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,1 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,2 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 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 *259jury 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 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,3 as in Cabana v. Bullock. 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 Ap-prendi, 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 *260instruction 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 reasonabie likelihood that the jury has applied the challenged instruction in a way that prevents consideration of constitutionally relevant evidence.” 4 And to the 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 in-structíon 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 Furman5 — evenhanded treatment across cases in which each accused receives individualized consideration of his mitigating circumstances.
. 474 U.S. 376, 106 S.Ct. 689, 88 L.Ed.2d 704 (1986); Bullock v. Cabana, 784 F.2d 187 (5th Cir.1986).
. 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002).
. Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).
. Boyde v. California, 494 U.S. 370, 380, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1998).
. 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972).