dissenting.
The nexus requirement which the majority assigns to Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989) has no basis in Eighth Amendment jurisprudence. Moreover, there is sufficient evidence within the record to demonstrate appellant was entitled to a vehicle allowing the jury to give effect to his mitigating evidence.
I.
I find no basis in Penry, or in its predecessors, for requiring a nexus between a defendant’s mitigating evidence and the charged offense. This Court first suggested a nexus requirement in Lackey v. State, 819 S.W.2d 111, 137 n. 10 (Tex.Cr.App.1991) (Op. on reh’g). Writing for the majority, Judge Campbell assigned the nexus requirement to Justice O’Connor’s opinion in California v. Brown, 479 U.S. 538, 544, 107 S.Ct. 837, 841, 93 L.Ed.2d 934 (1987) (O’Connor, J., concurring). Lackey v. State, 819 S.W.2d at 137 n. 10. Therefore, a review of the relevant Federal and State decisional authority is necessary.
A.
The Texas capital sentencing scheme was first addressed by the Supreme Court in Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976). The Court held “the constitutionality of the Texas procedures turns on whether the enumerated questions allow consideration of particularized mitigating factors.” Jurek, 428 U.S. at 272, 96 S.Ct. at 2956.1 Noting that our capital sentencing scheme did not specifically address “mitigating factors,” the Supreme Court acknowledged our assurance that we *953would interpret the “second question so as to allow a defendant to bring to the jury’s attention whatever mitigating circumstances he may be able to show”. Id. The Court held our capital sentencing scheme passed constitutional muster because “Texas has ensured that the sentencing jury will have adequate guidance to enable it to perform its sentencing function.” Id., 428 U.S. at 276, 96 S.Ct. at 2958.
In Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), the Supreme Court considered the constitutionality of a statute which limited the consideration of mitigating evidence.2 The Court held:
[W]e conclude that the Eighth and Fourteenth Amendments require that the sentencer, in all but the rarest kind of capital case [footnote omitted], not be precluded from considering, as a mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death, [footnote omitted].
Lockett, 438 U.S. at 604, 98 S.Ct. at 2964-2965 (emphasis in original). The Court further noted “a statute that prevents the sentencer in all capital cases from giving independent mitigating weight to aspects of the defendant’s character and record and to circumstances of the offense proffered in mitigation creates the risk that the death penalty will be imposed in spite of factors which may call for a less severe penalty.” Id., 438 U.S. at 605, 98 S.Ct. at 2965.
The Oklahoma Court of Criminal Appeals adopted a view that mitigating evidence was not relevant unless it tended to provide a legal excuse to criminal responsibility. The court held:
There is no doubt that the petitioner has a personality disorder. But all the evidence tends to show that he knew the difference between right and wrong at the time he pulled the trigger, and that is the test of criminal responsibility in this State, [citation omitted]. For the same reason, the petitioner’s family history is useful in explaining why he behaved the way he did, but it does not excuse his behavior.
Eddings v. State, 616 P.2d 1159, 1170 (Okl. Cr.1980). The United States Supreme Court reversed, holding, “[j]ust as the State may not by statute preclude the sen-tencer from considering any mitigating factor, neither may the sentencer refuse to consider, as a matter of law, any relevant mitigating evidence.” Eddings v. Oklahoma, 455 U.S. 104, 114, 102 S.Ct. 869, 876-877, 71 L.Ed.2d 1 (1982) (emphasis in original).
In California v. Brown, 479 U.S. 538, 107 S.Ct. 837, 93 L.Ed.2d 934 (1987), the defendant was convicted of forcible rape and murder. At the punishment stage, the trial judge instructed the jury to consider and weigh all aggravating and mitigating circumstances but cautioned that the jury “must not be swayed by mere sentiment, conjecture, sympathy, passion, prejudice, public opinion or public feeling” when as*954sessing punishment.3 Brown, 479 U.S. at 539, 107 S.Ct. at 838. Brown was sentenced to death. The California Supreme Court reversed, holding the instruction to disregard any “sympathy factor” raised by the evidence violated the Eighth Amendment. People v. Brown, 40 Cal.3d 512, 220 Cal.Rptr. 637, 649, 709 P.2d 440, 452 (1985). The United States Supreme Court reversed, holding the instruction did not prevent the jury from considering the mitigating evidence but merely warned the jury against basing its verdict entirely on sympathy. Brown, 479 U.S. at 542-543, 107 S.Ct. at 840. In her concurring opinion, Justice O’Connor stated:
[Ejvidence about the defendant’s background and character is relevant because of the belief, long held by this society, that defendants who commit criminal acts that are attributable to a disadvantaged background, or to emotional and mental problems, may be less culpable than defendants who have no such excuse. This emphasis has long been reflected in Anglo-American jurisprudence. As this Court observed in Eddings, the common law has struggled with the problem of developing a capital punishment system that is “sensible to the uniqueness of the individual.” [citation omitted]. Lockett and Eddings reflect the belief that punishment should be directly related to the personal culpability of the criminal defendant. Thus the sentence imposed at the penalty stage should reflect a reasoned moral response to the defendant’s background, character, and crime rather than mere sympathy or emotion.
Because the individualized assessment of the appropriateness of the death penalty is a moral inquiry into the culpability of the defendant, and not an emotional response to the mitigating evidence, I agree with the Court that an instruction informing the jury that they “must not be swayed by mere sentiment, conjecture, passion, prejudice, public opinion or public feeling” does not by itself violate the Eighth and Fourteenth Amendments to the United States Constitution. At the same time, the jury instructions— taken as a whole — must clearly inform the jury that they are to consider any relevant mitigating evidence about a defendant’s background and character, or about the circumstances of the crime.
California v. Brown, 479 U.S. at 545, 107 S.Ct. at 841 (O’Connor, J., concurring).
In Franklin v. Lynaugh, 487 U.S. 164, 108 S.Ct. 2320, 101 L.Ed.2d 155 (1988), the defendant’s sole mitigating evidence consisted of a stipulation that his disciplinary record in prison, both before and after the charged offense, was without incident. Franklin requested the jury be instructed to consider any evidence they felt mitigated against the death penalty and that the jury be entitled to return a negative answer to either of the statutory punishment issues in order to avoid the imposition of a sentence of death. The trial judge refused the requested instructions and charged the jury with the first and second punishment issues in Tex.Code Crim.Proc.Ann. art. 37.-071(b),4 and instructed the jury to consider all evidence presented at the guilt/innocence and punishment phases of the trial. Franklin v. Lynaugh, 487 U.S. at 168-170, 108 S.Ct. at 2324-2325. We affirmed. Franklin v. State, 693 S.W.2d 420 (Tex.Cr.App.1985).
*955Before the Supreme Court, Franklin contended the Eighth Amendment was violated because our capital sentencing scheme prevented the jury’s consideration of his mitigating evidence. The Supreme Court rejected Franklin’s argument, holding the mitigating evidence of good behavior could be adequately considered within the second statutory punishment issue. Franklin v. Lynaugh, 487 U.S. at 177, 108 S.Ct. at 2329.
In a concurring opinion, Justice O’Connor expressed her concern for the jury’s inability to “give effect” to mitigating evidence:
Under the sentencing procedure followed in this case the jury could express its views about the appropriate punishment only by answering the special verdict questions regarding the deliberateness of the murder and the defendant’s future dangerousness. To the extent that the mitigating evidence introduced by petitioner was relevant to one of the special verdict questions, the jury was free to give effect to that evidence by returning a negative answer to that question. If, however, petitioner had introduced mitigating evidence about his background or character or the circumstances of the crime that was not relevant to the special verdict questions, or that had relevance to the defendant’s moral culpability beyond the scope of the special verdict questions, the jury instructions would have provided the jury with no vehicle for expressing its “reasoned moral response” to that evidence. If this were such a case, then we would have to decide whether the jury’s inability to give effect to that evidence amounted to an Eighth Amendment violation. In my view, however, this is not such a case. The only mitigating evidence introduced by petitioner was the stipulation that he had no record of disciplinary violations while in prison. It is undisputed that the jury was free to give mitigating effect to this evidence in answering the special verdict question regarding future dangerousness. While it is true that the jury was prevented from giving mitigating effect to the stipulation to the extent that it demonstrated positive character traits other than the ability to exist in prison without endangering jailers or fellow inmates, that limitation has no practical or constitutional significance in my view because the stipulation had no relevance to any other aspect of petitioner’s character. Nothing in Lockett or Eddings requires that the sentencing authority be permitted to give effect to evidence beyond the extent to which it is relevant to the defendant’s character or background or the circumstances of the offense, [citation omitted].
Franklin v. Lynaugh, 487 U.S. at 186, 108 S.Ct. at 2333 (O’Connor, J., concurring).
The following term, in Penry, the Supreme Court was again presented with the issue of whether our capital sentencing scheme violated the Eighth Amendment. At his trial, Penry presented mitigating evidence that he was mentally retarded and he suffered from organic brain damage resulting in poor impulse control and the inability to learn from experience. Penry further presented evidence that he had been seriously abused as a child. In the punishment charge, the trial judge submitted the three statutory punishment issues required under art. 37.071(b), and refused Penry’s request for an additional instruction authorizing a grant of mercy based upon Penry’s mitigating evidence. We affirmed. Penry v. State, 691 S.W.2d 636 (Tex.Cr.App.1985).
In Penry, Justice O’Connor, incorporating her concurrences from Brown, and Franklin, and speaking for a majority, reversed, holding that the Texas capital sentencing scheme was unconstitutional as applied because the jury was not provided a vehicle to give effect to Penry’s mitigating evidence. Penry, 492 U.S. at 319-323, 109 S.Ct. at 2947-2949. The Court emphasized at the outset:
Underlying Lockett and Eddings is the principle that punishment should be di*956rectly related to the personal culpability of the criminal defendant. If the sen-tencer is to make an individualized assessment of the appropriateness of the death penalty, “evidence about the defendant’s background and character is relevant because of the belief, long held by this society, that defendants who commit criminal acts that are attributable to a disadvantaged background, or to emotional and mental problems, may be less culpable than defendants who have no such excuse.”
Penry v. Lynaugh, 492 U.S. at 319, 109 S.Ct. at 2947.
The Court found Penry’s mitigating evidence of mental retardation, organic brain damage and childhood abuse was “beyond the scope of the special issues” and could not be given effect in context of the statutory punishment issues without “appropriate jury instructions” that provided the jury a vehicle to “consider and give effect to mitigating evidence relevant to a defendant’s character or record or the circumstances of the offense.” Penry, 492 U.S. at 317, 109 S.Ct. at 2946 (quoting Lockett, 438 U.S. at 607, 98 S.Ct. at 2966). The Court explained that while the jury could have found that appellant’s evidence militated against the imposition of the death penalty, the jury was constrained to answer each of the statutory punishment issues in the affirmative. Penry, 492 U.S. at 320-325, 109 S.Ct. at 2448-2450. The Supreme Court emphasized:
In order to ensure “reliability in the determination that death is the appropriate punishment in a specific case,” [citation omitted] the jury must be able to consider and give effect to any mitigating evidence relevant to a defendant’s background, character, or the circumstances of the crime.
Id., 492 U.S. at 328, 109 S.Ct. at 2951 (quoting Woodson, 428 U.S. at 305, 96 S.Ct. at 2991). The Texas capital sentencing scheme was unconstitutional as applied because, while Penry was able to present mitigating evidence, the jury was effectively precluded from giving effect to that mitigating evidence. Id., 492 U.S. at 329, 109 S.Ct. at 2952.
B.
This Court first implied a nexus requirement in Gribble v. State, 808 S.W.2d 65 (Tex.Cr.App.1990). In Gribble, the defendant introduced evidence of an impoverished and
insecure childhood in which his mother was institutionalized for a severe mental illness and his father imprisoned for burglary ... During the first several years of his life, [Gribble] and the other children were shuffled among relatives, never living in one place for very long.
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After his parents were released from their respective confinements, [Gribble] lived for a time with his mother. She had since divorced his father and remarried, living with her new husband and the children in a shack without running water somewhere in the mountains of Tennessee. Within a few months, appellant’s step-father disappeared, leaving his mother pregnant and without food for the two youngest children. Unable to care for her family, appellant’s mother spent much of her time in bars, often bringing strange men home at night.
Gribble, 808 S.W.2d at 75. There was evidence that Gribble’s mother sexually abused him as a child. Id., 808 S.W.2d at 75. Gribble further introduced expert psychiatric testimony that Gribble’s early experiences
provided a substantial explanation for the appellant’s subsequent history of violence, and how the contrast of his violent behavior with his positive personality traits were indicative of severe mental illness, depression, and psychotic illusions of the kind experienced by his mother. [The psychoanalyst] concluded that [Gribble] developed a delusive fear of sexual domination, and that throughout his adult life this fear intermittently erupted into acts of violence, which *957[Gribble] forced upon women that, in his fantasies, he feared they might force upon him. Invariably his victims were women with whom he was acquainted on a casual basis and, following his sexual assaults upon them, he customarily acted with incongruous, even bizarre, familiarity, more characteristic of an intimate encounter than a brutal attack.
Id., 808 S.W.2d at 75. The trial judge refused Gribble’s requested jury instructions “which would collectively [authorize] the jury, irrespective of its answers to the statutory punishment questions, to decide that he should not be put to death.” Id., 808 S.W.2d at 75. We reversed, holding that “all these circumstances [of appellant’s childhood were] widely regarded, according to some contemporary social standards, as redeeming personality traits or factors which tend to ameliorate fault.” Gribble, 808 S.W.2d at 76 [citation omitted]. Therefore, we concluded that Gribble was denied a vehicle by which the jury could “consider and give effect to” his mitigating evidence.5
In Lackey v. State, 819 S.W.2d 111 (Tex.Cr.App.1991) (Op. on reh’g), the defendant presented evidence of his “disadvantaged background and emotional or mental problems.” Lackey, 819 S.W.2d at 129.6 Lackey requested, and the trial judge refused, an instruction on mitigating evidence in the punishment charge. We distinguished Lackey’s mitigating evidence from that of Penry, as follows:
Although appellant’s background and character evidence is relevant to the concerns of special issue two ... the mitigating evidence in the instant case is otherwise irrelevant to an individualized assessment of the deathworthiness of appellant. Appellant’s background evidence [did] not tend to excuse or explain his criminal act as did the evidence presented by Penry ... Furthermore, there [was] little or no connection between his background and character evidence and the facts and circumstances of his criminal acts in the instant case.
Lackey, 819 S.W.2d at 134.
For the first time, the court suggested a nexus requirement. In footnote 10, Judge Campbell explained:
Justice O’Connor seems to further require some nexus between the mitigating evidence and culpability for the crime. See California v. Brown, 479 U.S. 538, 107 S.Ct. 837, 841, 93 L.Ed.2d 934 (1987) (concurring opinion). If moral or personal culpability is reduced only when the criminal act (murder) is “attributable to a disadvantaged background, or to emotional and mental problems,” then mitigating evidence relevant to the defendant’s character, background, mental condition, or circumstances of the offense must also be connected with or somehow help to explain or excuse the commission of the offense by this defendant. See e.g., Gribble v. State, 808 S.W.2d 65 (Tex.Cr.App.1990) (Evidence of either actual or imagined sexual abuse of appellant tended to ameliorate fault for appellant’s intermittent acts of violence against women. Appellant was thought of as stable, hard working and polite, but his sexual fantasies combined with drugs *958or alcohol developed into true psychosis resulting in violent behavior.).
Lackey, 819 S.W.2d at 135 n. 10. However, Judge Campbell, acknowledged that a nexus requirement was in conflict with the Supreme Court’s holdings 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). Judge Campbell stated:
We recognize, however, that a nexus requirement would seem to be in conflict with Lockett v. Ohio [citation omitted], and Eddings v. Oklahoma [citation omitted].
[The] Eighth and Fourteenth Amendments require that the sentencer, in all but the rarest kind of capital case, not be precluded from considering, as a mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.
* * * * * *
[A] statute that prevents the sentencer in all capital cases from giving independent mitigating weight to aspects of the defendant’s character and record and to circumstances of the offense proffered in mitigation creates the risk that the death penalty will be imposed in spite of factors which may call for a less severe penalty. Lockett, 438 U.S. at 605, 98 S.Ct. at 2965; see Hitchcock v. Dugger, 481 U.S. 393, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987).
In Eddings, supra, the Court found that the sentencer may not be precluded, as a matter of law, from considering relevant mitigating evidence.
Lackey, 819 S.W.2d at 135, n. 10.
In Richardson v. State, 1991 WL 99949 (Tex.Cr.App., No. 68,934, delivered June 12, 1991), a plurality held Richardson was not entitled to a “Penny instruction” because he failed to establish a nexus between the his alleged abusive background and his mental and emotional impairment as an adult. The plurality stated:
[Appellant] fail[ed] to establish any connection between alleged childhood abuse and its subsequent effect on appellant. There is simply no Penny evidence presented by the appellant’s nexus argument. This Court will not engage in analysis of a theory that is illogical on its face and not supported by the record.
Richardson v. State. Consequently, appellant’s request for a vehicle to allow the jury to consider and give effect to his mitigating evidence was rejected.7
In Goss v. State, 826 S.W.2d 162 (Tex.Cr.App.1992), a plurality of the Court restated the nexus requirement:
[M]itigating evidence is relevant to the jury’s individualized assessment of the propriety of death if there is a nexus *959between the mitigating evidence and the circumstances surrounding the crime that might, from the viewpoint of society, reduce the defendant’s “blameworthiness.” In other words, the evidence must tend to excuse or explain the criminal act, so as to make that particular defendant not deserving of death.
Id., 826 S.W.2d at 165 (footnote omitted). Therefore, as the plurality of the Court interpreted the Supreme Court’s opinion in Penry, a defendant’s mitigating evidence is relevant to a jury’s consideration of a defendant’s “deathworthiness” only if there is a nexus between the mitigating evidence and the charged offense.
Reviewing Goss’ mitigating evidence of good character, a troubled childhood, and intoxication at time of the offense, the plurality held the mitigating evidence introduced did not rise to the level of Penry-type evidence because:
No testimony was offered by Appellant as to any mental disorder or physiological damage actually suffered by Appellant that would help explain why he “was less morally culpable than defendants who have no such excuse” ... [citation omitted] ... None of the evidence presented by appellant’s witnesses sought to explain the connection between the apparently isolated problems of his childhood and the commission of the crime.
Goss, 826 S.W.2d at 166 [citation omitted]. Therefore, the plurality determined that no vehicle was required in order for the jury to consider and give effect to the mitigating evidence. Id.
For the first time, in Nobles v. State, 843 S.W.2d 503 (Tex.Cr.App.1992), a majority of this Court utilized the nexus requirement to dispose of the defendant’s “Pen-ry” claim:
[W]here the evidence presented by defendant’s witnesses failed to show a connection between the events they described and the commission of the crime, then that “evidence is not relevant, beyond the scope of the special issues, to the jury’s individualized assessment of Appellant’s moral culpability for the crime.” Goss v. State [826 S.W.2d at 162],
Applying the principle espoused in Goss, the evidence presented in the cause sub judice is likewise not relevant beyond the scope of the special issues. Evidence of appellant’s unfortunate childhood was not, without some testimony indicating a nexus between his childhood circumstances and the commission of the crime, helpful to the jury’s consideration of the special issues or indicative of a lessened moral blameworthiness.
Nobles v. State, 843 S.W.2d at 506 (emphasis in original).
C.
A majority of this Court has elected to limit the application of Penry to virtually identical scenarios. The vehicle used by the majority to accomplish this narrow application is the requirement of a nexus between the mitigating evidence and the charged offense, resulting in an interpretation of Penry clearly inconsistent with Eighth Amendment jurisprudence. See Lackey, 819 S.W.2d at 135 n. 10 (“We recognize ... that a nexus requirement would seem to be in conflict with Lockett v. Ohio [citation omitted] and Eddings v. Oklahoma [citation omitted].”).
The constitutionality of the Tex.Code Crim.Proc.Ann. art. 37.071 rests on the breadth with which the statute permits a capital jury to consider and give effect to mitigating evidence. In Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976), the Supreme Court upheld our capital sentencing scheme based upon our assurances that “the sentencing jury [would] have adequate guidance to enable it to perform its sentencing function.” Jurek, 428 U.S. at 276, 96 S.Ct. at 2958. With today’s opinion, the majority once again makes it clear that the assurances we gave the Supreme Court in Jurek are forgotten. See, Ex parte Baldree, 810 S.W.2d 213, 220 (Tex.Crim.App.1991) (Baird, J., dissenting).
*960The Penry Court did not limit the application of the Eighth Amendment to only mitigating evidence which is connected with the charged offense. By now requiring such a nexus we thwart the intent of Penry because we preclude the jury from giving effect to aspects of a defendant’s character and background which, though relevant, may not be connected to the charged offense. The jury, hearing of appellant’s manic-depression, might have believed that appellant’s mental illness militated against the sentence of death even without a nexus between the mitigating evidence and the charged offense.8 Nonetheless, absent a vehicle, the jury was unable to express its reasoned moral response to that evidence.
In my view, the nexus requirement restricts the Eighth Amendment and violates the explicit holding of Penry that a jury must be able to “consider and give effect to any mitigating evidence relevant to a defendant’s background, character, or the circumstances of the crime.” Penry, 492 U.S. at 828, 109 S.Ct. at 2951 (emphasis in original). Appellant was entitled to a vehicle permitting the jury to consider and give effect to appellant’s mental illness because such mitigating evidence was “beyond the scope” of the punishment issues provided by art. 37.071 and had “practical and constitutional significance” to appellant’s moral culpability. Without such a vehicle, our capital sentencing scheme violated the Eighth Amendment and was unconstitutionally applied to appellant.
II.
Assuming, arguendo, that a nexus is required, I believe the majority erroneously distinguishes appellant’s mitigating evidence from that in Penry.
In Goss, this Court stated:
mitigating evidence is relevant to the jury’s individualized assessment of the propriety of death if there is a nexus between the mitigating evidence and the circumstances surrounding the crime that might, from the viewpoint of society, reduce the defendant’s ‘deathworthiness.’
Id., 826 S.W.2d at 165. Moreover, this Court ruled that Goss’ mitigating evidence was dissimilar to Penry because it failed to show “ ‘any mental disorder or physiological damage actually suffered by Appellant that would help explain why he was less morally culpable than defendants who have no such excuse’_” Goss, 826 S.W.2d at 166 (citation omitted). Therefore, as the majority interprets Penry, to warrant an instruction on the consideration of mitigating evidence outside the scope of the statutory issues, a defendant must demonstrate that: (1) he suffers from a mental disorder or physiological damage (Goss, 826 S.W.2d at 162, and, Gribble, 808 S.W.2d at 75-76); and, (2) a nexus exists between the mitigating evidence and the charged offense (Lackey, 819 S.W.2d at 134; and, Nobles, 843 S.W.2d at 506). Appellant has met both prongs.
The majority spends considerable effort discussing Dr. Schack’s diagnosis of appellant’s possible manic-depression yet fails to recognize the similarity between appellant’s mitigating evidence and that in Penry. Mines, op. pgs. 948, 951. Dr. Schack testified that appellant suffered from a mental illness, namely, manic-depression. Manic depression, also known as bipolar disorder, is classified by the American Psychiatric Association as a mental disorder. Diagnostic and Statistical Manual of Mental Disorders (3d ed. 1987) (BSM-III-R). The DSM-III-R describes the diagnostic criteria of a Severe Manic Episode of a bipolar disorder: “Almost continual supervision required in order to prevent physical harm to self or to others." Id., at 218.
Dr. Schack stated that individuals suffering from bipolar disorder have poor impulse control. Moreover, bipolar disorder is commonly believed by the psychiatric *961community to have a biological basis caused by chemical imbalances occurring in the brain. Dr. Schack testified:
We can now trace it almost to the same degree the brain goes into overdrive. We have biological tests that we can apply that are hard to come by, but you can actually see the brain of a manic depressive. While they are in a manic status, there is an unbelievable activity as compared with a normal person.
And this person will — will have episodes, relapses, so to speak. They will go on and get better and then they will have another manic episode again maybe years down the road.
Therefore, appellant’s mitigating evidence is comparable to that of Penry, and specifically, is evidence of a “mental disorder” which has a physiological (biological) basis. See, Goss v. State, 826 S.W.2d at 162.9
Dr. Schack’s testimony established a nexus between the appellant’s mental illness and the charged offense. Dr. Schack testified that appellant suffered from a bipolar disorder at the time of the charged offense and stated:
... [Manic-depression] is an illness that is characterized by — probably the best way to say it is that the brain kind of goes into overdrive. The thinking becomes irrational. The person starts to think irrational thoughts, becomes very impulsive. Can or may become violent. Can or may become rather dangerous.
As appellant suffered from the mental illness at the time of the charged offense, which could have caused him to become violent or dangerous, clearly a nexus has been demonstrated. See, Goss v. State, 826 S.W.2d at 166; Penry v. Lynaugh, 492 U.S. at 320, 109 S.Ct. at 2947; and, Lackey v. State, 819 S.W.2d at 134.
Our societal disapproval of punishing individuals who are incapable of controlling their behavior, or who are unable to appreciate the wrongfulness of their actions is deep and longstanding.10 See, Penry v. Lynaugh, 492 U.S. at 330-332, 109 S.Ct. at 2953-2954; Ford v. Wainwright, 477 U.S. 399, 406-410, 106 S.Ct. 2595, 2600-2602, 91 L.Ed.2d 335 (1986); Ex parte Jordan, 758 S.W.2d 250, 254 (Tex.Crim.App.1988); and, 4 W. Blackstone, Commentaries 234-25. *962Appellant's mitigating evidence of mental illness is precisely the type of mitigating evidence which demands an “individualized sentencing determination_” Penry, 492 U.S. at 315-316, 109 S.Ct. at 2945.
Finally, appellant’s mitigating evidence is comparable to the “two-edged sword” evidence in Penry. Appellant’s mitigating evidence falls beyond the scope of the second statutory punishment issue requiring a vehicle for the jury to give effect to the evidence. During trial, testimony by both Dr. Schack and Dr. Grigson indicated that bipolar disorder is cyclical and recurs if not properly treated. Untreated, appellant posed a continuing threat to himself or others. Thus, while the evidence tended to diminish appellant’s moral culpability for the offense, the cyclical nature of appellant’s mental disorder militated toward an affirmative finding of the statutory punishment issues in art. 37.071. Consequently, the jury was confronted with a situation in which they could have believed appellant’s culpability was diminished because he committed the offense as a result of his mental illness, and yet, they were constrained to answer the statutory punishment issues affirmatively. Compare, Penry, 492 U.S. at 322, 109 S.Ct. at 2949.
The majority refers to appellant’s jury argument concerning the mitigating evidence. Mines, op. pgs. 951-952. Argument of counsel cannot be a substitute for a vehicle to give effect to the mitigating evidence. Acknowledging that Penry argued to the jury that his mitigating evidence supported a negative finding to the statutory punishment issues, the Supreme Court then held:
In order to ensure ‘reliability in the determination that death is the appropriate punishment in a specific case,’ the jury must be able to consider and give effect to any mitigating evidence relevant to a defendant’s background, character, or the circumstances of the crime.
Penry, 492 U.S. at 318, 109 S.Ct. at 2951 (citations omitted). Furthermore, the majority states:
This case was a classic example of “a battle of the experts” and was resolved by the jury’s credibility determinations regarding those experts in conjunction with the other evidence presented at trial and each juror’s own observations during trial.
Mines, op. pg. 952. Merely allowing appellant an opportunity to present mitigating evidence does not alleviate the error stemming from the jury’s lack of a vehicle to give effect to such evidence. Neither jury argument or the ability to introduce of mitigating evidence substitute for a vehicle allowing an “individualized assessment” of the mitigating evidence.
Finally, the majority attempts to distinguish appellant’s mitigating evidence from that presented in Penry.
Appellant, like Penry, was afforded a competency hearing prior to trial on the merits, and also pled not guilty by reason of insanity. As in Penry, the jury rejected both claims of incompetency and insanity. The similarities, however, end there as appellant’s “mitigating” evidence is qualitatively different than that presented in Penry, and therefore is not relevant, beyond the scope of the special issues, to the jury’s individualized assessment of appellant’s moral culpability for this offense.
Mines, op. pg. 951 (emphasis in original). However, the majority fails to state how or why the mitigating evidence presented in the instant case “is qualitatively different than that presented in Penry.” The majority’s inability to demonstrate any differences supports my argument that appellant’s mitigating evidence is not “qualitatively different” from Penry, but very similar.
Therefore, I believe appellant was entitled to a vehicle for the jury to express its reasoned moral response to appellant’s mitigating evidence. Because art. 37.071 failed to provide such a vehicle, the Texas capital sentencing scheme operated in an unconstitutional manner as applied.
For these reasons, I respectfully dissent.
CLINTON and MALONEY, JJ., join this opinion.. The importance of the consideration of mitigating evidence was stressed in Woodson v. North Carolina, 428 U.S. 280, 304, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944 (1976), where the Court stated:
While the prevailing practice of individualizing sentencing determinations generally reflects simply enlightened policy rather than a constitutional imperativé, we believe that in capital cases the fundamental respect for humanity underlying the Eighth Amendment [citation omitted], requires consideration of the character and record of the individual offend*953er and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death.
. Ohio Rev.Code Ann. § 2929.04(B) (1975) provided:
Regardless of whether one or more of the aggravating circumstances listed in division (A) of this section is specified in the indictment and proved beyond a reasonable doubt, the death penalty for aggravated murder is precluded when, considering the nature and circumstances of the offenses and the history, character, and condition of the offender, one or more of the following is established by a prepondence [preponderance] of the evidence:
(1) The victim of the offense induced or facilitated it.
(2) It is unlikely that the offense would have been committed, but for the fact that the offender was under duress, coercion, or strong provocation.
(3) The offense was primarily the product of the offender’s psychosis or mental-deficiency, though such condition is insufficient to establish the defense of insanity.
. All emphasis is supplied by the author unless otherwise indicated.
. At the time of Franklin’s trial, Tex.Code Crim. Proc.Ann. art. 37.071(b) provided:
On conclusion of the presentation of the evidence, the court shall submit the following three issues to the jury:
(1)whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with reasonable expectation that the death of the deceased or another would result;
(2) whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society; and
(3) if raised by the evidence, whether the conduct of the defendant in killing the deceased was unreasonable in response to the provocation, if any, by the deceased.
. Our research reveals that á defendant has sustained a “Penry " claim before this Court in only six published cases: Gribble v. State, supra; Ramirez v. State, 815 S.W.2d 636 (Tex.Cr.App.1991); Ex parte Goodman, 816 S.W.2d 383 (Tex.Cr.App.1991); Ex parte McGee, 817 S.W.2d 77 (Tex.Cr.App.1991); Ex parte Williams, 833 S.W.2d 150 (Tex.Cr.App.1992); and, Richard v. State, 842 S.W.2d 279 (Tex.Cr.App.1992). With the exception of Gribble, the defendants in each of the other cases sustained their claim on the basis of tm extremely low IQ and/or mental retardation.
. The record revealed Lackey’s potentially relevant mitigating evidence to be: (1) a low level of intelligence, shown by extremely substandard IQ test scores and a very poor school record; (2) a turbulent childhood and a troubled relationship with his father; (3) a youthful age (twenty-three) at the time of the offense; (4) voluntary intoxication and "alcoholic black-out” at the time of the offense; and, (5) a history of "periodic drinking” resulting in the inability to control his drinking once initiated. Lackey, 819 S.W.2d at 129.
. Richardson further argued that his "significant worth" to society as an artist and a poet was mitigating. Evidence was presented attesting to Richardson’s artistic talents. The plurality held:
Rather than attempt to shoehorn appellant’s artistic and poetic abilities into the ambit of the second special issue, we choose to confront this issue directly and hold that the appellant’s ability to draw pictures and write poems in the context of this case has no mitigating value in the sense that it was relevant to the jury making a "reasoned moral response” in voting on the special issues nor do these abilities have any particular relevance to the appellant’s moral culpability outside the special issues. In this particular case, we think that appellant’s artistic talents do no more than strike an emotional chord that would cloud the jury’s deliberations in reaching a decision.
Richardson v. State, slip op. pgs. 6-7.
Several ministers testified concerning Richardson’s "religious devotion.” The plurality held:
The evidence of appellant's religious devotion is Franklin evidence and could be properly addressed by a jury answering issue number two. Appellant's jail house conversions demonstrate nothing more than his ability to adapt to a structured prison environment ... The jury had ample opportunity to give effect to any mitigating value of appellant’s religious zeal when they deliberated on the issue of future dangerousness, [citation omitted].
Richardson v. State, slip op. pg. 11.
. The majority opinion notes that appellant committed the offense three days after he was released from his civil commitment to Terrell State Hospital. Mines, op. pg. 948.
. During the punishment phase of the trial, the State also presented evidence concerning appellant’s mental illness. In the direct examination of Dr. James P. Grigson, the State proposed the following hypothetical:
[THE STATE] Dr. Grigson, assuming that you are considering a person who has been convicted of the offense of ... that he uses that hammer, also, to attack an eighty-year-old woman with at least eight blows to her head, which causes her death, who then takes property from that home.
And assume further that that person has been found to have antisocial personality. Do you have an opinion as to whether there is a probability that that person will commit continuing acts of violence that will constitute a threat to society?
[DR. GRIGSON] Yes, I do.
[THE STATE] And what is that opinion?
[DR. GRIGSON] Absolutely the person you described will commit future acts of violence and does represent a total threat to society.
The Diagnostic and Statistical Manual of Mental Disorders, (3d ed. 1987) (DSM-III-R) defines the mental disorder, Antisocial Personality Disorder, assumed by the State in their hypothetical, as:
The essential feature of this disorder is a pattern of irresponsible and antisocial behavior beginning in childhood or early adolescence and continuing into adulthood....
Lying, stealing, truancy, vandalism, initiating fights, running away from home, and physical cruelty are typical childhood signs. In adulthood the antisocial pattern continues, and may include failure to honor financial obligations, to function as a responsible parent or to plan ahead, and an inability to sustain consistent work behavior. These people fail to conform to social norms and repeatedly perform antisocial acts that are grounds for arrest....
People with Antisocial Personality Disorder tend to be irritable and aggressive and to get repeatedly into physical fights and assaults, including spouse- or child-beating ... Finally, they generally have no remorse about the effects of their behavior on others; they may even feel justified in having hurt or mistreated others. After age 30, the more flagrantly antisocial behavior may diminish, particularly sexual promiscuity, fighting, and criminality.
. Dr. Schack also testified that while suffering from his illness, appellant was unable to understand the wrongfulness of his conduct.