             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS

                                             AP-76,035


                          EX PARTE ROY GENE SMITH, Applicant


                         On Application for Writ of Habeas Corpus
                  in Cause No. 512673-B of the 208th Judicial District Court,
                                       Harris County


       WOMACK , J., delivered the opinion of the unanimous Court.


       This is a subsequent post-conviction application for writ of habeas corpus. The applicant

claims that he is entitled to relief from his death sentence “because he presented significant

mitigating evidence related to his moral culpability and the appropriateness of a death sentence

that could not be given full effect by the sentencing jury.” We find that the trial court erred by not

providing the jury a constitutionally adequate vehicle by which it could fully consider and give

effect to the applicant’s relevant evidence of poverty, a crime-ridden neighborhood, and drug

addiction. We also find that the applicant was egregiously harmed by this error. We therefore

remand to the trial court for new punishment proceedings.
                                                                                                     Roy Gene Smith - 2

                                           I. Constitutional Background

         The United States Supreme Court has established two key principles that guide the

process by which a jury may assess the death penalty.1 First, while the death penalty is not per se

cruel and unusual punishment in violation of the Eighth Amendment,2 a jury’s discretion to

assess the death penalty “must be suitably directed and limited so as to minimize the risk of

wholly arbitrary and capricious action.”3 Second, the jury must be provided a vehicle by which to

fully consider and give effect to mitigating evidence of “the character and record of the

individual offender and the circumstances of the offense.”4

         With respect to the second principle, the Supreme Court has held that the mitigating

evidence must first be relevant. Relevant evidence in this context is “evidence which tends

logically to prove or disprove some fact or circumstance which a fact-finder could reasonably

deem to have mitigating value.”5 A vehicle need not be provided when the evidence has “only a



         1
             See Johnson v. Texas, 509 U.S. 350, 360 (1993) (recognizing “some tension” between the two principles).

         2
             Gregg v. Georgia, 428 U.S. 153, 169 (1976).

         3
             Id., at 189 (citing Furman v. Georgia, 408 U.S. 238 (1972)).

         4
           Woodson v. North Carolina, 428 U.S. 280, 303-05 (1976); see also Lockett v. Ohio, 438 U.S. 586, 604
(1978) (“[T]he Eighth and Fourteenth Amendments require that the sentencer, in all but the rarest kind of capital
case, not be precluded from considering, as a mitigating factor, any aspect of the defendant’s character or record and
any circumstances of the offense that the defendant proffers as a basis for a sentence less than death.”) (emphasis in
original); Penry v. Lynaugh, 492 U.S. 302, 318 (1989) (Penry I) (“Underlying Lockett and Eddings [v. Oklahoma,
455 U.S. 104 (1982),] is the principle that punishment should be directly related to the personal culpability of the
criminal defendant.”).

         5
           McKoy v. North Carolina, 494 U.S. 433, 440 (1990) (quoting State v. McKoy, 372 S.E.2d 12, 45 (N.C.
1988) (Exum, C.J., dissenting)); see also Tennard v. Dretke, 542 U.S. 274, 284-85 (2004) (“‘[T]he meaning of
relevance is no different in the context of mitigating evidence introduced in a capital sentencing proceeding’ than in
any other context . . .”) (quoting McKoy, 494 U.S., at 440); T EX . R. E VID . 401 (“‘Relevant evidence’ means evidence
having any tendency to make the existence of any fact that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence.”).
                                                                                                  Roy Gene Smith - 3

tenuous connection–‘some arguable relevance’– to the defendant’s culpability,” but only when

the evidence “may have meaningful relevance to the defendant’s moral culpability ‘beyond the

scope of the special issues.’”6 Once this “low threshold for relevance”7 is met, the jury must be

provided an adequate vehicle by which to fully consider and give effect to the evidence.

        At the time the applicant was sentenced, the jury was required to answer special issues of

deliberateness, future dangerousness, and, if raised by the evidence, provocation. The Supreme

Court found that these special issues adequately directed and limited the jury’s discretion.8 But if

a defendant presented relevant mitigating evidence that was outside the scope of the special

issues,9 or that had an aggravating effect when considered within the scope of the special issues,10

the special issues were a constitutionally inadequate vehicle for the jury to fully consider and

give effect to the mitigating evidence.11 Where the special issues were an inadequate vehicle, a

“nullification instruction,” such as the one given to the applicant’s jury, was insufficient to cure

the constitutional inadequacy of the special issues.12



        6
            Abdul-Kabir v. Quarterman, 550 U.S. 233, 253 n.14 (2007) (emphasis in original).

        7
            Tennard, 542 U.S., at 285.

        8
            Jurek v. Texas, 428 U.S. 262, 271 (1976).

        9
           Compare Abdul-Kabir, 550 U.S., at 261 (finding evidence of “particularized childhood experiences of
abuse and neglect” to be outside the scope of the special issues) with Graham v. Collins, 506 U.S. 461, 476 (1993)
(finding evidence of youth, transient upbringing, and nonviolent character to be within the scope of the special
issues) and Johnson, 509 U.S., at 368 (finding evidence of youth to be within the scope of the special issues).

        10
           See, e.g., Brewer v. Quarterman, 550 U.S. 286, 294-95 (2007) (“[T]he Texas special issues do not
provide for adequate consideration of a defendant’s mitigating evidence when that evidence functions as a ‘two-
edged sword.’”).

        11
             Penry I, 492 U.S., at 328.

        12
             Penry v. Johnson, 532 U.S. 782, 804 (2001) (Penry II).
                                                                                        Roy Gene Smith - 4

                                       II. Procedural History

                                               A. Trial

       In May 1990, a jury convicted the applicant of capital murder. At the conclusion of the

punishment phase, the trial court instructed the jury to answer three special issues:

       (1) Was the conduct of the defendant, Roy Gene Smith, that caused the death of
       the deceased committed deliberately and with the reasonable expectation that the
       death of the deceased or another would result?

       (2) Is there a probability that the defendant, Roy Gene Smith, would commit
       criminal acts of violence that would constitute a continuing threat to society?

       (3) Was the conduct of the defendant, Roy Gene Smith, in killing the deceased
       unreasonable in response to the provocation, if any, by the deceased?

In response to Penry I, the trial court also gave the jury the following “nullification instruction”:

       You are instructed that when you deliberate on the questions posed in the special
       issues, you are to consider mitigating circumstances, if any, supported by the
       evidence presented in both phases of the trial, whether presented by the State or
       the defendant. A mitigating circumstance may include, but is not limited to, any
       aspect of the defendant’s character, background, record, or circumstances of the
       crime which you believe could make a death sentence inappropriate in this case. If
       you find that there are any mitigating circumstances in this case, you must decide
       how much weight they deserve, and thereafter, 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, then a negative finding should be given to
       that special issue under consideration.

The jury answered the special issues affirmatively and did not employ the nullification

instruction. The trial court sentenced the applicant to death.

                                          B. Direct Appeal

       The applicant appealed his conviction and sentence directly to this Court. In his first point

of error, the applicant contended that “the trial court erred by giving the jury an
                                                                                                  Roy Gene Smith - 5

unauthorized instruction on mitigation which failed to advise them of a comprehensible method

of determining and utilizing mitigating evidence.”13 We found that the nullification instruction

was “sufficient to overcome the constitutional infirmity of Penry [I].”14 We also found that the

applicant “failed to make a contemporaneous objection to the court’s charge,”15 and ultimately

affirmed the judgment and sentence of the trial court.

                                          C. Initial State Application

        In April 1997, the applicant filed his initial state application for writ of habeas corpus. He

claimed that he was denied the effective assistance of counsel because his counsel failed to

adequately investigate his history and retain a mitigation specialist.16 The trial court made the

following findings of fact describing the applicant’s mitigating evidence:

        10. During the punishment phase of trial, the applicant testified that he used drugs
        twenty-four hours a day every day of the week, and that the drugs must have put
        him in the position that he was in as a result of the crime.

        11. During the punishment phase of trial, the applicant testified that other crimes
        he had committed were influenced by “drinking heavy and smoking weed.”

        12. During the punishment phase of trial, the applicant testified that he needed
        money to support his habit.

        ...

        15. During the punishment phase of trial, the applicant’s mother testified that the
        applicant’s father died in 1971.


        13
           Roy Gene Smith v. State, No. 71,099, slip op. at 1 (Tex. Cr. App. Feb. 24, 1993) (not designated for
publication).

        14
              Id., at 2.

         15
              Id., at 2-3.

        16
           Ex parte Roy Gene Smith, No. W R-42,801-01 (Tex. Cr. App. Sep. 29, 1999) (not designated for
publication).
                                                                                      Roy Gene Smith - 6

       16. During the punishment phase of trial, the applicant’s mother testified that she
       currently supports herself by welfare while living in a house with thirteen other
       family members.

       17. During the punishment phase of trial, the applicant’s mother testified that she
       lived in a high-crime area, and that she would have left the neighborhood if she
       could have afforded to move.

       18. During the punishment phase of trial, the applicant’s mother testified that the
       applicant attempted to help raise his son and that the applicant worked at a steel
       plant in Baytown.

       ...

       20. During the punishment phase of trial, the applicant’s mother testified that the
       applicant did well when he was staying in the penitentiary.

       ...

       22. During the punishment phase of trial, the applicant’s sister described the
       neighborhood in which the applicant lived, including the prevalence of drugs,
       robberies, and prostitution.

       23. During the punishment phase of trial, the applicant’s sister related an incident
       where both she and the applicant were robbed at gun-point in the middle of the
       street.

       24. During the punishment phase of trial, the applicant’s sister stated that the
       applicant had been raised in the church.

In an unpublished order, we stated that we had reviewed the record and that “[t]he findings and

conclusion by the trial court are supported by the record.”17 We denied relief on this basis.

                                             D. Federal Petition

       In May 2000, the applicant filed a petition for writ of habeas corpus in federal district

court. The district court dismissed the petition,18 but the United States Court of Appeals for the


       17
            Id.

       18
            Roy Gene Smith v. Cockrell, CA No. H-00-1771 (S.D.Tex. March 31, 2003).
                                                                                      Roy Gene Smith - 7

Fifth Circuit granted a certificate of appealability on two issues: (1) whether the applicant’s trial

counsel provided ineffective representation, and (2) whether the jury instructions at the

sentencing phase violated Penry I.19

       The Fifth Circuit ultimately denied relief on both issues.20 With respect to Penry I, the

Fifth Circuit discussed four categories of mitigating evidence: “poverty; drug addiction and

intoxication; character evidence; and growing up in the crime-ridden neighborhood of the Fifth

Ward of Houston.”21 The Fifth Circuit found that the jury was able to give full effect and express

their reasoned moral response to the applicant’s evidence of drug addiction and intoxication

through the special issues. If jurors determined that the applicant’s substance abuse hindered his

ability to make a conscious decision to commit capital murder, they could have answered the

deliberateness special issue in the negative.22 If jurors reasonably assumed that the applicant

would not have access to drugs and could receive rehabilitative services in prison, and therefore

his proclivities toward violent behavior would lessen after overcoming his addictions, the jurors

could have answered the future-dangerousness special issue in the negative.23 The Fifth Circuit

did not find authority for drug addiction as a mitigating factor that could reduce a defendant’s

moral culpability outside its relevance to the special issues.24



       19
            Roy Gene Smith v. Dretke, 422 F.3d 269 (5 th Cir. 2005).

       20
            Roy Gene Smith v. Quarterman, 515 F.3d 392 (5th Cir. 2008).

       21
            Id., at 407.

       22
            Id., at 409.

       23
            Id., at 409-10.

       24
            Id., at 410.
                                                                                                             Roy Gene Smith - 8

         The Fifth Circuit also found that the applicant’s evidence of growing up in an

impoverished and crime-ridden neighborhood was “clearly relevant mitigating evidence,” and

was outside the scope of the special issues,25 but ultimately had “only a tenuous connection to

any attempt to diminish [the applicant’s] moral culpability for his crime.”26 The types of

experiences the applicant presented were not “particularized childhood experiences of abuse and

neglect.”27 In fact, the only specific example of victimization that the applicant presented

occurred in 1988, when the applicant was at least 29 years old.28 The Fifth Circuit emphasized

that “our holding here is a narrow one, based on our detailed review of the record which contains

no evidence of a connection between the poverty and crime of the Fifth Ward and [the

applicant’s] character.”29

                                                        III. Analysis

         The applicant now claims that he is entitled to relief “because he presented significant

mitigating evidence related to his moral culpability and the appropriateness of a death sentence

that could not be given full effect by the sentencing jury.”30 The applicant specifically cites the

following mitigating evidence:


         25
              Id., at 412.

         26
              Id., at 413 (citing Abdul-Kabir, 550 U.S., at 253 n.14).

         27
              Id., at 414 (quoting Abdul-Kabir, 550 U.S., at 261).

         28
              Id., at 414.

         29
              Id.

         30
            The State agrees that we may consider the merits of this subsequent application in light of the new law
announced by the Supreme Court in Penry II, 532 U.S., at 804 (finding a nullification instruction insufficient to cure
the constitutional inadequacy of special issues). Penry II was unavailable as a legal basis for the Applicant’s claim at
the time of his direct appeal and initial application for writ of habeas corpus. See T EX . C O D E C RIM . P RO C . art. 11.07,
§ 5.
                                                                                                       Roy Gene Smith - 9

         [The applicant’s] family lived in poverty, caused in part by the loss of his father
         when he was 12 years old. [The applicant’s] mother, . . . working as a maid, could
         not afford to move the family from Houston’s “Fifth Ward,” a dangerous
         neighborhood filled with prostitution, drugs, and crime. At the time of the crime,
         fourteen people lived in [the applicant’s mother’s] three-bedroom home. [The
         mother of the applicant’s son] was violently killed, so [the applicant’s mother]
         took [the applicant’s son] into her house as well. Shortly before the crime, [the
         applicant] and his younger sister, . . . were violent crime victims themselves –
         with [the applicant’s] sister forced to strip in public in front of him, and [the
         applicant] assaulted with a gun that misfired as it was held to his temple.
         Surrounded by drugs and poverty all his life, [the applicant] became a drug addict,
         using crack whenever he could get a hold of it. Lacking education and any job
         skills or opportunities, [the applicant] began to steal to support his addiction.31

The applicant argues that this evidence “gave important context to [his] crimes, and a properly

instructed jury could well have concluded that [he] was less deserving of the death penalty as a

result of his own deprivations, victimization, and addiction.” He further argues that the trial court

erred because the evidence could not be given meaningful effect under the special issues, and the

nullification instruction did not correct that problem. Finally, he argues that he preserved this

error at trial, and in any event he was egregiously harmed by the error. In the alternative, he

invites us to reconsider whether harm analysis is appropriate for errors of this type.

         The State does not contest the insufficiency of the nullification instruction to cure any

error in the special issues. Instead, the State follows the reasoning of the Fifth Circuit and argues

that some of the applicant’s evidence did not warrant a vehicle for its consideration, and the

special issues were a sufficient vehicle for other evidence. To demonstrate error, therefore, the

applicant must show that his mitigating evidence (1) was relevant, and (2) was either outside the

scope of the special issues, or had an aggravating potential when considered within the scope of


         31
             The Applicant’s description of his mitigating evidence largely mirrors the findings of fact produced by
the trial court in response to the Applicant’s initial writ application, as well as the mitigating evidence described by
the Fifth Circuit. The State does not dispute this description of the mitigating evidence.
                                                                                                    Roy Gene Smith - 10

the special issues. The mitigating evidence cited by the applicant may be broken into three

categories for the purposes of our analysis: (A) poverty and crime-ridden neighborhood, (B)

victimization, and (C) drug addiction.32

                                A. Poverty and Crime-Ridden Neighborhood

         The Fifth Circuit found that the applicant’s evidence of poverty and a crime-ridden

neighborhood was “clearly relevant mitigating evidence” and did not fit within the special

issues.33 Nevertheless, based on its interpretation of Tennard, Brewer, and particularly footnote

14 of Abdul-Kabir,34 the Fifth Circuit stated that “the inquiry does not end here.”35 The Fifth

Circuit proceeded to explain that the jury did not need an adequate vehicle because the evidence

had “only a tenuous connection to any attempt to diminish [the applicant’s] moral culpability for

his crime.”36

         We do not find the Fifth Circuit’s interpretation of Tennard, Brewer, and Abdul-Kabir to

be persuasive. In our opinion, a fair reading of those cases suggests that the “inquiry” consists of



         32
             In Roy Gene Smith v. Quarterman, the Fifth Circuit analyzed the same arguments that are before us. W e
are not bound by the conclusions of the Fifth Circuit, but we will adopt its reasoning if it is persuasive. See Guzman
v. State, 85 S.W .3d 242, 249 n. 24 (Tex. Cr. App. 2002) (“Although we are not required to follow lower federal
court interpretations of a federal constitutional right, we may find the reasoning in those cases persuasive.”).

         33
              Roy Gene Smith v. Quarterman, 515 F.3d, at 412.

         34
             Abdul-Kabir, 550 U.S., at 253 n. 14 (“The rule that we reaffirm today–a rule that has been clearly
established since our decision in Penry I–is this: Special instructions are necessary when the jury could not otherwise
give meaningful effect to a defendant’s mitigating evidence. The rule is narrower than the standard urged by Graham
because special instruction is not required when mitigating evidence has only a tenuous connection-‘some arguable
relevance’-to the defendant’s moral culpability. But special instruction is necessary when the defendant’s evidence
may have meaningful relevance to the defendant’s moral culpability ‘beyond the scope of the special issues.’”)
(internal citations omitted).

         35
              Roy Gene Smith v. Quarterman, 515 F.3d, at 412.

         36
              Id., at 413.
                                                                                                Roy Gene Smith - 11

only two steps: (1) whether the evidence is relevant, and (2) whether the evidence falls outside

the scope of the special issues or may be considered aggravating when considered within the

scope of the special issues.37 We understand footnote 14 of Abdul-Kabir to further define the

“low threshold for relevance,”38 rather than to add a separate third step to the inquiry.

        Furthermore, a jury could find that the applicant’s evidence of life in poverty and a crime-

ridden neighborhood does have more than a “tenuous connection” to his moral culpability. This

evidence tends logically to prove that the applicant suffered the sort of deprived and troubled

childhood that a fact-finder could reasonably deem to have mitigating value.39 As with general

questions of relevance, the evidence “need not by itself prove or disprove a particular fact to be

relevant; it is sufficient if the evidence provides a small nudge toward proving or disproving

some fact of consequence.”40 The weight of the applicant’s mitigating evidence may be

significantly less than the evidence of “particularized childhood experiences of abuse and

neglect”41 in Penry I, Abdul-Kabir, and several cases decided by this Court.42 But questions of the




        37
             Tennard, 542 U.S., at 284-85; Brewer, 550 U.S., at 294.

        38
             Tennard, 542 U.S., at 285.

        39
            See McKoy, 494 U.S., at 440 (Relevant evidence is “evidence which tends logically to prove or disprove
some fact or circumstance which a fact-finder could reasonably deem to have mitigating value.”). In the language of
Texas Rule of Evidence 401, the Applicant’s evidence of life in poverty and a crime-ridden neighborhood is relevant
because it has a tendency to make a deprived and troubled childhood more probable than it would be without the
evidence.

        40
             Stewart v. State, 129 S.W.3d 93, 96 (Tex. Cr. App. 2004).

        41
             Abdul-Kabir, 550 U.S., at 261.

        42
           See, e.g., Ex parte Hathorn, 296 S.W .3d 570, 572-73 (Tex. Cr. App. 2009) (neglect, physical and
emotional abuse, and violent and dysfunctional home environment); Moreno v. State, 245 S.W .3d 419 (Tex. Cr.
App. 2008) (adoption, deformity, and unstable home).
                                                                                                    Roy Gene Smith - 12

weight or sufficiency of the evidence are not before us. The question before us is whether the

evidence meets the “low threshold for relevance.”43

         We agree with the Fifth Circuit that this evidence was outside the scope of the special

issues.44 Because the evidence was relevant and outside the scope of the special issues, we

therefore find that the trial court erred in failing to provide a constitutionally adequate vehicle for

its consideration.

                                                 B. Victimization

         The applicant alleges that “just before the commission of the present offense,” he and his

sister were violently assaulted, and he was “humiliated by his inability to protect his sister from

assault.” We find that this evidence of victimization “shortly before the crime” fell within the

scope of the future-dangerousness special issue as a transient feature of the applicant’s

character.45 This evidence was mitigating within the special issue because, if the jury believed

that the applicant’s crime was only a reaction to the lingering humiliation, stress, or other effects

from the assault, they would have answered the special issue in the negative. The trial court did

not err with respect to this evidence.

                                                C. Drug Addiction

         The Fifth Circuit did not find precedent “consider[ing] drug addiction as a mitigating

factor that reduces a criminal defendant’s moral culpability outside its relevance to the special


         43
              Tennard, 542 U.S., at 283-87.

         44
              Roy Gene Smith v. Quarterman, 515 F.3d, at 412.

         45
             See Johnson, 509 U.S., at 368 (“The relevance of youth as a mitigating factor derives from the fact that
the signature qualities of youth are transient; as individuals mature, the impetuousness and recklessness that may
dominate in younger years can subside. W e believe 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.”).
                                                                                                  Roy Gene Smith - 13

issues.”46 We, however, do find such precedent. In Brewer, the Supreme Court did not discuss

independently the defendant’s evidence of drug abuse, but found it to be among evidence that

operated as a “‘two-edged sword’ because it tended to confirm the State’s evidence of future

dangerousness as well as to lessen his culpability for the crime.”47 Similarly, in Martinez v.

State,48 we did not discuss independently the defendant’s evidence of alcohol abuse since the age

of thirteen, but found it to be among evidence that did not negate the special issues and provided

“an explanation for his behavior that might reduce his moral culpability.”49

         In light of Brewer and Martinez, we find that the applicant’s evidence of a severe drug

addiction that was supported by proceeds from violent crime is both relevant and outside the

scope of the special issues. The evidence tends logically to show that the applicant’s ability to

exercise moral judgment (as compared to his ability to exercise control of his conduct) was

overcome by his severe drug addiction. A fact-finder could reasonably deem this circumstance to

have mitigating value. While it did not disprove deliberateness or future dangerousness, it was an

explanation for his behavior that might reduce his moral culpability.50 The trial court therefore

erred in failing to provide the jury a constitutionally adequate vehicle by which to fully consider

and give effect to the evidence.



         46
              Roy Gene Smith v. Quarterman, 515 F.3d, at 410.

         47
              Brewer, 550 U.S., at 292-93.

         48
              233 S.W .3d 319 (Tex. Cr. App. 2007).

         49
              Id., at 323 (citing Abdul-Kabir).

         50
            Again, we make no comment on the weight of this evidence. W e also do not imply that evidence of drug
addiction or substance abuse will always be relevant mitigating evidence and outside the scope of the special issues
regardless of the specific evidence of addiction or abuse introduced by the defendant.
                                                                                                    Roy Gene Smith - 14

                                                       IV. Harm

         The constitutional error in this case was in the failure of the special issues to provide a

vehicle for the jury to consider the applicant’s mitigating evidence, rather than the failure of the

nullification instruction to provide such a vehicle.51 Despite this error in the special issues, we

shall not grant relief from the judgment unless the applicant demonstrates harm.52 If the error was

not objected to at trial, we shall grant relief only if “the error is so egregious and created such

harm that [the applicant] ‘has not had a fair and impartial trial.’”53 Error creating egregious harm

is also described as error that must “go to the very basis of the case,” or “vitally affect [the

defendant’s] defensive theory.”54

         In our 1993 opinion on direct appeal, we found that the applicant had “failed to make a

contemporaneous objection to the court’s charge.”55 In this subsequent writ application, the

applicant argues that this finding requires reexamination in light of Laroyce Smith II. The

applicant alleges that before the trial, he objected to

         former Article 37.071 of the Code of Criminal Procedure as “den[ying] the
         Defendant protection from cruel and unusual punishment,” specifically because
         the statutorily mandated special issues did not allow jurors to answer “the life or

         51
             Laroyce Smith v. Texas, 550 U.S. 297, 313-14 (2007) (Laroyce Smith II) (finding constitutional error in
the special issues and error preserved upon objection to the special issues, despite lack of objection to the
nullification instruction).

         52
           T EX . C O D E C RIM . P RO C . art. 36.19; Ex parte Laroyce Smith, 185 S.W .3d 455, 463-64 (Tex. Cr. App.
2006), rev’d on other grounds by Laroyce Smith II; Almanza v. State, 686 S.W .2d 157, 171 (Tex. Cr. App. 1985).

         53
            Almanza, 686 S.W .2d, at 171; see also Ex parte Hathorn, 296 S.W .3d 570, 572 (Tex. Cr. App. 2009) (In
the context of Penry error, “normally, an egregious harm standard is proper in analyzing un-objected-to charge
error.”); Ex parte Laroyce Smith, 185 S.W .3d, at 463 (“The Almanza standard applies both on direct appeal and on
the review of habeas corpus applications.”).

         54
              Almanza, 686 S.W .2d, at 172; Ex parte Laroyce Smith, 185 S.W .3d, at 464 n.23 (applying Almanza).

         55
              Roy Gene Smith v. State, No. 71,099, slip op. at 2-3.
                                                                                     Roy Gene Smith - 15

       death question;” the statute permitted the court only to submit “these three (3)
       rather meaningless issues, affirmative answers to which result in a mandatory
       death sentence.” When this motion was considered by the court as trial began, [the
       Applicant’s] counsel repeated that “the language of the statute is so – it would
       require an affirmative answer to all of the issues,” adding that this effect “is a
       denial of due process in the 8th amendment, with regard to the death penalty in a
       capital murder case.”

       We will not overturn our previous finding. The objections cited by the applicant mention

neither Penry I nor anything about the adequacy of the vehicle by which the jury could consider

and give effect to mitigating evidence. Rather, the cited objections challenge the adequacy of the

special issues to satisfy the principle that the jury’s discretion must be “suitably directed and

limited so as to minimize the risk of wholly arbitrary and capricious action.”56 Laroyce Smith II

does not help the applicant because the defendant in that case did object to the failure of the

special issues to allow consideration of mitigating evidence.57

       Having failed to make a sufficient objection, the applicant must demonstrate egregious

harm. Considering the evidence introduced and the applicant’s defensive theories at the

punishment phase of his trial, we find that the error did egregiously harm the applicant. The

applicant put significant emphasis on mitigation during the punishment phase. His evidence of

drug addiction, poverty, and a crime-ridden neighborhood was at the heart of his mitigation

theory. While we cannot say what credibility or weight the jurors might have given it, since it

went to the heart of the applicant’s defensive theory, such mitigating evidence was nonetheless

relevant and outside the scope of the special issues. Therefore, the trial court was required to

provide a constitutionally adequate vehicle for the jury to fully consider and give effect to it. The


       56
            Gregg, 428 U.S., at 169.

       57
            550 U.S., at 313-14.
                                                                                                  Roy Gene Smith - 16

trial court’s failure to do so “[went] to the very basis of the case” and “vitally affected [the

applicant’s] defensive theory”58 at the punishment phase, because the jury had no adequate means

to act upon the applicant’s mitigation theory, such as it was.59

         Because there was constitutional error in the punishment phase of the applicant’s trial by

which he was egregiously harmed, we remand this case to the trial court for new punishment

proceedings.



                                                                        Womack, J.



Delivered April 28, 2010.
Publish.




         58
              See Ex parte Laroyce Smith, 185 S.W .3d, at 464 n.23.

         59
            Having found that the Applicant was egregiously harmed, we decline the Applicant’s invitation to revisit
the propriety of harm analysis in the context of Penry error.
