In issues numbers one and two, appellant argues that "[t]he evidence brought forth at trial, while possibly sufficient to show that [he] may be guilty of burglary or theft, [was] insufficient, either legally or factually, to prove that [he] is guilty of capital murder." Appellant argues further that "there [was] not even a scintilla of evidence to prove that [he] killed the victim or that the killing occurred to facilitate the taking of any property, or that the intent to take the property occurred before or contemporaneously with the killing." The State argues in response that "appellant may not assert an error . . . from the guilt-innocence phase of the trial when he is appealing from a retrial of . . . the punishment phase."

at 887. On remand, the trial court's jurisdiction was statutorily limited to punishment issues. Lopez v. State, 18 S.W.3d 637, 640 (Tex.Crim.App. 2000). After remand, appellant's right to appeal was limited to issues that arose during remand. That being the case, appellant's issues numbers one and two, which challenge the sufficiency of the evidence to support his conviction, present nothing for our review. We overrule issues numbers one and two.

In issue number seventeen, appellant argues that the evidence adduced at the second punishment hearing was legally insufficient to support the jury's affirmative answer to the first special issue, which concerned his future dangerousness. Appellant argues in particular that: (1) "There [was] no evidence that [he] was on drugs [at the time of the murder], that the robbery had been planned in advance, or that the killing of Mr. Syvertson was particularly brutal." (2) "There [was] no evidence that he attempted to resist arrest or harm the [arresting] officers [or even] elude [them]." (3) "All of [his] prior crimes were crimes against property, not crimes of violence." (4) The State's psychiatric evidence was deserving of little weight because it lacked "a scientific basis." (5) "Appellant's disciplinary record in prison show[ed] a decrease [over time] in the number and severity of disciplinary actions taken against him."

In addition to the foregoing, the State presented the testimony of two psychiatrists (Drs. Tynus McNeel and Edward Gripon) and one psychologist (Dr. Sue Stone). All three testified that the evaluation of a criminal defendant's future dangerousness was within their professional training and expertise. All three also testified that, in light of appellant's criminal and prison records and the extreme nature of the instant offense, their professional opinion was that he would probably be a future danger.

The State had the burden of proving beyond a reasonable doubt that the answer to the first special issue was "yes." Art. 37.071, § 2(c). In other words, the State had the burden of proving beyond a reasonable doubt that there is a probability that appellant, if allowed to live, would commit criminal acts of violence, so as to constitute a continuing threat to people and property. Ladd v. State, 3 S.W.3d 547, 557 (Tex.Crim.App. 1999). As an appellate court reviewing the legal sufficiency of the evidence to support the jury's affirmative answer to the first special issue, we must consider all of the record evidence in the light most favorable to the State and determine whether, based on that evidence and reasonable inferences therefrom, any rational jury could have found beyond a reasonable doubt that the correct answer to the first special issue was "yes." Id. at 558. If, given all of the evidence, a rational jury would have necessarily entertained a reasonable doubt as to the correct answer to the first special issue, we must reform the trial court's judgment to reflect a sentence of imprisonment for life. Art. 44.251(a).

Applying these principles to the instant case, we conclude that the evidence was legally sufficient to support the jury's affirmative answer to the first special issue. On this record, a rational jury could have concluded beyond a reasonable doubt that appellant exhibited a dangerous aberration of character, that he was a chronic and increasingly dangerous violator of our state's criminal laws, and that if he were allowed to live, there is a probability that he would commit criminal acts of violence in the future, so as to constitute a continuing threat to people and property. We overrule issue number seventeen.

In issue number three, appellant argues that the trial court violated the Cruel and Unusual Punishments Clause of the Eighth Amendment and the Due Process Clause of the Fourteenth Amendment when it failed to define for the jury the term "probability" as used in the first special issue. Appellant argues that, in common usage, the term "probability" can mean "any possibility" and that, because the trial court failed to define the term, "a juror would have been compelled to answer the first special issue 'yes' if [he was] convinced that there was even the remotest probability of future violence by appellant."

The trial court did not err in failing to define the term "probability" as used in the first special issue. The term is not statutorily defined, and we presume that jurors give it its usual meaning. Renteria v. State, 206 S.W.3d 689, 706 (Tex.Crim.App. 2006). We overrule issue number three.

In issue number four, appellant argues that the trial court violated the Cruel and Unusual Punishments Clause of the Eighth Amendment and the Due Process and Equal Protection Clauses of the Fourteenth Amendment when it failed to define for the jury the phrase "criminal acts of violence" as used in the first special issue. More specifically, appellant argues:

"'Criminal acts of violence' could be interpreted as falling at every point along the scale from deeds of grotesque savagery to the slightest assault [or even offenses that damage only property]. So long as a defendant caused some bodily injury, or even simply physical pain, he is guilty of assault. If the function of the death penalty [statute] is to provide a principled distinction between those who deserve death and those who do not, an instruction that would exclude a person who might commit a minor assaultive offense, but is very unlikely to commit a grave act of violence, is called for. Aggravating circumstances (of which this is one) may not apply to every person convicted of murder and those aggravating circumstances may not be unconstitutionally vague." (Citations omitted; parenthetical material in original.)

The phrase "criminal acts of violence," as used in the first special issue, is not unconstitutionally vague and need not be defined for the jury. Saldano v. State, 232 S.W.3d 77, 91 (Tex.Crim.App. 2007); Druery v. State, 225 S.W.3d 491, 509 (Tex.Crim.App. 2007. "In addition, the Supreme Court of the United States has concluded that the submission of [the first] special issue, even without the definition[] in question, is sufficient to constitutionally guide the jury's determination." Druery v. State, 225 S.W.3d at 509. See Jurek v. Texas, 428 U.S. 262, 275 (1976). We overrule issue number four.

In issue number five, appellant argues that the trial court, when it instructed the jury in accordance with Article 37.071, § 2(d)(1), violated the Peaceable Assembly Clause of the First Amendment, the Cruel and Unusual Punishments Clause of the Eighth Amendment, and the Due Process Clause of the Fourteenth Amendment because it failed to define for the jury the term "militates." Appellant argues that, consistent with the named constitutional provisions, the trial court was required "to define the word 'militates' so as to preclude consideration of the defendant's age, race, sex, national origin, religion, political views or sexual orientation as a factor supporting a death sentence." Appellant argues further that "[t]he jurors were left without guidance as to how to apply this critical word and consequently may have given weight to factors which should have been excluded."

The record reflects that the trial court, in accordance with Article 37.071, § 2(d)(1), instructed the jury as follows:

"In deliberating on Special Issue No. 1 and Special Issue No. 2 submitted in this charge, the jury shall consider all evidence admitted at the guilt or innocence stage and the punishment stage of this trial, including evidence of the defendant's background or character or the circumstances of the offense that militates for or mitigates against the imposition of the death penalty."

In issue number six, appellant argues that the trial court violated the Cruel and Unusual Punishments Clause of the Eighth Amendment and the Due Process Clause of the Fourteenth Amendment when it failed to define for the jury the phrase "continuing threat to society" as used in the first special issue. Appellant argues that "[t]he trial court's failure to define 'continuing threat to society' failed to provide sufficient guidance to the jury so as to prevent an arbitrary and capricious infliction of the death penalty."

The trial court did not err in failing to define the phrase "continuing threat to society," because the jury is presumed to understand the phrase without further instruction. Druery v. State, 225 S.W.3d at 509; Ladd v. State, 3 S.W.3d at 572-573. And, as we noted previously, the Supreme Court of the United States has concluded that the first special issue, even without the definition in question, adequately guides the jury's determination. Jurek v. Texas, 428 U.S. at 275. We overrule issue number six.

Appellant's argument has no merit. First, the jury, in its deliberations on the first two special issues, was not limited to evidence "which a juror might regard as increasing [the] defendant's moral blameworthiness." The jury could properly consider any of the evidence submitted at trial that was relevant to the two special issues. Second, appellant did not ask the trial court for the instruction that he now claims is constitutionally required, and nothing in the record suggests that he suffered any harm, let alone egregious harm, from the lack of such an instruction. See Almanza v. State, 686 S.W.2d at 171. We overrule issue number seven.

In issue number eight, appellant argues that the trial court violated the Cruel and Unusual Punishments Clause of the Eighth Amendment and the Due Process Clause of the Fourteenth Amendment when it failed "to instruct the jury that [the] finding of guilt in the first phase of the trial did not foreclose consideration of evidence which they believed tended to reduce the moral blameworthiness of the defendant." This argument has no merit. As we noted previously, the trial court, in accordance with Article 37.071, § 2(d)(1), instructed the jury that, in its deliberations on the first and second special issues, it must "consider all evidence admitted at the guilt or innocence stage and the punishment stage of this trial, including evidence of the defendant's background or character or the circumstances of the offense that militates for or mitigates against the imposition of the death penalty." In addition, the third special issue itself instructed the jury to "tak[e] into consideration all of the evidence, including the circumstances of the offense, the defendant's character and background, and the personal moral culpability of the defendant." Although the instructions given to the jury did not track the language of the instruction that appellant now argues is constitutionally required, they had much the same meaning. We overrule issue number eight.

In issue number nine, appellant argues that the trial court violated the Cruel and Unusual Punishments Clause of the Eighth Amendment when it failed "to instruct the jury that there is no presumption in favor of death, even if [the jury] found appellant to be a 'future danger' in answer to special issue number one, and that special issue number [three], regarding mitigating circumstances, is to be taken up and considered independently, without regard to the jury's finding on [special] issue number one." This argument has no merit. The trial court, in accordance with Article 37.071, § 2(e)(1), instructed the jury that, if it answered special issues numbers one and two in the affirmative, then it would proceed to answer special issue number three either "yes" or "no." Nothing in our law required the trial court to further instruct the jury that there was "no presumption in favor of death." We overrule issue number nine.

In issue number ten, appellant argues that the trial court violated the Cruel and Unusual Punishments Clause of the Eighth Amendment "when it failed to instruct the jury so as to provide a vehicle for a juror to return a life verdict where the juror concludes that the aggravating factors, although established by the evidence, still are not so severe as to call for death as a punishment." Appellant argues further that "[t]he [jury] charge in the present case [unconstitutionally] provided no means for the jury to assess a life sentence if it believed that the aggravating factor of 'future dangerousness' existed, but was not so severe as to warrant death."

The trial court's instructions to the jury met the requirements of Article 37.071, which, in turn, met the requirements of the Eighth Amendment. See McFarland v. State, 928 S.W.2d 482, 520 (Tex.Crim.App. 1996). We overrule issue number ten.

In issue number twelve, appellant argues that "[t]he Texas death penalty statute is unconstitutional for its failure to provide for meaningful appellate review of the sufficiency of the evidence [to support] the jury's negative answer to the third special issue, the mitigation issue." We considered and rejected this argument on original submission, and that holding remains the law of the case. Russeau v. State, 171 S.W.3d at 886. We overrule issue number twelve.

In issues numbers sixteen and sixteen-a, appellant argues that "[t]he trial court erred in admitting [psychiatric] evidence of [his] future dangerousness" without first holding a "Daubert hearing" and requiring the State "to establish the predicate" for the admission of such psychiatric evidence. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) (discussing admissibility of scientific evidence under Fed. R. Evid. 702); Kelly v. State, 842 S.W.2d 568 (Tex.Crim.App. 1992) (discussing admissibility of scientific evidence under Tex. R. Evid. 702). He argues further that he "requested a Daubert hearing" but that "the trial court refused to hold [one], choosing instead to take judicial notice of prior proceedings and her rulings therein."

At the first punishment hearing, the trial court admitted, over appellant's objection, the testimony of Drs. McNeel, Gripon, and Stone on the subject of his future dangerousness. Before those experts testified, the trial court held a "Daubert hearing" to determine the admissibility of their testimony under Texas Rule of Evidence 702. We held on original submission that "the trial court did not abuse its discretion in admitting the expert testimony." Russeau v. State, 171 S.W.3d at 884. At the second punishment hearing, from which appellant now appeals, the State again presented the testimony of McNeel, Gripon, and Stone on the subject of appellant's future dangerousness. Before they testified at the second punishment hearing, the following transpired:

Defense Counsel: Judge, in our last trial, we had a Daubert hearing. We want to re-urge that Daubert hearing, and there's nothing to add to it. I guess the Court can take judicial notice of it.

The Court: I've taken judicial notice of all the prior proceedings and will as to the rulings with respect to that. Okay. Maintain the same rulings.

Defense Counsel: Yes, Your Honor. Thank you.

A trial court's ruling admitting evidence will not be reversed on appeal absent a clear abuse of discretion. Ramos v. State, 245 S.W.3d 410, 417-418 (Tex.Crim.App. 2008). Under the circumstances of this case, we discern no clear abuse of discretion on the part of the trial court in admitting the expert testimony without holding a second Daubert hearing. When appellant, at the second punishment hearing, "re-urge[d] th[e] Daubert hearing" held at the first punishment hearing, he conceded that "there's nothing to add to it" and "guessed" that the trial court could take judicial notice of it. The trial court then stated that it had already taken judicial notice of the earlier Daubert hearing and would "[m]aintain the same rulings" (which we had already upheld) with respect to the admissibility of the expert testimony. Although appellant objected to the admission of the expert testimony, he did not, as he now claims, request a second Daubert hearing, and the trial court could have reasonably concluded that nothing would be accomplished by holding one. We overrule issues numbers sixteen and sixteen-a.

In issue number eighteen, appellant argues that the trial court violated the Cruel and Unusual Punishments Clause of the Eighth Amendment and the Due Process Clause of the Fourteenth Amendment when the trial court, in accordance with Article 37.071, § 2(d)(2) and (f)(2), "instructed the jury that a unanimous vote was required to answer the first and second special issues in the affirmative and to answer the third special issue in the negative [and] that at least ten jurors were required to answer the first two special issues in the negative and the third special issue in the affirmative." We considered and rejected this constitutional attack on the "10-12 rule" on original submission, and that holding remains the law of the case. Russeau v. State, 171 S.W.3d at 886. We overrule issue number eighteen.

Finally, in issue number nineteen, appellant argues that "[t]he Texas capital sentencing statute's failure to inform the jury that a single holdout [juror] on a special issue would result in [an] automatic life sentence violates the [Cruel and Unusual Punishments Clause of the] Eighth [Amendment] and [the Due Process Clause of the] Fourteenth Amendment[]." We considered and rejected this argument on original submission, and that holding remains the law of the case. Ibid. We overrule issue number nineteen.

Having found no reversible error, we affirm the judgment of the trial court.

DELIVERED: JULY 1, 2009.

PUBLISH

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1. The three special issues were as follows:

(1) "Is there a probability that the defendant, Gregory Russeau, would commit criminal acts of violence that would constitute a continuing threat to society?"

(2) "Did the defendant, Gregory Russeau, actually cause the death of the deceased or did not actually cause the death of the deceased but intended to kill the deceased or another or anticipated that a human life would be taken?"

Ex parte Gregory Lynn Smith, Applicant

This is a post-conviction application for a writ of habeas corpus brought pursuant to Article 11.07 of the Code of Criminal Procedure. The applicant seeks relief from a conviction for unlawful possession of firearm.

The indictment alleged that he intentionally or knowingly possessed a firearm on or about September 6, 2006, before the fifth anniversary of his having been released from community supervision, he having been convicted of the felony offense of possession of controlled substance with intent to deliver on August 5, 2005.

When he was found to be in possession of a firearm (which is not disputed) the applicant was on deferred-adjudication community supervision for the second-degree felony offense of possession of controlled substance.

The applicant pleaded guilty to the indictment and was sentenced to the maximum punishment of ten years in prison. The trial court ordered that the sentence run concurrently with the twenty-year sentence that it imposed in the controlled-substance case after adjudicating the defendant guilty.

The applicant seeks relief from the possession-of-firearm conviction on three grounds: insufficient evidence of guilt, ineffective assistance of counsel, and unknowing and involuntary plea.

The applicant alleges that counsel's performance at trial was deficient because he failed to investigate applicant's criminal history concerning prior felonies. "Applicant was not a convicted felon," and counsel should have known that.

Similarly, the applicant alleges that he did not understand that, because his deferred adjudication was not a final conviction, he was not a convicted felon. Therefore his plea was unknowing and involuntary.

The indictment alleged a violation of the following provisions of the most recent version of the Unlawful Possession of Firearm statute, Section 46.04 of the Penal Code (effective September 1, 2003):

(a) A person who has been convicted of a felony commits an offense if he possesses a firearm:

(1) after conviction and before the fifth anniversary of the person's release from confinement following conviction of the felony or the person's release from supervision under community supervision, parole, or mandatory supervision, whichever date is later; ….

On its face, the statute seems to make it an offense for a "person who has been convicted of a felony" to possess a firearm "after conviction" and "before the fifth anniversary" of either of two events:

(A) "the person's release from confinement following conviction of the felony, or

(B) "the person's release from supervision under community supervision, parole, or mandatory supervision."

Therefore the class of persons who have "been convicted of a felony," as that term is used in Section 46.04, includes those in any of three circumstances:

(1) those who have been in "confinement,"

(3) those who have been under "community supervision," which may not involve confinement. As defined in the Code of Criminal Procedure, "'Community supervision' means the placement of a defendant by a court under a continuum of programs and sanctions, with conditions imposed by the court for a specified period during which:

"(A) criminal proceedings are deferred without an adjudication of guilt; or

Whether the Unlawful Possession of Firearm statute applies to a person who is, or has been, on deferred-adjudication community supervision is not clear.

Another statute that deals with firearms, regulating the carrying of concealed handguns, gave "convicted" a special definition that included deferred adjudication:

"'Convicted' means an adjudication of guilt or, except as provided in Section 411.1711, an order of deferred adjudication entered against a person by a court of competent jurisdiction whether or not the imposition of the sentence is subsequently probated and the person is discharged from community supervision. The term does not include an adjudication of guilt or an order of deferred adjudication that has been subsequently:

(A) expunged; or

For another, the circumstances of the case must be taken into account. The applicant was on deferred adjudication for a felony of the second degree; he faced a twenty-year sentence for any violation of the conditions of supervision. He also pleaded guilty to several other felony offenses, with the agreement that the sentences in those cases, like the sentence in this case, would run concurrently with the twenty-year sentence.

Given the unsettled state of the law regarding the possession of firearm statute, and the agreement for concurrent sentencing in that case and other cases, we do not think that counsel's advice to plead guilty to the firearm offense can be called ineffective assistance.

Relief is denied.

Delivered September 30, 2009.

Publish.

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