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



                    EX PARTE PRESTON HUGHES III, Applicant



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


       ALCALA , J., filed a concurring statement in which JOHNSON , J., joins.

                                 CONCURRING OPINION

       I join the Court’s decision dismissing applicant’s second claim. However, I concur

only in the Court’s denial of his first claim because I disagree with the Court’s rationale as

to that claim. The Court denies that claim by holding that “applicant is not constitutionally

entitled to a separate jury instruction at the punishment phase of trial” because 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.” Although I agree with the Court

that relief should be denied, I conclude, for the reasons set forth in my dissenting opinion in
                                                                      Hughes Concurrence - 2

Ex parte Williams, that the trial court should have separately instructed the jury to consider

mitigation evidence. See Ex parte Williams No. AP-76,455, 2012 Tex. Crim. App. Unpub.

LEXIS 594, *81-85 (Tex. Crim. App. June 13, 2012) (not designated for publication)

(Alcala, J., dissenting). But, unlike Williams, applicant has not presented evidence showing

a reasonable probability that a juror, if able to give a reasoned moral response to the

mitigating evidence, would have recommended a sentence of life rather than death. Compare

id. at *90-91 (citing Abdul-Kabir v. Quarterman, 550 U.S. 233, 262 (2007)).

       Applicant presents certain evidence that could be considered mitigation evidence that

would warrant a separate mitigation instruction. His evidence shows that he was twenty-two

years old at the time of the offense, a high school graduate, employed, friendly, and a

responsible person who could be trusted to care for young children. This is positive-character

evidence that would warrant a separate mitigation instruction. See Franklin v. Lynaugh, 487

U.S. 164, 186 (1988) (O’Connor, J., concurring) (“Evidence of voluntary service, kindness

to others, or of religious devotion might demonstrate positive character traits that might

mitigate against the death penalty.”).

       Although the separate mitigation instruction should have been given, the slight

mitigative value of applicant’s evidence is overwhelmed by the extensive aggravating

evidence contained in the record in this case. Unlike Williams, I cannot conclude that there

is a reasonable probability that this sentencing jury would have been affected by this minimal

mitigation evidence. Compare Williams, No. AP-76,455, 2012 Tex. Crim. App. Unpub.
                                                                         Hughes Concurrence - 3

LEXIS 594, at *85-91.

       Applicant suggests that the evidence at his trial showed his remorse for the offense,

but the evidence is inconsistent with that characterization. The evidence shows he was sorry

that the “two kids in this case were killed,” but that he did not express remorse for his actions

in causing their death. Because applicant failed to admit his criminal conduct and express

personal remorse for his actions, no mitigation instruction was warranted for his passing

comments about the death of the victims. Applicant’s comments, therefore, are unlike the

statements by the applicant in Williams, who did express personal remorse for his role in

causing the death of the victim police officer. Compare id. at *79, *87-88.

       With these comments, I concur in the Court’s decision to deny applicant’s requested

relief with respect to his first claim.

                                                           Alcala, J.

Filed: August 29, 2012

Do Not Publish
