Executed November 15, 2012 7:52 p.m. CDT by Lethal Injection in Texas
40th murderer executed in U.S. in 2012
1317th murderer executed in U.S. since 1976
15th murderer executed in Texas in 2012
492nd murderer executed in Texas since 1976
(Race/Sex/Age at Murder-Execution)
(Race/Sex/Age at Murder)
Preston Craig Hughes III
B / M / 22 - 46
B / F / 15
B / M / 3
Hughes v. State, 878 S.W.2d 142 (Tex.Crim.App. 1992). (Direct Appeal) (On Rehearing)
Hughes v. Quarterman, 530 F.3d 336 (5th Cir. 20008). (Federal Habeas)
Texas no longer offers a special "last meal" to condemned inmates. Instead, the inmate is offered the same meal served to the rest of the unit.
"You know I'm innocent and I love you both. Please continue to fight for my innocence even though I'm gone. Give everybody my love. Bye. OK Warden."
Texas Department of Criminal Justice - Executed Offenders
Preston Hughes III
Date of Birth: 12/24/65
Date Received: 05/17/89
Education: 12 years
Occupation: warehouse worker
Date of Offense: 09/26/88
County of Offense: Harris
Native County: Erie County, NY
Hair Color: Black
Eye Color: Brown
Height: 5' 11"
Prior Prison Record: No prison record, but Hughes was on probation for aggravated sexual assault of a child and aggravated assault at the time he committed capital murder. He is now serving two life sentences for those offenses.
Summary of Incident: Convicted n the September 1988 stabbing deaths of 15 year old Shandra Charles and her 3 year old cousin Marcell Taylor. The two victims were found lying on a dirt path behind a Houston restaurant. Charles was still alive and told police that "Preston tried to rape me." Lab tests later revealed that the girl had been raped. The girl's dying statement led police to an apartment complex at the end of the dirt path. Hughes was the only preston living there, and police found the girl's eyeghlasses in the apartment and evidence of blood on his clothing. Hughes gave two statements to police before finally admitting to the murders. Both victims died of stab wounds.
Texas Attorney General
Tuesday, November 13, 2012
Media Advisory: Preston Hughes III scheduled for execution
AUSTIN – Pursuant to a court order by the 174th District Court of Harris County, Preston Hughes III is scheduled for execution after 6 p.m. on November 15, 2012. In 1989, a Harris County jury found Hughes guilty of murdering fifteen-year-old Shandra Charles and three-year-old Marcell Taylor, during the course of the same criminal transaction.
FACTS OF THE CASE
The United States Court of Appeals for the Fifth Circuit described the facts surrounding the murder of Shandra and Marcell as follows: At Hughes’s 1989 trial, the State presented evidence that Hughes stabbed both of the victims in the neck and chest, severing their aortas and jugular veins. When the police arrived at the scene, Shandra Charles was still alive. She told a police officer that a man named “Preston” had stabbed her after trying to rape her. The police officers went to an apartment complex near the vacant field in which the victims were found. The manager of the complex gave them a list of tenants. The only tenant named “Preston” was the petitioner. The police officers went to Hughes’s apartment around 2:30 a.m. He agreed to accompany the officers to the police station, where he later gave two written statements in which he admitted that he had stabbed both of the victims.
In the first statement, Hughes said that he had been carrying a knife with him because some people had been talking about trying to kill him. He said that, as he was walking home through the vacant field, someone came up behind him and touched him on the shoulder. He said he turned and “just started sticking with the knife.” It was dark, and he could not tell who was there, but after he “stuck the first two times,” he saw that it was Shandra Charles (Hughes called her “Shawn”). He said, “I was ‘f***ed up and I just got scared and kept sticking.’”
In the second statement, Hughes said “Shawn” did not come up behind him and tap him on the shoulder, as he had said in his first statement. Instead, he said that he saw her walking with a little boy. He said that when they met in the middle of the trail through the field, she told him that she was on her way to his apartment to borrow his contact lenses. When he told her that she was not going to wear his contacts, he said that she kissed him, and then started rubbing [him]. He described in detail the events that occurred next. Suffice it to report that he said heavy sexual activity followed, which became unsatisfactory to Hughes. When “Shawn” demanded money, he refused. She threatened to accuse him of rape and when she hit him, he pulled his knife and began stabbing her. The little boy with “Shawn” looked up at him and started crying. When the boy ran between Hughes and “Shawn,” Hughes stabbed him several times.
At the guilt-innocence phase of the trial, Hughes took the stand in his own defense. He denied that he killed the victims, claimed that he was framed by the police, and testified that he confessed to the crimes only because the police officers struck him and threatened him, causing him to fear for his life. The jury found him guilty of capital murder.
On November 16, 1988, a Harris County grand jury indicted Hughes for the capital murder of Shandra Charles and Marcell Taylor.
On May 3, 1989, a Harris County jury convicted Hughes of capital murder. After a separate punishment proceeding, the jury sentenced Hughes to death on May 4, 1989.
On June 23, 1993, Hughes’s conviction and sentence were affirmed by the Court of Criminal Appeals of Texas on direct appeal. The Supreme Court of the United States denied Hughes’s petition for writ of certiorari on June 6, 1994.
Hughes then filed an application for habeas corpus relief, which was denied by the Court of Criminal Appeals on September 13, 2000.
Hughes filed a second application for habeas corpus relief, which was dismissed on November 14, 2001.
On November 21, 2001, Hughes filed a petition for writ of habeas corpus in the U.S. District Court for the Southern District of Texas, Houston Division. The federal district court denied Hughes’s petition on May 3, 2004.
The United States Court of Appeals for the Fifth Circuit rejected Hughes’s appeal on June 5, 2008, and affirmed the denial of habeas corpus relief by the district court.
Hughes filed a petition for writ of certiorari in the U.S. Supreme Court, but the high court denied certiorari review on May 18, 2009.
On July 3, 2012, Hughes filed his third application for habeas corpus relief in state court. The Court of Criminal Appeals dismissed, in part, and denied, in part, the application on August 29, 2012.
On October 29, 2012, Hughes filed a motion in federal district court for relief from that court’s judgment denying habeas relief and a motion requesting that the court stay his execution. The court denied those motions on November 7, 2012.
Hughes filed a petition for writ of certiorari with the United States Supreme Court on October 13, 2012 appealing the state court’s rejection of his third application for habeas corpus relief. That petition remains pending.
On July 18, 2012, the 174th state district court scheduled Hughes’s execution for November 15, 2012.
Hughes filed a civil lawsuit in the 127th district court of Harris County seeking a stay of execution. On October 3, 2012, the Court of Criminal Appeals issued a writ of prohibition ordering that the district court judge refrain from issuing any order purporting to stay Hughes’s execution. The lawsuit remains pending.
On October 31, 2012, Hughes filed his fourth application for habeas corpus relief in state court. That application remains pending.
PRIOR CRIMINAL HISTORY
Under Texas law, the rules of evidence prevent certain prior criminal acts from being presented to a jury during the guilt-innocence phase of the trial. However, once a defendant is found guilty, jurors are presented with information about the defendant’s prior criminal conduct during the second phase of the trial, which is when they determine the defendant’s punishment.
During the penalty phase of Hughes’s trial, jurors learned that Hughes had previously sexually assaulted a thirteen-year-old female and later threatened her with a gun to prevent her from testifying against him about the sexual assault. At the time of Hughes’s capital murder trial, he was serving two ten-year terms of probation for aggravated sexual assault and aggravated assault arising out of those incidents. The jury also learned that Hughes had been charged with first degree sexual assault of a sixteen-year old female in Buffalo, New York, but the charge was dropped after the victim did not appear in court.
Texas Execution Information Center by David Carson.
Preston Craig Hughes III, 46, was executed by lethal injection on 15 November 2012 in Huntsville, Texas for the murder of a 15-year-old girl and her 3-year-old cousin.
At about 11:30 p.m. on Sunday, 26 September 1988 in Houston, a Fuddrucker's restaurant employee flagged down Houston Police Officers Cook and Becker, who were in the vicinity, and alerted them that he found a female laying in the field behind the restaurant. A dirt path through the high weeds led from Fuddrucker's to the Lakehurst apartment complex. The officers proceeded down the path and found Shandra Charles, 15, laying face down, bleeding from the neck. In their report, they noted she was "breathing deep but was unconscious." They then spotted 3-year-old Marcell Taylor, who was dead. He had large stab wounds on his chest and neck and was covered with blood.
Sergeant Hamilton arrived about ten minutes later. According to his report, he asked Shandra if she wanted to roll over onto her back. She replied that she did, and he helped her do so. He then observed that she was also bleeding from the upper chest. He noticed that her shorts were unbuttoned, unzipped, and partly pulled down, and her underwear were also partly pulled down. He asked her what happened. "He tried to rape me," she answered. Hamilton asked, "Who tried to rape you?" She answered "Preston" and said that she knew him. Hamilton asked Shandra to say Preston's last name, but he didn't understand her answer. He asked if she knew where Preston lived. Hamilton thought here answer sounded like "Lakeside". Hamilton could tell that her speech was becoming more slurred and less understandable. He asked if she was alone. According to Hamilton's report, she "then became upset and began stating, 'where is [what sounded like Marshell or Marchell],'" her cousin. Shandra was pronounced dead on arrival at the hospital.
The police went to the Lakehurst apartments and asked the manager for a list of tenants. The only tenant named Preston was Hughes, then 22. They went to his apartment around 2:30 a.m. Hughes went with them to the police station. He gave a statement in which he admitted stabbing Shandra. He said that he had been carrying a knife with him because a man whose wife he had slept with had threatened to kill him. He said he left his apartment at 10:30 p.m. to walk his dog, taking the path to Fuddrucker's. When he got there, he turned around and began walking back home, but he ordered his dog to go ahead without him "to see if she knew the way." As he was walking down the path, someone came up behind him and touched him on the shoulder. He turned and "just started sticking with the knife." He could not tell who was there because of the darkness. After the first two strikes, he saw that he was stabbing Shandra Charles. He then said, "I was [messed] up and I just got scared and kept sticking."
Sergeants Ferguson and Yanchak conducted a search of Hughes' apartment. They recovered a pair of eyeglasses which were stuffed between some couch cushions. They also recovered a knife, a pair of blue jeans, and three shirts. Ferguson and Yanchak then interviewed Shandra's friend, Evelyn Brown, who was with her shortly before her murder. Brown told them that Shandra had visited Hughes' apartment in the past, and he would make sexual advances toward her. She said she told Shandra several times to stay away from him. The sergeants, realizing that Hughes' confession made no mention of Marcell, decided to question him again. In his second statement, Hughes said he saw Shandra, who he called Shawn, walking with a little boy toward him on the path through the field. When they met in the middle, Shawn told him that she was on her way to his apartment to borrow his contact lenses. He told her that she could not wear his contacts. She then kissed him and started rubbing his crotch. She unbuttoned his jeans and unzipped her shorts, and exposed both of their genitals. They rubbed against each other, but did not have intercourse. When his penis caught on her zipper, he abruptly stopped the activity. Shawn then asked him for $50, but he refused. She then threatened to accuse him of rape and hit him. He hit her back, and she tried to hit him again. He then pulled his knife and began stabbing her. Her little cousin then looked up at him and started crying. When the boy ran between Hughes and Shawn, Hughes stabbed him several times.
At Hughes' trial, Evelyn Brown testified that she was with Shandra and Marcell on the night of the murders. They went to an apartment complex where Shandra's mother was visiting a friend. Shandra's mother asked her to go to the store. Shandra, Marcell, and Brown then went to the Lakehurst apartments, where Brown was going to find a ride home from some friends. Shandra was planning to walk across the field to the store, taking Marcell with her. Brown last saw Shandra at about 9:45 p.m. Brown testified that the glasses found in Hughes' apartment were Shandra's and that she was wearing them when she last saw her. They were nonprescription, with clear lenses, and Shandra wore them as a fashion accessory. She also testified that she knew Shandra well and they spent much of their free time together, and she did not believe Shandra was sexually active.
The defense cross-examined Brown to show that the glasses found in Hughes' apartment could merely have been a pair that looked like Shandra's. Brown testified that the glasses under discussion were cheap, common, and easy to find in several local stores. A woman who lived with Hughes in 1988 and another who was his girlfriend testified that Hughes and Shandra knew each other well as friends, and that she came over to his apartment frequently to "curl her hair or iron her clothes or listen to his stereo" because her mother didn't have electricity in her home. Both women said they didn't believe Hughes and Shandra had any kind of romantic or sexual relationship.
James Bolding of the Houston Crime Lab testified that a vaginal swab taken from Shandra Charles' body confirmed the presence of semen, but the sample was insufficient to provide a blood type. He also testified that the knife and some of the clothing recovered from Hughes' apartment tested positive for the presence of blood. On cross-examination, he stated that the test did not distinguish between human and animal blood, nor did it indicate how long the blood had been there.
Hughes' lawyers argued that he was uninvolved in the killings and that the police obtained his confessions by beating and threatening him and causing him to fear for his life. They argued that the search of his apartment was illegal and that the police forged Hughes' signature on documents and mishandled physical evidence.
Mikal Klumpp testified that he was Hughes' probation officer at the time of the killings. On 27 September 1988 at about 7:30 a.m., he received a call from Hughes, informing him that he was at the police station, being questioned regarding the stabbing deaths of a "girl and a little boy" and that he had given the police a statement. The account Hughes gave to Klumpp on the phone followed his first confession, wherein he stated he felt a tap on his shoulder and began stabbing blindly out of fear. Klumpp testified that Hughes did not mention any mistreatment or threats by the police or any kind of coercion to sign a false confession. "In fact," Klumpp testified, "it surprised me that he seemed surprisingly calm."
Elizabeth Stroman testified that she was answering the phones at Hughes' workplace on Monday, 27 September and that she received several collect phone calls from Hughes at the jail that day. In the first phone call, Hughes told her that he gave a statement to the police saying that he stabbed someone after he felt a tap on the shoulder. In a subsequent call that morning, he told her he was being told he had to change his statement. In the afternoon, he called back and said he had changed his statement. Stroman testified that Hughes sounded upset, but he did not tell her he was being beaten or threatened.
During the punishment phase of the trial, Tracy Heggar testified that in May 1985, when she was 13, Hughes came over to her mother's apartment. She answered the door and spoke to him. She said goodbye and began to shut the door, Hughes stuck his foot in and barged inside. He then raped her. Heggar further testified that about a year later, while she was on her way to school, Hughes pulled up in front of her and threatened her not to testify against him. When she turned to run away, he fired a gun at her. Hughes was subsequently convicted of aggravated sexual assault and aggravated assault and given two 10-year terms of probation. Given a chance to respond, Hughes denied that the rape and assault on Heggar ever took place. Hughes had also been charged with the sexual assault of a 16-year-old girl in New York, but the charge was dropped when the victim did not appear in court.
A jury convicted Hughes of capital murder in November 1988 and sentenced him to death. The Texas Court of Criminal Appeals affirmed the conviction and sentence in June 1993. All of his subsequent appeals in state and federal court were denied.
Some web sites advocating Hughes' innocence reiterated many of the issues advanced at his trial and in his appeals, namely that the physical evidence and police testimony against him were falsified, and he was coerced into confessing for fear of his life. One site said that if Shandra said Preston's name while she was dying, it was because she was calling out to him as a friend. "The fact is, I didn't kill anyone," Hughes said in an interview in October 2012. Hughes also denied sexually assaulting Tracy Heggar. "I didn't know she was 13 at the time," he said. "I was led to believe she was 17."
Ellis McCullough, one of Hughes' two trial attorneys, told a reporter in the days before Hughes' execution he was convinced that no evidence was planted or mishandled. McCullough said that the phone calls Hughes made while in custody "were pretty devastating taken as a whole" to his case. Attorneys for Hughes and opponents of the death penalty filed multiple last-ditch appeals attempting to stop his execution, which was delayed for about an hour as the courts made their rulings.
Hughes' mother and sister attended his execution. "You know I'm innocent and I love you both," he said to them in his last statement. "Please continue to fight for my innocence even though I'm gone. Give everybody my love." The lethal injection was then started. He was pronounced dead at 7:52 p.m. Hughes was one of 22 men who have been on Texas' death row since the 1980's. An additional five have been there since the 1970's.
"In last words, condemned man maintains innocence," by Anita Hassan. (November 16, 2012 8:29am)
HUNTSVILLE - While his mother wailed and screamed in the background, Preston Hughes was executed Thursday night for fatally stabbing a teenage girl and her toddler cousin on a dirt road in southwest Houston more than two decades ago. Hughes was convicted of the 1988 murders of La Shandra Charles, 15, and her 3-year-old cousin, Marcell Taylor. None of the victims' friends or relatives attended the execution.
Hughes was put to death about 31/2 hours after the U.S. Supreme Court rejected appeals filed by his attorney to postpone the punishment. The execution also was slowed by an appeal filed by Hughes to the Texas Criminal Court of Appeals asking that the court reconsider its earlier denial to retest DNA in the case.
Just before he received the lethal injection, Hughes turned toward his mother, Brenda Johnson, and sister, Celeste A. Perreo, who stood behind their mother. "You know I'm innocent, and I love you both," Hughes, 46, said in his final statement. "Please continue to fight for my innocence even though I'm gone." He then thanked several people for helping him and trying to save his life. He also thanked his friend, Jason Seifert, for his friendship. Seifert attended the execution. "I love all of you," he said. "Bye. OK Warden." Perreo placed her hand on her mother's shoulder, while the woman wept loudly. As the solution flowed through Hughes' arms, Johnson's cries grew louder. "Oh Preston I love you so much," Johnson shouted. She also made proclamations of her son's innocence. Hughes could be seen taking a few short breaths before his body lay still. "Oh God, why?" Johnson cried. "I haven't touched my child in 23 years." Just before a doctor pronounced Hughes dead at 7:52 p.m., a chaplain removed the inmate's glasses. He died 15 minutes after receiving the injection.
Thursday's execution also followed a failed attempt this week by Hughes' attorney to persuade the Texas Board of Paroles and Pardons to commute the inmate's death sentence to life in prison. In his petition to the board, Hughes' attorney, Pat McCann, argued that police lied when they told jurors Charles identified her attacker as "Preston" in her dying breath. McCann supplemented his argument with a sworn statement from a deputy Tarrant County medical examiner, who said Charles would have lost consciousness within 60 seconds of the attack. The policeman who claimed to have heard the statement arrived 13 minutes after Charles died, McCann said. McCann also argued that police checked items confiscated from his client's apartment into their evidence room about three hours before Hughes agreed to the search. Hughes' attorney also tried to save his client from execution last month by challenging the state's use of a single drug in its lethal injection in a civil court. However, that ended when Hughes would not authorize McCann to represent him.
Hughes was on probation for sexually assaulting a 13-year-old girl when the cousins were murdered. The September 1988 killings occurred on a dirt trail behind a restaurant in the 2400 block of South Kirkwood. Hughes, a New York-born warehouse worker, was convicted of stabbing the teen and her cousin. The state has put 492 inmates to death since 1982, when Texas resumed executions. Hughes' execution marks the 15th and last for this year. He is the only death row inmate from Harris County executed in 2012.
"Man executed for killing Houston cousins, 15 and 3," by Michael Graczyk. (AP November 15, 2012)
HUNTSVILLE — Convicted killer Preston Hughes III was executed Thursday for the fatal stabbing of a 3-year-old boy and the child’s teenage cousin who uttered her attacker’s first name to police in her dying breaths 24 years ago in Houston. Hughes, 46, insisted he was innocent, contending police planted evidence and coerced his confessions to the September 1988 slayings of Shandra Charles, 15, and her cousin Marcell Taylor. The condemned prisoner’s mother and sister were among those witnessing his lethal injection.
“You know I’m innocent and I love you both,” Hughes said as his mother sobbed. “Please continue to fight for my innocence even though I’m gone. “Give everybody my love.” He took several deep breaths and then stopped moving. His mother, seated in a chair near the death chamber window, cried out: “My baby ... I haven’t touched my child in 23 years.” She became more composed in the minutes after it was apparent he was unconscious. Hughes was pronounced dead at 7:52 p.m. CST, 15 minutes after the lethal drug began flowing into his arms. No one representing his victims witnessed the punishment.
Hughes became the 15th Texas prisoner executed this year and the second in as many nights. On Wednesday, Ramon Hernandez, 41, was executed for the abduction and murder of a San Antonio woman.
Charles and her young cousin were attacked in a field behind an apartment complex where Hughes lived. A man walking along a trail found Charles and called police. Officers found the 3-year-old already dead from a stab wound that passed completely through his neck. Charles was still alive but severely injured with knife wounds to her neck and chest, police said. When an officer asked who was responsible for the attack, she gave a name, “Preston,” and said he tried to rape her. She died moments later.
Authorities went to the nearby apartments and found Hughes, the only resident with the first name of Preston. He already was on probation for a conviction of sexual assault on a child and denied any role in the attacks. The punishment came after Hughes lost multiple appeals and lawsuits in courts to block it. Two appeals — filed by attorney Patrick McCann, who Hughes unsuccessfully sought to fire — failed at the U.S. Supreme Court. Other court actions were filed on Hughes’ behalf by a death penalty opponent in Houston. They were denied in the courts or could not halt the punishment, attorneys said.
In one Supreme Court appeal, McCann said instructions to jurors deciding Hughes’ punishment were not adequate. In another, the attorney contended new evidence showed Hughes was sexually abused as a child and a jury should be allowed to consider that at a new punishment trial. McCann also obtained an affidavit from a former medical examiner who questioned whether Charles, after massive blood loss from her stab wounds, could have still been conscious or even alive by the time police arrived to ask her about her attacker. State attorneys argued the assertions from McCann were “patently meritless and nothing more than a last-minute Hail Mary,” said Fredericka Sargent, an assistant attorney general. Additional appeals focused on the legality of using a single lethal dose of pentobarbital for executions, a procedure Texas adopted earlier this year.
Another, from Hughes, accused the Texas Board of Pardons and Paroles of violating his rights when they declined a clemency request filed by his lawyer but refused to consider a similar request from activist Ward Larkin. And another raised civil rights violations in a lawsuit against the mayor of Houston, alleging improprieties and fraud in the Houston police crime lab that handled evidence in Hughes’ case. Ellis McCullough, one of Hughes’ trial lawyers, said this week he was convinced no evidence was planted or mishandled. He said Hughes, brought to a police station for interviews in the early morning hours after the slayings, made phone calls from the police interrogation room to acquaintances, including his probation officer, that “were pretty devastating taken as a whole.”
Evidence examined for DNA testing after his conviction and at his request found traces of Charles’ blood on Hughes’ clothing. At his trial, prosecutors showed Charles’ glasses were found on a couch in his apartment. Hughes, who knew Charles through a friend, said police took the evidence from the crime scene, planted it in his apartment, illegally searched the place, coerced his confessions and copied his signature to them from another document.
“The fact is I didn’t kill anyone,” he told The Associated Press last month, speaking from a small visiting cage outside death row. Hughes also denied the sexual assault conviction that resulted in his probation. “I didn’t know she was 13 at the time,” he told the AP of the victim in that case. “I was led to believe she was 17.”
Hughes moved to Houston in 1983 from his native Buffalo, N.Y., where a rape charge against him was dismissed when the victim failed to appear in court. He testified at his capital murder trial that he pulled a knife on “a guy who came up to me from behind” and “stuck him twice” but denied it was Charles or the 3-year-old. “I didn’t stab anybody,” he said. “Stabbing and stuck is two different things.”
Reuters NewsTexas executes man for killing teenager, toddler," by Karen Brooks and James B. Kelleher. Nov 15, 2012)
(Reuters) - Texas executed a Houston man on Thursday convicted in the 1988 killing of a teenager and her toddler cousin, a prison spokesman said. Preston Hughes, 46, was convicted of stabbing to death 15-year-old Shandra Charles and her 3-year-old cousin, Marcell Taylor, in a vacant field near his apartment complex. Hughes was executed at 7:52 p.m. Central Time. He was the 40th inmate executed in the United States this year and the 15th in Texas.
Hughes had maintained his innocence, first saying the deaths were an accident and then contending that he had nothing to do with them and that police had framed him. At the time, Hughes had been free on probation for the aggravated sexual assault of a 13-year-old girl. In his final statement Thursday night, Hughes continued to maintain his innocence, according to a transcript provided by the Texas Department of Criminal Justice.
There was no DNA evidence linking him directly to the killings. Advocates and Hughes' lawyer insisted there were too many weaknesses in the case and that the evidence against him was either circumstantial or fabricated.
The 15-year-old girl and her cousin were found stabbed several times in the neck and chest, their jugular veins and aortas severed, according to an account by the Texas Attorney General's Office. Authorities said Charles was still alive and told police that a man named Preston had stabbed her after trying to rape her. Critics of the case said Charles could not have stayed alive long enough to say anything to police.
Police found Hughes at his nearby apartment, along with a knife, some blood on his clothes, and Charles' eyeglasses on his couch, which Hughes later said were planted.
Hughes was convicted of capital murder by a Harris County jury during a trial in which the Houston police crime lab director was rebuked by the judge for waiting until he got into the courtroom to test a knife found in Hughes' apartment for blood - tests performed for the first time while jurors were waiting. Shortly after, the Houston crime lab came under fire for shoddy practices, which led to the retesting of evidence in hundreds of cases.
Death Row - U.S.A.
PRESTON HUGHES III
Polunsky Unit #000939
3872 FM 350 SOUTH
LIVINGSTON, TEXAS 77351
Texas has scheduled his execution for November 15th 2012. Send him an e-mail via jpay.com or use PrestonHudges@deathrow-texas.com for a first contact. For response please leave a postal address. Thank You. September 25, 2009
I'm a single African American man, 43 years of age, from Buffalo,NY. I'm nearly six feet tall with brown skin, brown eyes, deep dimples and short wavy salt & pepper hair, with a current weight of 230 lbs. I'm a very easygoing, caring, understanding, open minded person with a nice personality and good sense of humor that knows how to treat people. I love to cook, clean, shop, have fun and do things together as a family. I have a wide variety of hobbies and things I like to do but unfortunately I'm restricted to doing a few of them at this time.
I was convicted of a crime I didn't commit and have been struggling to generate needed support to finance legal representation to prove my innocence, as I am in imminent danger of receiving an execution date and being wrongfully killed. The time I have left is devoted to trying to save my life and raising awareness to my unfortunate situation. I try stay strong and keep my head and spirits high, but it's hard to remain positive when you're lonely and hungry for understanding and friendship and you feel as tough no one really cares enough to write and help you. Yet I still have desire to laugh and live even as I've spent countless years under the umbrella of impending wrongful execution.
One may wonder what the hardest part of being wrongly imprisoned is and that's an easy question to answer: MAIL CALL. To see and hear men around me have their names called at mail ( and visitation ) call and not mine is extremely hard. To have officers ask my name only to tell me in a singsong voice " you don't have any mail ",so everyone can hear, is even harder.
I'd like to experience the light of true friendship with someone open minded and non-judgemental that will take the time to get to know who Preston really is. A friend who'll help make my time in prison as easy and pleasant as possible with letters ( and visits ) filled with love, laughter encouragement, support. A friend who reaches out for my hand and touches my heart. I send these words out to those who are compssionate, caring and kindhearted.
In the event you wouldn't mind reaching out and extending a helping hand to someone in need of quality friendship there's only thing separating us ... A LETTER FROM YOU.
Peace & much love.
In the struggle for life and freedom,
Preston Hudges III
Polunsky Unit #000939
Preston Hughes Blog
Preston Hughes III
This an Anti Death Penalty website. It is run by supporters of PRESTON HUGHES III, as he (PHIII) does NOT have access to a computer and the Internet. Absolutely no one under the age of 18 is allowed to add or respond to this website.
Brief Summary and Plead for Help
PRESTON HUGHES III SUPPORT GROUP (PHIIISG)
Ladies and Gentlemen: Citizens of the World,
Preston Hughes III (PHIII) is a poor innocent man currently on Texas Death Row wrongly sentenced to die behind murders he didn't commit and he's in dire need of your help. PHIII hopes to gather interest and gain support to enable him to defend himself and prove he's an innocent man. PHIII would like you to take the time to read the information herein, ask questions and wonder how this could happen to a man that had a life and loved ones who, still to this day, stand by him. Look and listen to the facts presented in this matter. PHIII doesn't have time. Not time as you know it. He has what is called state time, which means his life is ticking away and his chances of fighting his wrongful conviction are getting smaller and smaller with each tick of that clock. After you've read PHIII's plea ask yourself what you can do to help a fellow human being who is pleading for your helping hand. You'll see that giving PHIII that helping hand will be easy because of this...
In late February or early March of 1988 a "RABBIT" was stabbed a number of times with the "HUNTING KNIFE" depicted in the picture above. The hunting knife was wiped down and returned to its sheath and placed on a shelf in a closet and not thought of again. During the evening hours of September 26, 1988 two children (a female and male cousin) were attacked. The girl was a friend of PHIII and according to the police "called the name Preston before she died.” PHIII was arrested, on September 27, 1988, because he "knew the female victim and a friend of hers named Evelyn.” While PHIII was not the only person named "Preston" who knew the victim it's believed by those who were close to PHIII and the victim that if she "called the name Preston before she died" she called the name for help, not to name PHIII as her murderer. She and PHIII were very good friends and he loved and treated her like a sister. The police illegally searched PHIII's apartment and found the hunting knife, pictured above, and declared it to be the murder weapon. They also claimed to have found a pair of non-prescription eyeglasses that belonged to the female victim in the cushions of PHIII's couch.
FACTS & FINDINGS
The following are facts that have arisen in the case and can be proven. These facts not only show the state lied and abused their power but they wrongly sentenced an innocent man to die behind murders he didn’t commit. The police will like people to believe PHIII allegedly committed and confessed to committing the murders of the two children, however PHIII didn't commit the murders and he certainly didn't confess to committing the murders either. In February of 1989, nearly three months prior to trial, PHIII mailed a letter to the trial court judge explaining everything that took place from the moment he came in contact with HPD Detective Sgt. Dennis J. Gafford (the arresting officer) and during the period of time he was in custody of the HPD. Among other things
PHIII mentioned that he didn't commit and didn't confess to committing the murders that he was wrongly charged with allegedly committing. In the report of the arresting officer he made it sound as though PHIII confessed to committing the murders and told the police the method by which the victims were killed. (See page 2.011 hereinafter of Sgt. Gafford's police report). In PHIII’s letter to the trial court judge he wrote that the arresting officer struck him twice while accusing him of stabbing the victims. Though the partner of the arresting officer didn't mention anything in his report concerning his partner's striking PHIII he did in fact corroborate the fact the arresting officer told PHIII the method by which the victims were killed. (See page 2.014 hereinafter of Sgt. Bloyd's police report). While PHIII was in the custody of the HPD he was put in fear for his life due to the use of Police Brutality and Threats made on his life, and forced to involuntarily sign two alleged confessions created and typed by the police. Why was PHIII forced to involuntarily sign two alleged confessions? PHIII was forced to involuntarily sign two alleged confessions because the first one, typed by the arresting officer, mentioned only one victim being stabbed and they needed to have one that mentioned two victims being stabbed.
According to Texas law, in effect at the time PHIII was wrongly arrested, the signing of an alleged confession must be witnessed by someone other than the officer that typed it. PHIII's involuntary signing of the alleged confession typed by the arresting officer was NOT witnessed by the two detectives that signed as false witnesses claiming to have seen PHIII place his signature on the lines marked "signature of person making statement.” PHIII made the trial court judge aware of this in his letter to the trial judge. The arresting officer and the two detectives that signed as false witnesses all lied concerning the witnessing of PHIII's signing of the alleged confession when they testified during pre-trial suppression hearings, so the judge could deny the defense's motion to suppress the alleged confession and admit it to the trial for the jury's consideration.
When the arresting officer testified during the pre-trial hearings he testified that he called in two detectives to witness the signing of the statement and that they "asked him [PHIII] to sign the statement if it was his.” During the trial when the arresting officer was asked 'Whether PHIII signed the statement in the presence of the two detectives the arresting officer admitted the statement was signed prior to the detectives entering the interrogation room. The arresting officer even admits in his police report that each page of the statement was signed prior to the two detectives entering the interrogation room. (See page 275 of arresting officer's testimony on direct examination during the pre-trial hearings and pages 118 & 119 of the arresting officer's testimony on direct examination during the trial and page 2.015 of his police report hereinafter).
Sgt. Ross, one of the detectives that signed as a false witness claiming to have seen PHIII involuntarily sign the alleged confession typed by the arresting officer, was asked during direct examination of the pre-trial hearings whether she personally observed PHIII sign the alleged confession and she testified "yes, I did." And that she witnessed PHIII sign the statement "where there's a line for the person that makes the statement to sign." When Sgt. Ross testified during the trial on direct examination she admitted that she lied about witnessing PHIII involuntarily sign the statement on the line designated for the person making a statement to sign when she was asked Whether it was at the end of the text portion of the statement that she had PHIII to sign and she answered "yes." In the police report of Sgt. Ross, she also lied about seeing PHIII involuntarily sign the alleged confession. (See page 331 of Sgt. Ross' testimony on direct examination during the pre-trial hearings and page 211 & 212 of Sgt. Ross' testimony on direct examination during the trial and page 2.027 of her police report) .[NOTE: the alleged confessions DON’T lead to a murder weapon.]
The hunting knife, pictured above, was tested during the trial, on May 2, 1989, by a Forensic Expert. The results of his chemical analysis, given out of the presence of the jury, is/was that the knife tested "NEGATIVE FOR HUMAN BLOOD, POSITIVE FOR ANIMAL BLOOD." Still the knife was introduced to the jury, by the prosecutor, and admitted into evidence, by the judge, as the murder weapon, without making the jury aware of the fact it was disproved to be the murder weapon prior to their deliberating in the innocent/guilt phase of the trial. Instead of telling the jurors the test disproved the knife to be the murder weapon as alleged, the prosecutor told them "It's inconclusive, I agree" during his final arguments. (See page 44 of the prosecutors’ final arguments hereinafter) .[NOTE: the court reporter was persuaded to alter the testimony of the Forensic Expert, other state witnesses, a defense witness and the final arguments of the lead defense attorney. ]
The eyeglasses were planted, by the police, in the cushions of PHIII's white couch and pictures were taken to make it appear as though they were found there. The police apparently did this to make it appear as though the victims had been in PHIII’s apartment prior to their deaths. However there's a problem with this because there was a picture taken of the glasses at the crime scene where the victims were found, before they were planted in PHIII's apartment. The arresting officer made PHIII aware of the fact he planted the eyeglasses in his apartment when he made statements to PHIII, during the interrogation, concerning the fact he searched his apartment. The first attorney, Randolph A. McDonald, appointed to handle PHIII's Habeas Corpus appeal acknowledged the fact he knew the police planted the glasses in PHIII's apartment. And in a phone conversation he had with PHIII he acknowledged the existence of a picture that depicts the glasses on the ground at the crime scene where the bodies of the victims were found. The attorney ended up withdrawing himself from the case because he wasn't being paid enough to represent PHIII. However since learning of the existence of the picture that depicts the eyeglasses at the crime scene PHIII has been diligently trying to obtain this evidence. His family managed to scrape up enough funds to purchase a copy of the police report(s) and a copy of the pictures taken by the crime scene officer. Unfortunately the Houston Police Department purposely withheld a number of the pictures taken by the crime scene officer. Although the attorney has been off of PHIII’s appeal for some years PHIII wrote him in June of 2006 seeking his help with obtaining a copy of the picture(s) that could help prove his innocence and that he was framed. PHIII was very clear in his letter concerning what he was seeking to obtain. The attorney responded to PHIII's letter by stating where he believed PHIII would be able to obtain the evidence he's seeking. Unfortunately, the individual PHIII was told to contact was the ineffective attorney that mishandled PHIII's state Habeas Corpus appeal after Mr. McDonald withdrew from the case. The response from Mr. McDonald to PHIII's letter, although very short, is the only proof PHIII has at this time to prove the police planted the eyeglasses in his apartment. (See PHIII's letter to Mr. McDonald dated June 22, 2006 and Mr. McDonald’s response to PHIII’s letter dated June 29, 2006). [NOTE: PHIII did write to Mr. McDonald again, after receiving his response, but he never heard from him again. It's very possible his response may have been intercepted by the mail room personnel as PHIII has been having problems receiving his incoming mail from certain people or places for several months. It's very possible the picture(s) may have been purposely destroyed. PHIII has evidence to prove the police purposely withheld and purposely destroyed other evidence.]
The prosecutor was seen walking back and forth from one courtroom to another while carrying the eyeglasses in a clear plastic bag. The glasses were observed to have no substance whatsoever on them.The next time the glasses appeared in the courtroom during the trial the lenses had dark spots placed on them. The leading defense attorney presented the glasses to the jury and made a statement to the effect that the spots on the lenses were blood. The prosecutor apparently got some makeup from one of the female court employees and placed spots on the lenses to give the impression that the glasses had blood on them. A close observation of the pictures taken of the glasses while planted in the cushions of PHIII's white couch will show that the lenses were crystal clear.
Judging from the fact the arresting officer purposely neglected to follow police procedures and the testimony he gave during the pre-trial hearings he was determined to make a case against PHIII no matter what. The arresting officer was asked on direct examination, during the pre-trial motion hearings, why he didn't take PHIII to a magistrate after arresting him and he stated "Because we're normally not required to do that. We read him his warning on our own and provide him with every opportunity to not speak to us and that's the reason." However when the arresting officer testified on cross examination a short time later he made it very clear he had no intentions of following the law and that PHIII was not going anywhere until he got evidence needed to make a case against PHIII. (See page 291 of Sgt. Gafford's testimony on direct examination during the pre-trial hearings and pages 298-300 of Sgt. Gaffords testimony on cross examination during the pre-trial hearings).
Probable Cause didn't exist for the arresting officer to make the warrantless arrest of PHIII and therefore it didn't exist for the arresting officer to secure a search warrant to search the apartment of PHIII. The arresting officer was very aware of this fact and he needed something to justify the illegal searches of PHIII's apartment. He asked PHIII to sign a Voluntary Consent for search and Seizure. PHIII refused to sign a consent for search and seizure because the police had searched his apartment without his permission when they woke him up during the early morning hours of September 27, 1988 and they searched it again while he was being taken downtown for questioning. The arresting officer let PHIII know they had entered his apartment illegally throughout the interrogation of PHIII. The arresting officer fabricated a false consent for search and seizure to make it appear to have been allegedly signed by PHIII and witnessed by the two detectives that signed as false witnesses. He fabricated the false consent for search and seizure by (1) placing the TEXT of a Voluntary Consent for Search and Seizure over a document baring the signature of PHIII and (2) placing both the TEXT and document baring the signature of PHIII over a sheet of paper with lines provided for two people to sign as false witnesses and (3) placing all three in a Xerox machine and making a xerox copy. The xerox copy received is what the police are claiming to be an alleged original, signed and witnessed, voluntary consent for search and seizure.
The arresting officer asked PHIII to sign a Voluntary Consent for taking of Samples of Blood, Urine or Hair that was about 61/2 inches in length and didn't have any place for anyone to sign as witnesses. PHIII signed the consent because he figured he could prove he didn't commit the crime by comparing his samples to whatever samples taken from the girl. Samples were never taken from PHIII. At that time PHIII was not aware of the arresting officer's true reasons for getting him to sign the consent for taking of samples. Since the arresting officer fabricated a false consent for search and seizure to make it appear to have been allegedly signed and witnessed he fabricated the signed consent for taking of samples to make it appear to have been witnessed as well. He did so by (1) placing the consent for taking of samples that PHIII signed over a sheet of paper with lines provided for two people to sign as false witnesses and (2) placing them in a xerox machine and making a xerox copy. The xerox copy received is what the police are claiming to be an alleged signed and witnessed Voluntary Consent for taking of Samples of Blood, Urine or Hair. Yet, when the arresting officer testified during the pre-trial hearings he admitted the alleged witnessed consent was in fact a copy. The record doesn't reflect an original, signed and witnessed, voluntary consent for taking of samples of blood, urine or hair ever being submitted to the trial court. (See pages 280-282 of the arresting officer's testimony on direct examination during the pre-trial hearings). [NOTE: Sgt. Ross, one of the detectives that signed as a false witness on the alleged confession, created and typed by the arresting officer, also signed as a false witness on both of the fabricated consents. When she testified during the trial on direct examination she was asked "how did you first come in contact with the defendant, Preston Hughes III, on that morning?" To which she responded "Sergeant Gafford asked me to come into the room and witness his statement." Sgt. Ross signed the alleged confession as a false witness at 7:15am. There's no way whatsoever she could have witnessed PHIII allegedly signing a consent for search and seizure at 5:30am when she first came in contact with PHIII at 7:15am, (See page 208 of Sgt. Ross' testimony on direct examination during the trial and fabricated consents hereinafter. The prosecutor had a hand in fabricating the false consents).]
PHIII wanted to pursue proving his innocence through DNA testing and he wondered why the arresting officer never had any samples taken from him. PHIII found out the reason during the trial when he was allowed to view one of a few of the crime scene pictures. When PHIII viewed one of the pictures of the bed he had slept in prior to his arrest he noticed the bed sheet was missing. PHIII had masturbated shortly before falling asleep and his semen had gotten onto the sheet. The police had taken the sheet, without logging it as evidence, to get PHIII’s DNA from it. This way should PHIII choose to pursue DNA testing as a means of proving his innocence the police would have a definite match. PHIII reviewed the copy of the police report and learned that a swab admitted into evidence that was submitted to the HPD Crime Lab for testing was submitted to the lab by the arresting officer, an individual who was NOT a neutral party in the investigation. (See page 2.034 of Sgt. Gafford's police report hereinafter).
The Texas Justice system is geared to convict, not to find the truth. It's a fact PHIII didn't receive a fair trial. PHIII's rights to a fair trial under due process of law were severely violated with a series of illegal maneuvers such as: the use of fabricated and falsified documents and perjured testimony by and from authority figures at large. PHIII was appointed attorneys that helped the prosecutor gain the wrongful conviction. PHIII was wrongly convicted on May 3, 1989 and wrongly sentenced to death on May 4, 1989. He was sent to death row on May 17, 1989 at the age of 23.
PHIII is living this nightmare right now and has been since he was wrongly arrested in 1988 at the age of 22 with his whole life ahead of him. Now PHIII sits on death row watching his life slip away with each tick of the state clock. PHIII hasn't given up hope and refuses to be wrongly killed without a fight for the life that has been taken from him. PHIII needs your help to fight for that life...his life...and put an end to the nightmare he has been living. PHIII is in imminent danger of receiving an execution date and being wrongly killed. PHIII is in urgent need of contributions to enable him to finance the assistance of an attorney and an investigator to secure and present evidence that establishes his innocence. PHIII is appealing to you, for your most urgently needed support in the struggle to prove his innocence and regain his freedom. Whatever you can spare with a clear conscience and know that you've helped an innocent man to prove his innocence, by arming him with the weapon needed to fight for his life - funds, will be gratefully appreciated. In return you'll have PHIII's undying gratitude. Please help Preston Hughes III before it's too late.
We, the PHIIISG, will like to thank you in advance for your time, patience and efforts on behalf of PHIII. We are grateful for your time. And we know how fleeting it is and for you to give just a little is a very precious gift. Thank you.
Please send your contributions to the following address: With International Postal Money Order or International Money Order to:
AMI.CA. (Associazione.AMI dei CARCERATI)
31015 Conegliano (TV) (ITALY)
Account No.: 10881316, "For Preston Hughes III"
To contact PHIII write to:
Mr. Preston Hughes III
Polunsky Unit #000939
3872 FM 350 South
Livingston, Texas 77351 USA
Please request copies of the following documents - via email with a fax number.
Sorry for the inconvenience, I could not post the original copies on the website.
•Voluntary Consent for Search and Seizure
•Voluntary Consent for Taking of Samples of Blood, Urine, or Hair.
•Police Reports and Police Testimonies
(Portion of Sgt. Gafford's :police report page 2.011 verbatim)
TO THE MURDER SCENE, AND THE FACT THAT PRESTON HUGHES DOES KNOW BOTH THE COMPLS AND EVELYN, SGT. GAFFORD NOW ARRESTED PRESTON HUGHES AS A SUSPECT IN THIS CASE.
SGT. GAFFORD IMMEDIATELY READ HUGHES HIS LEGAL WARNINGS FROM THE BLUE CARD PROVIDED BY THE DISTRICT ATTORNEYS OFFICE , AND AFTER EACH INDIVIDUAL WARNING SGT. GAFFORD ASKED HUGHES IF HE UNDER STOOD THEM. HUGHES STATED, "YES, SIR" EACH TIME HE WAS ASKED ABOUT UNDERSTANDING THE WARNINGS, AND HE FURTHER STATED THAT HE WOULD WAIVE HIS RIGHTS AND TALK TO SGT BECAUSE HE DIDNT DO ANYTHING, AND HAD NOTHING TO HIDE. SGT. GAFFORD LEFT THE ROOM AND CONFERRED WITH SGT. BLOYD ABOUT ANY NEW INFO PRIOR TO BEGINNING ANY FURTHER QUESTIONING. THERE WAS NOTHING TO ADD AT THAT POINT AND SGT. GAFFORD REENTERED THE ROOM AT APPROXIMATELY 0450 HOURS, AFTER HAVING MADE THE ARREST AT 0430 HOURS. DURING THIS INTERVAL HUGHES HAD REQUESTED A ClGARETTE AND SGT PROVIDED ONE. (FOR COMPLETE DETAILS OF THE INTERROGATION OF HUGHES SEE THE INTERROGATION OF SUSPECT PORTION OF REPORT, THIS WILL BE ADDRESSED ONLY BRIEFLY AT THIS POINT)
FOR SOME TIME HUGHES CONTINUED TO DENY ANY INVOLVEMENT IN THIS INCIDENT, AND HE INSISTED THAT HE HAD NOT SEEN SHAWN IN APPROXIMATELY 2 MONTHS. AFTER HEARING HUGHES' DENIALS FOR A PERIOD OF TIME SGT. GAFFORD PRESENTED HIM WITH A "VOLUNTARY CONSENT FOR SEARCH AND SEIZURE" FORM. SGT HAD FILLED IN HUGHES' NAME AND ADDRESS, PRESTON HUGHES III, 2310 CRESCENT PK #138A, EXPLAINING THAT HE WAS IN NO WAY REQUIRED TO SIGN THE FORM ALLOWING INVESTIGATORS INTO THE APT. HE WAS FURTHER ADMONISHED THAT HE HAD AN ABSOLUTE RIGHT NOT TO CONSENT TO SUCH A SEARCH, YET HUGHES STILL SIGNED THE FORM ALLOWING ENTRY TO THE APT, STATING "I TOLD YOU THAT I DONT HAVE NOTHING TO HIDE". HUGHES SIGNED THE FORM WITNESSES AFFIXED THEIR SIGNATURES AT APPROXIMATELY 0530 HOURS.
SGT. GAFFORD THE CONTINUED THE INTERROGATION, AND AFTER A TIME CONTINUING TO DENY INVOLVEMENT IN THE CASE, HUGHES BROKE DOWN, STATING THAT HE WAS AFRAID TO GO TO JAIL, AND THAT HE DID NOT WANT TO GO TO JAIL. HE ADMITTED AT THIS TIME TO COMMITTING THE OFFENSE, AND STATED THAT HE HAD KILLED THE #1 COMPL, HOWEVER WOULD NOT MAKE DIRECT MENTION OF KILLING THE THREE YEAR OLD, EXCEPT TO SAY THAT HE JUST KEPT STABBING DIDNT KNOW WHAT HE WAS HITTING. SGT. GAFFORD WAS IN THE PROCESS OF TYPING THE SUSPECTS WRITTEN STATEMENT WHEN HE STATED, WHILE POINTING TO THE VOLUNTARY CONSENT FOR SEARCH AND SEIZURE FORM, "I GUESS YOU'RE LOOKING FOR THE KNIFE". PRIOR TO THE SUSPECTS SAYING THAT HE JUST "KEPT STICKING" THE PERSON WITH A KNIFE, AND HIS STATEMENT ABOUT SGTS LOOKING FOR THE KNIFE, SGTS HADNT MENTIONED TO THE SUSPECT THE METHOD BY WHICH THE COMPLS WERE KILLED. AS THIS WAS DURING THE VERY EARLY MORNING HOURS, THERE HAD BEEN NO NEWS REPORTS OR ARTICLES BY THE WHICH THE SUSPECT COULD HAVE LEARNED THAT THE INCIDENT WAS A STABBING, AND THEREFORE IT WAS CLEAR THAT THE SUSPECT HAD DIRECT KNOWLEDGE OF THE INCIDENT. THE SUSPECT GAVE A DETAILED DESCRIPTION OF THE LOCATION OF THE MURDER WEAPON, AS WELL AS THE CLOTHING HE WAS WEARING AT THE TIME, AND SGTS GAFFORD PASSED THIS INFORMATION ALONG TO SGTS D. FERGUSON AND E.T. YANCHAK, OF THE DAY SHIFT HOMICIDE DIVISION, AND THEY SUBSEQUENTLY DROVE TO THE SUSPECTS APT AND RECOVERED THESE AND OTHER ITEMS OF EVIDENCE.
AFTER COMPLETION OF THE WRITTEN STATEMENT SGT. GAFFORD PRESENTED PRESTON HUGHES WITH A"VOLUNTARY CONSENT FOR TAKING OF SAMPLES OF BLOOD, URINE, OR HAIR. SGT. GAFFORD EXPLAINED THIS FORM TO THE SUSPECT IN THE SAME MANNER AS HAD BEEN DONE WITH THE VOLUNTARY CONSENT FOR SEARCH AND SEIZURE FORM, AND HE STATED THAT HE "MIGHT AS WELL NOT HOLD ANYTHING BACK NOW", AND HE SIGNED THE FORM, KNOWING THAT HE HAD A RIGHT NOT TO SIGN THE FORM. THIS FORM WAS RETAINED WITH THE CASE FILE AFTER BEING WITNESSED AT APPROXIMATELY 0745 HOURS BY SGTS. BLOYD
(Portion of Sgt. Bloyd's Police Report page 2.014 verbatim)
CORRECT PRESTON THAT HAD REFERRED TO BY THE COMPL BEFORE HER DEATH, SGT. GAFFORD ARRESTED THE SUSPECT (IN THE HOMICIDE OFFICE AT 0430 HOURS) AND READ HIM HIS LEGAL WARNINGS FROM THE BLUE CARD SUPPLIED BY THE DISTRICT ATTORNEYS OFFICE. SGT. GAFFORD READ EACH WARNING INDIVIDUALLY, AND AFTER EACH ONE SGT WOULD STOP AND ASK THE SUSPECT IF HE UNDERSTOOD THE WARNINGS. THE SUSPECT STATED "YES, SIR" EACH TIME HE ASKED ABOUT HIS UNDERSTANDING OF THE WARNINGS, AND HE THEN STATED THAT HE WOULD TALK TO SGT ABOUT THE CASE. THE SUSPECT APPEARED INTELLIGENT, AND GAVE EVERY INDICATION OF BEING LITERATE AND CAPABLE OF UNDERSTANDING WHAT WAS BEING SAID, AND IT SGTS BELIEF THAT THE SUSPECT FULLY UNDERSTOOD THE WARNINGS. THE SUSPECT REQUESTED A CIGARETTE, AND SGT. GAFFORD OBTAINED ONE FOR HIM FROM LT. NEELY OF THE HOMICIDE DIVISION. THE SUSPECT SMOKED THE CIGARETTE WHILE SGT GAFFORD CONFERRED BRIEFLY WITH SGT. BLOYD, AND SGT. GAFFORD RETURNED TO THE INTERVIEW ROOM AT 0450 HOURS. SGT WENT OVER THE SEQUENCE OF EVENTS OF THE SUSPECTS DAY, AND LEARNED THAT THE SUSPECT WENT TO WORK AND GOT OFF AT APPROX 6:30 PM. HE WAITED FOR A FRIEND AND THEN HE AND SEVERAL BUDDIES WENT TO A LIQUOR STORE ON THE CORNER NEAR FRANKLIN AND AUSTIN STREETS DOWNTOWN. THEY DRANK ON THE PARKING LOT UNTIL ABOUT 10 MINUTES AFTER 8PM, AND AT THAT TIME TWO OF THE FRIENDS DROPPED HIM OFF AT FANNIN AND WALKER TO CATCH THE BUS. SKIPPING SEVERAL OF THE STATEMENTS DETAILS, HUGHES RODE FELL ASLEEP ON THE BUS AND ENDED UP AT END OF THE ROUTE AT HWY 6 AND WESTHEIMER. HUGHES CALLED A CAB AND WAS TAKEN HOME TO THE LAKEHURST APTS. HE STATED THAT HE WENT INTO THE APT AND CHECKED THE FOOTBALL GAME SCORE AND AFTER THAT HE WENT TO BED.
SGT. GAFFORD SPOKE WITH THE SUSPECT ABOUT THESE DETAILS FOR ABOUT 20 MINUTES AND HE WOULD STILL NOT WAIVER FROM HIS STATEMENT. WHEN TALKING ABOUT HIS PAST RECORD THE SUSPECT MENTIONED THAT THE FEMALES HE HAD HAD PROBLEMS WITH IN THE PAST WERE LIGHT SKINNED BLACK FEMALES, AND HE STATED THAT THE "YELLOW" GIRLS ARE NO GOOD, AND THAT THEY ARE "ALL STUCK UP AND SHIT" AND THEY WERE ALWAYS MESING WITH HIM. SGT NOTED A GREAT DEAL OF TENSION WHEN THE SUSPECT WAS TALKING ABOUT THIS, AND FURTHER CONNECTED THIS WITH AN EARLIER STATEMENT HE HAD MADE WHEN DESCRIBING THE "SHAWN" HE KNEW AS BEING A "YELLOW" SKINNED 15 YEAR OLD FEMALE. HE STATED THAT HE HAD LAST SEEN THE COMPL APPROX 2 MOS AGO, AND THAT SHE WORE HER HAIR IN BRAIDS. IT WAS APPROXIMATELY 0520 HOURS WHEN SGT. GAFFORD PRESENTED HUGHES WITH THE VOLUNTARY CONSENT FOR SEARCH AND SEIZURE FORM. AS REPORTED EARLIER IN THIS SUPPLEMENT THE SUSPECT SIGNED THE FORM AFTER BEING PROPERLY INSTRUCTED ON HIS RIGHTS AND THE USE OF THE FORM. THE FORM WAS WITNESSED BY SGTS. BLOYD AND ROSS AT APPROXIMATELY 0530 HOURS.
THE SUSPECT REQUESTED ANOTHER CIGARETTE AND SGT. GAFFORD AGAIN OBTAINED ONE FOR HIM AS SGT AGAIN STARTED QUESTIONING HIM ABOUT THE INCIDENT. SGT. GAFFORD LISTENED TO THE SUSPECT CONTINUE TO DENY INVOLVEMENT IN THE DEATHS OF THE COMPLS UNTIL APPROXIMATELY 0540 HOURS WHEN SGT CONFRONTED THE SUSPECT WITH THE FACT THAT THE COMPL WAS GIVEN HIS NAME AS THE ONE WHO HAD STABBED SHE AND THE #2 COMPL. THE SUSPECT WAS VISIBLY UPSET BY THIS FACT AND SGT CONTINUED THAT IT WAS SGTS FIRM BELIEF THAT HE WAS IN FACT THE ONE THAT HAD STABBED THEM. THE SUSPECT HAD NOT BEEN TOLD THE CONDITION OF THE #1 COMPL, BUT WAS AWARE OF THE #2 COMPLS DEATH, ALTHOUGH HE HAD PREVIOUSLY DENIED KNOWING WHO SGT WAS TALKING ABOUT IN REFERENCE TO MARCELL TAYLOR. THE SUSPECT BEGIN TO TREMBLE AND STATED, "I JUST DONT WANT TO GO TO JAIL". SGT WAITED AS THE SUSPECT CONTINUED TO THINK TO HIMSELF. SGT THEN ASKED THE SUSPECT IF HE WANTED TO TALK ABOUT WHAT HAD HAPPENED. THE SUSPECT SAID THAT HE DIDNT MEAN TO HURT ANYONE. THE WENT INTO A NARRATIVE ABOUT WHAT SEEMED TO BE AN
(Sgt. Gafford - direct pre-trial testimony page 275 verbatim)
not true? A No. Q Did he ever tell you that you had misstated his comments to you and left things out or added things in there? A No, sir, he said it was just like he wanted it. Q After he was given the opportunity to read it and make changes in the statement, what did you do? A After everything was done, I called in some other detectives and they looked over the statement, asked him questions about it, about the circumstances of the statement and again, he stated that it was his statement, that everything was correct, and they asked him about the warnings and asked him then to sign the statement if it was his. Q That would have been Sergeant Smith and Ross that witnessed the statement? A That's correct. Q Now, during the period of time that you let him read the statement, did you go over again with him the rights which are presented at the top of the statement of person in custody form? (Sgt. Gafford - direct Trial testimony page 118 verbatim) Q Did he seem to be in a state of mind that you felt was necessary to let him get himself back together or was this a short-lived thing or what? A It was very short. He broke down for just a second there and was just saying that he didn't want to go to jail and he was silent there for just a few seconds, probably, maybe 30 seconds after that and then again we began talking and he was fine after that. Q Again, did you promise him anything to get him to start talking to you? A No, sir. Q Did you do anything that would indicate to him that if he talked to you or if he gave a confession, things would go easier on him? A No, sir. Q Did anyone else, while you were present with the defendant, make any threats to him, hit him, promise him anything or have any contact with him? A No, sir. Q After the defendant agreed to sign the statement, looked over the statement, did you ask anyone to come in to be a witness?
(Sgt. Gafford- direct Trial testimony page 119 verbatim)
A Yes, sir, I did. Q Who did you ask to come in to be a witness? A Sergeants smith and Ross. Q Did you stay in the room while Sergeants Smith and Ross witnessed his execution of the statement? A I was there for just the first few minutes after the introduction. Then I believe I stepped to the door. I don't think I ever just went completely away, but I was in the general area there. Q Did he then sign the statement in their presence, or how did that happen? A Actually, after each page that we typed, I would give it to him and allow him to read over that particular page. when that page was completed and he agreed with the way it was, then he would sign that page; and then we would do the same thing with each subsequent page. Once they came into the room, they went over the statement, asked him if it was his signature and then asked him to do a few other things on the paper. Q Okay. On the bottom of the first page, his signature appears both over the line where
(Portion of Sgt. Gafford's police report page 2.015 verbatim)
UNRELATED INCIDENT, BUT THE SUSPECT LATER TIED THAT INCIDENT TOGETHER WITH THE KILLING OF THE COMPLS. JUST A FEW MINUTES PRIOR TO THE SUSPECT BREAKING DOWN, THE SUSPECT REQUESTED THAT SGT GET HIM A COKE AND A PACK OF CIGARETTES, WHICH SGT DID. DURING THE TIME THAT THE SUSPECT WAS GIVING THE STATEMENT HE WAS DRINKING THE COKE AND SMOKING THE CIGARETTES, AND HE WAS SEATED IN A PADDED CHAIR IN A COMFORTABLE POSITION. HE WAS NOT HANDCUFFED, AND HAD NOT BEEN AT ANYTIME PRIOR SINCE HE WAS NOT ARRESTED UNTIL AFTER HIS ARRIVAL IN THE HOMICIDE OFFICE.
IN SHORT, THE SUSPECT STATED THAT ABOUT TWO WEEKS AGO HE WAS ACCUSED OF SEXUALLY ASSAULTING A GIRL BY THE NAME OF LINDA. HE STATED THAT HE WAS NOT GUILTY OF THAT INCIDENT AND PROVED IT SO HE WAS NEVER ARRESTED, ONLY QUESTIONED. HE STATES THAT LINDA'S BROTHERS AND HUSBAND, HOWEVER, BELIEVE HE DID ASSAULT HER, AND THEY HAVE MADE THREATS AGAINST HIS LIFE. DUE TO THIS FEELING THAT THEY ARE AFTER HIM, THE SUSPECT BEGAN TWO WEEKS AGO CARRYING A KNIFE. THE KNIFE WAS DESCRIBED AS AN ARMY KNIFE WITH A 5" OR 6" FIXED BLADE WHICH HE WORE IN A SHEATH ON HIS BELT.
PRESTON HUGHES STATED THAT TONIGHT HE WAS WALKING ON THE TRAIL BETWEEN THE THE APT COMPLEX AND THE FUDDRUCKERS AND SOMEONE WALKED UP BEHIND HIM AND TOUCHED HIM ON THE SHOULDER. HE STATED THAT HE THOUGHT IT WAS ONE OF THE BROTHERS TRYING TO KILL HIM, AND THEREFORE HE JUST TURNED AND THREW A BLOCK WITH HIS LEFT ARM, AND STARTED STABBING WITH THE KNIFE IN HIS RIGHT HAND. HE EXPLAINED THAT HE WAS STABBING BOTH HIGH AND LOW, AND THAT AFTER THE FIRST COUPLE OF STABBING MOTIONS HE REALIZED THAT IT WAS SHAWN. HE SAID THAT HE COULDNT BELIEVE IT AND THEN GOT SCARED AND CRAZY, AND JUST KEPT ON STABBING AT HER, 6, 8, OR POSSIBLY 10 TIMES. HE MAINTAINED THAT HE WAS VERY SCARED AND SO HE RAN BACK TO HIS APT, BUT THAT THE FIRST THING HE DID WAS TURN ON THE T. V. AND CHECK THE SCORE ON THE FOOTBALL GAME BECAUSE HE HAD A BET ON THE GAME FOR THE DENVER BRONCOS TO LOOSE. HE TOOK OFF HIS CLOTHES AND WAS WEARING A PAIR OF RED SHORTS AND WALKED OUTSIDE A SHORT TIME LATER TO LET THE DOG IN. HE WENT DOWNSTAIRS AND THE DOG WANTE TO PLAY IN THE PARKING LOT, SO HE STATES HE RAN BACK AND FORTH A FEW TIMES WITH THE DOG. HE THEN SAW THE POLICE HELICOPTER FLY OVER AND IT SHINED THE SPOTLIGHT ON HIM, SO HE WENT INSIDE. HUGHES STATED THAT HE TOOK THE KNIFE OFF OF HIS BELT, AND HID IT IN A BOX IN THE CLOSET. HE LEFT HIS CLOTHES LAYING ON THE FLOOR AND WENT TO BED. IT WAS A LITTLE WHILE LATER WHEN SGTS. GAFFORD AND BLOYD KNOCKED AT THE DOOR.
DURING THE TIME THAT THE STATEMENT WAS BEING TAKEN, PRESTON HUGHES DID NOT APPEAR EMOTIONAL ABOUT THE FACT THAT HE HAD KILLED ANYONE. THE ONLY CONCERN THAT HE VOICED THAT IF HE DIDNT GET TO WORK TOMORROW HE WOULD LOOSE HIS JOB. SGT GAFFORD HAD THE SUSPECT SIGN EACH PAGE INDIVIDUALLY AS IT WAS COMPLETED, AND SGT WOULD THEN GO TO THE NEXT PAGE. THE STATEMENT CONSISTED OF THREE TYPED PAGES, WITH THE FIRST BEGINNING AT 0555 HOURS, THE SECOND BEGINNING AT 0613 HOURS, AND THE THIRD BEGINNING AT 0633 HOURS. PRIOR TO SIGNING EACH PAGE OF THE STATEMENT THE SUSPECT READ THE PAGE, AND ONCE THE ENTIRE STATEMENT WAS COMPLETE THE SUSPECT RE-READ THE ENTIRE STATEMENT. THE SUSPECT TOLD SGT THAT THIS WAS THE WAY THAT THE INCIDENT HAD HAPPENED.
SGT. GAFFORD CALLED SGTS. T.M. ROSS AND L.B. SMITH INTO THE ROOM, AND THESE SGTS SPOKE WITH THE SUSPECT ABOUT THE CIRCUMSTANCES SURROUNDING THE GIVING OF THE STATEMENT. SGT. GAFFORD REMAINED IN THE ROOM FOR A FEW MOMENTS AND THEN LEFT THE ROOM SO THAT ROSS AND SMITH COULD QUESTION THE SUSPECT TO INSURE THAT THE STATEMENT HAS BEEN VOLUNTARY. AFTER COMPLETING THIS PROCESS, SGTS SMITH AND ROSS AFFIXED THEIR SIGNATURES TO THE STATMENT AS WITNESSES AT APPROXIMATELY 0715 HOURS.
(Sgt. Ross - direct pre-trial testimony page 331 verbatim)
coercion or threats? A Not to me, he didn't. Q Did you personally observe the defendant, Preston Hughes, III, sign these documents, all three pages of this document? A Yes, I did. Q Did he sign it more than one place on each page? A Yes, he did. Q Where did he sign it? A He signed it where there's a line for the person that makes the statement to sign and also at the very end of each -- the last sentence of each page. Q Did he make any changes, alterations or deletions from the statement at the time that he signed it, that you recall? A Well, there was a markout area on the first page and I had him initial it so that he would know it had been changed at the time it was signed. I don’t know when it was marked out. Q If you would look at that exhibit there before you where I think the eleventh and twelfth lines of the first page of the statement are underlined and then looking around outside is
(Sgt. Ross - direct Trial testimony page 211 verbatim)
Q Okay. Did he initial them while you were watching him there? A Yes. Q Did he initial each of his rights that are listed on each of those pages? A On the first page only. Q Did he do anything else to indicate that he wanted to make any changes in that statement or add anything to it or take anything out of it? A A change was made, and I had him initial that change. Q Did he indicate, after he made that change, that he wished to change anything else? A No. Q Did he wish to take anything out of the statement, or did he tell you that he wished to add anything to the statement? A Not that I recall, no, sir. Q Okay. After the defendant initialed his rights and made the changes that you've indicated, what happened? A Well, I had him sign it. Q Okay. Did you have him sign each page of the statement? A Yes, I did.
(Sgt. Ross - direct Trial testimony page 212 verbatim)
Q At the end of the text portion, I guess? A Yes. Q Were you satisfied in your mind that the defendant signed the statement voluntarily? A Yes, I was. Q All right. Did the defendant say anything in your presence which would indicate that someone had threatened him in any way to get him to sign the statement? A He did not say anything to me. Q Did he indicate that anyone had made him some promises, perhaps, that things would go easier for him if he made a statement? A No. Q Did he say anything to indicate to you that threats or coercion of any kind had been used to obtain his signature on his statement? A No. Q Have you ever witnessed a statement before? A Yes, I have. Q On many, many occasions? A Several occasions, yes, sir. Q After the defendant signed this statement, which is marked State's Exhibit 3,
(Portion of Sgt. Ross' police report page 2.027 verbatim)
WOOD "HAD BEEN CROSSED OUT. AFTER HUGHES HAD INITIALLED EACH OF HIS RIGHTS AT THE TOP OF ALL THREE PAGES AND SIGNED HIS NAME AT THE LINE PROVIDED AT THE BOTTOM OF EACH PAGE, SGTS. SMITH AND ROSS THEN SIGNED AS WITNESSES ON THE APPROPRIATE LINES ON ALL THREE PAGES. SGT. ROSS THEN REQUESTED THAT HUGHES SIGN HIS NAME AGAIN AT THE END OF THE LINE AT THE BOTTOM OF EACH PAGE TO SHOW WHERE THE STATEMENT ENDED ON EACH PAGE AND HUGHES THEN SIGNED HIS NAME AT THE END OF THE LAST LINE ABOVE THE SIGNATURE LINE.
HUGHES ASKED IF HE COULD USE THE PHONE SO HE COULD CALL HIS BOSS AND TRY TO SAVE HIS JOB. HE WAS TOLD HE COULD USE THE PHONE IF HE WANTED TO AND IT WAS NOTED BY SGT. ROSS THAT HE WAS DRINKING A COKE. WHEN SGT. ROSS WENT BACK TO THE ROOM BECAUSE HE WAVED TO HER TO COME, HE STATED THAT HE HAD TALKED WITH HIS BOSS AND HIS BOSS HAD TOLD HIM THAT IF HE MISSED MORE THAN THREE DAY, THAT HE WOULD BE FIRED. HE WAS ASKED IF SHE THOUGHT HE COULD GET OUT ON A PI BOND AND SHE TOLD HIM THAT IT WAS NOT UP TO HER, THAT THE PEOPLE IN PRE-TRIAL RELEASE AND/OR THE COURT WOULD HAVE TO MAKE THAT DECISION BASED ON SEVERAL FACTORS. HE STATED THAT HE WORKED AT A STEADY JOB. SHE TOLD HIM THEY WOULD TAKE THAT INTO CONSIDERATION BUT THERE WERE OTHER THINGS, SUCH AS IF HE WAS ON PROBATION OR PAROLE OR ON BOND. HE THEN SAID THAT HE WAS ON PROBATION AND ASKED IF HE COULD CALL HIS PROBATION OFFICER. SGT. ROSS TOLD HIM TO GO AHEAD AND CALL AND THEN SHE LEFT THE ROOM AT 7:25A.M. WHEN HE FINISHED TALKING ON THE PHONE, HE AGAIN WAVED FOR SGT. ROSS TO COME TO THE ROOM AND ASKED HER WHAT HE WOULD BE CHARGED WITH--THAT HIS PROBATION OFFICER WANTED TO KNOW. SGT. ROSS ADVISED HIM THAT IF AND WHEN HE WAS FILED ON, IT WOULD BE FOR MURDER. HE THEN REQUESTED SGT. ROSS GET HIS ADDRESS BOOK FROM SGT. BLOYD SO THAT HE COULD CALL HIS AUNTIE. THE BLUE ADDRESS BOOK WAS RETRIEVED FROM SGT. BLOYD AND HE AGAIN USED THE PHONE.
AT 7:42AM, SGTS. ROSS AND BLOYD WITNESSED PRESTON HUGHES SIGN A "VOLUNTARY CONSENT FOR TAKING OF SAMPLES OF BLOOD, URINE, OR HAIR." AFTERWARDS, HUGHES AGAIN USED THE PHONE AND SGT. ROSS LEFT THE ROOM FOR THE LAST TIME.
SUPPLEMENT ENTERED BY = 36217
REPORT VIEWED BY-GA EMPLOYEE NUMBER-080660
DATE CLEARED- 09/27/88
(Prosecutor - Final Arguments Trial Innocent/Guilt page 44 verbatim)
time and I don't think she's clear about exactly what time. It was late. Sometime around 9: 00, something in that time, late in the evening. And where did she leave her? Virtually underneath the window of Preston Hughes' apartment. He could have looked out the window and spit on them. That's the last time she saw Shandra Charles alive, in the parking lot behind his apartment. What else do you have? And yes, we've been the line -- my God, we did scientific testing. Shame on me. We asked the chemist to test these things. They drug their feet around but they finally got it done. If they hadn't done it, you would be hearing lawyers up here saying, "Where's the scientific evidence? Where is it at?" We did the best we could. It's inconclusive, I agree. MR. McCULLOUGH: It's outside the record, contrary to the record, "They did the best they could." THE COURT: overruled. MR. NOLL: Mr. Bolding testified to you he checked the clothing found in the defendant's apartment and he found on the shirt and on the jeans evidence of blood. Not enough to determine it was human blood, not enough to type it. If he
(PHIII 's LETTER TO ATTY RANDOLPH A. MCDONALD VERBATIM)
June 22, 2006
Mr. Preston Hughes III #000939
3872 PM 350 South
Livingston, Texas 77351
Randolph A. McDonald, P.C.
Attorney at Law
3000 smith St.
Houston, Texas 77006
Dear Mr. McDonald:
I am writing to you today concerning a phone conversation you and I had several years ago, during the time you were appointed to represent me on appeal, concerning a certain piece of evidence that was used in the wrongful capital conviction against me. In that conversation you told me of a picture that depicts the pair of eyeglasses, that were admitted into evidence, at the crime scene where the victims in the case were found. I have not been able to obtain a copy of that picture because it, and other evidence that can prove my innocence and save my life, is being purposely witheld from me.
I am now in the very late stages of my appeals and I can really use your assistance in helping me to save my life. I will gratefully appreciate your letting me know what it will cost me to have you provide me with a clear copy of the picture depicting the eyeglasses at the crime scene where the victims in the case were found. I will like to have a hardprint or hardcopy, NOT a xerox or photocopy.
I will like to thank you in advance for your time and cooperation in the above matter. Your assistance is gratefully appreciated. I look forward to receiving a letter of response or visit from you to further discuss the above matter. Please do not hesitate to contact me. Thank you.
Preston Hughes III
(ATTY R. A. MCDONALD'S RESPONSE TO PHIII'S LETTER OF 6/22/06 VERBATIM)
Randolph A. McDonald, P.C.
Attorney at Law
3000 smith St.
Houston, Texas 77006
June 29, 2006
Mr. Preston Hughes III #000939
3872 PM 350 South
Livingston, Texas 77351
Dear Mr. Hughes:
I received your correspondence of June 22, 2006. I do not have the requested information that you asked for. I believe you might be able to obtain them from attorney Dick Wheelan.
Please do not hesitate to contact me should you need further assistance. Good luck!
(Sgt. Gafford - direct pre-trial testimony page 291 verbatim)
admonishments or warnings? A No, sir. Q Instead did you read him his rights from your little statutory card? A Yes. Q And you know, of course, that there is no requirement that he go before a magistrate, that you need -- MR. McCULLOUGH: Objection to that, Your Honor. THE COURT: That will be sustained. BY MR. NOLL: Q Why didn't you take him to a magistrate? A Because we're normally not required to do that. We read him his warning on our own and provide him with every opportunity to not speak to us and that's the reason. Q Do you know someone in the homicide division by the name of Garrison? A No, sir. Q Have you ever heard of any other sergeants in the homicide division using the name of Garrison? A No, sir. Q Did anyone representing themselves to be
(Sgt. Gafford - cross pre-trial testimony page 298 verbatim)
Q Did you tell him he was free to go anytime he wanted to? A Yes, sir, he was there voluntarily. Q Did he know that? A Yes. Q And that was the last piece of information you received before 4:30 that persuaded you that you had probable cause to arrest him? A I don't know what the last piece was. He detailed each of those -each of the things I detailed previously regarding his knowledge of the complainant in this case, the fact that he lived directly behind the location of their death and the fact that she named him, named Preston as the person that had stabbed them was combined to formulate that opinion in our minds. Q Incidentally, I understand that the using of the word "Preston" was relayed to you from some other officer. You didn't hear that, yourself? A No, I didn't. Q Would that have been Officer Hamilton? A Sergeant Hamilton. Q Now, at 4:30 in the morning there is
(Sgt. Gafford - cross pre-trial testimony page 299 verbatim) some magistrate available to give magistrate's warnings, is there not? A I'm not sure. Normally there's not. Q Isn't there a list of municipal court judges who are available, for instance, to give magistrate's warnings around the clock? A I'm not sure of that. Q Well, there for sure is by, say, 8:00 o'clock in the morning, is there not? A Probably so. Q There was no urgency in taking the statement from Mr. Hughes that could not have been delayed until he could have been given a magistrate's warning at 8:00 o'clock, is there? A I felt there was. Q Did you feel he wouldn't give a statement if you delayed until 8: 00 o'clock? A No. I was interested in talking to him as quickly as possible. The longer an investigation is prolonged and the later we wait, the less _chance of everything coming together in a row. It's proven time after time that the longer an investigation drags out, the less chance there is of clearing a case. Q Actually, if you were afraid Mr. Hughes
(Sgt. Gafford - cross pre-trial testimony page 300 verbatim)
had time to think over what he was about to do, that he would not have made a statement if he had had a couple of hours to think about it? A No, sir, that was not a consideration. Q Well, you didn't have any other suspects, did you? A Not at that time. Q But there was nothing physically or otherwise to prevent you from having delayed taking the further statement from Mr. Hughes or conducting further interviews with him until after he could have been warned by a judge of his legal rights? A I read him his warnings and I felt that was all that was necessary. Q But you're not a magistrate? A No, sir. Q And your position in this investigation was not neutral? You were an investigating officer? A I would say it is neutral. I have nothing against Mr. Hughes, have no reason to want to put him in jail. Q What did you tell Mr. Hughes when he told you he didn't want to go to jail? You say,
(Sgt. Gafford - direct pre-trial testimony page 280 verbatim) A No, sir. Q Did he ask you any questions at all about what his rights would be in relationship to signing or not signing the form? A No. Q Did he seem to understand or did you explain to him that the purpose of that form was to find evidence to use against him? A Yes, sir. Q Was this form signed after you had advised him of his statutory warnings that you administered? A Yes, it was. Q Did he sign that form voluntarily in your presence? A Yes. Q Did you ask other officers to witness his signature on this form? A Yes, I did. Q Were those officers' names on that form? A Yes, they are. Q That's Sergeants Bloyd and Ross is that correct? A That's correct. Q Did you also ask him to sign any other?
(Sgt. Gafford - direct pre-trial testimony page 281 verbatim)
consent forms that day? A Yes, sir, I did. Q What was that form? A That was consent for samples of body fluid, hair, urine samples. Q That's a separate form altogether? A That's correct. Q Did he also sign that form? A Yes, he did. Q Did Sergeants Bloyd and Ross also witness that form? A I believe they did. I believe they ' re the ones. Q Did you bring that form with you, by any chance, in your copy of the offense report? A I believe there is a copy in there. MR. NOLL: Your Honor, could we ask - BY MR. NOLL: Q Your report is -- A It's on the file cabinet in the hall. MR. NOLL: Could I step right out, Your Honor? THE COURT: You may. Q MR. NOLL: May I approach the witness, Your Honor? (Sgt. Gafford - direct pre-trial testimony page 282 verbatim) Judge, I would like to ask the witness remove a portion from his report, if it's all right. THE COURT: Very well.
(State's Exhibit No. 2 was marked for identification.) BY MR. NOLL: Q Sergeant Gafford, let me show you what's been marked as State's Exhibit No. 2 for identification. Do you recognize this document? A Yes, I do. Q Is this the document you just removed from your report? A Yes, it is. Q What is this document? A Voluntary consent for takinq of samples of blood, urine or hair. Q Is there a signature on this document? A Yes, sir, there is. Q Whose signature is it? A Preston Hughes, III. Q Is it the same defendant you previously identified in this courtroom? A Yes, it is. Q Again witnessed by Sergeants Bloyd and
(Sgt. Ross - direct trial testimony page 208 verbatim)
homicide division on September 27th of 1988, a Monday? A Yes, I was. Q And that Monday morning, did you have have occasion to witness a statement given by the defendant, Preston Hughes, III? A Yes, I did. Q And do you see that man, Preston Hughes, III, in the courtroom this morning? A Yes, I do. Q Would you point to him and describe him, please? A He's sitting there in the blue blazer and gray slacks and kind of a maroon tie. MR. NOLL: Your Honor, may the record reflect the witness has identified the defendant? THE COURT: Record will so reflect. BY MR. NOLL: Q How did you first come in contact with the defendant, Preston Hughes, III, on that morning? A Sergeant Gafford asked me to come into the room and witness his statement. Q And was there anyone else present in the room at the time you witnessed his statement? • Please request Consent Forms Search and Seizure and Taking Blood, Urine or Hair.
(Portion of Sgt. Gafford's police report page 2.034 verbatim)
SUPPLEMENT ENTERED BY = 88141
REPORT REVIEWED BY-EG EMPLOYEE NUMBER-025810
DATE CLEARED- 09/27/88
ON SATURDAY, APRIL 22, 1989, SGT.GAFFORD MAET WITH ASST DA CHUCK NOLL, THE PROSECUTOR OF THIS INCIDENT AND REVIEWED THE EVIDENCE WHICH HAD BEEN SUBMITTED TO THE PROPERTY ROOM. THE TRIAL IS SCHEDULED TO BEGIN ON MONDAY, MAY 2, 1989. AFTER REVIEWING THE EVIDENCE, NOLL ASKED SGT TO HAVE THE CRIME LAB EXAMINE ALL OF THE EVIDENCE FOR THE PRESENCE OF BLOOD. ON MONDAY, APRIL 24, 1989, SGT RECEIVED A TELEPHONE CALL FROM ADA NOLL, AND SGT WAS ADVISED THAT THE VAGINAL SWAB OBTAINED DURING THE AUTOPSY WAS BEING HELD AT THE MEDICAL EXAMINERS OFFICE, AND NOLL REQUESTED THAT THIS EVIDENCE ALSO BE SUBMITTED TO THE CRIME LAB. SGT. GAFFORD DROVE TO THE HARRIS COUNTY MORGUE AND TOOK CUSTODY OF THE EVIDENCE AND SIGNED FOR ITS RELEASE. SGT THEN TOOK THE EVIDENCE TO THE CRIME LAB WITH A SUBMISSION FORM REQUESTING EXAMINATION. SGT GAFFORD DELIVERED THE SWAB TO JIM BOLDING OF THE CRIME LAB.
CRIME LAB : ATTN. JIM BOLDING
PLEASE EXAMINE THE VAGINAL SWAB SUBMITTED 4/24/89 AS REQUESTED, AND EXAMINE ALL OTHER EVIDENCE PREVIOUSLY SUBMITTED TO THE HPD PROPERTY ROOM UNDER THIS INCIDENT NUMBER FOR THE PRESENCE OF BLOOD. THIS EVIDENCE IS NEEDED FOR A CAPITAL MURDER TRIAL WHICH WILL BEGIN ON MAY 1, 1989.
SUPPLEMENT ENTERED BY = 64486
DATE CLEARED- 09/27/88
Texas Coalition to Abolish the Death Penalty
At Hughes’s 1989 trial, the State presented evidence that Preston Hughes stabbed both of the victims, Shandra Charles, 15 and Marcell Taylor, 3, in the neck and chest, severing their aortas and jugular veins. When the police arrived at the scene, Shandra Charles was still alive. She told a police officer that a man named “Preston” had stabbed her after trying to rape her. The police officers went to an apartment complex near the vacant field in which the victims were found. The manager of the complex gave them a list of tenants. The only tenant named “Preston” was Preston Hughes.
The police officers went to Hughes’s apartment around 2:30 a.m. He agreed to accompany the officers to the police station, where he later gave two written statements in which he admitted that he had stabbed both of the victims. In the first statement, Hughes said that he had been carrying a knife with him because some people had been talking about trying to kill him. He said that, as he was walking home through the vacant field, someone came up behind him and touched him on the shoulder. He said he turned and “just started sticking with the knife.” It was dark, and he could not tell who was there, but after he “stuck the first two times,” he saw that it was Shandra Charles (Hughes called her “Shawn”). He said, “I was “f***ed up and I just got scared and kept sticking.”
In the second statement, Hughes said “Shawn” did not come up behind him and tap him on the shoulder, as he had said in his first statement. Instead, he said that he saw her walking with a little boy. He said that when they met in the middle of the trail through the field, she told him that she was on her way to his apartment to borrow his contact lenses. When he told her that she was not going to wear his contacts, he said that she kissed him, and then started rubbing his crotch. He described in detail the events that occurred next. Suffice it to report that he said heavy sexual activity followed, which became unsatisfactory to Hughes. When “Shawn” demanded money, he refused. She threatened to accuse him of rape and when she hit him, he pulled his knife and began stabbing her. The little boy with “Shawn” looked up at him and started crying. When the boy ran between Hughes and “Shawn,” Hughes stabbed him several times.
At the guilt-innocence phase of the trial, Hughes took the stand in his own defense. He denied that he killed the victims, claimed that he was framed by the police, and testified that he confessed to the crimes only because the police officers struck him and threatened him, causing him to fear for his life. The jury found him guilty of capital murder. At the punishment phase, the State called Tracy H. She testified that Hughes had raped her in 1985, when she was thirteen years old. She testified further that Hughes had threatened her with a gun in an attempt to prevent her from testifying against him about the rape. The State also presented evidence that, at the time of the murders, Hughes was serving two ten-year probated terms for the aggravated sexual assault and aggravated assault of Tracy H.
Hughes v. State, 878 S.W.2d 142 (Tex.Crim.App. 1992). (Direct Appeal) (On Rehearing)
Defendant was convicted in the 174th Judicial District Court, George Goodwin, J., Harris County, of capital murder, and he appealed. On original submission, the Court of Criminal Appeals reversed and remanded. Rehearing was granted. On rehearing, the Court of Criminal Appeals, Meyers, J., held that: (1) defendant was not prejudiced by incorrect denial of challenge for cause to one prospective juror where he was granted additional peremptory strike and the denial of bias challenge for cause of second prospective juror was not abuse of discretion; (2) police had probable cause to make warrantless arrest of defendant; (3) instruction to disregard cured witness' unresponsive answer; (4) no prejudice resulted from admission of photographs of victims' bodies on an autopsy table; and (5) any error associated with prosecutor's improper argument during punishment phase was cured by prompt instruction to disregard. Affirmed. Clinton, J., concurred in the result. Baird, J., dissented and filed opinion in which Overstreet and Maloney, JJ., joined.
Appellant was convicted of capital murder. V.T.C.A. Penal Code § 19.03(a)(6). Upon the jury's affirmative answers to the two issues submitted at punishment, the trial judge sentenced appellant to death. See Art. 37.071(b)(1), (b)(2), and (e), V.A.C.C.P.FN1 Appellant raises twelve points of error in this direct appeal. We will reverse appellant's conviction on the basis of our disposition of his fourth point of error, and address the one point of error challenging the sufficiency of the evidence on the second punishment issue. Lane v. State, 743 S.W.2d 617, 629 (Tex.Crim.App.1987), cert. denied, 504 U.S. 920, 112 S.Ct. 1968, 118 L.Ed.2d 568. FN1. Since appellant's trial, Art. 37.071 has been amended by the 72nd Legislature. V.A.C.C.P. Art. 37.071 (Vernon Supp. 1991).
In his eighth point of error, appellant contends the evidence at trial is insufficient to establish that he would commit criminal acts of violence that would constitute a continuing threat to society. In reviewing the sufficiency of the evidence to support an affirmative answer to the second punishment issue, this Court utilizes the same standard of review for judging the sufficiency of the evidence to support a conviction, viz: we view the evidence in the light most favorable to the verdict to determine whether a rational trier of fact could have found the essential elements of the punishment issue beyond a reasonable doubt. Black v. State, 816 S.W.2d 350, 352 (Tex.Crim.App.1991), cert. denied, sub. nom., Black v. Collins, 504 U.S. 992, 112 S.Ct. 2983, 119 L.Ed.2d 601 (1992). When deliberating on the punishment issues, the jury is entitled to consider all evidence admitted at both phases of trial. We therefore proceed to review that evidence.
The record reflects that officers of the Houston Police Department discovered two persons—one still alive—in a vacant field in Harris County on September 26, 1988. The victims, S____ C____ and M____ T____, had both sustained multiple stab wounds. The aorta and jugular vein of each victim had been severed. Houston police officer Donald Hamilton spoke with S____ C____ at the scene before she died. S____ C____ informed Hamilton that someone named “Preston” had tried to sexually assault her and then had stabbed her. Based on this information, the police officers went to an apartment complex located approximately 100 yards from the vacant field. The police requested and received a list of apartment tenants from the manager of the complex. Appellant was the only person named Preston on the list.
Around 2:30 a.m. on September 27, the police went to appellant's apartment. Appellant admitted the officers into his apartment and answered some questions, none of which mentioned the investigation of S____ C____'s and M____ T____'s deaths. Appellant agreed to accompany the officers to the police station for further questioning. At the police station, the interrogation of appellant continued while the police conducted a computer inquiry to determine whether appellant had a prior criminal record. The inquiry revealed that appellant had been involved in “some sexual assault cases.”
During the interrogation, appellant admitted that he had become acquainted with S____ C____ through a mutual friend. Based upon (1) the proximity of appellant's residence to the scene of the offense, (2) the computer information about appellant's involvement with past sexual assault cases, (3) the statement from S____ C____ that “Preston” had attacked and tried to sexually assault her, and (4) the admission from appellant that he knew S____ C____, the police arrested appellant at 4:30 a.m. on September 27. After arresting appellant, the police informed him of his Miranda FN2 rights and continued to interrogate him. Over the course of several hours, appellant confessed to killing S____ C____ and M____ T____. FN2. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
During the punishment phase of the trial, the State offered testimony and documentary evidence showing that when appellant committed the murders of S____ C____ and M____ T____, he was already serving two ten-year probated terms pursuant to a deferred adjudication judgment. Appellant had been placed on deferred adjudication for committing aggravated sexual assault and aggravated assault FN3 against a thirteen-year-old female, T____ H____. T____ H____ testified that appellant had raped her in 1985 and had forced her to swear to be his girlfriend. Additionally, T____ H____ testified that appellant told her not to contact the police because he kept her home under surveillance. FN3. The aggravated assault conviction has since been vacated by this Court on the basis of the trial court's failure to admonish appellant on the applicable range of punishment. Hughes v. State, 833 S.W.2d 137 (Tex.Crim.App.1992).
Despite this threat, T____ H____ did contact the police and appellant was charged with aggravated sexual assault. As the trial date was approaching in late 1985, appellant confronted T____ H____, told her she should not testify against him, and fired a gun at her. T____ H____ informed the police of this incident, and appellant was charged with aggravated assault. Beyond T____ H____'s testimony, the State also introduced documents wherein appellant was found guilty of the offenses and received two sentences of deferred adjudication for ten years. The record also contains evidence that appellant had been accused of sexual assault in the state of New York and that appellant had failed to attend a number of his scheduled meetings with his probation officer, Mikal Klumpp. Klumpp testified that he tried to accommodate appellant's schedule by remaining at the probation office later than he normally would. Despite Klumpp's efforts, appellant still missed numerous scheduled appointments.
Appellant presented punishment evidence in the form of testimony regarding his character. While few of the witnesses stated that they were aware of appellant's past legal problems, six of appellant's friends testified that he was a good-natured person and not prone to violence. Appellant's mother testified to the same effect. She also testified that, in her opinion, appellant did not pose a threat of future violence. The second punishment question required the State to prove that appellant would, more likely than not, commit violent criminal acts in the future so as to constitute a continuing threat to society, whether he was incarcerated or not. Smith v. State, 779 S.W.2d 417, 421 (Tex.Crim.App.1989). In weighing the evidence, the jury could consider a number of factors, including the existence of a prior criminal record, the severity of any prior crimes, and the calculated nature of the defendant's conduct. Stoker v. State, 788 S.W.2d 1, 7 (Tex.Crim.App.1989). Moreover, the jury may return an affirmative answer to the second punishment issue based solely upon the facts and circumstances of the case being prosecuted. Farris v. State, 819 S.W.2d 490, 498 (Tex.Crim.App.1990); Muniz v. State, 573 S.W.2d 792, 795 (Tex.Crim.App.1978).
Appellant argues that the evidence is insufficient to support the jury's affirmative answer because no one testified that appellant “had a bad reputation for peacefulness, nor was any psychiatric evidence offered on the issue of future dangerousness.” Appellant also argues that the facts of the charged offense alone are not brutal enough by themselves to “justify the death sentence.” The State argues not only that the facts of the instant offense are sufficient to warrant the death penalty, but also that the remainder of the evidence adequately demonstrates the likelihood that appellant would commit criminal acts of violence in the future. Appellant's eighth point of error is without merit. The evidence shows that appellant raped T____ H____ just three years before he attacked and murdered S____ C____ and M____ T____. In an effort to silence T____ H____, appellant threatened her and fired a gun at her. Moreover, appellant's attack upon S____ C____ and M____ T____ was cold and calculating, as evidenced by the severing of each person's aorta and jugular vein. Additionally, the victim who identified her attacker as “Preston,” was a fifteen-year-old girl, approximately the same age as the victim T____ H____. Demonstrably, appellant has a history of sexually assaulting young teenage girls.
While the State did not introduce any psychiatric testimony on the issue of future dangerousness, a jury may return an affirmative answer without such evidence. See Cockrum v. State, 758 S.W.2d 577 (Tex.Crim.App.1988); Crawford v. State, 617 S.W.2d 925 (Tex.Crim.App.1980). On this record, we conclude that a rational jury could have found beyond a reasonable doubt that appellant constituted a continuing threat to society and overrule appellant's point of error eight.
In his fourth point of error, appellant asserts the trial court abused its discretion in denying his challenge for cause to prospective juror Faulkner. Appellant argues Faulkner was properly challengeable for cause pursuant to Art. 35.16(c)(2), V.A.C.C.P., which provides: (c) A challenge for cause may be made by the defense for any of the following reasons: * * * * * * (2) That he has a bias or prejudice against any of the laws applicable to the case upon which the defense is entitled to rely, either as a defense to some phase of the offense for which the defendant is being prosecuted or as a mitigation thereof or the of the punishment therefor. Appellant bases this challenge on Faulkner's understanding of the term probability as that term is used in Art. 37.071(b)(2).FN4 The record reflects the following colloquy during Faulkner's voir dire examination: FN4. Article 37.071(b)(2) asks the jury “whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society.”
Q. (by the prosecutor) Okay. Now, the word probability presents a problem sometimes. To some people who may be from an engineering kind of background, probability can range anywhere from a zero percent probability to a hundred percent probability or anywhere in between. Some people might consider probability being something more than 50 percent. Some people might say it's more likely than not. What are your feelings about the word? When the question asks you: Is there a probability the defendant would commit future criminal acts, how would that word play in your mind? What would you think it would mean? A. (by Faulkner) I would think it would mean to me—and I do have a technical background—that if there is a percentage chance of this occurring, whether it is property damage, et cetera, okay? Then I could answer that yes. Q. So, you would put it on kind of a percentage basis, maybe 10 percent possibility [FN5] or something of that nature? FN5. Unless otherwise indicated, all emphasis is supplied by the author. A. Yes, sir. Q. Would there be a certain percentage point that I would have to reach before you would be able to answer that question yes beyond a reasonable doubt? I mean, like, would you have to have a 10 percent probability or 20 percent probability or 50 percent probability? A. I wouldn't—I could answer that as long as I had a percent. Q. Okay. A. There is no limit on that. If it's 10 percent, then I would have to answer it yes. Q. Depending on the facts of the case. A. The facts of the case, yes.
Defense counsel then questioned Faulkner on this issue to fully understand his position.FN6 The record reflects the following:
FN6. By saying “even though such inquiry [into Faulkner's conception of probability] could have been totally barred by the trial judge, and appellant's counsel would have known nothing of Faulkner's views on ‘probability’ ”, the dissent contends a majority of this Court decides, “based upon ambiguous testimony that the trial judge allowed to be solicited,” that the trial judge abused his discretion. See dis. op. at p. 159. The dissent, in fostering the idea that the trial judge could have foreclosed such questioning, ignores this Court's recent pronouncements in Woolridge v. State, 827 S.W.2d 900 (Tex.Crim.App.1992), where we discussed the voir dire examination of a prospective juror's understanding of an undefined term which will be used in the court's charge to the jury, viz: reasonable doubt. The Court stated that the fact that no definition is provided for a term does not render irrelevant a prospective juror's understanding of that term. Woolridge, 827 S.W.2d at 906. Indeed, “the understanding becomes more crucial to the intelligent exercise of either the State's or the defendant's peremptory challenges[.]” Id. We held there the parties were entitled to question the venireperson on his understanding of an undefined term that, as here, was contained in and crucial to an issue in the court's charge to the jury. Id. In so doing, this Court overruled implicitly Cuevas and its progeny which held that inquiry into an undefined term may be foreclosed by the trial judge. The dissent therefore errs in relying on such caselaw.
Q. (by Defense counsel) Let's talk about your answers related to the probability on Question 2. I understood your testimony, your statement to be that the probability of any percentage would cause you to vote yes. Is that a fair summation of what you said? A. Yes, sir. At the conclusion of Faulkner's voir dire examination, defense counsel moved that “based on his answers related to the probability issue on Question 2 [he] should be stricken for cause[.]” The trial judge denied the motion, the State accepted the prospective juror, but defense counsel peremptorily challenged him. The term “probability” is not statutorily defined, and this Court has repeatedly held the trial court does not err in refusing to instruct the jury as to the definition of the term “probability” as used in the second punishment issue. See Earhart v. State, 823 S.W.2d 607, 632 (Tex.Crim.App.1991); Caldwell v. State, 818 S.W.2d 790, 797 (Tex.Crim.App.1991), and cases cited therein.FN7 According to Art. 3.01, V.A.C.C.P., therefore, the term is to be taken and understood in its usual acceptation in common language.FN8
FN7. Moreover, a trial judge's refusal to define the term poses no constitutional problems. Lewis v. State, 815 S.W.2d 560, 562–63 (Tex.Crim.App.1991). FN8. Article 3.01 provides: All words, phrases and terms used in this Code are to be taken and understood in their usual acceptation in common language, except where specially defined.
Appellant directs us to Cuevas v. State, 742 S.W.2d 331 (Tex.Crim.App.1987), where this Court recognized various dictionary definitions of the term “probability” when addressing the same issue confronting us in the cause sub judice. In Cuevas, we stated: Dictionary definitions of ‘probability’ include: ‘likelihood; appearance of reality or truth; reasonable ground of presumption; verisimilitude; consonance to reason.... A condition or state created when there is more evidence in favor of the existence of a given proposition than there is against it.’ Black's Law Dictionary 1081 (5th ed. 1979); ‘Something that is probable,’ with ‘probable’ meaning ‘supported by evidence strong enough to establish presumption but not proof; likely to be or become true or real.’ Webster's New Collegiate Dictionary (1980). Cuevas, 742 S.W.2d at 347. In that case, the defendant challenged for cause a prospective juror on the basis of his understanding of the term “probability.” The defendant contended the potential juror had a “faulty understanding” of the term as used in the second punishment issue. During his voir dire examination, the venireman stated in several ways his understanding of the term.FN9 After reviewing the venireman's testimony, the Court rejected the defendant's contention that the venireman expressed a faulty understanding of the term “probability” and held the trial court did not abuse its discretion in denying the defendant's challenge for cause on this venireman. Id. at 347.
FN9. The prospective juror stated, e.g., that probability “implies that it is a good chance that it would happen.” “[M]y definition would be that there is a strong potential for that act to be repeated. Not that it is likely to happen, but there is a strong potential for it to happen;” “stronger than possibly;” etc. See 742 S.W.2d at 346.
In the present case, appellant asserts Faulkner's responses are “drastically different” from those elicited from the venireman in Cuevas, and “[i]t simply cannot be doubted that ‘probability’ means more in special issue no. 2 than it did in the mind of Mr. Faulkner.” After reviewing Cuevas, we agree with appellant. Faulkner's answers during his voir dire indicate that he understood “probability” as any percent possibility rather than as a “likelihood” or “good chance”. In its usual acceptation, a “probability” is something more than a “possibility.” FN10 As this Court stated in Smith, 779 S.W.2d 417, 421, in which we relied on Cuevas, “we know that the second special issue calls for proof of more than a bare chance of future violence.” Requiring more than a mere possibility that the defendant would commit criminal acts of violence and would constitute a continuing threat to society prevents the freakish and wanton assessment of the death penalty. FN10. Webster's New Collegiate Dictionary gives the following as an example of the use of the word “possible”: “it is possible but not probable that he will win.”
Since Faulkner understood “probability” as only a “possibility” FN11, he was properly challengeable for cause. We hold the trial court abused its discretion in denying appellant's challenge. Pursuant to Harris v. State, 790 S.W.2d 568, 581 (Tex.Crim.App.1989), appellant has demonstrated that this error was reversible. Appellant's fourth point of error is sustained. FN11. The dissent asserts that Faulkner's voir dire testimony was ambiguous. See dis. op. at p. 159. On the contrary, we find the testimony is quite clear and straightforward, and that the quoted portions of the voir dire upon which the dissent relies neither contradict nor rehabilitate the juror's previously stated views.
The judgment of the trial court is reversed, and the cause remanded to the trial court.
CAMPBELL, Judge, dissenting.
Based upon vague portions of the voir dire record, the majority opinion concludes that the trial judge abused his discretion in denying appellant's challenge for cause of venireperson Charles Faulkner. I cannot agree with the majority's rationale.
A trial court should grant a challenge for cause only if a potential juror's statements indicate that the juror's views “would ‘prevent or substantially impair the performance of his duties as a juror in accordance with his instruction and oath.’ ” Cockrum v. State, 758 S.W.2d 577, 592 (Tex.Cr.App.1988), cert. denied, 489 U.S. 1072, 109 S.Ct. 1358, 103 L.Ed.2d 825 (1989), quoting Sharp v. State, 707 S.W.2d 611, 620 (Tex.Cr.App.1986), cert. denied, 488 U.S. 872, 109 S.Ct. 190, 102 L.Ed.2d 159 (1988). A trial court's decision to grant or deny a challenge for cause is subject to appellate review under an abuse of discretion standard. Cockrum, 758 S.W.2d at 584. The rationale behind according great deference to the trial judge's decision to grant or deny a challenge for cause is that “such a finding is based upon determinations of demeanor and credibility that are particularly within a trial judge's province” because the trial judge sees the jurors and hears their testimony. Wainwright v. Witt, 469 U.S. 412, 428, 105 S.Ct. 844, 854, 83 L.Ed.2d 841 (1985).
Based upon the portions of the voir dire record quoted in the majority opinion, the majority concludes that venireperson Faulkner was biased against the law pertinent to the second punishment issue,FN1 upon which appellant was entitled to rely, in violation of Article 35.16(c)(2).FN2 The remainder of the voir dire record, however, indicates that Faulkner harbored no such bias. During voir dire, other exchanges were as follows: FN1. At the time of appellant's trial, Article 37.071(b)(2) of the Code of Criminal Procedure provided in relevant part: (b) On conclusion of the presentation of the evidence [at the punishment phase], the court shall submit the following three issues to the jury: * * * * * * (2) whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society; FN2. Article 35.16(c)(2) of the Code of Criminal Procedure provides: (c) A challenge for cause [toward a potential juror] may be made by the defense for any of the following reasons: * * * * * * 2. That he has a bias or prejudice against any of the law applicable to the case upon which the defense is entitled to rely, either as a defense to some phase of the offense for which the defendant is being prosecuted or as a mitigation thereof or of the punishment therefor. PROSECUTOR: ... [W]ould you be able to, having found someone guilty of that offense, if the evidence called for it, answer these questions, the Special Issue No. 1 and Special Issue No. 2 in the negative? If that's what the evidence showed you?
FAULKNER: In the— PROSECUTOR: No, would you be able to answer them no if that's what the facts showed you? FAULKNER: Yes, sir. PROSECUTOR: In other words, its the burden on the State to prove to you beyond a reasonable doubt that you should answer these questions yes before you should answer them yes? FAULKNER: Yes, I understand that, yes. PROSECUTOR: If the State doesn't meet that burden, would you be able to answer the question no? FAULKNER: Yes, sir. PROSECUTOR: The fact that a death sentence is out there or a life sentence, depending on the responses, wouldn't influence your answer to those questions? FAULKNER: Yes, sir. PROSECUTOR: You're going to decide it on the facts of the evidence presented? FAULKNER: That is correct. * * * * * * PROSECUTOR: It's for the State to prove that the defendant is guilty, not for him to prove he's not guilty. You understand and agree with that principle? FAULKNER: Yes, sir, I sure do. * * * * * * PROSECUTOR: Likewise, on [Special Issue] 2, if I convince you beyond a reasonable doubt, you will answer yes? FAULKNER: Yes, sir. PROSECUTOR: You are not going to make me prove to you beyond any doubt that the answer should be yes? FAULKNER: No, sir. Additionally, appellant's counsel questioned Faulkner during voir dire. The following exchange occurred between Faulkner and appellant's attorney concerning the second punishment issue. DEFENSE COUNSEL: ... Could you ever, after finding somebody guilty of a capital murder, you, yourself—and you alone know this. As the judge told you, we're here to get your answers. Could you ever vote no on Question 2? FAULKNER: Yes, sir.
Initially, the trial court could have completely foreclosed any inquiry into Faulkner's conception of “probability.” Cuevas v. State, 742 S.W.2d 331, 346 (Tex.Cr.App.1987), cert. denied, 485 U.S. 1015, 108 S.Ct. 1488, 99 L.Ed.2d 716 (1988); Esquivel v. State, 595 S.W.2d 516, 525 (Tex.Cr.App.1980), cert. denied, 449 U.S. 986, 101 S.Ct. 408, 66 L.Ed.2d 251 (1980). Even though such inquiry could have been totally barred by the trial judge, and appellant's counsel would have known nothing of Faulkner's views on “probability,” the majority decides, based upon ambiguous testimony that the trial judge allowed to be solicited, that the trial judge abused his discretion in failing to exclude Faulkner for cause. In making this decision, the majority relies upon language from Cuevas. I fail to see how Cuevas in any way supports the majority's position.
In Cuevas, venireperson Cullather was asked to define “probability.” Cullather responded that “it implies that it is a good chance that it would happen ... [M]y definition would be that there is a strong potential for that act to be repeated. Not that it is likely to happen, but there is a strong potential for it to happen;” “stronger than possibly;” “less than likely ... probability is somewhere between likely and possible;” “somewhere between potential and likely;” “not necessarily ‘more likely than not;’ ” “stronger than a potential;” “not that it was equivalent to potential, that it was somewhere between potential and ‘more likely than not;’ ” “I don't believe that ‘more likely than not’ is to me a criteria;” “a strong likelihood that the act would be repeated;” “a very strong potential of that individual to commit acts of violence.” 742 S.W.2d at 346. This Court noted that the examination of Cullather covered ten pages in the record and provided a perfect illustration of how voir dire could continue interminably if counsel were allowed to question each prospective juror concerning every legal term involved in the case. Id. at 346–347. Cullather's comments were no clearer than those of Faulkner, yet the trial judge committed no abuse of discretion in failing to excuse Cullather for cause. Id. at 347. In concluding that Faulkner's comments belie his bias, the majority relies upon dictionary definitions of “probability” mentioned in Cuevas. Those definitions included “likelihood; appearance of reality or truth; reasonable ground of presumption; verisimilitude; consonance to reason ... A condition or state created when there is more evidence in favor of the existence of a given proposition than there is against it.” Id. These definitions lack consistency. That something is “likely” does not necessarily mean that more evidence favors the existence of that thing.
After reviewing the entire voir dire record, I cannot say that the trial judge clearly abused his discretion in denying appellant's challenge for cause. The quoted portions of the voir dire record upon which the majority relies are vague at best. Faulkner's comments reveal only his internal conception of “probability,” a term that is undefined in law. His statements reveal no propensity to impose the death penalty in a freakish or wanton manner. Throughout the remainder of Faulkner's testimony during voir dire, he stated unequivocally that he would hold the State to its burden of proof, that he would base his answers on the facts of the case, and that he would not answer the second punishment question affirmatively “all the time.” The trial judge observed Faulkner and found no grounds for excluding him from the jury. I would conclude that the trial judge acted within his discretion in refusing to exclude Faulkner for cause because Faulkner's views in no way would have impaired his performance of his duty as a juror, and would overrule appellant's point of error four.
McCORMICK, P.J., and WHITE and OVERSTREET, JJ., join.
OPINION ON STATE'S MOTION FOR REHEARING
On original submission we granted appellant relief and reversed his conviction based on the trial court's denial of a challenge for cause for prospective juror Faulkner. This Court has now granted the States's second ground in their motion for rehearing. The State argues for the first time that “any error from the denial of the challenge for cause was cured because the trial judge did grant appellant one additional peremptory strike.” Consequently, appellant now insists on rehearing that it would be unfair to allow the State to raise this new argument in their motion for rehearing. Because we will allow the State's argument, we overrule appellant's objection and their remaining points of error and affirm the judgment of the trial court.
Today, we are asked to assess the role of appellate courts in direct review cases. Specifically, we must determine what must be argued to an appellate court and what that court must review independently in reaching the merits of the arguments of the parties. Rule 74 of the Texas Rules of Appellate Procedure governs the preparation and filing of briefs in direct appeals to this Court. See Tex.R.App.P. 210(b). We have previously held there are times when, “as justice requires” or “in the interest of justice,” an appellate court may consider a supplemental brief or a motion for rehearing to decide an issue not presented in the original briefs. See Boyle v. State, 820 S.W.2d 122, 141 (Tex.Crim.App.1991) (opinion on rehearing), cert. denied, 503 U.S. 921, 112 S.Ct. 1297, 117 L.Ed.2d 520 (1992); Rochelle v. State, 791 S.W.2d 121 (Tex.Crim.App.1990).
Where an appellate court fails to address issues of whether error has been preserved or forfeited by the parties, the parties may call to the court's attention such failure in a motion for rehearing. This notice gives appellate courts opportunity to examine an issue possibly overlooked, thus promoting efficiency in our legal system. Just as a trial judge has certain independent duties to perform at a trial, when she fails to perform any of those duties the parties may object. Likewise, the parties in an appellate setting may object, through a motion for rehearing, to an appellate court's failure to address systemic requirements on original submission. This objection after the fact is not unfair to one party or the other, but rather it maintains the essential integrity of our system by forcing appellate courts to observe their systemic requirements. In these instances and in the interest of justice, the decision to grant the State's motion for rehearing is left within the sound discretion of our Court. See, Boyle, 820 S.W.2d at 141. Accordingly, the State's second ground in its motion for rehearing is granted to determine whether appellant preserved error in objecting to a venireperson based on a trial court's denial of a challenge for cause.
On original submission we reversed appellant's conviction based on the trial court's denial of a challenge for cause for prospective juror Faulkner. However on rehearing, the State argues that because the trial court reinstated one peremptory strike, appellant has failed to preserve error. In order to preserve error for a trial court's denial of an appellant's valid challenge for cause it must be demonstrated on the record that appellant asserted a clear and specific challenge for cause clearly articulating grounds therefor, that he used a peremptory challenge on that juror, that all his peremptory challenges were exhausted, that his request for additional strikes is denied, and that an objectional juror sat on the case. Harris v. State, 790 S.W.2d 568, 581 (Tex.Crim.App.1989); Felder v. State, 758 S.W.2d 760 (Tex.Crim.App.1988); Payton v. State, 572 S.W.2d 677 (Tex.Crim.App.1978).
In appellant's case, the trial court reinstated one peremptory strike.FN1 Where a trial court reinstates peremptory strikes, to show harm, the party complaining on appeal must show that one additional juror sat on the case than the number of reinstated peremptory strikes. Martinez v. State, 763 S.W.2d 413, 415 (Tex.Crim.App.1988); Bell v. State, 724 S.W.2d 780, 795 (Tex.Crim.App.1986). In this case, to show harm, appellant must show the trial court impermissibly denied his challenge for cause for two prospective jurors. That is, it is not sufficient for appellant merely to show that the trial court incorrectly denied his challenge for cause to prospective juror Faulkner, but rather appellant must show the trial court incorrectly denied his challenge for cause as to a second juror. Therefore we must further address appellant's complaint as to the propriety of the trial court's action concerning a second prospective juror.
FN1. Appellant argues in the motion for rehearing that the additional peremptory strike was granted for an identifiable venireperson. However, we disagree. The record indicates appellant's attorney identified five prospective jurors who were believed to have been improperly ruled upon by the trial court and requested five additional preemptory strikes. The trial court granted one additional preemptory strike but nothing indicates whether, if at all, it was granted for an identifiable prospective juror.
In point of error five, appellant argues that the trial court erred in failing to exclude prospective juror Ignacio Nunez for cause since Nunez was biased against appellant in violation of Article 35.16(a)(9). FN2 Appellant bases his claim of bias upon the fact that Nunez had been a member of the Houston Police Department for the past nine years. As evidence of Nunez's bias, appellant directs our attention to the following exchange between appellant's trial counsel and Nunez: * * * * * * 9. That he has a bias or prejudice in favor of or against the defendant; DEFENSE COUNSEL: Assume that the body of evidence that would lead somebody to a logical conclusion that a person was guilty of a capital murder was based essentially on the credibility of police officers who took a written statement from the defendant. Do you really believe that you could ever disregard the policeman's testimony that it was voluntary, regardless of the other facts, and throw out that confession and find the defendant not guilty? NUNEZ: I believe that would be kind of hard to do. DEFENSE COUNSEL: I understand. That's why I'm asking, as the judge said, we're not interested—we want your attitudes. NUNEZ: Okay. Could it be thrown out, you say? DEFENSE COUNSEL: Thrown out, find the defendant not guilty? Even though you believed that the confession was not voluntary but that it was true and the person was, in fact, really guilty of what he was charged with? NUNEZ: No, sir, I don't think so. DEFENSE COUNSEL: I understand that that would be tough, but your answer is that you could not do that? NUNEZ: No, sir.
Based upon this exchange, appellant also argues that Nunez was excludable under Article 35.16(c)(2).FN3 The State argues in response that the remainder of Nunez's testimony reveals that he was not biased against appellant, but was confused by the question from appellant's attorney. FN3. Article 35.16, in pertinent part provides: (c) A challenge for cause may be made by the defense for any of the following reasons: * * * * * * (2) That he has a bias or prejudice against any of the law applicable to the case upon which the defense is entitled to rely, either as a defense to some phase of the offense for which the defendant is being prosecuted or as a mitigation thereof or of the punishment therefor.
Concerning appellant's challenge to Nunez, this Court faced an analogous situation in Phillips v. State, 701 S.W.2d 875 (Tex.Crim.App.1985), overruled on other grounds, Hernandez v. State, 757 S.W.2d 744, 752 (Tex.Crim.App.1988). In Phillips, we noted that had the challenged juror “clearly and consistently stated that he could not disregard an illegally obtained confession, he would have been subject to a challenge for cause.” Phillips, 701 S.W.2d at 888. When the law had been clearly explained to the juror, however, he indicated that he would follow the law and disregard the confession. Id. Since the entire voir dire revealed that the juror was not biased, the trial court had committed no error in refusing to exclude him for cause. Id.
Likewise, the record of the entire voir dire of Nunez supports the trial court's refusal to excuse Nunez. In response to a question from the trial judge concerning whether he could follow the law and disregard an involuntary confession, Nunez answered, “Yes, sir.” Nunez testified that appellant's attorney had “just explained it a little different[ly]. I didn't understand it, really.” Nunez admitted that he “just got confused on that there.” In response to clarified questions from appellant's attorney, Nunez unequivocally stated that he would disregard an involuntary confession and find a person not guilty of capital murder even if he knew the person had committed the crime. FN4 On this record, we conclude that the trial court committed no abuse of discretion in refusing to grant appellant's challenge for cause regarding Nunez.
FN4. The relevant testimony from the record reads: NUNEZ: I would throw it [the involuntary confession] out. * * * * * * DEFENSE COUNSEL: And find that person that you knew is [sic] guilty of capital murder not guilty? NUNEZ: Yes, sir. Because appellant fails to demonstrate that the trial court incorrectly overruled appellant's strike for cause of two prospective jurors, appellant's fourth and fifth points of error are overruled. The trial court committed no abuse of discretion in overruling appellant's challenge for cause regarding Nunez, and the reinstatement of one peremptory strike cured any error as to prospective juror Faulkner. We now continue with appellant's remaining points of error on appeal.
Appellant's points of error one, two, and three are interrelated. In point of error one, appellant argues that his confessions should have been suppressed because they were the product of an illegal warrantless arrest. In point of error two, appellant argues that certain physical evidence retrieved from his apartment should have been suppressed because it too was the product of an illegal warrantless arrest. In point of error three, appellant argues that the trial court erred in failing to grant his motions to suppress because his warrantless arrest was not supported by probable cause.
Appellant argues in points of error one and two that the State failed to justify his arrest according to the requirements of Articles 14.01 through 14.04 of the Code of Criminal Procedure. We will not address the substance of appellant's arguments concerning the cited provisions of the code because the record reveals that those arguments were not made to the trial court. Neither of appellant's pretrial motions mentions the articles of the code now cited on appeal, nor do they mention any substantive argument based on Articles 14.01 through 14.04. The statement of facts likewise contains no mention of those code provisions. If the objection urged on appeal differs from that urged at trial, nothing is presented for review. Rezac v. State, 782 S.W.2d 869, 870 (Tex.Crim.App.1990). Therefore, we overrule appellant's points of error one and two. Concerning appellant's point of error three, however, his pretrial motion did allege that his arrest was not supported by probable cause. Therefore, we will address the question of whether the police had probable cause to arrest when appellant was arrested at 4:30 a.m. on September 27, 1988. According to appellant, the information “possessed [by the police] was insufficient to warrant a reasonable man to believe that Appellant had committed an offense.” The State argues that appellant's arrest was supported by probable cause.
Probable cause exists “when the facts and circumstances within an officer's personal knowledge and of which he has reasonably trustworthy information are sufficient to warrant a person of reasonable caution in the belief that, more likely than not,” a particular suspect has committed an offense. Castillo v. State, 818 S.W.2d 803, 805 n. 4 (Tex.Crim.App.1991). A probable cause issue, however, cannot be analyzed with mathematical precision according to some generalized formula because the issue, by its very nature, presents “a quintessential example of the necessity for case-by-case determination based upon the facts and circumstances shown.” Woodward v. State, 668 S.W.2d 337, 345 (Tex.Crim.App.1982). In determining whether probable cause exists, we are concerned with “the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.” Id., quoting Brinegar v. United States, 338 U.S. 160, 175 (1949).
Appellant was not arrested until 4:30 a.m. on September 27, some two hours after he voluntarily accompanied the police to the police station. FN5 At the time of the arrest, the police knew that S____ C____ claimed to have been sexually assaulted and stabbed by someone she knew as “Preston.” The empty field in which S____ C____'s and M____ T____'s bodies were found bordered the parking lot of the apartment complex, only 100 yards from where appellant resided. Appellant was the only person living in that complex who was named Preston. At the police station, the police learned that appellant had a prior sexual assault on his record and that appellant knew S____ C____. On this record, we conclude that the State made at least a minimal showing that the facts and circumstances known to the police were sufficient to warrant a reasonably prudent person in the belief that appellant had murdered S____ C____, at the very least. Therefore, we overrule appellant's point of error three. FN5. The trial judge entered findings of fact that appellant was not placed under arrest until 4:30 a.m. and that appellant's confessions were voluntary. Appellant's brief contains no challenge to these findings.
In point of error six, appellant argues that the trial court erred in denying his motion for mistrial, made during the guilt phase, concerning a witness' comment. The prosecutor asked the witness, police officer Theresa Ross, if she knew whom appellant had called from the interview room following his interrogation. Ross testified that she did not know precisely whom appellant had called, but that appellant had told her that he had called “his boss and his parole officer.” Appellant objected, and the trial court struck the comment from the record and instructed the jury to disregard it. Appellant argues that the comment was prejudicial to him because he has never been on parole and the comment “obviously implied that Appellant had at least one prior felony conviction.” In response, the State argues that the instruction to disregard cured any error.
The general rule is that a trial judge's instruction to disregard will be sufficient to cure any unresponsive answer. Williams v. State, 643 S.W.2d 136, 138 (Tex.Crim.App.1983). As Ross could have answered simply that she did not know whom appellant had called, her answer was unresponsive. Also, the reference to “parole” was undoubtedly inadmissible. The reference, however, was not embellished in any way and “was not so inflammatory as to undermine the efficacy of the trial court's instruction to disregard it.” Gardner v. State, 730 S.W.2d 675, 697 (Tex.Crim.App.1987). We overrule appellant's point of error six.
In point of error seven, appellant complains of the trial court's admission in evidence of three photographs of the bodies of S____ C____ and M____ T____ which were taken while the bodies were on an autopsy table. Appellant argues that the photographs should not have been admitted because the State failed to lay the proper predicate for admissibility. Appellant's complaint is that the identifying witness, Dr. Robert Jordan, could not “possibly testify that he [knew the pictures] fairly and accurately reflect[ed] what [was] shown in them.” The State argues that the proper predicate was laid under Texas Rule of Criminal Evidence 901. Additionally, the State argues that since previous testimony was elicited from two investigating officers concerning the wounds inflicted on S____ C____ and M____ T____, there was no error in admitting pictures that depicted those wounds.
Police officers Don Hamilton and Vincent Cook testified and described the wounds which are depicted in the pictures, without objection from appellant. “An objection to photographic evidence is waived if the same information contained in the photographs is conveyed to the jury in some other form.” Havard v. State, 800 S.W.2d 195, 205 (Tex.Crim.App.1989). Appellant waived any objection by failing to object to the testimony which conveyed the same information to the jury.
Also, Dr. Robert Jordan, an assistant medical examiner for the Harris County Medical Examiner's Office, verified the pictures. A witness who verifies a photograph need not have been the actual photographer, nor even have been present when the photograph was taken. DeLuna v. State, 711 S.W.2d 44, 46 (Tex.Crim.App.1986). There was no error in the trial court's admission of the photographs. We overrule appellant's point of error seven.
In point of error nine, appellant argues that the trial court erred in refusing to grant his motions for mistrial made during the punishment phase. The motions were based upon questions from the prosecutor and “the exhibiting of inadmissible matter before the jury.” The “inadmissible matter” appellant refers to is State's exhibit 50, a copy of a sworn complaint filed by one C____ H____ dated January 25, 1985, made out against appellant for a rape incident that occurred in Buffalo, New York. The prosecutor asked T____ H____, another alleged sexual assault victim of appellant, “T____, did you find out after Preston raped you that he raped a girl in New York?” (i.e., C____ H____) The prosecutor also asked T____ H____, “Did you find out anything about Preston after he assaulted you?” FN6 A third question from the prosecutor inquired of T____ H____, “What did your mother say when she found out this man had gone out and raped another girl?” The trial court sustained each of appellant's objections to these questions and instructed the jury to disregard the initial question. FN6. This question concerned the sexual assault on C____ H____ that occurred in Buffalo, New York.
Later, appellant took the witness stand, and the prosecutor proceeded to question him about the rape allegations contained in exhibit 50. The prosecutor asserted that appellant had moved from New York to Houston “because in 1983, C____ H____, a 16–year–old girl in New York swore out a complaint that you raped her at knifepoint.” Appellant's attorney objected, to which appellant responded, “Don't object. That was my ex-girlfriend. We went together.” A short time later, the prosecutor was saying “I'll ask you to explain why she swore in a sworn affidavit she claimed you grabbed her at knifepoint when she was—,” when appellant's attorney objected. Appellant asserted, however, that he “would like to discuss this.” At that point the trial judge held a hearing outside of the jury's presence. The trial judge sustained appellant's objections and instructed the jury to “disregard the last question of the prosecutor[,] ... the defendant's uncounseled response to the same[, and] ... any references to any documents that are not in evidence ...” Additionally, the trial judge prohibited the State from placing exhibit 50 before the jury.
Upon further cross-examination, the prosecutor asked appellant, “It's a fact you left Buffalo, New York, because you were arrested and charged with first degree rape; isn't that true?” After appellant's attorney responded, “Object to that,” the trial court overruled the objection. Appellant subsequently admitted that he had been arrested and charged with first degree rape in 1983 in New York. Appellant's attorney lodged no objection to this answer. Appellant claims that this record shows that the “express desire on the part of the State [was] to inflame the minds of the jurors on the issue of future dangerousness.” Based upon these errors, appellant “requests that the judgment be reformed to reflect life imprisonment.” The State argues that any errors were cured by the trial court's instructions and that appellant waived any other errors by both failing to object and by voluntarily testifying. An instruction to disregard normally cures error concerning improper remarks and the admission of evidence. Stoker, 788 S.W.2d at 13; Woods v. State, 653 S.W.2d 1, 5 (Tex.Crim.App.1982). The trial judge expressly instructed the jury to disregard any references to any documents not in evidence, the prosecutor's questions, and even appellant's uncounseled responses. Any error concerning these matters was cured by the court's explicit instructions.
Concerning appellant's arguments about his own responses and his attorney's general objection, we conclude that appellant's arguments are without merit. “[W]hen a defendant offers the same testimony as that objected to, or the same evidence is introduced from another source, without objection, the defendant is not in position to complain on appeal.” Stoker, 788 S.W.2d at 13. Appellant voluntarily discussed the rape allegations stemming from the incident in New York. Therefore, we conclude that appellant is not in a position to complain on appeal and overrule appellant's point of error nine.
In point of error twelve, appellant complains of the trial court's admission in evidence of State's exhibits 47 and 51 during the punishment phase of the trial. State's exhibits 47 and 51 are documents pertaining to appellant's ten-year deferred adjudication term for aggravated assault against T____ H____. Appellant argues that when he entered his plea in that case, he was not properly admonished according to the requirements of Article 26.13. FN7 Appellant's conviction for aggravated assault was reversed by this Court in Hughes v. State, 833 S.W.2d 137 (Tex.Crim.App.1992). However, the admission of these exhibits was harmless. See Tex.R.App.P. 81(b)(2).
FN7. Article 26.13 provides in pertinent part: (a) Prior to accepting a plea of guilty or a plea of nolo contendere, the court shall admonish the defendant of: (1) the range of the punishment attached to the offense; * * * * * * (b) No plea of guilty or of nolo contendere shall be accepted by the court unless it appears that the defendant is mentally competent and the plea is free and voluntary. (c) In admonishing the defendant as herein provided, substantial compliance by the court is sufficient, unless the defendant affirmatively shows that he was not aware of the consequences of his plea and that he was misled or harmed by the admonishment of the court. In this case, the State not only admitted the judgment, but they also called T____ H____ to the stand. She testified that one afternoon in the summer between her eighth and ninth grade school years appellant came over to her mother's apartment. She answered the door, and spoke to appellant, whom she knew through his cousin. As she was preparing to go to the beach that afternoon and had to change clothes, she said goodbye and began shut the door. Appellant put his foot in the door and barged inside. T____ H____ then recounted the details of how appellant raped her. Appellant was subsequently arrested for aggravated sexual assault.
Between the time of his release on the sexual assault charge and his trial, appellant allegedly approached the victim, threatened her if she testified, and when she turned to run, fired a gun at her. Appellant took the stand in this cause and testified that neither the rape nor the assault ever took place. Most of the testimony concerning this issue involved not the assault charge but rather the question of whether appellant raped T____ H____, as well as another rape charge in the State of New York. The admission of the two convictions tend to corroborate T____ H____'s version of the story. However, the incremental harm of the admission of appellant's deferred adjudication for the aggravated assault is negligible when compared to the admission of appellant's deferred adjudication for aggravated sexual assault with a child. If the jury believed T____ H____ was credible and believed her story and if that belief was the result of the deferred adjudication, there is no incremental change in that belief based on the presence or absence of the second deferred adjudication documents. Accordingly, the admission of appellant's judgment for aggravated assault is harmless beyond a reasonable doubt in this instance, and appellant's twelfth point of error is reversed. See Tex.R.App.P. 81(b)(2).
Appellant's points of error ten and eleven both concern jury argument by the prosecution. Since appellant's brief combines points ten and eleven for discussion, we will address them in combination. During closing argument on punishment, the prosecutor said “I suggest to you that the testimony of T____ H____ alone is enough to put the needle in this man's arm. And for that little girl to be brought down here and for [appellant's attorneys] to put her on trial again is not right.” The trial court overruled appellant's objection to the final comment. Shortly thereafter, the prosecutor said “They [appellant's attorneys] have done nothing wrong. They're trying to protect their client. It's their job. It doesn't mean it's the right thing to do.” The trial court sustained appellant's objection to the final comment and instructed the jury to “disregard the last remark of the prosecutor and not consider it for any purpose whatsoever.” Appellant's motion for mistrial, however, was overruled. FN8. During the closing arguments by the State, Defense Counsel argued appellant did not present a future danger, and that in fact he could be rehabilitated. In response the State recalled the testimony of T____ H____. The following is the complete exchange between the prosecution, defense and trial court: PROSECUTOR: ... Then he came down here to Houston, and lo and behold, God forbid, poor little old Preston, another dirty girl gets him and sets him up, another 13–year–old vixen entices him into the house. He didn't do it. There was another guy over there. I know the girl but I didn't do it.
But what about this new incident down here? You heard [T____ H____]'s testimony? I almost cried because I had to put her up here and make her relive the testimony again. It was me that called her up the day before her prom to tell her story again and it hurts to do that. But you have to hear that because that little girl was raped in her momma's bedroom and this man made her take a Bible our and swear on it, “I'll be your girlfriend.” What kind of person does that? The kind of person who will never do an act of violence against a woman or anybody else? I suggest to you that the testimony of [T____ H____] alone is enough to put the needle in this man's arm. And for that little girl to be brought down here and for [defense counsel] to put her on trial again is not right.
DEFENSE COUNSEL: Objection. He put her on the stand, Your Honor. I object to him raising the issue that we've done something wrong by protecting our client's rights, by asking a few simple questions on cross examination of the witness he put on the stand. I object to it. PROSECUTOR: I apologize. I don't want to insinuate— DEFENSE COUNSEL: I don't want his apology. PROSECUTOR: I'm not saying [defense counsel] has done anything wrong. DEFENSE COUNSEL: I object, Mr. Prosecutor. I have made an objection. THE COURT: The objection will be overruled. PROSECUTOR: They have done nothing wrong. They're trying to protect their client. It's their job. It doesn't mean it's the right thing to do. DEFENSE COUNSEL: I object to him striking at my client over the shoulders of counsel by accusing us of doing something that ain't the right thing to do which was clearly within the rules, would have been malpractice if we hadn't done it. I request the jury be instructed to disregard counsel's remarks. THE COURT: The objection will be sustained. Jury will disregard the last remark of the prosecutor and not consider it for any purpose whatsoever. DEFENSE COUNSEL: I would move for further relief, Your Honor. THE COURT: That will be denied.
In his tenth point of error, appellant complains of the trial court's act of overruling his initial objection. In his eleventh point of error, appellant complains of the trial court's refusal to grant his motion for mistrial. The substance of appellant's argument is that the prosecutor's comments were so prejudicial that an instruction to disregard could not cure the harm they caused. Additionally, appellant argues that the trial court's overruling of his initial objection compounded the error by functioning as “a license for the second, more direct, comment.” The State responds that both comments were cured, the initial remark by the prosecutor's apology FN9 and the latter remark by the court's instruction. FN9. The State cites, and we are aware of, no authority for the proposition that an apology from the prosecutor cures any type of error.
To be proper, jury argument must constitute either (1) a summation of the evidence, or (2) a reasonable deduction from the evidence, or (3) a response to an opponent's argument, or (4) a plea for law enforcement. Gomez v. State, 704 S.W.2d 770, 771 (Tex.Crim.App.1985). While we agree that the prosecutor's arguments were not totally proper, we disagree with appellant's contention that a reformation of his sentence is required. This argument is unlike that made in Gomez, where the prosecutor implied that the defense attorney was willing to suborn perjury.FN10 Id. at 772. In the instant case, the trial court certainly erred in overruling appellant's initial objection. The second comment, however, came almost immediately after the initial remark. Even though the trial judge told the jury to disregard only the “last remark,” we read the record to indicate that the trial judge realized his error and promptly instructed the jury to disregard the prosecutor's argument. Appellant admits that the second remark was even “more direct.” FN11 We conclude that any error associated with the overruling of appellant's objection to the initial remark was cured by the prompt instruction to disregard the second remark and, accordingly, overrule appellant's points of error ten and eleven.
FN10. The dissenting opinion claims, citing our ‘special concern’ for jury argument in Gomez, that the “State's argument improperly struck at appellant over the shoulders of his counsel and the trial judge by overruling appellant's objection.” On the contrary, we remain fully cognizant of that concern but conclude that Gomez is not dispositive of this case. In Gomez, the trial judge sustained the appellant's objection to the prosecutor's initial argument that appellant's counsel was paid “to manufacture evidence.” 704 S.W.2d at 771. However, when the prosecutor further elaborated upon that argument by stating that appellant's counsel was paid “to get this defendant off the hook,” the trial judge overruled appellant's objection. Id. Thus, the trial court left the jury with the final impression that such argument, that appellant's attorney would suborn perjury, was proper. In this case, the trial judge left the jury with the final impression that the argument was improper.
FN11. The dissenting opinion makes much of the first and second objections by defense counsel, and states the “second” objection which was sustained by the trial court was only for the last argument of the Prosecutor. However, when we view the entire voir dire and exchange between the trial court and trial attorneys, it is not quite that clear. The exchange by the parties indicates the defense attorney believed the prosecutor was arguing defense counsel put T____ H____ on the stand. (However, the prosecutor had only minutes before said the opposite). He objected and in between all the arguments, the prosecutor attempted to make it clear that he had in fact called the witness. The trial court overruled defense counsel's objection, apparently believing it was clear who called the witness. Then when the prosecutor continued in his argument concerning defense counsel's behavior, the trial court sustained defense counsel's objection and instructed the jury to disregard the prosecutor's argument. From the record it appears the trial court's initial ruling concerned who put the girl on the stand, and the second ruling and instruction concerned defense counsel's cross-examination of the girl.
The judgment of the trial court is AFFIRMED. Appellant is permitted to file a motion for rehearing in this cause. CLINTON, J., concurs in the result.
BAIRD, Judge, dissenting.
To resolve point of error ten, the majority concludes the jury disregarded a portion of the State's argument even though appellant's objection to that argument was overruled and the trial judge's subsequent curative instruction was limited to a separate portion of the State's argument. In other words, the majority holds the jury disregarded the trial judge's instruction and did more than the instruction required. Such a result oriented and perverse resolution of this point of error is without support from any authority from this or any other Court.
During the punishment phase of the trial the State presented the testimony of T____ H____, the complainant whom appellant had previously sexually assaulted. Thereafter, during the State's closing argument, the following exchange took place: PROSECUTOR: I suggest to you that the testimony of T____ H____ alone is enough to put the needle in this man's arm. And for that little girl to be brought down here and for Mr. McCullough and Mr. Thomas to put her on trial again is not right. DEFENSE COUNSEL: Objection. He put her on the stand, Your Honor. I object to raising the issue that we've done something wrong by protecting our client's rights, by asking a few simple questions on cross-examination of the witness he put on the stand. I object to it. PROSECUTOR: I apologize. I don't want to insinuate— DEFENSE COUNSEL: I don't want his apology. PROSECUTOR: I'm not saying Mr. McCullough or Mr. Thomas has done anything wrong. DEFENSE COUNSEL: I object, Mr. Prosecutor. I have made an objection. TRIAL COURT: The objection will be overruled.FN1 FN1. Unless otherwise indicated, all emphasis is supplied. The State's argument continued as follows: PROSECUTOR: They have done nothing wrong. They're trying to protect their client. It's their job. It doesn't mean it's the right thing to do. DEFENSE COUNSEL: I object to him striking at my client over the shoulders of counsel by accusing us of doing something that ain't the right thing to do which was clearly within the rules, would have been malpractice if we hadn't done it. I request that the jury be instructed to disregard counsel's arguments. TRIAL COURT: The objection will be sustained. Jury will disregard the last argument of the prosecutor and not consider it for any purpose whatsoever. MR. McCULLOUGH: I would move for further relief, Your Honor.FN2
FN2. All parties had made a prior agreement that the court would interpret the phrase, “I would move for further relief,” as a motion for mistrial. TRIAL COURT: That will be denied.
This Court has consistently recognized four categories of permissible jury argument: (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) answer to argument of opposing counsel; and, (4) plea for law enforcement. Todd v. State, 598 S.W.2d 286 (Tex.Cr.App.1980), and Alejandro v. State, 493 S.W.2d 230 (Tex.Cr.App.1973). It is clear the instant jury argument was not a summation of the evidence, a reasonable deduction from the evidence, or a plea for law enforcement. Therefore, the issue is whether the State's argument was an answer to the argument of appellant's counsel. My review of the record reveals that the State's argument was not in response to appellant's argument. Appellant's counsels did not refer to, or otherwise mention, the testimony of T____ H____ during their closing arguments. Therefore, the State's argument was not permissible.
It is axiomatic in our criminal jurisprudence that a defendant “[h]as the right to confront and fully cross-examine all persons who have testimony relevant to criminal charges.” Ex parte Grothe, 687 S.W.2d 736, 739 (Tex.Cr.App.1984). See, Davis v. Alaska, 415 U.S. 308, 311, 94 S.Ct. 1105, 1108, 39 L.Ed.2d 347 (1974); Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967); and Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973). In the instant case, the State called T____ H____ as a witness. My review of the record reveals that appellant's counsel did nothing more than assert appellant's Sixth Amendment right of cross-examination. See also, Tex. Const. art. I § 10. This Court has consistently “[s]hown a special concern for final arguments that constitute uninvited and unsubstantiated accusations of improper conduct directed at a defendant's attorney.” Gomez v. State, 704 S.W.2d 770, 771 (Tex.Cr.App.1985). See, Fuentes v. State, 664 S.W.2d 333 (Tex.Cr.App.1984); Boyde v. State, 513 S.W.2d 588, 592 (Tex.Cr.App.1974); and Bray v. State, 478 S.W.2d 89 (Tex.Cr.App.1972). In Boyde and Gomez we noted that the general public does not understand the concept that defense attorneys are under an ethical obligation to represent the accused regardless of their personal opinion of their client. In Boyde we stated: This general misunderstanding by the public serves to contribute to the prejudicial effect of an argument by a prosecutor which strikes at a member of the bar for representing a person accused of crime. Boyde, 513 S.W.2d at 592. I believe the State's argument improperly struck at appellant over the shoulders of his counsel and the trial judge erred by overruling appellant's first objection.
The State contends the error was cured when the prosecutor apologized after defense counsel's objection. This argument fails for two reasons. First, after offering the apology, the prosecutor continued the same objectionable argument. Secondly, we have never held that an apology cures error. The jury is required to follow the trial judge's ruling; an apology does not serve as a curative instruction. FN3. The majority agrees. Hughes v. State, 878 S.W.2d at 158, fn. 10 (Tex.Cr.App.1993) (opinion on rehearing).
The State next contends, and the majority agrees, that the error in overruling appellant's objection to the initial argument was cured by the prompt instruction to disregard the second argument. This is a non sequitur. The first objection was overruled. Therefore, the trial judge never instructed the jury to disregard the State's initial improper argument. The trial judge's instruction was directed only to the second argument and should not be stretched to apply to the argument to which appellant first objected. In Orona v. State, 791 S.W.2d 125, 129 (Tex.Cr.App.1990), we held: “We do not reach the question whether the improper argument was cured because the trial judge overruled the objection and for that obvious reason, no instruction to disregard was given.” Finally, in similar circumstances we have held “[t]hat a trial judge, by overruling an objection to an improper argument, puts ‘the stamp of judicial approval’ on the improper argument, thus magnifying the possibility for harm.” Good v. State, 723 S.W.2d 734, 738 (Tex.Cr.App.1986) (quoting Burke v. State, 652 S.W.2d 788, 790 (Tex.Cr.App.1983). Therefore, the trial judge's subsequent instruction did not cure the error caused by the State's initial argument. FN4. This is not to say that on every occasion where the State continues an improper jury argument, after an erroneous ruling by the trial court, the error cannot be cured. However, to cure such error the trial judge must do more than provide a cursory instruction to the jury to merely disregard the improper comment. See, Long v. State, 823 S.W.2d 259, 269 (Tex.Cr.App.1991). Although the majority recognizes the trial judge overruled the State's first improper argument and specifically limited his instruction to the second argument, the majority chooses to “read the record to indicate that the trial judge realized his error and promptly instructed the jury to disregard the prosecutor's argument.” Hughes v. State, 878 S.W.2d at 158 (Tex.Cr.App.1993) (opinion on rehearing). The majority's action is not supported either by the record or by our case law. “In the instant case, the appellant lodged a timely objection which the trial court overruled, permitting the jury to believe the argument was proper....” Orona, 791 S.W.2d at 129. It is highly improper for a majority of this Court to acknowledge error and then search the record to find a separate objection and an unrelated curative instruction to avoid conducting a harm analysis.
A harmless error analysis is required by Tex.R.App.P. 81(b)(2).FN5 See, Orona, 791 S.W.2d at 129–130 (Rule 81(b)(2) applicable to improper jury argument) and Griffin v. State, 779 S.W.2d 431 (Tex.Cr.App.1989). Rule 81(b)(2) provides:
FN5. Prior to the enactment of Tex.R.App.P. 81(b)(2) similar jury arguments constituted reversible error even when the trial judge sustained the objection and instructed the jury to disregard the argument. Bell v. State, 614 S.W.2d 122 (Tex.Cr.App.1981); Lewis v. State, 529 S.W.2d 533 (Tex.Cr.App.1975); Boyde v. State, 513 S.W.2d 588 (Tex.Cr.App.1974); Jones v. State, 205 S.W.2d 590 (Tex.Cr.App.1947). “In these cases, we found the argument so inflammatory as to be incurable by jury instruction.” Gomez, 704 S.W.2d at 772.
If the appellate record in a criminal case reveals error in the proceedings below, the appellate court shall reverse the judgment under review, unless the appellate court determines beyond a reasonable doubt that the error made no contribution to the conviction or to the punishment. In Harris v. State, 790 S.W.2d 568, 584 (Tex.Cr.App.1989), we recognized that Rule 81(b)(2) was the rhetorical and semantic equivalent of the harmless standard announced by the Supreme Court in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), where it was held that the State had the burden of proving beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained. FN6. The U.S. Supreme Court in Chapman held, “Certainly error, constitutional error, in illegally admitting highly prejudicial evidence or comments, casts on someone other than the person prejudiced by it a burden to show that it was harmless. It is for that reason that the original common-law harmless-error rule put the burden on the beneficiary of the error either to prove that there was no injury or to suffer a reversal of his erroneously obtained judgment.” Chapman v. California, 386 U.S. at 24, 87 S.Ct. at 828. To perform a harmless error analysis an appellate court should consider six factors. In Harris, we held:
In summary, a reviewing court in applying the harmless error rule should not focus upon the propriety of the outcome of the trial. Instead, an appellate court should be concerned with the integrity of the process leading to the conviction [or punishment]. Consequently, the court should  examine the source of the error,  the nature of the error,  whether or to what extent it was emphasized by the State, and  its probable collateral implications. Further, the court should consider  how much weight a juror would probably place upon the error. In addition, the court must also determine  whether declaring the error harmless would encourage the State to repeat it with impunity. In summary, the reviewing court should focus not on weight of the other evidence of guilt [or punishment], but rather on whether error at issue might possibly have prejudiced the jurors' decision-making; it should ask not whether the jury reached the correct result, but rather whether the jurors were able properly to apply law to facts in order to reach a verdict. Harris, 790 S.W.2d at 587–588.
The source of the error in the instant case involved an officer of the court, as it will in all cases of improper jury argument. When such an error is committed by one schooled and familiar with the intricacies of trial, the error is enhanced. Second, the nature of the error was to imply that appellant's trial counsel had engaged in improper conduct when, as previously noted, the conduct was constitutionally mandated. Third, when the objection was overruled, the State did not abandon the argument but rather continued along the same line thus emphasizing the perceived impropriety on the part appellant's trial counsel. In Orona, even though the defendant's objection to the improper jury argument was overruled, the State “completely abandoned its argument.” However, we specifically noted: “If the State had sought to advance its argument after the objection, then an opposite result might be necessary.” Id. 791 S.W.2d at 130. In the instant case, the prosecutor rather than abandoning the argument chose to advance the argument. Fourth, the probable collateral implications were that the jury would feel the cross-examination of T____ H____ was improper and should not have been undertaken. This implication would be drawn because the general public does not understand the concept that defense attorneys are under an ethical obligation to represent the accused regardless of their personal opinion of their client. See, Boyde, 513 S.W.2d at 592; and Gomez, 704 S.W.2d at 772. Fifth, while it is difficult to determine how much weight a juror would probably place upon the argument, any weight given to the argument was improper because appellant's trial counsel did nothing more than discharge their constitutional duty to provide appellant with effective assistance of counsel.
Finally and, I believe, most importantly in the instant case, we must determine whether declaring the error harmless would encourage the State to repeat the improper argument with impunity. Since the enactment of Rule 81(b)(2), we have repeatedly held improper jury argument harmless. FN7 Our past applications of Rule 81(b)(2) have effectively excluded improper jury argument from any meaningful appellate review. Our reluctance to reverse a case after finding improper jury argument only encourages the State to repeat the error with impunity. The vast majority of cases coming before this Court on direct appeal demonstrate that the State is repeatedly and consistently making improper jury arguments.
FN7. See, Drew v. State, 743 S.W.2d 207 (Tex.Cr.App.1987); Rose v. State, 752 S.W.2d 529 (Tex.Cr.App.1987); Bower v. State, 769 S.W.2d 887 (Tex.Cr.App.1989); Harris v. State, 784 S.W.2d 5 (Tex.Cr.App.1989); Griffin v. State, 779 S.W.2d 431 (Tex.Cr.App.1989); Jacobs v. State, 787 S.W.2d 397 (Tex.Cr.App.1990); Orona v. State, 791 S.W.2d 125 (Tex.Cr.App.1990); and Madden v. State 799 S.W.2d 683 (Tex.Cr.App.1990). In light of the foregoing six factors of Harris, I cannot conclude beyond a reasonable doubt that the error did not contribute to the punishment assessed.
Almost twenty years ago in Alejandro we paused to note, [r]ecently we have had an alarming number of improper jury arguments to consider and it is hoped that the warning signal has been heard. Needless to say, the prosecutor sees all his trial work go for naught if the case has to be reversed because of improper jury argument. Alejandro, 493 S.W.2d at 231. The teachings of Alejandro should not be ignored. The majority's reluctance to penalize the State for improper jury argument only encourages the State to argue outside the four general categories of permissible jury argument. I would sustain point of error ten. FN8. Although appellant requests the Court to reform his sentence to confinement for life, the proper remedy is to remand this cause to the trial court. OVERSTREET and MALONEY, JJ., join this opinion.
Hughes v. Quarterman, 530 F.3d 336 (5th Cir. 20008). (Federal Habeas)
Background: Following affirmance, 878 S.W.2d 142, of state murder convictions and sentence of death, and exhaustion of state postconviction remedies, state prison inmate sought federal habeas relief. The United States District Court for the Southern District of Texas, Kenneth M. Hoyt, J., denied petition. The Court of Appeals granted in part inmate's application for certificate of appealability (COA).
Holdings: The Court of Appeals, E. Grady Jolly, Circuit Judge, held that: (1) state's abuse-of-writ doctrine was independent and adequate state ground for barring claim of improper jury instructions; (2) argument that jury-instruction claim had been unavailable at time of initial state postconviction relief petition was not good cause for procedural default; (3) state court's determination of harmless error as to admission of prior aggravated assault conviction during penalty phase was not contrary to federal law; and (4) state court's determination that prosecutor's improper closing argument did not render entire trial fundamentally unfair was not contrary to federal law. Affirmed.
E. GRADY JOLLY, Circuit Judge:
Preston Hughes, III was convicted and sentenced to death in Texas for the 1988 murders of fifteen-year-old Shandra Charles and her three-year-old cousin, Marcell Taylor. Hughes sought federal habeas relief as to both his conviction and sentence. We granted a COA authorizing Hughes to appeal the district court's denial of federal habeas relief as to three claims arising from the sentencing trial. Hughes v. Dretke, 160 Fed.Appx. 431 (5th Cir.2006) (unpublished). We now AFFIRM the judgment of the district court.
At Hughes's 1989 trial, the State presented evidence that Hughes stabbed both of the victims in the neck and chest, severing their aortas and jugular veins. When the police arrived at the scene, Shandra Charles was still alive. She told a police officer that a man named “Preston” had stabbed her after trying to rape her. The police officers went to an apartment complex near the vacant field in which the victims were found. The manager of the complex gave them a list of tenants. The only tenant named “Preston” was the petitioner. The police officers went to Hughes's apartment around 2:30 a.m. He agreed to accompany the officers to the police station, where he later gave two written statements in which he admitted that he had stabbed both of the victims.
In the first statement, Hughes said that he had been carrying a knife with him because some people had been talking about trying to kill him. He said that, as he was walking home through the vacant field, someone came up behind him and touched him on the shoulder. He said he turned and “just started sticking with the knife.” It was dark, and he could not tell who was there, but after he “stuck the first two times,” he saw that it was Shandra Charles (Hughes called her “Shawn”). He said, “I was ‘f***ed up and I just got scared and kept sticking.’ ” In the second statement, Hughes said “Shawn” did not come up behind him and tap him on the shoulder, as he had said in his first statement. Instead, he said that he saw her walking with a little boy. He said that when they met in the middle of the trail through the field, she told him that she was on her way to his apartment to borrow his contact lenses. When he told her that she was not going to wear his contacts, he said that she kissed him, and then started rubbing his crotch. He described in detail the events that occurred next. Suffice it to report that he said heavy sexual activity followed, which became unsatisfactory to Hughes. When “Shawn” demanded money, he refused. She threatened to accuse him of rape and when she hit him, he pulled his knife and began stabbing her. The little boy with “Shawn” looked up at him and started crying. When the boy ran between Hughes and “Shawn,” Hughes stabbed him several times.
At the guilt-innocence phase of the trial, Hughes took the stand in his own defense. He denied that he killed the victims, claimed that he was framed by the police, and testified that he confessed to the crimes only because the police officers struck him and threatened him, causing him to fear for his life. The jury found him guilty of capital murder.
At the punishment phase, the State called Tracy Heggar. She testified that Hughes had raped her in 1985, when she was thirteen years old. She testified further that Hughes had threatened her with a gun in an attempt to prevent her from testifying against him about the rape. The State also presented evidence that, at the time of the murders, Hughes was serving two ten-year probated terms for the aggravated sexual assault and aggravated assault of Heggar. The defense called several witnesses. Six of Hughes's friends and his mother testified that he was a good-natured, non-violent person. Hughes also testified in his own behalf at the punishment phase. He denied that he raped or threatened Tracy Heggar. He professed sorrow for the deaths of the victims, but denied that he committed the murders. He promised the jury that he would not be violent in the future and asked the jury to spare his life. The jury gave affirmative answers to the special issues on deliberateness and future danger, and, accordingly, the trial court sentenced Hughes to death.
The Texas Court of Criminal Appeals affirmed Hughes's conviction and sentence on direct appeal. Hughes v. State, 878 S.W.2d 142 (Tex.Crim.App.1993) (opinion on rehearing), cert. denied, 511 U.S. 1152, 114 S.Ct. 2184, 128 L.Ed.2d 902 (1994). On October 21, 1996, Hughes filed an application for state habeas relief. The Texas Court of Criminal Appeals denied the application based on the trial court's findings of fact and conclusions of law. Ex parte Hughes, No. 45,876-01 (Tex.Crim.App. Sept. 13, 2000). On April 24, 2001, Hughes filed a second state habeas application. The Texas Court of Criminal Appeals dismissed the application as an abuse of the writ under Article 11.071, Section 5 of the Texas Code of Criminal Procedure. Ex parte Hughes, No. 45,876-02 (Tex.Crim.App. Nov. 14, 2001). The district court denied Hughes's petition for federal habeas relief and denied a COA.
Based on our limited, threshold inquiry and general assessment of the merits of Hughes's claims, we granted a COA authorizing Hughes to appeal the denial of habeas relief for the following claims: (1) Whether the claim is procedurally barred that the jury instructions at the punishment phase of the trial gave the jury no means for considering and giving effect to Hughes's mitigating evidence and, if not, whether the claim has merit; (2) Whether, at the punishment phase, the jury was improperly allowed to consider a prior conviction that was later overturned on appeal; and (3) Whether, at the punishment phase, the prosecutor violated Hughes's Fourteenth Amendment rights by suggesting to the jury that Hughes's counsel was callous and morally wrong to put Tracy Heggar, the rape victim who testified as a witness for the State, through the rigors of cross-examination. The parties filed supplemental briefs on the merits, as well as letter briefs addressing cases decided by our court and the Supreme Court of the United States. B. With respect to the claims adjudicated on the merits in state court, Hughes is not entitled to federal habeas relief unless the state court's adjudication of his claims (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d). The state court's factual determinations “shall be presumed to be correct”, and the petitioner “shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).  The AEDPA standards of review cited above do not apply when we review the denial of a claim on procedural grounds, because there has not been an “adjudication on the merits” by the state court with respect to such a claim. See Valdez v. Cockrell, 274 F.3d 941, 946-47 (5th Cir.2001). We review the district court's conclusions of law de novo. Nelson v. Quarterman, 472 F.3d 287, 293 (5th Cir.2006) (en banc), cert. denied, --- U.S. ----, 127 S.Ct. 2974, 168 L.Ed.2d 719 (2007). We now turn to consider the claims for which we granted a COA.
Hughes argues that the jury instructions at the punishment phase of his trial did not give the jury a means for considering and giving full effect to the mitigating evidence that he presented. The district court held that this claim is procedurally defaulted because Hughes raised it for the first time in his second state habeas application, which was dismissed by the state court as an abuse of the writ, and that Hughes had not shown cause for the default or actual prejudice, nor could he demonstrate that the failure to consider the claim would result in a fundamental miscarriage of justice. Alternatively, it denied relief on the merits. Because we agree with the district court that the claim is procedurally defaulted, and that Hughes has failed to establish cause and prejudice or a fundamental miscarriage of justice, we do not address the merits of the claim.
A federal habeas claim is procedurally defaulted when the state court has based its rejection of the claim on a state procedural rule that provides an adequate basis for relief, independent of the merits of the claim. Coleman v. Thompson, 501 U.S. 722, 729-32, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). To be “adequate” to support the judgment, the state law ground must be both “firmly established and regularly followed” by the state courts. Ford v. Georgia, 498 U.S. 411, 423-24, 111 S.Ct. 850, 112 L.Ed.2d 935 (1991) (internal quotation marks and citations omitted). There is a presumption “that there is no independent and adequate state ground for a state court decision when the decision fairly appears to rest primarily on federal law, or to be interwoven with the federal law, and when the adequacy and independence of any possible state law ground is not clear from the face of the [state court] opinion.” Coleman, 501 U.S. at 735, 111 S.Ct. 2546 (internal quotation marks and citation omitted).
Federal habeas review of procedurally defaulted claims is barred “unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.” Id. at 750, 111 S.Ct. 2546. “[T]he existence of cause for a procedural default must ordinarily turn on whether the prisoner can show that some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule.” Id. at 753, 111 S.Ct. 2546 (internal quotation marks and citation omitted). “Examples of external impediments include active governmental interference or the reasonable unavailability of the factual or legal basis for the claim.” Rodriguez v. Johnson, 104 F.3d 694, 697 (5th Cir.1997). To demonstrate actual prejudice, the petitioner must show “ ‘not merely that the errors ... created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.’ ” Smith v. Quarterman, 515 F.3d 392, 403 (5th Cir.2008) (quoting Murray v. Carrier, 477 U.S. 478, 493, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986)). The fundamental miscarriage of justice exception to the cause requirement of the procedural default doctrine is limited to cases in which the petitioner can show that “a constitutional violation has ‘probably resulted’ in the conviction of one who is ‘actually innocent’ of the substantive offense,” Dretke v. Haley, 541 U.S. 386, 393, 124 S.Ct. 1847, 158 L.Ed.2d 659 (2004) (quoting Murray, 477 U.S. at 496, 106 S.Ct. 2678), or, in the capital sentencing context, the petitioner can show “ ‘by clear and convincing evidence that, but for a constitutional error, no reasonable juror would have found the petitioner eligible for the death penalty under the applicable state law.’ ” Id. (quoting Sawyer v. Whitley, 505 U.S. 333, 336, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992)).
The Texas Court of Criminal Appeals dismissed Hughes's second state habeas application, in which he raised this claim for the first time, as an abuse of the writ, citing Texas Code of Criminal Procedure Article 11.071, Section 5. This court has held that, since 1994, the Texas abuse of the writ doctrine has been consistently applied as a procedural bar, and that it is an independent and adequate state ground for the purpose of imposing a procedural bar. See Kunkle v. Dretke, 352 F.3d 980, 988-89 (5th Cir.2003); see also Fearance v. Scott, 56 F.3d 633, 642 (5th Cir.1995) (holding that Texas common law abuse of the writ doctrine has been strictly and regularly applied since 1994 and is an independent and adequate procedural bar); Emery v. Johnson, 139 F.3d 191, 195-96 (5th Cir.1997) (holding that the Texas statutory abuse of the writ rule, Article 11.071, section 5, is an adequate and independent procedural bar).
Notwithstanding our precedent, Hughes argues that the Texas abuse of the writ doctrine is not an adequate and independent state law ground because federal law was used as guidance for the codification of the Texas common law abuse of the writ doctrine and because the state statute is dependent upon federal law for its application. The Texas statute provides that “a court may not consider the merits of or grant relief based on the subsequent application unless the application contains sufficient specific facts establishing” (1) that the claim could not have been presented in a previous application because the factual or legal basis of the claim was unavailable; (2) that “by a preponderance of the evidence, but for a violation of the United States Constitution no rational juror could have found the applicant guilty beyond a reasonable doubt,” or (3) that “by clear and convincing evidence, but for a violation of the United States Constitution no rational juror would have answered in the state's favor one or more of the special issues that were submitted to the jury ....” Tex.Code Crim. P. Art. 11.071 § 5(a). The use of federal law as guidance for the enactment and application of the Texas statute cited by the Court of Criminal Appeals as the basis for its rejection of Hughes's claims does not, as Hughes suggests, mean that the court's decision rested primarily on federal law or was interwoven with federal law. No application or interpretation of federal law is required to determine whether a claim has, or could have, been presented in a previous habeas application. The Texas Court of Criminal Appeals did not need to consider or decide the merits of Hughes's constitutional claims in reaching its decision to dismiss those claims as an abuse of the writ pursuant to Article 11.071, Section 5. Furthermore, there is nothing in its perfunctory dismissal of the claims that suggests that it actually considered or ruled on the merits. Accordingly, its decision was independent of federal law for purposes of application of the procedural default doctrine. See Stewart v. Smith, 536 U.S. 856, 860, 122 S.Ct. 2578, 153 L.Ed.2d 762 (2002).
Hughes next argues that he has shown cause and prejudice and a miscarriage of justice sufficient to overcome the procedural bar. As cause for the default, Hughes submits that state habeas counsel was not appointed until a short time before his initial state habeas petition was due, and that the initial state habeas petition was filed in a rushed effort to toll the federal statute of limitations, at approximately the time Article 11.071 was enacted. The district court held that, although the changes in the law were external factors, Hughes had failed to allege how the government had interfered with his ability to discover and investigate his claims, or that his claims were unavailable at the time he filed his direct appeal or his first state habeas application, or why his pleadings could not have been amended to raise the claims.
Notwithstanding the fact that the Texas Court of Criminal Appeals dismissed his PenryFN1 claim, asserted in his second state habeas application, as an abuse of the writ, Hughes argues that this court should reach the merits of his claim because Ex parte Robertson, No. AP-74,720, 2008 WL 748373 (Tex.Crim.App. Mar.12, 2005) (unpublished), held that the legal basis for raising a meritorious Penry claim was previously unavailable prior to the Supreme Court's 2004 decisions in Tennard v. Dretke, 542 U.S. 274, 124 S.Ct. 2562, 159 L.Ed.2d 384 (2004), and Smith v. Texas, 543 U.S. 37, 125 S.Ct. 400, 160 L.Ed.2d 303 (2004) ( per curiam). In Tennard and Smith, the Supreme Court rejected this court's “relevance” test for Penry claims. That test “required that petitioner's evidence show (1) a uniquely severe permanent handicap with which the defendant was burdened through no fault of his own and (2) that the criminal act was attributable to this severe permanent condition.” Nelson, 472 F.3d at 291 n. 2 (brackets, internal quotation marks, and citation omitted). Hughes therefore contends that he satisfies the conditions for filing a subsequent state habeas application. We disagree. FN1. Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989) ( Penry I).
In Ex parte Hood, 211 S.W.3d 767 (Tex.Crim.App.2007), the Texas Court of Criminal Appeals held that Tennard and Smith did not provide a new legal basis for relief. Hood, 211 S.W.3d at 780. Instead, it concluded that such claims could have been reasonably formulated from Penry I and other previously available case law. Id. at 779. The court stated that, “if the legal basis for the claim was recognized by or could have been reasonably formulated from a Supreme Court decision, any federal court of appeals decision, or any state appellate court decision, then the applicant has failed to meet the unavailability exception” under Article 11.071, Section 5. Id. at 775. With respect to prejudice, Hughes asserts that he should not be held liable for the prejudice that was directly the result of near-simultaneous changes in state law, state appointment of counsel procedures, and attempts to comply with new federal law. “Absent a showing of cause, it is not necessary for the court to consider whether there is actual prejudice.” Martin v. Maxey, 98 F.3d 844, 849 (5th Cir.1996).
Hughes next argues that the fundamental miscarriage of justice exception should apply because he is actually innocent of killing the victims and because he is actually innocent of the death penalty, inasmuch as there is insufficient evidence to support the jury's findings on the special punishment issues of deliberateness and future dangerousness. We agree with the district court's conclusion that Hughes has not established that he fits within the fundamental miscarriage of justice exception. He has not presented any evidence establishing that he did not commit the murders, and the evidence was more than sufficient to sustain the jury's answers to the special issues. In sum, we agree with the district court's conclusion that Hughes's Penry claim is procedurally defaulted, and that he has failed to establish cause and prejudice or a fundamental miscarriage of justice, to excuse the default.
Hughes contends next that he is entitled to habeas relief because, during the punishment phase of his trial, the jury improperly considered a prior conviction that was later reversed on direct appeal. As we have mentioned previously, Tracy Heggar was called as a witness for the State at the punishment phase. She testified that Hughes had raped her in May 1985, when she was 13 years old. She testified further that, about a year after sexual assault charges had been filed against him, she saw Hughes when she was on her way to school; he pulled up in front of her and told her that he didn't want her to testify, and then he pulled out a gun and shot it a couple of times. As a result, charges were filed against him for aggravated assault. The State introduced evidence that, at the time of the murders, Hughes was serving two ten-year terms of probation pursuant to deferred adjudications for the aggravated sexual assault and aggravated assault of Tracy Heggar.
At the conclusion of the capital murder trial, the trial court granted the State's motion to revoke Hughes's probation and adjudicate guilt as to both offenses. On appeal, the Texas Court of Criminal Appeals reversed the aggravated assault conviction on the ground that Hughes had not been admonished properly regarding the range of punishment for that offense. Hughes v. State, 833 S.W.2d 137, 140 (Tex.Crim.App.1992) (en banc) (opinion on rehearing). However, the court found that Hughes had been properly admonished regarding the aggravated sexual assault charge and affirmed that conviction. Id. at 140. On direct appeal from the capital murder conviction and death sentence, the Court of Criminal Appeals held that the admission of evidence of the aggravated assault conviction was error, but that the error was harmless beyond a reasonable doubt. The court explained: In this case, the State not only admitted the judgment [of conviction for aggravated assault], but they also called [Heggar] to the stand. She testified that one afternoon in the summer between her eighth and ninth grade school years [Hughes] came over to her mother's apartment. She answered the door, and spoke to [Hughes], whom she knew through his cousin. As she was preparing to go to the beach that afternoon and had to change clothes, she said goodbye and began [to] shut the door. [Hughes] put his foot in the door and barged inside. [Heggar] then recounted the details of how [Hughes] raped her. [Hughes] was subsequently arrested for aggravated sexual assault.
Between the time of his release on the sexual assault charge and his trial, [Hughes] allegedly approached [Heggar], threatened her if she testified, and when she turned to run, fired a gun at her. [Hughes] took the stand in this cause and testified that neither the rape nor the assault ever took place. Most of the testimony concerning this issue involved not the assault charge but rather the question of whether [Hughes] raped [Heggar], as well as another rape charge in the State of New York. The admission of the two convictions tend[s] to corroborate [Heggar's] version of the story. However, the incremental harm of the admission of [Hughes's] deferred adjudication for the aggravated assault is negligible when compared to the admission of [Hughes's] deferred adjudication for aggravated sexual assault [of] a child. If the jury believed [Heggar] was credible and believed her story and if that belief was the result of the deferred adjudication, there is no incremental change in that belief based on the presence or absence of the second deferred adjudication documents [relating to the aggravated assault]. Accordingly, the admission of [Hughes's] judgment for aggravated assault is harmless beyond a reasonable doubt in this instance .... Hughes v. State, 878 S.W.2d at 156-57 (opinion on rehearing).
Hughes raised this claim again in his first state habeas application. The state habeas court found that the claim was procedurally barred because Hughes failed to raise a timely objection to the evidence at trial. The court further concluded that the issue was not cognizable on habeas because the claim had already been raised and rejected on direct appeal. Alternatively, the state habeas court held that the claim was without merit for the same reason that it was rejected on direct appeal-that the evidence of the aggravated assault conviction was harmless beyond a reasonable doubt. Hughes asserted the claim again in his second state habeas application, which the Texas Court of Criminal Appeals dismissed as an abuse of the writ.
Hughes is entitled to federal habeas relief on this claim “only if the [Texas Court of Criminal Appeals] applied harmless-error review in an ‘objectively unreasonable’ manner.” Mitchell v. Esparza, 540 U.S. 12, 18, 124 S.Ct. 7, 157 L.Ed.2d 263 (2003) (citations omitted). “[I]n § 2254 proceedings a court must assess the prejudicial impact of constitutional error in a state-court criminal trial under the ‘substantial and injurious effect’ standard set forth in Brecht [ v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993)].” Fry v. Pliler, --- U.S. ----, 127 S.Ct. 2321, 2328, 168 L.Ed.2d 16 (2007). In Fry, the Supreme Court stated:
Given our frequent recognition that [the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”)] limited rather than expanded the availability of habeas relief, it is implausible that, without saying so, AEDPA replaced the Brecht standard of actual prejudice with the more liberal AEDPA/ Chapman standard which requires only that the state court's harmless-beyond-a-reasonable-doubt determination be unreasonable. That said, it certainly makes no sense to require formal application of both tests (AEDPA/ Chapman and Brecht) when the latter obviously subsumes the former. Id. at 2327 (internal quotation marks and citations omitted). Accordingly, in assessing the reasonableness of the state court's application of harmless error review, we must determine whether the erroneous admission of Hughes's aggravated assault conviction had a substantial and injurious effect on the verdict at the punishment phase. We conclude that it did not, and that the state court's application of harmless error review is neither contrary to, nor an unreasonable application of, clearly established federal law. As the state court observed, Heggar and Hughes both testified. Most of Heggar's testimony concerned the aggravated sexual assault. If the admission of Hughes's conviction for aggravated sexual assault caused the jury to believe Heggar's testimony, it is not likely that the erroneous admission of his conviction for aggravated assault had any incremental effect on the jury's determination of her credibility.
Hughes's reliance on Johnson v. Mississippi, 486 U.S. 578, 108 S.Ct. 1981, 100 L.Ed.2d 575 (1988), and Brown v. Sanders, 546 U.S. 212, 126 S.Ct. 884, 163 L.Ed.2d 723 (2006), is misplaced. In Johnson, the Supreme Court invalidated a death sentence where the “sole evidence” supporting one of the aggravated circumstances that led to the imposition of the death sentence was a prior felony conviction that was later reversed. Id. at 581. Hughes's aggravated assault conviction was neither the strongest nor the sole evidence of his future dangerousness. Furthermore, the jury in Johnson heard no evidence of the conduct underlying his prior felony conviction that was later reversed. Id. at 585-86, 108 S.Ct. 1981. Here, in contrast, Heggar testified about the details forming the basis for both the aggravated sexual assault and aggravated assault convictions. In Brown v. Sanders, the Court held that “[a]n invalidated sentencing factor (whether an eligibility factor or not) will render the sentence unconstitutional by reason of its adding an improper element to the aggravation scale in the weighing process unless one of the other sentencing factors enables the sentencer to give aggravating weight to the same facts and circumstances.” 546 U.S. at 220, 126 S.Ct. 884. Moreover, the facts and circumstances underlying the subsequently invalidated conviction were properly before the jury through Tracy Heggar's testimony. Because the state court's conclusion that the error was harmless was neither contrary to, nor an unreasonable application of, clearly established federal law as determined by the Supreme Court, we affirm the district court's denial of habeas relief as to this claim. We now turn to the final claim for which we granted a COA.
Hughes argues that the prosecutor violated his rights under the Fourteenth Amendment by criticizing Hughes's counsel for cross-examining Tracy Heggar. Specifically, Hughes points to the following portion of the prosecutor's closing argument at the punishment phase: STATE: ... I suggest to you that the testimony of Tracy Heggar alone is enough to put the needle in this man's arm. And for that little girl to be brought down here and for [defense counsel] to put her on trial again is not right. DEFENSE: Objection. He put her on the stand, Your Honor. I object to him raising the issue we've done something wrong by protecting our client's rights, by asking a few simple questions on cross examination of the witness he put on the stand. I object to it. STATE: I apologize. I don't want to insinuate ... DEFENSE: I don't want his apology. STATE: I'm not saying that [defense counsel] has done anything wrong. DEFENSE: I object, Mr. Prosecutor. I have made an objection. COURT: The objection will be overruled. STATE: They have done nothing wrong. They're trying to protect their client. It's their job. It doesn't mean it's the right thing to do. DEFENSE: I object to him striking at my client over the shoulders of counsel by accusing us of doing something that ain't the right thing to do which was clearly within the rules, would have been malpractice if we hadn't done it. I request that the jury be instructed to disregard counsel's remarks. COURT: The objection will be sustained. Jury will disregard the last remark of the prosecutor and not consider it for any purpose whatsoever. DEFENSE: I would move for further relief, Your Honor. COURT: That will be denied.
On direct appeal, the Texas Court of Criminal Appeals held that the argument was improper and that the trial court erred by overruling the initial objection. However, it concluded that the error was cured by the prompt instruction to disregard the second comment: To be proper, jury argument must constitute either (1) a summation of the evidence, or (2) a reasonable deduction from the evidence, or (3) a response to an opponent's argument, or (4) a plea for law enforcement. Gomez v. State, 704 S.W.2d 770, 771 (Tex.Crim.App.1985). While we agree that the prosecutor's arguments were not totally proper, we disagree with [Hughes's] contention that a reformation of his sentence is required. This argument is unlike that made in Gomez, where the prosecutor implied that the defense attorney was willing to suborn perjury. Id. at 772. In the instant case, the trial court certainly erred in overruling [Hughes's] initial objection. The second comment, however, came almost immediately after the initial remark. Even though the trial judge told the jury to disregard only the “last remark,” we read the record to indicate that the trial judge realized his error and promptly instructed the jury to disregard the prosecutor's argument. [Hughes] admits that the second remark was even “more direct.” We conclude that any error associated with the overruling of [Hughes's] objection to the initial remark was cured by the prompt instruction to disregard the second remark and, accordingly, overrule [Hughes's] points of error ten and eleven. Hughes v. State, 878 S.W.2d at 157-58 (opinion on rehearing).
Improper remarks by a prosecutor “are a sufficient ground for habeas relief only if they are so prejudicial that they render the trial fundamentally unfair.” Harris v. Cockrell, 313 F.3d 238, 245 (5th Cir.2002). “Such unfairness exists only if the prosecutor's remarks evince either persistent and pronounced misconduct or ... the evidence was so insubstantial that (in probability) but for the remarks no conviction would have occurred.” Id. at 245 (internal quotation marks and citation omitted). “The relevant question is whether the prosecutors' comments so infected the trial with unfairness as to make the resulting conviction a denial of due process.” Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986) (internal quotation marks and citation omitted). A curative instruction may reduce the risk of prejudice to the defendant. See Ward v. Dretke, 420 F.3d 479, 499 (5th Cir.2005). The state court's decision-that the improper argument was not so egregious as to render the entire trial fundamentally unfair, and that the prompt curative instruction significantly reduced the risk of unfair prejudice-is neither contrary to, nor an unreasonable application of clearly established federal law as determined by the Supreme Court. We therefore affirm the district court's denial of habeas relief for this claim.
For the foregoing reasons, the judgment of the district court denying Hughes's petition for federal habeas relief is AFFIRMED.