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Click here for the full text of this decision FACTS:Based upon the evidence admitted at trial and the trial judge’s instructions, the jury found that the state carried its burden on the special issues and proved, beyond a reasonable doubt, that a death sentence should be imposed despite applicant’s mitigating evidence. Therefore, the trial judge sentenced applicant to death. On direct appeal, the applicant claimed that, under Penry v. Lynaugh, 492 U.S. 302 (1989) (Penry I), Texas Code of Criminal Procedure Article 37.071 was unconstitutional as applied to him because the jury was unable to give effect to his mitigating evidence in answering the special issues. The court rejected this claim and held that, regardless of whether applicant’s mitigating evidence was beyond the scope of the two statutory special issues, the judge’s extensive supplemental instruction provided a sufficient vehicle for the jury to consider all of applicant’s mitigating evidence. The applicant filed an original writ of habeas corpus in the convicting court in 1998, but this court dismissed that writ as untimely filed. After the Legislature revised Article 11.071 �4A, to permit applicant to file a new writ, he timely filed another writ and now claims that the trial judge’s supplemental “nullification” instructions were unconstitutional under Penry v. Johnson, 532 U.S. 782 (2001) (Penry II). The applicant argues that his supplemental jury instructions were “virtually identical” to those given in Penry II, and his mitigation evidence was similar to that offered in Penry II. Therefore, he claims, he is entitled to relief under Penry II. HOLDING:Denied. The court disagrees with the applicant. First, the present supplemental instructions are similar to those given in Penry II only to the extent that both were “nullification” instructions. Otherwise, they are dissimilar in ways that render the present instruction constitutionally sufficient. Second, applicant’s evidence of an unhappy childhood and as a slow learner is simply not the “two-edged sword” type of evidence contemplated in either Penry I or Penry II. The applicant might be entitled to relief only if the U.S. Supreme Court intended to hold, in Penry II, that all nullification instructions are constitutionally infirm in all cases in which the defendant offers any mitigation evidence. The court does not read Penry II that broadly, and neither did the Fifth Circuit in its en banc decision in Robertson v. Cockrell, 325 F.3d 243 (5th Cir.). If Robertson was not entitled to relief under Penry II, then the applicant, whose mitigation evidence does not rise to the level found in Penry I, is likewise not entitled to relief. Penry I does not require a special mitigation instruction, apart from the two statutory special issues, for any and all mitigating evidence, regardless of its strength, quantity or quality. For more than 10 years, the Fifth Circuit has drawn the line between Penry and non-Penry mitigation evidence under the test of whether the defendant’s criminal act was due to the uniquely severe permanent handicaps with which the defendant was burdened through no fault of his own. This test takes into account the four principles set out by the Supreme Court in Penry: voluntariness, permanence, severity and attribution. If a disability is acquired involuntarily, is of a permanent rather than transient nature, is severe in its impact upon the person, and is at least a partial cause or explanation of the criminal act, then a defendant is entitled to a vehicle by which to give effect to that evidence � either supplementary instructions or a special mitigation issue. Here, applicant merely argues that he presented “significant mitigating evidence that was virtually indistinguishable from Penry’s and thus undeniably beyond the scope of the special issues.” Moreover, applicant fails to show how being a slow learner and having been burdened by a feckless father impacted his later behavior or criminal conduct. Furthermore, applicant has failed to show that any mitigating quality of his family background and mental-limitations evidence could not be fully encompassed by the two statutory special issues. The court concludes that a defendant first must make 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. Second, the defendant must show that this disability evidence was effectively beyond the reach of the two special issues. Applicant has made neither showing. The court concludes that the two special issues provided applicant’s jury with a constitutionally sufficient vehicle to give effect to his mitigating evidence. The present instruction not only told the jury that it “shall” consider all mitigating evidence, even evidence unrelated to the special issues, it also told the jury how to answer the special issues to give effect to that mitigation evidence. Here, the jury did not have to read anything into the mitigation instruction or decide which instruction should control over the other one. These instructions expressly authorized and required the jury to answer “No” to at least one of the special issues if it believed that the death penalty was not warranted because of the mitigating circumstances. The trial court’s instructions clearly informed the jury that mitigation evidence “trumped” the special issues. This supplemental instruction, although dissimilar to that in Penry II, is similar to that in Robertson. The court agrees with the Fifth Circuit’s en banc conclusion that this supplemental instruction provided “a more capacious vehicle than was constitutionally warranted.” The court also agrees with the 5th Circuit’s determination that: “the supplemental instruction did not render the jury charge potentially contradictory. The jury was not forced into the position-as they were in Penry II-of falsely answering “no” to the questions of deliberateness or future dangerousness. The most that one could say is that the supplemental instruction was redundant in this case.” Therefore, the court concludes that the supplemental instruction in this case was not error of any sort. OPINION:Cochran, J., delivered the opinion of the Court, joined by Keller, P.J., Meyers, Womack and Johnson, JJ. Hervey, J., filed a concurring opinion, joined by Keasler, J. Holcomb, J., filed a concurring opinion, joined by Price, J. CONCURRENCE:Hervey, J.; Keasler, J., joins. “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. . . . “Notwithstanding the foregoing, the claim that applicant raises for the first time in this habeas corpus proceeding lacks substantive merit.” Holcomb, J.; Price, J., joins. “Based on the Supreme Court’s reasoning in Penry II, I would conclude that the nullification instruction Smith received would not be a sufficient vehicle, under Penry I, to allow the jury to give effect to the defendant’s mitigating evidence relevant beyond the scope of the special issues. “Because the mitigating value of Smith’s evidence could not be considered and given effect within the special issues and the jury was not provided with a sufficient vehicle for expressing its reasoned moral response to his evidence, the Texas capital punishment statute operated in an unconstitutional manner as applied to Smith. But for his failure to object to the nullification instructions at trial, Smith would be entitled to a new punishment hearing.”

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