dissenting.
I respectfully dissent to the result reached by a majority of this honorable Court. The central issue presented in this cause is whether the Texas capital sentencing scheme, Tex.Code Crim.Proc.Ann. art. 37.071, operated in a manner consistent with the protections guaranteed by the Eighth and Fourteenth Amendments of the United States Constitution. The majority concludes:
“appellant was entitled to a vehicle for consideration and effectuation of his mitigating evidence. In the instant case, however, we find that special issue two provided the jury with an appropriate vehicle for evaluating and acting upon appellant’s mitigating evidence.”
Lackey, op. on rehearing at 115.
I believe appellant’s mitigating evidence of disadvantaged background and mental and emotional problems fell beyond the scope of the special issues. Therefore, art. 37.071 operated in an unconstitutional manner as applied to appellant by not providing the jury with a vehicle to express its reasoned moral response to appellant’s mitigating evidence that might serve as a basis *140for a sentence less than death. See also, Boggess v. State (Tex.Cr.App. No. 69,990, delivered this date) (Baird, J., dissenting); Ex parte Baldree, 810 S.W.2d 213 (Tex.Cr.App. delivered this date) (Baird, J., dissenting).
The reason for my belief stems from a careful reading of Franklin v. Lynaugh, 487 U.S. 164, 108 S.Ct. 2320, 101 L.Ed.2d 155 (1988), and Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989). Justice O’Connor’s concurring opinion in Franklin, states:.
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.[1] To the extent that the mitigating evidence introduced hy 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.
Id., 487 U.S. at 185, 108 S.Ct. at 2333 (O’Connor, J., joined by Blackmun, J., concurring).
The only mitigating evidence Franklin presented was a stipulation that his disciplinary record, while incarcerated from 1971-1974 and 1976-1980, was without incident. M, 487 U.S. at 168, 108 S.Ct. at 2324. According to the plurality and concurring opinions in Franklin, the jury was free to give mitigating effect to Franklin’s evidence in answering the second special issue. Specifically, Justice O’Connor stated:
... 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 had no practical or constitutional significance in my view because the stipulation had no relevance to any other aspect of petitioner’s character.
Id., 487 U.S. at 185, 108 S.Ct. at 2333.
Today, the majority concludes that appellant’s mitigating evidence consisting of “limited intellectual capacity, his problematic relationship with his father, [and] physical abuse by his father”, to the extent that it is relevant to appellant’s moral culpability, could be given full mitigating effect through the second special issue. Lackey, op. on rehearing at 118. In other words, the majority believes that evidence of appellant’s disadvantaged background and mental problems have “no practical or constitutional significance” beyond the second special issue. I disagree.
In Penry, 492 U.S. 302, 109 S.Ct. 2934, Justice O’Connor, speaking for a majority of the Court, stated:
Underlying Lockett and Eddings is the principle that punishment should be directly 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.” [Citation omitted.] Moreover, Eddings makes it clear that it is not enough simply to allow the defendant *141to present mitigating evidence to the sen-tencer. The sentencer must also be able to consider and give effect to that evidence in imposing sentence. [Citation omitted.] Only then can we be sure that the sentencer has treated the defendant as a “uniquely individual human being” and has made a reliable determination that death is the appropriate sentence. [Citation omitted.] “Thus, the sentence imposed should reflect a reasoned moral response to the defendant’s background, character, and crime.” [Citation omitted.]
Id., 492 U.S. at 319, 109 S.Ct. at 2947.
My reading of Franklin and Penry is as follows: If the mitigating evidence has a practical and constitutional significance to a criminal defendant’s moral culpability, the court should provide the jury with a vehicle to give effect to that evidence. Appellant’s mitigating evidence has such practical and constitutional significance and art. 37.071 failed to provide appellant’s jury with a vehicle to express its reasoned moral response to that evidence. In fact, Penry specifically discussed how the special issues were insufficient vehicles for a jury to give mitigating effect to evidence demonstrating disadvantaged background and mental problems.2 Penry, 109 S.Ct. at 2949.
Under the facts of this particular case, the jury might have thought that appellant was not “deathworthy” because of his disadvantaged background, and mental and emotional problems, but had no vehicle to express that reasoned moral response. In the absence of an appropriate instruction, a reasonable juror could well have believed that there was not a vehicle for expressing the view that appellant did not deserve to be sentenced to death based upon his mitigating evidence. Id., 492 U.S. at 326, 109 S.Ct. at 2950.
Finally, I believe the majority places unwarranted emphasis on defense counsel’s closing argument. The majority notes:
“In summation, appellant used Mod-lin’s testimony, plus his psychiatric, educational, and overall life history, to argue against an affirmative finding that he would pose a continuing threat to society under special issue two. As presented at trial, appellant’s evidence was not comparable to the “two edged sword” evidence of organic brain damage and mental retardation found in Penry. [Citation omitted.]”
Lackey, op. on rehearing at 131.
Appellant made his summation after the trial court had refused appellant’s requested mitigating instruction and the punishment charge had been read to the jury. Since the jury did not have an independent vehicle to give effect to appellant’s mitigating evidence, appellant’s only remaining viable argument was to persuade the jury to consider and give effect to the evidence through the second special issue.3 Surely, we cannot now utilize the argument made by appellant’s trial counsel as a means for excusing a violation of the Eighth and Fourteenth Amendments.
For the foregoing reasons, I believe appellant was entitled to have his jury provided with a vehicle to express its reasoned moral response to the mitigating evidence demonstrating a disadvantaged background, and mental and emotional problems. Because art. 37.071 did not provide such a vehicle, the Texas capital sentencing scheme operated in an unconstitutional manner as applied to appellant. With these comments I respectfully lodge this dissent.
. Only special issues one and two were submitted at the punishment phase of appellant’s trial.
. Penry suffered from organic brain damage and was mentally retarded. Peltry's brain damage was probably caused at birth, but may have been caused by beatings and multiple injuries to the brain at an early age. Penry was frequently beaten over the head with a belt when he was a child.
. During deliberations, the jury foreperson sent the following note to the court:
Certain members of the Jury have ask (sic) to have the word Society defined as contained in Special Issue No. 2.
More specifically, should we consider the fact that prison life is relivent (sic) in regards to our consideration as to “... a continuing threat to society?”, as you have defined above.