dissenting.
I respectfully dissent to the majority’s refusal to file and set this cause for submission on applicant’s Penry claim. See, Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989).
I.
The extensive hearing testimony regarding applicant’s severe childhood abuse, his schizophrenia and his chronic brain syndrome are well chronicled in Judge Clinton’s dissenting opinion, and need not be repeated herein. This mitigating evidence *309is virtually indistinguishable from the mitigating evidence presented in Penry.
In Penry, the Supreme Court held that this type of mitigating evidence fell beyond the scope of the special issues contained in the former Tex.Code Crim.Proc.Ann. art. 37.071. With respect to the first special issue on deliberateness, the Court held “[i]n the absence of jury instructions defining ‘deliberately’ in a way that would clearly direct the jury to consider fully Penry’s mitigating evidence as it bears on his personal culpability, we cannot be sure that the jury was able to give effect to the mitigating evidence of Penry's mental retardation and history of abuse in answering the first special issue. Without such a special instruction, a juror who believed that Penry’s retardation and background diminished his moral culpability and made imposition of the death penalty unwarranted would be unable to give effect to that conclusion if the juror also believed that Penry committed the crime ‘deliberately.’ ” Penry, 492 U.S. at 323, 109 S.Ct. at 2949.
In analyzing the second special issue on future dangerousness, the Supreme Court noted that Penry’s mental deficiencies were relevant to the issue, but further recognized that such evidence was relevant only as an aggravating factor and not as a mitigating factor. Characterizing such evidence as a “two-edged sword” — diminishing his blameworthiness for his crime even as it indicates that there is a probability that he will be dangerous in the future, the Court concluded that the second special issue did not provide a vehicle for the jury to give mitigating effect to Penry’s evidence of mental retardation and childhood abuse. Id., 492 U.S. at 323, 109 S.Ct. at 2949.
The Supreme Court also held that the third special issue, regarding provocation, failed to provide a manner in which a sen-tencer could express a determination that Penry lacked the moral culpability to be sentenced to death. Id., 492 U.S. at 324, 109 S.Ct. at 2950. The Court noted that in order to ensure reliability that a sentence of death is appropriate punishment, the sentencer must be able to consider and give effect to any mitigating evidence relevant to a defendant’s background, character, or circumstances of the crime. Id., 492 U.S. at 328, 109 S.Ct. at 2952. The Court concluded that in Penry’s case, “in the absence of instructions informing the jury that it could consider and give effect to the mitigating evidence of Penry’s mental retardation and abused background 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.” Id.
The reasoning employed in Penry is equally applicable in the case at bar, for the mitigating evidence in both cases are substantively similar. Simply put, the three special issues of former Tex.Code Crim.Proc.Ann. art. 37.071 failed to provide the jury with a device with which to give mitigating effect to applicant’s mitigating evidence.
II.
Counsel’s failure to introduce mitigating evidence at trial should not now bar this Court from considering the mitigating evidence developed in his post-conviction application for writ of habeas corpus. This Court should expressly disavow any allusion to the contrary. Goodman v. State, 816 S.W.2d 383, 387 (Tex.Cr.App.1991) (Baird, Overstreet and Maloney, JJ., disavowing the “dicta” in footnote six which suggests that this Court will not consider mitigating evidence presented for the first time in an application for writ of habeas corpus). See also Young v. State, 826 S.W.2d 141, 144 n. 5, (Tex.Cr.App.1991) (This Court generally regards footnotes as dicta).
Indeed, a majority of this Court has excused counsel’s failure to make Penry type objections at trial in cases tried before the Penry decision pursuant to the doctrine of novelty. Black v. State, 816 S.W.2d 350 (Tex.Cr.App.1991). If, in pre-Penry cases, counsel is excused from making a Penry objection, it is an anomaly to require counsel to have presented Penry type evidence at trial, either by way of a proffer or as *310evidence before the jury. Simply put, these twin conclusions are inconsistent.
If a majority of this Court persists in the conclusion that counsel had to present Pen-ry evidence at trial even though such evidence could not have been given effect under the statute, then the majority must also conclude that counsel was ineffective for failing to do so. This is the conclusion reached by Judge Clinton in his dissenting opinion to this cause. At 305.
Either under the merits of applicant’s Penry claim, as I would urge, or under applicant’s claim of ineffective assistance, as Judge Clinton urges, this Court should review the merits of applicant’s Penry claim, as adduced at the post-conviction hearing. Because the majority refuses to do so, I respectfully dissent.