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Click here for the full text of this decision FACTS:The appellant was convicted of capital murder. His sentence was reversed twice by the United States Supreme Court because the jury instructions failed to provide an adequate vehicle to give effect to the appellant’s evidence of mental retardation. During the most recent retrial, the trial court submitted instructions and a mitigation special issue that asked the jury to decide whether the appellant is mentally retarded, and if not, to “consider whether any other mitigating circumstance or circumstances exist as defined herein.” HOLDING:Reversed and remanded for a new punishment trial. A capital defendant cannot establish a constitutional violation simply by demonstrating that an allegedly erroneous jury instruction could have or might have affected some hypothetical jury. The U.S. Supreme Court explained in Boyde v. California, 494 U.S. 370 (1990). that a defendant must show that there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence. Although a defendant need not establish that the jury was more likely than not to have been impermissibly inhibited by the instruction, a capital sentencing proceeding is not inconsistent with the Eighth Amendment if there is only a possibility of such an inhibition. This reasonable likelihood standard better accommodates the concerns of finality and accuracy than does a standard which makes the inquiry dependent on how a single hypothetical reasonable juror could or might have interpreted the instruction. Differences among jurors in interpretation of instructions may be thrashed out in the deliberative process, with commonsense understanding of the instructions in the light of all that has taken place at the trial likely to prevail over technical hairsplitting. In Boyde, the U.S. Supreme Court considered whether California’s “unadorned” mitigating factor (k) permitted the jury to give effect to the defendant’s evidence of his background and character. This mitigating factor asked California juries to determine whether there is “[a]ny other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime.” At first glance, factor (k) in Boyde seems very similar to the instruction given in the appellant’s case. Here, the jury was instructed to consider any other mitigating circumstance or circumstances when answering the fourth special issue after determining that the appellant was not mentally retarded. This situation is different from Boyde because the instruction to consider “any other circumstance or circumstances” excludes what the jury had already considered: mental impairment that did not rise to the level of mental retardation. This circumstance, even if the jury concluded that the appellant is not mentally retarded, is the kind of double-edged circumstance that the jury should be able to consider within the context of the mitigation special issue. The parties’ arguments to the jury did not clear up this confusion. The parties’ arguments did not explicitly inform the jury that it should reconsider the appellant’s mental impairment when considering the fourth special issue if it concluded that the appellant was not mentally retarded. Because there is a reasonable likelihood that the jury believed that it could not give effect to mental impairment, outside of tending to show that the appellant is mentally retarded, the trial court erred in instructing the jury to “consider whether any other mitigating circumstance or circumstances exist as defined herein.” Because the appellant in this case made a timely objection to the charge, the court applies a harmless-error standard. Deciding there is a reasonable likelihood that the jury believed that it was not permitted to consider evidence of mental impairment outside of determining whether the appellant is mentally retarded, the court concludes that the error is reversible. OPINION:Price, J.; Meyers, Womack, Johnson and Holcomb, JJ., joined. Keller, P.J., filed a dissenting opinion in which Cochran, J., joined. Cochran, J., filed a dissenting opinion, in which Keller, P.J., and Keasler and Hervey, JJ., joined.

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