to execution a few days earlier was Larry Robison who was known to be constantly trying to reconcile death row prisoners who had a "falling out".

Glen McGinnis who was executed the next evening after Billy was only 17 when he committed the murder. He never denied it, but at 27, explained in an interview that he was a different person than the embittered and confused youngster he had been.

Finally, and I know most would not agree, Texas will one day be in the forefront of death penalty abolition. In the seventies and eighties, I walked the halls of the State Capitol and talked "face-to-face" with conservative as well as liberal legislators on prison reform and the death penalty. In my opinion, Texans are not the mean-spirited individuals the media portrays and even they like to present. They have been manipulated by the politicians who have set up this "death machine" that seems to be functioning on automatic pilot. Throughout Texas history, there seems to come a time when the people including their public officials have had "enough" and rise up. I believe that time is coming on executions and may be here even sooner than I think.

(Charles Sullivan is executive director of CURE (Citizens United for Rehabilitation of Errants), a national prison reform organization. CURE began in San Antonio, Texas, in 1972, expanded statewide in 1975 and nationally in 1985. )


For Many, Supporting Capital Punishment is a Personal Matter

By Allan Turner - Houston Chronicle

FOR 19 years, Billy Hughes Jr. has called Texas' death row home. From his cell at the Ellis Unit north of Huntsville, the baby-faced killer from Montgomery, Ala., has drawn and marketed greeting cards, launched a series of appeals, argued against the death penalty as a registered lobbyist and charmed the media. Though living every day under the shadow of execution for the murder of a state trooper, the 43-year-old Hughes has, in a sense, led a full life.

Patsy Teer, the mother of the man he killed, wants to end it. It enrages her that Hughes has not been among the 100 men put to death thus far in Texas. Only his death, she has said , can end her sorrow.

The U.S. Supreme Court ruled in 1976 that it was all right for states to resume capital punishment. Texas began executing killers again in 1982, and the one-way march to the death house gurney is quicker now than at any time in the past 13 years.

The fact that Hughes -- who is preparing yet another round of appeals -- continues to live angers many of those who feel strongly that the death penalty is just and that extraordinary delays rob the punishment of its deterrent effect. "Do you wait 10 years to send a robber to prison?" asked Andy Kahn of Houston, director of the Mayor's Crime Victims program. "No, you punish him. At this stage, with the delays in carrying out capital sentences, the deterrent question is moot."

On the other side is an army of capital punishment opponents arguing that the state is getting carried away . They believe the sentence is ineffective and immoral, that Texas, with its death row population in excess of 400 , is running a death mill. "I can't but be outraged, stressed to think that as a state, we probably have more executions than any country in the world, with the obvious exception of the United States and China," lamented Jay Jacobson, director of the Texas chapter of the American Civil Liberties Union, a steadfast opponent of the death penalty.

The rhetoric between the two sides heated up again this week, as it does whenever the state passes a death penalty milestone or carries out a particularly controversial execution.

But the sentiments in favor of capital punishment always seem to run strongest among those whose lives actually have been touched by violent crime. "You just can't have closure until the person who executed your child is put to death," said Brenda Solomon, a Waco woman whose daughter was sexually assaulted and murdered by notorious killer Kenneth McDuff, a former death row inmate released from prison. "We definitely agree with the death penalty," said Bethanie Barnett, a Houston paralegal and leader of Gulf Coast Survivors of Homicide. Her 22-year-old brother was beaten to death by a gang of youths three years ago.

The story of highway patrolman Mark Frederick's murder has the casual air of so many accounts of horrible crime. Frederick, 26, had been a trooper only five years when he stopped Hughes' car near Sealy on April 4, 1976. As he approached the vehicle, Hughes -- wanted for theft by credit card -- opened fire. Frederick was struck in the chest. As his mother described it, "He was blown all over the road."

Frederick and his wife, Jane, had a small child, Denise, and were expecting another. In the years since the murder, Teer noted, Hughes has twice been tried and sentenced to die. In prison, he has operated his own business, Happy Horse Enterprises. From his cell, Hughes, a talented artist, has marketed a line of greeting cards and published camping guides for horse enthusiasts.


BILLY HUGHES JR. - Executed on January 24, 2000

"Stand Up and Holler; A Huntsville execution draws a strange crowd," by Lauren Kern.

Jay Martel wandered through the pro-death-penalty crowd outside the Huntsville prison on the night of January 24 without arousing suspicion. Wearing blue jeans, a baseball cap and a windbreaker that looked a lot like the state flag, he fit right in. He offered cans of ginger ale, passed out foam fingers and praised George W. Bush. If there had been a baby, you can bet he would have kissed it. If there had been cheerleaders, which there were, you can bet he wasn't surprised.

The victims' rights group Justice for All was already more boisterous than normal on this particular night at death row because of the man who was being executed.

Billy Hughes Jr. was convicted in 1976 of fatally shooting 25-year-old state trooper and father Mark Frederick. But Hughes, who was wanted for credit card theft when Frederick pulled him over, claimed he had merely returned fire when the officers shot at him as he reached for his wallet, and he managed to avoid his death sentence for 24 years by launching numerous appeals.

While the cop killer "abused the system," he also became a college graduate (with two degrees in religion), a paralegal, an anti-death-penalty lobbyist, a well-known cartoonist and, at least according to the Society for the Prevention of Cruelty to Animals, a humanitarian. Needless to say, the anti-death-penalty camp was a little sadder than normal to see a "reformed" man die.

Beyond that, it was business as usual at the Walls Unit. Justice for All stood at the left end of the police line, holding signs that said, "No Murder Equals No Execution." The Texas Coalition to Abolish the Death Penalty stood at the right end of the same yellow tape, forming a circle and singing "We Shall Overcome."

Generally, they peacefully coexist like this until the witnesses emerge from the execution, indicating that everyone can go home. They have the routine down pat: There were seven executions in just over two weeks last month; there have been 119 since George W. took office.

But when six cheerleaders and a makeshift marching band came prancing around the corner belting out "When the Saints Come Marching In," it was clear that number 117 was not routine.

In pigtails, letter sweaters and red-pleated skirts, the fresh-faced drill team chanted, "We are Texas" and "Go, George, Go." As the antis struggled to maintain their circle vigil, the pros turned into fans at a football game.

Fire up, fire up; Fire up, and up; And up and up and up! They grinned, cheered and waved their foam fingers. Two bits, four bits, six bits, a dollar, All for the death penalty stand up and holler! They were already standing, but they sure hollered. P, P-O, P-O-W-E-R . We've got power. Woo! Killing power! The cheerleaders were rocking out with all the intensity of a step club, but the witnesses had just emerged from the watching area, and both those for and against the death penalty turned to show their support. Execute, execute, sis, boom, bah . Lethal injection, rah, rah, rah!

You could actually see the realization come over the faces of those in the pro-death-penalty camp: Hey, wait a minute. These death row cheerleaders aren't on our side after all. Florida oranges, Texas cactus We kill convicts just for practice! That did it. Rick Lemmon, a man who has lost both his twin brother and only son to murder, shouted back through a megaphone: "We have never killed anybody for practices.Y'all don't forget the victim here." Kill 'em to the left. Kill 'em to the right. Here in Texas. We kill 'em every night!

David Atwood, president of the Texas Coalition to Abolish the Death Penalty, and Dudley Sharp, vice president of Justice for All, both visibly pissed off, yelled at each other at almost exactly the same time, "Did you do this?" then, "No!" We're number one, can't be number two. If you don't agree with us, we'll kill you too. Texas is good, Texas is great. We kill more than any other state!

"Is this what George Bush wants?" asked Atwood. "The cheerleaders?" Sharp put his hand on Atwood's shoulder and said, "Anti-death-penalty and pro-death-penalty strongly believe in what they're doing, and that doesn't include disrespecting the other side." Meanwhile, a bare-chested, body-painted, football-helmeted man ran through the crowd with a "Death" pennant. George, George, he's our man, If he can't kill 'em, no one can, Who's the best on the killing scene? George Bush, he's a killing machine! He's a killing machine! He's a killing machine!

The confusion moved to a nearby parking lot where a scoreboard read: George 117, Jeb 2. (In all fairness, Jeb has only one execution to his credit. Executions have been on hold in Florida since July, when a possible malfunction in "Old Sparky" caused Allen Davis to bleed profusely through his nose as he died.)

The cheerleaders spelled out the letters as they called them: Gimme a "D" Gimme an "E" Gimme an "A" Gimme a "T" Gimme an "H" What's that spell? Death! Pardons are for wimps! Pardons are for wimps! "It shouldn't have been this way," Atwood said, shaking his head. "I bet you have Monica Lewinsky sex!" shouted a particularly rabid member of Justice for All. "Desperate times call for desperate measures," muttered Martel. Nah, nah, nah, nah Nah, nah, nah, nah Hey, hey, hey, Good-bye.

After failed attempts to ignore the demonstration, shout down the cheerleaders, circle the band and blame Canada for the fiasco, attentions finally turned to Martel, who seemed to be enjoying all the mischief a little too much. "You did this!" they shouted at him from both sides. "They're not here all the time?" he asked, pushing the limits of playing dumb. They wanted answers: "Are you pro or against the death penalty?" "I'm pro Texas!" he whooped.

In a place where affiliations are always clearly delineated, this was as infuriating as the cheerleaders themselves. Even the news media -- well, those outlets that didn't miss the demonstration for days by relying on the AP feed -- didn't know where to put the blame or the credit. Channel 2's Suzanne Boase called it an "anti-death-penalty commercial."

No one recognized Martel or his gonzo journalism as trademarks of Michael Moore's popular, populist and political television show, The Awful Truth. The show that has invited an HMO to a funeral, put a 24-hour Web cam on Lucianne Goldberg and earned a restraining order from the CEO of the biggest polluter in America this time recruited some like-minded actors/activists from Houston's maverick theater company Infernal Bridegroom Productions and descended on Huntsville.

The piece, which will include a segment shot in Florida, is "a celebration," says Awful Truth producer Dave Hamilton, "of two states who have long embraced the death penalty and turned their ability to kill Americans into a state pastime." The episode is expected to air on Bravo sometime next season.

One man at the prison that night did know the score: Billy Hughes. Citizen provocateur and KPFT Prison Show host Ray Hill was a gold mine of information for Moore's segment producers. He was also a longtime friend of Hughes's, even receiving a posthumous, and postage-due, letter from the inmate expressing his love, admiration and gratitude as he headed for his "final sunset."

Hill was sworn to secrecy when he was contacted by the show, but during his last visit with Hughes before the execution, he says, "I had to confide in Billy what was going on. My conscience required me to." How did Hughes take the news that his death would be surrounded by satirical fanfare? According to Hill, he said, "Thank you."


While tha band plays on

By Philip Brasfield

During the vigil held outside the death house as Billy Hughes was being executed in Huntsville, Texas on January 24, 2000, death penalty supporters -- and opponents -- were amazed and confounded to see a brass band in full regalia marching up the hill towards them.

The pro/con groups are accustomed to their respective public roles in Texas' ongoing bacchanalia of barbarity. The groups gather on opposite sides of the street facing one another. Protest signs are waved. Chants are shouted and exchanged. Tears are often shed in the emotional catharsis of ritualized confrontation.

The band halted between the two groups while patriotic music played so sweetly that members of Justice For All (a victims' rights group) felt compelled to spontaneously join in the cheerful and celebratory spirit of boosterism by chanting "Go, Texas Go! Go, Texas Go!"

Their cheers soon petered out, however, silenced by a kind of dazed consternation close on the heels of the realization that somebody was being duped, as a scantily clad troupe of hired cheerleaders accompanying the band began to chant: "Bush, Bush, he's our man, If he can't kill 'em, no one can!" and then "Texas, Texas, you're so great, You kill more than any state!"

While unexpected and downright surreal, I think that marching bands and cheerleaders are just what are needed at Texas executions, which by their nature are dismal, depressing and decidedly anti-photo-op for aspiring politicians large and small.

William F. Buckley would not agree. In one of his tedious and contentious syndicated columns published a few days after Billy's execution, Mr. Buckley took to task all those who would unfairly "badmouth the death penalty..." in general, and anyone in particular, who has the un-American gall and audacity to criticize Gov. George W. Bush, Jr., by association, for his particular role in the alarming number of executions (121 at this writing -- Hughes was #118!) that have been meted out since he came into office.

But George W. Bush, Jr. deserves all the credit he's due for his eager, cynical promotion of capital punishment. True enough, as Mr. Buckley huffed, Gov. Bush's hand isn't "on the needle every time an execution occurs." It doesn't have to be. But that doesn't mean that the Governor's hands are clean.

His nsensitivity towards Karla Faye Tucker's petition for clemency -- supported by Pope John Paul II, the Rev. Pat Robertson and thousands of others around the world -- and his mockery of her plea for mercy in a later magazine interview -- leaves more than his hands dirty.

Mr. Buckley says he believes that Governor Bush's curt response to questions concerning capital punishment (''That is the law!") is enough, and since it's the law, then it shouldn't be questioned.

The implications are obvious. The law, being the law, and being so rigorously applied in Texas somehow qualifies Governor Bush as being competent, desirable, admirable and, damn it man, tough enough to become King of the Hill in Washington come November, even if he was never a POW -- even in Midland, Texas where everyone does hard time.

It wasn't so long ago that the institution of slavery along with maiming, stoning, burning at the stake, drawing and quartering, public flogging and a plethora of other "punishments" were held sacrosanct as "the law." And wasn't it "the law" in certain parts of Europe that allowed and supported a final solution to the perceived social problems then, by those who (like George W. and William F.) were the least likely to be personally affected by them?

I knew Billy Hughes and counted him as a friend. Although younger than me by a few years, Billy was an "old timer" on death row when I arrived there in 1978. He was a role model that anyone could aspire to emulate. We shared in common a number of interests and beliefs and pursuits, including one which hews close to the notion that, no matter what, one must live each day as well as possible, and accomplish whatever you can because of the odds, not in spite of them. I left death row in 1981. Billy stayed for another 19 years until death set him free.

William F. Buckley never met Billy Hughes. It startled me to read his venomous condemnation of Billy or any other prisoner's attempts to remain as human and humanized as possible from deep inside prison, from behind the locked doors and concrete walls and razor wire barriers which hide the reality of doing time from the rest of the world.

Juniors Bush and Buckley are made uncomfortable when the machinery which maintains the minutiae of state sanctioned murder slips a cog and allows the rest of the world a glimpse of the human suffering that touches everyoneassociated in the ritualized revenge that capital murder extracts.

The amorality of the death penalty has long been recognized for what it is throughout Europe and much of the rest of the world. Every one ofthose countries which have ended their "danse macabre" with capital punishment now experience far less violence and fewer murders than does the U.S.

The death penalty is arbitrary in how and to whom it is applied. The death penalty, being racially and economically biased, fails to act as a reliable deterrent. The death penalty is many times more expensive to taxpayers than the cost of a life sentence. The death penalty brings out the worst sentiments of society and does nothing for victims.

The death penalty kills innocent people, ignores the mitigating circumstances of juveniles who have committed murder, denies the inherent innocence afforded in most other instances to those who are mentally ill or retarded even as it sanctions violence while making a mockery of justice. All of this is as obvious as the fallacy of "an eye for an eye" justification for capital punishment, which leaves the whole world blind.

The Bushes and the Buckleys and folks like them ignore the obvious. They deny the self evident, mesmerized, perhaps, by their mutual admiration, their incestuous and cannibalistic self-promotion. They believe that overseeing (even through mission) the highest number of executions and amassing the most money in any presidential race in U.S. is so impressive to the rest of us that life as these self-styled compassionate conservatives know it will go on, relatively undisturbed and forever unchallenged -- not because it's right -- but because it's their destiny.

Maybe so but I hope they're wrong. Dead wrong.

[Philip Brasfield was condemned to death in Texas in 1977. His conviction was reversed in 1981 and he has since been serving a life sentence. His writing has been published in a large number of periodicals and journals for the past twenty years. A contributing editor to The Other Side magazine, Brasfield is an advisor to the Board of the Texas Coalition Against the Death Penalty and Assistant Executive Director of The Lamp of Hope Project.]


Billy George Hughes Jr.

The Huntsville Item

There was little in common between the 2 distinct groups gathered outside the Huntsville "Walls" Unit for the Monday night execution of Billy George Hughes Jr. - one was a group of more than 20 uniformed Texas Department of Public Safety officers, while the other was an almost equally large group of uniformed anti-death penalty cheerleaders chanting phrases such as, "We Kill Convicts, Yes We Do."

Hughes, who maintained his innocence until the end, was executed for the 1976 shooting death of Texas Department of Public Safety Trooper Mark Frederick on Interstate 10 in Sealy as Frederick walked toward Hughes' car to question him about a stolen credit card.

While many DPS officers were on hand for the execution, so were several anti-death penalty personalities, including representatives of the Citizens United for the Rehabilitation of Errants, or CURE organization, who actually witnessed the execution on Hughes' behalf.

There also were several people dressed as cheerleaders leading chants outside the unit. Officials on the scene said it appeared the group was filming an 'anti-Bush' commercial aimed at impeding Gov. George W. Bush's bid for president by attacking his stance on capital punishment. It was unknown who might have been financing the filming.

Inside the unit, when asked if he had any last words, 47-year-old Hughes, who had one of the longest tenures on death row at 24 years, replied simply, "Yes I do," and then began his statement. "I want to tell you all how much I love you all, how much I appreciate everything," he said. "I love you all and my family. I treasure every moment that I have had. I want the guys to know out there not to give up, not to give in, that I hope someday the madness in the system - something will come about, something will be resolved. "I would gladly trade the last 24 years if it would bring back Mark Frederick - give him back his life, give back my father his life and my mother her health," he continued. "All I ask is that I have one day, and all the memories of you and my family and all the things that have happened. "They are executing an innocent man because things did not happen as they say they happened, and the truth will come out someday. I am not the same person I was 24 years ago. Who would have thought it would have taken 24 years to get to this moment? Don't give up, don't give in. If I am paying my debt to society, I am due a rebate and a refund, but I love you all, and you all watch out for Mom and you all keep up, keep going. Thank you, Warden."

Hughes was pronounced dead at 6:18 p.m., 8 minutes after a lethal mixture of drugs began flowing into his arms. Frederick's mother, Pat Teer of Houston, said the fact that Hughes still would claim his innocence was hard to take. "I guess I should expect it but I didn't expect that Mr. Hughes would go out lying like he did," she said, adding that she felt Hughes' statement was 'true to his manipulative character.' "I'll be happy not to hear any more lies," she added.

In a prepared statement, Teer said her family finally will be able to go on. "My son, Trooper 11 Mark Alan Frederick paid the ultimate price of protecting the public when he stopped Billy Hughes on April 4, 1976, and was subsequently murdered," she said. "Tonight, Billy George Hughes Jr. was punished to the full extent of the law after having one of the largest tenures on death row. "After 24 long years, this family has spent vacation time and funds seeking justice, living our worst nightmares over and over and over. Mark can now rest in peace and our nightmares will end knowing that Billy Hughes will not take another life. Teer thanked several people before adding, "I hope and pray that no other family has to go through what we have been through. Mark, justice has been served. God be with you."

Walker County District Attorney David Weeks, who was the prosecuting attorney at Hughes' 2nd trial, also felt Hughes' claims of innocence were inappropriate. "He went out lying," he said. "His story about what happened is not consistent with the facts. "Mr. Hughes has told a number of stories over the years," he continued. "He's a very manipulative individual and to claim that he was innocent tonight was just a final chapter in showing what a manipulative human being he was. If I was going to feel any sympathy for him, I lost it all at that point."

Frederick, 26, had been a trooper for 5 years when he stopped Hughes' car on April 4, 1976. At that time 25 years old, Hughes had served time for various offenses in his home state of Alabama and was wanted for theft by credit card when Hughes stopped him. According to police reports, Hughes shot the trooper in the chest as he approached Hughes car.

Hughes claimed he was reaching for his wallet when the officers shot at him, leading him to fire one shot which struck and killed Frederick. Hughes then fled the scene. A massive manhunt involving as many as 500 police officers soon began, with Hughes being found near Sealy about 2 days later.

Hughes was convicted of the crime in September 1976, but the Texas Court of Criminal Appeals later ruled that a juror had been excluded improperly and overturned the conviction in 1987. He again was sentenced to die in June 1988, along the way filing many unsuccessful appeals that ended with the U.S. Supreme Court rejecting Hughes' bid for help on Monday.

While in prison, Hughes earned two college degrees, developed a comic strip, operated a greeting card business, translated books into braille for the blind and even worked from his cell as a registered legislative lobbyist.


Scripps Howard News Service

01-26-00 - TEXAS:

It was a moment neither could have predicted - a committed Texas death penalty opponent and an equally passionate defender of victims' rights coming together to protest what both saw as a "disgusting display" following an execution.

What provoked Dianne Clements of Justice For All in Houston, a victims' rights group, and David Atwood of the Texas Coalition to Abolish the Death Penalty, was a staged celebration following Billy George Hughes' execution, complete with cheerleaders and a marching band. That performance was set up by a production company working with satirist Michael Moore, best known for "Roger and Me," a documentary film that criticized General Motors executives.

The purpose of the celebration "was to mock executions and to embarrass Texas," said a statement jointly released by groups for and against the death penalty after the Hughes execution Monday. "But in fact it showed great disrespect for Officer Mark Frederick, the murder victim, his family, and for the family of Billy George Hughes, the man executed for Frederick's murder."

Witnesses said that prior to Hughes' execution, groups with opposing views on the death penalty had been conducting respectful vigils outside the walls of the corrections facility in Huntsville, Texas. Then, just after Hughes was executed, pompon waving cheerleaders and several musicians marched down the street between the groups. "It was truly disgusting," said Clements. "They were doing synchronized cheers, and there was some guy without a shirt on, painted blue and wearing a helmet. They were handing out anti-George W. Bush signs and they had a lighted scoreboard counting the number of executions. It was the most vulgar thing you have ever seen."

Atwood had more mixed feelings. "It appeared to be a parody of the death penalty, which I agree with," he said, adding that initially some of the death penalty supporters seemed to join the stunt before realizing it was being filmed. But Atwood said he was ultimately saddened by the pain the event could have caused family members on both sides. "We do have a lot of feeling of compassion for the police officer's family," he said. "This was very disrespectful to the family. I know if I were a family member of the officer I would have felt terrible, and I think it is likely that is how the family felt about it."

Clements said that members of a production company that filmed the escapade had misrepresented themselves and hyped aspects of the event, trying to portray those there to support the officer's family as drunken revelers.

Dave Hamilton, a producer for Moore's cable television show, "The Awful Truth" denied any deception in filming the event. "We did perform a stunt there, with a pep band and cheerleaders," Hamilton said. "This is what our show is, dark satire. It is Swiftian humor."

Hamilton said he "couldn't speculate" on why the antics were disavowed by those in Texas who were protesting the execution. Frederick was 26, and a husband and father when he was shot to death during a traffic stop in April, 1976, by Hughes, a 25-year-old wanted criminal.

Over the next 24 years, Hughes was twice convicted of the crime. During that time he collected two college degrees, wrote a book and a movie script and published cartoons illustrating animal rights and other causes.

Atwood said that despite the methods of the film crew, "I am all for putting Texas and George W. Bush under the spotlight on the death penalty issue." And he said the stunt, however "ignorant and insensitive," had served another purpose. "If there was a positive out of this, for the first time ever the 2 sides on this issue came together on something," he said. Clements agreed that was extraordinary. "To get us on the same page, you know it had to be a revolting display."



No. 98-40171

BILLY GEORGE HUGHES, Petitioner-Appellant

Appeal from the United States District Court

For the Southern District of Texas

October 5, 1999

Before KING, Chief Judge, and HIGGINBOTHAM and DAVIS, CircuitJudges.

HIGGINBOTHAM, Circuit Judge:

Twelve years after the crime, a Texas jury convicted BillyGeorge Hughes of the capital murder of Texas state trooper MarkFrederick and sentenced him to death. See Hughes v. State , 897S.W.2d 285, 288-89 (Tex. Crim. App. 1994). (1)   This was the secondconviction and death sentence for this murder. The jury foundHughes guilty of violating Tex. Penal Code Ann. � 19.03(a)(1),which provides that a person commits capital murder if "theperson murders a peace officer who is acting in the lawfuldischarge of an official duty and who the person knows is a peaceofficer."



On the evening of April 4, 1976, two Texas state trooperspulled over the 1975 Ford LTD Hughes was driving on Interstate 10near Sealy, Texas. See Hughes , 897 S.W.2d at 289. The trooperswere responding to a dispatcher's report that a man driving asimilar car had attempted to use a stolen credit card at a nearbymotel. See id .

After Hughes pulled onto an interstate exit ramp,Trooper Frederick approached the driver's side of the Ford. See id . Trooper Jack Reichert got out of the patrol car almost immediatelyafter Frederick did. See id . Approaching the Ford behindFrederick, Reichert heard a "muffled shot" and saw Frederick"lurch" to the side. Frederick had sustained a fatal wound. Asthe Ford sped away, Reichert shot several times at the car.

An abandoned car with matching description was found severalmiles away. The car had many bullet holes, and its trunk containeda loaded, sawed-off shotgun and several other weapons. Two dayslater, a helicopter approached a field where a suspect wasreportedly seen. The suspect, Hughes, at first pointed a pistol atthe 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 thethree special issues in the affirmative. (2)   First, the jurydetermined that the conduct causing Trooper Frederick's death wascommitted "deliberately." Id . at 289; see Tex. Code Crim. Proc. art.37.071(b)(1) (West 1981). Trooper Reichert was certain thatFrederick had not fired his gun at any time, and there was evidencethat the murder weapon had an unusually hard trigger pull. See Hughes , 897 S.W.2d at 290.

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 id . 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 actsof criminal violence escalated during their marriage; testimony that Hughes was disfellowshipped from his Jehovah's Witnesscongregation for writing bad checks and lying; testimony thatHughes 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, anoffense for which Hughes was on probation at the time of themurder; testimony by an FBI agent who investigated the extortionoffense that he believed Hughes would be a continuing violent threat to society; evidence of Hughes's written plans to rob a bankwith firearms and the large quantity of guns and ammunition foundin 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 thehelicopter 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 affirmedHughes's conviction and sentence in 1994, and the United StatesSupreme Court denied certiorari . See Hughes v. Texas , 897 S.W.2d285 (Tex. Crim. App. 1994), cert. denied , 514 U.S. 1112 (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 28U.S.C. � 2254 habeas petition with 24 claims spread over a 232-page petition. The district court stayed execution.

The district court in a published opinion granted the State'smotion for summary judgment and dismissed Hughes's � 2254 petition. See Hughes v. Johnson , 991 F. Supp. 621 (S.D. Tex. 1998). Thecourt also denied Hughes a certificate of appealability (COA). Hughes timely filed a notice of appeal and applied for a COA inthis court with a supporting brief. The State has filed a brief inresponse.


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 aconstitutional right. See 28 U.S.C. � 2253(c)(2). The issue must be debatable among jurists of reason to proceed further. See Fuller v. Johnson , 114 F.3d 491, 495 (5th Cir.), cert. denied , 118.S. Ct. 399 (1997)



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 , 5U.S. (1 Cranch) 137 (1803), Hughes maintains that the standardsviolate the command of Article III of the Constitution in that theydelegate the "final exercise" of the "judicial power of the UnitedStates" 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 appealfiled on behalf of a death row inmate by the same attorney who hasfiled Hughes's appeal. See Corwin v. Johnson , 150 F.3d 467, 472(5th Cir. 1998). The appeal "must be reviewed in accordance withthis Circuit's interpretations of the AEDPA, as established in Drinkard ." Id .


Hughes has not briefed here several claims made below: that the trial court erred in instructing the jury as to the meaning o fthe 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 violation of the fourth Amendment; and that the trial courtviolated his constitutional rights by sustaining the prosecution's challenge of a veni remember for cause. Issues not raised in the brief filed in support of Hughes's COA application are waived. See Moawad v. Anderson , 143 F.3d 942, 945 n.1 (5th Cir. 1998).


Hughes brings us eleven issues, and we will address each inturn. (4)  


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.


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.


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 , 512 161-62.

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.


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.


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.


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).


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:


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."

. . .


You are instructed that you should answer "No" to any ofthe foregoing Special Issues if at least ten (10) or morejurors find and believe, based upon the evidencepresented to you in this case, that the Defendant'scharacter or record or any of the circumstances of theoffense mitigate against the imposition of the deathpenalty 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 , 897 S.W.2d at298-300. 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 alleged mental and emotional impairment within the scope of the special issues, as required by Penry . See id . at 299-300.

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 , 991 F. Supp. at 632; see, e.g. , Jurek , 428 U.S. at 275-76; Franklin v. Lynaugh , 487 U.S.164, 182 (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 thetrial 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 , 993 F. Supp. 473, 492 n.93 (W.D. Tex. 1998).

We have rejected similar claims. See, e.g. Jacobs v. Scott ,31 F.3d 1319, 1328 (5th Cir. 1994). In Mills v. Maryland , 486 U.S.367, 384 (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 id . 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 id . 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 , 31 F.3d at 1329. 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 tothe special issues. Moreover, art. 37.071(e) required the court to sentence the defendant to life imprisonment if the jury was unableto 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.

(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 jurorsagree gave jurors "virtually unlimited" discretion to rejectmitigating evidence.

This argument invokes the "technical parsing" of language against which the Supreme Court has cautioned in the context ofreviewing jury instructions. See   Johnson , 509 U.S. at 368. If the instruction is analyzed with the "commonsense understanding of theinstructions in the light of all that has taken place at thetrial," 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  28 U.S.C. � 2254(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 tothe three special issues, but also concluded that mitigating evidence compelled a "life-sparing decision." Citing Penry , 492U.S. at 326, Hughes suggests that the charge failed to provide the 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 ofthe special issues if at least 10 or more jurors determined that, "based upon the evidence . . . the Defendant's character or recordor 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 tothat mitigating evidence in the first special issue addressing whether the shooting was "deliberate." See   Lucas , 132 F.3d at 1082(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 aproblem at the time of the shooting. Rather, he urged that he hadbeen rehabilitated during his twelve years in prison. We thus reject his claim.


Relying on United States v. Gaudin , 515 U.S. 506 (1995),Hughes argues that the trial court violated his constitutionalright to have the jury render a verdict on each and every elementof the offense, when the court effectively instructed the jury thatMark Frederick was a "peace officer acting in the lawful discharge 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, theSupreme Court held that "the Constitution gives a criminaldefendant the right to demand that a jury find him guilty of allthe elements of the crime with which he is charged." United Statesv. Hebert , 131 F.3d 514, 521-22 (5th Cir. 1997) (quoting Gaudin ,515 U.S. at 510-12), cert.   denied , 118 S. Ct. 1571 (1998).

Before Gaudin , it was established that a State was required toprove each and every element of an offense charged and to persuadethe fact finder beyond a reasonable doubt of the facts necessary to establish each of those elements. See Sullivan v. Louisiana , 508U.S. 275, 277-79 (1993); see also   In re Winship , 397 U.S. 358, 364(1970). A judge may not direct a verdict of guilty in a criminalcase no matter how conclusive the evidence. See Connecticut v.Johnson , 460 U.S. 73, 84 (1983).

The Texas Court of Criminal Appeals did not specificallyaddress this claim, instead focusing on another aspect of Hughes's "peace officer" claim: that Frederick was not in fact acting inhis duty as a "peace officer" because the stop of Hughes's car was unlawful. See   Hughes , 897 S.W.2d at 297-98. 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 , 991 F. Supp. at 633.

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 thatthe said Mark A. Frederick was a peace officer, then you will find the defendant, Billy George Hughes, Jr., guiltyof 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 areasonable 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 inthe 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, inorder to convict Hughes of capital murder, it was required to findthat the victim was a "peace officer acting in the lawful dischargeof an official duty."

When reviewing a challenged jury instruction under � 2254,the Supreme Court has directed that "'[t]he only question . . . iswhether the ailing instruction by itself so infected the entiretrial that the resulting conviction violates due process.'" Weeksv. Scott , 55 F.3d 1059, 1065 (5th Cir. 1995) (quoting Estelle v.McGuire , 502 U.S. 62, 72 (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 , 502 72 (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 theConstitution." Id . (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.


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 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 , 447 U.S. 625(1980), in support of this claim.

Contrary to what Hughes says, these instructions imply adefendant 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, orrisked 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 , 897 S.W.2d at297. That court determined that the "concurrent causation" charge was erroneous because no real issue of concurrent causation was presented by the evidence. Id . 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 thattheory to the facts of the instant case." Id .

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 , 502 U.S. at 71-72. The controlling question is "whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process." Id . at72 (citation and internal quotation marks omitted). As the Court of Criminal Appeals reasoned, it is highly unlikely that the juryin Hughes's case misapplied the erroneously included instruction, because no factual question of concurrent causation was presentedby the trial evidence. See   Hughes , 897 S.W.2d at 297. Accordingly, no due process violation could have resulted from the instruction's inclusion in the overall charge.


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"any single juror" on "any single mitigating circumstance." Herelies primarily on McKoy v. North Carolina , 494 U.S. 433 (1990),and Mills v. Maryland , 486 U.S. 367 (1988), for the proposition that any death-sentence system that prevents a single juror fromeffecting 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 atleast 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 , 897 S.W.2d at 300-01. The court stressed that the death-sentencing scheme atissue in McKoy violated the Constitution because it "prevented the jury from considering any mitigating factor it did not unanimously find." Id . (emphasis added). In contrast, the Texas scheme "does not require jurors to agree on the same mitigating evidence." Id . 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." Id .

We have read McKoy in a similar fashion. In Jacobs , we observed that "[t]he law in Texas is completely different from thatin Mills ." Jacobs , 31 F.3d at 1328. The system at issue in Mills did not permit the jury to leave the mitigating-circumstances issue blank and proceed to the next issue; only a unanimous decision onthe issue of mitigating circumstances could spare a defendant from death row. See   Mills , 486 U.S. at 378. 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 , 31 F.3d at 1329. 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.


Hughes speculates that the prosecution withheld exculpatory evidence in violation of Brady v. Maryland , 373 U.S. 83 (1963) and Kyles v. Whitley , 514 U.S. 419 (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" (emphasisadded). 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 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 , 373 U.S. at 87-88. Exculpatory evidence as well as impeachment evidence falls underthe Brady rule. See Giglio v. United States , 405 U.S. 150, 154(1972). Evidence is material when a reasonable probability exists that its disclosure would have caused a different outcome at trial. United States v. Bagley , 473 U.S. 667, 674-75 (1985). If the nondisclosure could put the case in a completely different light soas to undermine confidence in the outcome of the proceeding, the defendant will have demonstrated the reasonable probability necessary under this test. See Kyles , 514 U.S. at 434. Materiality is judged according to the cumulative effect of all the undisclosed evidence. See id . at 436.

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 aninvestigation revealed exculpatory facts. Such speculation doesnot support a Brady claim. See   United States v. Pretel , 939 F.2d233, 240 (5th Cir. 1991).

Nor is Hughes entitled to an evidentiary hearing. "When thereis 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 federalhabeas corpus petitioner is entitled to discovery and an evidentiary hearing." Goodwin v. Johnson , 132 F.3d 162, 178 (5thCir. 1998). Hughes's conclusory allegations, however, are not sufficient to require an evidentiary hearing. See Harris v.Johnson , 81 F.3d 535, 540 (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.



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.

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 duringthe penalty phase, allegedly based on a 1976 examination of Hughes conducted without the presence of counsel in violation of Estellev. Smith , 451 U.S. 454 (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 wouldc ommit criminal acts of violence that would constitute a continuing threat to society.

5. Whether the Texas Court of Criminal Appeals erred in refusingto consider mitigating evidence "independently."

6. Whether the jury's reliance on information that was at least 12years 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 ,492 U.S. 302 (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 with held exculpatory evidence inviolation of Brady v. Maryland , 373 U.S. 83 (1963).

5.   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 toreview a claim for collateral relief, . . . [t]he presumption of adequacy can berebutted . . . if the state's procedural rule is not strictly or regularly followed." Sones , 61 F.3d at 416 (internal quotation marks and citationsomitted). "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 , 61 F.3d333, 339 (5th Cir. 1995).

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



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