dissenting:
I agree with the thrust of Judge De-Moss’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, 121 S.Ct. 1910, 150 L.Ed.2d 9 (2001) (Penry II). The Supreme Court, in Penry II explained that *271the nullification instruction “was objectively unreasonable.” 532 U.S. at 804, 121 S.Ct. 1910. In Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (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, 121 S.Ct. 1910 (citing Penry I, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (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.” 1 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 Pen-ry’s mitigating evidence.” Penry II, 532 U.S. at 800, 121 S.Ct. 1910. 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 Pen-ry II, and determines that this Court must filter the mitigating evidence presented before it reaches the jury.
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, 121 S.Ct. 1910 (quoting Penry I, 492 U.S. at 328, 109 S.Ct. 2934). 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 *272the 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 Penry’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, 121 S.Ct. 1910 (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 prevents] the consideration of constitutionally relevant evidence.” Id. at 800, 121 S.Ct. 1910 (quoting Boyde v. Cal., 494 U.S. 370, 380, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990) (emphasis added)). This standard includes all mitigating evidence, not merely the special variety which the majority maintains 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, 110 S.Ct. 1190 (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 “[tjhere is at the very least, ‘a reasonable likelihood that the jury ... applied the challenged instruction in a way that prevented] the consideration’ ” of Robertson’s mitigating evidence. Penry II, 532 U.S. at 800, 121 S.Ct. 1910. 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 proposition that because there is a so-called causal relationship between Pen-ry’s mental retardation and extreme childhood abuse, this mitigating evidence is *273stronger than Robertson’s.2 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. 862, 120 S.Ct. 1495, 146 L.Ed.2d 389 (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, 120 S.Ct. 1495, 146 L.Ed.2d 389 (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, 120 S.Ct. 1495. 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 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. 536 U.S. 304, 122 S.Ct. 2242, 2244, 153 L.Ed.2d 335 (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, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). Surely, this is not the outcome the Supreme Court intended when it de*274cided 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.
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.
. 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.” Appel-lee's Brief at 12.
. 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, 536 U.S. 304, 122 S.Ct. 2242, 2244, 153 L.Ed.2d 335 (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, 121 S.Ct. 1910 ("Penry had offered extensive evidence that he was mentally retarded and had been severely abused as a child.”).