dissenting.
The majority believes the mitigating evidence in this cause is “much like that” in Franklin v. Lynaugh, 487 U.S. 164, 108 S.Ct. 2320, 101 L.Ed.2d 155 (1988); it then reads the Franklin plurality opinion to hold that “the second special issue adequately encompassed the character evidence presented in that case;” ergo, mitigating character evidence, being “unlike” evidence directly addressed in Penny v. Ly-naugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989), i.e., mental retardation and abusive childhood, and also amounting to nothing more than “common courtesy which was given full effect with the special issue,” has “no significance independent of its relevance to the second special issue.” At 111-112. To test those views we must first revisit the opinions in Franklin v. Lynaugh and then take a closer look at Penny.
In Franklin, “The sole mitigating evidence petitioner presented was the stipulation that petitioner’s disciplinary record while incarcerated from 1971-1974 and 1976-1980 was without incident.” Franklin, 487 U.S. at 168, 108 S.Ct at 2324, 101 L.Ed.2d at 162.1 The periods mentioned were both before and after the murder of deceased for which he was convicted. Id. at 177, 108 S.Ct. at 2328, 101 L.Ed.2d at 167.
The plurality opinion rejected the contention that the jury could not and did not adequately consider his disciplinary record during his periods of incarceration. Id. at 177-178, 108 S.Ct. at 2329, 101 L.Ed.2d at 168.
First noted was that Franklin was accorded a full opportunity to have the jury “consider and give effect to any mitigating impulse that [his] prison record might have suggested to the jury,” viz:
“In resolving the second Texas Special Issue the jury was surely free to weigh and evaluate [his] disciplinary record as *126it bore on his ‘character’ — that is, his ‘character’ as measured by his likely future behavior. We have never defined what the term ‘character’ means when we have held that a defendant’s ‘character’ is a relevant consideration in capital sentencing, [note citing eases omitted]. But nothing in our cases supports [his] contention that relevant aspects of his ‘character,’ as far as they were illuminated by the presentation of evidence concerning [his] disciplinary record, encompassed anything more than those matters fully considered by the jury when it was asked to answer the second special issue.
Indeed, our discussion in Skipper [v. South Carolina, 476 U.S. 1, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986) ] of the relevancy of such disciplinary record evidence in capital sentencing decisions dealt exclusively with the question of how such evidence reflects on a defendant’s likely future behavior. See Skipper, supra, at 4-5 [106 S.Ct. at 1670-71], * * * Furthermore, we note that nothing in petitioner’s presentation or discussion of his prison record at the sentencing hearing urged the jury to consider petitioner’s record as probative of anything more than that the answer to the question posed by Special Issue Two should be ‘No. ’ ... Even in this Court, in seeking to define how his prison record shed light on one’s ‘character,’ petitioner has cast his argument in terms of future dangerousness. [note omitted].”2 Id., 487 U.S. at 178-179, 108 S.Ct. at 2329-2330, 101 L.Ed.2d at 168-169.
Next, the plurality found unavailing his reliance on a statement in Eddings v. Oklahoma, 455 U.S. 104, at 114, 102 S.Ct. 869, at 877, 71 L.Ed.2d 1, at 11 (1982), that the sentencing jury may not be precluded from considering “any relevant mitigating evidence.” Essentially its reasoning seems to be that although Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), made clear that “the State cannot take out of the realm of relevant sentencing considerations the questions of the defendant’s ‘character,’ ‘record,’ or the ‘circumstances of the offense,’ ” and while “it may be advisable for a State to provide the jury with some framework for discharging these responsibilities,” the Court has never held that “a specific method ... is constitutionally required.” Id., 487 U.S. at 179, 108 S.Ct. at 2330, 101 L.Ed.2d at 169. In short, except that it may not prevent consideration of such relevant evidence, the State is constitutionally free to deal with matters in mitigation (just as this Court had been doing since Ex parte Granviel, 561 S.W.2d 503, 516 (Tex.Cr.App.1978), on through Adams v. State, 577 S.W.2d 717, 730 (Tex.Cr.App.1979), Quinones v. State, 592 S.W.2d 933, 947 (Tex.Cr.App.1980), and Stewart v. State, 686 S.W.2d 118, at 121-122 (Tex.Cr.App.1984), to, including and beyond, e.g., Penry v. State, 691 S.W.2d 636, 653-654 (Tex.Cr.App.1985)).
Accordingly, the plurality concluded:
“We are thus quite sure that the jury’s consideration of petitioner’s prison record was not improperly limited. The jury was completely free to give that evidence appropriate weight in arriving at its answers to the Special Issues. And as for the claim that the jury should have been instructed that, even if its answer to the Special Issues was ‘Yes,’ it was still entitled to cast an ‘independent’ vote against the death penalty, we note that this submission is foreclosed by Jurek, which held that Texas could constitutionally impose the death penalty if a jury returned ‘Yes’ answers to the two Special Issues. [note responding to dissenting opinion omitted].” Id., 487 U.S. at 179-180, 108 S.Ct. at 2330, 101 L.Ed.2d at 169.
That last pronouncement is the issue that most concerned the remaining members of *127the Court, they, of course, constituting a majority.
In a separate concurring opinion joined by Justice Blackmun, Justice O’Connor expressed “doubts about a [capital punishment] scheme that is limited in such fashion." Id., at 183, 108 S.Ct. at 2332, 101 L.Ed.2d at 172. She agreed, that to the extent the mitigating evidence was relevant to one of the special issues, the jury was free to give effect to that evidence by answering, “No.” But she went on to posit a thesis that would become the central proposition which later would save the constitutionality of our death penalty statute, 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. If this were such a case, then we would have to decide whether the jury’s inability to give effect to that evidence amounted to an Eighth Amendment violation.” Id., at 185, 108 S.Ct. at 2333, 101 L.Ed.2d at 173.
But in her view this was not such a case:
“ ... The only mitigating evidence introduced by petitioner was the stipulation that he had no record of disciplinary violations while in prison. It is undisputed that the jury was free to give mitigating effect to this evidence in answering the special verdict question regarding future dangerousness. While it is true that the jury was prevented from giving mitigating effect to the stipulation to the extent that it demonstrated positive character traits other than the ability to exist in prison without endangering jailers or fellow inmates, that limitation has no practical or constitutional significance in my view because the stipulation had no relevance to any other aspect of petitioner’s character. * * *
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. ... Evidence of voluntary service, kindness to others, or of religious devotion might demonstrate positive character traits that might mitigate against the death penalty. Although petitioner argued to the sentencing jury that his prison record demonstrated his lack of future dangerousness, petitioner did not suggest that his lack of disciplinary violations revealed anything more positive about his character than that.... This is not surprising, because the lack of a prison disciplinary record reveals nothing about a defendant’s character except that the defendant can exist in the highly structured environment of a prison without endangering others.” Id., at 185-186, 108 S.Ct. at 2333-2334, 101 L.Ed.2d at 173-174.
In other words, a good disciplinary record in prison is NOT like positive character traits than might militate against jurors’ giving the death penalty and thus have relevance beyond the scope of the special issues.
So six Justices would not accept a “clean” disciplinary record while incarcerated as evidence of general character.3 The plurality further found that Jurek foreclosed a claim that the jury should have been instructed that it was entitled to *128cast an independent vote against the death penalty on that evidence, ante, at 126; whereas two concurring Justices suggested otherwise with respect to, inter alia, evidence which “might demonstrate positive character traits that might mitigate against the death penalty,” ante, at 127. The three dissenting Justices took a broader view concerning issues of admissibility and instructions respecting evidence of character.4
The resultant proposition supported in common by the concurring and dissenting opinions is that mitigating evidence about back-ground, character or circumstances of the offense may have relevance beyond the scope of the special issues. The majority opinion in Penry accepted that proposition and made it the ratio decidendi that saved our capital punishment scheme under Article 37.071, V.A.C.C.P., from certain constitutional extinction. Penry, 492 U.S. *129at 320-21, 109 S.Ct. at 2948, 106 L.Ed.2d at 279-280.
The Supreme Court agreed with Penry that “his mitigating evidence of mental retardation and childhood abuse 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.” Id. at 322, 109 S.Ct. at 2948, 106 L.Ed.2d at 280. It disagreed with the State’s contention that to so enable the jury by instructing that it could render “a discretionary grant of mercy, or say ‘no’ to the death penalty ... would be to return to the sort of unbridled discretion that led to Furman v. Georgia [.] ”
“ But as we made clear in Gregg [v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976) ], so long as the class of murderers subject to capital punishment is narrowed, there is no constitutional infirmity in a procedure that allows a jury to recommend mercy based on the mitigating evidence introduced by a defendant. Id. at 197-199, 203 [96 S.Ct. at 2936-37, 2939]. * * *
‘In contrast to the carefully defined standards that must narrow a sentencer’s discretion to impose the death sentence, the Constitution limits a State’s ability to narrow a sentencer’s discretion to consider relevant evidence that might cause it to decline to impose the death sentence.’ McCleskey v. Kemp, 481 U.S. 279, 304 [107 S.Ct. 1756, 1773, 95 L.Ed.2d 262] (1987) ... (emphasis in original). Indeed, it is precisely because the punishment should be directly related to the personal culpability of the defendant that the jury must be allowed to consider and give effect to mitigating evidence relevant to a defendant’s character or record or the circumstances of the offense. Rather than creating the risk of an unguided emotional response, full consideration of evidence that mitigates against the death penalty is essential if the jury is to give a ‘reasoned moral response to the defendant’s background, character, and crime,’ Franklin, 487 U.S., at 184 [108 S.Ct. at 2333], ... (opinion concurring in judgment) [last emphasis in original] (quoting California v. Brown, 479 U.S. [538] at 545 [107 S.Ct. 837, 841, 93 L.Ed.2d 934 (1987) ] (concurring opinion)). In order to ensure ‘reliability in the determination that death is the appropriate punishment in a specific case,’ ... the jury must be able to consider and give effect to any mitigating evidence relevant to a defendant’s background, character, or the circumstances of the crime.” Id., 492 U.S. at 328, 109 S.Ct. at 2951, 106 L.Ed.2d at 283-284.
Applying the law thus declared, the majority came to its conclusion in Penry, via:
“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 sentencing decision. Our reasoning in Lockett 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.’ Lockett, 438 U.S., at 605 [98 S.Ct. at 2965], ... Eddings, 455 U.S., at 119 [102 S.Ct. at 879], ... (concurring opinion). ‘When the choice is between life and death, that risk is unacceptable and incompatible with the commands of the Eighth and Fourteenth Amendments.’ Lockett, 438 U.S., at 605 [98 S.Ct. at 2965]." ... Id., 492 U.S. at 328, 109 S.Ct. at 2952, 106 L.Ed.2d at 284.5
*130While it is true that the mitigating evidence in Penry is limited to mental retardation and abusive childhood, beyond peradventure the Supreme Court laid down a constitutional rule applicable to more kinds of relevant mitigating evidence than those two, viz: background, character, record, or circumstances of the offense.
As to character, a majority in Franklin agreed that, for example, voluntary service, kindness to others, and religious devotion might demonstrate positive character traits which may mitigate against the death penalty — expressly contrasting lack of prison disciplinary violations. Yet, unlike the Franklin majority, the majority here equates the former with the latter, and summarily — but contrary to the Franklin majority — says the former is given “full effect with the [second] special issue.” At 112.6
In my view, the majority egregiously misreads Penry and opinions reflecting majority views in Franklin in this rare instance involving positive character traits. Compare Gribble v. State, 808 S.W.2d 65 (Tex.Cr.App., 1990). Therefore, I respectfully dissent to such an early departure from their teachings.
MALONEY, J., joins.. All emphasis is mine here and throughout this opinion unless otherwise indicated.
. More specifically, Franklin argued that his behavior in prison demonstrated "the strength of character" such that "so long as he stayed in prison there was no probability that he would pose a threat to others." But the plurality agreed with the State’s rejoinder that "the question of a defendant’s likelihood of injuring others in prison is precisely the question posed by the second Texas Special Issue." Id., 487 U.S. at 179, n. 9, 108 S.Ct. at 2330, n. 9, 101 L.Ed.2d at 169, n. 9.
. As the plurality opinion recognized, the Supreme Court has never “defined what the term ‘character’ means when we have held that a defendant’s ‘character’ is a relevant consideration in capital sentencing." See ante, at 125. However, as used in law, the term is not without definitions.
“The aggregate of the moral qualities which belong to and distinguish an individual person; the general result of one’s distinguishing attributes.” Black’s Law Dictionary (Fourth Rev. Ed. 1968) 294; and see related definitions in decisions cited therein.
"Character is a generalized description of a person’s disposition in respect to a general trait, such as honesty, temperance or peacefulness.” 1A Wigmore, Evidence § 52, at 1148 (Tillers rev. 1983), as quoted in Goode, Wellborn & Sharlot, Texas Rules of Evidence § 404.2, 33 Texas Practice 104.
. In his dissenting opinion Justice Stevens, with Justice Brennan and Justice Marshall, first explained mitigating effects of the fact that during imprisonment aggregating about seven years appellant committed no disciplinary violations, viz:
"... That evidence militated against imposition of the death sentence in two quite different ways. Looking to the past, it suggested the possibility that petitioner's character was not without some redeeming features; a human being who can conform to strict prison rules without incident for several years may have virtues that can fairly be balanced against society's interest in killing him in retribution for his violent crime. Looking to the future, that evidence suggested that a sentence to prison, rather than to death, would adequately protect society from future acts of violence by petitioner. The evidence was admissible for both purposes.
* * * 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. Evidence of past good behavior in prison is relevant in this respect just as is evidence of 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 the sentencer something about the defendant’s personality. Importantly, for example, it may suggest that the conduct of which 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. Further, the evidence of petitioner's past prison conduct was relevant to show the appropriateness of the alternative punishment of imprisonment for him, another reflection of his character, (emphasis in original) Thus evidence of petitioner’s conduct in prison ‘encompassed ... more than [just] those matters ... considered by the jury when it was asked to answer the second Special Issue,' ... which asked only if there was a probability that petitioner would commit future criminal acts of violence.” Id., 487 U.S. at 189-191, 108 S.Ct. at 2335-2336, 101 L.Ed.2d at 176.
The dissenters went on to point how applicable law required an appropriate instruction, viz:
"Our cases explicating the role of mitigating evidence in capital sentencing have rigorously enforced one simple rule: A sentencing jury must be given the authority to reject imposition of the death penalty on the basis of any evidence relevant to the defendant’s character or record or the circumstances of the offense proffered by the defendant in support of a sentence less than death. That rule does not merely require that the jury be allowed to hear any such evidence the defendant desires to introduce [citations omitted], it also requires that the jury be allowed to give 'independent mitigating weight’ to the evidence. Lockett v. Ohio, 438 U.S. 586, 605 [98 S.Ct. 2954, 2965, 57 L.Ed.2d 973] (1978) [note omitted]; Eddings v. Oklahoma, 455 U.S. 104, 112-113 [102 S.Ct. 869, 875-76, 71 L.Ed.2d 1] (1982). * * *
On its face, the Texas capital punishment scheme makes no mention of mitigating evidence. ... Although the jury was informed that if it answered both issues 'yes’ petitioner would be sentenced to death, neither of the Special Issues as they would have been understood by reasonable jurors gave the jury the opportunity to consider petitioner's mitigating evidence of past good conduct in prison to the extent that it encompassed matters beyond those relevant to answering the Special Issues. Petitioner was therefore at least entitled to an instruction informing the jury that it could answer one of the issues 'no' if it found by that evidence that petitioner’s character was such that he should not be subjected to the ultimate penalty. The failure to give such an instruction removed that evidence from the sentencer’s consideration just as effectively as would have an instruction informing the jury that petitioner's character was irrelevant to its sentencing decision.” Id., 487 U.S. at 191-193, 108 S.Ct. at 2336-2337, 101 L.Ed.2d at 177-178.
Accordingly, the dissenters concluded: "Under our cases, the substantial risk that the jury failed to perceive the full ambit of consideration to which evidence of petitioner’s past good conduct was entitled requires us to vacate the death sentence and remand for resentencing.” Id. at 194, 108 S.Ct. at 2338, 101 L.Ed.2d at 179.
. Skeptics with doubts about a constitutional demand that "the jury [must be] provided with a vehicle for expressing its ‘reasoned moral response’ to [mitigating] evidence in rendering its sentencing decision” will gain an understanding of its breadth upon perusing Part II-B of the opinion concurring in part and dissenting in part by Justice Scalia. He perceives the Penry formulation to be "a scheme that simply dumps before the jury all sympathetic factors bearing upon the defendant’s background and character, and the circumstances of the offense, so that the jury may decide without further guidance *130whether he [deserves to die]." See 492 U.S. at 359, 109 S.Ct. at 2968, 106 L.Ed.2d at 304.
Hyperbole in opposition to a proposition may well serve to enhance an appreciation of its rational verity — as expressed by the late Judge Morrison:
“Some discretion is inherent and desirable in any system of justice, from arraignment to final judgment. ... To eliminate all discretion on the part of the jury would be to risk elimination of that valuable element which permits individualization based on consideration of all extenuating circumstances and would eliminate the element of mercy, one of the fundamental traditions of our system of criminal jurisprudence.” Jurek v. State, 522 S.W.2d 934, at 940 (Tex.Cr.App.1975).
Alas, only Judge Odom rightly discerned that our newly enacted scheme “allow[ed] no discretion in determining the punishment to be received by a defendant who is guilty of capital murder.” Id., at 944. Now, however, with the formulation of Penry, the mandate that a jury shall be allowed to exercise its discretion has been restored, and it must be provided with a vehicle for expressing its "reasoned moral response” to mitigating evidence in rendering its ultimate decision.
. The majority says that any other holding “would be tantamount to declaring the capital sentencing scheme unconstitutional.” At 112. It must have in mind the proverbial caution about never allowing "the nose of the camel inside the tent.” That is, to recognize a character trait that it labels as "common courtesy” could raise the flap for other asserted traits that ultimately would overcome the deadly conse- ' quences of affirmative answers to special issues.
Moreover, the majority seems to believe the constitutionality of our scheme is securely intact, as is. But the plurality opinion in Franklin rejected a claim that refusal to give his requested instructions violated his Eighth Amendment right to present mitigating evidence, and expressly concluded his submission that a special instruction allowing the jury "to cast an ‘independent’ vote against the death penalty ... is foreclosed by Jurek," noting that Jurek has not been overruled, "and we are not inclined to take any such action now.” Id., 487 U.S. at 180, 108 S.Ct. at 2330, 101 L.Ed.2d at 169. Its disinclination is fully justified, of course, by the facts that Franklin himself did not challenge the constitutionality of the scheme and expressly "disavowed any request for this Court to overrule its decision in Jurek." Id., 487 U.S. at 171, 108 S.Ct. at 2325, 101 L.Ed.2d at 164.
Penry is another matter, however. As in Franklin, Penry contended that "in the absence of his requested jury instructions, the Texas death penalty statute was applied in an unconstitutional manner by precluding the jury from acting upon particular mitigating evidence he introduced." Id., 492 U.S. at 320, 109 S.Ct. at 2947, 106 L.Ed.2d at 279. It cannot be gainsaid that this time the Supreme Court agreed; mainly because a majority “understood Jurek as resting fundamentally on the express assurance that the special issues would permit the jury to fully consider all the mitigating evidence a defendant introduced that was relevant to the defendant’s background, character, and to the circumstances of the offense,” only to discover that in truth and in fact such assurance was not being implemented in actual practice. Id., 492 U.S. at 321, 328-30, 109 S.Ct. at 2948, 2952, 106 L.Ed.2d at 279-280, 284.
With deference, I suggest appellant is not inviting us "to overrule established Supreme Court precedent,” but merely to apply the clear holdings of Penry to the facts of his case.