Robertson v. Cockrell

United States Court of Appeals
Fifth Circuit

F I L E D
March 14, 2003
REVISED APRIL 11, 2003
UNITED STATES COURT OF APPEALS Charles R. Fulbruge III
FOR THE FIFTH CIRCUIT Clerk

_______________________

No. 00-10512
_______________________

MARK ROBERTSON,

Petitioner,

versus

JANIE COCKRELL, DIRECTOR, Texas
Department of Criminal Justice -
Institutional Division,

Respondent.

_________________________________________________________________

Appeal from the United States District Court
for the Northern District of Texas

_________________________________________________________________

Before KING, Chief Judge, and JOLLY, HIGGINBOTHAM, DAVIS, JONES,
SMITH, WIENER,* BARKSDALE, EMILIO M. GARZA, DEMOSS, BENAVIDES,
STEWART, DENNIS, and CLEMENT, Circuit Judges.

EDITH H. JONES, Circuit Judge:

In Penry v. Lynaugh, 492 U.S. 302 (1989) (“Penry I”), the

United States Supreme Court held that the first two “special issue”

*
Judge Wiener concurs in the judgment only.
interrogatories in the Texas capital sentencing instruction,1

though facially valid, see Jurek v. Texas, 428 U.S. 262 (1976),

failed to satisfy the constitutional requirement that a capital

defendant be entitled to present to his jury — and have it give

mitigating effect to — proffered evidence of childhood abuse.

Twelve years later, following Penry’s second trial, conviction, and

capital sentence, the Court held that the supplemental instruction

given at sentencing failed to cure this defect. Penry v. Johnson,

532 U.S. 782 (2001) (“Penry II”).

Before this en banc court, Mark Robertson, a victim of

childhood abuse and self-inflicted substance addiction, argues that

the same supplemental instruction given to his sentencing jury

similarly failed to cure the alleged defects of the Texas special

issues. This case constitutes a test, first, of the circumstances

under which the Texas special issues might fail to facilitate a

sentencing jury’s consideration of mitigating evidence and, second,

of the supplemental instruction’s ability to cure such a failure.

Because Robertson’s evidence — in quality and quantity —

does not match Penry’s, this court concludes that the statutorily

prescribed Texas special issues allowed Robertson’s jury to give

1
Acts 1973, 63rd Leg., R.S., ch. 426, art. 3, § 1, 1973 Tex.
Gen. Laws 1125, amended by Acts 1991, 72nd Leg., R.S., ch. 838, §
1, 1991 Tex. Gen. Laws 2898 (currently Tex. Code Crim. Proc., art.
37.071(b)).

2
mitigating effect to his proffered evidence; they do not,

therefore, stand in need of cure. Moreover, absent a presentation

of sufficient Penry-quality mitigating evidence, the trial court’s

recitation of this supplemental instruction cannot constitute

error.

I. BACKGROUND

On the evening of August 19, 1989, Robertson shot 19-

year-old Sean Hill, his friend and drug supplier, in the back of

the head with a .38 caliber firearm. At the time of the murder,

Hill was fishing behind his grandmother’s house in Dallas, Texas.

Leaving his dead friend’s body in the pond, Robertson entered the

house and killed Edna Brau, Hill’s grandmother, also with a single

shot, as she lay on her couch watching television. Robertson stole

Hill’s drugs and Brau’s purse, car and papers, and other personal

belongings. Several days later he fled to Las Vegas, Nevada, where

he was apprehended by local police.

Robertson was tried for these two murders and his

previous killing of a 19-year-old convenience store clerk during a

robbery. For the murders of the clerk and Hill, Robertson received

concurrent life sentences. For killing Brau, Robertson was found

guilty of capital murder. Acts 1973, 63rd Leg., R.S., ch. 426,

art. 2, § 1, Tex. Gen. Laws 1123, amended by Acts 1993, 73rd Leg.,

R.S., ch. 900, § 1.01 (currently Tex. Penal Code § 19.03(a)(2)).

3
Under 1989 Texas law, to impose a capital sentence the jury had to

answer two questions in the affirmative. First: Was the killing

deliberate? Second: Does the defendant pose a danger to others?

A negative answer for either special issue would result in a life

sentence.2 The court also gave the jury a supplemental instruction

in which it was told that Robertson could avoid a capital sentence

— even if the answers to both questions were affirmative — should

the jury find sufficient mitigating factors. To give effect to

such a determination, the trial court instructed the jury to change

its answer to either of the special issues from “Yes” to “No.”3

2
A third issue, inquiring whether the defendant was provoked
into capital murder, is unnecessary to parse here. Acts 1973, supra
n.1.
3
The supplemental instruction given to the jury reads as
follows:
You are instructed that you shall consider any
evidence, which, in your opinion, is mitigating.
Mitigating evidence is evidence that reduces the
defendant’s personal or moral culpability, or
blameworthiness, and may include, but is not limited to
an aspect of the defendant’s character, record,
background, or circumstances of the offense for which you
have found him guilty. Our law does not specify what may
or may not be considered as mitigating evidence. Neither
does our law provide a formula for determining how much
weight, if any, a mitigating circumstance deserves. You
may hear evidence, which in your judgment, has no
relationship to any of the special issues, but if you
find such evidence is mitigating under these
instructions, you shall consider the following
instructions of the court. You and each of you, are the
sole judges of what evidence, if any, is mitigating and
how much weight, if any, the mitigating circumstances, if
any, including those which have no relationship to any of
the special issues, deserves.

4
 At sentencing the state presented evidence, inter alia,

relating to Robertson’s past criminal behavior, which included

serious vandalism at about age 12, taking a loaded handgun to

school at 13, car theft and destruction of property at 14,

marijuana possession at 15 and 18 (the second resulting in

conviction), an aggravated robbery conviction (using a baseball bat

and knife) at 18, and passing bad checks at 19. He had also

violated the terms of probation by failing to report, attend drug

counseling, and perform community service. The state also

presented extensive evidence relating to Robertson’s murder of the

convenience store clerk and of his bad prison behavior since

incarceration, including jail-cell arson and an escape attempt.

You are instructed that some mitigating evidence, if
any, may not be relevant to resolving the special issues
but may be relevant in determining whether or not the
defendant should be put to death.
In answering the special issues submitted to you
herein, if you believe that the State has proved beyond
a reasonable doubt that the answers to the special issues
are ‘Yes,’ and you also believe from the mitigating
evidence, if any, that the defendant should not be
sentenced to death, then you shall answer at least one of
the special issues ‘No’ in order to give effect to your
belief that the death penalty should not be imposed due
to the mitigating evidence presented to you. In this
regard, you are further instructed that the State of
Texas must prove beyond a reasonable doubt that the death
sentence should be imposed despite the mitigating
evidence, if any, admitted before you.

5
 Robertson presented testimony at the punishment stage

from his two sisters, mother, stepfather, uncle, aunt, cousin,

former girlfriend, and friends of the family.

Robertson’s biological father was an alcoholic who would

often come home drunk and make the children stay awake at the foot

of his bed until he went to sleep; otherwise they would receive a

beating. Because Robertson was a baby when most of the abuse

occurred, he was spared, but as he grew, he received more abuse.

He witnessed both physical and verbal abuse of his mother and

siblings. Sometimes the father would beat the other children with

a board.

When Robertson was eight or nine years old, his mother

left his father, but she reclaimed the children six months later,

and his father subsequently disappeared. Robertson adapted to his

new home better than did his older siblings and began calling his

mother’s husband “father.” His mother and stepfather provided a

good home to him and treated him well. Family and friends

testified that Robertson was always respectful, polite, and

helpful. Robertson also fulfilled his promise to obtain a GED if

his parents would allow him to quit school. Robertson was

described by his mother as being “very smart.”

Robertson also offered evidence regarding his struggle

with drugs. He became addicted at the age of 14 or 15. Upon

6
catching him smoking marijuana, his parents sent him to a drug

rehabilitation clinic; they removed him ten days later, after he

threatened to run away. He and a companion committed a robbery in

November 1987 while high on cocaine. In 1988, when Robertson was

on bond for aggravated robbery, he entered another drug treatment

facility. Robertson almost completed the program, but left for

Florida when his counselor became ill and died. After Robertson

was arrested and convicted for violating the terms of his

probation, he checked himself into Charter Hospital for treatment

and completed the six-week program. He then went to the House of

Hope in Sherman, Texas, but stayed only about forty days.

Robertson also presented the testimony of several

witnesses who described him as having a good character and a lack

of a violent history. Despite having a psychiatrist available and

being given an additional four days during the punishment phase to

conduct psychological testing, Robertson presented no psychiatric

or psychological testimony.

For his murder of Brau, the jury answered both special

issues in the affirmative. Accordingly, the court entered a

sentence of death in February 1991.

On direct appeal the Texas Court of Criminal Appeals

affirmed his capital sentence. Robertson v. State, 871 S.W.2d 701

(Tex. Crim. App. 1993). Among other issues, Robertson argued that

7
the trial court erred by submitting the above-described

supplemental instruction in lieu of a proposed third special issue

regarding mitigating evidence. The court held that the

supplemental instruction fully comported with Penry I, the

controlling Supreme Court precedent, as it permitted, indeed

invited, the jury to consider all of the constitutionally relevant

evidence. The Supreme Court subsequently denied Robertson’s

petition for writ of certiorari. Robertson v. Texas, 513 U.S. 853

(1994).

Three years later, Robertson filed a petition for habeas

corpus relief in the state trial court. The court held an

evidentiary hearing and recommended that relief be denied. It

held, inter alia, that the jury instructions were adequate to

satisfy the constitutional demands of Penry I and related Supreme

Court cases. It also noted that this conclusion comported with a

host of post-Penry I Texas cases in which similar jury instructions

had been presented. In November 1998, the Texas Court of Criminal

Appeals relied upon the trial court’s findings to deny the

petition. Ex parte Robertson, writ no. 30,077-01 (Tex. Crim. App.

1998).

Robertson immediately filed a federal petition for relief

pursuant to 28 U.S.C. § 2254 and once again alleged constitutional

error arising from, inter alia, the jury instruction. The federal

8
district court dismissed Robertson’s § 2254 petition in March 2000,

concluding that Robertson could not demonstrate that the decisions

of the state courts were contrary to or involved an unreasonable

application of clearly established federal law, as decided by the

United States Supreme Court. Robertson filed a timely notice of

appeal and a request for a certificate of appealability (“COA”) in

the district court. The district court denied COA and Robertson

filed the instant application for a COA with this court.

The district court’s denial of relief was affirmed by

this court, Robertson v. Johnson, 234 F.3d 890 (5th Cir. 2000), and

he sought certiorari from the United States Supreme Court. In 2001

the Supreme Court decided Penry II, holding that the same set of

instructions had failed to give the jurors a “‘vehicle,’” Penry II,

532 U.S. at 787 (quoting Penry I, 492 U.S. at 326), by which they

might “‘consider and give effect to [a defendant’s mitigating]

evidence in imposing sentence.’” Penry II, 532 U.S. at 797

(quoting and adding emphasis to Penry I, 492 U.S. at 319). The

Supreme Court subsequently vacated this court’s decision and

remanded it for reconsideration. Robertson v. Johnson, 533 U.S.

901 (2001). In January 2002 a panel of this court concluded that

“there is no substantial difference between the jury instructions

on mitigation given in this case and those given in Penry II,”

granted Robertson’s motion for a COA and granted the writ,

9
requiring Robertson to be retried for the penalty phase of his

prosecution. Robertson v. Cockrell, 279 F.3d 1062 (5th Cir. 2002).

Upon the state’s motion, this court reheard the case en banc.

Robertson v. Cockrell, 300 F.3d 881 (5th Cir. 2002).

II. STANDARD OF REVIEW

This instant case is governed by the Antiterrorism and

Effective Death Penalty Act of 1996 (“AEDPA”), as Robertson’s

habeas petition was filed after the effective date of the Act. 28

U.S.C. § 2254(d) (2002). Thus, the AEDPA applies to both his COA

application and his habeas petition. Lindh v. Murphy, 521 U.S.

320, 335-36 (1997); Nobles v. Johnson, 127 F.3d 409, 412-13 (5th

Cir. 1997).

To prevail on an application for a COA, an applicant must

make a

substantial showing of the denial of a constitutional
right, a demonstration that . . . includes showing that
reasonable jurists could debate whether. . . the petition
should have been resolved in a different manner or that
the issues presented were adequate to deserve
encouragement to proceed further.

Moore v. Johnson, 225 F.3d 495, 500 (5th Cir. 2000), cert. denied,

532 U.S. 949 (2001) (quotations and citations omitted). We grant

Robertson’s request for a COA, as he raises issues that are

debatable among reasonable jurists. Id. at 500.

To prevail on a petition for writ of habeas corpus, a

petitioner must demonstrate that the state court proceeding

10
“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.” 28 U.S.C.

§ 2254(d)(1); see Moore, 225 F.3d at 501. Before this court may

grant habeas relief under the “unreasonable application” clause,

the state court’s application must be more than merely incorrect.

Caldwell v. Johnson, 226 F.3d 367, 372 (5th Cir. 2000). The

appropriate inquiry is “‘whether the state court’s application of

clearly established federal law was objectively unreasonable.’”

Id. (quoting Williams v. Taylor, 529 U.S. 362, 409 (2000)).

III. DISCUSSION

In Penry I, the Supreme Court held that the Texas capital

sentencing framework, though facially valid, see Jurek, 428 U.S.

262, can fail, in certain circumstances, to satisfy the

constitutional requirement that a capital defendant is entitled to

present to his jury — and have it give effect to — mitigating

evidence. The case at bar constitutes a test of the evidence —

both in quality and quantity — that provokes such a failure.

The evidence that Johnny Paul Penry presented to his jury

upon sentencing for the rape, beating, and murder of Pamela

Carpenter consisted of extreme childhood abuse and mental

retardation. As a consequence of these disabilities, Penry

11
suffered from an inability “to control his impulses or to evaluate

the consequences of his conduct.” Penry I, 492 U.S. at 322.

The Court held that the Texas special issues failed Penry

in two ways. Most prominently, the first special issue (the

inquiry into the “deliberate[ness]” of the defendant’s acts) did

not give the jury the ability “to fully consider and give effect to

[Penry’s] mitigating evidence.” Id. at 315. The severity of

Penry’s impairment, the Court said, suggests a lack of culpability.

While “culpability” and “deliberate[ness]” are not mutually

exclusive categories, the Court was uncertain that, in the absence

of a statutory definition of “deliberately,” this particular

special issue gave full mitigating effect to evidence of a profound

moral impairment. Id. at 323.

The second special issue — inquiring into the defendant’s

“continuing threat to society” — also presented a challenge for

Penry’s peculiar evidence. While poor impulse control might be

relevant to the first inquiry (positively), it is also relevant to

the second, though negatively. In the words of the Court, Penry’s

evidence was a “two-edged sword”: Even as it diminished his

culpability, it magnified his dangerousness. Id. at 324.

The Supreme Court concluded that Penry was

constitutionally entitled to receive instructions that would

provide the jury with a vehicle for expressing its “reasoned moral

12
response” to the mitigating evidence and would permit it to give

effect to this evidence by declining to impose the death penalty.

Id. at 328.

The decision in Penry I placed Texas trial courts in a

difficult position when trying capital defendants. They 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. Hoping to provide timely and Penry-compliant trials, the

courts generally chose to cure the perceived deficiencies in the

jury interrogatories by issuing, when appropriate, the supplemental

instruction described above. This the Texas courts did from the

pronouncement of Penry I to September 1, 1991, when the amended

statute went into effect.4

Robertson was tried in February 1991, during the hiatus

between Penry I’s pronouncement and the Texas legislature’s

4
The amended statute provides that an additional question be
placed to the sentencing jury:
Whether, taking into consideration all of the evidence,
including the circumstances of the offense, the
defendant’s character and background, and the personal
moral culpability of the defendant, there is a sufficient
mitigating circumstance or circumstances to warrant that
the sentence of life imprisonment rather than a death
sentence be imposed.
Tex. Code Crim. Proc., art. 37.0711 § 3(e). Added by Acts 1991,
72nd Leg., R.S., ch. 838, § 1, 1991 Tex. Gen. Laws 2898.

13
reaction. Because Robertson claimed that his mitigating evidence

came within the scope of Penry I, his jury was given the

supplemental instruction, as were Penry (upon retrial) and dozens

of other capital defendants during this period.

Ten years after Robertson’s trial, in another challenge

from Johnny Paul Penry, the Supreme Court held that the

supplemental instruction failed to give Penry’s jurors a

“‘vehicle,’” Penry II, 532 U.S. at 787 (quoting Penry I, 492 U.S.

at 326), by which they might “‘consider and give effect to [a

defendant’s mitigating] evidence in imposing sentence.’” Penry II,

532 U.S. at 797 (quoting and adding emphasis to Penry I, 492 U.S.

at 319). It held, moreover, that the structure of the instruction

— changing the answer to one of the special issues from a truthful

“Yes” to a false “No” in order to avoid imposing the death penalty

— forced conscientious jurors to violate their oath to answer the

interrogatories truthfully. Penry II, 532 U.S. at 798–801.

Robertson contends that the supplemental instruction

created a similar set of problems for his jury. First, it failed

to cure the problems noted in Penry I and underscored in Penry II,

inasmuch as it did not enable the jury to give mitigating effect to

his proffered evidence of childhood abuse and drug addiction.

Second, it rendered the jury instructions, taken as a whole, self-

contradictory, as the Court held in Penry II.

14
A. The Texas Special Issues Provided Robertson’s Jury with a
Vehicle by Which It Could Give Effect to His Mitigating
Evidence

The first question before this court is whether the Texas

special issues failed to provide Robertson’s sentencing jury with

an appropriate vehicle to give mitigating effect to his evidence of

childhood abuse and substance abuse. Based on this court’s

consistent interpretation of Penry I, we hold that the statutory

special issues alone were adequate to allow the jury to give effect

to Robertson’s mitigating evidence.

Following Penry I, petitioners convicted in Texas have

invoked that decision and requested additional instructional

vehicles for many different types of mitigating evidence, including

but not limited to subnormal intelligence,5 youth,6 troubled or

5
Smith v. Cockrell, 311 F.3d 661 (5th Cir. 2002); Blue v.
Cockrell, 298 F.3d 318 (5th Cir. 2002); Tennard v. Cockrell, 284
F.3d 591 (5th Cir.), vacated and remanded, 123 S. Ct. 70 (2002);
Jones v. Johnson, 171 F.3d 270 (5th Cir.), cert. denied, 527 U.S.
1059 (1999); Boyd v. Johnson, 167 F.3d 907 (5th Cir.), cert.
denied, 527 U.S. 1055 (1999); Harris v. Johnson, 81 F.3d 535 (5th
Cir.), cert. denied, 517 U.S. 1227 (1996); Mann v. Scott, 41 F.3d
968 (5th Cir. 1994), cert. denied, 514 U.S. 1117 (1995); Andrews v.
Scott, 21 F.3d 612 (5th Cir. 1994), cert. denied, 513 U.S. 1114
(1995); DeLuna v. Lynaugh, 890 F.2d 720 (5th Cir. 1989).
6
Turner v. Johnson, 106 F.3d 1178 (5th Cir.), cert. denied sub
nom. In re Turner, 521 U.S. 1146 (1997); Tucker v. Johnson, 115
F.3d 276 (5th Cir.), cert. denied, 522 U.S. 1017 (1997); Russell v.
Collins, 998 F.2d 1287 (5th Cir. 1993), cert. denied, 510 U.S. 1185
(1994); Cantu v. Collins, 967 F.2d 1006 (5th Cir. 1992), cert.
denied, 509 U.S. 926 (1993); Drew v. Collins, 964 F.2d 411 (5th
Cir. 1992), cert. denied, 509 U.S. 925 (1993); Bridge v. Collins,
963 F.2d 767 (5th Cir. 1992), cert. denied, 509 U.S. 925 (1993);

15
abused childhood,7 intoxication,8 substance abuse,9 head injury,10

White v. Collins, 959 F.2d 1319 (5th Cir. 1992); Wilkerson v.
Collins, 950 F.2d 1054 (5th Cir. 1992), cert. denied, 509 U.S. 921
(1993); Graham v. Collins, 950 F.2d 1009 (5th Cir. 1992) (en banc),
aff’d, 506 U.S 461 (1993); DeLuna, 890 F.2d 720.
7
Hernandez v. Johnson, 248 F.3d 344 (5th Cir.), cert. denied
sub nom. Hernandez v. Cockrell, 534 U.S. 1043 (2001); Emery v.
Johnson, 139 F.3d 191 (5th Cir. 1997), cert. denied, 525 U.S. 969
(1998); Davis v. Scott, 51 F.3d 457 (5th Cir.), cert. denied, 516
U.S. 992 (1995); Allridge v. Scott, 41 F.3d 213 (5th Cir. 1994),
cert. denied, 514 U.S. 1108 (1995); Jacobs v. Scott, 31 F.3d 1319
(5th Cir. 1994), cert. denied, 513 U.S. 1067, 1070 (1995); Lackey
v. Scott, 28 F.3d 486 (5th Cir. 1994), cert. denied, 513 U.S. 1086
(1995); Clark v. Collins, 19 F.3d 959 (5th Cir. 1994); Motley v.
Collins, 18 F.3d 1223 (5th Cir.), cert. denied, 513 U.S. 960
(1994); Madden v. Collins, 18 F.3d 304 (5th Cir. 1994), cert.
denied, 513 U.S. 1156 (1995); Russell, 998 F.2d 1287; Callins v.
Collins, 998 F.2d 269 (5th Cir. 1993); Drew, 964 F.2d 411; Lincecum
v. Collins, 958 F.2d 1271 (5th Cir.), cert. denied, 506 U.S. 957
(1992); Barnard v. Collins, 958 F.2d 634 (5th Cir. 1992), cert.
denied, 506 U.S. 1057 (1993); Graham, 950 F.2d 1009; Mayo v.
Lynaugh, 893 F.2d 683 (5th Cir.), modified sub nom. Mayo v.
Collins, 920 F.2d 251 (1990), cert. denied sub nom. Collins v.
Mayo, 502 U.S. 898 (1991).
8
Drinkard v. Johnson, 97 F.3d 751 (5th Cir.), cert. denied,
520 U.S. 1107 (1996); West v. Johnson, 92 F.3d 1385 (5th Cir.
1996), cert. denied, 520 U.S. 1242 (1997); Rogers v. Scott, 70 F.3d
340 (5th Cir. 1995), cert. denied sub nom. Rogers v. Johnson, 517
U.S. 1235 (1996); Briddle v. Scott, 63 F.3d 364 (5th Cir.), cert.
denied, 516 U.S. 1033 (1995); East v. Scott, 55 F.3d 996 (5th Cir.
1995); Nethery v. Collins, 993 F.2d 1154 (5th Cir. 1993), cert.
denied, 511 U.S. 1026 (1994); Sawyers v. Collins, 986 F.2d 1493
(5th Cir.), cert. denied, 508 U.S. 933 (1993); Bridge, 963 F.2d
767; Cordova v. Collins, 953 F.2d 167 (5th Cir.), cert. denied, 502
U.S. 1067 (1992).
9
Harris v. Cockrell, 313 F.3d 238 (5th Cir. 2002); Robison v.
Johnson, 151 F.3d 256 (5th Cir. 1998), cert. denied, 526 U.S. 1100
(1999); Tucker, 115 F.3d 276; Madden, 18 F.3d 304; James v.
Collins, 987 F.2d 1116 (5th Cir.), cert. denied, 509 U.S. 947
(1993); Callins, 998 F.2d 269; Drew, 964 F.2d 411; Barnard, 958
F.2d 634; DeLuna, 890 F.2d 720.

16
good character,11 mental illness,12 antisocial personality

disorders,13 and dyslexia.14

Penry I required such a vehicle only with regard to

evidence of diminished culpability arising from a combination of

extreme childhood abuse and mental retardation. This thus requires

— to ensure its “full mitigating effect” — a more capacious vehicle

than the Texas special issues afforded. With equal clarity,

however, the Court has also held that youth does not require

additional instructions: “We decide that there is no reasonable

likelihood that the jury would have found itself foreclosed from

10
Smith, 311 F.3d 661; Madden, 18 F.3d 304; Barnard, 958 F.2d
634.
11
Boyd, 167 F.3d 907; Turner, 106 F.3d 1178; Briddle, 63 F.3d
364; Lackey, 28 F.3d 486; Andrews, 21 F.3d 612; Clark, 19 F.3d 959;
Crank v. Collins, 19 F.3d 172 (5th Cir. 1994), cert. denied, 512
U.S. 1214 (1994); 998 F.2d 269; Jernigan v. Collins, 980 F.2d 292
(5th Cir. 1992), cert. denied, 508 U.S. 978 (1993); Bridge v.
Collins, 963 F.2d 767 (5th Cir. 1992), cert. denied 509 U.S. 925
(1993); Holland v. Collins, 962 F.2d 417 (1992), vacating 950 F.2d
169 (5th Cir. 1991), cert. denied, 509 U.S. 925 (1993); Black v.
Collins, 962 F.2d 394 (5th Cir.), cert. denied, 504 U.S. 992
(1992); Wilkerson, 950 F.2d 1054; Russell v. Lynaugh, 892 F.2d 1205
(5th Cir. 1989), cert. denied, 501 U.S. 1259.
12
Blue, 298 F.3d 318; Hernandez, 248 F.3d 344; Miller v.
Johnson, 200 F.3d 274 (5th Cir.), cert. denied, 531 U.S. 849
(2000); Robison, 151 F.3d 256; Lucas v. Johnson, 132 F.3d 1069 (5th
Cir.), cert. dismissed, 524 U.S. 965 (1998); Davis, 51 F.3d 457;
Allridge, 41 F.3d 213; Madden, 18 F.3d 304.
13
Smith, 311 F.3d 661; Davis, 51 F.3d 457; Demouchette v.
Collins, 972 F.2d 651 (5th Cir.), cert. denied, 505 U.S. 1246
(1992).
14
Madden, 18 F.3d 304.

17
considering the relevant aspects of petitioner’s youth.” Johnson

v. Texas, 509 U.S. 350, 368 (1993), aff’g 773 S.W.2d 322 (Tex.

Crim. App. 1989).

As to all the other types of mitigating evidence, the

pertinent inquiry is and has been, by what principle should the

line between Penry I and non-Penry I evidence be drawn? For ten

years, this court has subscribed to a test articulated by Judge

Garwood in response to Gary Graham’s assertion that his youth

presented Penry evidence. Was the criminal act “due to the

uniquely severe permanent handicaps with which the defendant was

burdened through no fault of his own”? Graham v. Collins, 950 F.2d

1009, 1029 (5th Cir. 1992) (en banc), aff’d, 506 U.S 461 (1993).

This formulation encompasses four principles found in Penry I:

voluntariness, permanence, severity, and attribution. Did the

defendant acquire his disability voluntarily or involuntarily? Is

the disability transient or permanent? Is the disability trivial

or severe? Were the criminal acts a consequence of this

disability?

These principles were and are readily apparent from the

Court’s opinion in Penry I. The principle of voluntariness is

found in the Court’s insistence on the defendant’s constitutional

right to a thorough assessment of his “culpability.” 492 U.S. at

319. (“Underlying Lockett v. Ohio, 438 U.S. 586 (1978) and Eddings

18
v. Oklahoma, 455 U.S. 104 (1982) is the principle that punishment

should be directly related to the personal culpability of the

criminal defendant.” Id.) Permanence is derived from the fixed

biological character of Penry’s evidence: “As a child, Penry was

diagnosed as having organic brain damage, which was probably caused

by trauma to the brain at birth.” Id. at 307; “Penry’s brain

damage was probably caused at birth . . . , but may have been

caused by beatings and multiple injuries to the brain at an early

age.” Id. at 308–309. Severity was divined from the objective

expert testimony that demonstrated the unique character of the

abuse he suffered, his limited cognitive faculties, and his

inability to learn from his mistakes. Id. at 309–10. And

attribution from the Court’s belief that Penry, like other

defendants whose “‘criminal acts . . . are attributable to a

disadvantaged background, or to emotional and mental problems, may

be less culpable than defendants who have no such excuse.’” Id. at

319 (quoting California v. Brown, 479 U.S. 538, 545 (1987)

(O’Connor, J., concurring)). Moreover, following the Supreme

Court’s example and admonition, this court has decided each

Penry-instruction entitlement claim “on the facts of th[e] case.”

Penry I, 492 U.S. at 315.

Each of our post-Penry I cases has approached the

evidentiary claim with the principles sketched above. In some

19
cases we stopped after voluntariness, because this threshold

requirement simply had not been met. In Barnard v. Collins, for

instance, the self-inflicted character of substance abuse gave no

occasion for engaging in further inquiry. 958 F.2d 634, 639 (5th

Cir. 1992). In Hernandez v. Johnson, the disability was

involuntary, but we stopped the inquiry after noting the transient

character of the affliction, because the petitioner’s mental

illness could be controlled by medication and treatment. 248 F.3d

344, 349 (5th Cir. 2001). In another, the disability was neither

voluntarily assumed nor transitory, but the petitioner’s dyslexia

was not so “uniquely severe” as to “rise to the level of a Penry

claim.” Madden, 18 F.3d at 308. And on yet another of Barnard’s

claims, that he had been beaten by his son-in-law with a tire iron

several months before the crime, this court concluded that the

meager evidence at bar (no expert testimony concerning brain damage

or psychological defects had been offered) failed “to raise an

inference ‘that the crime is attributable to the disability.’”

Barnard, 958 F.2d at 638 (quoting Graham, 950 F.2d at 1033).

Robertson nonetheless argues that childhood abuse is one

category of evidence that Penry I should categorically include, on

account of its debilitating character and the fact that severe and

prolonged abuse was among the disabilities that Penry himself

alleged. Moreover, Robertson contends, this court has

20
categorically excluded childhood abuse from the scope of Penry I.

Robertson’s reading of the Fifth Circuit cases is incorrect, and

his overall argument is inapposite to the facts.

Robertson’s misreading can be seen from a simple survey

of the cases in which the assertion of childhood abuse was

proffered as mitigating evidence. See supra n.7. In most, this

court acknowledged the possibility that the petitioner’s

unfortunate childhood might require a Penry vehicle, but could not

find the requisite severity or attribution. Barnard’s allegation

of a troubled childhood was soundly dismissed by this court, when

the only evidence he adduced was that his parents divorced when he

was four, he did not see his father until he was 13, lived with him

briefly, and then moved in with his uncle. But the court did not

dismiss out of hand the possibility that “the adverse effects of a

troubled childhood might well raise a Penry issue.” Barnard, 958

F.2d at 639; see also Davis v. Scott, 51 F.3d 457, 462 (5th Cir.

1995). The court addressed Robert Madden’s claim in much the same

way. He proved that his father abandoned him and his mother when

he was two years old, that his mother remarried when he was five,

and that his stepfather cared for him well. The court held, once

again, that if abuse causes psychological effects to which criminal

conduct is attributable, a Penry claim might exist, but the panel

expressed doubt that there was abuse, that this non-existent abuse

21
had any psychological effect, and that this non-existent

psychological effect led to his criminal act. Madden, 18 F.3d at

308. In Hernandez, a case in which the facts come close to

Penry’s, we again admitted the potential relevance of childhood

abuse, where the crime is attributable to the offense. 248 F.3d at

349. And, lest it be concluded that this calculus produces

possibility but not results, we recently concluded that Michael

Blue’s experience of parental abandonment, physical and sexual

abuse, minimal brain injury, schizophrenia, and resultant poor

impulse control — all supported by abundant evidence — satisfied

the Graham formulation. Blue v. Cockrell, 298 F.3d 318, 321–22

(5th Cir. 2002).

In sum, Fifth Circuit caselaw recognizes the possibility

that evidence of an abusive childhood might give rise to a Penry

claim. But to recognize the possibility is not to concede that any

history of childhood abuse rises to the level of Penry-type

evidence. In Penry I, the abuse included beatings on Penry’s head,

which according to an expert could have produced the brain damage

from which he suffered. Moreover, this evidence was inseparable

from the Court’s greater concern with Penry’s mental retardation

and poor impulse control. Childhood abuse alone is not

systematically discussed by Penry I in its relation to the Texas

special issues. This does not mean we can overlook the Court’s

22
holding, and as shown, our cases have not done so. But the un-

plumbed nature of the issue at the Supreme Court surely indicates

the appropriateness of fact-specific rather than categorical

analysis of childhood abuse under Penry I. Moreover, it is neither

logically nor empirically true that generic childhood abuse,

regardless of duration, type, or severity, bears the same

characteristics as mental retardation, or complies with the four

principles that this court articulated in Graham as the touchstones

for identifying Penry-type evidence.

Robertson’s case falls within our post-Penry I

jurisprudence inasmuch as, on a factual level, his claim of

childhood abuse is fairly vague and, with a lack of expert

testimony, exhibits no nexus to his brutal crimes. The evidence

involves Robertson’s early years living with an alcoholic father,

followed by a peaceful life with his mother and stepfather after he

became eight or nine years old. There is at most sketchy evidence

of beatings, but no evidence of experiences akin to Penry’s.

The paucity of evidence leads to the conclusion that the

statutory special issues were adequate to allow the jury to

effectuate the mitigating potential of Robertson’s evidence. This

evidence did not have a “major mitigating thrust” beyond either of

the special issues. Graham, 950 F.3d at 1027. Even though

Robertson’s experience of childhood abuse was involuntary, and

23
assuming (though this is unexplained by the evidence) that it was

permanent in effect, it was shown neither to be severe nor to have

any causal nexus with his crimes.

The same holds true for Robertson’s plea that the

mitigating effect of his drug addiction constitutes Penry evidence.

This argument is very nearly without merit, as it utterly fails to

satisfy the Graham formulation. Self-inflicted substance abuse is

patently neither involuntary nor permanent. Because Robertson’s

contention fails these two prongs, there is no need to ask whether

his substance abuse was severe or causally connected to his crime.

In each of the many cases in which petitioners have argued that

evidence of substance abuse mitigates their culpability, this court

has unequivocally dismissed the contention.15

It is also worthwhile to reiterate that Robertson’s

evidence of childhood abuse and drug addiction does not constitute

a “two-edged sword” — giving a strong basis for reduced

culpability, while nearly assuring a jury finding, on the second

interrogatory, that Robertson would remain dangerous to society.

15
See, e.g., Harris v. Cockrell, 313 F.3d 238; Robison, 151
F.3d 256; Tucker, 115 F.3d 276; Drinkard, 97 F.3d 751; West, 92
F.3d 1385; Rogers, 70 F.3d 340; Briddle, 63 F.3d 364; East, 55 F.3d
996; Madden, 18 F.3d 304; Nethery, 993 F.2d 1154; James, 987 F.2d
1116; Sawyers, 986 F.2d 1493; Drew, 964 F.2d 411; Bridge, 963 F.2d
767; Barnard, 958 F.2d 634; Cordova, 953 F.2d 167; DeLuna, 890 F.2d
720.

24
Such “atypical”16 evidence led the Supreme Court in Penry’s case to

conclude that the Texas statutory special issues were

constitutionally inadequate. This court has held, albeit on fact-

specific analysis, that evidence of childhood abuse is not “two-

edged” because the jury “would not have necessarily given only

16
As Judge Garwood explained for the en banc court:
We believe that what Penry represents is a set of
atypical circumstances of a kind that, quite
understandably, neither the Texas Court of Criminal
Appeals nor the Supreme Court in Jurek had in mind,
namely circumstances where the defense’s mitigating
evidence would have either no substantial relevance or
only adverse relevance to the second special issue.
Typically, evidence of good character, or of transitory
conditions such as youth or being under some particular
emotional burden at the time, will tend to indicate that
the crime in question is not truly representative of what
the defendant’s normal behavior is or may become over
time, and that the defendant may be rehabilitable so as
not to be a continuing threat to society. The core of
Jurek — which we cannot conclude has been abandoned — is
that the mitigating force of this kind of evidence is
adequately accounted for by the second special issue.
But in Penry the Court was faced for the first time with
a wholly different type of mitigating evidence. Not
evidence of good character, but of bad character; not
evidence of potential for rehabilitation, but of its
absence; not evidence of a transitory condition, but of
a permanent one; but nonetheless evidence which was
strongly mitigating because these characteristics were
due to the uniquely severe permanent handicaps with which
the defendant was burdened through no fault of his own,
mental retardation, organic brain damage and an abused
childhood. There was no way this type of evidence could
be given any mitigating force under the second special
issue. To recognize that, as Penry did, is not
necessarily to deny the validity of Jurek as it applies
to the more typical case.
Graham, 950 F.2d at 1029-30 (emphasis altered).

25
aggravating effect to [a petitioner’s]” evidence; this is so

because it “was able to consider in some manner [the petitioner’s]

relevant mitigating evidence . . . under Texas’ sentencing scheme.”

Motley v. Collins, 18 F.3d 1223, 1235 (5th Cir. 1994) (emphasis in

original); see Lackey, 28 F.3d at 489; James, 987 F.2d at 1121.

Compare Motley, 18 F.3d at 1235 (evidence of severe childhood abuse

did indeed suggest his future dangerousness, but was not the sort

of “two-edged” evidence identified by Penry I, because its effect

on the future dangerousness special issue was not solely

aggravating).17 The vague and inconclusive evidence submitted by

Robertson leads to the same result here.

Finally, regarding his substance abuse, even if this

court were willing to entertain the argument that Robertson’s

condition reduced his moral culpability (and thus might incline the

jury to render a favorable answer to the deliberateness issue), the

condition does not aggravate his exposure under the future

dangerousness issue. The reason for this is simply that addiction

is a treatable condition.18

17
Two panels of this court have, however, found that evidence
of childhood abuse is indeed “two-edged.” The first, Mayo v.
Lynaugh, 893 F.2d 683, was decided before Graham and has been
subsequently overturned, implicitly by Johnson, 509 U.S. 350,
explicitly in Motley, 18 F.3d at 1237. The second, Blue, 298 F.3d
318, concludes that “Blue produced substantial ‘double-edged’ Penry
type evidence.” Id. at 322.
18
See, e.g., Harris v. Cockrell, 331 F.3d at 241-43; West, 92
F.3d at 1405; Briddle, 63 F.3d at 377; Madden, 18 F.3d at 307;

26
B. Penry II Does Not Disturb the Fifth Circuit’s Post-Penry I
Case Law

Robertson also argues that Penry II requires this court

to review and revise the above-described post-Penry I juris-

prudence. This contention has two components. First, he contends

that this court has misinterpreted Penry I all along. Second,

whatever our past approach, Penry II expands the nature and scope

of evidence that requires modification of the pre-1991 statutory

scheme. We reject both contentions.

The second is easily dismissed. In Teague v. Lane, 489

U.S. 288 (1989), the Supreme Court barred the application of new

rules of law on federal habeas corpus review. Teague remains

applicable after the passage of the AEDPA. Horn v. Banks, 536 U.S.

266 (2002). Accordingly, in Penry I, the Court demonstrated that

its conclusion did not constitute a “new rule” of constitutional

law.19 In Penry II, the Court professed only to reiterate the

holding of Penry I. 532 U.S. at 797. Though one might argue — as

Robertson now does — that Penry II silently modifies Penry I and

encroaches upon Jurek, such an act is expressly forbidden by

Lackey, 28 F.3d at 487; James, 987 F.2d at 1121–23; Nethery, 993
F.2d at 1161; Cordova, 953 F.2d at 167.
19
“[I]n light of the assurances upon which Jurek was based, we
conclude that the relief Penry seeks does not ‘impose a new
obligation’ on the State of Texas.” Penry I, 492 U.S. at 319
(quoting Teague, 489 U.S. at 301).

27
Teague. Far be it from us to hold that the Court violated its own

principle; we do not so read Penry II or so hold.

The first component of Robertson’s argument requires

greater explanation.

Penry I reaffirmed the continuing constitutionality of

Texas’s statutory death penalty special issues, as the Court had

earlier construed them. See Jurek, 428 U.S. 262; Franklin v.

Lynaugh, 487 U.S. 164 (1988). On the other hand, Penry I held that

in some cases, the special issues did not give Texas capital juries

sufficient opportunity to consider and give mitigating effect to

proffered evidence. For the reasons articulated by this court’s en

banc decision in Graham, we concluded that Penry I was an exception

to Jurek, not Jurek to Penry I. Graham, 950 F.2d at 1027.

Any doubts this court might have harbored fled when

Graham’s logic was sustained — twice — in the Supreme Court’s next

term. The first instance occurred in the course of the Court’s

review of Graham, 506 U.S 461 (1993), where it described the

relationship between Penry I and Jurek as follows:

[W]e are not convinced that Penry could be extended to
cover the sorts of mitigating evidence Graham suggests
without a wholesale abandonment of Jurek and perhaps also
of Franklin v. Lynaugh. . . . As the dissent in Franklin
made clear, virtually any mitigating evidence is capable
of being viewed as having some bearing on the defendant’s
“moral culpability” apart from its relevance to the
particular concerns embodied in the Texas special issues.

28
Id. at 476 (citations omitted).20

The Supreme Court did so again much more emphatically in

Johnson v. Texas, 509 U.S. 350 (1993), aff’g 773 S.W.2d 322 (Tex.

Crim. App. 1989), a case on direct appeal, unconstrained by

Teague’s limit on habeas review. Rejecting Johnson’s argument that

his youth and immaturity provided mitigating evidence beyond the

scope of the Texas special issues, the Court reaffirmed the

“limited view of Penry,” 509 U.S. at 365:

In addition to overruling Jurek, accepting petitioner’s
arguments would entail an alteration of the rule of
Lockett and Eddings. Instead of requiring that a jury be
able to consider in one manner all of a defendant’s
relevant mitigating evidence, the rule would require that
a jury be able to give effect to mitigating evidence in
every conceivable manner in which the evidence might be
relevant.

Id. at 372.

Moreover, while it is inappropriate to ascribe undue

significance to denials of certiorari, it should at least be noted

that the Supreme Court has been loathe to disturb this court’s

interpretation of Penry I. In the decade from the en banc decision

in Graham (January 3, 1992) to the end of 2002, numerous

petitioners asked this court to overturn their capital sentences on

the basis of Penry-evidence claims. Of the 47 cases we addressed

20
The Court’s discussion was necessary to a determination
whether Graham sought a “new rule,” pursuant to Teague, in the
context of his habeas proceeding.

29
on the merits, this court applied the Graham interpretation of

Penry I in each and concluded that only one of these petitioners,

Michael Blue, had mustered evidence with a mitigating thrust beyond

the special issues. Blue, 298 F.3d 318. Of the remaining 46

petitioners, 42 petitioned the Supreme Court for writ of

certiorari.21 The Court dismissed the writ in one of them, Lucas

v. Johnson, 132 F.3d 1069, remanded the instant case for

reconsideration in light of Penry II and one other on separate

grounds,22 and denied the petitions in the remaining 39.23

Furthermore, in 14 of these 39 cases petitioners alleged child

21
One did not petition the Supreme Court for writ of
certiorari. East v. Scott, 55 F.3d 996. Two cases are so recent
that certiorari filing information is not yet available. Harris v.
Cockrell, 313 F.3d 238; Smith, 311 F.3d 661 (5th Cir., Nov. 4,
2002) (Smith was issued prematurely while this en banc case was
pending but it is not inconsistent herewith).
22
Tennard, 284 F.3d 591, vacated and remanded for
reconsideration in light of Atkins v. Virginia (122 S. Ct. 2242
(2002)), 123 S. Ct. 70 (2002).
23
Miller, 200 F.3d 274; Jones, 171 F.3d 270; Boyd, 167 F.3d
907; Robison, 151 F.3d 256; Lucas, 132 F.3d 1069; Emery, 139 F.3d
191; Turner, 106 F.3d 1178; Tucker, 115 F.3d 276; Drinkard, 97 F.3d
751; West, 92 F.3d 1385; Harris v. Johnson, 81 F.3d 535; Rogers, 70
F.3d 340; Briddle, 63 F.3d 364; East, 55 F.3d 996; Davis, 51 F.3d
457; Mann, 41 F.3d 968; Allridge, 41 F.3d 213; Jacobs, 31 F.3d
1319; Lackey, 28 F.3d 486; Andrews, 21 F.3d 612; Clark, 19 F.3d
959; Crank, 19 F.3d 172; Motley, 18 F.3d 1223; Madden, 18 F.3d 304;
Nethery, 993 F.2d 1154; James, 987 F.2d 1116; Sawyers, 986 F.2d
1493; Russell v. Collins, 998 F.2d 1287; Callins, 998 F.2d 269;
Jernigan, 980 F.2d 292; Demouchette, 972 F.2d 651; Cantu, 967 F.2d
1006; Drew, 964 F.2d 411; Bridge, 963 F.2d 767; Holland, 962 F.2d
417; Black, 962 F.2d 394; White, 959 F.2d 1319; Lincecum, 958 F.2d
1271; Barnard, 958 F.2d 634; Cordova, 953 F.2d 167; Wilkerson, 950
F.2d 1054.

30
abuse.24 A sizable number of these 14 present factual allegations

that are quite similar to Robertson’s. Certiorari was denied in

all of those cases. In light of the Supreme Court’s consistent

denial of Penry-based petitions, it would be unwarranted for us to

abandon our established precedent under the Graham framework.

In sum, Penry II makes no inroads on the Penry I – Jurek

framework that governed Texas law until the capital punishment

statute was amended in 1991. Penry I does not speculate on the

effect of the Texas statutory issues beyond the type of facts

adduced in Penry’s case. No question was before the Court in Penry

I or II on the general treatment of mitigating evidence under the

Texas law. Justice Kennedy concurred with the Penry II opinion, a

vote that would be unexpected had Penry II overruled Graham or

Johnson, as he was in the majority in Graham and wrote the Court’s

opinion in Johnson. Significantly, the Penry II dissent argues

only with the majority’s interpretation of the instruction and

contains no hint of concern that Graham or Johnson, to say nothing

of Jurek, might be up for reevaluation. Irrespective of the

serious Teague issue that would be raised by reading Penry II to

24
Hernandez, 248 F.3d 344; Emery, 139 F.3d 191; Davis, 51 F.3d
457; Mann, 41 F.3d 968; Allridge, 41 F.3d 213; Jacobs, 31 F.3d
1319; Lackey, 28 F.3d 486; Clark, 19 F.3d 959; Motley, 18 F.3d
1223; Madden, 18 F.3d 304; Russell v. Collins, 998 F.2d 1287; Drew,
964 F.2d 411; Lincecum, 958 F.2d 1271; Barnard, 958 F.2d 634.

31
undermine our post-Penry I jurisprudence, such a reading is simply

wrong.

This court therefore holds that our en banc Graham

formulation gives proper effect to Penry I. We emphasize our

confidence in the propriety of its continued use.

C. The Trial Court’s Presentation of the Supplemental Instruction
Does Not Constitute Error, Reversible or Otherwise

Robertson argues, in the alternative, that, even if his

mitigating evidence is not “constitutionally relevant,” the trial

court’s recitation of the supplemental instruction to his jury is

an error requiring vacatur of his capital sentence. We disagree.

In the absence of Penry-quality mitigating evidence, the

presentation of this instruction does not constitute error of any

sort.25 As a result, there is no need to reach a harmlessness

analysis. Nonetheless, because Robertson argues that the Supreme

Court has concluded that the recitation of this supplemental

instruction does indeed constitute error, a brief explanation for

this holding is necessary.

In Penry II, the Supreme Court declared that the

supplemental instruction is subject to two possible

interpretations. Penry II, 532 U.S. at 798. First, “it can be

25
Indeed, a contrary conclusion might well raise a Teague
problem, since no court, including the Supreme Court, has condemned
this instruction except in the Penry II context.

32
understood as telling the jurors to take Penry’s mitigating

evidence into account in determining their truthful answers to each

special issue.” Id. Alternatively, “it is possible to understand

the supplemental instruction as informing the jury that it could

simply answer one of the special issues ‘no’ if it believed that

mitigating circumstances” made the death penalty inappropriate.

Id. (quotations and citations omitted).

The Court found that under either interpretation the

supplemental instruction failed to cure the special issues’ flaws.

Construed as a vehicle to effectuate Penry’s mitigating evidence,

the supplemental instruction was insufficient because “none of the

special issues is broad enough to provide a vehicle for the jury to

give mitigating effect to the evidence of Penry’s mental

retardation and child abuse.” Id. Construed, alternatively, as a

“nullification instruction,” as Robertson tendentiously calls it,

it “made the jury charge as a whole internally contradictory, and

placed law-abiding jurors in an impossible situation.” Id. at 799.

The concerns that motivated the Supreme Court in Penry II

are not present in the case at bar. First, because Robertson’s

culpability-mitigating evidence is encompassed by the Texas special

issues, there is no need to provide an additional vehicle for it.

If anything, the supplemental instruction, under this

interpretation, provided Robertson with a more capacious vehicle

33
than was constitutionally warranted. Second, 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.

Absent the quality and quantity of mitigating evidence

necessary to raise a Penry claim, we decline to find that

recitation of the supplemental instruction to Robertson’s jury

constitutes error of any sort.

34
 IV. CONCLUSION

Because Robertson failed to present to his sentencing

jury evidence with a major mitigating thrust beyond the scope of

the Texas special issues, this court concludes that the state’s

ultimate decision — that there was no reasonable likelihood of

Penry error — was not objectively unreasonable. Accordingly, we

AFFIRM the district court’s denial of Robertson’s petition.

AFFIRMED.

35
HIGGINBOTHAM, Circuit Judge, concurring:

I concur, but with respect I write separately to explain where

I cannot fully subscribe and to emphasize three points. First,

because the majority claims to state no new law for the circuit,

the district courts and bar need not divine what new wrinkle is

intended. The answer is none.

Second, it offers no new rationale beyond an effort to make

the whole of this surrealistic body of law more presentable by

asserting that it is the product of neutral judges engaged in an

exercise of logic. With deference, I cannot agree and think it

unwise to paint our work as anything more than it has been. The

path of Penry is only an example drawn from a circle of cases

linked by solution-problem-solution-problem. We have in short

order moved from Cabana v. Bullock,26 which allows the Supreme Court

of Mississippi to find that a defendant sentenced to die on

conviction by a jury of felony murder acted with the

constitutionally required intent, when the convicting jury was

never asked to face the issue, to Ring v. Arizona,27 concluding that

the finding must be made by the jury. And recently this “law

logic” moved from the principle that a jury must be able to

26
474 U.S. 376 (1986); Bullock v. Cabana, 784 F.2d 187 (5th
Cir. 1986).
27
536 U.S. 584 (2002).
consider and give expression to retardation as a mitigating factor

to the principle that retarded persons cannot be executed at all.

It is no surprise that Texas wisely moved to the common sense

solution of asking the jury an additional question: whether,

considering all the mitigating evidence, death should be imposed.

Leaving aside why this sudden tolerance of jury discretion, this

case is part of a small set left in an eddy, missing the tide in

both directions. But this set of cases remains and we are

obligated to state the rules for their decision as best we can,

which brings me to my third point.

In our efforts to decide if a jury could give effect to the

major thrust of mitigating evidence by its answering whether the

defendant would be dangerous in the future, we have danced close to

categorical characterization of evidence of disabilities as

transient or permanent, when the true question is whether there is

evidence in the record, including any expert testimony, from which

a jury might conclude that the disability was permanent, child

abuse for example. The very term “constitutionally relevant

evidence” is misleading. A defendant is entitled to have all his

mitigating evidence heard and to have a jury with the means to

express its worth in its verdict. Penry evidence, as it is

sometimes called, is a subset. It is not logic but judicial hubris

to pronounce as a matter of law that even the most severe child

37
abuse creates only a transient condition. The majority dismisses

the defendant’s effort to push his evidence of mitigation into the

Penry ring as contending for a categorical treatment of all child

abuse. Fair enough; however, the majority also pushes in the

opposite direction. We must be careful that this push not lead us

to categorically exclude classes of mitigating evidence such as

child abuse. That result would be the result of neither logic nor

law in the proper sense. While, for example, we are well within

our compass to treat alcohol or drug use which can wreak permanent

damage as legally irrelevant by drawing upon a principle of law,

such as refusing to consider disability voluntarily induced, it is

not our role to make the medical judgment that a condition is

transient or permanent. And we ought not attempt to judge the

imprint of child abuse, with its myriad levels of intensity with

victims with myriad degrees of vulnerability to the abuse, beyond

asking if there is sufficient evidence of causality and permanence

to allow it to go to the jury. It follows from the principle of

law that the Penry trigger requires a permanent, not transient

condition that the jury must be told of this principle to enable it

to resolve conflicting evidence of permanence tendered in

mitigation. And this surely follows from Apprendi’s stanching of

the shrinking of the role of the jury,28 as in Cabana v. Bullock.

28
Apprendi v. New Jersey, 530 U.S. 466 (2000).

38
We need not subscribe to jury nullification to accept the reality

that our efforts to define what is mitigating, to guide the

discretion of the jury, has inherent limits. What is sufficiently

mitigating will find its ultimate meaning in the collective

judgment of the jury verdict – a core meaning that does not

transcend cases but has meaning only for the defendant in the dock.

That is no more than the realization of the principle that the

accused is to be judged as an individual. And to be faithful to

that principle the judicial and legislative hand must accept that

reality. Consistent with Apprendi, if the jury’s decision of life

or death is not to be trusted with some genre of criminal activity,

the solution is to not make it a capital crime. It is not to

attempt to guide or remove from jury discretion more than we have

already.

I must disagree with the majority’s summary dispatch of the

second wing of the issue that brought this case to the en banc

court, that Penry aside, the nullification instruction impeded the

jury’s consideration of Robertson’s mitigating evidence.

As the Boyde court put it: “[T]he proper inquiry in such a

case is whether there is a reasonable likelihood that the jury has

applied the challenged instruction in a way that prevents

consideration of constitutionally relevant evidence.”29 And to the

29
Boyde v. California, 494 U.S. 370, 380 (1998).

39
point, “constitutionally relevant evidence” here includes all

mitigating evidence.

To be sure, Robertson faces a tough standard in pressing this

contention. The court footed this standard firmly in the reality

of a trial, warning against legalistic post-verdict parsing of the

charge and insisting that its adequacy be judged in its full

setting. I am ultimately not persuaded by this contention, but it

is not without force, and I come to this conclusion only after

reading the charge and the closing arguments many times. The jury

was instructed that “some mitigating evidence, if any, may not be

relevant to resolving the special issues but may be relevant in

determining whether or not the defendant should be put to death.”

The jury was next told “if they have answered yes to the questions

believing that the state has proved beyond a reasonable doubt that

the answers to the special issues are yes and also believe from the

mitigating evidence, if any, that the defendant should not be

sentenced to death, that they should answer no.” Because there was

no Penry mitigating evidence, answering whether Robertson would

probably be dangerous in the future, would give Robertson’s

mitigating evidence all the effect it was constitutionally due.

The trial court and every court thereafter through the remand to

the panel by the Supreme Court proceeded on the assumption that

Penry evidence had been presented and the nullification instruction

40
was needed, or at least that its need was sufficiently uncertain

that it was prudent to give it. And of course the case was argued

to the jury in that manner: that the jury should answer the

questions and if it had answered them yes it should then change a

yes answer to a no if it thought any mitigating evidence led them

to doubt that the death penalty should be imposed. Asking the jury

to separate its consideration of mitigating evidence and future

dangerousness is confusing because it is in answering the question

that the jury is to consider mitigating evidence. This mixture of

legal doctrines in context, however, did not to my mind pose a

reasonable likelihood that the jury was unable to give expression

to Robertson’s evidence, despite the fog it brought to the

courtroom. I reach this conclusion because the common sense of the

jury is deployed here free of the burdens of the legal distinctions

driven by our efforts to balance the twin and conflicting ends of

Furman30 – even-handed treatment across cases in which each accused

receives individualized consideration of his mitigating

circumstances.

30
408 U.S. 238 (1972).

41
HAROLD R. DEMOSS, JR., Circuit Judge, DISSENTING:

The majority opinion stands essentially on two premises:

first, that the decision of the Supreme Court in Penry v. Johnson,

129 S. Ct. 1910(2001)(“Penry II”) does not “shed any light” on our

decision here in Robertson; and second, under our “consistently

applied” Fifth Circuit case law interpreting the Supreme Court

decision in Penry v. Lynaugh, 109 S. Ct. 2934(1989)(“Penry I”)

Robertson’s mitigating evidence fails to pass the test in “quality

and quantity” of “Penry type mitigating evidence” and the

supplemental instruction on mitigating evidence and the

nullification instruction actually submitted to the trial court in

Robertson’s trial can be ignored. Because I am convinced that both

of these premises are erroneous, I respectfully dissent and write

to explain my reasons why.

THE PENRY I CONNECTION

In June of 1989, the Supreme Court of the United States handed

down its decision in “Penry I” which reversed the affirmance of

Penry’s death sentence by this Circuit Court, and the federal

district court, in federal habeas proceedings. The Supreme Court

stated:

1. “The jury was never instructed that it could consider
the evidence offered by Penry as mitigating evidence and
that it could give mitigating effect to that evidence in
imposing sentence.” Id. at 2947; and,
 2. “The state conceded at oral argument in this Court
that if a juror concluded that Penry acted deliberately
and was likely to be dangerous in the future, but also
concluded that because of his mental retardation he was
not sufficiently culpable to deserve the death penalty,
that juror would be unable to give effect to that
mitigating evidence under the instructions given in this
case.” Id. at 2951.

The Supreme Court then held:

“In this case, in the absence of instructions informing
the jury that it could consider and give effect to the
mitigating evidence of Penry’s mental retardation and
abused background by declining to impose the death
penalty, we conclude that the jury was not provided with
a vehicle for expressing its ‘reasoned moral response’ to
that evidence in rendering its sentencing decision.” Id.
at 2952.

In July of 1990, John Paul Penry was retried before a jury in

Texas state criminal district court. He was again convicted of

capital murder and the jury again assessed his punishment as death.

This case was automatically appealed to the Texas Court of Criminal

Appeals. In February of 1995, that Court handed down its decision

at 903 S.W. 2d 715 (Tex. Crim. App. 1995). One of the points of

error raised in Penry’s appeal was that “the trial court submitted

an improper jury instruction on mitigating evidence.” Id. at 764.

In overruling this point of error and affirming his death penalty,

the Court of Criminal Appeals stated:

However, defendants occasionally proffer mitigating
evidence that is not relevant to the special issues or
that has relevance to the defendant’s moral culpability
beyond the scope of the special issues. Penry v.
Lynaugh, 492 U.S. at 329, 109 S.Ct. at 2952. In such a
case, the jury must be given a special instruction in

43
 order to allow it to consider and give effect to such
evidence. Id. The trial court in the instant case
submitted the following charge:

You are instructed that when you deliberate on
the questions posed in the Special Issues, you
are to consider mitigating circumstances, if
any, supported by the evidence presented in
both phases of the trial, whether presented by
the State or the defendant. A mitigating
circumstance may include, but is not limited
to, any aspect of the defendant’s character
and record or circumstances of the crime which
you believe could make a death sentence
inappropriate in this case. If you find that
there are any mitigating circumstances in this
case, you must decide how much weight they
deserve, if any, and therefore, give effect
and consideration to them in assessing the
defendant’s personal culpability at the time
you answer the special issue. If you
determine, when giving effect to the
mitigating evidence, if any, that a life
sentence, as reflected by a negative finding
to the issue under consideration, rather than
a death sentence, is an appropriate response
to the personal culpability of the defendant,
a negative finding should be given to one of
the special issues.

We have already held that a nullification instruction
such as this one is sufficient to meet the constitutional
requirements of Penry v. Lynaugh. Coble v. State, 871
S.W. 2d 192, 206-207 (Tex. Crim. App. 1993), cert. filed.

903 S.W.2d at 765.

John Paul Penry then sought state habeas relief, which was

denied and then filed for a federal habeas corpus relief after the

enactment of the Antiterrorism and Effective Death Penalty

Act(“AEDPA”). In both the federal district court and in our Court,

Penry contended that the instruction given by his state trial court

44
quoted above did not satisfy the requirements of Penry I; but in

Penry v. Johnson, 215 F.3d 504, 508-09 (5th Cir. 2000), our Court

held as follows: “We agree with the district court that the Texas

Court of Criminal Appeals’s holding that the challenged instruction

was constitutional was not an unreasonable application of clearly

established law, namely Penry I.”

John Paul Penry applied for a writ of certiorari to the U.S.

Supreme Court which was granted and in June of 2001, the Supreme

Court issued its decision in “Penry II”.31 In Penry II, the Supreme

Court made a variety of comments which are pertinent to our

discussion in this case. First of all, the Supreme Court in Penry

II pointed out explicitly what its holding in Penry I did and did

not hold:

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 key under
Penry I is that the jury be able to ‘consider and give
effect to [a defendant’s mitigating] evidence when
imposing sentence.’ 492 U.S. at 319, 109 S. Ct. 2934
(emphasis added). For it is only when the jury is given

31
The Supreme Court decision in Penry II is the first occasion
on which the Supreme Court addressed compliance by Texas trial
courts in capital cases with the mandates of Penry I. More
particularly, the decision in Penry II is the first occasion on
which the Supreme Court addressed the sufficiency of a supplemental
instruction on mitigation and a “nullification instruction” as
employed by the Texas trial courts.

45
 a ‘vehicle for expressing its reasoned moral response’ to
that evidence in rendering its sentence decision Penry I
492 U.S. at 328, 109 S. Ct. 2934, that we can be sure
that the jury has treated the defendant as an uniquely
individual human being and has made a reliable
determination that death is the appropriate sentence.

121 S. Ct. at 1920 (citation omitted).

From these comments of the Supreme Court in Penry II, it seems

absolutely clear that the Supreme Court is telling us that Penry I

requires not only that the jury must consider mitigating evidence,

but also that there must be a vehicle by which the jury can give

effect to that mitigating evidence if it so chooses.

Likewise it is equally clear from the Supreme Court’s language

in Penry II that the “nullification instruction” employed in John

Paul Penry’s retrial does not pass muster constitutionally as such

a vehicle by which the jury can express its consideration of

mitigating evidence. In support of this conclusion, I point out

the following statements by the Supreme Court in Penry II:

1. “Rather it [the “nullification instruction”] made the

jury charge as a whole internally contradictory, and

placed law-abiding jurors in an impossible situation.”

Id. at 1921.

2. “The supplemental instruction therefore provided an

inadequate vehicle for the jury to make a reasoned moral

response to Penry’s mitigating evidence.” Id. at 1922.

46
3. “While these comments reinforce the State’s construction

of the supplemental instruction, they do not bolster our

confidence in the jurors’ ability to give effect to

Penry’s mitigating evidence in deciding his sentence.

Rather, they highlight the arbitrary way in which the

supplemental instruction operated, and the fact that the

jury was essentially instructed to return a false answer

to a special issue in order to avoid a death sentence.”

Id. at 1923.

4. “Although the supplemental instruction made mention of

mitigating evidence, the mechanism it purported to create

for the jurors to give effect to that evidence was

ineffective and illogical.” Id. at 1924.

5. “Any realistic assessment of the manner in which the

supplemental instruction operated would therefore lead to

the same conclusion we reached in Penry I: ‘[A]

reasonable juror could well have believed that there was

no vehicle for expressing the view that Penry did not

deserve to be sentenced to death based upon his

mitigating evidence.’” Id.

6. “Thus to the extent the Texas Court of Criminal Appeals

concluded that the substance of the jury instructions

given at Penry’s second sentencing hearing satisfied our

47
 mandate in Penry I, that determination was objectively

unreasonable.” Id.

The last quotation from Penry II is critically material to our

decision here in Robertson because the real issue before us is

whether the decision of the Texas Court of Criminal Appeals, which

held that the supplemental instructions given at Robertson’s

penalty phase hearing before the state trial court were consistent

with the constitutional requirements in Penry I, can be now

affirmed in light of Penry II.

APPLICABILITY TO ROBERTSON

In January of 1991, Mark Robertson was convicted of the

offense of capital murder by a jury in the state district court of

Dallas County; and after the same jury affirmatively answered the

two statutory special issues submitted to it, the court sentenced

Robertson to death in February 1991. At Robertson’s punishment

hearing, a supplemental instruction was given to the jury by the

state district court. The complete text of this supplemental

instruction is set forth as footnote 3 in the majority opinion

supra; and for clarity sake, I will refer to the first two

paragraphs of that footnote 3 as the supplemental instruction on

mitigation (hereinafter referred to as “SIOM”)and the third

paragraph of that footnote 3 as the nullification instruction

(hereinafter referred to as “NULI”). It is not clear from the

48
state trial record in Robertson’s case precisely where and how the

SIOM and NULI came to be used in Robertson’s trial. It is

absolutely clear, however, that the state prosecutor raised no

objection to the use of either of the SIOM or the NULI. On the

other hand, Robertson’s defense counsel interposed a clear

objection to the use of the NULI because it did not provide a

sufficient vehicle for the jury to use in expressing its views on

mitigating evidence as required by Penry I. Defense counsel for

Robertson also proffered a separate jury issue to be submitted, in

addition to the statutory issues on punishment, which was very

similar in language and content to the statute which the Texas

Legislature adopted later on in its 1991 Session and made effective

as of September 1, 1991.32 The state district court overruled

Robertson’s objection to the NULI and rejected the proffer of the

separate special issue on mitigation.

Because I think the textual content of the SIOM and the NULI

used in Robertson’s trial are critically important to a

determination of the ultimate issue which we address in this

appeal, I want to highlight some of the aspects of these

instructions. First of all, note that the SIOM states that the

jury “shall consider” (not “may consider”) any evidence which in

32
This new statute is quoted in full in footnote 4 on page 13
of the majority opinion supra.

49
the jury’s opinion is “mitigating.” The instruction gives a

definition of mitigating evidence, which is broad but includes “an

aspect of the defendant’s character, record, background, or

circumstances of the offense for which you have found him guilty.”

The SIOM goes on to advise the jury that “[o]ur law does not

specify what may or may not be considered as mitigating evidence;”

and that the members of the jury “are the sole judges of what

evidence, if any, is mitigating and how much weight, if any, is

mitigating and how much weight, if any, including those which have

no relationship to any of the special issues deserves.” Finally,

the SIOM in Robertson’s case instructs the jury that they may find

some evidence to be mitigating even though it “has no relationship

to any of the special issues;” and that some evidence “may not be

relevant to resolving the special issues but may be relevant in

determining whether or not the defendant should be put to death.”

The language and content of the SIOM in Robertson’s case

strikes me as a good faith effort to satisfy the mandate from the

Supreme Court in Penry I that the jury be instructed to “consider”

all mitigating evidence. The majority seems to intimate that the

SIOM goes further in permitting consideration of mitigating

evidence than was constitutionally required. However, as I pointed

out earlier, the prosecutor raised no objection of any kind

whatsoever to the trial court’s use of this SIOM. And that leads

50
me to conclude that at the time of Robertson’s trial in January of

1991, the state’s prosecutors did not read Penry I as requiring any

particular “quantity or quality” of mitigating evidence as a

threshold before the Penry I mandate would come into play.

In regard to the NULI in Robertson’s case, it is very similar

in concept, though not identical in language, to the nullification

instruction used in the retrial of Penry. Both are structured on

the premise that for the jury to give effect to its conclusion that

life in prison is a more appropriate punishment than death, the

jury must give a false “no” answer to one of the statutory special

issues to which it has already answered “yes.” As the Supreme

Court explicitly concluded in Penry II, such a “vehicle” is

constitutionally not acceptable.

Robertson’s conviction and death sentence were automatically

appealed to the Texas Court of Criminal Appeals which affirmed

Robertson’s conviction and death sentence in a published opinion,

Robertson v. State, 871 S.W. 2d 701 (Tex. Crim. App. 1993), and was

issued on December 8, 1993. Among other errors asserted on this

appeal, Robertson complained that the trial court erred in failing

to submit a special issue concerning mitigation which he proffered

rather than the “nullification” charge actually given; and that the

judgment of the trial court is unconstitutional because the jury

was not given an adequate vehicle to express their personal moral

51
reasoned response to appellant’s culpability as required by

Penry I. In rejecting these complaints, the Texas Court of

Criminal Appeals (1) relied on an earlier decision in Fuller v.

State, where the Court held that a “nullification charge was

adequate to avoid the constitutional infirmity condemned by Penry”;

and, (2) stated that “[t]he Supreme Court has not required that a

particular vehicle be employed to allow for the jury’s

consideration of mitigating evidence, only that the jury be

provided with a vehicle.” 871 S.W. 2d at 710-711. Thereafter,

Robertson’s application for a writ of certiorari to the United

States Supreme Court was denied on October 3, 1994. Robertson v.

Texas, 115 U.S. 155 (1994).

In April of 1997, Robertson filed his application for state

habeas corpus in the same court that had convicted and sentenced

him. Among other grounds of relief sought by Robertson in his

state habeas petition, the sixth ground stated:

whether the trial court’s submission of a nullification
instruction instead of a Penry special issue violated the
Eighth and Fourteenth Amendments to the United States
Constitution.

The same state judge who presided at Robertson’s original trial

handled the state habeas proceeding, conducted a hearing and

entered extensive findings of fact and conclusions of law. In

rejecting Robertson’s contentions about the sixth ground of error,

52
the state habeas judge entered the following paragraphs in his

order:

82. The Court notes that applicant’s attorneys at trial
requested a separate instruction regarding mitigating
circumstances. (Tr.:282). This request was denied by
this Court. (Tr.:282; R.LXV:59). Instead, this Court
submitted a nullification instruction to the jury
regarding mitigating evidence that instructed the jurors
to answer one of the special issues “no” if they felt
that mitigating circumstances warranted a life sentence
rather than the death penalty. (Tr.:313-314). On direct
appeal the Court of Criminal Appeals ruled that this
“nullification” charge was sufficient to meet the
commands of Penry because it provided the jury with a
vehicle to allow consideration of mitigating evidence.
Robertson, 871 S.W.2d at 711. As support for its ruling,
the Court of Criminal Appeals cited Fuller v. State, 829
S.W.2d 191, 209 (Tex. Crim. App. 1992), cert. denied
U.S. , 113 S. Ct. 2418, 124 L.Ed.2d 640 (1993).

.....

84. The Court finds that the nullification charge given
to the jury in the punishment phase of applicant’s trial
allowed the jury to consider any mitigating evidence in
assessing the death penalty because it instructed the
jury to consider mitigating evidence if there was any, it
explained the nature of mitigating evidence, and it
authorized the jury to answer one of the special issues
“no” if the jury felt that there was sufficient
mitigating evidence to warrant a sentence of life
imprisonment rather than a death sentence. The Court
therefore concludes as a matter of law that the charge
given meets the requirements of Penry, and this Court’s
refusal to give a separate mitigation issue did not
violate the Eighth and Fourteenth Amendments.

The Court’s Findings of Fact and Conclusions of Law, filed June 26,
1998, District Court No. 5, Dallas County, Texas.

In an appeal of the state habeas ruling, the Texas Court of

Criminal Appeals, affirmed Robertson’s conviction and sentence,

53
without a published opinion, for the reasons stated by the state

habeas district court.

In November, 1998, Robertson filed a petition for federal

habeas corpus relief pursuant to 28 U.S.C. §2254. Among other

grounds for relief Robertson again alleged that the trial court

submission of a nullification instruction and refusal to create a

third special issue on the effect of mitigating evidence

constituted constitutional error. Robertson’s petition was

referred to a magistrate judge for report and recommendation and in

March, 2000, the magistrate judge recommended that Robertson’s

petition be denied and dismissed. With regard to Robertson’s

claims about the use of the nullification instruction and the trial

court’s refusal to create a third special issue on the effect of

mitigating evidence, the magistrate concluded that Robertson could

not demonstrate that the decisions of the state courts in approving

those actions were “contrary to or involved an unreasonable

application of clearly established federal law as decided by the

United States Supreme Court.” The federal district court adopted

the magistrate judge’s recommendations and dismissed Robertson’s

petition. The district court also denied Robertson’s request for

a certificate of appealability (COA) and Robertson moved our Court

for grant of a COA on several grounds. One of the issues on which

Robertson sought COA from this Court was that the trial court’s

54
decision to instruct the jury that it could answer one of the

statutory special issues “No” (thus precluding the assessment of

the death penalty) if persuaded that mitigating evidence made the

death penalty inappropriate, combined with the trial court’s

refusal to give the jury a third special issue expressly addressing

the effect of mitigating evidence, violated his Eighth and

Fourteenth Amendment rights as set forth in Penry I v. Lynaugh.

This Court denied Robertson’s request for COA on this issue because

he failed to identify any portion of Penry I or any other

applicable Supreme Court authority that would render the approach

taken by the Texas Courts in general or his state habeas court in

particular, contrary to or an unreasonable application of clearly

established federal law.

Robertson then petitioned the Supreme Court of the United

States for a writ of certiorari. On July 17, 2001, the Supreme

Court granted the writ of certiorari, vacated the decision of this

Court and remanded Robertson’s case “to the United States Court of

Appeals for the Fifth Circuit for further consideration in light of

Penry v. Johnson, 532 U.S. 782 (2001) (Penry II).” On remand from

the Supreme Court the original panel determined that there was no

substantial difference between the nullification instruction in

Penry II and the nullification instruction in Robertson and

therefore that the decision of the Supreme Court in Penry II

55
required us to grant Robertson’s request for COA on that issue and

vacate the district court’s judgment denying Robertson’s

application for a federal writ of habeas corpus and remand

Robertson’s case to the district court with instructions to grant

Robertson’s habeas corpus relief unless the State of Texas, within

a reasonable time, granted Robertson a new trial on the issue of

punishment. A majority of this Court voted to reconsider that

panel opinion en banc.

WHAT WE NEED TO DECIDE

The majority opinion has difficulty in describing precisely

what we should be deciding on the en banc reconsideration of

Robertson’s appeal. They furnish us with three iterations of the

critical issues in this case:

A. “This case constitutes a test, first, of the

circumstances under which the Texas special issues might

fail to facilitate a sentencing jury’s consideration of

mitigation evidence and, second, of the supplemental

instruction’s ability to cure such a failure.” Supra, at

lines 39-42.

B. “The case at bar constitutes a test of the evidence-both

in quality and quantity-that provokes such a failure.”

Supra, at lines 223-224.

56
 C. “The first question before this court is whether the

Texas special issues failed to provide Robertson’s

sentencing jury with an appropriate vehicle to give

mitigating effect to his evidence of childhood abuse and

substance abuse. Based on this court’s consistent

interpretation of Penry I, we hold that the statutory

special issues alone were adequate to allow the jury to

give effect to Robertson’s mitigating evidence.” Supra,

at lines 295-301.33

With all due respect to my colleagues in the majority, these

are the wrong questions which elicit the wrong result based on the

wrong precedent.

In framing these questions as it does, the majority makes

clear its preoccupation (which borders almost on an obsession) with

(i) exploring the “quantity and quality” of Robertson’s mitigating

33
In addition to a great host of Fifth Circuit cases, the
majority cites four Supreme Court cases in support of its reasoning
and conclusions: Jurek v. State of Texas, 428 U.S. 262 (1976);
Franklin v. Lynaugh, 487 U.S. 164 (1988); Graham v. Collins, 506
U.S. 461 (1993); and Johnson v. Texas, 509 U.S. 350 (1993). All of
these Supreme Court decisions dealt with criminal cases that were
tried in the state district courts before the decision by the
Supreme Court in Penry I. Neither Jurek nor Franklin nor Graham
involved any kind of supplemental instruction on mitigation nor any
kind of nullification instruction. Johnson did not contain any
form of nullification instruction; but it did contain a very
“bobtail” form of supplemental instruction which simply advised the
jury that in considering the special issues, they could consider
evidence they heard during trial, be it mitigating or aggravating
in nature.” 509 U.S. at 355.

57
evidence (ii) in order to compare Robertson’s mitigating evidence

with Penry’s mitigating evidence for the purpose of (iii) deciding

that the Texas Statutory Special Issues were sufficient by

themselves to permit the jury to “consider and give effect to”

Robertson’s mitigating evidence (iv) without the need “for the

supplemental instruction on mitigation and the nullification

instruction.”34 In my view, the majority’s conceptual analysis is

flawed for the following reasons:

1. There has never been any debate, controversy, or
issue, either in the state trial court or in the
Texas Court of Criminal Appeals or in the state
habeas court, as to the sufficiency of Robertson’s
mitigating evidence to require, under Penry I, that
something more than the statutory special issues be
given to the jury in regard to mitigating evidence.
The state prosecutor made no objection whatsoever
to the giving of the SIOM and NULI as they were
actually given at Robertson’s trial.

2. In effect, the text of the SIOM and the NULI removes from
the table any controversy about the “quantity and
quality” of Robertson’s mitigating evidence. The jury
was expressly instructed that it was the sole judge of

34
In their enthusiasm to limit the applicability of Penry I,
the majority states:

“Penry I required such a vehicle only with regard to
evidence of mental-retardation-induced impulse-controlled
deficiency.” Supra, at line 310 on page 17.

A computer check of the text of the Penry I opinion reveals that
the word “only” is never used in any phrase which purports to say
when a “vehicle” is required. Likewise, the majority’s use of the
word phrase “mental-retardation-induced impulse-controlled
deficiency” never appears at all in Penry I.

58
 what constituted mitigating evidence and that the jury
could determine that some evidence had a mitigating
effect even though that evidence had no relevance to the
jury’s answer to either one of the two statutory special
issues.

3. When the Texas Court of Criminal Appeals affirmed the
trial court’s use of the SIOM and the NULI, that Court
did so on the basis that those additional instructions
were required by the language of the Supreme Court in
Penry I and the content of those instructions satisfied
the mandates of Penry I.

4. Finally, I think the majority errs in relying on whatever
may be “this Court’s consistent interpretation of Penry
I to decide the critical issues in this case.” After
Congress adopted AEDPA, it is settled law that on our
review under §2254 we look only to decisions of the
United States Supreme Court to determine whether a state
court decision was consistent with “clearly established
federal law.” The only Supreme Court decision which the
state district trial court, the Texas Court of Criminal
Appeals, and the state habeas court looked to in
determining the validity or not of the use of the SIOM
and NULI in Robertson’s case was the decision of the U.S.
Supreme Court in Penry I; and none of those courts cited
as authority any of the Fifth Circuit cases which the
majority lists in its compendious footnotes about our
circuit’s “consistent interpretation of Penry I.”

THE REAL QUESTIONS

In my judgment the two critical issues for decision before

this en banc court are:

1. Did either of the three rulings of the state
district court, the Texas Court of Criminal Appeals
or the state habeas court, each of which approved
the submission of the SIOM and the NULI to
Robertson’s jury in the penalty phase, constitute
“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” in Penry I?

59
 2. In making the foregoing determination, what effect, if
any, do we give to the holding of the Supreme Court in
Penry II that similar rulings by the state courts in a
similar case were objectively unreasonable as defined in
AEDPA?

Because I’m truly amazed at the cavalier manner in which the

majority dismisses the applicability of the Supreme Court holding

in Penry II to the decision making in this case, I want to address

the second question first. When the Supreme Court remands a case

to our Court with instructions to reconsider that case “in light

of” the decision of the Supreme Court in another recent case, I

think we are duty bound to: (i) make sure we understand what

portion of that other recent case “sheds light on” the case being

remanded and (ii) apply that portion in our reconsideration. That

is particularly true under the circumstances of Robertson’s case.

The panel opinion for which Robertson sought a writ of certiorari

to the Supreme Court had denied Robertson’s motions for a

certificate of appealibility on all issues, including specifically

the issue about the supplemental instruction on mitigation

evidence, because we concluded that the state courts had correctly

determined that those supplemental instructions satisfied the

requirements of Penry I. The Supreme Court granted certiorari and

vacated that panel decision. From just those actions I have to

conclude that the Supreme Court is telling us we reached the wrong

result in the panel decision. And, when the Supreme Court vacates

60
and remands this case to us, I am amazed that our en banc Court

would have the audacity to turn around and reach the same result

the Supreme Court just vacated.

Under the heading “The Trial Court’s Presentation Of The

Supplemental Instruction Does Not Constitute Error Reversible or

Otherwise” Supra, at lines 595-596, the majority disposes of the

applicability of the Supreme Court’s decision in Penry II to the

circumstances here in Robertson with two very conclusionary

statements:35

1. “The concerns that motivated the Supreme Court in
Penry II are not present in the case at bar.”
Supra, at lines 628-629.

2. “Absent the quality and quantity of mitigating evidence
necessary to raise a Penry claim, we decline to find that
recitation of the supplemental instruction to Robertson’s
jury constitutes error of any sort.” Supra, at lines 642-
645.

Both of these conclusionary statements simply ignore that portion

of the Supreme Court decision in Penry II which, in my judgment is

most relevant and significant to our decision making in Robertson:

“Thus, to the extent the Texas Court of Criminal Appeals
concluded that the substance of the jury instructions
given at Penry’s second sentencing hearing satisfied our

35
In its enthusiasm to limit the applicability of Penry II, the
majority states: “In Penry II, the Court professed only to
reiterate the holding of Penry I.” Citing 532 U.S. at 797. I have
scoured page 797 and there is nothing thereon that can be
reasonably construed as a “profession” by the Supreme Court in
Penry II that it is “only reiterating” its holding in Penry I.

61
 mandate in Penry I, that determination was objectively
unreasonable. ... Although the supplemental instruction
made mention of mitigating evidence, the mechanism it
purported to create for the jurors to give effect to that
evidence was ineffective and illogical.”

121 S. Ct. at 1923.

If the conclusions of the Texas Court of Criminal Appeals were

“objectively unreasonable” in Penry II then I can see no basis for

arriving at an opposite conclusion here in Robertson. The

similarities between the original state court trials in both

Penry II and Robertson are legion:

1. Both cases were tried in state court after the
decision of the U.S. Supreme Court in Penry I and
before the effective date of the new statutory
provision adopted by the Texas Legislature in
September, 1991;

2. In each case a supplemental instruction on mitigation
which included a nullification instruction was submitted
to the jury without objection by the state prosecutor;

3. In both cases, the nullification instruction required the
jury to “return a false answer to a special issue in
order to avoid a death sentence;”

4. In both cases, the state courts determined that the use
of the supplemental instruction and the nullification
instruction were consistent with the mandates of the
Supreme Court in Penry I;

5. In neither case did the state courts rely upon or even
consider the “quality and quantity” of the mitigating
evidence as a factor in deciding to submit the
supplemental instruction or the nullification
instruction; and,

6. In neither case did the state courts rely upon any cases
decided by the Fifth Circuit as precedential authority

62
 for their decision to submit the supplemental instruction
and the nullification instruction.

Given these similarities it is a simple and easy call for me to say

that in “light of the Supreme Court holding in Penry II,” the state

courts decisions here in Robertson, that concluded that the use of

the supplemental instruction and the nullification instruction in

Robertson’s trial were consistent with the mandate of the Supreme

Court in Penry I, were likewise objectively unreasonable; and the

holding in Penry II to that effect is applicable and controlling

here in Robertson. In my view, the majority errs grievously in

relying upon other Fifth Circuit decisions in other state habeas

cases under §2254 in which the original state criminal trials

occurred before the date of the Supreme Court holding in Penry I

and in which there were neither a supplemental instruction on

mitigation nor a nullification instruction actually given.

In reaching this conclusion, I have no intention of casting

aspersions of any kind on the body of Fifth Circuit case law which

started with our en banc decision in Graham v. Collins, 950 F.2d

1009 (1992) and has been construed, applied, and extended as

described in the majority opinion. Graham and many of its progeny

clearly involved a death penalty case tried in a Texas court before

the Supreme Court decision in Penry I and in which no supplemental

instruction on mitigation or nullification instruction was

submitted to the jury. In my view Graham and its progeny have no

63
application to death penalty trials like Robertson’s which took

place after the Supreme Court’s decision in Penry I and which

contained express supplemental instructions on mitigation and

nullification instructions. Conversely, for the same reasons I do

not read the Supreme Court decision in Penry II as having any

impact on Graham and its progeny.

CONCLUSION

For the foregoing reasons I respectfully dissent from the

holding and the analysis expressed by the majority. I would follow

the lead of the Supreme Court in Penry II and vacate the decision

of the district court denying Robertson’s petition for habeas

corpus relief and remand the case to the district court with

instructions to grant such relief unless the State of Texas grants

Robertson a retrial of his punishment issues or reduces his

sentence to one less than death.

ENDRECORD

64
CARL E. STEWART, Circuit Judge, DISSENTING:

I agree with the thrust of Judge DeMoss’s and Judge Dennis’s dissents; however, I write

separately in order to clarify my perspective on this difficult case. The facts at issue are adequately

set out in the majority opinion and the dissenting opinion by Judge DeMoss. I will not recite them

here.

The nullification instruction at the core of our review in this case is nearly identical to the

nullification instruction at issue before the Supreme Court in Penry v. Johnson, 532 U.S. 782 (2001)

(Penry II). The Supreme Court, in Penry II explained that the nullification instruction “was

objectively unreasonable.” 532 U.S. at 804. In Penry v. Lynaugh, 492 U.S. 302 (1989) (Penry I), the

Supreme Court held that “Penry had been sentenced to death in violation of the Eighth Amendment

because his jury had not been adequately instructed with respect to mitigating evidence.” 532 U.S.

at 786 (citing Penry I, 492 U.S. 302 (1989)). The majority reads the Supreme Court’s decisions in

Penry I and Penry II, to require a separate threshold analysis of the quality and quantity of mitigating

evidence before considering the infirm instruction. In so doing, the majority missed the core of the

analysis in the Penry cases and based its conclusions on what it considers to be the Supreme Court’s

silence. In the Penry decisions, the Supreme Court was clear, however, that it is for the jury, not this

Court, to evaluate the quality and quantity of mitigation evidence in the sentencing phase of a capital

trial. For this reason, I respectfully dissent from the majority opinion.
 In Robertson, the State concedes that “under Penry II, the state courts’ conclusion that the

supplemental instruction satisfied Penry I is objectively unreasonable.”36 The Penry II Court

explained that the nullification instruction at issue was inadequate to correct the constitutional

violation of Penry I because it “provided an inadequate vehicle for the jury to make a reasoned moral

response to Penry’s mitigating evidence.” Penry II, 532 U.S. at 800. To analyze the constitutional

infirmity here, the Supreme Court instructs this Court to determine only whether the nullification

instruction provided an adequate “vehicle for the jury to make a reasoned moral response” to

Robertson’s mitigating evidence. Neither conclusion requires this Court to first speculate whether

as a matter of law, the mitigating evidence will have a negating effect on the jury. The Supreme

Court has been clear that the nullification instruction at issue is objectively unreasonable to meet the

standard of providing an adequate vehicle for the jury to consider mitigation evidence. Nonetheless,

the majority contends that because the Supreme Court has been silent regarding any analytical

requirement beyond the specific facts involved in Penry I, our court is free to derive from Penry I an

additional step in the analysis. The majority then inserts this additional step into the Supreme Court’s

analysis in Penry II, and determines that this Court must filter the mitigating evidence presented

before it reaches the jury.

36
In its Brief for Janie Cockrell on Remand From the United
States Supreme Court in light of Penry v. Johnson, the State
explains that the state court determined that Robertson’s Eighth
Amendment rights were not violated “approving the supplemental
instruction as an adequate vehicle” citing Penry I. The State then
conceded: “It is now true that under Penry II, the state courts’
conclusion that the supplemental instruction satisfied Penry I is
objectively unreasonable.” Appellee’s Brief at 12.

66
 It is not for this Court to stand in the shoes of the jury in the sentencing phase of a capital trial

and determine the quality and quantity of the mitigation evidence placed before them. It is our

responsibility, however, to ensure that “the jury is given a ‘vehicle for expressing its reasoned moral

response to that evidence in rendering its sentencing decision.’” Penry II, 532 U.S. at 797 (quoting

Penry I, 492 U.S. at 328). When we do so, “we can be sure that the jury ‘has treated the defendant

as a uniquely individual human being’ and has made a reliable determination that death is the

appropriate sentence.’” Id. By determining that Robertson’s evidence of childhood abuse was not

significant enough to mitigate a sentence of death, we are sua sponte writing between the lines of

Penry II, thereby neglecting our primary responsibility made clear in Penry II – i.e., to ensure that

the jury is able to give “a reasoned moral response to that evidence.” Id.

The majority seeks to prevent the jury from determining whether Robertson’s childhood

abuse is mitigating and whether to give it any weight in sentencing. In concluding that the

nullification instruction at issue “provided an inadequate vehicle for the jury to make a reasoned

moral response to Pentry’s mitigating evidence,” the Supreme Court noted “the jury’s ability to

consider and give effect to Penry’s mitigating evidence was still ‘shackled and confined within the

scope of the three special issues.’” Penry II, 532 U.S. at 798-800 (quoting Penry, 215 F.3d at 514

(Judge Dennis dissenting)). The standard for evaluating Robertson’s claim of error in the giving of

the nullification instruction is, “whether there is a reasonable likelihood that the jury has applied the

challenged instruction in a way that prevent[s] the consideration of constitutionally relevant

evidence.” Id. at 800 (quoting Boyde v. Cal., 494 U.S. 370, 380 (1990) (emphasis added)). This

standard includes all mitigating evidence, not merely the special variety which the majority maintains

67
can give rise to a Penry error. As the Supreme Court has instructed, “the Eighth Amendment requires

that the jury be able to consider and give effect to all relevant mitigating evidence.” Boyde, 494 U.S.

at 377 (explaining that the California jury instruction at issue did not preclude consideration of all

non-crime-related evidence). It is not up to the Court to determine the strength of the mitigating

evidence, the Court’s only responsibility is to ensure that the instructions did not prevent the jury

from considering the evidence. Yet, the majority has done just that.

By first determining that the objectively unreasonable nullification instruction posed no error

because Robertson’s evidence does not rise to the level of so-called “Penry-quality mitigating

evidence,” the majority is preventing the jury from adequately considering the evidence. The jury

charge in this case, as in Penry II, with the inclusion of the nullification instruction was so confusing

that “[t]here is at the very least, ‘a reasonable likelihood that the jury ... applied the challenged

instruction in a way that prevent[ed] the consideration’” of Robertson’s mitigating evidence. Penry

II, 532 U.S. at 800. Neither in Penry I nor in Penry II, did the Supreme Court instruct that it is within

the province of a reviewing or trial court to first speculate, before jury deliberations, whether the

mitigating evidence presented by the Defendant during the sentencing phase of a capital trial is

powerful enough to negate the jury’s findings. We should not gut Penry II by ignoring the

nullification instruction issue in Robertson which the Supreme Court remanded to this Court and by

considering only the evidence presented in Penry I.

Nowhere in its analysis of the nullification instruction in the Penry cases did the Supreme

Court balance the mitigating evidence against the aggravating factors presented before the jury as

the majority is want to do here. The majority distinguishes Robertson’s evidence by presenting the

68
proposition that because there is a so-called causal relationship between Penry’s mental retardation

and extreme childhood abuse, this mitigating evidence is stronger than Robertson’s.37

Notwithstanding that the Supreme Court never based its analysis on a causal relationship between

Penry’s childhood abuse and his mental retardation, the type of the mitigating evidence is inapposite

to the analysis. The mere fact that there is mitigating evidence is what prevails. See Williams v.

Taylor, 529 U.S. 362 (2000).

The majority fails to acknowledge that since Penry I, the Supreme Court has more clearly

defined the contours of a defendant’s constitutional right to present mitigating evidence during the

sentencing phase of trial. See Williams v. Taylor, 529 U.S. 362 (2000). In Williams, “Williams had

been severely and repeatedly beaten by his father, that he had been committed to the custody of the

social services bureau for two years during his parents' incarceration (including one stint in an

abusive foster home), and then, after his parents were released from prison, had been returned to his

parents' custody.” 529 U.S. at 395. In Williams, the Supreme Court considered Williams’s

mitigating evidence so significant to the sentencing process of his capital murder trial, that the

Supreme Court upheld his ineffective assistance of counsel claim against his attorney for not

37
Although there is some indication in the recitation of facts
in Penry I that his mental retardation may have been caused by a
traumatic blow to his head as a child, the Supreme Court
consistently separates Penry’s mental retardation from his
childhood abuse in its analysis in both Atkins and Penry II. See
Atkins v. Virginia 122 S.Ct. 2242, 2244 (2002) (“[I]n the 13 years
since we decided Penry I, the American public, legislatures,
scholars, and judges have deliberated over the question whether the
death penalty should ever be imposed on a mentally retarded
criminal.”); Penry II, 532 U.S. at 787 (“Penry had offered
extensive evidence that he was mentally retarded and had been
severely abused as a child.”).

69
presenting evidence of his abusive childhood as mitigating evidence for the jury to consider. Id. In

Williams, the Supreme Court was not concerned with whether the childhood abuse resulted in

mental illness. Rather than engage in the process of balancing the gravity of the mitigating evidence

against the aggravating factors, the Supreme Court was only concerned that the jury was prevented

from considering such evidence in the sentencing phase of the capital trial by defense counsel.

The theme of the majority’s opinion is that Penry II only applies to a similar type of

mitigating evidence premising it on the fact that Penry was mentally retarded. Even if the type of

mitigating evidence matters to the analysis, the Supreme Court has been slowly chiseling away

classes of Defendants eligible for capital punishment. The first analytical comment the Supreme

Court espoused on Penry’s mental retardation was in Atkins v. Virginia. 122 S.Ct. 2242, 2244 (2002)

(“[I]n the 13 years since we decided Penry I, the American public, legislatures, scholars, and judges

have deliberated over the question whether the death penalty should ever be imposed on a mentally

retarded criminal.”). In Atkins, the Supreme Court held that imposing the death penalty on the

mentally retarded is in violation of the Eighth Amendment. Id. at 2252. If we take as correct the

majority’s interpretation that Penry II applies only in circumstances where the mitigating evidence

is abuse that results in mental retardation or similar mental aberration, then Penry II cannot be

applied in any capital sentencing context consistent with Atkins v. Virginia, 122 S.Ct. 2242 (2002).

Surely, this is not the outcome the Supreme Court intended when it decided Atkins. If this were true,

then Atkins stands to overturn Penry II, unless Penry I and Penry II are interpreted to broadly include

independent evidence of childhood abuse.

70
 The decision in Penry II and the State’s concession conclusively show that the nullification

instruction at issue in Robertson’s trial did not give the jury an appropriate vehicle to consider his

mitigation evidence. The majority errs in failing to heed the essence of the Supreme Court’s remand

to this Court and is perpetuating the effects of the constitutionally problematic jury charge. For these

reasons I respectfully dissent.

ENDRECORD

71
DENNIS, Circuit Judge, dissenting:

Because today’s decision is counter to the explicit commands

of the Supreme Court in Penry v. Lynaugh, 492 U.S. 302 (1989)

(Penry I), and is inconsistent with the logic which underlies that

decision, I respectfully dissent.

I.

The majority denies petitioner Mark Robertson habeas corpus

relief because it believes the Texas Special Issues provided the

jury an adequate vehicle for registering its moral response to

Robertson’s evidence of childhood abuse in making its death penalty

determination.38 In Penry I, however, the Supreme Court held that

the special issues are insufficiently capacious to encompass the

kind of evidence Robertson offers here, making today’s decision

contrary to Supreme Court precedent. Moreover, even assuming

arguendo that the Court left “unplumbed” the issue of whether

evidence of childhood abuse alone is adequately considered within

the special issues, Penry I’s reasoning dictates finding the

special issues insufficient here. While Robertson did receive a

“nullification instruction” that was not received by Penry, Penry

38
There is no dispute that evidence of substance abuse is
adequately encompassed within the special issues. Harris v.
Cockrell, 313 F.3d 238, 242 (5th Cir. 2002).
72
v. Johnson, 532 U.S. 782, 803-04 (2001) (Penry II), makes clear

this instruction did not resolve the Penry I problems present here.

A. The Penry Decisions

In Penry I, the Supreme Court held that (1) “at the time

Penry’s conviction became final, it was clear from [Lockett v.Ohio,

438 U.S. 586 (1978),] and [Eddings v. Oklahoma, 455 U.S. 104

(1982),] that a State could not, consistent with the Eighth and

Fourteenth Amendments, prevent the sentencer from considering and

giving effect to evidence relevant to the defendant’s background or

character or to the circumstances of the offense that mitigate

against imposing the death penalty,” 492 U.S. at 318; (2) “[t]he

rule Penry [sought]—that when such mitigating evidence [of his

mental retardation and abused childhood] is presented, Texas juries

must . . . be given jury instructions that make it possible for

them to give effect to that mitigating evidence in determining

whether the death penalty should be imposed—is not a ‘new rule’

under Teague because it is dictated by Eddings and Lockett,” id. at

318-19; (3) “[u]nderlying Lockett and Eddings is the principle that

punishment should be directly related to the personal culpability

of the criminal defendant,” id. at 319; (4) “[I]t is not enough

simply to allow the defendant to present mitigating evidence to the

sentencer. The sentencer must also be able to consider and give

effect to that evidence in imposing sentence,” id.; (5) “[i]n order

to ensure reliability in the determination that death is the
73
appropriate punishment in a specific case, the jury must be able to

consider and give effect to any mitigating evidence relevant to a

defendant’s background and character or the circumstances of the

crime,” id. at 328; and (6) therefore, “in the absence of

instructions informing the jury that it could consider and give

effect to the mitigating evidence of Penry’s mental retardation and

abused [childhood] background by declining to impose the death

penalty, . . . the jury was not provided with a vehicle for

expressing its reasoned moral response to that evidence in

rendering its sentencing decision,” id. at 328. (Internal

quotations and citations omitted).

Thus, the Supreme Court in Penry I agreed with Penry’s

argument “that his mitigating evidence of mental retardation and

childhood abuse has relevance to his moral culpability beyond the

scope of the special issues, and that the jury was unable to

express its reasoned moral response to that evidence in determining

whether death was the appropriate punishment.” Id. at 322. The

Court explained in detail why it rejected the State’s contrary

argument that the jury was able to consider and give effect to all

of Penry’s mitigating evidence in answering the three special

issues. Id.

The first special issue, which asked whether the defendant

acted “deliberately and with the reasonable expectation that the

death of the deceased . . . would result,” impermissibly limited
74
the jury’s function because the term “deliberately” had not been

defined by the Texas Legislature, the Texas Court of Criminal

Appeals, or the trial court’s instructions. Id. at 322. Even if

the jurors “understood ‘deliberately’ to mean something more than

. . . ‘intentionally’ committing murder, those jurors may still

have been unable to give effect to Penry’s mitigating evidence in

answering the first special issue.” Id. The reason was

“deliberately” was not defined “in a way that would clearly direct

the jury to consider fully Penry’s mitigating evidence as it bears

on his personal culpability.” Id. at 323. Consequently, the Court

concluded, unless there are “jury instructions defining

‘deliberately’ in a way that would clearly direct the jury to

consider fully Penry’s mitigating evidence as it bears on his

personal culpability, we cannot be sure that the jury was able to

give effect to the mitigating evidence of Penry’s mental

retardation and history of abuse in answering the first special

issue.” Id. at 323. “Thus, we cannot be sure that the jury’s

answer to the first special issue reflected a reasoned moral

response to Penry’s mitigating evidence.” Id. (internal quotation

omitted).

The second special issue, which asked “whether there is a

probability that the defendant would commit criminal acts of

violence that would constitute a continuing threat to society,”

permitted the jury to consider and give effect to Penry’s mental
75
retardation and childhood abuse as “relevant only as an aggravating

factor[.]” Id. The second special issue was inadequate both

because it only gave effect to Penry’s evidence as an aggravating

factor, and because it did not allow the jury to give full effect

to Penry’s mitigating evidence. Id. at 323. Thus, the Court

concluded that Penry’s evidence of mental retardation and childhood

abuse was a “two-edged sword,” diminishing “his blameworthiness for

his crime even as it indicates that there is a probability that he

will be dangerous in the future.39 Id. at 324.

As a result the majority held, “in the absence of instructions

informing the jury that it could consider and give effect to the

mitigating evidence of Penry’s mental retardation and abused

background by declining to impose the death penalty, . . . the jury

was not provided with a vehicle for expressing its ‘reasoned moral

response’ to that evidence in rendering its sentence.” Id. at 328.

In Penry II the Court again confronted the constitutionality

of Penry’s death sentence, this time after re-sentencing in the

wake of Penry I. Texas attempted to correct the defects the Court

identified in Penry I with a supplemental instruction to the three

special issues. This so-called “nullification instruction” said:

39
The third special issue, which asked “whether the conduct of
the defendant in killing the deceased was unreasonable in response
to provocation, if any, by the deceased,” was not relevant there
(or here) because provocation was (and is) not in issue.
76
 You are instructed that when you deliberate on the
questions posed in the special issues, you are to
consider mitigating circumstances, if any, supported by
the evidence presented in both phases of the trial,
whether presented by the state or the defendant. A
mitigating circumstance may include, but is not limited
to, any aspect of the defendant's character and record or
circumstances of the crime which you believe could make
a death sentence inappropriate in this case. If you find
that there are any mitigating circumstances in this case,
you must decide how much weight they deserve, if any, and
therefore, give effect and consideration to them in
assessing the defendant's personal culpability at the
time you answer the special issue. If you determine,
when giving effect to the mitigating evidence, if any,
that a life sentence, as reflected by a negative finding
to the issue under consideration, rather than a death
sentence, is an appropriate response to the personal
culpability of the defendant, a negative finding should
be given to one of the special issues.

Penry II, 532 U.S. at 789-790.

The Penry II Court explained that there were two

interpretations of this instruction, neither of which resolved the

concerns it identified in Penry I. First, the Court noted the

instruction may have told jurors to consider Penry’s mitigating

evidence within the special issues. But such an interpretation

left “the jury in no better position than was the jury in Penry I,”

because “none of the special issues is broad enough to provide a

vehicle for the jury to give mitigating effect to the evidence of

Penry’s mental retardation and childhood abuse.” Id. at 798.

Alternatively, the instruction may have asked the jury to answer

“no” to a special issue if it believed Penry did not deserve the

death penalty, regardless of its honest answer to the question.
77
This interpretation was also constitutionally unsound because it

would require jurors to violate their oath to render a “true

verdict” to give effect to Penry’s evidence, putting jurors in a

logical and ethical bind. Id. at 799-800. Thus, the Penry II

majority concluded, the Texas court ruling that the supplemental

instruction cured the Penry I problems was objectively

unreasonable.

B. Applicability to Robertson

From the Penry I opinion it is clear that the Court considered

Penry’s abused childhood, as well as his mental retardation, to be

independently relevant mitigating evidence that the jury should

have been instructed that it could consider and give effect to in

determining whether to impose the death penalty. In reversing

Penry’s death sentence, the Court concluded that “his mitigating

evidence of mental retardation and childhood abuse has relevance to

his moral culpability beyond the scope of the special issues, and

that the jury was unable to express its reasoned moral response to

that evidence in determining whether death was the appropriate

response.” Penry I, 492 U.S. at 322 (emphasis added); see also id.

at 312 (listing as separate evidence of Penry’s possible reduced

personal culpability “his mental retardation, arrested emotional

development, and abused background”); id. at 323 (“[B]ecause of his

history of childhood abuse, that same juror [who concluded that

78
Penry acted ‘deliberately,’] could also conclude that Penry was

less morally culpable than defendants who have no such excuse[.]”)

As Robertson has presented evidence of childhood abuse here,

Penry I, along with Penry II, should be outcome determinative.

Under Penry I, the special issues given at Robertson’s trial, which

were identical to those given in Penry’s trial, were an inadequate

vehicle for allowing a jury to consider Robertson’s child abuse

evidence in making a reasoned death penalty determination. And the

nullification instruction does not change this result.40 Penry II,

532 U.S. at 803-04.

The majority responds to this clear textual command from the

Court that the special issues are constitutionally infirm where a

defendant presents evidence of childhood abuse with two arguments.

First, it argues that “[c]hildhood abuse alone is not

systematically discussed by Penry I” because there the evidence of

child abuse “was inseparable from the Court’s greater concern with

Penry’s mental retardation and poor impulse control.” Second, the

majority contends that it is neither “logically or empirically true

that generic childhood abuse, of whatever duration, type, or

severity, bears the same characteristics as mental retardation.”

40
As Judge DEMOSS’ dissent explains the nullification
instruction here and in Penry II were similar, although not
identical. But neither the majority, nor Texas asserts that the
differences affect our analysis here.
79
 As to the first argument, the Supreme Court never suggested

that either mental retardation or childhood abuse evidence by

itself could be constitutionally weighed and acted upon by a jury

within the shackles and confines of the special issues. If, as the

majority argues, the Court’s “greater concern” was with mental

retardation, it is odd the Court did not choose to list just mental

retardation or “lost impulse control” as the factor the special

issues could not accommodate. Or, if the Court wanted to impart

its belief that childhood abuse is evidence that only in

conjunction with mental retardation requires a special instruction,

it easily could have used the phrase “mental retardation with

childhood abuse” or “mental retardation caused by childhood abuse,”

rather than “mental retardation and abused childhood,” to describe

the problematic evidence. Thus, I, unlike the majority, am willing

to credit the Court with saying what it means: that the Texas

special issues are not equipped to handle child abuse evidence.

But even assuming the majority’s cramped reading of Penry I is

correct, and the Court did not explicitly hold that childhood abuse

evidence is not adequately encompassed by the Texas special issues,

the Court’s reasoning in Penry I, applied to childhood abuse,

mandates the same result. Childhood abuse evidence alone raises

the same constitutional problems as the joint mental retardation/

childhood abuse evidence in Penry I. The first issue of

“deliberateness,” not further defined, does not allow a jury to
80
reflect its conclusion that while a defendant purposely committed

a murder, his culpability for that purposeful killing was reduced

as a consequence of his abuse as a child. Penry I, 492 U.S. at

322-23. And the second special issue, future dangerousness,

raises an even more troubling scenario of a “two-edged sword,”

where child abuse serves as an aggravating, rather than mitigating,

factor. Id. at 323. As Chief Justice Rehnquist noted in a

different context in Santosky v. Kramer, 455 U.S. 745, 789 (1982)

(Rehnquist, J., dissenting), “[i]t requires no citation of

authority to assert that children who are abused in their youth

generally face extraordinary problems developing into responsible,

productive citizens.”41 Given such common knowledge of the greater

likelihood of recidivism among abused children, the Texas special

issues leaves a jury with no room to register its conclusion that

while a defendant is a future threat to society, his abuse as a

41
Or perhaps it does require a citation. The majority suggests
that childhood abuse of lesser duration or severity may not have
the same effect within the Texas special issues system as the very
serious childhood abuse Penry suffered. I take this to mean that
the majority contends that in cases of less serious childhood abuse
the evidence is not necessarily aggravating because there is a
lesser risk of recidivism than among the seriously abused because
the effects of less severe childhood abuse are treatable. Motley
v. Collins, 18 F.3d 1223, 1235 (5th Cir. 1994). As an empirical
matter this is not necessarily correct. A study done by the State
University of New York (SUNY)- Albany showed that the fact of child
maltreatment, rather than its form, was the greatest predictor (and
presumably cause) of later delinquency. Office of Juvenile Justice
and Delinquency Prevention, U.S. Dep’t of Justice, Juvenile Justice
Bulletin, In the Wake of Childhood Maltreatment (Aug. 1997).
81
child reduces his responsibility for that threat, making use of the

death penalty inappropriate.42

Thus, even assuming we are operating without a Supreme Court

decision on whether evidence of childhood abuse alone can be

considered within the Texas special issues, the presence of the

same concerns the Court found with the evidence in Penry I mandates

a finding that the special issues are constitutionally infirm here.

II.

The majority fails to reach this result today because it

relies on what I believe is an erroneous line of precedent first

established in our en banc decision in Graham v. Collins, 950 F.2d

1009, 1029 (5th Cir. 1992) (en banc). Under the Graham test

whether a defendant’s mitigating evidence is not adequately

encompassed within the Texas special issues, turns on whether that

evidence meets four stringent criteria: voluntariness, permanence,

severity, and attribution. The majority describes these

requirements for “constitutionally relevant mitigating evidence”

“readily apparent from the Court’s opinion in Penry I.” I believe,

however, that it is “readily apparent” that this test bears no

connection to the reasoning underlying the Penry I decision.

42
And under the Court’s decision in Penry II, the presence of
the nullification instruction does not change this outcome. Penry
II, 532 U.S. at 803-04.
82
 The Supreme Court’s most fundamental holding regarding

mitigating evidence at the capital sentencing phase is that “a

sentencer may not be precluded from considering, and may not refuse

to consider, any relevant mitigating evidence.” Penry I, 492 U.S.

at 318. This evidence includes “any aspects of a defendant’s

character or record and any of the circumstances of the offense

that a defendant proffers as a basis for a sentence less than

death.” Id. at 317 (quoting Lockett v. Ohio, 438 U.S. 586, 604

(1978) (plurality opinion)). Where our en banc decision in Graham

and its progeny go wrong is by failing to ask the fundamental Penry

I question of how, if at all, the Texas special issues allow a jury

to give meaningful consideration to a particular piece of

mitigating evidence. For the Graham test to be correct under Penry

I, the Texas special issues must allow a jury to adequately weigh

a piece of mitigating evidence wherever that evidence does not fall

within the Graham criteria. But this is not the case. For

example, how do the special issues allow a jury to weigh evidence

of a defendant’s childhood abuse where the crime is not directly

attributable to that abuse? Under the Texas system a jury could

believe that this history of abuse made a defendant more likely to

commit future crimes, but, absent a meaningful mitigating evidence

instruction, would have no outlet to express its determination that

83
the defendant is not morally culpable enough, as a consequence of

his history of abuse, for the death penalty.43

The majority makes two responses to the argument that the

Graham line of cases misapplies Penry I. First, the majority notes

that Supreme Court decisions in Graham v. Collins, 506 U.S. 461

(1993), and Johnson v. Texas, 509 U.S. 350 (1993), established the

principle that Penry I is an exception to Jurek v. Texas, 428 U.S.

262 (1976), which found that the Texas special issues system was

not unconstitutional on its face, rather than vice versa. How this

rather unremarkable statement alters the Penry I analysis escapes

me. In both Graham and Johnson the question was whether youth as

a mitigating factor was adequately accounted for within the Texas

special issue system. Significantly, in determining whether the

special issues were sufficiently capacious to encompass evidence of

youth, the Court did not pick up the four-pronged Fifth Circuit

test the majority advocates here. Rather, it answered the question

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Of course the majority may respond that one is not less
morally culpable for a crime because of a history of child abuse
unless the crime can be proven by expert testimony to be
attributable to that abuse. While I disagree with this conclusion,
the opinion of the court on this matter is, frankly, irrelevant.
It is the province of the jury in Texas, as sentencer, to weigh
mitigating evidence and draw inferences of culpability from that
evidence. Penry I, 492 U.S. at 328 (“...the jury must be able to
consider and give effect to any mitigating evidence relevant to a
defendant’s background and character or the circumstances of the
crime.”); id. at 318 (explaining that under Lockett and Eddings the
sentencer must be allowed consider all mitigating evidence). Our
Graham test substitutes this court’s cramped judgment of what is
mitigating for that of the jury.
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Penry I mandated it answer: whether the Texas special issues

allowed a jury to express its belief that because the capital

defendant was young when he committed his crime, he is not morally

deserving of the death penalty. Graham, 506 U.S. at 475

(explaining essence of Penry I is whether relevant mitigating

evidence is placed beyond the “effective reach of the sentencer”);

Johnson, 509 U.S. at 367 (“The question presented here is whether

the Texas special issues allowed adequate consideration of

petitioner’s youth.”) And the answer there was yes, because unlike

with evidence of childhood abuse, the impact of youth at the time

of committing a crime can be reflected in a “no” to future

dangerousness, to reflect the lower risks of recidivism with age.

Graham, 506 U.S. at 475 (“[I]t is evident that Graham’s

evidence–unlike Penry’s– had mitigating relevance to the second

special issue concerning his likely future dangerousness.”)

Johnson, 509 U.S. at 368 (“We believe there is ample room in the

assessment of future dangerousness for a juror to take account of

the difficulties of youth as a mitigating force in the sentencing

determination.”)

Thus, the important principle to derive from Graham and

Johnson is that in those cases the Court reaffirmed the basic test

of Penry I for when the Texas special issues transgress the Eighth

Amendment (i.e., when they do not allow a jury to consider a

particular piece of mitigating evidence in making the death penalty
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determination). And this bears little resemblance to our en banc

Graham test.

Perhaps realizing that allusions to Graham and Johnson would

not rescue its four-headed hydra, the majority stretches even

further in its second defense of its test, ascribing significance

to the Supreme Court’s failure to grant certiorari in earlier cases

challenging it. It should not bear repeating that denial of

certiorari does not shed any light on the views of the Court on the

merits of the dispute in which the petition was denied. Holloway

v. McElroy, 632 F.2d 605, 636 n.50 (5th Cir. 1980). But more

startling is the majority’s cavalier expectation that the Supreme

Court repeatedly consider Texas death penalty cases to sort out the

applicable legal standards, rather than recognizing our

responsibility to get those cases right using previous Supreme

Court decisions. Rather than counting on the Court’s denials of

certiorari, the majority would have been well served to attempt to

apply the principles of Penry I here, lest the Court decide to

again correct an “unreasonable” application of its existing

precedent. Penry II, 532 U.S. at 803-04.

III.

Today’s decision is deeply troubling. Petitioner Robertson

introduced mitigating evidence of childhood abuse in the penalty

phase of his trial, but that evidence could not be considered by

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the jury in making its moral, reasoned death determination because

of the limited special issues inquiry. Yet rather than require

Texas to re-sentence Robertson in line with constitutional

minimums, as mandated by Penry I and Penry II, the majority applies

a test that bears little relation to Supreme Court precedent to

find Robertson’s sentence constitutionally sound. And rather than

attempt to apply the Court’s clear principles, the majority resorts

to inapposite precedent and counting cert denials to defend its

actions. Because I believe this is wrong, I cannot join the

majority.

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