dissenting.
The majority puts too much stock in the plurality opinion in Franklin v. Lynaugh, 487 U.S. 164, 108 S.Ct. 2320, 101 L.Ed.2d 155 (1988). Five Justices would not accept “a scheme that is limited in such fashion,” id., at 183, 108 S.Ct., at 2332, 101 L.Ed.2d, at 172, and, of course, they formed the majority the next term when our scheme was reexamined in Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989). In a word, the Franklin plurality is passe’. “For the first time, [in Penry v. Lynaugh, supra] a majority of the Supreme Court has agreed that the Texas scheme, as applied, does not in practice conform to the constitutional requirements of Lockett [v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978)].” Clarke, A Reasoned Moral Response: Rethinking Texas’s Capital Sentencing Statute after Penry v. Lynaugh, 69 Texas L. Review 407, at 463 (1990).1 Accord: Gribble v. State, 808 S.W.2d 65 (Tex.Cr.App. No. 70,773, delivered November 14, 1990).2
We start then with the proposition that the majority grievously errs when it flatly says that Penry “most certainly did not hold the Texas capital punishment scheme is unconstitutional.” 855 S.W.2d at 646. It is not facially unconstitutional; it is unconstitutional as applied to so-called “Penry evidence.”
Therefore, this Court must always vigilantly guard against “the risk that the death penalty will be imposed in spite of factors which may call for a less severe penalty.” Lockett, supra, 438 U.S., at 605, 98 S.Ct., at 2965, 57 L.Ed.2d, at 990. That this cause is before us on remand from the Supreme Court for further consideration in light of Penry makes our duty even more compelling.
The central formulation of Penry was taken verbatim from the concurring opinion in Franklin, viz:
“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.”
Penry, 492 U.S. at 321, 109 S.Ct., at 2948, 106 L.Ed.2d, at 280; Franklin, at 185, 108 S.Ct., at 2333, 101 L.Ed.2d, at 173. See Gribble, supra; for detailed examination of Franklin and Penry, see Boyd v. State, *649811 S.W.2d 105 (Tex.Cr.App.1991) (Clinton, J., dissenting).
Today, the majority is content to inquire whether mitigating evidence is relevant to the special issues; it gives scant attention to the second prong of the Penry formulation in light of evidence presented by appellant — the same evidence also discussed and analyzed for the Supreme Court by the parties in their certiorari papers and presumably considered by it before remanding the cause. It believed that evidence raises Penry issues.
In his brief on remand at 4-5, appellant outlines his evidence offered through “extensive” testimony and exhibits, which the State does not dispute but naturally interprets from its standpoint. State’s Brief, at 16, 18-19 and 21. A rearranged summary follows.
Appellant was abused and neglected by his natural mother from infancy through early years, suffering from malnutrition and other mistreatment that caused his legs to bow, his eyes to “roll” and his vision to deteriorate, such that the State of Texas removed him from her custody and put him in a series of foster homes until it finally placed him with adoptive parents. They divorced. His father obtained custody, but was away on military duty overseas. His grandparents took over and raised him.
Appellant became a good student; in high school he achieved success in academic standing and sports; he developed into an accomplished pianist, playing at school, weddings and church functions; he participated in other church activities, singing in the choir; he also worked to earn his keep.
After graduating high school, appellant left home, garnered a good work record, but at some point began running with the “wrong crowd.” He used and appears to have abused controlled substances, described variously as “narcotic drugs,” “dope” and “8 balls,” before and near the time of the instant July 23, 1986 offense. On August 17, 1986 appellant killed a man during the course of robbery in Grayson County; on January 16, 1987, he pleaded guilty to murder, and was sentenced to life. In TDC he gained a record of good behavior where he is still confined.
Appellant was born June 11, 1965; the instant offense was committed shortly after appellant became twenty one years of age; he was twenty two at time of trial in October 1987.
Better than any other case presently under active consideration by the Court, this one presents at once a variety of mitigating evidence deemed by the Supreme Court to be “Penry evidence,” e.g., background, character, record and circumstances of offense. Yet, with cursory treatment adhering much too closely to lines of the Franklin plurality, the majority believes the mitigating evidence did not encompass anything more than those matters considered by the jury in answering the second special issue. See Franklin, 487 U.S. at 178, 108 S.Ct., at 2329, 101 L.Ed.2d, at 168.
The majority simply dismisses germane contrary authority on the ground that “each and every capital case involves its own singular set of facts.” Op. at 647. For one most illuminating example, in Pen-ry the Supreme Court specifically addressed his “abused childhood” and demonstrated that such evidence “has relevance to his moral culpability beyond the scope of the special issues, and that the jury was unable to express its ‘reasoned moral response’ to that evidence in determining whether death was the appropriate punishment,” because it “was not provided with a vehicle for expressing its ‘reasoned moral response’ to that evidence in rendering its sentencing decision.” Id., at 321, 328, 109 S.Ct., at 2948, 2952, 106 L.Ed.2d, at 280, 284. That Penry was also mentally retarded does not rule out the mitigating impact accorded a history of abuse; for the Supreme Court, Justice O’Connor invariably stressed the latter as well as the former. Ibid.
Comparing mitigating evidence in Franklin and Penry, the majority says “the quantity differed somewhat.” Op. at 647. Actually the real difference is in quality. In Franklin the sole mitigating evidence is a stipulation that during incar*650ceration his disciplinary record was without incident. Id., at 168, 108 S.Ct., 2324, 101 L.Ed.2d, at 182. In Penry it is mental retardation, arrested emotional development and childhood abuse. Id., at 324-326, 109 S.Ct., at 2950, 106 L.Ed.2d, at 281-282. However otherwise classified, the nature of mitigating evidence in Franklin is positive, while that in Penry is negative. And what the majority overlooks is that in Franklin five Justices regarded as probative character evidence “voluntary service, kindness to others [and] religious devotion.” Id., at 186, 190, 108 S.Ct., at 2333, 2336, 101 L.Ed.2d, at 173, 176.3
Equally probative character evidence is shown by indicia of traits attributed to appellant in his adolescence by and through his witnesses and exhibits. See ante, at 647. As well as other positive indicia of character, they also speak to voluntary service as a pianist at school and church functions, concomitant kindness to others and religious devotion during his school years.4 When the Supreme Court defines evidence as “relevant” for Eighth Amendment purposes, this Court is not at liberty to regard it otherwise, and I, for one, and Judge Baird, for two, do not.
After high school appellant pursued gainful employment and earned a good record on the job. On the dark side, however, he was exposed to and became involved in an alternative lifestyle in terms of companions and activities, including using and perhaps abusing controlled substances. His employer testified appellant last worked on July 23, 1986; the instant offense was committed that evening, according to circumstantial evidence, by appellant.5 Neither Franklin nor Penry directly address this paradoxical situation.
Since Penry a reviewing court may not summarily say, as the majority does here, that the special issues “allowed the jury to consider the mitigating aspects of the crime and the unique characteristics of the perpetrator in making its sentencing deci*651sion.” Op. at 648.6 A more particularized examination than the majority makes is required.
The mitigating evidence adduced in this cause may be viewed as three acts in a play based on the first twenty one years in the life of appellant, viz: abusive early childhood; exemplary adolescence; dichotomous majority — productive yet self-destructive. The first is negative in nature; the second is positive; the third is mixed.
We know now that the negative first is “Penry evidence,” and that the positive second is “Franklin evidence” as discerned by a majority of the Supreme Court. But what of the mixed third?
Appellant was then twenty one years of age. Jurors are entitled to believe that age has a bearing on moral culpability that transcends the particular factual questions posed by the special issues. Even a juror who is persuaded that a capital defendant killed deliberately and without provocation, and is likely to be a continuing threat to society, can yet judge his youth to be valid reason to assess a penalty less than death. The decisions underlying Penry support the proposition that youth necessarily has Eighth Amendment relevance as mitigating evidence, quite apart from whatever bearing it may have under our special issues.7
As the State capsules it, “[A]ll evidence of the appellant’s youth ... to the point where he became a murderer shows a well-adjusted, loving, disciplined person[.]” State’s Brief, at 20. That is to say among other facts, that appellant had not generated a prior criminal record. Against that background, the fact of his relative youth takes on significant mitigating potential which cannot be fully encompassed within the special issues. Lockett, Bell and Eddings, all supra, at n. 7.
The State proved but one prior conviction, that for the murder committed a month after the instant offense and for which he had been serving time without untoward behavioral incident in TDC and probably county jail since January 1987. Past conduct “often provides insights into a person’s character that will evoke a merciful response to a demand for the ultimate punishment even though it may shed no light on what may happen in the future[.]” Franklin, at 190, 108 S.Ct., at 2336, 101 L.Ed.2d, at 176 (Stevens, J., dissenting and concurring). And even if past good behavior in prison alone reveals nothing more positive except that one can exist in such a structured environment without endangering others, Franklin, at 186, 108 S.Ct., at 2334, 101 L.Ed.2d, at 174 (O’Connor, J., *652concurring), still, coupled with past well-adjusted, loving and disciplined traits, that positive behavior “may suggest that the conduct for which defendant stands convicted was not in keeping with his usual qualities or traits, a fact that has as much relevance to culpability as to future dangerousness.” Franklin, at 190, 108 S.Ct. at 2336, 101 L.Ed.2d, at 176 (Stevens, J., concurring and dissenting).
Thus here, this appellant demonstrated that he possessed the strength of character to compensate for his troubled childhood; he developed into a talented, impeccable adolescent and was completely without penal cognizance or social fault in his majority status until taking up with “the wrong crowd,” and then seeking to make them confederates in a robbery they testified he was planning.
The majority perceives the mitigating evidence as “one-edged” in that it seems to have “the [sole] effect of possibly diminishing his blameworthiness” for the crime, but is unable to see it as “Penry evidence,” because it is also relevant to special issue two in that it “presented appellant in a nonviolent posture[.]” Op. at 647, n. 3. That analysis rejects the view that positive character evidence can have some mitigating potential beyond the scope of the second special issue, that it may well evoke a “reasoned moral response” from jurors who, in judging his personal moral culpability under proper instruction, are willing to take into account that appellant may have been unduly influenced by his recent association with newly found companions who apparently led him into controlled substances use, if not abuse, and discussing, if not planning, this very offense.
The particular instruction relied on by the majority failed to provide the jury with a proper mechanism for expressing its “reasoned moral response” to the clear mitigating evidence in this record. See Op. at 647. Manifestly, it effectively limited the jury to considering evidence in responding to the special issues, and failed to provide a vehicle for the jury to consider and give effect to mitigating evidence relevant to appellant’s background, character, record and circumstances of the offense. Penry, at 326-330, 109 S.Ct., at 2951-52, 106 L.Ed.2d, at 284.
As we cautioned in Gribble:
“This is not to say that the jury must assess a penalty less than death for all defendants who offer mitigating evidence at trial. But jurors may not be precluded from doing so by omission from the court’s charge of a means to express their will. Penry v. Lynaugh, supra.”
808 S.W.2d at 76.
Upon further consideration in light of Penry on remand from the Supreme Court, because the jury in this cause was so precluded, we should reverse the judgment of the trial court and remand the cause to that court.
MALONEY, J., joins.. All emphasis is mine throughout this opinion unless otherwise indicated.
. "The Texas capital sentencing scheme does not invariably operate in such a way as to violate the Eighth Amendment. See Franklin v. Lynaugh, 487 U.S. 164, 108 S.Ct. 2320, 101 L.Ed.2d 155 (1988); Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976). But, at least whenever a capital defendant produces evidence of his own character, background, or the circumstances surrounding his offense which ... has a tendency to reduce his moral culpability in a way not exclusively related to the deliberateness of his criminal conduct, the provocative behavior of his victim, or the probability of his future dangerousness, the United States Constitution forbids imposition of the death penalty upon him by a sentencer given no means to prescribe, based on such mitigating evidence, a less severe punishment. Penry v. Lynaugh, [supra].”
808 S.W.2d at 75.
. With Judge Baird, I too am confident that this interplay between concurring and dissenting opinions recognizes telling indicia of positive character traits. Baird, J., dissenting, Op. at 654, n. 3. Moreover, given generally accepted definitions of character, Boyd v. State, supra (Clinton, J., dissenting) Op. at 654, n. 3, that the departure of one of those five Justices would alter that view is highly unlikely. There is agreement everywhere that moral character has probative value in proper contexts. Tex.R.Cr. Evid. Rule 404(a) and (c); Tex.R.Civ.Evid. Rule 404; Fed.R.Ev. Rule 404; Ray, Law of Evidence, §§ 1492, 1501 and 1506, 2 Texas Practice 169, 187 and 190.
. His subsequent confinement in TDC is another matter that, of course, is not taken into account in identifying traits of character appellant exhibited while in high school and on the job. The effect of making a record without blemish in the highly structured environment of prison will be considered infra.
. Several witnesses recounted recent conversations in which appellant discussed robbing "an old man in Saint Jo,” and sought to enlist their aid and assistance in carrying out the venture.
Around noon on the day of the offense Grover Clevenger was driving through Gainesville on his way to Muenster when he saw appellant walking along the highway; he stopped, picked up appellant and they proceeded on to Muenster, pausing once for a few beers, which Cle-venger bought because appellant said he was broke. Learning that appellant was making his way to Saint Jo, Clevenger drove him there and let him off in a park. After twenty minutes or so, as Clevenger was leaving town appellant flagged him down, told Clevenger he had picked up a check, offered to pay twenty dollars for gas and, after Clevenger declined, then offered to buy his car for $500. Back in Gainesville, they went to the VFW Hall to drink beer and appellant paid for all the beer they consumed.
Meanwhile, in Saint Jo, between six and seven in the evening, several witnesses sighted appellant in and around town near, and one saw him in, the store of Frank Collier, the deceased. Just after seven o’clock another witness entered the store and discovered Collier lying in a puddle of blood in a storage room. Medical testimony established that cause of death was a cutting of the throat, a stab wound to the face and blunt force injuries to the head and chest. One pants pocket had been pulled out and was bloody; the back pants pocket contained $950. No physical evidence at the scene linked appellant to the crime.
Two erstwhile companions and an inmate sharing a cell with appellant related subsequent conversations with appellant recounting his travels and describing details of the killing. Appellant contended at least three other persons had previously discussed robbing Collier because he carried a large amount of cash.
On original submission, this Court found the circumstantial evidence sufficient to support the verdict and judgment of conviction.
. The majority must be paraphrasing the language Justice Scalia took for his dissenting opinion in Penry from the plurality opinion of Justice White in Franklin, id., at 182, 108 S.Ct., at 2332, 101 L.Ed.2d, at 171, that originated in the opinion delivered by Chief Justice Rehnquist in Lowenfield v. Phelps, 484 U.S. 231, 245, 108 S.Ct. 546, 555, 98 L.Ed.2d 568, 582 (1988). Penry, at 356-358, 109 S.Ct., 2967, 106 L.Ed.2d, at 304. It is, in turn, derived from Jurek v. Texas, 428 U.S. 262, at 271-274, 96 S.Ct. 2950, at 2956-2957, 49 L.Ed.2d 929, at 937-939 (1976). Manifestly that is no longer the prevailing view of our capital punishment scheme either in the Supreme Court, Penry, or in this Court, Gribble.
. In Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), a plurality of the Supreme Court led by Chief Justice Burger invalidated the death sentence of a twenty one year old defendant. The Ohio statute prescribed three defined mitigating circumstances; although such factors as age and criminal record might be considered in determining whether any of the statutory mitigating circumstances existed, the sentencer could not regard them “independently" as justifications for a sentence less than death. The plurality held these limitations on the range of mitigating circumstances is incompatible with recent Eighth Amendment jurisprudence, most notably Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976). In a companion case, Bell v. Ohio, 438 U.S. 637, 98 S.Ct. 2977, 57 L.Ed.2d 1010 (1978), the same plurality overturned the death penalty for a defendant who was sixteen years old at the time of the offense.
In Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982), the Supreme Court adopted the Lockett holding. The Oklahoma statute provided for consideration of "any mitigating circumstances,” and the trial court did take Eddings’ age, sixteen, into account in assessing punishment. The Supreme Court noted approvingly, “The trial judge recognized that youth must be considered a relevant mitigating factor." Id., at 115, 102 S.Ct., at 877, 71 L.Ed.2d, at 11. Because the trial judge declined to consider troubled circumstances of Eddings’ upbringing, however, his death sentence was also overturned, on authority of Lockett.