concurring.
In this concurrence, I present a more expansive view as to possible exceptions to the rules of procedural default under Texas law, than the futility doctrine addressed in part II.A of the plurality opinion. The plurality offers ample reasons and precedent to conclude that “it would have been futile for appellant to object to the charge or request the additional instruction under the law as established by this Court at the time of trial.” Op. at 364. I offer my view of what I believe to be the more viable of the two components of the “right not recognized” doctrine — novelty.
I. The “Right not Recognized” Doctrine and the Contemporaneous Objection Rule.
Texas law generally requires that a specific contemporaneous objection be made at trial in order to preserve error for appellate review. An appellate or reviewing court will not consider an error which the defendant could have, but did not, call to the attention of the trial court at the time the error could have been avoided or corrected through appropriate action. Rogers v. State, 640 S.W.2d 248, 264 (Tex.Cr.App.1982). The contemporaneous objection rule also applies to constitutional questions. Williams v. State, 773 S.W.2d 525, 529 (Tex.Cr.App.1988); Crawford v. State, 617 S.W.2d 925, 929 (Tex.Cr.App.1981).1
Since Penry, numerous litigants before this Court have attempted to excuse their failure at trial either to request a special instruction on mitigating evidence or to object to the lack of such an instruction on the basis of the “right not recognized” exception to the contemporaneous objection rule discussed in Ex parte Chambers, 688 S.W.2d 483, 486 (Tex.Cr.App.1984) (Campbell, J., concurring). The concurring opinion, joined by five other members of the Court, addressed the issue of whether Chambers had waived constitutional error by failing to make a timely objection to evidence admitted contrary to the holding in Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981) (Admission of psychiatrist’s testimony on future dangerousness of defendant violated defendant’s Fifth and Sixth Amendment rights to counsel when, after indictment and appointment of counsel, he was examined for competency by psychiatrist, without the knowledge of counsel, and his statements were the basis for the later testimony).
The concurrence in Ex parte Chambers explained that the Smith decision was to be applied retroactively, and that the con*368temporaneous objection rule had not been applied to Smith error in the past. 688 S.W.2d at 485. The concurrence also noted that this Court strictly applied the contemporaneous objection rule in a previous non-capital direct appeal, therein adopting the constitutional waiver rule enunciated by the United States Supreme Court in Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982). See Parker v. State, 649 S.W.2d 46 (Tex.Cr.App.1983).
The concurrence then identified the two possible components of the “right not recognized exception”; (1) the “futility” doctrine, see Op. at 364-366; see Engle v. Isaac, supra, (rejecting the futility of raising a constitutional claim as an excuse for state procedural default for purposes of federal habeas review); and (2) the “novelty” doctrine as stated in Reed v. Ross, 468 U.S. 1, 104 S.Ct. 2901, 82 L.Ed.2d 1 (1984). The concurrence ultimately surmised that while instructive, neither the decision in Engle or Reed was binding on this Court. Moreover we argued that:
[o]f equal significance to this writer is this State’s own procedural default rule.... The rules enunciated in Engle v. Isaac and Reed v. Ross concern the exercise of federal jurisdiction once a State procedural default has been shown. See Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). I do not interpret these cases as attempting to impose a federal procedural waiver standard to be used by State courts.
This Court has for at least twelve years held that a defendant has not waived his right to assert a constitutional violation by failing to object at trial if at the time of his trial the right had not been recognized. Ex Parte Taylor, 484 S.W.2d 748 (Tex.Cr.App.1972); Ex Parte Sanders, 588 S.W.2d 383 (Tex.Cr.App.1979); Ex parte Casarez, 508 S.W.2d 620 (Tex.Cr.App.1974); Boulware v. State, 542 S.W.2d 677 (Tex.Cr.App.1977); Cuevas v. State, 641 S.W.2d 558 (Tex.Cr.App.1982). In view of these cases decided by this Court and in view of the extension by the Supreme Court of the doctrine in Engle v. Isaac to its current posture in Reed v. Ross, I would reaffirm the holding in Cuevas, supra, that “where a defect of constitutional magnitude has not been established at the time of trial, the failure to object does not constitute waiver”, and I would overrule Parker, supra, to the extent that it is in conflict.
688 S.W.2d at 486 (emphasis in original).2
Thus, the Texas “right not recognized” exception excuses a failure to contemporaneously object when either; the claim was so novel that the basis of the claim was not reasonably available at the time of trial, or, the law was so well settled by this Court that an objection at that time would have been futile.
II. The Novelty Half of the “Right not Recognized” Doctrine.
The novelty aspect of the “right not recognized” doctrine was best articulated in Reed v. Ross, 468 U.S. 1, 104 S.Ct. 2901, 82 L.Ed.2d 1 (1984). In Reed, the Supreme Court held that the “cause” prong of the “cause and prejudice” test for obtaining federal habeas relief could be satisfied when the procedural failure of counsel to raise a constitutional issue was not the result of a tactical decision made by competent counsel, but occurred because the constitutional issue was “reasonably unknown to him” at the time of trial. If counsel had no “reasonable basis upon which to formulate a constitutional question,” then this Court could not “attribute to him strategic motives of any sort.” Id. at 14-15, 104 S.Ct. at 2909. Furthermore, this Court found that the truly novel claim could be excused without implicating any of the ar*369ticulated reasons for requiring meticulous preservation of error.
Just as it is reasonable to assume that a competent lawyer will fail to perceive the possibility of raising such a claim, it is also reasonable to assume that a court will similarly fail to appreciate the claim. It is the nature of our legal system that legal concepts, including constitutional concepts, develop slowly, finding partial acceptance in some courts while meeting rejection in others. Despite the fact that a constitutional concept may ultimately enjoy general acceptance, ... when the concept is in its embryonic stage, it will, by hypothesis be rejected by most courts. Consequently, a rule requiring a defendant to raise a truly novel issue is not likely to serve any functional purpose. Although there is a remote possibility that a given state court will be the first to discover a latent constitutional issue and to order redress if the issue is properly raised, it is far more likely that the court will fail to appreciate the claim and reject it out of hand.
Id. at 15, 104 S.Ct. at 2910.
In addition, requiring novel claims to be routinely raised could “actually disrupt state-court proceedings by encouraging defense counsel to include any and all remotely plausible constitutional claims that could, some day, gain recognition.” Id. at 16, 104 S.Ct. at 2910.
As was stated in concurrence in Ex parte Chambers, the reasoning of Reed is instructive but in no way binding on this Court. The concurrence in Ex parte Chambers actually asserts a basis in Texas law for the novelty plank of the “right not recognized” doctrine. Thus, I would look to this Court’s application of the novelty doctrine articulated in Ex parte Chambers for further guidance.
Post-conviction challenges based on the Ex parte Chambers novelty component have arisen largely from belated claims under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1984), Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981), and Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980).
In Mathews v. State, 768 S.W.2d 731 (Tex.Cr.App.1989), the appellant sought to raise Batson error for the first time on appeal. At the time Mathews was tried, Batson was pending before the Supreme Court. No objection was made at trial and Mathews offered no evidence that would show prima facie Batson error. Thus, this Court faced the question whether a Batson claim would be procedurally barred because of a failure to object on Batson grounds.
This Court first noted that, in previous cases, we had made exceptions to the contemporaneous objection rule when the error implicated a novel constitutional claim involving a defect of constitutional magnitude not yet established at the time of trial. 768 S.W.2d at 733 (citing Cuevas v. State, supra; Ex parte Bravo, infra; Cook v. State, 741 S.W.2d 928 (Tex.Cr.App.1987)). Expanding on this concept, Judge Clinton wrote:
At this juncture, it is appropriate to reiterate that the federal procedural default doctrine also involves a “novelty” test, providing that “where a constitutional claim is so novel that its legal basis is not reasonably available to counsel, a defendant has cause for his failure to raise the claim in accordance with applicable state procedures.” This test determines federal cognizability where there has been a procedural default at the state level, and as pointed out in Chambers, supra, the federal procedural default doctrine per se applies only in federal habeas corpus proceedings. This Court also conducts a “novelty” analysis; however, when we do so, it is to decide whether there need be a contemporaneous objection in the first instance. Finding a constitutional claim sufficiently “novel,” we hold there is no procedural default.
Id. Noting that the claim in Ex parte Chambers involved “novel” Smith error, we then distinguished the Batson claim in Mathews as not so “novel” that appellant’s failure to object could be excused. Id.; *370Williams v. State, 773 S.W.2d 525 (Tex.Cr.App.1989).
We addressed a similar question concerning procedural bar in Ex parte Bravo, 702 S.W.2d 189 (Tex.Cr.App.1985). In Ex parte Bravo, the applicant asserted a claim on the basis of Adams v. Texas, supra, even though he had failed to raise the issue on direct appeal. The decision in Adams clarified the holding in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), and applied that decision to Tex.Penal Code Ann. § 12.31(b). We rejected the State’s argument that the applicant was procedurally barred from raising Adams error by writ of habeas corpus after failing to raise it on direct appeal. The applicability of Witherspoon to Tex.Penal Code § 12.31(b) was not explained until Adams. Thus, we found that applicant was allowed to raise his claim challenging the constitutionality of § 12.-31(b) for the first time on post-conviction review, “because he did not have the opportunity to have his constitutional issue reviewed in the light of the decision in Adams.” 702 S.W.2d at 193.3 See also Rabb v. State, 730 S.W.2d 751 (Tex.Cr.App.1987) (Appellant challenged the Dallas County Magistrate’s Act, Tex.Rev.Civ.Stat. art. 1918c (Supp.1985), as an unconstitutional delegation of legislative power. “Questions involving the constitutionality of a statute upon which a defendant’s conviction is based should be addressed by appellate courts, even when such issues are raised for the first time on appeal.”)4
*371The State contends that Penry issues are not novel, relying on the Supreme Court’s pronouncements to that effect.5 The analysis offered in part II.A of the majority opinion, contending that appellant is really advancing a “futility” argument, may be correct. However, this Court’s analysis of the issue includes a novelty factor in determining whether to review alleged constitutional violations such as those occurring in Adams, Long, and Smith.
For example, the United States Court of Appeals for the Fifth Circuit held that the decision in Estelle v. Smith “did not establish a new principle of federal constitutional law because that decision merely applied already fixed principles to a new factual situation.” The circuit court viewed Smith as a logical extension of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and its related line of cases. Battie v. Estelle, 655 F.2d 692, 699 (5th Cir.1981). In contrast, in his concurrence in Fields v. State, 627 S.W.2d 714 (Tex.Cr.App.1982), Presiding Judge McCormick recognized the significant impact of the decision in Smith on Texas law:
Both holdings in Estelle v. Smith changed the law in Texas. This Court had for years rejected claims on these bases. Never before had it been held a court-appointed mental health expert must warn a defendant of his right to remain silent and that the evidence adduced in the psychiatric interview could be used against him. Never before had it been held that the defendant’s attorney could receive notice before a psychiatric interview on the dangerousness issue could be held. In fact, in numerous cases this Court rejected the contentions that the proceedings used in Estelle [v. Smith] violated a defendant’s rights.
627 S.W.2d at 723 (McCormick, J., concurring).
This analysis focuses on significant changes in law, and forces the inquiry into whether such changes affect this Court’s interpretation of constitutional issues. Perhaps this should be the essential inquiry under the novelty half of the “right not recognized” doctrine. A decision pointing to a marked change from long-held positions by this Court on issues of extreme constitutional importance to capital defendants should normally be considered a novel event. I view the decisions in Estelle v. Smith and Adams v. Texas as representing a marked change in Texas law. Thus, I would evaluate whether the decision in Penry was adequately novel in light of this Court’s reaction to those decisions.
III. Is Penry more like Adams and Smith or Batson’l
The State argues that appellant’s Penry claims, like the Batson claims urged in Mathews and Williams, axe not novel. The State asserts that the novelty claim being presented is in reality a claim of futility, and that Penry claims are analogous to Batson claims. I disagree, and do not believe the State’s contentions comport with Texas precedent.
Batson merely relaxed the evidentiary standards of Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965). Penry, however, applied the constitutional requirements concerning consideration of mitigating evidence found in Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978) and Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982) directly to article 37.071. The exact relevance of the Lockett and Eddings requirements as applied to the *372special issues of article 37.071 was not addressed until Franklin v. Lynaugh, 487 U.S. 164, 108 S.Ct. 2320, 101 L.Ed.2d 155 (1989), and was not fully explained until the decision in Penny.
Batson error necessarily contemplates an objection. All of the substantive legal arguments relied upon in Batson follow directly from Swain v. Alabama, supra. Batson’s innovation is to force the prosecutor to provide race-neutral reasons for his peremptory challenges once a defendant makes a prima facie showing of racial discrimination. While the modification greatly increases a defendant’s chance of obtaining relief, the workings of the entire procedure depend on an objection to start things in motion. Absent a timely objection, the prosecutor has no reason to provide race-neutral explanations, and there is no evidence for the trial judge to weigh. A failure to object on Batson grounds results in no evidence of discrimination, no testimony from the prosecution, no trial court ruling, and ultimately nothing for appellate review.
Conversely, Penny error can be capably reviewed with or without an objection. Since this Court has never required a special instruction on mitigating evidence, it is difficult to evaluate now the effect that an actual request for a special instruction might have in a particular case. The record can be reviewed on appeal for any relevant mitigating evidence actually presented at trial. This affords the added degree of caution desirable in a death penalty case. I do not believe that the considerations which led us to find waiver of Batson error in Mathews are present in the many cases now claiming Penny error.
IV. Is Penny novel in light of this Court’s prior decisions?
In at least three cases, this Court affirmed the constitutionality of the special issue practice under article 37.071, essentially rejecting the idea that special instructions may, in some circumstances, be needed to broaden the jury’s consideration of mitigating evidence or to allow the jury to give added effect to mitigating evidence.
In Ex parte Granviel, 561 S.W.2d 503 (Tex.Cr.App.1978), the applicant argued that article 37.071 was unconstitutional as applied because it prevented the jury from considering his “mental condition as a mitigating factor in relation to the two or possibly three statutory special issues to be submitted to the jury at the penalty stage of a capital murder trial.” Id. at 516. We rejected his claim reasoning that:
[t]his court in construing Article 37.071, supra, has never limited admissible evidence to solely aggravating or mitigating circumstances. The phrase “any matter that the court deems relevant to sentence” in Article 37.071(a), supra, refers to virtually any type of probative matter. The only limitation is that the trial court in its discretion must consider the evidence to be relevant to punishment. Moreover, the jury in answering the special issues may properly consider all the evidence adduced during both the guilt and punishment phases of the trial. This could include evidence of a defendant’s mental condition — whether such evidence be characterized as an “aggravating” or “mitigating” factor. Thus, Article 37.-071(b), supra, does not prevent the jury from considering a defendant’s mental condition as a mitigating factor.
Id. (footnotes and citations omitted).
The decision in Ex parte Granviel reflected no recognition by this Court of the dilemma presented to the jury in deciding how to give “two edged sword” evidence effect. See Penny, 109 S.Ct. at 2949. We held that no additional instruction was required to allow full consideration of mitigating evidence of the type that resulted in the decision in Penny.
In Adams v. State, 577 S.W.2d 717 (Tex.Cr.App.1979), rev’d on other grounds sub nom., Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980), we summarized Adams’s argument as follows:
Appellant contends that Art. 37.071, V.A.C.C.P., is unconstitutional because the punishment issues specified therein, in particular the second issue, “fail to present for the jury’s consideration any concept of ‘desert,’ thus depriving the *373defendant of the critical consideration of the jury of any defined standard by which they may decide if the defendant ‘ought to die,’ this being a requirement of the Constitution as interpreted in Gregg v. Georgia, [428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976)].” In a related argument, appellant contends that Art. 37.071, supra, is unconstitutional because “there are no provisions for jury lenience if all the special issues are answered affirmatively thus calling for jury negation should the jury believe that under all the circumstances the defendant does not ‘deserve’ a sentence of death.”
Appellant acknowledges that the defendant in a capital case in Texas may offer at the punishment hearing any relevant mitigating evidence. However, appellant argues that such evidence is of no avail to the defendant if the jury is convinced by the evidence beyond a reasonable doubt that the punishment issues should be answered affirmatively. In such a case, appellant argues, the punishment of death is mandatory even though the jury, on the basis of the mitigating evidence, may believe that death is inappropriate.
Id. at 729 (citations omitted).
In response to this argument, this Court held:
Although the death penalty in Texas is mandatory upon the return of affirmative answers to the three punishment issues, Art. 37.071, supra, the jury does not consider the punishment issues unless it has first found the defendant guilty of murder under certain specified aggravating circumstances. Y.T.C.A. Penal, § 19.03. Furthermore, in answering the punishment issues the jury must consider all the relevant evidence concerning the particular offense and the individual defendant offered by the State or by the accused. The punishment issues give guidance to the jury regarding those factors about the crime and the defendant that the State, representing organized society, deems particularly relevant to the sentencing decision. The punishment issues provide for the guided jury discretion found wanting in gre-Fur-man death penalty statutes....
We hold that Art. 37.071, supra, is not unconstitutional for failure to present for the consideration of the jury the concept of “desert.” We also hold that Art. 37.-071, supra, does not impose the death penalty in an unconstitutionally mandatory manner.
Id. at 730 (citations omitted). While Gran-viel sought to give effect to all mitigating evidence within the existing structure of the special issues, Adams sought to give effect to this evidence by adding what amounts to an additional special issue. Our holding in Adams reaffirmed the essential idea that article 37.071 allowed the jury full consideration of mitigating evidence without any need for further instructions or modification.
Predictably then, in Quinones v. State, 592 S.W.2d 933 (Tex.Cr.App.1980), we held that the refusal of the trial judge to grant a requested instruction on mitigating evidence was not error. We summarized Qui-nones’s argument and responded as follows:
[Ajppellant contends that, in the punishment phase, the jury should have been charged that: “Evidence presented in mitigation of the penalty may be considered should the jury desire, in determining the answer to any of the special issues. Appellant submitted two jury-charges incorporating this language and both were denied. The trial court submitted the special issues as prescribed in Art. 37.071, V.A.C.C.P., without explanation of their terms.
Appellant correctly claims a right to consideration of mitigating circumstances by the jury deciding whether or not to impose the death penalty and he argues that the explanatory charge he requested is necessary to protect this right. We disagree with this conclusion. The Supreme Court has affirmed that under the Texas capital sentencing statute: “the jury may be asked to consider whatever evidence of mitigating circumstances the defense can bring before it.” Jurek v. Texas, 428 U.S. 262, 273, 96 *374S.Ct. 2950, 2957, 49 L.Ed.2d 929 (1976). “What is essential is that the jury have before it all possible relevant information about the individual defendant whose fate it must determine. Texas law clearly assures that all such evidence will be adduced.” 428 U.S. at 276, 96 S.Ct. at 2958. While invalidating an Ohio death penalty statute for its failure to permit adequate consideration of mitigating factors, the Supreme Court favorably contrasted the Texas law which: “survived the petitioner’s Eight and Fourteenth Amendment attack because three Justices concluded that the Texas Court of Criminal Appeals had broadly interpreted the second question — despite its facial narrowness — so as to permit the sentencer to consider ‘whatever mitigating circumstances’ the defendant might be able to show.” Lockett v. Ohio, 438 U.S. 586, 607, 98 S.Ct. 2954, 2966, 57 L.Ed.2d 973 (1978), citing to Jurek v. State, 522 S.W.2d at 939-40.
Appellant was entitled to present evidence of any mitigating circumstances and did present such evidence, including a broad discussion of his personal and family background. The question then is whether the language of the special issue is so complex that an explanatory charge is necessary to keep the jury from disregarding the evidence properly before it. In King v. State, 553 S.W.2d 105 (Tex.Cr.App.1977), cert. denied, 434 U.S. 1088, 98 S.Ct. 1284, 55 L.Ed.2d 793 (1978), this Court held that the questions in Art. 37.071 used terms of common understanding which required no special definition. The jury can readily grasp the logical relevance of mitigating evidence to the issue of whether there is a probability of future criminal acts of violence. No additional charge is required. The ground of error is overruled.
Id. at 947.
The decisions in Ex parte Granviel and Adams rejected the argument that under the special issues of article 37.071 the jury is unable to give full effect to relevant mitigating evidence, and in Quinones we further refused to recognize any constitutional need for a special instruction regarding mitigating evidence.
Had Penry, and to a lesser extent Franklin, never been decided, Ex parte Granviel, Adams, and Quinones would have effectively foreclosed the argument that appellant is now making. Penry was the first case ever to hold that, under certain circumstances, the Eighth Amendment forbids a death sentence imposed under an unadorned version of article 37.071. For the first time, and contrary to case law from this Court, Penry recognized that some capital defendants have an Eighth Amendment right to have mitigating evidence considered and acted upon that extends beyond the language of article 37.-071.
V. Conclusion
Arguing over whether the rule announced by the Supreme Court in Penry is novel, or whether the lodging of an objection prior to Penry would have been futile, will not bring about an ultimate resolution of this matter. Both the State and appellant advance compelling arguments in both areas. What is strikingly clear, in my view, is that the holding in Penry constituted a substantial change in the law, no less than Adams v. Texas and Estelle v. Smith, and there being abundant Texas precedent demonstrating that the holding amounts to a right not previously recognized, appellant has not waived his right to assert a Penry violation by failing to object at trial.
Accordingly, I concur in the result reached in Part II.A and join in Parts I and II.B of the lead opinion.
McCORMICK, P.J., and OVERSTREET and BENAVIDES, JJ., join this concurrence.CLINTON and MALONEY, JJ., join this concurrence in the analysis of Part II.A.
. See also Zillender v. State, 557 S.W.2d 515, 517 (Tex.Cr.App.1977).
The generally acknowledged policies of requiring specific objections are two-fold. First, a specific objection is required to inform the trial judge of the basis of the objection and afford him the opportunity to rule on it. Second, a specific objection is required to afford opposing counsel an opportunity to remove the objection or supply other testimony.
. See also Ex parte Turner, 542 S.W.2d 187 (Tex.Cr.App.1976). Applicant failed to object to the trial court’s denial of compulsory process for obtaining witnesses under then existing Tex. Crim.Proc.Code art. 711 and Tex.Penal Code art. 82. The Supreme Court’s later decision in Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967) held these statutes unconstitutional. We found ”[i]t would be unreasonable to expect the petitioner to anticipate the future decision of the United States Supreme Court,” and held that there was no intentional waiver for failing “to object upon a ground not yet established as a defect of constitutional magnitude.” Turner, at 189 (citing Ex parte Casarez, 508 S.W.2d 620 (Tex.Cr.App.1974)).
. We also distinguished Bravo from our decision in Crawford v. State, 617 S.W.2d 925 (Tex.Cr.App.1981). Crawford involved failure to object to Witherspoon error in a capital murder prosecution. Crawford contended that, since Adams was decided three years after the improper excusal of the prospective juror in his case, failure to object should be excused. The Court refused to allow Crawford’s claim, finding that the record failed to establish that the excused venire person would have been acceptable to the defendant and that he would not have exercised a peremptory challenge on her.
This Court has previously held that where a defect of constitutional magnitude has not been established at the time of trial, the failure of counsel to object does not constitute waiver. Ex parte Sanders, 588 S.W.2d 383 (Tex.Cr.App.); Ex parte Casarez, 508 S.W.2d 620 (Tex.Cr.App.); Ex parte Taylor, 484 S.W.2d 748 (Tex.Cr.App.). Such a holding is bottomed on the premise that there was no tactical or logical reason for counsel’s failure to object other than the fact that the defect had not been established at the time of trial.
Id. at 940. The Court refused to conclude that the only reason for the failure to object was the, as yet, unrecognized defect found in Adams. Id.
There seems to be an obvious tension between Ex parte Bravo and Crawford. In Ex parte Bravo, however, the defendant vigorously attempted to rehabilitate the challenged venire person, thus establishing, at least circumstantially, that he would not have used a peremptory challenge.
. The Dallas Court of Appeals addressed a similar issue in Chitwood v. State, 703 S.W.2d 360 (Tex.App.—Dallas 1986). Chitwood involved a claim of error under Long v. State, 694 S.W.2d 185 (Tex.App.—Dallas 1985, no pet.) (holding that Tex.Crim.Proc.Code art. 38.071 § 2 was unconstitutional). The appellant failed to object at trial on that basis. The court of appeals held that "the Long decision [was] a new application of the old right of confrontation. It [was], however, not the ‘clear break with the past’ ... foreseen under the federal test.” Id. at 361.
The court of appeals further stated that; [w]hile the language employed in Chambers is broad, in every Texas case in which the defendant has successfully challenged his conviction based upon a subsequently established constitutional defect, the principle relied upon overruled considerable Court of Criminal Appeals case law or was, in fact, quite novel and an objection based upon it would have been futile.
703 S.W.2d at 361-62.
In addition, the Court found no long-established line of cases indicating that objections to the constitutionality of Tex.Crim.Proc.Code art. 38.071 § 2 would have been futile at the time of trial. Id. at 362. The court of appeals held that Chitwood waived his objection to "this new and obviously constitutionally questionable statute by failing to object to it at trial.” 703 S.W.2d at 362. The court reasoned that the statute clearly implicated the right to confrontation, and that the right to confrontation was "too fundamental in our law for an appellant to affirmatively permit the introduction of a video tape and then later claim this right has been violated.” Id. Defense counsel at trial indicated he had reviewed the tape and had no objections to its admission.
In contrast to the facts in Chitwood, Tex.Crim. Proc.Code art. 37.071 has remained in effect despite a number of considerable constitutional challenges. In addition, this Court has consistently refused to require additional instructions concerning the application of punishment evidence.
Applying a procedural bar because the decision of how to approach mitigating evidence *371could be considered tactical would be unfair. An attorney would not know what instruction would be given to the jury until after all of the evidence had been admitted. Perhaps, a “tactical decision” between two bad alternatives, complicated by reliance on case law now called into question by Penry and incomplete information about what ruling to expect from the trial judge, is really no choice at all.
. The Supreme Court found in Penry that the relief sought did not present a new rule under Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). This decision was made within the context of federal habeas corpus review of a claim procedurally barred by state law.
The Supreme Court’s finding that Penry does not impose a new obligation on the State of Texas, however, does not directly control whether Penry claims are novel in light of the right not recognized doctrine approved in Ex parte Chambers.