join, dissenting:
The Supreme Court directed this court to reconsider Graham’s petition in the light of Penry, not to modify Penry or to shape Penry for a comfortable fit with Jurek. In Penry, Justice O’Connor wrote for the Court that the jury must be able to fully consider and give effect to all “evidence that mitigates against the death penalty” and is relevant to a defendant’s background, character, or the circumstances of the crime. 109 S.Ct. at 2947, 2951. If youth is an important mitigating factor— and the Court has said that it is1 — then Penry requires that the sentencing jury be allowed to decide that the death penalty is an inappropriate penalty for Gary Graham. That decision could not have been given effect in his case, and the writ should be granted.
The panel majority stated the Penry rule as follows: “a jury sentencing a capital defendant who provides evidence about his character, his background, or the circumstances of the offense that is relevant to personal culpability beyond the scope of the statutory questions must receive instructions that allow the jury to give effect to such evidence.” 896 F.2d at 896. The en banc majority, after 21 months, produces an exclusion to the Penry rule and holds that no instruction or jury decision is needed for transitory circumstances of mitigation. This court says that any circumstance relevant to whether the defendant is rehabilitable may be adequately treated by the answer to the second issue. Contrary to what the Supreme Court wrote, the Fifth Circuit explains Penry as an atypical case where the mitigating evidence either had no substantial relevance, or no adverse relevance, to the second special issue of future dangerousness. I believe my colleagues have gone beyond and contrary to the, directions of the Supreme Court and have usurped the role of our superiors.
Graham was 17 years old, legally a minor, when he committed the crime. It is beyond dispute that this fact was a mitigating circumstance, material to the “moral culpability” of the defendant. The jury’s sentencing role is to consider such factors and determine whether the defendant is indeed personally and morally culpable. But “culpability” at the punishment phase is not simply a question of guilt or “blameworthiness,” but rather a question of “deathworthiness.” See Lackey v. State, 819 S.W.2d 111, 129 (Tex.Crim.App.1991) (en banc). To say that evidence mitigates a defendant’s culpability is not to say that he is any less guilty or deserving of blame, but that he is less deserving of death. See Penry, 109 S.Ct. at 2950 (a juror could believe that “Penry lacked the moral culpability to be sentenced to death”).
The special issues of the Texas statute demonstrate how evidence can be relevant to a defendant’s culpability. The guilty defendant may be less deserving of death because the evidence shows that he did not act deliberately, or that he does not pose a continuing threat to society, or that his conduct was not unreasonable in response to provocation by the deceased. Indeed, *1035much evidence is mitigating only because it is relevant to one or more of these issues. See Franklin v. Lynaugh, 487 U.S. 164, 108 S.Ct. 2320, 2333, 101 L.Ed.2d 155 (1988) (O’Connor, J., concurring) (evidence of the defendant’s good conduct in prison had no relevance to his character outside of the special issues). But the message of Penry is that some evidence may make the defendant less deserving of death for reasons “beyond the scope of the special issues.” Penry, 109 S.Ct. at 2948. The evidence of Penry’s mental retardation and history of abuse may not have made his crime less deliberate or his continuing threat to society less probable, but it may nevertheless have made him less deserving of death because it may have made him “less able than a normal adult to control his impulses or to evaluate the consequences of his conduct.” Id. at 2949. Presented with the special verdict questions, and “in the absence of appropriate jury instructions, 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. at 2950.
This case presents the same dilemma. The jury found that Graham’s youth did not make his crime less deliberate or his future threat to society less probable. But a reasonable juror could also have determined, if given the opportunity, that Graham did not deserve a death sentence because, at the age of 17, he was less able to control his impulses or evaluate the consequences of his conduct, or because of other relevant reasons. The majority seems to overlook the fact that “there is no constitutional infirmity in a procedure that allows a jury to recommend mercy based on the mitigating evidence introduced by a defendant.” Id. at 2951. In this case, as in Penry, “in the absence of instructions informing the jury that it could consider and give effect to the mitigating evidence of [Graham’s youth] 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 2952. Under Penry, the jury should have been allowed to weigh that factor in deciding whether Graham deserved to be sentenced to death.
The majority of this en banc court insists upon crafting its own exclusion and following Penry only where there is a “major mitigating thrust of the evidence ... substantially beyond the scope of all the special issues.” It even declares that youth is mitigating only with respect to conduct attributable to age, and that the mitigating factor of youth at the time of the offense may be adequately taken into account by a Texas jury in answering the issue of future dangerousness. But the Supreme Court requires the sentencer, before assessing the death penalty, to consider all mitigating evidence, not only mitigating factors that contributed to particular criminal conduct. And the Court does not weigh the “thrust” of the mitigating evidence as between special issues and the decision to sentence to death.
Youth, like mental retardation or crippling circumstances in the defendant’s background, may be related to deliberateness or to future dangerousness, but those facts of a defendant’s life may also affect an entirely different “thrust” and decision. They may reach the much broader ultimate question: Is death the appropriate response to this human being, considering his moral culpability as a person? Graham’s jury was not told that it could consider evidence in this light or that it could give mitigating effect to it in imposing sentence.
The majority opinion is heavy with scholarship and fine legal argument. It undoubtedly alleviates problems in reviewing the cases of Texas prisoners on death row. I fully appreciate the problems. The Texas Court of Criminal Appeals is struggling with them too. See Black v. State, 816 S.W.2d 350 (Tex.Crim.App.1991); Ex parte Harvey Earvin, 816 S.W.2d 379 (Tex.Crim.App.1991); Lackey v. State, 819 S.W.2d 111 (Tex.Crim.App.1991). This does not justify the failure to follow the dictate of the Supreme Court. I would follow that dictate unless the Court, which alone has the authority, chooses to modify our instructions.
. See panel opinion; 896 F.2d at 897-98. In Eddings v. Oklahoma the Supreme Court said:
“All this does not suggest an absence of responsibility for the crime of murder, deliberately committed in this case. Rather, it is to say that just as the chronological age of a minor is itself a relevant mitigating factor of great weight, so must background and emotional development be duly considered in sentencing.” 102 S.Ct. at 877.