dissenting:
The majority opinion stands essentially on two premises: first, that the decision of the Supreme Court in Penry v. Johnson, 532 U.S. 782,121 S.Ct. 1910,150 L.Ed.2d 9 (2001)(‘Penry IP’) does not “shed any light” on our decision here in Robertson; and second, under our “consistently applied” Fifth Circuit ease law interpreting the Supreme Court decision in Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934,106 L.Ed.2d 256(1989)(“Pewn/ /”) 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 *261nullification 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 F’ which reversed the affir-mance 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 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 *262culpability 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. 1998), cert. filed.
903 S.W.2d at 765.
John Paul Penry then sought state habe-as 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 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 IP
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 “Pen-ry II”.1 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, 106 L.Ed.2d 256 (emphasis added). For it is only when the jury is given 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, 106 L.Ed.2d 256, 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 *263not 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.
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 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 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 *264interposed 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, 1991.2 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 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 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 Pen-ry. 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, *2651993. 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 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, 513 U.S. 853, 115 S.Ct. 155, 130 L.Ed.2d 94 (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 habe-as petition, the sixth ground stated:
whether the trial court’s submission of a nullification instruction instead of a Pen-ry 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, 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, 508 U.S. 941, 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.
*266The 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, 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 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, 121 S.Ct. 1910, 150 L.Ed.2d 9 (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 Pen-ry II 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 *267deciding 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 p. 244.
B. “The case at bar constitutes a test of the evidence — both in quality and quantity — that provokes such a failure.” Supra, at p. 248.
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.” Sttpra, at p. 249.3
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 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.” 4 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 evi*268dence. 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 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 ha-beas 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 ha-beas 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?
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. *269The panel opinion for which Robertson sought a writ of certiorari to the Supreme Court had denied Robertson’s motions for a certificate of appealability 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 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 p. 257, 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:5
1. “The concerns that motivated the Supreme Court in Penry II are not present in the case at bar.” Supra, at p. 258.
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 p. 258.
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 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 supple*270mental 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 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 “fight 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 habe-as cases under § 2254 in which the original state criminal trials occurred before the date of the Supreme Court holding in Pen-ry 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 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.
. The Supreme Court decision in Pemy 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.
. This new statute is quoted in full in footnote 4 on page 249 of the majority opinion supra.
. 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, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976); Franklin v. Lynaugh, 487 U.S. 164, 108 S.Ct. 2320, 101 L.Ed.2d 155 (1988); Graham v. Collins, 506 U.S. 461, 113 S.Ct. 892, 122 L.Ed.2d 260 (1993); and Johnson v. Texas, 509 U.S. 350, 113 S.Ct. 2658, 125 L.Ed.2d 290 (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, 113 S.Ct. 2658.
. 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 page 251.
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.
. 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." Supra, at p. 255 (citing 532 U.S. at 797, 121 S.Ct. 1910). 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.