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Click here for the full text of this decision FACTS:The case was before the court on remand from the U.S. Supreme Court in light of its recent opinion in Tennard v. Dretke, 124 S.Ct. 2562 (2003). The petitioner-appellant Ted Calvin Cole argued that a trio of recent cases Tennard, Smith v. Texas, 125 S.Ct. 400 (2003), and Bigby v. Dretke, 402 F.3d 551 (5th Cir. 2005) � required reversal of the district court’s denial of his 28 U.S.C. 2254 habeas corpus petition and petition for a certificate of appealability. In his original criminal trial, Cole had been found guilty of the capital murder while in the course of committing and attempting to commit robbery. In response to special issues at the end of the penalty phase, the jury answered that Cole had deliberately killed his victim and that there was a probability that Cole posed a threat of future dangerousness. The trial court accordingly sentenced Cole to death. The Texas Court of Criminal Appeals affirmed Cole’s conviction and sentence, and the U.S. Supreme Court denied his petition for a writ of certiorari. The trial court and the Court of Criminal Appeals recommended denying Cole’s application for post-conviction relief in state court and raised a Penry v. Lynaugh claim. Cole then filed a 28 U.S.C. 2254 habeas corpus petition in the district court, raising the Penry claim and an ineffective assistance of counsel claim. As to his Penry claim, Cole argued in the district court that his mitigating evidence of a “destructive family background” and of “organic neurological defects” � specifically, a lack of impulse control � was “constitutionally relevant mitigating evidence.” The district court held that Cole’s evidence fell short of the standard for “constitutionally relevant” mitigating evidence and ultimately denied all of Cole’s claims on the merits. The district court further denied Cole’s motion for a certificate of appealability. Cole appealed the district court’s denial of his habeas corpus petition and his application for a COA. The court denied Cole’s motion for a COA as to his Penry claim and his request for reconsideration in light of the U.S. Supreme Court’s grant of certiorari in Smith v. Dretke and Tennard v. Dretke. Cole appealed to the U.S. Supreme Court. In light of its opinion in Tennard, in which the Supreme Court rejected the court’s “constitutional relevancy” test for mitigating evidence, the Court vacated the court’s panel opinion and remanded for further proceedings consistent with Tennard. HOLDING:The court reverses the district court’s denial of a COA and grants Cole a COA on his Penry claim, but ultimately affirms the district court’s denial of habeas relief. Cole asserts on remand that he is entitled to a COA on his claim because the Texas capital sentencing scheme’s special issues did not allow the jury to give “full consideration and full effect” to the mitigating evidence that he presented at the punishment phase of his trial. Specifically, Cole argues that Tennard, Smith and Bigby require reversal of the district court’s denial of his habeas corpus petition and request for a COA. The court holds that, to prevail on a Penry claim, Cole must demonstrate that the mitigating evidence adduced at the penalty phase of his trial meets the “low threshold for relevance;” and, if so, that the evidence was beyond the effective reach of the jury. The Tennard court clarified the standard for relevant mitigating evidence. Because the court relied on the “nexus” requirement to deny Cole a COA on his Penry I claim, and because the district court relied � at least in part � on the court’s now-defunct test, the court holds that jurists of reason could debate whether Cole’s mitigating evidence is relevant. Accordingly, the court grants Cole a COA on this claim and goes on to determine whether Cole’s mitigating evidence meets the low threshold for relevance as articulated by the Tennard Court. The court finds that evidence of Cole’s turbulent family background constitutes relevant mitigating evidence. Cole need not show that any psychological condition caused by his destructive family background is linked to his conduct; he need only show that it existed, and that a jury could find that a sentence other than death would be warranted. Therefore, the court holds that the district court erred when it rejected Cole’s evidence of a destructive family background under the “nexus” test expressly rejected by the U.S. Supreme Court in Tennard. The court also concludes that Cole’s evidence of “organic neurological deficiency” � specifically, a lack of impulse control � is relevant mitigating evidence. The court then turns to the principal issue in dispute � whether, at the punishment phase of his trial, Texas’s special issues allowed Cole’s jury to give full consideration and effect to the evidence of destructive family background and organic neurological deficiency. In light of the U.S. Supreme Court’s opinion in Smith and the court’s recent opinion in Bigby, the court concludes that jurists of reason could debate the district court’s conclusion that Cole’s mitigating evidence was not beyond the effective reach of the jury. Accordingly, the court reaches the merits of Cole’s claim. Cole contends that, in violation of Penry I, the two special issues “shackled and confined” the jury’s consideration of his mitigating evidence and provided no vehicle for the jury to give it full mitigating effect. Penry I did not hold that the mere mention of “mitigating circumstances” to a capital sentencing jury satisfies the Eighth Amendment. Nor does it stand for the proposition that it is constitutionally sufficient to inform the jury that it may “consider” mitigating circumstances in deciding the appropriate sentence. Rather, the court holds, the key to Penry I is that the jury be able to “consider and give effect to [a defendant's mitigating] evidence in imposing sentence.” Cole contends that the special issues are not broad enough to encompass his mitigating evidence of a destructive family background and an organic neurological deficiency, including diminished impulse control. Specifically, Cole argues that the two special issues do not provide an adequate vehicle for the jury to consider his mitigating evidence. The court holds that Cole’s reliance on Penry I, Penry II, Tennard, and Smith is misplaced. Penry I and II are readily distinguishable from this case. In Johnson v. Texas, the U.S. Supreme Court confirmed the limited scope of Penry I and II. Although the defendant in Johnson insisted that the Texas special issues prevented the jury from considering the mitigating effect of his youth, the Court rejected that argument and, in doing so, clarified Penry’s scope. Unlike the evidence in Penry, Cole’s mitigating evidence did not suggest that he was unable to learn from his mistakes. The record does not suggest that the jury viewed Cole’s mitigating evidence as an aggravating factor only, i.e., because he cannot learn from his mistakes, he will remain a danger in the future. Rather, the evidence proffered by Cole’s expert witnesses suggested to the jury that Cole could change in the future. The evidence intimated that someone from Cole’s abusive background begins to change later in life. This evidence also suggests that even someone with a lower than normal IQ or an organic neurological deficiency changes later in life. The court holds that hat this evidence fits well within the broad scope of the future dangerousness special issue is clearly evident from the testimony of Cole’s own expert witnesses. OPINION:Wiener, J., Higginbotham, Wiener, and Barksdale, JJ.

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