
 
  
 



 



IN THE COURT OF CRIMINAL APPEALS

OF TEXAS





NO. 74,228


EX PARTE LAROYCE LATHAIR SMITH, Applicant




ON APPLICATION FOR A WRIT OF HABEAS CORPUS
FROM DALLAS COUNTY



 Hervey, J., filed a concurring opinion in which Keasler, J., joined.


CONCURRING OPINION


	I join Parts II.A. and II.B. of the Court's opinion.  We filed and set for submission applicant's post-conviction claim that the special issues and the "nullification" mitigating evidence instruction submitted at the
punishment phase of his 1991 capital murder trial did not provide the jury with a vehicle to give effect to
mitigating evidence in violation of the Eighth Amendment and the United States Supreme Court's decision
in Penry v. Johnson, 121 S.Ct. 1910 (2001) (Penry II).
I.
	The State suggests that this Court might not have jurisdiction to consider the merits of this claim
because it is raised in a successive habeas application.  This Court has jurisdiction to consider the merits
of this claim.  See Article 11.071, § 4A(f), Tex.Code Crim.Proc.; Smith v. State, 977 S.W.2d 610, 611
(Tex.Cr.App. 1998).
II.
	In Penry II, the Supreme Court decided that the special issues and a "nullification" mitigating
evidence instruction submitted at Penry's resentencing hearing failed to provide Penry's jury with an
adequate vehicle to give mitigating effect to constitutionally relevant mitigating evidence of Penry's severe
childhood abuse and mental retardation that tended to explain Penry's commission of the offense.  See
Penry II, 121 S.Ct. at 1915, 1921-22;  Penry v. Lynaugh, 109 S.Ct. 2934, 2947-49 (1989) (Penry I). 
The Court reasoned that: (1) the special issues provided the jury with no vehicle to give mitigating effect
to this evidence, and (2)  the "nullification" instruction was an "inadequate vehicle" to give mitigating effect
to this evidence because it was confusing and it contradicted the special issues making it "logically and
ethically impossible for a juror to follow both sets of instructions."  See Penry II, 121 S.Ct. at 1915, 1921-22; Penry I, 109 S.Ct. at 2947, 2949.  The "less than artful" portion of the "nullification" instruction which
the Supreme Court found objectionable stated:
 	If you find that there are any mitigating circumstances in this case, you must decide how
much weight they deserve, if any, and therefore, give effect and consideration to them in
assessing the defendant's personal culpability at the time you answer the special issue.  If
you determine, when giving effect to the mitigating evidence, if any, that a life sentence, as
reflected by a negative finding to the issue under consideration, rather than a death
sentence, is an appropriate response to the personal culpability of the defendant, a negative
finding should be given to one of the special issues.

Penry II, 121 S.Ct. at 1921.
III.
	In this case, applicant was convicted of murdering a former female coworker during a robbery of
a Taco Bell restaurant.  Applicant tortured the terrified young victim before brutally killing her.  Consistent
with the evidence presented at applicant's 1991 trial, the prosecution provided the following summary of
its theory of the case to the jury at applicant's 1991 trial.
	 ... [Applicant] goes on back to where [the victim] is in that back office, and you heard
from the witnesses about how they saw him pistol whipping her about her head.  "What's
the combination, Jennifer, to open the safe?"  "I can't.  I don't know it.  I don't know it. 
I can't open the safe.  I can't.  I don't know it."  You know that he proceeded to pistol
whip her about the head.  You know after that that he shot her in the back, right back here
behind the left shoulder bone, came out right underneath her left breast, and what did she
say?  "God, please don't let me die."  But that wasn't enough.

	Is there any question about whether or not his conduct was deliberate?  It wasn't enough
to pistol whip her, and it wasn't enough to shoot her in the back with that gun.  So, what
is the next thing that he does?  "Well, she's not dead yet, you see.  She's still alive.  She
still might give me the combination to the safe," or open it up for him.  So, what does he
do?  He goes back into the kitchen area, grabs a butcher knife-and you saw that
knife-and he comes back in there, and I submit to you, and you heard from the testimony
of Dr. Davis, the medical examiner-what did he tell you?  Let's talk about how he went
about killing her.  Let's talk about it.  He said the cause of death was multiple stab wounds
and the gunshot wound to the back.  He told you, and I submit to you-he told you he can't
tell you the order that those wounds occurred, but I submit to you that it went something
like this: Pistol whipped her, she still wouldn't comply, then he shot her in the back.  She
still is saying, "I don't know the combination of the safe."  He gets the butcher knife.  He
comes back-and Dr. Davis told you about those little cluster wounds.  "Tell me the
combination, Jennifer."  "I don't know it."  Nick, nick, nick, nick, right underneath her left
breast.  "Give me the combination, Jennifer."  "I can't."  Then I submit to you that he
proceeded to stab her in the thigh and in the abdomen and in the head, and you know
about that fatal wound, that gaping slash, on the side of her neck.


	Applicant also presented what he claimed was mitigating evidence at his 1991 trial.  Applicant's
writ (with citations to the 1991 trial record omitted) sets out the following evidence which applicant claims
was mitigating.
	During trial, Applicant presented mitigating evidence.  Applicant showed Sandier
exaggerated the extent of his injuries incurred during the bat incident [in which applicant
assaulted Sandier with a baseball bat].  Applicant showed he was docile when confronted
and arrested by the police.  Although Applicant's teachers and principals found Applicant
was disruptive and disrespectful, Applicant never got into any trouble so serious that
required the intervention of the Youth Division of the Dallas Police Department at Carter
High School.  Similarly, Applicant never found himself in the sort of trouble that required
the intervention of the Youth Action Center, which was precisely where Applicant would
have gone if he had been involved in anything that was beyond the scope of the teachers
and principals to handle effectively.  Applicant's pastor thought highly of him but
acknowledged, realistically, that some of Applicant's problems could be attributed to the
fact he was a teenager and to the fact Applicant's father had seriously destabilized
Applicant's family.  Applicant showed he was medically diagnosed as a slow learner. 
Applicant showed he was learning disabled and speech handicapped.  Applicant had an
IQ of 78.  Applicant showed that, notwithstanding the fact he was failing in special
education, he was promoted.  Applicant showed he was not a disruptive force when in a
prison environment.  Applicant showed that his friends, family, and neighbors liked and
respected him for his loyalty, thoughtfulness, generosity, and willingness to assume
responsibility.  The offense for which Applicant was convicted is inconsistent with his
history.  Additionally, the violence and brutality of the offense are inconsistent with
Applicant's past behavior.[ (1)]
 
	The record from the punishment phase of applicant's 1991 trial reflects that the "deliberateness"
and "future dangerousness" special issues were submitted to the jury along with a "nullification" mitigating
evidence instruction which allowed the jury to give effect to applicant's mitigating evidence "beyond the
scope of the special issues" by authorizing a "no" answer to one of the special issues.  This instruction
provided:
	You are instructed that you shall consider any evidence which, in your opinion, is
mitigating.  Mitigating evidence is evidence that reduces the Defendant's personal or moral
culpability, or blameworthiness, and may include, but is not limited to, any aspect of the
Defendant's character, record, background, or circumstances of the offense for which you
have found him guilty.  Our law does not specify what may or may not be considered as
mitigating evidence.  Neither does our law provide a formula for determining how much
weight, if any, a mitigating circumstance deserves.  You may hear evidence which, in your
judgment, has no relationship to any of the Special Issues, but if you find such evidence is
mitigating under these instructions, you shall consider it in the following instructions of the
Court.  You, and each of you, are the sole judges of what evidence, if any, is mitigating and
how much weight, if any, the mitigating circumstances, if any, including those which have
no relationship to any of the Special Issues, deserves.

	In answering the special issues submitted to you herein, if you believe that the State has
proved beyond a reasonable doubt that the answers to the special issues are "Yes," and
you also believe from the mitigating evidence, if any, that the defendant  should not be
sentenced to death, then you shall answer at least one of the special issues "No" in order
to give effect to your belief that the death penalty should not be imposed due to the
mitigating evidence presented to you.  In this regard, you are further instructed that the
State of Texas must prove beyond a reasonable doubt that the death sentence should be
imposed despite mitigating evidence, if any, admitted before you.

	The 1991 trial record further reflects that, during voir dire, this instruction and how it operated was
very carefully explained to each veniremember who sat on appellant's jury and that these veniremembers
stated that they understood it.  For example, Juror #7 stated:
	Q. [PROSECUTION]: I want to throw another wrinkle in on these [special issues]. 
Assuming that you hear evidence that convinces you [the special issues] should be
answered yes, okay, the law is going to give you-the Court would give you a further
instruction, and it has to do with what's called mitigating evidence.  Mitigating evidence
has-means, basically, some type of evidence that would lessen a person's responsibility
for his action, okay?  For example, let's say that they are retarded or they have a drug or
alcohol problem or they have been abused as a child.

	Those factors might be considered by a juror to be mitigating.  They might decide, "Well,
you know, because of what I've heard, I know the guy did the crime, and I know these
questions technically are answered yes, you know, he did it deliberately and there's a
future threat, but because was what I've heard, this mitigating evidence, I don't feel the
person should die for what he did.  In my heart, I don't think he should die because of
these factors."

	The judge is going to tell you if that's the case, you can go back and change one of these
answers to no to give effect to that feeling.  The reason for that is there's nothing in these
questions that you can really factor that in.  There's nothing in there to say anything about
his mental state or whether or not he had a problem growing up.

	Now, if that evidence is raised, you're going to have that consideration-that option to
change one of these answers.  And, you know, what's mitigating to one juror may not be
to another.  You all are going to have to decide, if you hear it, if you think that's enough
to prevent the death sentence.  One juror-you may hear that the guy was on drugs when
he committed the offense.  If you hear something like that, you can see how one juror might
say, "Well, I can see how that kind of excuses, kind of, maybe.  If he hadn't been doing
drugs, he wouldn't have done this, and because of that, I don't think he needs to die." 
Juror, you know, number two might look at you and say, "Well, I think that's even worse. 
He shouldn't have even done the drugs to start with.  That makes it even worse that he's
doing drugs and killing people."

	The point I'm getting at is that you know what's mitigating, you all are going to have to
decide that, and what's mitigating to one person may not be to another.  That phrase,
that's about as big a definition as you're going to get about that.  You'll have to decide
that.

	So if you hear that type of evidence, you're going to be faced with a couple of questions. 
One is, first of all, is it mitigating?  And secondly, is it mitigating to the point where you
don't believe the death sentence should be assessed?  If that's the case, you're going to
have an option to change an answer.

	Do you feel that you could do that if you heard the proper facts?

	A. [JUROR #7]: Uh-huh.
. . .

	Q. [DEFENSE]: [Juror # 7, the prosecutor] has talked to you, also, and told you that this
scheme of special issues is kind of skewed because a jury can still believe that an act was
done deliberately and that he could be a future threat to society but still believe that he
should die.  It could be his role in the murder.  It could be just a fairness issue in terms of
other people involved, what has happened to them.

	It could be any number of things, but a juror could, in essence, just say, "I don't think he
should die."  Then if all you have are those two questions, and if you honestly believe the
answers were yes, then the person would be killed even though the jury still felt he should
live.

	And the legislature hasn't quite caught up to the law.  The Supreme Court has recognized
that, and, ideally, there should probably be a fourth special issue saying regardless of
answers one through three, do you feel there is mitigating evidence such that it should save
his life or some phrase like that.

	I probably wouldn't be a very good legislator since I can't draft it, but that's not the way
the law is now.  That's not the way the statute is, but the judge would give you in the
court's charge an instruction that says if you find there is mitigating evidence, and if you
believe that that should save him from the death penalty, then you shall-shall is the big legal
word for must-shall change one of the answers to no so that you can give effect to your
heartfelt beliefs.

	In other words, if there's two yes answers, the judge has to sentence him to death.  If there
is one no, he gets a life sentence.  Those are the only two options.  And so the law has said
that the only way the judge could give effect to the jury's true belief is if one answer was
no.

	Do you feel that if you heard mitigating evidence and if you felt that regardless of whether
he would be a threat in the future and regardless of whether you felt the act was done
deliberately, if you felt that he should not die, could you go back and, in essence, erase one
of the yeses and put no in order to give effect and meaning to your true feelings?

	A. [JUROR #7]: Yes.

	Q. [DEFENSE]: I mean, that's what the Court would tell you all to do, that you're allowed
to do, and if you felt he should live, then the Court says you shall change one of the
answers.  In other words, you're not cheating or not giving a true verdict, you're following
the Court's law or the Court's rules.[ (2)]

	Do you have any problem with that, ma'am?

	A. [JUROR #7]: Huh-uh.

	Q. [DEFENSE]: Do you understand why that particular charge would be in there?

	A. [JUROR #7]: Yes.
 
Juror #10 similarly stated.
	Q. [DEFENSE]: -and if it didn't make sense, you could discard it?  Okay.  The law-kind
of getting back to those two questions, it used to be that there were no questions and the
jury has-like I was kind of saying or trying to say earlier, they had a wide discretion on
what to do.  That before these special issues came into being, juries would just decide
whether it should be life or death, 15 years probation, whatever.  Because of the way
they're structured, two "yes" answers equals death, and there's no secret.  We're not, you
know, trying to hide the law or anything.  It's all up front.  It's come to the court's
attention, primarily, because the legislature is a little bit behind the court's decisions that this
format may not be entirely fair because jurors could believe that the person-there's a
probability that they would be a continuing threat to society, but still believe that the person
shouldn't die.  In other words, through the whole ball of wax, through the trial and the guilt-innocence and punishment phase, they could just believe that under this fact situation with
this person, he should die, and by just answering mechanically "yes" and "yes," if that's a
true answer, you could never save the person.  Like the prosecutor was telling you, the
court will indicate that if you believe through what's called mitigating evidence-that's really
anything.  It's stuff you could hear in the guilt-innocence phase; it's stuff that you could hear
in the punishment phase; it's the whole totality of circumstances-if you felt that he shouldn't
die, then you're authorized-actually the court says you shall, which is legal mumbo-jumbo
for must, change one of the answers from "yes" to "no" if you feel that he should not die.

	Do you have any problem with that?

	A. [JUROR #10]: No.

	Q. [DEFENSE]: Okay.  I mean, it's not like you're cheating or lying or doing something-

	A. [JUROR #10]: No.

	Q.[DEFENSE]: -to change it.  That's what the Court would tell you to do to give effect
to your heartfelt belief that he should live, okay?  Also these two special issues are kind of
designed to be high hurdles.  In other words, the law is trying to decide of all the people
that commit capital murders, murders in the course of robbery, why should some live and
some die.  They're trying, I think, to remove the-they called it, I think, arbitrary and
freakish dispositions or impositions of the death sentence or capriciously done, something
like that, that there's no rhyme or reason to it.  I think what the legislature is trying to do
is set certain barriers or hurdles for the State to get over before a person should be killed,
and they're supposed to be high hurdles.  In other words, the standard is beyond a
reasonable doubt.  They're looking for a deliberate act.  They're looking for future
dangerousness.  On top of all that, they're looking for no mitigation to change the answers.

	Do you have any problem with the way those special issues are designed and how you
could answer them if you felt he should live instead of die?

	A. [JUROR #10]: No.[ (3)]

	During closing jury arguments at the punishment phase, applicant reminded the jury of the
procedure that was carefully explained to them during voir dire.
	I want to talk to you about mitigating evidence.  Mitigating evidence is that evidence that
reduces the defendant's personal or moral culpability and may include, but is not limited
to, any aspect of his character, record, background, or circumstances of the offense.  It
may go to one of the special issues, it may not, but the Court tells you that the State has
a burden-that if you think that he should not die, you are to put "no" in one of the spaces,
that the State has the burden of proof beyond a reasonable doubt to convince each and
everyone of you that he should still die.[ (4)]

IV.

	I would decide that applicant procedurally defaulted the claim that he makes for the first time in this
habeas proceeding.  It must be kept in mind that Penry I had been decided at the time of applicant's 1991
trial and that Penry II did not break new ground or announce any new rules because it decided only that
the jury instructions at Penry's retrial did not comply with Penry I's mandate.   See Penry II, 121 S.Ct.
at 1915, 1924; Robertson v. Cockrell, 325 F.3d 243, 255-57 (5th Cir), cert. denied, 156 L.Ed.2d 691
(2003) (Penry II only reiterated the holding of Penry I).
	The record reflects that applicant did not object to the "nullification" instruction at his 1991 trial. 
Compare Penry II, 121 S.Ct. at 1923 (stating that Penry offered definitions to the charge that the trial
court refused to give).  On the contrary, a review of the 1991 trial record (particularly the individual voir
dire) indicates that applicant was satisfied with the "nullification" instruction.  Almost 13 years later but
before the Supreme Court decided Penry II, applicant filed this habeas application in which he claimed for
the first time that the conflicting instructions in the charge precluded the jury from giving effect to mitigating
evidence. Echoing the Supreme Court's later decision in Penry II, applicant argued in support of this claim
that it "confounds common sense to suggest jurors-who are sworn to tell the truth-would ever understand
that they were authorized to answer [the special issues] falsely, and yet this is precisely what the
'nullification' instruction invited the jury to do."
	Applicant presents no reason why he could not have raised this claim at his 1991 trial.  Applicant
also presents no reason why he could not have raised this claim on direct appeal.  On direct appeal,
applicant claimed only that we should have reconsidered our post-Penry I precedents because they had
"unconstitutionally narrowed the sentencer's discretion to consider relevant mitigating evidence."  Applicant,
of course, did not raise this claim at his 1991 trial. 
	One might suggest that applicant could not have raised the claim that he raised in his habeas
application before the Supreme Court decided Penry II.  But, applicant did raise this claim in his habeas
application before the Supreme Court decided Penry II.  There is no reason why he could not have raised
it 13 years ago. Applicant, therefore, procedurally defaulted the claim that he raises for the first time in this
habeas corpus proceeding.
V.
	Notwithstanding the foregoing, the claim that applicant raises for the first time in this habeas corpus
proceeding lacks substantive merit.  In addressing applicant's claim that his jury had no vehicle to give
effect to his mitigating evidence, it is helpful to briefly summarize our post-Penry I mitigating evidence
jurisprudence.  The Supreme Court in Jurek and several other cases has upheld the constitutionality of
Texas' special issues framework because these special issues generally provide a jury with a vehicle to
meaningfully give effect to relevant mitigating evidence.  See, e.g., Jurek v. Texas, 96 S.Ct. 2950, 2958
(1976); Graham v. Collins, 113 S.Ct. 892, 901 (1993).  In Penry I, the Supreme Court decided only
that this framework was unconstitutionally applied to Penry because it did not provide the jury with a
vehicle to give mitigating effect to Penry's evidence of mental retardation and severe childhood abuse that
tended to explain his commission of the offense.  See Penry v. Lynaugh, 109 S.Ct. 2934, 2947-49
(1989).  We were assured, however, that Penry I did not "effec[t] a sea change in [the Supreme Court's]
view of the constitutionality of the former Texas death penalty statute."  See Graham, 113 S.Ct. at 901.
	Some members of this Court believed that Penry I required in every case another jury instruction
to provide a jury with a vehicle to give effect to any mitigating evidence "beyond the scope of the special
issues."  Realizing that this view would have effected a "sea change" in the constitutionality of the "former
Texas death penalty statute," this Court's post-Penry I precedents narrowly read Penry I and decided in
numerous cases that the special issues provided a jury with a vehicle to meaningfully give effect to mitigating
evidence such as that presented in this case. (5)
	This Court's post-Penry I precedents also decided that a defendant had to establish a "nexus"
between his claimed mitigating evidence and the offense (that tended to excuse the defendant's commission
of the offense) before the defendant was entitled to another jury instruction to give effect to this evidence
beyond the scope of the special issues.  See Footnote 6.  This "nexus" requirement was based on Penry
I's definition of constitutionally relevant mitigating evidence.  See Penry I, 109 S.Ct. at 2947; Richardson
v. State, 901 S.W2d 941, 942 (Tex.Cr.App. 1994); Lackey, 819 S.W.2d at 134-35. (6)
	Some claimed that this was a "crabbed interpretation" of Penry I. (7)  As it turned out, the Supreme
Court upheld this "crabbed interpretation" of Penry I in Johnson v. Texas which decided that the
Constitution does not require that "a jury be able to give effect to mitigating evidence in every conceivable
manner in which the evidence might be relevant" and that Penry I is satisfied as long as relevant mitigating
evidence is within "the effective reach of the sentencer."  See Johnson, 113 S.Ct. at 2669. (8)  When relevant
mitigating evidence is within "the effective reach of the sentencer," no separate jury instruction is required
to provide a jury with a vehicle to give effect to this evidence beyond the scope of the special issues even
if there is a "nexus" between this evidence and the offense.  See Johnson, 113 S.Ct. at 2669; Richardson,
901 S.W.2d at 941-42; Richardson, 886 S.W.2d at 771-76.  A separate jury instruction is required
only when the special issues place constitutionally relevant mitigating evidence completely beyond "the
effective reach of the sentencer."  See Johnson, 113 S.Ct. at 2669; see also Penry II, 121 S.Ct. at 1922
(reasonable likelihood that "nullification" instruction prevented jury from considering constitutionally relevant
mitigating evidence); Penry I, 109 S.Ct. at 2949 (reasonable likelihood that the special issues prevented
the jury from considering constitutionally relevant mitigating evidence).   
	Our post-Penry I precedents are also consistent with the Fifth Circuit's post-Penry I
jurisprudence.  See Robertson, 325 F.3d at 248-55.  The Fifth Circuit has also concluded that Penry II
did not disturb this post-Penry I jurisprudence.  See Robertson, 325 F.3d at 255-57 (rejecting any
suggestion that Penry II silently modified Penry I and encroached upon Jurek).  With these comments in
Section V. of this opinion, I join parts II.A. and II.B. of the Court's opinion.
VI.
	With all of this in mind, it is clear that applicant's jury could have meaningfully given mitigating effect
to any relevant mitigating evidence in answering the special issues.  This Court would also have to ignore
a significant number of its precedents as well as Fifth Circuit case law to hold otherwise. (9)  The "nullification"
mitigating evidence instruction at applicant's 1991 trial, therefore, provided applicant more than what he
was constitutionally entitled to receive.  See Johnson, 113 S.Ct. at 2669; Robertson, 325 F.3d at 257-58
("nullification" instruction provided the defendant "with a more capacious vehicle than was constitutionally
warranted").
	It has been suggested that applicant's "criminal conduct was in some way attributable to his
unfortunate childhood experiences" which would have entitled him to a charge that provided the jury with
a vehicle to give effect to this evidence beyond the scope of the special issues.  Applicant was not entitled
to such a charge because "there is ample room in the assessment of future dangerousness for a juror to take
account of the difficulties of youth as a mitigating force in the sentencing determination."  See Johnson, 113
S.Ct. at 2669; Lackey, 819 S.W.2d at 134 (evidence of defendant's "limited intellectual and mental
capability, his problematic relationship with his father, physical abuse by his father, and his age at the time
of the offense is relevant to a proper resolution of the concerns" of the future dangerousness special issue);
Robertson, 325 F.3d at 253 (statutory special issues were adequate to allow jury to effectuate the
mitigating potential of defendant's claim of childhood abuse because this evidence exhibited no "nexus to
his brutal crimes"). 
	Applicant's evidence of "unfortunate childhood experiences," like the evidence of the "ill effects
of youth" in Johnson, could have been "readily comprehended as a mitigating factor in consideration of the
[future dangerousness] special issue."  See Johnson, 113 S.Ct. at 2669-70.  In Johnson, 113 S.Ct. at
2669-70, the Court stated:
	That the jury had a meaningful basis to consider the relevant mitigating qualities of
petitioner's youth is what distinguishes this case from [Penry I].  In [Penry I], there was
expert medical testimony that the defendant was mentally retarded and that this condition
prevented him from learning from experience. (Citation omitted).  Although the evidence
of the mental illness fell short of providing Penry a defense to prosecution for his crimes,
the Court held that the second special issue did not allow the jury to give mitigating effect
to this evidence.  Penry's condition left him unable to learn from his mistakes, and the
Court reasoned that the only logical manner in which the evidence of his mental retardation
could be considered within the future dangerousness inquiry was as an aggravating factor. 
(Citation omitted).  [Penry I] remains the law and must be given a fair reading.  The
evidence of petitioner's youth, however, falls outside [Penry I's] ambit.  Unlike Penry's
mental retardation, which rendered him unable to learn from his mistakes, the ill effects of
youth that a defendant may experience are subject to change and, as a result, are readily
comprehended as a mitigating factor in consideration of the second special issue.

	Petitioner does not contest that the evidence of youth could be given some effect under the
second special issue.  Instead, petitioner argues that the forward-looking perspective of
the future dangerousness inquiry did not allow the jury to take account of how petitioner's
youth bore upon his personal culpability for the murder he committed.  According to
petitioner, "[a] prediction of future behavior is not the same thing as an assessment of moral
culpability for a crime already committed."  (Citation omitted).  Contrary to petitioner's
suggestion, however, this forward-looking inquiry is not independent of an assessment of
personal culpability.  It is both logical and fair for the jury to make its determination of a
defendant's future dangerousness by asking the extent to which youth influenced the
defendant's conduct.  (Citation omitted).  If any jurors believed that the transient qualities
of petitioner's youth made him less culpable for the murder, there is no reasonable
likelihood that those jurors would have deemed themselves foreclosed from considering
that in evaluating petitioner's future dangerousness.  It is true that Texas has structured
consideration of the relevant qualities of petitioner's youth, but in so doing, the State still
"allow[s] the jury to give effect to [this] mitigating evidence in making the sentencing
decision."  (Citation omitted).  Although Texas might have provided other vehicles for
consideration of petitioner's youth, no additional instruction beyond that given was required
in order for the jury to be able to consider the mitigating qualities of youth presented to it.
 
VII.
	It is unnecessary for the Court to state in Part II.C. of its opinion that, as a matter of federal
constitutional law, the "nullification" instruction here was a sufficient vehicle to accord "full" weight to
applicant's mitigation evidence.  The Constitution does not require a vehicle to accord "full" weight to a
defendant's mitigation evidence.  See Johnson, 113 S.Ct. at 2669 (Constitution does not require that "a
jury be able to give effect to mitigating evidence in every conceivable manner in which the evidence might
be relevant").  In addition, the "nullification" instruction would, as a matter of federal constitutional law,
suffer from the same defect as the one in Penry II had applicant presented any mitigating evidence that was
beyond "the effective reach of the sentencer."  See Penry II, 121 S.Ct. at 1915, 1921-22; Johnson, 113
S.Ct. at 2669.  It is dispositive of applicant's federal constitutional claim in this case to simply decide that
the special issues submitted at applicant's 1991 trial provided the jury with a vehicle to give constitutionally
sufficient mitigating effect to applicant's mitigating evidence and that this evidence was within "the effective
reach of the sentencer."  See id.
VIII.
	Finally, having decided that no federal constitutional violation occurred in this case, we may
disagree with the United States Supreme Court that Texas jurors are incapable of remembering,
understanding and giving effect to the straightforward and manageable "nullification" instruction such as the
one in this case.  But see Penry II, 121 S.Ct. at 1922-23.  The record in this case clearly reflects that there
was no reasonable likelihood that the jury applied the "nullification" instruction in a way that prevented it
from considering and giving effect to constitutionally relevant mitigating evidence even beyond the scope
of the special issues.  Cf. Penry II, 121 S.Ct. at 1922 (federal constitutional issue is whether there is a
reasonable likelihood that the jury applied the challenged instruction in a way that prevented the
consideration of constitutionally relevant mitigating evidence).  Even though it may not have done so as a
matter of federal constitutional law, the "nullification" instruction did, as a matter of fact, provide the jury
with a vehicle to accord "full" weight to applicant's mitigation evidence.

	I concur in the Court's judgment to deny habeas corpus relief. 

							Hervey, J.

Filed: April 21, 2004
Publish
1. 	The 1991 trial record further indicates that applicant presented evidence that applicant's father was
a drug addict and neglected applicant.  The father also stole from the family to support his drug habit and
this upset applicant.  The father eventually left applicant's home.
2. 	But see Penry II, 121 S.Ct. at 1922 (claiming that this could have caused conscientious jurors to
violate their oaths in answering the special issues). 
3. 	The Supreme Court discounted similar voir dire proceedings in Penry II by explaining that the
jurors (at least those in that case) "surely" had "a distant and convoluted memory" of those voir dire
proceedings by the time they began their punishment phase deliberations.  See Penry II, 121 S.Ct. at
1922-23.
4. 	The Supreme Court discounted a similar argument made by the defense in Penry II by explaining
that this "only reminded the jurors that they had to answer the special issues dishonestly in order to give
effect to Penry's mitigating evidence."  See Penry II, 121 S.Ct. at 1923 (emphasis in original).
5. 	See Lackey v. State, 819 S.W.2d 111, 128-36 (Tex.Cr.App. 1989); Mines v. State, 888
S.W.2d 816, 818-21 (Tex.Cr.App. 1994) (Baird, J., concurring) and cases cited.
6. 	In Richardson, we noted that Penry I states that a defendant presents relevant mitigating evidence
when he presents evidence that his criminal acts "are attributable to a disadvantaged background, or to
emotional and mental problems."  See Richardson, 901 S.W.2d at 942; Lackey, 819 S.W.2d at 134-35. 
Penry I, 109 S.Ct. at 2947 (internal quotes omitted), literally states:

	If the sentencer is to make an individualized assessment of the appropriateness of the death
penalty, evidence about the defendant's background and character is relevant because of
the belief, long held by this society, that defendants who commit criminal acts that are
attributable to a disadvantaged background, or to emotional and mental problems, may be
less culpable than defendants who have no such excuse. 
7. 	See Richardson v. State, 886 S.W.2d 769, 777-79 (Tex.Cr.App. 1991) (Clinton, J., dissenting)
(claiming that "essence of the Supreme Court's holding" in Penry I required that a "jury must be
empowered to give mitigating evidence all the effect to which it is susceptible"); see also Richardson, 901
S.W2d at 941-42 and at 942-43 (Clinton, J., dissenting).
8. 	We note that Penry II cites to a dissenting opinion in Johnson followed by a parenthetical stating
that a "sentencer [must] be allowed to give full consideration and full effect to mitigating circumstances." 
See Penry II, 121 S.Ct. at 1920 citing Johnson, 113 S.Ct. at 2676 (O'Connor, dissenting) (emphasis in
original).  I do not understand this part of Penry II as having silently overruled Johnson.  
9. 	See, e.g., Mines, 888 S.W.2d at 818-21 (Baird, J., concurring) and cases cited (evidence of brain
damage, violent family background, growing up in poverty, voluntary intoxication, drug abuse, suicide
attempt, lack of education, being a good and loving child, critical illness as a child, voluntary service, good
character evidence, abusive childhood, remorse, general good character evidence, mental instability can
be given mitigating effect when answering the special issues); Lackey, 819 S.W.2d at 128, 134 (evidence
of "a low level of intelligence, shown by extremely substandard IQ test scores," poor school record,
turbulent childhood and troubled relationship with father, and youth could be given mitigating effect when
answering the special issues); Robertson, 325 F.3d at 249-51 (additional instructional vehicles not required
for many different types of mitigating evidence, including but not limited to, subnormal intelligence, youth,
troubled or abused childhood, intoxication, substance abuse, head injury, good character, mental illness,
antisocial personality disorders, and dyslexia).

