Ex Parte Hood

¶1delivered the opinion of the Court

¶2This is applicant’s third habeas application, and the claim he presents now was presented in neither of the first two applications. One of the questions before us is whether we are barred from considering the merits of this application under statutory subsequent application provisions. We conclude that we are barred from considering the merits because the legal bases upon which applicant relies were available at the time he filed his second application.

¶3I. BACKGROUND

¶4On September 7, 1990, applicant was convicted of capital murder. During the punishment phase of trial, he presented mitigating evidence that he now contends was not adequately encompassed by the jury instructions. This included evidence that he was run over by a truck at the age of three, that he received beatings during and after school (including a blow to the head from a metal pipe), and that he suffered from speech defects and learning disabilities. Applicant’s trial occurred after the United States Supreme Court handed down Penry I,1but before the Texas Legislature added the mitigation special issue to Article 37.071.2 In response to Penry Ps dictates, the trial court chose to use a “nullification” instruction to enable the jury to give effect to applicant’s mitigating evidence. As in Smith,3 the submitted nullification instruction was a “clear” instruction, specifically requiring jurors to answer at least one of the special issues “no” — even if “yes” answers to all *771the special issues had been established beyond a reasonable doubt — if they believed that the defendant’s mitigating evidence justified a sentence of life rather than death. The jury answered all of the special issues “yes,” and, in accordance with the jury verdict, the trial court entered a judgment sentencing applicant to death.

¶5We affirmed the trial court’s judgment on direct appeal.4 In his brief on appeal, applicant raised a point of error complaining that the trial court erred “in failing to instruct the jury of a method to be used by them to give effect to mitigating evidence.” 5 He argued that the charge that was given failed to satisfy Penry I’s requirements.6 Although we found the point to be inadequately briefed, we nevertheless proceeded to the merits.7 After reviewing the jury charge, we concluded that the nullification instruction “did provide the jury with an adequate vehicle to express and give effect to its ‘reasoned moral response’” to applicant’s mitigating evidence.8

¶6On December 22, 1997, applicant filed his first application for writ of habeas corpus. As originally filed, that application included a challenge to the nullification instruction, but the application was subsequently amended, and that particular claim was omitted. We denied the application on April 21,1999.9

¶7On June 4, 2001, the United States Supreme Court decided Penry II, holding that the “ambiguous” nullification instruction submitted in that case failed to afford the jury an adequate vehicle by which to consider the proffered mitigating evidence of mental retardation.10 On April 21, 2004, this Court decided Ex parte Smith (Smith I), which made two significant holdings: (1) adopting the Fifth Circuit’s “constitutional relevance” threshold requirement, which called for a showing that “the defendant’s criminal act was due to uniquely severe permanent handicaps with which the defendant was burdened through no fault of his own,” and (2) distinguishing the “clear” nullification instruction in Smith from the “ambiguous” instruction found to be inadequate by the Supreme Court in Penry II.11

¶8On May 24, 2004, applicant filed, pro se, his second habeas corpus application, which alleged that he was actually innocent of the crime for which he was convicted.12 We later dismissed that application as an abuse of the writ under Article 11.071, § 5.13

¶9*772On June 24, 2004, the Supreme Court decided Tennard v. Dretke, discarding the Fifth Circuit’s “constitutional relevance” threshold requirement.14 On November 15, 2004, the Supreme Court reversed our decision in Smith I with its decision in Smith II.15The Court overturned our first holding as inconsistent with Tennard, and it overturned our second holding on the basis that the “clear” nullification instruction (and thus any nullification instruction) was governed by its holding in Penry 77.16

¶10On June 22, 2005, eight days before his scheduled execution, applicant filed a third habeas corpus application, along with a motion for stay of execution. That application is the one currently before us, and it advanced a single claim for relief: “The nullification instruction in Mr. Hood’s case suffers from the same defects that the Supreme Court found unconstitutional in Penry II and [Smith 77].” Applicant alleged compliance with the subsequent application requirements of Article 11.071, § 5, and we initially accepted that allegation — staying the execution and remanding the case to the trial court for further proceedings.17 After proceedings in the trial court, the record was returned to us, and we ordered the parties to brief “the merits of this issue in light of the entire charge that the jury received, harm under Almanza v. State, 686 S.W.2d 157 (Tex.Crim.App. 1985) (op. on reh’g), and whether the issue should have been raised in either the first or second applications.”18

¶11With regard to the third question, applicant contends that the Supreme Court’s repudiation in Tennard and Smith II of the Fifth Circuit’s “constitutional relevance” threshold requirement constitutes a new legal basis for his claim. He argues that this Court used the Fifth Circuit’s threshold requirement as a screening test that prevented ever reaching the merits of a Penry claim (whether based on Penry I alone or a combination of Penry I and II). He further argues that two of our unpublished dispositions evince a recognition that Tennard and Smith II supplied a new legal basis for reviewing a Penry II claim. He points first to our unpublished opinion in Robertson, which explicitly referenced Tennard and Smith II, in concluding that the legal basis for his claim was unavailable at the time his previous applications were filed.19 ■ Applicant points next to our unpublished, 2002 order in Ex parte Davis, which dismissed a Penry II application as an abuse of the writ,20 as evidence of how this Court reacted to Penry II applications before Tennard and Smith II were decided.

¶12The State contends that applicant’s claim became available when Penry I was decided, and thus, should have been presented in applicant’s first application. The State points out that applicant did present the claim initially in that application before withdrawing it. Alternatively, the State contends that the legal basis for applicant’s claim became available when Penry *773II was decided, and thus, should have been presented in applicant’s second application. The State disputes applicant’s allegation that Tennard and Smith II afforded a new legal basis for applicant’s claim.

¶13II. ANALYSIS

¶14A. Statutory Construction

¶15In this case, determining whether the current claim should have been raised in an earlier application requires that we construe the capital habeas statute’s subsequent application provision, Article 11.071, § 5. When interpreting a statute, we follow our cardinal rule of construction: we must give effect to the plain meaning of the statutory text, unless the language is ambiguous or the plain meaning leads to absurd results that the Legislature could not possibly have intended.21 In determining the plain meaning of the text, we read words and phrases in context and construe them in accordance with “the rules of grammar and usage.”22 In addition, “we generally presume that every word in a statute has been used for a purpose and that each word, phrase, clause, and sentence should be given effect if reasonably possible.”23

¶16We must first determine whether we can address the “subsequent application” issue after remanding the case to the trial court for further proceedings. The capital habeas statute requires the trial court to forward any subsequent application to this Court before taking any other action with respect to that application so that this Court may determine whether the subsequent application provisions have been met.24 This Court is then required either to issue an order finding that the requirements have been satisfied (in which event, the case is remanded to the trial court for further proceedings) or to dismiss the application.25 But the statute also provides that “a court may not consider the merits of or grant relief based on the subsequent application unless the application contains sufficient specific facts establishing that” one of three statutory exceptions has been satisfied.26 Plainly, we are a “court” within the meaning of the statute, and thus, we are not at liberty to ignore the legislative prohibition against considering the merits of a claim that does not meet the subsequent application requirements. If we determine that those requirements are not met, we must dismiss the application, even if we had previously remanded the claim on the basis of an initial determination that the requirements had in fact been met. We therefore proceed to determine whether a relevant exception to the subsequent application prohibition has been satisfied.

¶17We need not concern ourselves with two of those exceptions: applicant’s claim does not affect his guilt, so the “innocence gateway” exception does not apply,27 and applicant’s claim, if accepted, would not establish that “no rational juror would have answered in the State’s favor one or more of the special issues” submitted to the jury, even if we include, as one of those special issues, the mitigation special issue *774now required to be submitted by statute.28 At best, applicant’s claim would establish that the jury might have answered a special issue differently, not that it would have done so.

¶18What remains is the “unavailability exception,” which permits a subsequent application if:

the current claims and issues have not been and could not have been presented previously in a timely initial application or in a previously considered application filed under this article or Article 11.07 because the factual or legal basis for the claim was unavailable on the date the applicant filed the previous application.29

¶19This passage is marked by two adverbial prepositional phrases, “in a timely initial application” and “in a previously considered application,” that are introduced by “not” and separated by “or.” This “not ... or” phrasal structure is the equivalent of “nor,” and indicates negation of both elements in the series.30 Consequently, the exception requires that the claim in question be unavailable not only for the first habeas application but also for any “previously considered application.”

¶20Because applicant’s second application was dismissed as subsequent under § 5, the question arises whether an application so dismissed qualifies as a “previously considered application.” The body of § 5(a) provides that “a court may not consider the merits or grant relief based on a subsequent application.”31 Thus, a form of the word “consider” appears both in the body of § 5(a) setting forth the general prohibition and in the subsection (1) exception to that prohibition, but in the former instance, the word “consider” is given a direct object, “the merits,” while in the latter instance, the word “considered” is not so modified. Use of “the merits” as a direct object for “consider” indicates that the Legislature recognized there were other types of “consideration,” while the absence of that direct object in subsection (1) indicates that the Legislature did indeed intend the word “considered” to have a broader meaning in that subsection.32 If the statutory text were taken to be ambiguous on that count, however, the clearly expressed intent in the legislative history to limit applicants to “one bite at the apple” 33 supports the conclusion that an applicant must show that a claim was unavailable even for applications that were dismissed under § 5.34 Otherwise, once an initial application had been filed and the time for that initial filing had run, the statutory disincentive to filing piecemeal litigation would dissipate. As we have observed elsewhere, “[I]f [a] habeas petition*775er has grounds which would justify granting relief, he should present them with dispatch for determination, rather than doling them out one-by-one in repeated attempts to have both the benefits of relief and the fleeting pleasures of harassing those who confine him.”35 Thus, to satisfy the exception, applicant’s claim must have been unavailable as to both of his previous applications.

¶21As our quotation of the text shows, the statute prescribes two different methods of demonstrating unavailability: (1) a new factual basis and (2) a new legal basis. We can quickly dispense with the first method: the facts underlying applicant’s complaint about the jury instruction were known at trial, and therefore, those facts were necessarily available at the time the prior habeas applications were filed.36

¶22The second method of demonstrating unavailability — a new legal basis — requires more explanation. The Legislature specifically defined what constitutes an unavailable legal basis under § 5:

For purposes of Subsection (a)(1), a legal basis of a claim is unavailable on or before a date described by Subsection (a)(1) if the legal basis was not recognized by or could not have been reasonably formulated from a final decision of the United States Supreme Court, a court of appeals of the United States, or a court of appellate jurisdiction of this state on or before that date.37

¶23Similar to the passage addressed above, this passage contains a “not ... or” phrase, here marked by a series of noun phrases (describing the various types of courts) introduced by “not” and separated by “or.” Consequently, the structure of the statutory provision requires that availability be negated for all the types of courts listed. For a legal basis to be unavailable, then, it must be true that no decision from any of these types of courts makes the claim available (either by explicit recognition or reasonable formulation). Stated another way, if the legal basis for the claim was recognized by or could have been reasonably formulated from a Supreme Court decision, any federal court of appeals decision, or any state appellate court decision, then the applicant has failed to meet the unavailability exception. It is not enough, for example, for an applicant to show that the legal basis could not have been derived from any Texas state court decision if there existed a federal appellate decision from which the legal basis could be derived.

¶24Another point that deserves emphasis is that lack of recognition is not enough to render a legal basis unavailable. If the legal basis could have been reasonably formulated from a decision issued by a requisite court, then the exception is not met.

¶25B. First Application — Adequacy of the Nullification Instruction

¶26Ultimately applicant’s claim is grounded in Pemy I. It is Penry I that requires that the jury be afforded an adequate vehicle for giving effect to mitigating evidence that cannot otherwise be given effect through the statutory special issues.38 But applicant’s claim is also grounded in Penry II and Smith II because he contends, as he must, that the submitted nullification *776instruction was not an adequate vehicle for that purpose. Penry I did not specifically address the acceptability of a nullification instruction, so the legal basis for challenging that type of instruction was not “recognized” in Penry I. The more difficult question, however, is whether that legal basis could have been reasonably formulated from Penry I or from other caselaw from the relevant jurisdictions.

¶27We need not address that question in the abstract, however, because we decided the acceptability of the nullification instruction in applicant’s direct appeal. It is axiomatic that issues raised and rejected on direct appeal are generally not cognizable on habeas corpus.39 An exception to that rule occurs when there is a change in a legal principle relevant to the applicant’s claim, and that legal principle would apply retroactively to cases on habe-as corpus.40 But when there has been no change, an applicant should not be expected to again urge the exact same basis that we have already rejected. In the language of the statute, the legal basis for the claim “could not have been reasonably formulated” at the time the habeas application was filed because, on direct appeal, we had specifically rejected it, and no change in the law had occurred with respect to the issue addressed. Not only is this interpretation supported by the language of the statute, but it serves judicial economy and conforms to common sense: issues that can be litigated on direct appeal, should be litigated there, and not re-litigated on ha-beas corpus. The same kind of reasoning applies when a claim is litigated in a prior habeas application and the law has not changed with respect to that claim at the time a subsequent application is filed. After all, § 5 bars claims and issues that have been presented in an earlier application, not just claims and issues that could have been presented,41 If we decide an issue adversely to a defendant in a way that contradicts a later legal development, that later legal development constitutes a legal basis that was not presented and could not have been presented at the time.

¶28To summarize: a legal basis is unavailable if it has been exhausted by previous presentation to this Court, but that legal basis can become newly available as a result of later, binding precedent relevant to the issue in question. There are some important distinctions between this “unavailability by exhaustion” doctrine and other situations that practitioners must keep in mind. First, a decision in someone else’s case cannot qualify as exhaustion. Exhaustion is based on cognizability, which depends on what the applicant has done to advance his claims. Also, a “change in the law” under the exhaustion doctrine, rendering an issue newly cognizable (and thus “available”), must come from a binding authority, i.e. cases from this Court and the United States Supreme Court. If a legal basis has been exhausted, intermediate federal and state appellate court decisions cannot render that legal basis newly cognizable.42 As we have recognized *777above (and will discuss more below), however, the rule is different for issues that are not exhausted.

¶29Applying the “unavailability by exhaustion” doctrine to applicant’s case, we find that applicant’s subsidiary claim regarding the efficacy of the nullification instruction had already been exhausted at the time he filed his first application. We decided on the direct appeal of this case that the nullification instruction was constitutionally adequate to give effect to any mitigating evidence offered by the defendant. Between the direct appeal and the habeas application, no relevant change in the law occurred regarding that issue. Penry I had already been the law on direct appeal, and Penry II (as well as Smith II) had not yet been decided. We conclude that the particular legal basis being discussed here — the inadequacy of the nullification instruction — was unavailable at the time applicant filed his first writ application. Therefore he was not required to rely on that legal basis in his first application. The next question is whether it was unavailable at the time he filed his second application.

¶30C. Second Application

¶311. Adequacy of the Nulliftcation Instruction

¶32Notably, applicant does not contend that Smith II’s nullification holding constituted a legal basis that was unavailable at the time he filed his second application, but we address that issue nonetheless. Obviously, Penry II was an available legal basis with regard to the second application because Penry II was decided nearly three years before the second application was filed. The question becomes whether Smith IPs clarification of Penry II constitutes an unavailable legal basis upon which applicant can now rely. The only relevant distinction between the two cases is that Penry II involved an ambiguous instruction while Smith involved a clear nullification instruction. While the Penry II Court did criticize the instruction submitted in that case as ambiguous, some of the Court’s discussion suggested that nullification instructions might be inherently problematic:

Here, however, it would have been both logically and ethically impossible for a juror to follow both sets of instructions. Because Penry’s mitigating evidence did not fit within the scope of the special issues, answering those issues in the manner prescribed on the verdict form necessarily meant ignoring the command of the supplemental instruction. And answering the special issues in the mode prescribed by the supplemental instruction necessarily meant ignoring the verdict form instructions. Indeed, jurors who wanted to answer one of the special issues falsely to give effect to the mitigating evidence would have had to violate their oath to render a true verdict. The mechanism created by the supplemental instruction thus inserted “an element of capriciousness” into the sentencing decision, “making the jurors’ power to avoid the death penalty dependent on their willingness” to elevate the supplemental instruction over the verdict form instructions.43

¶33Although one could certainly argue (as we did in Smith I) that a clear nullification instruction would present a distinguishable situation, satisfying the Supreme Court’s cited ethical concerns by removing any doubt regarding “which instruction should *778control over the other one,”44 this passage in Penry II certainly afforded the opportunity to “reasonably formulate” a legal argument for the proposition that any nullification instruction would be inadequate. In fact, the Supreme Court in Smith II specifically found that Penry II had “identified a broad and intractable problem ... inherent in any requirement that the jury nullify special issues contained within a verdict form.”45 And because Penry II was a new legal development from a binding authority that was relevant to the nullification claim applicant had advanced on direct appeal, after Penry //, applicant’s nullification issue became cognizable on habeas corpus, and thus “available.”

¶34Of course, we held in Smith I that Pen-ry II was distinguishable, rejecting a constitutional challenge to a “clear” nullification instruction. But our holding in Smith I could have no effect on federal precedent. Under the plain language of § 5, Penry II — a Supreme Court decision— continued to afford a basis for challenging any nullification instruction. As a general matter, that state of affairs could be changed only by a decision of the United States Supreme Court.

¶35A particular applicant, however, could render the Penry II legal basis unavailable by exhausting it. That is, applicant could have raised the Penry II claim in his second application, and if that claim were rejected (on the merits or as a result of a § 5 dismissal),46 applicant would then have been able to raise the claim in a subsequent application after the Supreme Court’s decision in Smith 7/.47 But applicant failed to, do so, and thus, he cannot proffer Smith IPs holding on the nullification instruction as one that was previously unavailable at the time he filed the second application.

¶362. Threshold Requirement

¶37We turn finally to the allegation that the Supreme Court’s decisions in Ten-nard and Smith II provided a new legal basis for applicant’s claim by eliminating the threshold requirement originally imposed by the Fifth Circuit and subsequently adopted by this Court. Although the Fifth Circuit had adhered to its threshold test for over a decade,48 this test was never adopted in a Supreme Court opinion. In the meantime, Penry I stood as a Supreme Court decision from which an applicant could “reasonably formulate” the contention that he was entitled to jury consideration of any type of mitigating evidence.49*779The Supreme Court’s Tennard opinion recognized that a previous (1990) decision addressing “the relevance standard applicable to mitigating evidence in capital cases ... spoke in the most expansive terms.”50 In fact, the Supreme Court repudiated the Fifth Circuit’s test as one that “has no basis in our precedents and, indeed, is inconsistent with the standard we have adopted for relevance in the capital sentencing context.”51 In similar, strongly worded language, the Supreme Court in Smith II rejected the Fifth Circuit’s approach (and ours) as “a test we have never countenanced and now have unequivocally rejected.”52 The Supreme Court observed that its broad interpretation of mitigating evidence was not new, having been “plain under our precedents” dating back to 1982.53

¶38As we stated earlier, this Court’s decisions cannot affect the availability of legal bases articulated in federal court opinions. Regardless of our decision in Smith I, or in our earlier cases, Penry I afforded a legal basis for contending that the defendant’s mitigating evidence was constitutionally relevant to determining whether he should receive the death penalty. Applicant was not required to raise that constitutional relevance issue in his first application because our nullification holding on direct appeal necessarily rendered any Penry-based claim non-eogniza-ble.54 But once that bar to eognizability was erased (by Penry II), applicant was no longer excused from raising the issue. Because we did not resolve the constitutional relevance issue in applicant’s direct appeal, the issue had not been exhausted, and thus, applicant was required to raise it in his second application. He did not.

¶39Applicant’s reliance on our post-Penry II dismissal of a habeas application in Davis, as evidence that he could not have raised a Penry II claim earlier, is unavailing. For starters, Davis was an unpublished disposition, and as such, has no precedential value. In any event, as discussed above, dispositions by this Court, whether published or unpublished, cannot render unavailable a legal basis made available by a federal appellate decision except as to the particular applicant in question. Essentially, each applicant must “fight his own battles” until the Supreme Court decides to step in and clarify matters one way or the other.

¶40Finally, we find unavailing applicant’s reliance on the remand in Robertson for the proposition that he is advancing a previously unavailable claim. As with Davis, Robertson is an unpublished disposition, without precedential value. Moreover, our remand opinion in Robertson was handed down before we filed and set the issues in the present case. We had originally remanded the application in the present case as well, but have since decided that the subsequent application issue should be *780briefed and addressed. Finally, Robertson is distinguishable because the applicant in that case challenged the nullification issue at every opportunity: on direct appeal,55 in his initial habeas application (filed in 1997), and in his second habeas application, producing the remand opinion upon which applicant now relies.56

¶41D. Conclusion

¶42Applicant was excused from presenting a Penry-type claim in his first application because we held on his direct appeal that the nullification instruction was adequate. That holding was sufficient to defeat a claim for relief, and binding precedent suggesting the incorrectness of that holding (i.e. Penry II) did not yet exist. But applicant was not excused from presenting this claim in his second application because it was filed after Penry II, which afforded a new basis to challenge our previous holding. Smith II did not supply a previously unavailable legal basis for challenging our original nullification holding because that basis had already been supplied by Penry II, and, even though applicant had the opportunity to litigate Penry II in his second application, he did not do so and thus received no adverse ruling from this Court holding Penry II inapplicable. Further, the Supreme Court’s repudiation of the Fifth Circuit’s “constitutional relevance” threshold requirement in Tennard and Smith II does not, in the abstract, constitute a previously unavailable legal basis for relief because, according to the Supreme Court itself, that basis could have been reasonably formulated from the Supreme Court’s prior decision in Penry I and other previously available Supreme Court case-law. And finally, the Tennard/Smith II constitutional relevance holding has not been made unavailable by exhaustion because this Court has not previously addressed the issue with respect to applicant and applicant had the opportunity to raise the issue in his second application but failed to do so.

¶43Accordingly, we hold that the current application is barred as a subsequent application under Article 11.071, § 5. The application is dismissed.