dissenting.
In his fourth point of error appellant complains that the trial court erred in failing to give requested jury instructions at the punishment phase of trial which would allow the jury to effectuate a “reasoned moral response” to evidence adduced at the punishment phase of trial having mitigating significance beyond the scope of the special issues contained in Article 37.071, § (b), supra. I agree.
In Gribble v. State, 808 S.W.2d 65, at 75 (Tex.Cr.App.1990), the Court observed:
“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, according to contemporary social standards, 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 senteneer given no means to prescribe, based on such mitigating evidence, a less severe punishment. Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989).”
Appellant was nineteen years old at the time he committed the instant offense. His mother testified that soon after appellant was born they were abandoned by appellant’s natural father. She was then sixteen, and took appellant home to live with her parents. When appellant was almost five she remarried a man appellant “loved very much,” but this man died three and a half months later in a boating accident. His stepfather’s death had a “large effect” on appellant. Later that same year appellant’s mother again remarried, this time to a man who proved abusive to both appellant and his mother. After three years they divorced. Appellant was raised by his mother for the next three years, after which she married yet again. Her fourth husband shared a “fairly good” relationship with appellant. For six or eight weeks when appellant was thirteen or fourteen years old, appellant’s natural father, who had married again, resurfaced in his life. But when that marriage fell apart, appellant never saw his natural father again. Appellant quit high school after the tenth grade, although at some point he did obtain his GED. At fifteen he left home, living variously in New Orleans, off and on with his grandparents in Port Neches, and for a time at a boys’ ranch near Fort Worth. For three months he was in the army; the circumstances of his discharge were not disclosed. Appellant married Tina in early 1986, and they moved from place to place in east Texas, working various menial jobs. After Tina’s mother took her back to Chicago, appellant followed in an attempt to retrieve her. He only succeeded in getting himself roughed up by members of her family.
Appellant specifically requested three instructions that would have authorized the jury to answer either one or the other, or both, of the special issues “no” should it “find any aspect of the Defendant’s character or record or any of the circumstances of *713the offense as factors which mitigate against the imposition of the death penalty.” The trial court denied all three instructions, and gave no other instruction sufficient to allow the jury to consider and effectuate any evidence of mitigating value that, though outside the scope of special issues, could nevertheless persuade a jury in its “reasoned moral response” to assess a punishment of less than death. Penry v. Lynaugh, 492 U.S. at 322, 109 S.Ct. at 2948, 106 L.Ed.2d at 280. In any event, appellant need not have objected to preserve Penry error. See Black v. State, 816 S.W.2d 350 (Tex.Cr.App.1991) (Campbell, J. concurring).
In proving a volatile, and at one time abusive family history, and an unremittingly itinerant childhood and adolescence, appellant presented what may reasonably be construed as substantive evidence of “a disadvantaged background,” and of at least “emotional,” if not “mental problems.” Id., U.S. at 319, S.Ct. at 2947, L.Ed.2d at 278, quoting California v. Brown, 479 U.S. 538, at 545, 107 S.Ct. 837, at 841, 93 L.Ed.2d 934, at 942 (1987) (O’Connor, J., concurring). Although that evidence may be relevant to answering both the first and second special issues, I believe it to have potentially mitigating impact beyond those parameters.1 Whether or not we personally share the Penry Court’s perception of a “belief, long held by society,” that such defendants “may be less culpable than defendants who have no such excuse[,]” id., we cannot say a juror would not consider such evidence instructive, notwithstanding affirmative answers to the statutory special issues, as tending in a broader sense to “ameliorate fault.” Gribble v. State, supra, at 76. Where evidence of this kind is adduced, the Eighth Amendment requires that the jury be empowered both to consider and respond to it.
Moreover, although not a minor, appellant was only nineteen years old. Notwithstanding Graham v. Collins, 506 U.S. -, 113 S.Ct. 892, 122 L.Ed.2d 260 (1993), jurors are entitled to believe that age has a bearing on moral culpability that transcends the particular factual questions of deliberateness, provocation and future dangerousness. See Elliott v. State, 858 S.W.2d 478 (Tex.Cr.App.1993) (Clinton, dissenting). Even a juror who believes beyond a reasonable doubt that a capital defendant killed deliberately and without provocation, and will likely continue to commit violent crimes, may yet judge his youth to be a valid reason to assess a penalty less than death.
In Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), a plurality of the Supreme Court invalidated the death sentence of a 21 year old defendant. Under the Ohio statute then governing capital sentencing, the trial judge was to impose a sentence of death unless he found one of three statutorily defined mitigating circumstances, viz: 1) that the deceased “induced or facilitated” the offense, 2) that the accused acted under “duress, coercion or strong provocation^]” or 3) that the accused’s conduct was a product of his “psychosis or mental deficiency[.]” Id., U.S. at 607, S.Ct. at 2966, L.Ed.2d at 991-92. Although such factors as Lockett’s age and criminal record could be considered in the determination whether any of the statutory mitigating circumstances existed, they could not be regarded as justifications in their own right for a sentence less than death. Nor could factors such as the accused’s relatively minor role in the events leading up to the murder, or absence of an intent to kill on her part. A plurality of the Supreme Court held that this limitation of the range of mitigating circumstances was incompatible with its 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 to Lockett, Bell v. Ohio, 438 U.S. 637, 98 S.Ct. 2977, 57 L.Ed.2d 1010 (1978), the same plurality overturned the death penalty of a defendant who had been sixteen years old at the time of his offense.
*714In Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982), a majority of the Supreme Court adopted the holding of Lockett. The Oklahoma capital sentencing statute provided for consideration of “any mitigating circumstances,” and the trial judge did take Eddings’ age, 16 years old, into account in assessing the punishment. Thus the Supreme Court observed approvingly: “The trial judge recognized that youth must be considered a relevant mitigating factor.” 455 U.S. at 115, 102 S.Ct. at 877, 71 L.Ed.2d at 11. Because the trial judge declined to consider the troubled circumstances of Eddings’ upbringing, however, his death sentence was also overturned, on authority of Lockett.
Lockett, Bell and Eddings, all supra, support the proposition that youth necessarily has Eighth Amendment relevance as mitigating evidence, quite apart from whatever bearing it may have on Article 37.071, V.A.C.C.P., special issues.
Especially in combination with evidence of his “turbulent family history,” Eddings v. Oklahoma, supra, U.S. at 115, 102 S.Ct. at 877, 71 L.Ed.2d at 11, including his own broken marriage, the fact of his relative youth takes on significant mitigating potential which cannot be fully encompassed within the statutory special issues. The instructions requested by appellant were sufficient to alert the trial court that his jury lacked a mechanism for expressing its “reasoned moral response” to that evidence in its punishment deliberations. Of course:
“[tjhis 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.”
Gribble v. State, supra, 76. Because jurors in appellant’s cause were so precluded, we should sustain his fourth point of error.
Because the majority does not, I respectfully dissent.2
. Indeed, relative to the issue of future dangerousness, appellant's evidence may have only aggravating value; that is, it may tend only to persuade a jury to answer the second special issue "yes.” See Burns v. State, 761 S.W.2d 353, at 355, n. 3 (Tex.Cr.App.1988).
. The majority correctly identifies appellant’s sixth point of error as raising the contention that his initial detention outside the house in Winnfield, Louisiana, after law officers had surrounded the house and "advised” the occupants to come out, amounted to more than a mere "Terry” stop, and thus required probable cause. Slip op. at 710. Inexplicably, the majority then proceeds to answer a different question altogether, viz; whether the officers had a reasonable suspicion to justify a "Terry” stop at the time they initially surrounded the house. The majority concludes they did, and that their reasonable suspicion ripened into probable cause after appellant came outside and produced a Texas auto registration receipt in the name of the deceased, but claimed the car belonged to his sister. Slip op. at 711-712. With all due respect, and without offering an opinion on the ultimate merits of appellant’s actual claim, I would simply point out that the majority’s analysis is unresponsive.