dissenting.
After this Court affirmed appellant’s conviction, the Supreme Court granted appellant’s petition for a writ of certiorari, vacated the judgment of affirmance and remanded the case to this Court “for further consideration in light of Penry v. Lynaugh.” Considering appellant’s cause “in light of” Penry is not a simple task, as there has been a dearth of guidance from the Supreme Court in death penalty jurisprudence.1 See also, Baldree v. State, 810 S.W.2d 213 (Tex.Cr.App. delivered this date) (Baird, J., dissenting); Lackey v. State, 819 S.W.2d 111 (Tex.Cr.App. delivered this date) (Baird, J., dissenting).
I. HISTORICAL PERSPECTIVE
As I understand the United States Supreme Court’s evolving concept of death penalty jurisprudence, there is a qualitative difference between death and other penalties which calls for a greater degree of *653reliability when the death penalty is imposed. Woodson v. North Carolina, 428 U.S. 280, 304-305, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944 (1978). The sentencer must treat the criminal defendant as a “uniquely individual human being” to make a reliable determination that death is the appropriate sentence. Id., 428 U.S. at 304, 96 S.Ct. at 2991. Therefore, a death penalty statute must afford the jury “guided discretion” in the imposition of sentence. Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976). The statute may not preclude the sentencer from considering, and the sentencer may not refuse to consider, any mitigating evidence. Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978); Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982). Mitigating evidence is “any aspect of a defendant’s character or record and any of the circumstances of the offense” that may serve as a basis for a sentence less than death. Lockett, 438 U.S. at 604, 98 S.Ct. at 2964-65; Eddings, 455 U.S. at 110, 102 S.Ct. at 874. The punishment should be directly related to the personal culpability of the criminal defendant. Franklin v. Lynaugh, 487 U.S. 164, 184-186, 108 S.Ct. 2320, 2332, 101 L.Ed.2d 155 (1988); Penry v. Lynaugh, 492 U.S. 302, 318-320, 109 S.Ct. 2934, 2947, 106 L.Ed.2d 256 (1989). The Texas capital sentencing scheme passes constitutional muster, Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976), except where the jury is not provided with a vehicle to give mitigating effect to mitigating evidence when imposing sentence. Penry, 492 U.S. at 318-320, 109 S.Ct. at 2947.
II. HARMONIZING FRANKLIN AND PENRY
On the face of the remand, the issue appears simple; however, the issue is anything but simple because of the apparent tension between Franklin and Penry. In her concurrence to the plurality opinion in Franklin, Justice O’Connor explained:
... [A] State may not constitutionally prevent the sentencing body from giving effect to evidence relevant to the defendant’s background or character or the circumstances of the offense that mitigates against the death penalty. Indeed, the right to have the sentencer consider and weigh relevant mitigating evidence would be meaningless unless the sentencer was also permitted to give effect to its consideration.
... 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....
The limited probative value of the stipulation regarding petitioner’s lack of prison disciplinary violations is best illustrated by the contrasting examples of probative character evidence suggested by the dissent. (Citation omitted.) Evidence of voluntary service, kindness to others, or of religious devotion might demonstrate positive character traits that might mitigate against the death penalty....
Franklin, 487 U.S. at 184-186, 108 S.Ct. at 2333-35 (O’Connor, J., joined by Blackmun, J., concurring) (emphasis added).2
*654The following term, Justice O’Connor spoke for a majority of the Supreme Court in Penry which held that our capital sentencing scheme was unconstitutional as applied to Penry because the jury was unable to express its reasoned moral response to the evidence of Penry’s abusive childhood and mental retardation in determining whether death was the appropriate punishment. Penry, 492 U.S. at 320-322, 109 S.Ct. at 2948.3 Specifically, the Court held:
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 a defendant’s background, character, or the circumstances of the crime.
In this 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 decision. Our reasoning in Lock-ett and Eddings thus compels a remand for resentencing 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.” [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.” [Citation omitted.]
Id., 492 U.S. at 328, 109 S.Ct. at 2951-52.
It is not now clear whether Justice O’Connor’s concurring opinion in Franklin speaks for a majority of the Supreme Court.4 It could be argued, as a majority of this Court does today, that Penry is limited to providing the jury with a vehicle to express its reasoned moral response only to mitigating evidence which falls “beyond the scope of” the special issues. This type of mitigating evidence is often characterized as two-edged sword evidence, such as Penry’s mental retardation. See Baldree, 810 S.W.2d at 217 (Baird, J., dissenting). On the other hand, one might argue that Penry brings forward the concept in Franklin that the jury must also be given a vehicle to express its reasoned moral response to evidence “not relevant to” the special issues. Franklin, 487 U.S. at 186-188, 108 S.Ct. at 2333 (O’Connor, J., joined by Blackmun, J., concurring).
Arguably, the Supreme Court’s opinions dealing with death penalty jurisprudence raise more questions than they answer. However, we are bound to read the cases as consistently as possible in an effort to harmonize the opinions. It is clear that Justice O’Connor relied heavily on her concurrence in Franklin, both inferentially and by specific quotation, to reach the decision in Penry, 109 S.Ct. at 2948.
*655My attempt to reconcile those opinions renders the following conclusion: If a criminal defendant offers mitigating evidence “not relevant to” the special issues (e.g., evidence of positive character traits) and/or “beyond the scope of” the special issues (e.g., disadvantaged background, or emotional or mental problems) and the mitigating evidence has a practical and/or constitutional significance to a criminal defendant’s moral culpability, the Texas capital sentencing scheme would violate the Eighth and Fourteenth Amendments unless the trial court provided the jury with a vehicle to express its reasoned moral response to the mitigating evidence.5 See also Baldree, 810 S.W.2d at 217 (Baird, J., dissenting). Therefore, when a criminal defendant offers mitigating evidence “not relevant to” the special issues or evidence “beyond the scope of” the special issues, the defendant is constitutionally entitled to have the jury provided with a vehicle to give mitigating effect to that evidence.6 In the absence of such an “appropriate instruction” a reasonable juror could conclude that there is no vehicle for expressing the view that the defendant does not deserve to be sentenced to death based upon the mitigating evidence. See Penry, 492 U.S. at 324-326, 109 S.Ct. at 2950.7 Harmonizing the opinions in this way removes the tension between Franklin and Penry.
III. ISSUES AND ANALYSIS
This remand presents two questions. First, is appellant’s mitigating evidence sufficient to rise to the level of religious devotion? As noted in the majority opinion, appellant’s mitigating evidence included evidence of “religious activities from a very young age through high school” and religious activities during prison incarceration. Boggess, Op. at 647. I believe appellant’s jury could have characterized the evidence as demonstrating the positive character trait of religious devotion which might mitigate against the death penalty.8
Having answered the first question in the affirmative, we must answer the second question: Was appellant’s mitigating evidence of religious devotion “Penry evidence” or “Franklin evidence?” In other words, was appellant’s mitigating evidence of religious devotion “not relevant to” and/or “beyond the scope of” the special issues? If so, art. 37.071 was unconstitutional as applied because it failed to provide *656the jury with a vehicle to give effect to appellant’s mitigating evidence. On the other hand, if appellant’s mitigating evidence was given its fullest mitigating effect through the special issues, then art. 37.071 was constitutional as applied to appellant.
Religious devotion is a positive character trait not necessarily relevant to the special issues and may fall beyond the scope of the special issues. See Franklin, 487 U.S. at 186-189, 108 S.Ct. at 2333-34 (O’Connor, J., joined by Blackmun, J., concurring), and Id., 487 U.S. at 192-194, 108 S.Ct. at 2336 (Stevens, J., joined by Brennan and Marshall, JJ., dissenting). Article 37.071 failed to provide the jury with a vehicle to express its reasoned moral response to the positive character trait of religious devotion.9 In the absence of such a vehicle, the capital sentencing scheme in appellant’s case was applied in an unconstitutional manner.
Therefore, in accord with what I perceive to be the dictates of Franklin and Penry, I respectfully dissent to the result reached by the majority.
. At least one current member of the Supreme Court has recognized the "inherent tension” between the Supreme Court’s opinions. Walton v. Arizona, 497 U.S. 639, 110 S.Ct. 3047, 3063, 111 L.Ed.2d 511 (1990) (Scalia, J., concurring).
. The sole mitigating evidence presented by Franklin was the stipulation that his disciplinary record while incarcerated from 1971-1974 and 1976-1980 was without incident. Franklin, 487 U.S. at 167-169, 108 S.Ct. at 2324.
Franklin submitted five "special requested" jury instructions in addition to the two Special Issues submitted by the trial court pursuant to Art. 37.071(b). Franklin’s instructions would have told the jury that any evidence considered by them to mitigate against the death penalty should be taken into account in answering the Special Issues submitted by the trial court, and that Franklin’s mitigating evidence could alone be enough to return a negative answer to either one or both of the Special Issues, even if the *654jury otherwise believed that "yes" answers to the special issues were warranted. Id., 487 U.S. at 167-171, and n. 4 at 169, 108 S.Ct. at 2324-2325 and n. 4 at 2324.
. Penry suffered from organic brain damage and was mentally retarded. Penry was unable to learn from his mistakes. Penry’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. Penry was unable to learn in school and never finished the first grade. It took Penry over a year to learn how to print his name. Penry was routinely locked in his room without access to a toilet for long periods of time. Penry, 492 U.S. at 307-309, 109 S.Ct. at 2941.
Penry objected to the charge submitted to the jury because it failed to authorize a discretionary grant of mercy based upon the existence of mitigating circumstances and because it failed to require as a condition to the assessment of the death penalty that the State show beyond a reasonable doubt that any aggravating circumstances found to exist outweigh any mitigating circumstances. Id., 492 U.S. at 309-311, 109 S.Ct. at 2942. Penry’s objections were overruled and the trial court submitted the three special issues to the jury pursuant to Art. 37.071, Tex. Code Crim.Proc.Ann.
. At first blush, simple mathematics appears to tell us that Justice O'Connor's view is shared by five members of the Supreme Court, the two Justices concurring in Franklin and the three Justices dissenting in Franklin. See n. 7, infra. However, Justice Brennan’s departure from the Court leaves us guessing as to whether this view is held by five members of the current Supreme Court.
. This is not to say that all evidence "not relevant to” the special issues is limited to positive character traits or that all evidence "beyond the scope of’ the special issues is limited to disadvantaged background or emotional or mental problems. Relevant mitigating evidence is not that easily pigeonholed. Necessarily, relevant mitigating evidence that is "not relevant to" the special issues will also be 'beyond the scope of’ the special issues.
. The Supreme Court suggests that the vehicle be “appropriate jury instruction[s]”, but does not provide us with an example of what such an "appropriate" instruction might be. Penry, 492 U.S. at 326, 109 S.Ct. at 2950.
. If Penry carries forward the concept of positive character traits as I believe, the question becomes what constitutes positive character traits. We are provided a hint of Justice O’Con-nor's position when she cited to the "contrasting examples of positive character evidence" suggested by the dissenting opinion to Franklin. Franklin, 487 U.S. at 186, 108 S.Ct. at 2333, (O’Connor, J., joined by Blackmun, J., concurring) citing, Franklin, 487 U.S. at 190, 108 S.Ct. at 2336, (Stevens, J., joined by Brennan and Marshall, JJ., dissenting). In that dissent, Justice Stevens refers to "honorable military service or kindness to those in the defendant’s community or regular church attendance. Although it may aid the sentencer in predicting the defendant’s future conduct, it also tells something about the defendant’s personality. Importantly, for example, it may suggest that the conduct of which the defendant stands convicted was not in keeping with his or her usual qualities or traits, a fact that has as much relevance to culpability as to future dangerousness.” Franklin, 487 U.S. at 190-193, 108 S.Ct. at 2336, (Stevens, J., joined by Brennan and Marshall, JJ., dissenting).
.As religious devotion was specifically mentioned as a positive character trait by five Supreme Court justices in the concurring and dissenting opinions to Franklin, 487 U.S. at 186-189, 108 S.Ct. at 2333-34 (O’Connor, J., joined by Blackmun, J., concurring); Id., 487 U.S. at 192-194, 108 S.Ct. at 2336 (Stevens, J., joined by Brennan and Marshall, JJ., dissenting), we need not decide whether appellant’s "academic success" and "musical and artistic prowess" rise to the level of positive character traits. Boggess, Op. at 647.
. In addition to submitting the two special issues pursuant to art. 37.071, the trial court instructed the jury as follows: "You may also consider all facts and circumstances admitted into evidence before you in extenuation and mitigation of the conduct and/or probable future conduct of the defendant.”