filed a concurring opinion in which KEASLER, J., joined.
Applicant has raised only an unpre-served federal constitutional claim that the two statutory special issues and the non-statutory “nullification” instruction at his 1991 capital murder trial did not provide the jury with a vehicle to give appropriate effect to applicant’s mitigating evidence. This Court disposes of this unpreserved *473claim on an independent state ground under our state-law “egregious harm” standard for “unobjected-to jury-charge error.”1 See Jimenez v. State, 32 S.W.3d 233, 237-39 (Tex.Cr.App.2000). This essentially is the same review for unpre-served issues in the federal system. See Jimenez, 32 S.W.3d at 238; see also United States v. Olano, 507 U.S. 725, 730-32, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993).
The Court’s opinion asserts that applicant could theoretically have suffered “some” actual harm from the “deficient” charge because the “two [statutory] special issues may not have fully and completely encompassed every single bit of applicant’s mitigation evidence.” See Smith, op. at 472.2 The Court nonetheless decides that applicant suffered no “egregious harm” from the “deficient” charge because the jury could still have meaningfully (though not fully) considered any mitigating evidence within the context of the two statutory special issues under the circumstances of this case. See Smith, op. at 472 (applicant fails to provide any persuasive argument that the jury was unable to consider the totality of his extensive mitigating evidence, to appreciate his punishment theme, or to take into account the specific evidence of his relatively low I.Q. test at the age of thirteen, his participation in a special education reading program and speech therapy, or his troubled family background).3
I would decide, however, consistent with the United States Supreme Court’s decision in Johnson v. Texas, that the Constitution requires only that a jury be provided with a vehicle to meaningfully consider mitigating evidence and not, as the Court’s opinion seems to decide, a vehicle to “fully and completely” consider mitigating evidence. See Johnson v. Texas, 509 U.S. at 354, 368-72, 113 S.Ct. 2658, 125 L.Ed.2d 290. (1993) (Constitution requires only that a jury have some “meaningful basis” to give effect to mitigating evidence not that “a jury be able to give effect to mitigating evidence in every conceivable manner in which the evidence might be relevant”).4 *474Since the two statutory special issues provided applicant’s jury with a vehicle to meaningfully consider applicant’s mitigating evidence, there was no deficient charge (i.e., no error) and consequently applicant could have suffered no harm, particularly if the Supreme Court’s decision in Johnson is still good law. See also Ex parte Smith, 132 S.W.3d 407, 427-28 (Tex.Cr.App.2004) (Hervey, J., concurring). Under these circumstances, the additional, nonstatutory “nullification” instruction was completely gratuitous and could only have benefitted applicant by providing the jury with another vehicle to consider any mitigating evidence more fully than what Johnson and the Constitution require. See id.
So, even if the law requires that a jury be provided with a vehicle to “fully and completely” consider mitigating evidence,5 the “nullification” instruction, particularly with the way that it was carefully explained to the jurors during voir dire, accomplished this. See Smith, 132 S.W.3d at 427-28 (Hervey, J., concurring). Since we are disposing of this case on an independent state ground, we are not bound by the view expressed in Penry II, 532 U.S. at 801-02, 121 S.Ct. 1910 that Texas jurors are incapable of remembering, understanding and giving effect to the straightforward and manageable “nullification” instruction such as the one in this case. See Smith, 132 S.W.3d at 427 (Hervey, J., concurring).
I concur in the Court’s judgment to deny habeas corpus relief.
. See Ex parte Smith, S.W.3d slip op. at 2 (Tex.Cr.App. No. AP-74,228, delivered this date) (op. on remand from United States Supreme Court).
. This apparently is the reason the Court considers the charge to be deficient; i.e., the charge did not provide the jury with a vehicle to "fully” consider some mitigating evidence.
. The Court’s opinion also states, Smith, slip op. at 472;
It is possible that the two [statutory] special issues may not have fully and completely encompassed every single bit of applicant’s mitigation evidence and he may have suffered "some” actual harm. However, we do not find that the deficient charge was so egregiously injurious to his right to have the jury consider and evaluate all of his mitigation evidence that he did not .receive a "fundamentally fair trial.” [Footnote omitted], All of his mitigating evidence was admitted, defense counsel did a superb job of weaving all of that evidence into a corn-pelling theory of the case, and his attorneys presented a strong, coherent, and persuasive closing argument on punishment. We therefore conclude that applicant has failed to show, by a preponderance of the evidence, that the unobjected-to jury nullification instruction caused him "egregious harm.”
.Footnote 4 of the Court's opinion in this case cites to former Justice O’Connor’s 5-4 decision in Part III-B of Penry v. Johnson, 532 U.S. 782, 797, 121 S.Ct. 1910, 150 L.Ed.2d 9 (2001) (Penry II), which quotes from her dissenting opinion in Johnson, for the proposition that a jury must have a vehicle to give “full consideration and full effect to mitigating” evidence. See Smith, slip op. at 457 n. 4 (emphasis originally in Penry II and Smith). Such a rule, however, would "effec[t] a sea change” and require a significant alteration in the Supreme Court’s capital sentencing jurisprudence as very thoroughly discussed in Justice Kennedy's majority opinion for the Court in Johnson, 509 U.S. at 365-*47473, 113 S.Ct. 2658. It would be veiy difficult to conclude that Penry II overruled all of this jurisprudence, particularly lohnson, without expressly saying so. It would be even more difficult to conclude that Justice Kennedy, in joining Part III-B of former Justice O’Con-nor’s opinion in Penry II, repudiated sub si-lentio the position that he so very thoroughly set out in Johnson.
. But see Johnson, 509 U.S. at 372, 113 S.Ct. 2658 (Constitution does not require that "a jury be able to give effect to mitigating evidence in every conceivable manner in which the evidence might be relevant”).