Hughes v. Johnson

• Decision Date: 05 October 1999
• Docket Number: No. 98-40171,98-40171
• Citation: 191 F.3d 607
• Parties: (5th Cir. 1999) BILLY GEORGE HUGHES Petitioner-Appellant v. GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,INSTITUTIONAL DIVISION Respondent-Appellee
• Court: U.S. Court of Appeals — Fifth Circuit

Page 607

191 F.3d 607 (5th Cir. 1999)

BILLY GEORGE HUGHES Petitioner-Appellant v. GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,INSTITUTIONAL DIVISION Respondent-Appellee

No. 98-40171

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

October 5, 1999

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

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

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

HIGGINBOTHAM, Circuit Judge:

Twelve years after the crime, a Texas jury convicted Billy George Hughes of the capital murder of Texas state trooper Mark Frederick and sentenced him to death. See Hughes v. State, 897 S.W.2d 285, 288-89 (Tex. Crim. App. 1994). ¹ This was the second conviction and death sentence for this murder. The jury found Hughes guilty of violating TEX. PENAL CODE ANN. 19.03(a)(1), which provides that a person commits capital murder if "the person murders a peace officer who is acting in the lawful discharge of an official duty and who the person knows is a peace officer."

I.

A.

On the evening of April 4, 1976, two Texas state troopers pulled over the 1975 Ford LTD Hughes was driving on Interstate 10 near Sealy, Texas. See Hughes, 897 S.W.2d at 289. The troopers were responding to a dispatcher's report that a man driving a similar car had attempted to use a stolen credit card at a nearby motel. See 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 immediately after Frederick did. See id. 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 convicted, and at the punishment phase answered the three special issues in the affirmative. ² First, the jury determined that the conduct causing Trooper Frederick's death was committed "deliberately." Id. at 289; see TEX. CODE CRIM. PROC. art. 37.071(b)(1) (West 1981). Trooper Reichert was certain that Frederick had not fired his gun at any time, and there was evidence that the murder weapon had an unusually hard trigger pull. See Hughes, 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 acts of criminal violence escalated during their marriage; testimony that Hughes was disfellowshipped from his Jehovah's Witness congregation for writing bad checks and lying; testimony that Hughes threatened to kill a church elder who sat in on the disfellowship proceedings; that Hughes had been convicted for a federal extortion offense in which he made several bomb threats, an offense for which Hughes was on probation at the time of the murder; testimony by an FBI agent who investigated the extortion offense that he believed Hughes would be a continuing violent threat to society; evidence of Hughes's written plans to rob a bank with firearms and the large quantity of guns and ammunition found in Hughes's car trunk; testimony by Hughes's own witness, a prison warden who stated that Hughes was a "con man"; testimony by an assistant prison warden that Hughes was manipulative, dangerous, and violent; testimony that Hughes aimed his pistol at the helicopter just before his surrender.

On direct appeal, Hughes raised 55 points of error. Many of the claims were stated separately under both the Federal and Texas Constitutions. The Texas Court of Criminal Appeals affirmed Hughes's conviction and sentence in 1994, and the United States Supreme Court denied certiorari. See Hughes v. Texas, 897 S.W.2d 285 (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 28 U.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's motion for summary judgment and dismissed Hughes's 2254 petition. See Hughes v. Johnson, 991 F. Supp. 621 (S.D. Tex. 1998). The court also denied Hughes a certificate of appealability (COA). Hughes timely filed a notice of appeal and applied for a COA in this court with a supporting brief. The State has filed a brief in response.

B.

Hughes filed his federal habeas application in September 1997, after the April 24, 1996 effective date of the Antiterrorism and Effective Death Penalty Act (AEDPA), and is required to obtain a COA before proceeding with his appeal. A COA will be granted only if Hughes makes a substantial showing of the denial of a constitutional right. See 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).

II.

A.

Before proceeding to the substantive claims, we treat Hughes's contention that the standards of review prescribed by the AEDPA are unconstitutional. Wrapping his argument in Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), Hughes maintains that the standards violate the command of Article III of the Constitution in that they delegate the "final exercise" of the "judicial power of the United States" to decide federal constitutional issues to state court. He argues that this review process "guts the Supremacy Clause" by giving conclusive effect to state court decisions on constitutional questions in an Article III case or controversy. The argument continues that these constitutional questions should be reviewed de novo by federal courts.³

We recently rejected the same arguments in a 2254 appeal filed on behalf of a death row inmate by the same attorney who has filed Hughes's appeal. See Corwin v. Johnson, 150 F.3d 467, 472 (5th Cir. 1998). The appeal "must be reviewed in accordance with this Circuit's interpretations of the AEDPA, as established in Drinkard." Id.

B.

Hughes has not briefed here several claims made below: that the trial court erred in instructing the jury as to the meaning of the words "intentionally" and "knowingly"; that the jury's finding regarding his use of a deadly weapon violated the Ex Post Facto Clause; that the prosecution made several improper jury arguments during the trial's punishment phase; that the trial court improperly denied his motion to suppress evidence seized in violation of the fourth Amendment; and that the trial court violated his constitutional rights by sustaining the prosecution's challenge of a veniremember for cause. Issues not raised in the brief filed in support of Hughes's COA application are waived. See Moawad v. Anderson, 143 F.3d 942, 945 n.1 (5th Cir. 1998).

C.

Hughes brings us eleven issues, and we will address each in turn.⁴

1.

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

He observes that at the penalty phase, the State called a psychiatrist, Dr. John Nottingham, as a rebuttal witness. Dr. Nottingham had examined Hughes following the offense in 1976 and had concluded that he was legally sane. On cross-examination, Dr. Nottingham testified that he did not know what the Texas legislature meant when it used the word "probability" in drafting the second special issue regarding "future dangerousness," Hughes's counsel having suggested that it meant "more likely than not." Dr. Nottingham declined to "put a number on it." Responding to the defense counsel, he then added that when he used the term, it means "any probability."

Hughes concedes that a Texas trial court ordinarily is not required to define the word "probability" in the context of the second special issue, but he argues that Dr. Nottingham's "misinterpretation" of the word possibly gave the jury an erroneous view of the law that the trial court was required to correct in its instructions. Hughes also concedes that the Texas Court of Criminal Appeals deemed this claim barred by Hughes's failure to advance a procedurally correct objection to the charge. He maintains that, under TEX. CODE CRIM. P. art. 36.15, no particularized objection is required as long as the defendant offers "special requested instructions" to call the trial court's attention to the alleged error. He asserts that he requested exactly such an instruction.

In rejecting a similar claim by Hughes on direct appeal, the Court of Criminal Appeals determined that Hughes had failed to preserve error on this issue because he "made no objection to the court's refusal to define 'probability' based on Nottingham's allegedly erroneous definition," but he instead objected only that the "term was unconstitutionally vague and that without guidance the jury was left to speculate as to the meaning of the term." See Hughes, 897 S.W.2d at 301-02.

The district court concluded, and the state now argues, that this claim was procedurally defaulted, based...