           IN THE COURT OF CRIMINAL APPEALS
                       OF TEXAS
                                     NO. AP-75,370



                  EX PARTE CHARLES DEAN HOOD, Applicant



          ON APPLICATION FOR A WRIT OF HABEAS CORPUS
      FROM CAUSE NO. W296-80233-90 IN THE 296 TH DISTRICT COURT
                        COLLIN COUNTY

        C OCHRAN, J., announced the judgment of the Court and delivered the opinion
of the Court as to Part III, in which P RICE, W OMACK, J OHNSON and H OLCOMB, JJ.,
joined, and an opinion as to Parts I and II in which P RICE, J OHNSON and H OLCOMB,
JJ., joined. M EYERS, J., dissented. K EASLER, J., filed a dissenting opinion in which
K ELLER, P.J., and H ERVEY, J., joined.

                                       OPINION

       We wade once more into the murky waters of Penry law and the Texas death-penalty

sentencing scheme. The ebb and flow of constitutional jurisprudence concerning when and

what special instructions are necessary for the jury to give meaningful consideration to

relevant mitigating evidence has sharply divided the United States Supreme Court, the Fifth

Circuit, and this Court for some twenty years. The Chief Justice of the Supreme Court has

noted that the jurisprudence surrounding the intersection of mitigation evidence and the
                                                                       Ex parte Hood      Page 2

Texas “nullification instruction” in pre-1991 death-penalty cases is “a dog’s breakfast of

divided, conflicting, and ever-changing analyses.” 1 Reasonable jurists differ on these

matters.

       Therefore, we granted applicant a stay of execution on September 9, 2008, stating that,

“[b]ecause of developments in the law regarding nullification instructions, . . . it would be

prudent to reconsider the decision we issued [on January 10, 2007] in dismissing applicant’s

second subsequent writ application.” 2 We must reconsider whether applicant could have

raised his Penry claim–a claim alleging that the entirety of the sentencing scheme employed

by the trial court precluded the jury from giving full consideration and effect to his mitigating

evidence–before May 24, 2004, when he filed a pro se subsequent writ.

       We conclude that five United States Supreme Court decisions, all of which were


       1
          Abdul-Kabir v. Quarterman, 550 U.S. 233, 267 (2007) (Roberts, C.J., dissenting). The
Chief Justice noted:
        We give ourselves far too much credit in claiming that our sharply divided, ebbing
        and flowing decisions in this area gave rise to “clearly established” federal law. If
        the law were indeed clearly established by our decisions “as of the time of the
        relevant state-court decision,” it should not take the Court more than a dozen
        pages of close analysis of plurality, concurring, and even dissenting opinions to
        explain what that “clearly established” law was. When the state courts considered
        these cases, our precedents did not provide them with “clearly established” law,
        but instead a dog’s breakfast of divided, conflicting, and ever-changing analyses.
        That is how the Justices on this Court viewed the matter, as they shifted from
        being in the majority, plurality, concurrence, or dissent from case to case,
        repeatedly lamenting the failure of their colleagues to follow a consistent path.
        Whatever the law may be today, the Court’s ruling that ‘twas always so–and that
        state courts were “objectively unreasonable” not to know it–is utterly revisionist.
Id. at 266-67 (citations omitted).
       2
         Ex parte Hood, Nos. WR-41,168-10 & AP-75,370 (Tex. Crim. App. Sept. 9, 2008) (not
designated for publication).
                                                                           Ex parte Hood          Page 3

issued after applicant filed his pro se writ on May 24, 2004,3 announced “new law” directly

applicable to applicant’s claim for purposes of Article 37.071, § 5.4 Therefore, his second

subsequent writ application, filed in 2005, should be reinstated because it was not

procedurally barred.5 We agree with the habeas judge’s 2005 factual findings and legal

conclusions and accept his recommendation that applicant is, under current and binding

constitutional precedent, entitled to a new trial on punishment.6




       3
         See Tennard v. Dretke, 542 U.S. 274 (2004); Smith v. Texas (“Smith I”), 543 U.S. 37
(2004); Abdul-Kabir v. Quarterman, 550 U.S. 233 (2007); Brewer v. Quarterman, 550 U.S. 286
(2007); Smith v. Texas (“Smith II”), 550 U.S. 297 (2007). The earliest of these five cases,
Tennard, was decided on June 24, 2004, exactly one month after applicant filed his pro se
subsequent writ.
       4
        T EX . CODE CRIM . PROC. art. 11.071, § 5(a)(1). This section reads,
       If a subsequent application for a writ of habeas corpus is filed after filing an initial
       application, a court may not consider the merits of or grant relief based on the
       subsequent application unless the application contains sufficient specific facts
       establishing that:
               (1) the current claims and issues have not been and could not have been
               presented previously in a timely initial application or in a previously
               considered application filed under this article or Article 11.07 because the
               factual or legal basis for the claim was unavailable on the date the
               applicant filed the previous application[.]
       5
        In Ex parte Hood, 211 S.W.3d 767, 770 (Tex. Crim. App. 2007), this Court held that we
were “barred from considering the merits [of his second subsequent writ application filed in
2005] because the legal bases upon which applicant relies were available at the time he filed his
second application.” Id.
       6
         The trial judge entered his findings on December 6, 2005, in accordance with our
remand order of June 27, 2005, after we had found that “applicant has met the requirements for
consideration of a claim the basis of which was not available at the time his initial application
was filed.” This remand order was based upon Tennard v. Dretke, 542 U.S. 274 (2004), and
Smith v. Texas, 543 U.S. 37 (2004).
                                                                        Ex parte Hood       Page 4

                                                I.

       Applicant was convicted of capital murder in 1990 for killing his boss and his boss’s

girlfriend.7 The evidence showed that applicant’s boss had allowed applicant to live in his

home, but that applicant had carefully planned and executed the murders, stolen his boss’s

credit cards, pawned his ring, and forged his name on stolen business checks to cash them.

       During the punishment phase, the State offered significant evidence that applicant

would constitute a continuing threat to society. This evidence included burglary of a school

when a juvenile, theft and forgery convictions, assault on his 15-year-old girlfriend, rape of

another 15-year-old girl, threats to a third young woman while he was in jail on this charge,

and assault upon a fellow inmate. The State also offered expert testimony from a clinical

psychologist and a forensic psychiatrist that applicant had an anti-social personality disorder

with little chance of rehabilitation. The evidence was more than sufficient to support the

jury’s “yes” answers to the special issues.

       When we remanded this writ application to the habeas judge in 2005,8 he made

extensive factual findings concerning the mitigating evidence that had been offered at the

1990 trial.9 These findings included the following:


       7
         Hood v. State, No. 71,167 (Tex. Crim. App. Nov. 24, 1993) (not designated for
publication).
       8
          The habeas judge was a senior state district judge sitting by assignment. He was not the
original trial judge.
       9
         Both the State and applicant filed proposed findings of fact and conclusions of law. The
habeas judge crafted his own findings and conclusions based upon the parties’ submissions.
                                                          Ex parte Hood     Page 5

C   when applicant “was three years old, he sustained severe injuries when he was
    crushed by a truck that backed over him. Hood was in a state of shock as he
    rode to the hospital in an ambulance. His left leg was broken in two places
    and his left hip was broken. He had additional injuries to his lower back
    requiring three skin grafts. He sustained internal injuries. Hood had several
    surgeries, and bones had to be rebroken. He wore a cast that covered nearly
    his entire body from his upper chest to his legs. He remained in the hospital
    for five months. Two years passed before Hood was able to relearn how to
    walk. He was left with permanent physical injuries from the accident. His left
    leg never grew to the size of his right leg, his hip joint remains cracked, and
    the skin grafts never healed properly on his back.”

C   applicant “appeared to undergo changes in his behavior after the accident. He
    had a noticeable problem with his speech and pronouncing the sounds of the
    alphabet. A doctor concluded he hears the sounds in a different way than they
    are pronounced. An expert who personally examined Hood stated that his
    speech defects also included stuttering. Behavioral changes after the accident
    were testified to by his mother, which include throwing things, school
    problems, fear of school, being made fun of by other children and phobias
    related to being inside building[s].”

C   applicant “has learning disabilities and cognitive impairments which became
    apparent in his schooling. He received counseling and attended special
    education throughout his school career. He failed the second and seventh
    grades and dropped out of school in the seventh grade.”

C   additional evidence indicated that applicant “had learning disabilities and low
    intellectual functioning. He failed the Army entrance examination three times.
    The Indiana Department of Correction administered achievement and
    intelligence tests at age 19. Those tests indicated his reading and math skills
    fell below sixth grade level, his language and writing skills were at the level
    of a third grader and [he] has an I.Q. of 89, which placed him below the
    intellectual functioning of more [than] 75% of the population. Achievement
    scores were too low to satisfy literacy requirement for the prison work release
    program.”

C   applicant suffered “beatings and other injuries” when he was young,
    “including a head blow with a metal pipe.” An uncalled expert defense
    witness wrote a report that applicant “suffers from brain impairment,
    evidenced by learning disabilities, verbal comprehensive problems, language
                                                                           Ex parte Hood       Page 6

                   impairment, speech defects and behavioral dysfunction, including impaired
                   judgment and poor impulse control.” The State’s expert testified about this
                   defense report and concluded that, although applicant may be suffering from
                   one or more of the defense expert’s findings, “he will be a continuing threat
                   based on the State’s hypothetical premise.” 10

         Applicant’s case was tried after the Supreme Court decided Penry I,11 but before the

Texas Legislature had convened to draft a statutory mitigation special issue to accommodate

the Penry I holding.12 Thus, the trial court submitted the two statutory special issues, but also

included a special nullification instruction discussing the manner in which the jury should

account for mitigating evidence when answering those special issues.13 Applicant’s counsel


         10
        Because the record supports these factual findings, we adopt them. See Ex parte Reed,
271 S.W.3d 698, 727 (Tex. Crim. App. 2008).
         11
              Penry v. Lynaugh, 492 U.S. 302 (1989).
         12
              See Ex parte Staley, 160 S.W.3d 56, 58 (Tex. Crim. App. 2005). In Staley, this Court
noted,
         The 1989 Penry I decision created a dilemma for Texas trial courts in capital-
         murder cases. As the Fifth Circuit has noted, Texas trial courts “could not craft
         entirely new jury interrogatories, as the precise questions had been written by the
         state legislature. Nor could they suspend the trials in anticipation of legislative
         remediation, as the legislature would not meet again until 1991 and its reaction
         was unknown.” Thus, Texas state courts attempted to provide timely trials that
         complied with Penry I by drafting extra-statutory jury instructions or
         supplemental special issues until the Texas Legislature enacted a statutory
         mitigation special issue which went into effect on September 1, 1991.
Id. (citations omitted).
         13
           That instruction read,
                 You are instructed that you shall consider in answering the special issues
         any evidence which in your opinion mitigates against the imposition of the death
         penalty. A mitigating circumstance may include, but is not limited to any aspect
         of the defendant’s character, record, and the circumstances of the crime, which
         you believe could make a death penalty inappropriate in this case.
                 Further, if you believe from the evidence that the State has proven beyond
         a reasonable doubt that the answers to the Special Issues are “yes” but you are
                                                                           Ex parte Hood       Page 7

did not object to the nullification instruction itself, but his colloquies with the trial judge

sound uncannily like the voice of the Supreme Court in its most recent cases.14 He did,

however, request additional instructions on the proper use of mitigating evidence15 and asked


       further [persuaded] by the mitigating evidence that the defendant should not be
       sentenced to death in this case, then you shall answer one or both of the Special
       Issues “no” in order to give the effect to your belief that the death penalty should
       not be imposed in this case.
       14
           When the trial judge first suggested using the nullification instruction, applicant’s
counsel said,
        As the Court knows, this is a pretty new concept in our capital litigation, and it is
        one about which we don’t have any, at this point, formal guidance from our State
        Court. Nevertheless, it seems to me that in a case of this kind, if we make a
        mistake it ought to be on the side of fully explaining mitigation, fully explaining
        to the Jury how they can give effect to the mitigation, if they find that it exists,
        and not simply, for the sake of brevity, put something in there that sounds like it
        might be alright, but doesn’t accurately explain to the Jury what their obligation
        is.
The trial court expressed his concern with applicant’s proposal of having the jurors’ write the
word “life” in the blanks for the special issue, and noted, “By answering ‘No’ they may have
decided that the State didn’t meet its burden of proof, or that there is. . . .” Defense counsel
interrupted to explain how the statutory scheme itself was deficient:
        But that’s the whole–with regard to the Court, that’s the whole idea of mitigation,
        that even if the evidence supports “Yes” answers to both the Special Issues
        beyond a reasonable doubt, even if that is the case, and the State has carried their
        burden of proof, the Jury can consider mitigating factors, and come to the
        conclusion that because of the mitigating factors, in spite of the fact that the
        evidence supports an answer to these two Special Issues of “Yes” beyond a
        reasonable doubt, because of the mitigating factors the jury feels that the death
        penalty should not be imposed– that is, indeed, the whole problem because our
        statutory scheme doesn’t give any way to give effect to that.
Later, defense counsel again reiterated that the statutory special issues are one thing, but that the
jury must receive instructions such that it can use and give effect to the mitigating evidence
outside of the statutory special-issue scheme.
       15
         Applicant’s proposed additional instruction read,
                You may use a mitigating circumstance to answer a Special Issue “no” or
       you may use a mitigating circumstance as a basis for leniency even if you are
       persuaded that all of the Special Issues must be answered “yes.” If you decide that
       all of the Special Issues must be answered “yes” and you also have found
                                                                       Ex parte Hood       Page 8

that the jury be told to write the word “life” into the “yes” or “no” verdict forms if it should

decide that the mitigating evidence called for such a sentence. The trial judge noted that

nothing in Texas law allowed the jury to answer the special issues with the word “life” and

that the explicit wording and specific answers to the special issues were statutorily required.

Therefore, the trial judge declined to give applicant’s additional instruction.

       During closing arguments, the defense stressed that, regardless of what the jury

thought about the special issues, it could not forget to consider the mitigating evidence.

Counsel emphasized applicant’s youth, his poverty, and the trauma he had suffered when the

truck ran over him as a three-year-old. He noted that at least one doctor thought he could

have brain damage. The State reminded the jury that it bore the burden of proving the special

issues, but the decision of whether mitigating circumstances existed was a decision solely for

the jury to determine. The jury answered both special issues “yes,” and the trial court

sentenced applicant to death.

       On November 24, 1993, this Court affirmed applicant’s conviction and sentence on

direct appeal.16 One of the issues that applicant raised on appeal was that the trial court erred

“in failing to instruct the jury of a method to be used by them to give effect to mitigating



       mitigating circumstances which call for a life sentence, you must not answer the
       Special Issues. Instead, to give effect to the mitigating circumstances, you must
       write the word “life” in each of the spaces on the verdict sheet where you would
       otherwise answer the Special Issues “yes” or “no.” A verdict of life has the same
       effect as a verdict that answers at least one Special Issue “no.”
       16
          Hood v. State, No. 71,167 (Tex. Crim. App. Nov. 24, 1993) (not designated for
publication).
                                                                        Ex parte Hood      Page 9

evidence.” 17     Once again, applicant’s claim echoed the Supreme Court’s most recent

pronouncements concerning the Texas death-penalty sentencing scheme. We rejected that

claim, both because it was inadequately briefed and on its merits, concluding that the

nullification instruction “did provide the jury with an adequate vehicle to express and give

effect to its ‘reasoned moral response’” to applicant’s mitigation evidence, if any existed.18

The United States Supreme Court denied certiorari.19

       On December 22, 1997, applicant filed his first writ application under article 11.071.20

In that application, he initially challenged the nullification instruction, but then deleted that

claim from his amended application.21 On April 21, 1999, we denied habeas corpus relief.22

Applicant then filed a writ application in federal court. The federal district court denied

relief, but granted a certificate of appealability on two grounds related to an Ake 23 claim. On

April 2, 2004, the Fifth Circuit affirmed the district court’s denial of relief in an unpublished


       17
            Id., slip op. at 18.
       18
            Id., slip op. at 20 (emphasis in original).
       19
            Hood v. Texas, 513 U.S. 834 (1994).
       20
        T    EX . CODE   CRIM . PROC. art. 11.071.
       21
          Presumably applicant eliminated that Penry claim because it had already been rejected
on direct appeal and this Court does not re-review claims in a habeas corpus application that have
already been raised and rejected on direct appeal. Ex parte Reynoso, 257 S.W.3d 715, 723 (Tex.
Crim. App. 2008) (a claim that was raised and rejected on direct appeal is not cognizable on
habeas review under art. 11.071); Ex parte Acosta, 672 S.W.2d 470, 472 (Tex. Crim. App. 1984).
       22
          Ex parte Hood, No. 41,168-01 (Tex. Crim. App. Apr. 21, 1999) (not designated for
publication).
       23
            Ake v. Oklahoma, 470 U.S. 68 (1985).
                                                                     Ex parte Hood      Page 10

opinion.24 Once again, the United States Supreme Court denied certiorari.25

       On May 24, 2004, applicant filed a pro se subsequent application for writ of habeas

corpus, which we dismissed as an abuse of the writ under art. 11.071, § 5.26 That second

application did not contain a Penry claim.

       On June 22, 2005, eight days before his scheduled execution, applicant filed a third

writ application, alleging that “the nullification instruction in applicant’s case did not allow

the jury to consider and give effect to mitigating evidence presented at trial.” 27 It “suffered

from the same constitutional defects that the Supreme Court found fatal” in Penry II,28 Smith

v. Texas (“Smith I”),29 and Tennard v. Dretke.30 We granted applicant’s motion for stay of

execution and concluded that “applicant has met the requirements for consideration of a

claim the basis of which was not available at the time his initial application was filed.” 31 We

remanded the case to the convicting court for consideration of the merits of applicant’s Penry


       24
          Hood v. Dretke, No. 00-41272, 93 Fed. Appx. 665 (5th Cir. 2004) (not designated for
publication).
       25
            Hood v. Dretke, 543 U.S. 836 (2004).
       26
          Ex parte Hood, No. WR-41,168-02 (Tex. Crim. App. April 13, 2005) (not designated
for publication).
       27
         Ex parte Hood, No. WR-41,168-03, slip op. at 2 (Tex. Crim. App. June 27, 2005) (not
designated for publication).
       28
            Penry v. Johnson, 532 U.S. 782 (2001).
       29
            543 U.S. 37 (2004).
       30
            542 U.S. 274 (2004).
       31
            Ex parte Hood, No. WR-41,168-03, slip op. at 2.
                                                                       Ex parte Hood         Page 11

claim.32 On remand, the habeas judge set out his factual findings and concluded,

       Although opinions may vary regarding how clearly the mitigating evidence
       was elicited at trial and whether such evidence is overwhelming or tenuous, the
       record contains such evidence that a jury must, under our current law, consider
       regarding the imposition of the death penalty.

The habeas judge also entered relevant conclusions of law: first, he concluded that

applicant’s “nullification” claim was unavailable at the time he filed his previous habeas

application;33 second, he concluded that the two special issues did not provide an avenue for

the jury to give full consideration and full effect to applicant’s mitigating evidence.34 The


       32
            Id.
       33
         The habeas court’s conclusions of law included the following:
1.     Prior to the Supreme Court’s decisions in Tennard and Smith, the Court of
       Criminal Appeals had concluded that, without a “prima facie” showing of a severe
       and permanent handicap, not of his own making, which is [at] least related to the
       commission of the capital offense, a defendant could not pursue a claim
       challenging the failure of the special issues to provide a vehicle for the
       consideration of mitigating evidence. This standard was overturned by the
       Supreme Court in Smith which makes [it] clear that the legal basis for asserting a
       meritorious nullification claim was unavailable to Hood at the time he filed his
       previous habeas application.
2.     On March 15, 2005, the Court of Criminal Appeals held that the legal basis for raising a
       meritorious nullification claim was previously unavailable prior to the Supreme Court’s
       decisions in Tennard and Smith in Ex parte Robertson. In Robertson, this Court
       acknowleged that these Supreme Court decisions provided grounds for authorizing a
       subsequent habeas application in stating, “Accordingly, the legal basis for Applicant’s
       claim was unavailable on the date he filed the previous application, and he meets the
       requirements of Article 11.071, §5(a)(1).”
4.     In Tennard and Smith, the Court indicated that mitigating evidence includes potential
       organic learning disabilities, speech handicaps, low I.Q. (but not within the range of
       mental retardation), special education training in school, difficult childhood
       circumstances, impaired intellectual functioning and mental and emotional development
       that lagged several years behind chronological age, having mitigating value.
       34
        The habeas judge’s seventh conclusion of law reads,
       The two special issues given the jury in this case do not provide an avenue for the
                                                                        Ex parte Hood       Page 12

habeas judge recommended that we grant applicant a new punishment trial based on the

newly available decisions in Tennard and Smith I.

       A majority of this Court held that, although we had originally determined that

applicant’s claim surmounted the section-5 35 bar against subsequent claims because his

Penry claim, raised after Tennard announced new law, was unavailable at the time he filed

his first two writ applications, we were wrong.36 The majority concluded that applicant–by

the time he filed his pro se application in May of 2004–should have known from the Penry

II decision that he had a viable claim concerning both the lack of a special mitigation issue

and the infirmity of the jury-nullification instruction.37 On January 10, 2007,38 we dismissed

applicant’s subsequent writ.39

       On September 8, 2008, just two days before his rescheduled execution, applicant filed

a suggestion that the Court reconsider its January 10, 2007, order because the three newest


       jury to give full consideration of the mitigating evidence adduced at trial. . . .
       Thus, under the evidence in this case, to be constitutional, there should have been
       a special issue submitted to the jury that allowed the jury to give full consideration
       and full effect to the mitigating evidence. That special issue must allow them to
       answer the questions directly as the current[] law provides.
       35
        T    EX . CODE   CRIM . PROC. art. 11.071, § 5(a)(1).
       36
            Ex parte Hood, 211 S.W.3d 767, 770 (Tex. Crim. App. 2007).
       37
            Id. at 777-78.
       38
          This date was a little more than three months before the Supreme Court issued its
opinions in Abdul-Kabir and Smith II, the cases that clarified the interplay between mitigating
evidence and the instructions required for the jury to fully consider that evidence under the Texas
sentencing scheme.
       39
            Ex parte Hood, 211 S.W.3d at 780.
                                                                         Ex parte Hood      Page 13

Supreme Court cases, delivered after our dismissal, finally made it clear that our prior

interpretations of Penry I and Penry II were incorrect.

       Applicant also noted that, in several Penry habeas corpus application cases decided

after Abdul-Kabir, Brewer, and Smith II, we had reconsidered our original dismissal, held

that Tennard, Smith I, Abdul-Kabir, Brewer, and Smith II announced new law, and addressed

the merits of the death-row inmate’s habeas corpus claim.40 There are now several more such

cases in which we have addressed the merits of a Penry claim in a subsequent writ




       40
           Applicant cited Ex parte Moreno, 245 S.W.3d 419, 429-31 (Tex. Crim. App. 2008)
(reconsidering applicant’s previously dismissed Penry claim, concluding that Abdul-Kabir,
Brewer, Smith II, and Tennard constituted a new legal basis under 11.071, § 5, and holding that
those cases held that a defendant’s mitigating evidence of “a troubled childhood” required special
instructions so that the jury could fully consider its mitigating value outside the statutory special
issues; relief granted); Ex parte Martinez, 233 S.W.3d 319, 323 (Tex. Crim. App. 2007) (relief
granted on subsequent habeas corpus application on Penry claims based on Smith I, Tennard,
Abdul-Kabir, Brewer, and Smith II; “We further believe that the recent United States Supreme
Court precedent . . . compels a decision that applicant presented ‘constitutionally relevant
mitigating evidence’ at his 1989 trial and that the jury did not have a vehicle to give this evidence
‘meaningful consideration’”) (quoting Abdul-Kabir); Ex parte Kim Ly Lim, No. WR-56,297-01,
2008 WL 2391119 (Tex. Crim. App. June 4, 2008) (per curiam) (not designated for publication)
(remanding subsequent writ containing Penry claim to habeas court; “Upon reviewing the
subsequent application, and in light of intervening United States Supreme Court decisions, this
Court has determined that Applicant’s third claim concerning the nullification instruction given
at the punishment stage of his trial should not have been dismissed as an abuse of the writ but
remanded to the trial court for its consideration.”); Ex parte Hathorn, No. AP-75917, 2008 WL
2058677 (Tex. Crim. App. May 14, 2008) (per curiam) (not designated for publication)
(reconsidering applicant’s previously dismissed Penry claim). Hathorn received relief and was
granted a new trial on punishment in Ex parte Hathorn, 296 S.W.3d 570 (Tex. Crim. App. 2009)
(relying on Brewer and Abdul-Kabir and holding that applicant was not required to object at trial
or raise Penry issue on appeal to obtain relief under most recent Supreme Court cases; “Because
the mitigating evidence presented at Applicant’s trial is the type of evidence for which he was
entitled to a separate vehicle for consideration, we remand the case to the trial court for [a] new
punishment hearing.”).
                                                                      Ex parte Hood      Page 14

application based upon the Supreme Court’s five most recent cases,41 all of which were

delivered after applicant had filed his pro se application on May 24, 2004.

                                               II.

       The crucial issue in the present case (as it was in the nine recent Texas cases cited

above) is whether the five Supreme Court cases delivered between June 2004 and April 2007

announced “new law” that could serve as a basis for a subsequent writ application or whether

they simply followed established law. Under our Texas habeas-corpus statute, an applicant

may not have the merits of a subsequent writ considered unless he passes over the threshold

of article 11.071, § 5, which requires a showing of newly available law or facts. Thus, if


       41
           See, e.g., Ex parte Davis, No. AP-76,263, 2009 WL 3839065 (Tex. Crim. App. Nov.
18, 2009) (per curiam) (not designated for publication) (reconsidering and granting relief on
applicant’s second subsequent habeas corpus application, by relying on Texas’s post-Abdul-
Kabir, and Tennard cases, even though applicant had failed to object at trial to the sentencing
scheme and special issues; concluding that “[b]ecause the mitigating evidence presented at
applicant’s trial is the type of evidence for which he was entitled to a separate and sufficient
vehicle, we remand the case to the trial court for a new punishment hearing.”); Ex parte Buntion,
No. AP-76236, 2009 WL 3154909 (Tex. Crim. App. Sept. 30, 2009) (per curiam) (not
designated for publication) (granting relief on subsequent writ application alleging Penry error
and relying on other post-Abdul-Kabir and Tennard Texas cases; remanding for new punishment
hearing); Ex parte Rachal, No. WR-60394-02, 2009 WL 3042631 (Tex. Crim. App. Sept. 23,
2009) (per curiam) (not designated for publication) (remanding subsequent writ application for
determination of the merits of Penry claim because requirements of art. 11.071, § 5 were met);
Ex parte Jones, No. AP-75896, 2009 WL 1636511 (Tex. Crim. App. June 10, 2009) (not
designated for publication) (relying on Abdul-Kabir, Brewer, and post-Abdul-Kabir Texas cases
to address the merits of a subsequent habeas application claiming Penry error, but denying relief
because applicant’s mitigating evidence could be fully addressed under the scope of the former
special issues); Ex parte Robertson, No. AP-74720, 2008 WL 748373 (Tex. Crim. App. March
12, 2008) (per curiam) (not designated for publication) (finding that applicant met the
requirements for consideration of his subsequent claim under art. 11.071, § 5, based on Smith I,
and granting relief because “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 he special
issues”).
                                                                        Ex parte Hood      Page 15

Tennard, Smith, et al. announced new law, we may consider the merits of applicant’s claims.

If they are mere applications of previously available law, we are statutorily required to

dismiss his subsequent application as an abuse of the writ.42

       On the other hand, federal courts are not permitted to grant a state petitioner’s writ

application complaining about a state-court decision unless the state court’s determination

of the legal issue was an unreasonable application of clearly established law as announced

by the Supreme Court.43 In other words, this Court may address applicant’s claim only if

Tennard, Smith, et al. are newly available legal claims, whereas federal courts may grant

petitioner’s claim only if this Court has misapplied clearly established federal law.

       This is all very awkward. To grant a Texas death-row inmate relief on his subsequent


       42
        T   EX . CODE   CRIM . PROC. art. 11.071, § 5.
       43
          28 U.S.C. § 2254(d)(1). Under the Antiterrorism and Effective Death Penalty Act
(AEDPA), “a federal court may not grant a writ of habeas corpus ‘with respect to any claim that
was adjudicated on the merits in State court proceedings’ unless the petitioner shows that the
state court’s adjudication ‘resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme Court of the United
States,’ or that the state court’s adjudication of a claim ‘resulted in a decision that was based on
an unreasonable determination of the facts in light of the evidence presented in the State court
proceeding.’” Nelson v. Quarterman, 472 F.3d 287, 292 (5th Cir. 2006); see Brown v. Payton,
544 U.S. 133, 141-43 (2005) (concluding that 9th Circuit erred in granting relief; holding that,
under AEDPA, “[e]ven on the assumption that [the California Supreme Court’s] conclusion was
incorrect, it was not unreasonable, and is therefore just the type of decision that AEDPA shields
on habeas review”); Williams v. Taylor, 529 U.S. 362, 406, 409, 412 (2000) (“Stated simply, a
federal habeas court making the ‘unreasonable application’ inquiry should ask whether the state
court’s application of clearly established federal law was objectively unreasonable”; holding that
“clearly established Federal law” means “the holdings, as opposed to the dicta, of this Court’s
decisions as of the time of the relevant state-court decision,” and explaining that a state-court
decision is contrary to the Supreme Court’s “clearly established precedent if the state court
confronts a set of facts that are materially indistinguishable from a decision of this Court and
nevertheless arrives at a result different from our precedent”).
                                                                       Ex parte Hood      Page 16

Penry I and Penry II claim under the recently decided Tennard, Smith, et al. cases, we must

find that those decisions announced new law, but the federal courts cannot grant relief on

those very same claims unless they find that Texas courts misapplied clearly established law

at the time of the relevant state-court decision.44 Hence, a death-row inmate must argue in

this Court that Tennard, Smith, et al. announced new law, but, once he arrives in federal

court, he must argue that those same cases simply reiterated clearly established law. There

is no logical way in which Tennard, Smith, et al. can simultaneously be both “newly available

law” for state-court purposes and “clearly established law” for federal-court purposes.

       This conundrum has produced starkly different descriptions and versions of the

historical development of Penry law. In each of the five most recent cases, the United States

Supreme Court majority has been at pains to emphasize that “well before our decision in

Penry I, our cases had firmly established that sentencing juries must be able to give

meaningful consideration and effect to all mitigating evidence that might provide a basis for

refusing to impose the death penalty[.]” 45 Thus, Penry itself did not announce new law, nor

did the five most recent cases, Tennard, Smith I, Abdul-Kabir, Brewer, and Smith II.46 Under




       44
         See, e.g., Nelson, 472 F.3d at 303 (concluding that Tennard and Smith merely
reaffirmed clearly established law that existed in 1994 when Nelson’s conviction became final).
       45
            Abdul-Kabir, 550 U.S. at 246.
       46
          See id., at 246-65 (concluding that “[o]ur cases following Lockett have made clear that
when the jury is not permitted to give meaningful effect or a ‘reasoned moral response’ to a
defendant’s mitigating evidence–because it is forbidden from doing so by statute or a judicial
interpretation of a statute–the sentencing process is fatally flawed.”).
                                                                        Ex parte Hood       Page 17

the majority’s reasoning, this Court (along with the Fifth Circuit) completely misunderstood

the scope and applicability of Penry for almost twenty years and reached “‘decision[s] that

[were] contrary to, or involved an unreasonable application of, clearly established Federal

law, as determined by the Supreme Court of the United States’” 47 in virtually all of our Penry

cases. Had the Supreme Court concluded otherwise, it could not have granted relief to any

of the habeas corpus applicants in Tennard, Smith I, Abdul-Kabir, Brewer, or Smith II.

       Not surprisingly, the four dissenters in Abdul-Kabir–led by Chief Justice Roberts–set

out an entirely different version of the Penry history.48 The dissenters noted that “[t]he only

thing clear about our jurisprudence on the pertinent question [whether this Court’s decision

in Abdul-Kabir was “objectively unreasonable” under firmly established Supreme Court

precedent] in 1999, however, is that it was unsettled and confused.” 49 Chief Justice Roberts

stated, “It is a familiar adage that history is written by the victors, but it goes too far to claim

that the meaning and scope of Penry I was ‘clearly established’ in 1990[.]” 50

       Not only have the nine justices on the Supreme Court differed wildly in their view of

the Penry saga, the nine judges on this Court have differed in exactly the same manner. For

example, in the January 2007 decision rendered on applicant’s Penry claim, five members




       47
            See id. at 246 (quoting 28 U.S.C. § 2254(d)(1)).
       48
            See Abdul-Kabir, 550 U.S. at 268-78 (Roberts, C.J., dissenting).
       49
            Id. at 268.
       50
            Id. at 275.
                                                                        Ex parte Hood      Page 18

of this Court set out a history of Penry jurisprudence similar to some of that of the Supreme

Court majority in Abdul-Kabir. Under that understanding–Penry II announced new law, but

Tennard and Smith did not–applicant was not entitled to have the merits of his claim

addressed in his 2005 application because he had filed a pro se post-Penry II application that

did not raise a Penry claim.51 But, according to the Supreme Court in Abdul-Kabir, we were

wrong on that understanding as well: neither Penry I nor Penry II announced new law.52


       51
           Ex parte Hood, 211 S.W.3d 767, 780 (Tex. Crim. App. 2007). The majority concluded,
         Applicant was excused from presenting a Penry-type claim in his first application
         because we held on his direct appeal that the nullification instruction was
         adequate. That holding was sufficient to defeat a claim for relief, and binding
         precedent suggesting the incorrectness of that holding (i.e. Penry II ) did not yet
         exist. But applicant was not excused from presenting this claim in his second
         application because it was filed after Penry II, which afforded a new basis to
         challenge our previous holding. Smith II did not supply a previously unavailable
         legal basis for challenging our original nullification holding because that basis had
         already been supplied by Penry II, and, even though applicant had the opportunity
         to litigate Penry II in his second application, he did not do so and thus received no
         adverse ruling from this Court holding Penry II inapplicable.
Id. One might forgive applicant for not recognizing that he had a valid Penry I and Penry II
claim in May of 2004, because we had not yet recognized that fact ourselves. Just one month
earlier, in April of 2004, we delivered our opinion in Ex parte Smith, 132 S.W.3d 407 (Tex.
Crim. App. 2004), in which we held that (1) the defendant’s troubled childhood and somewhat
limited ability did not qualify as constitutionally significant Penry evidence such that it required
any special instruction as a vehicle for the jury to give it mitigating effect; and (2) the
nullification instruction was a sufficient vehicle to accord full weight to his mitigating evidence.
In other words, we would have treated applicant’s 2004 Penry claims (had he raised them) just as
we had treated Smith’s. The Supreme Court reversed our decision as incorrect on both counts.
Smith v. Texas (Smith I), 543 U.S. 37 (2004); Smith v. Texas (Smith II), 550 U.S. 297 (Tex. Crim.
App. 2007). If we did not recognize the validity of a Penry claim in April of 2004, we can hardly
expect a death-row inmate, filing his pro se application one month later, to be more prescient
than ourselves.
       52
          Abdul-Kabir, 550 U.S. at 248 n.10 (noting that the rule sought by applicant in Penry I
was not “a new rule” because it was “dictated” by earlier precedent), at 253 (reiterating that
“Penry was not asking us to make new law because he was relying on a rule that was ‘dictated’
by earlier cases”).
                                                                          Ex parte Hood    Page 19

Thus, under Abdul-Kabir, this applicant, during his 1990 trial, was simply asking for

instructions that were required by clearly established Supreme Court law, and we were

objectively unreasonable in failing to reverse the punishment verdict on direct appeal.53 The

four dissenters in Ex parte Hood set out a version of the Penry litigation similar to that of

Chief Justice Roberts’s in Abdul-Kabir and contended that Tennard and Smith I announced

new law and thus applicant was entitled to have the merits of his claim addressed.54

       But regardless of which historical version of Penry-litigation one accepts–(1) it was

clearly established that the Texas sentencing scheme concerning the use of mitigation

evidence was constitutionally flawed even before Penry I, or (2) Tennard, Smith, et al.

announced new constitutional law–applicant is entitled to relief in one court or the other. He

is entitled to relief in federal court if Penry did not announce new law because the Texas

courts were “objectively unreasonable” in addressing his Penry claim all along.55 Or, if

Tennard, Smith, et al. did announce new law, he is entitled to relief in this Court because his

claim is not procedurally barred under article 11.071, § 5, and the habeas judge’s factual

findings and legal conclusions recommending relief are supported by the record.

       53
          Hood v. State, No. 71,167 (Tex. Crim. App. Nov. 24, 1993) (not designated for
publication), see e.g., Nelson v. Quarterman, 472 F.3d 287, 303 (5th Cir. 2006).
       54
            Ex parte Hood, 211 S.W.3d at 795 (Cochran, J., dissenting).
       55
          Abdul-Kabir, 550 U.S. at 237 (stating that we “misapplied the law as clearly
established” before Abdul-Kabir’s 1990 trial when we denied his habeas corpus claim that “there
is a reasonable likelihood that the trial judge’s instructions to the Texas jury that sentenced him
to death prevented jurors from giving meaningful consideration to constitutionally relevant
mitigating evidence.”). If the applicable constitutional law was “clearly established” in 1990
when Abdul-Kabir was tried, it was clearly established when applicant was tried that same year.
                                                                    Ex parte Hood      Page 20

                                             III.

       Because we have already held, in numerous subsequent habeas applications since

2007,56 that Tennard, Smith, et al. did announce new law and that those death-row inmates

were entitled to have the merits of their Penry claims addressed, we must treat applicant’s

Penry claim in the same manner. Similarly situated litigants bringing similar claims should

be treated similarly. Most recently, in Ex parte Davis, a case much like the present one, we

reconsidered, on our own initiative, a previously dismissed Penry writ application “because

of changes in the law” and concluded that

       [t]he nullification instruction given to applicant’s jury was not a sufficient
       vehicle to allow jurors to give meaningful consideration and full effect to the
       mitigating evidence presented by applicant. Because the mitigating evidence
       presented at applicant’s trial is the type of evidence for which he was entitled
       to a separate and sufficient vehicle, we remand the case to the trial court for
       a new punishment hearing.57

       We see no reason to treat applicant inconsistently. Therefore, we adopt the habeas

judge’s factual findings, agree with his legal conclusions, and accept his recommendation to

grant relief. This case is remanded to the trial court for a new punishment hearing.




Delivered: February 24, 2010

Publish



       56
            See notes 40 & 41 supra.
       57
         Ex parte Davis, No. AP-76,263, 2009 WL 3839065 at *2 (Tex. Crim. App. Nov. 18,
2009) (per curiam) (not designated for publication).
