             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                       NO. AP-76,869



                           EX PARTE PRESTON HUGHES, III



  ON APPLICATION FOR POST-CONVICTION WRIT OF HABEAS CORPUS
       FROM CAUSE NO. 511676-C IN THE 174TH DISTRICT COURT
                        HARRIS COUNTY

         Per Curiam. A LCALA, J., filed a concurring opinion in which J OHNSON, J.,
joins.

                                        OPINION

         This is a subsequent application for writ of habeas corpus filed pursuant to the

provisions of Texas Code of Criminal Procedure Article 11.071, § 5.

         In May 1989, a jury found applicant guilty of the offense of capital murder. The jury

answered the special issues submitted pursuant to Texas Code of Criminal Procedure Article

37.071, and the trial court, accordingly, set applicant’s punishment at death. On original

submission on direct appeal, this Court reversed applicant’s conviction. However, on

rehearing, the Court affirmed applicant’s conviction and sentence. Hughes v. State, 878
                                                                                  Hughes - 2

S.W.2d 142 (Tex. Crim. App. 1993)(op. on reh’g). Applicant filed his initial post-conviction

application for writ of habeas corpus in the convicting court on October 21, 1990. This Court

denied applicant relief. Ex parte Hughes, No. WR-45,876-01 (Tex. Crim. App. Sept. 13,

2000)(not designated for publication). Applicant’s first subsequent habeas application was

filed in the trial court on April 24, 2001, and this Court dismissed it on November 14, 2001.

Ex parte Hughes, No. WR-45,876-02 (Tex. Crim. App. Nov. 14, 2001)(not designated for

publication). This, applicant’s second subsequent habeas application, was filed in the trial

court on July 3, 2012, and received by this Court on July 25, 2012.

       In his application, applicant raises two claims. Applicant’s second claim, which is no

more than a sufficiency of the evidence claim, is dismissed. In his first claim, applicant

asserts that this Court should reverse his sentence and remand his case for a new punishment

trial “in light of recent Supreme Court decisions impacting mitigation evidence that was

presented at trial but could not have been given full effect under prior law.” Because the law

regarding mitigating evidence has further developed since applicant filed his last habeas

application, we have filed and set this claim.

       In Ex parte Smith, this Court explained:

               The United States Supreme Court has established two key principles
       that guide the process by which a jury may assess the death penalty. First,
       while the death penalty is not per se cruel and unusual punishment in violation
       of the Eighth Amendment, a jury’s discretion to assess the death penalty “must
       be suitably directed and limited so as to minimize the risk of wholly arbitrary
       and capricious action.” Second, the jury must be provided a vehicle by which
       to fully consider and give effect to mitigating evidence of “the character and
       record of the individual offender and the circumstances of the offense.”
                                                                                   Hughes - 3


              With respect to the second principle, the Supreme Court has held that
       the mitigating evidence must first be relevant. Relevant evidence in this
       context is “evidence which tends logically to prove or disprove some fact or
       circumstance which a fact-finder could reasonably deem to have mitigating
       value.” A vehicle need not be provided when the evidence has “only a tenuous
       connection–‘some arguable relevance’–to the defendant’s culpability,” but
       only when the evidence “may have meaningful relevance to the defendant’s
       moral culpability ‘beyond the scope of the special issues.’” [Abdul-Kabir v.
       Quarterman, 550 U.S. 233, 253 n. 14 (2007).] Once this “low threshold for
       relevance” is met, the jury must be provided an adequate vehicle by which to
       fully consider and give effect to the evidence.

              At the time [Smith] was sentenced, the jury was required to answer
       special issues of deliberateness, future dangerousness, and, if raised by the
       evidence, provocation. The Supreme Court found that these special issues
       adequately directed and limited the jury’s discretion. But if a defendant
       presented relevant mitigating evidence that was outside the scope of the
       special issues, or that had an aggravating effect when considered within the
       scope of the special issues, the special issues were a constitutionally
       inadequate vehicle for the jury to fully consider and give effect to the
       mitigating evidence.

(Footnotes omitted.) Smith, 309 S.W.3d 53, 55-6 (Tex. Crim. App. 2010).

       As in the Smith case, applicant’s jury was required to answer special issues of

deliberateness, future dangerousness, and, if raised by the evidence, provocation. However,

unlike the mitigation evidence presented in Smith, the evidence in the instant case is not two-

edged. All of the evidence applicant presented consisted of good behavior/good character

evidence. Both the United States Supreme Court and this Court have said that this type of

evidence can be given effect by answering the future dangerousness issue “no.” The

evidence is not outside the scope of the special issues given, nor does it have an aggravating

effect when considered within the scope of the special issues. Thus, applicant is not
                                                                                   Hughes - 4

constitutionally entitled to a separate jury instruction at the punishment phase of trial. See,

e.g., Penry v. Lynaugh, 492 U.S. 302 (1989), and Ex parte Jones, No. AP-75,896 (Tex. Crim.

App. June 10, 2009)(not designated for publication)(holding that youth and positive personal

characteristics are the sorts of evidence which can be considered within the scope of the

former special issues – no Penry issue required). Accordingly, the relief applicant seeks is

denied.




Delivered: August 29, 2012
Do Not Publish
