concurring.
Faced with the indisputable fact that a jury, authorized by the trial court to do so “in fairness or mercy” in accordance with instructions and a fourth special issue, unanimously determined that imposition of the death penalty on appellant is not “a reasoned moral response to [his] background, his character and to the crime of which he was convicted,” a reviewing court is obliged to reject parochial rationales that would set aside the constitutional consequences of that decision.1 See and compare Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989);2 *851Jurek v. State, 522 S.W.2d 934 (Tex.Cr. App.1975).3
The State contended for, and now naturally supports, the determination of the court of appeals that the trial court erred in submitting the fourth special issue because it is “not authorized by Texas Law.” State v. McPherson, 828 S.W.2d 81, at 83-84 (Tex.App.—Amarillo 1992).4 Because the opinion of this Court fails directly to address that proposition, cf. opinion, at 849-850, my purpose in writing is to demonstrate that contention and related reasons given for characterizing the verdict below as “illegal” are without merit. State v. McPherson, supra, at 84-85.
The court of appeals opined that while “a functional equivalent to an instruction might satisfy the Federal Penry requirement, under the relevant Texas statute, a special issue may not serve in that capacity” because Article 37.07, § 1(a), V.A.C.C.P., provides that “[t]he verdict in every criminal action must be general.” McPherson, supra, at 83. But, in my view, where the question is propriety of submitting a special issue on punishment under the rubric of Penry v. Lynaugh, supra, reliance on such literal language of an archaic generality is severely misplaced.
Dating back to Old Code days when a jury found guilt and assessed punishment simultaneously, the provision lost its original intendment and function with advent of the alternative bifurcated procedure in Acts 1965, 59th Leg.Vol. 2, Ch. 722, p. 317. Thereafter, the trial judge first submitted “the issue as to guilt or innocence ... without authorizing the jury to pass upon the punishment to be imposed,” and then in the latter separate proceeding the court gave “such additional written instructions as may be necessary[.]” Article 37.07, § 3(b); formerly 2.(c). While it is true that the “verdict” is not “complete until the jury has rendered a verdict both on the guilt or innocence of the defendant and the amount of punishment,” id., § 3(c); formerly 2.(d), the fact remains that the “general verdict” pertains only to guilt or innocence, whereas on punishment there is a separate “specific verdict” as to particular matters, viz: term of confinement, amount of fine and, when at issue, enhancement convictions, use of a deadly weapon, recommendation on probation, et cetera.
Furthermore, since 1973, the punishment procedure in capital murder cases is provided exclusively by Article 37.071 rather than by Article 37.07, although the finding of guilt is still returned in a separate “general verdict.” See Article 37.07, § 2(b), and compare with Article 37.071, § 2, et seq.
The court of appeals read two earlier pre-Penry opinions of this Court to convey the idea that the three special issues constitute “an exception to the statutory prohibition of special issues.” McPherson, supra, at 83. Both were addressing denials of requests for special findings at the guilt •phrase of trial; this Court alluded to Article 37.071, relative to Article 37.07, § 1(a), and although the Court may have overstated the effect of “the statutory prohibition of special issues” in the latter, in fact the Court applied that “prohibition” solely to special issues sought at the guilt stage. Harris v. State, 790 S.W.2d 568, at 579 *852(Tex.Cr.App.1989);5 Stewart v. State, 686 S.W.2d 118, at 124 (Tex.Cr.App.1984).6 Thus in a capital case those decisions do not preclude using an appropriate special issue as a vehicle to inform the jury of its prerogative to consider and give effect to mitigating evidence in making a constitutional determination whether the defendant shall be sentenced to death or life imprisonment. Article 37.071(a).
In the instant cause the concern of the trial court was to provide the jury with a constitutional “vehicle” under Penry for expressing its “reasoned moral response” to mitigating evidence through “informing the jury that it could consider and give effect to the mitigating evidence ... by declining to impose the death penalty.” Id., 492 U.S. at 328, 109 S.Ct., at 2952, 106 L.Ed.2d, at 284. That the judge chose first to instruct the jury as to the law of mitigation under Penry, and then to frame a fourth special issue designed to elicit its “reasoned moral response” is no more foreclosed by Article 37.07, § 1(a), than are the three special issues devised by the Legislature to narrow jury discretion to impose the death penalty.
The court of appeals nonetheless believed that because the Penry court wrote in terms of an “instruction” serving those constitutional purposes, “a special issue is not constitutionally necessary, and thus, is not an exception to the statutory prohibition of art. 37.07.” McPherson, supra, at 83. But not only had Penry stated his claims in those terms in the trial court and in this Court, in his federal habeas petition and in the Court of Appeals for the Fifth Circuit, so also the Supreme Court granted certiorari in substantially the same terms. Penry, 492 U.S. at 310, 311-313, 109 S.Ct., at 2942, 2943-2944, 106 L.Ed.2d, at 272, 273-274. By addressing his claims in those terms, therefore, the Supreme Court had no reason to deal with propriety of a special issue alone or in conjunction with an instruction; that it remained silent on that point does not mean that it ruled out a special issue. Indeed, ordinarily the Supreme Court leaves such matters as procedural “vehicles” to the States, just was done in State v. Wagner, 309 Or. 5, 786 *853P.2d 93 (1990) (opting for fourth special issue), cert. denied 498 U.S. 879, 111 S.Ct. 212, 112 L.Ed.2d 171 (1990), on remand from Wagner v. Oregon, 492 U.S. 914, 109 S.Ct. 3235, 106 L.Ed.2d 583 (1989) (judgment in 305 Or. 115, 752 P.2d 1136 vacated and remanded for further consideration in light of Penry).
After Penry, failure of a trial court to inform the jury that it could consider and give effect to mitigating circumstances violates rights of defendant under the Eighth Amendment and renders our capital punishment scheme mandated by former Article 37.071 unconstitutional. Under the Supremacy Clause, the Constitution “shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." Article VI, second paragraph.
The judge of the court below manifested his understanding and appreciation of the situation when he caused the court to give the instruction and to submit the fourth special issue to the jury. And, as the majority opinion at 847-848 reflects, the trial judge also understood and appreciated the dilemma thus created by affirmative answers to statutory issues and the negative answer to the constitutional issue: on one horn, the statutory mandate that the trial court sentence appellant to death because the jury returned an affirmative finding on each of the only three legislatively prescribed special issues; on the other horn, the absence of an explicit statutory mandate to implement the implicit constitutional dictate that bars the State of Texas from executing appellant because the jury returned a negative finding on special issue four, i.e., that the death penalty is not a reasoned moral response to mitigating evidence favoring appellant.
As it turned out on motion to reform the judgment, the trial judge opted for the constitutional dictate and, accordingly, reformed the sentence of death to life imprisonment. In that he and we are by our oaths constitutionally bound to uphold the Eighth Amendment, the judge rightly caused the trial court to render the only judgment and impose the only sentence sanctioned by the Eighth Amendment, just as rightly we now affirm its reformation. Compliance with the Supremacy Clause may not be excused by the omission of the Legislature specifically to authorize the trial judge to instruct the jury according to Penry and to submit a special issue to elicit its “reasoned moral response” to mitigating evidence. When the choice is between life and death, the Eighth and Fourteenth Amendments command the States to void the risk that the death penalty will be imposed when mitigating factors extant may call for life. Penry, 492 U.S. at 328, 109 S.Ct., at 2952, 106 L.Ed.2d, at 284.
With those comments and observations, I join the opinion of the Court.
. All emphasis here and throughout this opinion is mine unless otherwise indicated.
. The lesson of Penry is its conclusion in Part III, viz:
"In this case, in the absence of instructions informing the jury that it could consider and give effect to the mitigating evidence ... 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. Our reasoning in Lockett [v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978) ] and Eddings [v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982) ] thus compels a remand for resen-tencing so that we do not ‘risk that the death penalty will be imposed in spite of factors which may call for a less severe penalty.’ *851[citations omitted]. “When the choice is between life and death, that risk is unacceptable and incompatible with the commands of the Eighth and Fourteenth Amendments.’ [citations omitted.]"
Id., 492 U.S. at 328, 109 S.Ct., at 2952, 106 L.Ed.2d, at 284.
. Writing for the Court, Judge Morrison expressed an insightful understanding of basic principles to inform and guide participants in the judicial component of our criminal justice system, viz;
“Some discretion is inherent and desirable in any system of justice, from arrest to final judgment.... To eliminate all discretion on the part of the jury would be to risk elimination of that valuable element which permits individualization based on consideration of all extenuating circumstances and would eliminate the element of mercy, one of the fundamental traditions of our system of criminal jurisprudence.”
Id., at 940.
. Instead of the new trial ordered by the Amarillo Court of Appeals, however, the State prays here that we reverse the judgment of that court insofar as it remands the cause for a new trial, and then "reform the sentence of the trial court to reinstate the sentence of death[.]" State’s Brief at 8, 13.
. In Harris v. State, supra, the late Judge Duncan wrote for the Court about submitting a special issue inquiring whether the jury found a witness to be an accomplice, viz:
"... Appellant’s claim that the court’s ruling was in error is without merit. Not only did the accomplice witness instruction properly and adequately protect appellant, but Article 37.07, § 1(a), V.A.C.C.P., provides that ‘[T]he verdict in every criminal action shall be general.' Thus, as was stated in Stewart v. State, 686 S.W.2d 118, 124 (Tex.Cr.App.1984), ‘[o]ther than the provisions in Article 37.071, V.A.C.C.P., Texas jurisprudence has no authority allowing the submission of special issues to a jury in a criminal case.’ This is not to say that a special issue could never be constitutionally necessary despite the statutory prohibition of Article 37.07, § 1(a), supra. In this case, however, the trial court was correct in denying appellant’s request.”
. In Stewart v. State, supra, appellant contended that under Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982) he was entitled to a special issue inquiring whether the jury found he personally killed the deceased or that he intended to kill or attempted to kill her. After pointing out for the Court that Enmund does not require such a finding, then Judge McCormick added:
“Furthermore, Article 37.07, Section 1(a) provides that ‘[Tjhe verdict in every criminal case must be general.’ Other than the provisions in Article 37.071, V.A.C.C.P., Texas jurisprudence has no authority allowing the submission of special issues to a jury in a criminal case. The trial judge acted properly in denying appellant’s request.”
Id., at 124.
Also raised in Stewart was the constitutionality of Article 37.071, in that "it contains no provisions for directing and instructing the jury's consideration of mitigating circumstances at the punishment phase of the trial.” Id., at 121. The majority disposed of that contention thus:
"Because the Texas statutes do not preclude consideration of mitigating circumstances and because appellant has not proven the jury did not consider the mitigating circumstances in answering the first special issue, we overrule his fifth ground of error.”
Id., at 122. But see dissenting opinion at 126 (jury must not be precluded “from according independent weight to factors that are mitigating but perhaps irrelevant to the probability issue of future dangerous conduct;” majority has "repeatedly denied the utility, much less necessity, of informing the jury that they may so consider that evidence.” [emphasis in original] ). Penry, of course, has since resolved that controversy. See post, at 852-853.