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Click here for the full text of this decision The ex post facto clause of the federal constitution does not apply to judicial acts such as Paulson. FACTS:A jury convicted the appellant of capital murder and sentenced him to death. This court affirmed appellant’s conviction and sentence on direct appeal and later denied state habeas corpus relief. The U.S. District Court for the Southern District of Texas, however, ordered the state of Texas to conduct another punishment hearing. The state of Texas conducted another punishment hearing before another jury, and the trial court sentenced the appellant to death pursuant to the jury’s answers to the special issues submitted at this punishment hearing. Appellant raises 39 points of error in an automatic direct appeal to this court. HOLDING:Affirmed. The appellant claims that the trial court violated ex post facto provisions of the state and federal constitutions “when it denied [appellant's] motion to include the Geesareasonable doubt [definition] in the court’s charge on punishment.” The jury charge at appellant’s first trial contained the Geesadefinition of “reasonable doubt.” The jury charge at appellant’s new punishment hearing did not contain this definition because, at the time of appellant’s new punishment hearing, this court had overruled Geesain Paulson v. State, 28 S.W.3d 570 (Tex.Cr.App. 2000). The appellant claims that the trial court should have included the Geesadefinition of “reasonable doubt” in the jury charge at the new punishment hearing because ” Geesawas the law at the time of the offense and at the time of his first trial.” Appellant argues that the failure to include this definition in the jury charge violated the fourth definition of an ex post facto law by altering the legal rules of evidence and requiring less evidence to sustain the jury’s answer on the “future dangerousness” special issue than the law required at the time of the commission of the offense. The court disagrees. The ex post facto clause of the federal constitution does not apply to judicial acts such as Paulson. Even if it did, the court does not see how the failure to include the Geesadefinition of “reasonable doubt in the jury charge altered the legal rules of evidence and required less evidence to sustain the jury’s verdict on the “future dangerousness special issue than the law required at the time of the commission of the offense. The appellant nevertheless claims in points of error six through eight that the failure to include the Geesadefinition of “reasonable doubt” in the jury charge violated various other state and federal constitutional provisions that recognize some limitations on ex post facto judicial decision-making. The appellant’s arguments under these points are somewhat vague, but he seems to claim that the failure to include the Geesa“reasonable doubt” definition in the jury charge was fundamentally unfair because “it was given at his first trial and was the law at that time and at the time of the offense.” This case, however, does not implicate the ex post facto limitations on judicial decision-making discussed in cases such as Rogers v. Tennessee, 121 S.Ct. 1693 (2001). That case discussed “unforeseeable and retroactive judicial expansion of statutory language” that infringed the right to fair warning that certain conduct would give rise to criminal penalties. The decision in Paulson abrogating the Geesadefinition of “reasonable doubt” could not have deprived the appellant of fair warning that his conduct of dousing someone with gasoline and then lighting her on fire could give rise to criminal penalties. In addition, the court does not see how the failure to give the “redundant, confusing, and logically-flawed” Geesadefinition of “reasonable doubt” could have possibly harmed the appellant. In point of error 20, appellant claims that Article 37.071 violates various federal constitutional provisions because it does not require the prosecution “to prove beyond a reasonable doubt that the answer to [the mitigating evidence special issue] should be `no.’ ” Appellant claims that the U.S. Supreme Court’s recent decision in Ring v. Arizona, 122 S.Ct. 2428 (2002), calls into question settled case law rejecting the claim made in point of error twenty. In point of error thirty-four, appellant claims that Article 37.071 violates various federal constitutional provisions and Ring “because it place[d] the burden of proof on the mitigation issue on [appellant].” The resolved both of these claims adversely to the appellant in a nonpublished decision in Basso v. State, No. 73,672, slip op. at 36-37 (Tex.Cr.App. January 15, 2003), in which the court stated: “We have held that neither party bears the burden of proof at punishment on the mitigating evidence special issue. (Citations Omitted). The holding in [ Apprendi v. New Jersey, 120 S.Ct. 2348 (2000)] does not affect prior decisions or the court’s determination of the appellant’s point. Where a finding of a fact (other than a prior conviction) increases the authorized punishment for a crime, the State must prove and a jury must find that fact beyond a reasonable doubt. Ring v. Arizona, 122 S.Ct. 2428, 2439 (2002); [Apprendi], 530 U.S. at 476 (emphasis added). Under Article 37.071, there is no authorized increase in punishment contingent on the jury’s finding on the mitigating special issue. See Ring, 122 S.Ct. at 2439. A jury will answer the mitigation special issue only ‘if [it] returns an affirmative finding to each issue submitted under [the 'future dangerousness' special issue].’ (Citation Omitted). In other words, a jury’s finding on mitigation occurs only after the State has proven the elements of capital murder, at the guilt stage, and the aggravating circumstances-evidence of the defendant’s future dangerousness-beyond a reasonable doubt. (Citation Omitted). By the time the jury reaches the mitigation issue, the State has already demonstrated the defendant’s eligibility for a death sentence; a negative answer on mitigation cannot increase his authorized punishment. The statute mandates only a reduction in punishment to a life sentence upon an affirmative finding of mitigation. (Citation Omitted). Therefore, [Apprendi] is not applicable to the appellant’s point of error. The trial court did not err in not assigning the burden on the mitigation issue to the State.” The court adopts this discussion and reasoning here. The court overrules appellant’s other points. OPINION:Hervey, J., delivered the opinion of the Court in which Keller, PJ., Price, Johnson, Keasler, Holcomb and Cochran, JJ., joined. Meyers, J., concurs in points 2, 5-8 and otherwise joins. Womack, J., concurs.

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