dissenting on appellant’s motion for rehearing.
On original submission, in a per curiam opinion, the Court addressed the merits appellant’s first two points of error, alleging, respectively, that Article 37.071, V.A.C.C.P., violates the Eighth Amendment both facially and as applied to him. Appellant argued the statute was unconstitutional on its face because it allowed for imposition of the death penalty for a seventeen year old defendant such as himself. See also V.T.C.A. Penal Code, § 8.07(d). We properly disposed of this claim on original submission, invoking the decision of the United States Supreme Court in Stanford v. Kentucky, 492 U.S. 361, 109 S.Ct. 2969, 106 L.Ed.2d 306 (1989), and no more need be said on that score. Appellant claimed the statute was applied unconstitutionally as to him insofar as its operation precluded jury consideration of his youth as a mitigating factor. It is this latter claim that the Court needs to reexamine.
Appellant did not assail constitutionality of the statute in the trial court. Neither did he object to the trial court’s charge or request additional instructions that would have equipped the jury to give mitigating significance to his youth apart from its relevance to special issues. Without alluding to this circumstance, the Court reached the merits of appellant’s claim on original submission. Since our original opinion we have decided Black v. State, 816 S.W.2d 350 (Tex.Cr.App.1991). In Judge Campbell’s concurring opinion in Black, a majority of the Court expressed the view that claims predicated upon the principles adduced in Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989), need not be preserved in the trial court, at least if trial occurred prior to the date of that decision. See also Selvage v. Collins, 816 S.W.2d 390 (Tex.Cr.App.1991) (Opinion on Certified Question from the United States Court of Appeals for the Fifth Circuit). Appellant was tried in March of 1986. It is therefore appropriate to reach the merits of appellant’s as-applied challenge to the constitutionality of Article 37.071, supra.
On original submission the Court disposed of appellant’s claim with the following analysis:
“Although we agree with appellant that there is no express requirement within the provisions of Art. 37.071, supra, that provides for a special instruction regarding a defendant’s youthful age as a mitigating factor, we also find that there is nothing within the statute that might prohibit the jury from considering a defendant’s youthful age in answering the second special issue, or the probability question. See Art. 37.-071(b)(2), supra. Age, however, is a factor which we find may be considered by the jury in answering the second special issue. In this instance, we decline to engraft onto Art. 37.071, supra, the requirement that a special instruction, if requested, should be given the jury regarding a defendant’s youthful age.”
At 23. Age may very well be a fact that has a bearing on the second special issue, concerning appellant’s propensity for future dangerousness. But under Penry, if there is evidence that has mitigating significance, either quite apart from its relevance to special issues, or beyond whatever relevance it has to special issues, then a capital accused cannot be sentenced to death consonant with the Eighth Amendment absent some mechanism by which the sentencer is empowered to give a “reasoned moral response” to that evidence and impose a sentence less than death. 492 U.S. at 321, 328, 109 S.Ct. at 2948, 2952, 106 L.Ed.2d at 280, 284. See Gribble v. State, 808 S.W.2d 65, 75, (Tex.Cr.App.1990). And as I understand Supreme Court precedent, evidence of youth has constitutionally mitigating significance that transcends any relevance to Article 37.071 special issues.
In Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), a plurality of *34the 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., 438 U.S. at 607, 98 S.Ct. at 2966, 57 L.Ed.2d at 991-92. Although such factors as Lock-ett’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.
In 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, sixteen, 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.
It is true that in Stanford v. Kentucky, supra, the Supreme Court held it was not cruel and unusual per se to impose the death penalty upon defendants who were sixteen or seventeen at the time of commission of the offense. That does not mean, however, that youth has lost its constitutionally mitigating significance. In Penny itself the Supreme Court held it is not per se unconstitutional to execute a mentally retarded capital accused. But in the same opinion the Supreme Court then insisted that mental retardation has mitigating significance beyond its relevance to the special issues under Article 37.071, supra. By the same token, that the Eighth Amendment does not categorically prohibit execution of youths and young adults does not reduce the significance of youth as a circumstance that, in the individual case, might justify a sentence less than death. Youth remains as an aspect of the individual character and circumstances of the offender which is a “constitutionally indispensable part of the process of inflicting the penalty of death.” Woodson v. North Carolina, 428 U.S. at 304, 96 S.Ct. at 2978, 49 L.Ed.2d at 944.
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 special issues. Appellant was seventeen years old when he committed the instant offense. That fact may have relevance to special issues, just as age had some bearing upon the statutorily circumscribed mitigating factors in the Ohio capital sentencing scheme in 1978. But as was the case then in Ohio, a sentencer in Texas today must be able to consider age, in and of itself, as a justification for a sentence less than death. 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. 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. Appellant’s jury *35was not provided a mechanism by which, in its reasoned moral response to the fact of his youth, it could assess a sentence less than death — irrespective of its answers to the statutory special issues. Absent such a mechanism, his sentence of death cannot be squared with the Eighth Amendment.
For this reason, because the Court refuses to grant rehearing in this cause, and reverse the conviction and remand to the trial court under Article 44.29(c), Y.A.C.C.P., I respectfully dissent.
MALONEY, J., joins.