dissenting.
In a consistent and unbroken line of cases since the Supreme Court’s decision in Penry v. Lynaugh 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989), this Court has held evidence of mental retardation cannot be adequately considered within the statutory punishment issues.1 However, rather than follow this settled precedent, the majority ignores it to reach a desired result. Accordingly, I am compelled to lodge this dissent.
I.
When the evidence raises a fact issue concerning the defendant’s mental retardation, the defendant is “entitled to an instruction *68empowering the jury to assess a penalty less than death, notwithstanding affirmative answers to the special issues, as a ‘reasoned moral response’ to the fact of his mental retardation.” Rios v. State, 846 S.W.2d 310, 315 (Tex.Cr.App.1992). In Rios, appellant presented “testimony from two witnesses to the effect that appellant tested in the mildly retarded range.” Id., at 315. Both of the witnesses had examined Rios five years prior to the date of the offense. After reviewing the evidence presented, this Court held:
In our view there was a reasonable likelihood that the jury in this case failed to understand that it was entitled to measure evidence of appellant’s mental retardation for whatever mitigating weight it may have apart from the special issues.... Article 37.071 ... does not expressly accommodate mitigating evidence apart from its relevance to the special issues. Without more explanation, an instruction that baldly tells the jury it may consider evidence to be mitigating that seems either altogether irrelevant to the special issues, or relevant only in an aggravating sense, is likely in the context of our scheme to confound rather than inform_ Without clearer guidance it seems likely the jury would limit its consideration of appellant’s mental retardation to whatever tendency it had to disprove deliberateness or to prove future dangerousness. Under Penry appellant was entitled to more.
Rios, 846 S.W.2d at 317.
In Ex parte Williams, 833 S.W.2d 150 (Tex.Cr.App.1992), the defense produced evidence through an expert witness that applicant had an I.Q. of 53, which is considered mentally retarded. Id., at 151. The State offered rebuttal testimony from an expert witness who testified that “mental retardation cannot be determined solely from intelligence tests” and that further tests would have to be conducted to determine if the applicant was actually mentally retarded. Id., at 152. This Court held “that applicant [Williams] was entitled to a charge instructing the jury that it could consider and give mitigating effect to evidence of his mental retardation.” Id. (footnote omitted). We so held even though the State argued that it was not a Penry case, because there was no evidence of organic brain damage or injury to the applicant. However, this Court specifically refused to interpret “Penry to be so limited[,]” Id. (citing Ramirez v. State, 815 S.W.2d 636, 655-56 (Tex.Cr.App.1991)), and held that when a fact issue is raised concerning the defendant’s mental retardation, the jury must be instructed in a manner allowing the jury to consider and give effect to such evidence. Id., at 152.2
In Ramirez v. State, 815 S.W.2d 636 (Tex.Cr.App.1991), we again held that evidence of mental retardation could not adequately be considered within the statutory punishment issues. In Ramirez, Dr. Sarmiento, a defense witness, testified that six years before Ramirez’s offense, Sarmiento reviewed an I.Q. test wherein Ramirez scored 57. On cross-examination, Sarmiento admitted he had never actually seen Ramirez and, at the time of the review, Sarmiento had counseled against finding Ramirez mentally retarded. Id., at 655. Even so, we held: “Upon review of this evidence and the Penry decision, we are compelled to conclude [Ramirez] was entitled to a charge instructing the jury that it could consider and give mitigating effect to [Ramirez’s] evidence.” Id., at 656.
In Ex parte McGee, 817 S.W.2d 77 (Tex.Cr.App.1991), evidence was presented that applicant had “scored 66 on an I.Q. test given shortly before trial” and that “[previous test *69results provided similar scores. ...”3 Id., at 80. This Court set aside the conviction, holding: “the record reflects that McGee was mentally retarded.” Id. Additionally, we again stated the importance of this type of evidence:
The Eighth Amendment prohibits imposition of the death penalty when the jury is not permitted to express a “reasoned moral response” to potentially mitigating evidence.... Because the jury was not allowed to consider McGee’s mitigating evidence of mental retardation and an abusive childhood as required by the Supreme Court’s holding in Penry v. Lynaugh, we set aside the conviction....
Id., at 80.
In Richard v. State, 842 S.W.2d 279 (Tex.Cr.App.1992), testimony was introduced at the guilt/innocence phase of appellant’s trial that he had “an I.Q. score of 62, which places him in the upper limits of the mentally defective range.” Id., at 281. The witness then agreed that appellant was “edueable mentally retarded[,]” but then on crossexamination he described appellant “as slow but not retarded — at least not in the way that most people think of retarded people, no.” Id. (internal quotations omitted). This Court held: “[tjhese mitigating facts are quite similar to those detailed in Ramirez ...” and that “[l]ike Ramirez, appellant tested in the ‘mentally defective’ range.” Id., at 283. Therefore, “appellant was entitled to a jury instruction authorizing the jury to impose a sentence less than death on the basis of this evidence.” Id., at 283.
In Ex parte Goodman, 816 S.W.2d 383 (Tex.Cr.App.1991), evidence was presented at the punishment hearing that applicant had an I.Q. of 56, an intellectual level of an eight or nine year old, attended school only to the sixth grade and that he possibly suffered from brain damage. Id., at 385-386. We granted habeas relief because the “jury was precluded from giving mitigating effect to [Goodman’s] evidence.” Id., at 386.
Especially compelling is the case of Ex parte Bell (Tex.Cr.App. No. 70,946, delivered November 6, 1991) (unpublished op.), where the following evidence was developed by Bell’s stepfather:
Question: Did — are you acquainted in any way — are you familiar with Walter’s IQ?
Answer: Yes.
Question: And what is that?
Answer: Fifty-four.
Question: And has it been that way for some time?
Answer: Yes.
Question: To your knowledge, was it that way back in Nineteen-seventy-four?
Answer: Yes.
Bell, slip op. pp. 2-3 (see Appendix). This Court held that “Bell presented sufficient evidence to raise the issue of his mental retardation[,]” Id., slip op. pg. 2, and therefore, “the jury was not instructed to consider and, if necessary, give effect to the mitigating evidence of [Bell’s] mental retardation.” Id., slip op. pg. 3.4
All these holdings were reaffirmed in Earhart v. State, 877 S.W.2d 759 (Tex.Cr.App.1994), where this Court held: “evidence of mental retardation falls beyond the scope of the statutory punishment issues.” Id., at 765 (emphasis added) (citation omitted). However, the majority does not even mention these cases, much less attempt to distinguish them from the instant case.5 It is the height of *70intellectual dishonesty to intentionally mislead the bench and bar by failing to inform them of controlling decisions of this Court.
II.
A.
The issue in this case is whether the jury had a vehicle by which it could consider the mitigating evidence.6 However, the majority intentionally misstates the issue as: “The first question we must ask is whether there is any evidence that .applicant is mentally retarded.” Ante, pg. 60. In that view, the majority holds that to be mentally retarded, a person must show: (1) sub-average general intellectual functioning; (2) concurring deficits in adaptive behavior; and, (3) onset during the developmental period.7 Ante, pg. 60. What the majority has done, in clear contravention of established precedent, is weigh the sufficiency of applicant’s mitigating evidence and establish a legal threshold a defendant must meet to be entitled to a Penry instruction.
This Court has long held that it will not weigh mitigating evidence. A defendant is entitled to an instruction on every mitigating issue raised by the evidence, regardless of whether the evidence is strong or weak, un-impeached or contradicted and regardless of whatever the trial judge may think about the credibility of the offense. Arnold v. State, 742 S.W.2d 10, 13 (Tex.Cr.App.1987). For example, in Ex parte Ellis, 810 S.W.2d 208 (Tex.Cr.App.1991), the State contended Ellis was not entitled to relief under Penry because the “evidence was not argued as mitigating applicant’s blameworthiness for the crime_” Id., at 211. Nevertheless, we held:
... regardless of when this evidence was presented ... it is before the jury, and it is a proper subject for the jury’s consideration when answering the punishment issues .... The question is merely whether this evidence was before the jury for its consideration.
Id. (emphasis added). Therefore, it is clear that the issue is not whether applicant was, *71in fact, mentally retarded, but whether the jury had a vehicle with which to give effect to the mitigating evidence.
B.
In Penry, the Supreme Court acknowledged that an I.Q. score of 70 or below classifies an individual as “mentally retarded.” Penry, 492 U.S. at 308, n. 1, 109 S.Ct. at 2941, n. 1. See also, Wills v. Texas, supra note 9. Further, in Ex parte McGee, supra, this Court recognized that “[i]n order to be considered mentally retarded, a person must score below 70 on an I.Q. test.” 817 S.W.2d at 81, n. 15. See also, Zimmerman v. State, 860 S.W.2d 89, 105, n. 14 (Tex.Cr.App.1993) (“Penry implies that a person with an I.Q. of 70 or below is presumptively retarded.”) (citation omitted). Accordingly, under the pri- or decisions of both the United States Supreme Court and this Court, applicant's I.Q. of 67 is presumptive of his mental retardation and the majority’s holding that there is “no evidence in this record that applicant is mentally retarded” is simply wrong.
III.
A.
The majority then goes on to state that “[ajssuming the evidence of applicant’s low I.Q. somehow falls within Penry’s definition of mental retardation, we still hold applicant is not entitled to relief under Penry.” Ante, pg. 61 (footnote omitted). This is so, the majority reasons, because there was no evidence that his low I.Q. “rendered him unable to appreciate the wrongfulness of his conduct when he committed the offense, or that his low I.Q. rendered him unable to learn from his mistakes or diminished his ability to control his impulses or to evaluate the consequences of his conduct.” Ante, pg. 62.
To reach this conclusion, the majority relies upon both Johnson v. Texas, 509 U.S. 350, 113 S.Ct. 2658, 125 L.Ed.2d 290 (1993), and Graham v. Collins, 506 U.S. 461, 113 S.Ct. 892, 122 L.Ed.2d 260 (1993), for then-proposition that applicant must prove his mental retardation rendered him unable to control his impulses or to evaluate the consequences of his actions.
Johnson contended the former version of Tex. Code Crim. Proc. Ann. art. 37.071 failed to provide the jury with a vehicle to consider and give effect to mitigating evidence of youth. 509 U.S. at 351, 113 S.Ct. at 2660. Johnson was nineteen at the time of his offense. 509 U.S. at 356, 113 S.Ct. at 2663. Recognizing that evidence of youth may be mitigating, the Supreme Court held:
The relevance of youth as a mitigating factor derives from the fact that the signature qualities of youth are transient; as individuals mature, the impetuousness and recklessness that may dominate in younger years can subside. We believe that there is ample room in the assessment of future dangerousness for a juror to take account of the difficulties of youth as a mitigating force in the sentencing determination.
509 U.S. at 368, 113 S.Ct. at 2669. The Court concluded Penry does not require the jury to be able to give effect to mitigating evidence in every conceivable manner in which it might be relevant; mitigating evidence must only be within “the effective reach of the sentencer.” 509 U.S. at 368, 113 S.Ct. at 2671. See also, Graham, 506 U.S. at 475-76, 113 S.Ct. at 901-902.
In Graham v. Collins, supra, Graham contended art. 37.071 did not allow his jury to consider and give effect to mitigating evidence of youth, family background, and positive character traits. 506 U.S. at 463, 113 S.Ct. at 895. In holding Graham’s challenges were not cognizable on federal habeas corpus review, the Court stated: “We do not read Penry as effecting a sea of change in this Court’s view of the constitutionality of the former Texas death penalty statute; it does not broadly suggest the invalidity of the special issue framework.” 506 U.S. at 475, 113 S.Ct. at 901 (emphasis in original).
As the cases discussed in Section I, supra, illustrate, this Court has always held that the former punishment issues do not provide a vehicle for the jury to consider the mitigating evidence of mental retardation. Neither Johnson nor Graham impact those decisions; they only affirm the general proposition that most mitigating evidence is within the jury’s reach when answering the punishment is*72sues. Moreover, Penry was neither overruled nor questioned in Johnson or Graham.
B.
The majority, however, states the decision in Penry is premised upon the fact there was evidence presented “that his mental retardation made it impossible for him at the time of the offense to appreciate the wrongfulness of his conduct or to conform his conduct to the law.” Ante, pg. 62. Thus, the majority concludes, without specifically saying so, there is a nexus requirement between the evidence of applicant’s mental retardation and his moral culpability. However, this conclusion flies in the face of established precedent of this State.
In most cases applying Penry, this Court has required a “nexus between the mitigating evidence and culpability for the crime.” Lackey v. State, 819 S.W.2d 111, 141, n. 10 (Tex.Cr.App.1989) (op. on reh’g). See also, Goss v. State, 826 S.W.2d 162, 165 (Tex.Cr.App.1992) (“the evidence must tend to excuse or explain the criminal act, so as to make that particular defendant not deserving of death.”). A majority of this Court then adopted the nexus requirement in Nobles v. State, 848 S.W.2d 503 (Tex.Cr.App.1992). However, in our application of Penry, we have never required a nexus between mental retardation and the capital offense. Richard, 842 S.W.2d at 288 (“the Court has still not required an express showing of ‘nexus’ between evidence of mental defectiveness and the offense on trial.”). See also, Goodman, 816 S.W.2d at 386; Ramirez, 815 S.W.2d at 655. This position was unanimously reaffirmed in Earhart, supra, where the Court stated: “we do not require proof of a nexus when the defendant presents evidence of mental retardation.” 877 S.W.2d at 768, n. 9.
IV.
The majority has obviously ignored settled law to achieve a desired result. This ease is a classic example of a defendant who should be able to rely upon the notion, predicated upon stare decisis, that in our judicial system similarly situated defendants will receive similar treatment. Because he is not so treated, I dissent.
APPENDIX
Ex parte Walter Bell, Jr.
No. 70,946
Habeas Corpus Application from Jefferson County
OPINION
PER CURIAM.This is a post conviction application for writ of habeas corpus.1 Walter Bell seeks to set aside his death sentences based upon the claim that the sentencing jury was not allowed to consider and give effect to mitigating evidence of his mental retardation, religious allegiance, military service, and good character. We granted review to determine whether a defendant who introduces such evidence is entitled to a Penry instruction. We will grant applicant’s claim.
On July 19, 1974, Fred and Irene Chisum were found murdered in their home. A police investigation led to-the arrest of Walter Bell, Jr. He later confessed to the crimes. A jury convicted Bell of the capital murder of Irene Chisum. After the jury answered the statutory special issues in the affirmative, punishment was assessed at death. Bell’s conviction was affirmed on direct appeal.2 A second jury convicted Bell of the capital murder of Fred Chisum. Punishment in that case was assessed at death. Bed’s second conviction was also affirmed on direct appeal.3 This application relates to and arises from the second capital murder conviction.
In support of his claim, Bell relies upon Penry v. Lynaugh.4 Penry declared the Texas death penalty scheme unconstitutional as applied because it failed to provide a *73manner by which the jury could consider and give effect to evidence of the defendant’s severe childhood abuse and mental retardation. The special issues failed to provide a vehicle, which would allow the jury to express its “reasoned moral response” to mitigating evidence when it returned its decision. The Supreme Court, remanding the case, described mitigating evidence as that of a “defendant’s background and character ... [supporting a] belief, long held by society, that defendants who commit criminal acts that are attributable to [such circumstances] may be less culpable than defendants who have no such excuse.”5
The trial court recommended that Bell be denied relief on the basis of procedural default. However, we have since recognized that a capital defendant does not waive his right to assert a Penry challenge when, at the time of trial, the right was not recognized.6 As a result, Bell was not required to lodge a trial objection or request a special charge.
Bell claims that the special issues did not allow the jury to consider and give effect to evidence he presented at trial. Although evidence may be relevant to the second special issue, it may be relevant only as an aggravating factor because it suggests a “yes” answer to the question of future dangerousness.7 When presented with evidence potentially reducing a defendant’s moral culpability, a jury must be allowed to evaluate that evidence. If jurors are not afforded a vehicle allowing them to consider and give effect to such mitigating evidence, the death penalty scheme as applied does not pass constitutional muster.
Bell presented sufficient evidence to raise the issue of his mental retardation. The record reflects that Earl Brown, Bell’s stepfather, gave the following testimony:
Question: Did — are you acquainted in any way — are you familiar with Walter’s IQ?
Answer: Yes.
Question: And what is that?
Answer: Fifty-four.
Question: And has it been that way for some time?
Answer: Yes.
Question: To your knowledge, was it that way back in Nineteen-seventy-four?
Answer: Yes.
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This specific evidence was neither objected to nor controverted. This indicates that Bell falls within the mild range of mental retardation.8 IQ test results included in his application show that he scored 58 in diagnostic tests administered after his arrest. However, we do not consider the post arrest test in support of Bell’s claim as this evidence was not before the jury.
Penry teaches that the Eighth Amendment prohibits imposition of the death penalty when the jury is not permitted to express a “reasoned moral response” to potentially mitigating evidence. The Supreme Court has determined that mental retardation is mitigating evidence of the type that requires a vehicle by which the jury has the opportunity to express its reasoned moral response. Here, as in Penry, the jury was not instructed to consider and, if necessary, give effect to the mitigating evidence of mental retardation. Thus, we are constrained by the United States Supreme Court holdings in Penry v. Lynaugh, to hold, in the instant case, that the Texas death penalty scheme as applied to Walter Bell, Jr., is unconstitutional because the jury was not empowered to consider and give effect to his potentially mitigating evidence of mental retardation.
*74Accordingly, we set aside the conviction and order Bell Remanded to the custody of the Sheriff of Jefferson County to answer the indictment.
EN BANC
DELIVERED: November 6,1991
DO NOT PUBLISH
McCormick, P.J. and White, J., concur in the result. In Penry, the Supreme Court held our capital sentencing scheme operated in an unconstitutional manner when the statutory punishment issues of Tex.Code Crim. Proc. art. 37.071 failed to provide a vehicle for the jury to consider and give effect to potentially mitigating evidence. 492 U.S. at 328, 109 S.Ct. at 2952. During his trial, Penry presented evidence of an abused childhood, mental retardation and organic brain damage. 492 U.S. at 308-09, 109 S.Ct. at 2941. The Supreme Court held:
... 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. In order to ensure reliability in the determination that death is the appropriate punishment in a specified case, the jury must be able to consider and given effect to any mitigating evidence relevant to a defendant’s background, character, or the circumstances of the crime.
492 U.S. at 328, 109 S.Ct. at 2951 (internal citations and quotations omitted) (emphasis in original). The Supreme Court concluded the statutory punishment issues of art. 37.071 failed to provide the jury with a vehicle to give effect to Penry’s mitigating evidence. 492 U.S. at 328, 109 S.Ct. at 2952.
. This Court also found it important in Williams that during the prosecutor’s closing argument, it was argued that there was "no proof of mental retardation.” Id., at 152, n. 7. This argument is very similar to the closing argument made by the prosecutor in the instant case:
"[w]hether [applicant] has a low I.Q. or not is not really the issue. Because the legislature, in asking you to address that [second special issue], the reasons why he became a danger are not really relevant. The fact that he is a danger, that the evidence shows he’s a danger, is the criteria to use in answering that [issue].”
However, the majority not only fails to mention the State’s closing argument, it fails to mention that it was very likely this argument precluded the jury from giving mitigating effect to evidence of applicant’s mental retardation. See, Williams, 833 S.W.2d at 152, n. 7.
. Just as in this case, there was no evidence presented at McGee’s trial of when his I.Q. was measured or what tests were used to measure it. Nor was there any testimony as to the range of I.Q. or what is considered mentally retarded and there was no evidence indicating that McGee’s adaptive functioning was that of a mentally retarded individual. However, this Court granted habeas relief. Nevertheless, Judge Meyers now thinks that all of the above are necessary. See, Ante, at 67 (Meyers, J., concurring). But our holding in McGee undermines his position.
. Because Bell was not designated for publication, it is not cited for its precedential value, but only as an example of the majority’s refusal to treat similarly situated persons the same.
.Judge McCormick, who authors the majority opinion, either voted for or specifically concurred in each and every opinion discussed in this section. But today, in an effort to hide from those votes, he does not even inform the reader of their existence. Instead, Judge McCormick ignores his own advice, namely: "If a majority of this Court agrees on a principle of law, then that constitutes a ‘holding’ of this Court_ Princi-*70pies of stare decisis requires this Court to follow its earlier majority opinions. This is so basic that it requires no citation to authority." State v. Daugherty, 931 S.W.2d 268, 279 (Tex.Cr.App.1996) (McCormick, P.J., concurring and dissenting) (emphasis added).
. In Penry, supra, the Supreme Court was not concerned with whether Penry was or was not mentally retarded. This is evidenced by the fact that in Penry, the Supreme Court granted certio-rari, inter alia, to answer the following question:
[W]as Pemy sentenced to death in violation of the Eighth Amendment because the jury was not adequately instructed to take into consideration all of his mitigating evidence and because the terms in the Texas special issues were not defined in such a way that the juiy could consider and give effect to his mitigating evidence in answering them?
Penry, 492 U.S. at 313, 109 S.Ct. at 2943-44.
. Both the majority, Ante, pg. 60, and the concurrence, Ante, pg. 65, n. 7 (Meyers, J., concurring), place much emphasis on the fact that the Texas Legislature adopted similar definitions in the Persons With Mental Retardation Act. See, Health & Safety Code § 591.003 (Vernon 1992). However, what both the majority and concurrence fail to mention is that these definitions were adopted in 1991, six years after the commission of the instant offense and five years after applicant’s trial. See, Acts 1991, 72nd Leg., ch. 76, § 1. Additionally, this definition was not even adopted by the American Association of Mental Retardation until 1992, and even then, the AAMR classified individuals with an I.Q. score of 75 and below as presumptively retarded. AAMR Mental Retardation: Definition, Classification, and Systems of Supports 14 (9th ed.1992). See also, Wills v. Texas, 511 U.S. 1097, 1099, n. 1, 114 S.Ct. 1867, 1868, n. 1, 128 L.Ed.2d 488 (1994) (Blackmun, J., dissenting to the denial of certio-rari) and N.M. Stat. Ann. § 31-20A-2.1(A) (Mi-chie 1994) ("An intelligence quotient of. seventy or below on a reliably administered intelligence quotient test shall be presumptive of mental retardation.”). Therefore, both the majority and the concurrence then hold applicant to an evi-dentiary standard that did not exist at the time of his trial.
This holding is especially strange in light of our holding in Black v. State, 816 S.W.2d 350 (Tex.Cr.App.1991), where we held that Penry constituted such a substantial change in the law that a defendant did not waive his right to assert a Penry violation by failing to object or request a mitigation charge at trial. Id., at 374 (Campbell, J., concurring) (joined by McCormick, P.J., and Clinton, Overstreet, Maloney and Benavides, JJ.). It is absurd to on' one hand excuse a defendant from making an objection or request but on the other hand to require the same defendant to meet a diagnostic definition that was not in existence at the time of his trial. However, this is what the majority and concurrence do. The consequence will be to effectively foreclose any successful Penry challenges in state court.
. See Article 11.07, V.A.C.C.P.
. Bell v. State, 582 S.W.2d 800 (Tex. Crim. App. 1979) cert. denied, 453 U.S. 913, 101 S.Ct. 3145, 69 L.Ed.2d 995 (1981).
. Bell v. State, 724 S.W.2d 780 (Tex. Crim. App. 1986) cert. denied, 479 U.S. 1046, 107 S.Ct. 910, 93 L.Ed.2d 860 (1987).
. 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989).
. Id. at 319, 109 S.Ct. at 2947 (quoting California v. Brown, 479 U.S. 538, 545, 107 S.Ct. 837, 841, 93 L.Ed.2d 934 (1987) (O'Connor, J., concurring)).
. Black v. State, 816 S.W.2d 350 (Tex. Crim. App.1991) (Campbell, J., concurring) (joined by McCormick, P.J., Clinton, Overstreet, Maloney, and Benavides, JJ).
. Id. at 323, 109 S.Ct. at 2949.
. In order to be considered mentally retarded, a person must score below 70 on an I.Q. test. Penry, 492 U.S. at 308 n.1, 109 S.Ct. at 2941 n.1 (citing Ellis and Luckasson, Mentally Retarded Criminal Defendants, 53 Geo. Wash L. Rev. 414, 423 (1985)).