with whom KING, Circuit Judge, joins, specially concurring:
I join the court’s affirmance of Justin Lee May’s death sentence because I believe it mandated by controlling precedent. I write separately, however, to express my view of the injustice produced through the Texas sentencing scheme and the contradictory federal law that has upheld that scheme. May, through the efforts of his counsel, has been caught in a legal web, the beginnings of which can be traced to Jurek and its upholding of the facial constitutionality of the Texas statute. See Jurek v. Texas, 428 U.S. 262, 276-77, 96 S.Ct. 2950, 2958, 49 L.Ed.2d 929 (1976) (Stevens, J., plurality).
In the last fourteen years, the Supreme Court has consistently stated that a capital sentencing jury must be able to consider the circumstances of the crime as well as the background and character of the defendant before choosing between a life and a death sentence. See Penry v. Lynaugh, — U.S. —, 109 S.Ct. 2934, 2951, 106 L.Ed.2d 256 (1989); Hitchcock v. Dugger, *233481 U.S. 393, 107 S.Ct. 1821, 1824, 95 L.Ed.2d 347 (1987); Skipper v. South Carolina, 476 U.S. 1, 106 S.Ct. 1669, 1672-73, 90 L.Ed.2d 1 (1986); Zant v. Stephens, 462 U.S. 862, 879, 103 S.Ct. 2733, 2743-44, 77 L.Ed.2d 235 (1983); Eddings v. Oklahoma, 455 U.S. 104, 113-15, 102 S.Ct. 869, 876-77, 71 L.Ed.2d 1 (1982) (Powell, J., plurality); Lockett v. Ohio, 438 U.S. 586, 604-05, 98 S.Ct. 2954, 2964-65, 57 L.Ed.2d 973 (1978) (Burger, C.J., plurality); Woodson v. North Carolina, 428 U.S. 280, 303-04, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944 (1976) (Stewart, J., plurality); Gregg v. Georgia, 428 U.S. 153, 197-98, 96 S.Ct. 2909, 2936-37, 49 L.Ed.2d 859 (1976) (Stewart, J., plurality).
When first analyzing the Texas statute for conformity with this requirement, the Court examined the three statutory questions — on deliberateness, future dangerousness, and the reasonableness of a response to provocation by the deceased — to determine “whether the enumerated questions allow[ed] consideration of particularized mitigating factors.” Jurek, 428 U.S. at 272, 96 S.Ct. at 2956. Because the Texas Court of Criminal Appeals broadly interpreted the second question as permitting consideration of any mitigating evidence, the Jurek Court upheld the statute’s constitutionality. Id.; see Estelle v. Smith, 451 U.S. 454, 472-73, 101 S.Ct. 1866, 1878, 68 L.Ed.2d 359 (1981); Lockett, 438 U.S. at 606-07, 98 S.Ct. at 2966. The Texas Court of Criminal Appeals has adhered to this interpretation, permitting the presentation of a wide range of mitigating evidence, see, e.g., Johnson v. State, 691 S.W.2d 619, 626 (Tex.Crim.App.1984), cert. denied, 474 U.S. 865, 106 S.Ct. 184, 88 L.Ed.2d 152 (1985), and reversing cases in which the trial court has excluded mitigating evidence, see Burns v. State, 761 S.W.2d 353, 358 (Tex. Crim.App.1988); Cass v. State, 676 S.W.2d 589, 592 (Tex.Crim.App.1984).
Accordingly, at least until 1988, when Franklin v. Lynaugh called into question the sentencing jury’s ability to consider all mitigating evidence, 108 S.Ct. 2320, 2333 (O’Connor, J., concurring), the Fifth Circuit and the Texas Court of Criminal Appeals consistently held that additional instruction was not constitutionally mandated for consideration of any mitigating evidence, see, e.g., Penry v. Lynaugh, 832 F.2d 915, 926 (5th Cir.1987), reversed, — U.S. —, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989); Williams v. Lynaugh, 837 F.2d 1294, 1295-96 (5th Cir.1988), cert. denied, — U.S. —, 109 S.Ct. 3260, 106 L.Ed.2d 605 (1989); Riles v. McCotter, 799 F.2d 947, 952-53 (5th Cir.1986); Esquivel v. McCotter, 777 F.2d 956, 957-58 (5th Cir.1985), cert. denied, 475 U.S. 1132, 106 S.Ct. 1662, 90 L.Ed.2d 204 (1986); Cordova v. State, 733 S.W.2d 175, 189-91 (Tex.Crim.App. 1987), cert. denied, 487 U.S. 1240, 108 S.Ct. 2915, 101 L.Ed.2d 946 (1988); Gardner v. State, 730 S.W.2d 675, 702 (Tex.Crim.App.), cert. denied, 484 U.S. 905, 108 S.Ct. 248, 98 L.Ed.2d 206 (1987); Clark v. State, 717 S.W.2d 910, 920 (Tex.Crim.App.1986), cert. denied, 481 U.S. 1059, 107 S.Ct. 2202, 95 L.Ed.2d 857 (1987); Fierro v. State, 706 S.W.2d 310, 318 (Tex.Crim.App.1986); Anderson v. State, 701 S.W.2d 868, 873-74 (Tex.Crim.App.1985), cert. denied, 479 U.S. 870, 107 S.Ct. 239, 93 L.Ed.2d 163 (1986).
However, as demonstrated by the Court’s rendering of Penry, application of the Texas sentencing statute can be unconstitutional. 109 S.Ct. at 2952. The fact that the Supreme Court reached an opposite conclusion with regard to some mitigating evidence can be traced to an oversight in the original Jurek analysis. In considering the statute’s constitutionality, the Jurek plurality focused primarily on the Texas Court of Criminal Appeals’ broad interpretation of the statute, which permitted the presentation of a large array of evidence. Jurek, 428 U.S. at 272-73, 96 S.Ct. at 2956-57. Any restrictions imposed by the statutory questions were considered as merely guiding and focusing the jury’s consideration of mitigating evidence. Id. at 273-74, 96 S.Ct. at 2957. The Justices, however, did not carefully consider the statutory questions from the perspective of an individual juror and the variety of evidence that could be relevant to the sentence, independent of the special issues. A juror who concludes that the evidence requires affirmative answers to questions on deliberateness and future dangerousness, *234but who also concludes that the defendant’s character, moral culpability, or social worth mitigates against a death sentence, may not (and should not) feel at liberty to express her ultimate conclusion, since it requires nullification of one of the statutory questions. We can never be certain under this statutory scheme that a juror in this predicament will not be silenced by the need to comply with the law’s facial requirements. Graham v. Collins, 896 F.2d 893, 896 n. 3 (6th Cir.) (petition for rehearing en banc granted, 903 F.2d 1014) (5th Cir. June 4, 1990); see Jurek, 428 U.S. at 279, 96 S.Ct. at 2959 (White, J., concurring) (“[IJt should not be assumed that juries will disobey or nullify their instructions.”). In Penry, the Court found that without additional instruction this risk was too great with regard to evidence of mental retardation and child abuse. 109 S.Ct. at 2952.
However, at the time of May’s trial, the state and federal courts consistently maintained that the Texas sentencing scheme is constitutionally applied without additional instruction. O’Bryan v. Estelle, 714 F.2d 365, 385 (5th Cir.1983), cert. denied, 465 U.S. 1013, 104 S.Ct. 1015, 79 L.Ed.2d 245 (1984); Spivey v. Zant, 661 F.2d 464, 471 & n. 10 (5th Cir. Unit B Nov. 1981), cert. denied, 458 U.S. 1111, 102 S.Ct. 3495, 73 L.Ed.2d 1374 (1982); Granviel v. Estelle, 655 F.2d 673, 675-77 (5th Cir.1981), cert. denied, 455 U.S. 1003, 102 S.Ct. 1636, 71 L.Ed.2d 870 (1982); Johnson, 691 S.W.2d at 626; Stewart v. State, 686 S.W.2d 118, 121 (Tex.Crim.App.1984), cert. denied, 474 U.S. 866, 106 S.Ct. 190, 88 L.Ed.2d 159 (1985); Lackey v. State, 638 S.W.2d 439, 455 (Tex. Crim.App.1982); Quinones v. State, 592 S.W.2d 933, 947 (Tex.Crim.App.), cert. denied, 449 U.S. 893, 101 S.Ct. 256, 66 L.Ed.2d 121 (1980); see Penry v. State, 691 S.W.2d 636, 654-55 (Tex.Crim.App.1985), cert. denied, 474 U.S. 1073, 106 S.Ct. 834, 88 L.Ed.2d 805 (1986).
This fixed state of the law left defense counsel representing victims of child abuse and mental impairment with a tactical dilemma: (1) either to present the mitigating evidence, which would do more harm than good by bolstering the state’s case with regard to future dangerousness, and then to pursue a losing constitutional argument; or (2) to withhold that evidence and hope that other arguments would persuade the jury to impose a life sentence. Any capable defense attorney would pursue the latter course, as did May’s counsel.
Counsel’s tactical decision, wise and necessary at the time, may be considered imprudent today because of an unpredictable change in the law. The important reality is that May’s jurors were prevented from hearing extremely probative evidence on his moral culpability and on the appropriateness of a death sentence. Consequently, May has been deprived of the sentencing jury’s fully informed judgment of his crime and his character. He has been caught in a web spun of words and logic that, in the end, has deprived May of his constitutional rights, a deprivation that may cost him his life.