dissenting.
I.
I dissent first of all to the majority’s disposition of appellant’s third point of error in this cause, in which he complains that the trial court erred in granting the State’s challenge for cause against venireman Frede. The majority holds that the trial court was justified in finding that Frede’s “feelings” about the death penalty “may have prevented her from answering the statutory questions without conscious distortion or bias.” At 444. The trial court, however, never made such a finding. In fact, it is apparent to me that the trial court believed assertions made by Frede that she could answer special issues honestly and in accordance with the evidence, even if her answers resulted in imposition of the death penalty. The trial court nevertheless granted the State’s challenge for cause on the authority of Ellis v. State, 726 S.W.2d 39 (Tex.Cr.App.1986), for no other reason than that Frede opined that if given the opportunity to opt out of the distasteful duty to honestly answer the special issues, she would. In my view this cause demonstrates the distortion Ellis has created in the law.
A.
Venireman Frede acknowledged she had “reservations” about the death penalty. Asked whether her reservations would cause her to answer one of the special issues “no” irrespective of evidence proving to her beyond a reasonable doubt they should be answered “yes,” Frede at first equivocated, by which I mean she answered, “I don’t know.” Pressed for a more definite answer, she indicated she could not answer the questions in a way that would result in imposition of the death penalty. However, when the trial court questioned her, Frede apparently changed her tune, and from that point on maintained steadfastly that she could answer the special issues honestly and in accordance with the evidence. She later explained the apparent inconsistency to the prosecutor, thusly:
“Okay. Let me tell you what I understand about all this because it’s plenty confusing. At first I thought that I was being asked that given the choice would I not be on this jury because of the death penalty, and I said I would not. Then *450the other question I was asked was if I’m forced to be on the jury, even though I don’t want to be on this kind of a jury, could I answer truthfully to those questions and the answer to that is yes.”
And so she answered, without deviation, for the remainder of her voir dire.
In initially denying the prosecutor’s challenge for cause, the trial court opined:
“... I think in every case when a juror expresses a personal prejudice against the law, the question then becomes can they set it aside for this trial. There are lots of laws jurors don’t agree with; but when they take an oath to follow the law, can they follow the law where it says ‘yes,’ then they are qualified. This woman has stated a number of times now if she takes an oath as a juror to follow the law in Texas, if she believes beyond a doubt the answer to both of those questions should be ‘yes,’ she will answer them yes. She has stated if she takes an oath as a juror she will follow what the law is.
[Prosecutor]: She said she wouldn’t take the oath—
THE COURT: In my mind jurors do not have a choice as to whether or not they want to take an oath.”
I am on record as being in agreement with this last remark. Hernandez v. State, 757 S.W.2d 744, at 753 (Tex.Cr.App.1988) (Plurality Opinion). At any rate, at this juncture the trial court denied the State’s challenge for cause, but agreed to look at any authority the prosecutor could muster over the lunch hour.
Immediately upon reconvening after lunch, the trial court again questioned venireman Frede:
“THE COURT: A couple more minutes, Dr. Frede. Just one question. You previously stated that if you took an oath to serve as a juror; if the State proved to you beyond a reasonable doubt that the defendant was guilty, you’d find him guilty; if the State proved to you beyond a reasonable doubt that the answers to each one of these questions should be “yes” you would answer them ‘yes.’
THE PANELIST: That is correct.
■ THE COURT: You’ve also previously stated that you would not want to take the oath as juror.
THE PANELIST: That’s right.
THE COURT: All right. Understanding that there is no penalties in any way, shape or form for refusing to take an oath as a juror, if I were to ask you to stand up and swear you in and you can say I will refuse to take the oath and no problem, you refused. You can walk out of the courtroom, you know, no penalty, no consequences, no nothing. The only result is you would not serve as a juror. Based on what you have told us, if I were to ask you to stand up right now and to swear you to the following oath that you would a true verdict render according to the law and the evidence, what would be your response? Would you swear to the oath as a juror or would you say Judge, I’d like to — I will not take the oath.
THE PANELIST: If I’m given the choice I would say I would not take the oath.
THE COURT: Okay.
[PROSECUTOR]: The State would renew its challenge for cause.
THE COURT: That will be granted.”
The prosecutor did indeed supply the trial court with authority during the lunch hour, viz: Ellis v. State, supra. There, as here, a venireman who said he would answer special issues honestly and in accordance with the evidence was challenged for cause because he acknowledged that he “would not want to” take an oath to “a true verdict render,” Article 35.22, V.A.C.C.P., knowing it might force him, should the evidence dictate, to answer special issues in such a way as to cause imposition of the death penalty.1
*451B.
Ellis does not authorize granting of the challenge for cause in this cause. The reason the Court in Ellis held that a venireman’s statement that he would prefer not to take the oath will support the granting of a State’s challenge for cause is that it is some evidence that, despite assertions to the contrary, the venireman really will likely be so affected by his scruples against the death penalty as to consciously distort his answers to special issues. See 726 S.W.2d at 43-44. Obviously I have rejected this reasoning. Id., at 51-53 (Clinton, J., dissenting). But even if I agreed with the Ellis majority that a mere preference not to take the oath is some evidence of a propensity to distort, I would reverse this cause.
A venireman who maintains he can follow the law should not be deemed subject to challenge for cause on no other ground than that he would prefer not to be put in that position, and would refuse if given that option. “The only reason for a juror to refuse to take the oath is if he cannot follow it.” Ellis v. State, supra at 53 (Clinton, J., dissenting). See also Hernandez v. State, supra; Farris v. State, 819 S.W.2d 490 (Tex.Cr.App.1990) (Teague, J., dissenting). Clearly the trial court believed venireman Frede could follow the oath if she were to take it. Otherwise he would have granted the State’s challenge for cause before the lunch recess. But, confronted with this Court’s holding in Ellis, the trial judge nevertheless granted the State’s challenge for cause. He did so not because he felt Frede’s preference not to take the oath was an indication she could not discharge her duty honestly and without conscious bias or distortion. Clearly he believed she could. Rather, he did so because he believed that Ellis authorized the granting of the State’s challenge for cause against Frede solely because she acknowledged that she would find that duty distasteful, and would avoid it if possible. Such a venireman has given no basis for a conclusion that he or she is “substantially impaired” under Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980).2
The majority side-steps reversible error by deferring to a finding by the trial court that was never made. At 444-45. The trial judge here did not excuse Frede for cause because he regarded her preference not to take the oath as an indication she could not follow the law. The trial judge excused her because she preferred not to take the oath, period. Presumably even the majority in Ellis would not have endorsed such a rule.
I would hold that the trial court excused Frede upon an impermissibly broad basis under the Sixth and Fourteenth Amendments to the United States Constitution. Such error is not subject to a harm analysis. Davis v. Georgia, 429 U.S. 122, 97 S.Ct. 399, 50 L.Ed.2d 339 (1976); Gray v. Mississippi, 481 U.S. 648, 107 S.Ct. 2045, 95 L.Ed.2d 622 (1987). For this reason, if no other, the conviction should be reversed and remanded.
*452II.
I also dissent to majority’s disposition of appellant’s seventh point of error. Appellant claims that Article 37.071, Y.A.C.C.P., was unconstitutional as applied to him, in that the special issues did not account for the full significance of his mitigating evidence at the punishment phase of trial. I agree.
Appellant’s evidence in mitigation is of the childhood abuse variety. In general outline it shows the following: As an infant he was left to fend for himself all night while his natural mother was at work. At age three-and-a-half his mother abandoned him. At that time he was still wearing diapers, had a diet consisting exclusively of hamburgers and french fries, and had not been toilet trained. He was adopted by parents whom appellant’s teachers later suspected of sexually abusing him. His adoptive father disciplined appellant harshly, taking a strap to him, sometimes until he was bloody, and sending him to school unbathed and unfed as a form of punishment. His adoptive mother once punished him with a hot iron. He wore dirty, “worn out,” ill-fitting clothes, and was subject to the disdain of his peers. Appellant developed behavioral problems, and there is some evidence he suffered from a hearing impairment and a learning disorder. One school authority testified appellant manifested “deep emotional problems.” He spent time in and out of juvenile and foster facilities and was expelled from his adoptive home for good at the age of seventeen. He was only twenty when he committed the instant crime.
Appellant’s evidence of disadvantaged background, history of family abuse, and emotional problems is at least as compelling, if not more so, as that presented by Penry himself. Penry v. Lynaugh, 492 U.S. 302, at 309, 109 S.Ct. 2934, at 2941-42, 106 L.Ed.2d 256, at 272 (1989). It is not likely that such evidence will have any bearing on the jury’s answers to the special issues, unless it be to persuade jurors that appellant will in fact pose a probable future danger. Thus, appellant’s evidence will have only an aggravating, not mitigating tendency as it relates to the current Texas capital sentencing scheme. Yet, to allow no mitigating effect to this evidence runs counter to “the belief, long held by this society, that defendants who commit criminal acts that are attributable to a disadvantaged background, or to emotional and mental problems, may be less culpable than defendants who have no such excuse.” Penry v. Lynaugh, supra, 492 U.S. at 319, 109 S.Ct. at 2947, 106 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).
Moreover, appellant’s jury was precluded from giving any mitigating effect to the fact of his relative youth. 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. Although various factors, including Lockett’s age, 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. 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 *453youth 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 has Eighth Amendment relevance as mitigating evidence, quite apart from whatever bearing it may have on the statutory special issues.3
It is true that in Stanford v. Kentucky, 492 U.S. 361, 109 S.Ct. 2969, 106 L.Ed.2d 306 (1989), 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. This does not mean, however, that youth has lost its constitutionally mitigating significance. In Penry 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 2991, 49 L.Ed.2d at 961. That aspect is not fully circumscribed by special issues. “The Eighth Amendment requires more than some consideration of mitigating evidence.” Graham v. Collins, — U.S. -, -, 113 S.Ct. 892, 925, 122 L.Ed.2d 260 (1993) (Souter, J., dissenting).
Appellant’s jury was given no mechanism for expressing its reasoned moral response to this mitigating evidence, and to impose, should it choose to do so, a sentence less than death. Penry v. Lynaugh, supra, U.S. at 328, S.Ct. at 2952, L.Ed.2d at 284. I therefore agree with appellant that Article 37.071, supra, is unconstitutional as applied in his case, and he has been sentenced to death under circumstances violative of the Eighth Amendment. Gribble v. State, 808 S.W.2d 65, at 75 (Tex.Cr.App.1990). For this reason, also, the cause should be reversed and remanded. Because the majority does not, I respectfully dissent.
BAIRD, J., joins.. Would we hold in a prosecution for robbery that a venireman who maintains he would not define the offense of robbery as the legislature chose to do in V.T.C.A.Penal Code, § 29.02, but would abide by the legislative definition if selected to serve on the jury, would nevertheless be subject to challenge for cause because he also maintained that if given a choice, he simply would not take the Article 35.22 oath? There is *451nothing intrinsic to the holding in Ellis that limits its application to capital voir dire issues.
. The State argues appellant did not preserve error in that he failed to object to the trial court’s grant of the challenge for cause. I disagree. Shortly before the court adjourned for the lunch break appellant announced:
"Could we have the record reflect we will object to the challenge in that it is a challenge based on the rationalization of the Supreme Court case of Adams and they are challenging her on an oath and not on whether or not she can be a fair and impartial juror based on her feelings about the death penalty.”
In context it is clear appellant was thus objecting to the prosecutor’s position that because Frede did not want to take the oath she was disqualified, even though she had made it clear she could abide by the oath if she took it. This is precisely his argument on appeal. At no point after the lunch break did appellant ever say or do anything that would ”create[] the distinct impression that he was abandoning his opposition to the motion to dismiss for cause.” Compare Purtell v. State, 761 S.W.2d 360, at 366 (Tex.Cr.App.1988). On the contrary, he objected that the trial court sustained the challenge for cause without allowing him another opportunity to question the venireman. The trial judge was well aware that appellant opposed the challenge, and that he was ruling on a "contested” point. Purtell, supra. In my view appellant preserved error. See Crane v. State, 786 S.W.2d 338, at 345 (Tex.Cr.App.1990).
. As I understand it, the recent opinion of the United States Supreme Court in Graham v. Collins, — U.S. -, 113 S.Ct. 892, 122 L.Ed.2d 260 (1993), does not stand for the proposition that evidence of youth does not call for the additional instruction Penry held the Eighth Amendment required. Graham simply held that the precedent that dictated Penry did not necessarily dictate an additional mitigating instruction to accommodate evidence of youth, which may be given at least some mitigating effect in context of the second special issue. — U.S. at -, 113 S.Ct. at 902. Thus, to hold that evidence of youth requires an additional instruction beyond the statutory special issues would constitute a "new rule” for purposes of federal habeas corpus review, under Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). Because Teague bars application of a “new rule” on federal habeas corpus, the Supreme Court did not reach the merits of Graham’s contentions. Whether the Supreme Court will ultimately adopt such a "new rule,” holding as an extrapolation of Penry that evidence of youth does call for an additional instruction, in a petition for writ of certiorari to this Court following a direct appeal here, is a question that remains open.