           IN THE COURT OF CRIMINAL APPEALS
                       OF TEXAS
                                       AP-74,720

                          EX PARTE MARK ROBERTSON

            ON APPLICATION FOR WRIT OF HABEAS CORPUS
                IN CAUSE NO. W89-85961-L(B) FROM THE
          CRIMINAL DISTRICT COURT NO. 5 OF DALLAS COUNTY

Per Curiam. COCHRAN, J., not participating.

                                       OPINION

      Applicant was convicted on February 11, 1991, for the capital murder of Edna Brau,

committed during a robbery on August 19, 1989. We affirmed the conviction and sentence

on direct appeal. Robertson v. State, 871 S.W.2d 701 (Tex. Crim. App. 1993) cert. denied,

513 U.S. 853 (1994). On applicant’s initial application for writ of habeas corpus filed

pursuant to Texas Code of Criminal Procedure, Article 11.071, we denied relief. Ex parte

Robertson, WR-30,077-01 (Tex. Crim. App. November 18, 1998). In each state and federal

court, applicant asserted that he had been denied a vehicle for the jury to consider his

mitigating evidence because he had received what has come to be called a “nullification
                                                                              ROBERTSON - 2

instruction.” In every venue his requests for relief were denied. Just before the date set for

his execution in August 2003, applicant filed a subsequent application, again raising the

claim that the nullification instruction impermissibly limited the jury’s ability to consider and

give effect to mitigating evidence presented during trial. On August 19, 2003, this Court

stayed his execution while we considered an identical claim in Ex parte Laroyce Lathair

Smith, 132 S.W.3d 407 (Tex. Crim. App. 2004). However, on June 24, 2004, the United

States Supreme Court decided Tennard v. Dretke, 124 S.Ct. 2562 (2004), and specifically

disapproved of the test used by the Fifth Circuit in Penry 1 claims; the same test used in the

Fifth Circuit decision in the case before us, Robertson v. Cockrell, 325 F.3d 243 (5 th Cir.

2003), and also applied by this Court in Ex parte Smith. As a result, the Supreme Court also

reversed our decision in Smith v. Texas, 125 S.Ct. 400 (2004), holding that this Court

assessed the claim under an improper legal standard. Applying the holding in Smith v. Texas

to this case, we held that the claim was unavailable on the date applicant filed his initial

application and that applicant met the requirements for consideration of his subsequent claim

under Article 11.071, Section 5. The case was remanded to the convicting court for

consideration of the claim. The convicting court made detailed findings and conclusions.

The convicting court found that applicant presented mitigating evidence, for which under

Penry I there had to be an adequate means for the jury to consider beyond the limits of the

special issues, that applicant had requested such a means, and that when presented with the



       1
           Penry v. Lynaugh, 492 U.S. 302 (1989) (Penry I).
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nullification instruction, applicant objected that it still did not give the jury a proper means

to consider his mitigating evidence. Based on our review of the record, we adopt those

findings and agree that relief should be granted.

       Applicant’s sentence is reversed, and the case is remanded to the convicting court for

a new trial on punishment.

Delivered:    March 12, 2008

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