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Click here for the full text of this decision FACTS:On Sept. 7, 1990, a jury convicted Charles Dean Hood of capital murder. During the punishment phase of trial, he presented mitigating evidence that he now contends was not adequately encompassed by the jury instructions. This included evidence that he was run over by a truck at the age of three, that he received beatings during and after school (including a blow to the head from a metal pipe) and that he suffered from speech defects and learning disabilities. Hood’s trial occurred after the U.S. Supreme Court handed down Penry v. Lynaugh, 492 U.S. 302 (1989) (Penry I), but before the Texas Legislature added the mitigation special issue to Texas Code of Criminal Procedure Art. 37.071. In response to Penry I’s dictates, the trial court chose to use a nullification instruction to enable the jury to give effect to applicant’s mitigating evidence. The instruction specifically required jurors to answer “no” to at least one of the special issues if they believed that the defendant’s mitigating evidence justified a sentence of life rather than death. The jury answered “yes” to all of the special issues and in accordance with the jury verdict, the trial court entered a judgment sentencing applicant to death. The Court of Criminal Appeals (CCA) affirmed the trial court’s judgment on direct appeal. In his brief on appeal, Hood argued that the jury charge in the punishment phase failed to satisfy Penry I’s requirements. After reviewing the jury charge, the CCA concluded that the nullification instruction was adequate to meet the requirements of Penry I. On Dec. 22, 1997, Hood filed his first application for writ of habeas corpus. As originally filed, the application included a challenge to the nullification instruction, but the application was subsequently amended and that particular claim was omitted. The CCA denied the application on April 21, 1999. On June 4, 2001, the U.S. Supreme Court decided Penry v. Johnson, 532 U.S. 782 (2001) (Penry II), holding that the “ambiguous” nullification instruction submitted in that case failed to afford the jury an adequate vehicle by which to consider the proffered mitigating evidence of mental retardation. On April 21, 2004, in Ex Parte Smith (Smith I), the CCA: 1. adopted the 5th U.S. Circuit Court of Appeals’ “constitutional relevance” threshold requirement, which called for a showing that “the defendant’s criminal act was due to uniquely severe permanent handicaps with which the defendant was burdened through no fault of his own,” and 2. distinguished the “clear” nullification instruction in Smith from the “ambiguous” instruction found to be inadequate by the Supreme Court in Penry II. On May 24, 2004, applicant filed pro se his second habeas corpus application, which alleged that he was actually innocent of the crime for which he was convicted. The CCA dismissed that application as an abuse of the writ under Texas Code of Criminal Procedure Art. 11.071, �5. On June 24, 2004, the Supreme Court decided Tennard v. Dretke, discarding the 5th Circuit’s “constitutional relevance” threshold requirement. On Nov. 15, 2004, the Supreme Court reversed the CCA’s decision in Smith I with its decision in Smith II. The Supreme Court overturned the CCA’s first holding as inconsistent with Tennard, and it overturned the CCA’s second holding on the basis that the nullification instruction was governed by its holding in Penry II. On June 22, 2005, eight days before his scheduled execution, Hood filed a third habeas corpus application, along with a motion for stay of execution. That application advanced a single claim for relief: “The nullification instruction in Mr. Hood’s case suffers from the same defects that the Supreme Court found unconstitutional in Penry II and [Smith II].” Hood alleged that his third habeas petition complied with the subsequent application requirements of Article 11.071, �5. The CCA initially accepted that allegation, stayed the execution and remanded the case to the trial court for further proceedings. After proceedings in the trial court, the case returned to the CCA, which ordered the parties to brief the merits of nullification instruction issue in light of the entire jury charge; any harm that may have occurred, as measured by the test of Almanza v. State, 686 S.W.2d 157 (Tex.Crim.App. 1985); and Hood’s potential forfeiture of the claimed error in the nullification instruction, due to his failure to raise it in his first or second application. HOLDING:The Court of Criminal Appeals (CCA) held that the Texas Code of Criminal Procedure Art. 11.071, �5, barred Hood’s third application for habeas corpus relief. Hood, the CCA stated, did not have to present a Penry-type claim in his first application, because the CCA 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 Hood 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 the CCA holding Penry II inapplicable. Furthermore, the CCA stated that the U.S. Supreme Court’s repudiation of the 5th Circuit’s “constitutional relevance” threshold requirement in Tennard and Smith II did not, in the abstract, constitute a previously unavailable legal basis for relief because, according to the Supreme Court itself, that basis could have been reasonably formulated from the Supreme Court’s prior decision in Penry I and other previously available Supreme Court caselaw. And finally, the CCA stated that Hood forfeited the opportunity to raise the Tennard/Smith II constitutional relevance issue in his second application. OPINION:Keller, P.J., delivered the opinion of the court in which Meyers, Price, Keasler and Hervey, J.J., joined. DISSENT:Cochran, J., filed a dissenting opinion in which Womack, Johnson and Holcomb, J.J., joined. “I conclude that no Texas or federal court had recognized the legal basis for his claim until the Supreme Court decided Tennard v. Dretke. Therefore applicant’s legal claim is newly available, and we should address the merits of his jury-charge claim under Almanza v. State.”

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