Elliott v. State

¶1dissenting.

¶2I.

¶3In his second point of error appellant argues the trial court erred in failing to instruct the jury that it could assess a penalty less than death, irrespective to its answers to the special issues under Article 37.071(b), V.A.C.C.P., should it find that mitigating circumstances so warrant. Thus, although briefs in this cause were filed before the United States Supreme Court’s decision in Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989), appellant effectively raises a Penryclaim.

¶4Appellant requested an instruction that should the jury find affirmative answers to special issues, “but believe from all the evidence, including both aggravating and mitigating factors, that the death penalty is not appropriate in this case, you are instructed not to answer the special issues.” This would have the effect, of course, of assuring imposition of a life sentence. Article 37.071(e), V.A.C.C.P. Such a request was adequate to alert the trial court to the deficiency in the charge — if there was one. That depends upon whether evidence was presented having mitigating value beyond *491the pale of special issues. At any rate, even had appellant not requested an instruction, under Judge Campbell’s concurring opinion in Black v. State, 816 S.W.2d 350 (Tex.Cr.App.1991), in which a majority of the Court joined, appellant need not have preserved this error in order to raise it on appeal. See also Selvage v. Collins, 816 S.W.2d 390 (Tex.Cr.App.1991) (Opinion on Certified Question from the United States Court of Appeals for the Fifth Circuit). The majority therefore appropriately proceeds to the merits of appellant’s claim.

¶5First, appellant presented testimony that while in jail pending trial in the instant cause he was well-behaved, and suffered no disciplinary actions. He was described as a “fine inmate.” Although this constitutes “mitigating” evidence in the Supreme Court’s scheme of things, Skipper v. South Carolina, 476 U.S. 1, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986), it appears that a majority of that Court considers our second special issue adequate to accommodate its full mitigating significance. Franklin v. Lynaugh, 487 U.S. 164, 108 S.Ct. 2320, 101 L.Ed.2d 155 (1988) (O’Connor, J., concurring). Also while in jail appellant “made a profession of faith to Christ,” and the minister who so testified also opined that appellant “is a different person now than he’s ever been in his life.” Thus we have at least minimal evidence of “religious devotion [that] might demonstrate [a] positive character trait[ ] that might mitigate against the death penalty.” Id.,487 U.S. at 186, 108 S.Ct. at 2333, 101 L.Ed.2d at 173. Although we may doubt the sincerity of appellant’s jailhouse conversion, that is a question for the sentencer to address in the first instance.

¶6Appellant was one of six children raised by a single mother in a housing project in East Austin. He had not seen his father since his parents divorced when he was six years old. This constitutes some evidence of a “disadvantaged background.” Penry v. Lynaugh, 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).

¶7Finally, the record at the guilt phase of trial shows appellant, along with everyone else involved in this offense, was “drunk” at the time. Unlike, e.g., Gardner v. State, 730 S.W.2d 675, at 678 (Tex.Cr.App.1987), the instant record does not reveal appellant intentionally ingested a mind-altering substance in order to pluck up his courage to commit this offense. Instead, it appears appellant first conceived of the offense while under the influence of alcohol. This is a circumstance a jury might be persuaded ameliorates fault, at least to the extent that, taken alone or in combination with other mitigating factors, it counsels a punishment less than death. Such evidence need not rise to the level of showing “temporary insanity,” V.T.C.A. Penal Code, § 8.04, before it may have mitigating value under Penry. See Tucker v. State, 771 S.W.2d 523, at 533-34 (Tex.Cr.App.1988).

¶8In Bell v. Ohio, 438 U.S. 637, 98 S.Ct. 2977, 57 L.Ed.2d 1010 (1978) (Plurality Opinion), a companion case to Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978) (Plurality Opinion), the United States Supreme Court invalidated the death sentence of a capital defendant on the basis that the Ohio capital sentencing statute then in effect did not allow independent mitigating significance to certain types of evidence proffered in those cases. One of the factors present in Bellbut not given mitigating value under the Ohio statute was the fact that the accused “had allegedly been using mescaline on the night of the offense.” 438 U.S. at 640, 98 S.Ct. at 2980, 57 L.Ed.2d at 1015. The underpinnings of Lockettand Bellwere adopted by a majority of the Supreme Court in Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982).

¶9It is true that intoxication will be a relevant consideration in answering the first special issue pertaining to deliberateness. But what the Court observed in Penryvisa-vis mental retardation has application in the context of intoxication:

“Penry’s mental retardation was relevant to the question whether he was capable of acting ‘deliberately,’ but it also ‘had relevance to [his] moral culpability be*492yond the scope of the special verdict questio[n].’ Franklin, 487 U.S. [164] at 185, 101 L.Ed.2d 155, 108 S.Ct. 2320 [at 2333] [(1988)]. Personal culpability is not solely a function of a defendant’s capacity to act ‘deliberately.’ A rational juror at the punishment phase of the trial could have concluded, in light of Penry’s confession, that he deliberately killed Pamela Carpenter to escape detection. Because Penry was mentally retarded, however, and thus less able than a normal adult to control his impulses or to evaluate the consequences of his conduct, ... the same juror could also conclude that Penry was less morally ‘culpable than defendants who have no such excuse,’ but who acted ‘deliberately’ as that term is commonly understood. California v. Brown, 479 U.S. [538] at 545, 93 L.Ed.2d 934, 17 [107] S.Ct. 837 [at 841] [(1987)] (concurring opinion).”

¶10492 U.S. at 322-23, 109 S.Ct. at 2949, 106 L.Ed.2d at 280-81. Likewise, a rational juror could decide that, notwithstanding his intoxication, appellant killed Joyce Mung-uia in the instant cause deliberately in order to escape detection. Punishment evidence showed appellant was on probation at the time and had every incentive to conceal the rape. But at the same time that juror could rationally conclude that because of his intoxication, with the accompanying impairment of judgment and impulse control, appellant was less morally culpable than would have been a sober man committing the same crime.

¶11Under the holdings of Bell, Lockett, Ed-dings and Penry, all supra, that intoxication may be given some mitigating effect in the context of special issues is not sufficient. Such considerations as age and intoxication were relevant to the statutorily circumscribed mitigating factors in Ohio in 1978 as well. But just as in Ohio then, jurors in Texas today must be able to consider intoxication, in and of itself, as a justification for a sentence less than death.

¶12The jury in this cause was in no way empowered to give effect to the above evidence to the extent it had mitigating “relevance” outside the reach of special issues. Absent an instruction along the lines of the one appellant requested here, he cannot be sentenced to death consonant with the Eighth Amendment. Penry v. Lynaugh, supra. We should therefore sustain appellant’s second point of error.

¶13II.

¶14The majority’s treatment of appellant’s second point of error is kind of a hodgepodge of rationales. At one point it seems to embrace the notion that appellant has not established a “nexus” between his evidence proffered in mitigation and the crime itself. At 486-87. My aversion to this approach is by now well documented. E.g., Lackey v. State, 819 S.W.2d 111, at 138 (Tex.Cr.App.1991) (On appellant’s motion for rehearing) (Clinton, J., dissenting); Goss v. State, 826 S.W.2d 162, at 169 (Tex.Cr.App.1992) (Clinton, J., dissenting); Ex parte Bower, 823 S.W.2d 284, at 291 (Tex.Cr.App.1991) (Clinton, J., dissenting). At other points the majority seems to apply the revisionist view of Penrythat was recently offered up by a majority of justices on the United States Supreme Court (not one of whom was part of the majority in Penryitself) in Graham v. Collins, — U.S. -, 113 S.Ct. 892, 122 L.Ed.2d 260 (1993). That is to say, the majority here seems to hold that because appellant’s evidence can be given some mitigating significance in context of the Article 37.071(b) special issues, no further instructions are necessary to satisfy the Eighth Amendment. In fairness, it may be that all the majority has done is to decide, by way of this Court’s homemade “nexus” requirement, that the only mitigating significance appellant’s evidence has may be “fully considered within the special issuesf.]” At 486-87. Nevertheless, the majority’s citation to Grahamis troubling, in the same way that prior intimations by this Court that mitigating evidence that may be accommodated at least partially under the special issues will not call for an additional jury instruction under Penryare troubling. E.g., Black v. State, 816 S.W.2d 350, at 365 (Tex.Cr.App.1991); Boggess v. State, 855 S.W.2d 645, 647 (Tex.Cr.App.1991); Richardson v. State (Tex.Cr.App., No. 68,934, *493delivered June 12, 1991) (Clinton, J., dissenting) (Slip op. at 1-2). I continue to believe “this is precisely the view the Supreme Court put to rest in Penry.” Richardson, supra, at 1-2, n. 1.

¶15A.

¶16In Grahamthe Supreme Court was presented with the question whether evidence of a defendant’s relative youth called for the additional instruction recognized in Penry. Because Graham’s claim was presented in a federal petition for habeas corpus, however, the Court was confronted with the threshold question whether a holding that the Eighth Amendment requires an additional instruction to accommodate the full mitigating effect of evidence of youth would constitute the announcement of a “new rule,” something the Court has declined to do in federal habeas corpus appeals since its decision in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). A majority of the Supreme Court held that such a holding would in fact announce a new rule, and therefore declined to reach the merits of Graham’s contention. Whether the Supreme Court will ultimately adopt the “new rule” Graham sought, of course, remains an open question. Gunter v. State, 858 S.W.2d 430 (Tex.Cr.App.1993) (Clinton, J., dissenting) (At 450, n. 3).1

¶17In coming to the decision that Graham was asking for a new rule, the Supreme Court seems to have re-invented Penry, relying upon the joint opinion in Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976), and the plurality opinion in Franklin v. Lynaugh, supra. The majority construed Jurekto hold without qualification that under our special issues mitigating evidence such as youth is “given constitutionally adequate consideration[.]” — U.S. at -, 113 S.Ct. at 899. Moreover, the majority read Lockett v. Ohio, supra, to bolster this view, and observed that “Eddings signaled no retreat” therefrom. Id. Thus, the Court concluded, as of 1984 when Graham’s conviction became final, the notion that an additional instruction might be required to guarantee constitutionally sufficient scrutiny of his mitigating evidence would constitute a “new rule” for Teaguepurposes. If true, this conclusion should have been dispositive of the case. The Grahammajority continued, however, to observe at some length that in its view nothing in the Supreme Court’s cases after 1984, including Penry, would alter this conclusion. Apparently the Court believed it was constrained to continue in this vein in order to explain how Graham could be found to be asking for a “new rule” in 1984, when Penry was not in 1986, given that there was no relevant caselaw in the interim.

¶18In Franklinthe plurality had opined that “Lockett does not hold that the State has no role in structuring or giving shape to the jury’s consideration of ... mitigating factors.” 487 U.S. at 179, 108 S.Ct. at 2330, 101 L.Ed.2d at 169. Continuing its analysis, the Grahammajority quoted this passage from Franklin, and another from its (post-Penry) opinion in Saffle v. Parks, 494 U.S. 484, 110 S.Ct. 1257, 108 L.Ed.2d 415 (1990), to the effect that Lockettand Eddingsdo not purport to delimit the State’s ability to define “the manner in which ... mitigating evidence may be considered.” 494 U.S. at 491, 110 S.Ct. at 1262, 108 L.Ed.2d at 426. From this premise the majority reasoned that as long as the statutory special issues will accommodate a defendant’s proffer of mitigating evidence to some extent, it cannot clearly be said that Lockettand Eddings, or even Penry, call for an additional instruction. This is so, presumably, because the Legislature has legitimately prescribed “the manner in which [the] mitigating evidence may be considered” — or, at least, because Lockett, Eddings, and Penrydo not hold that the Legislature may not legitimately prescribe “the manner in which [the] mitigating evidence may be considered.” Ac*494cordingly the majority in Grahamwas able to opine:

“In Penry, the defendant’s evidence was placed before the sentencer but the sen-tencer had no reliable means of giving mitigating effect to that evidence.2 In this case, however, Graham’s mitigating evidence was not placed beyond the jury’s effective reach. … Even if Graham’s evidence, like Penry’s, had significance beyond the scope of the first special issue, it is apparent that Graham’s evidence — unlike Penry’s — had mitigating relevance to the second special issue concerning his likely future dangerousness. Whereas Penry’s evidence compelled an affirmative answer to that inquiry, despite its mitigating significance, Graham’s evidence quite readily could have supported a negative answer. This distinction leads us to conclude that neither Penrynor any of its predecessors dictates the relief Graham seeks within the meaning required by Teague.”

¶19— U.S. at-, 113 S.Ct. at 902 (emphasis in the original). Thus the Court purported to explain that even though Penry was not asking for a “new rule” in 1986, Graham, in 1984, was.

¶20Of course this explanation is absurd. If it is true that Graham was asking for a “new rule” in 1984 because at that time, under Jurek, reasonable minds could have disagreed whether our capital murder statute failed to embrace the entire range of constitutionally relevant mitigating evidence, then the conclusion is inescapable that Penry was also asking for a “new rule” in 1986. To be able to distinguish Grahamfrom Penryon the basis that Lockettdoes not indicate that the States may not regulate the manner in which mitigating evidence may be considered, as opposed to the scope of what may be considered constitutionally mitigating, see Saf-fle v. Parks, supra, would not matter. If Lockettdid not affect Jurek's unqualified endorsement of Article 37.071, then the distinction between manner and scope is wholly immaterial. Reasonable minds could differ whether an additional jury instruction was required under any circumstances. Penrywas simply wrong to decide that the rule requested there was not “new” for purposes of federal habeas cog-nizability, under Teague. There would be no need to distinguish Penry; only to overrule it, and explain away stare decisis.

¶21The view of the Grahammajority, however, that as of 1984 Jurekcould support the proposition that Article 37.071 was sufficient to cover all constitutionally relevant mitigating evidence is not only inconsistent with Penryitself, it is demonstrably incorrect. Moreover, even assuming the purported distinction between Graham’s rule and Penry’s rule — that the former goes to manner of considering mitigating evidence, while the latter goes to scope — were material, it is likewise insupportable. Indeed, it is not altogether too cynical to suspect that the entire Grahamenterprise was meant to serve'no other purpose than to lay the groundwork for a full scale retreat from the principle underlying Penry. In any event, Grahamis pure revisionism.

¶22B.

¶23The Grahammajority distorts Jurekto say that it held that our special issues were broad enough to embrace all constitutionally mitigating evidence. Jurekaddressed an Eighth Amendment challenge to our capital murder scheme on its face. The joint opinion of Justices Stewart, Powell, and Stevens found that Y.T.C.A. Penal Code, § 19.03 provided sufficient narrowing to guide a capital jury’s discretion in deciding when a death sentence should be imposed, as required by Gregg v. Georgia, *495428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976). The joint opinion also found that special issues in Article 37.071 provided a basis for a capital jury to decide when a death sentence should not be imposed, as required by Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976). It is true that the joint opinion observed that under the special issues “the jury may be asked to consider whatever evidence of mitigating circumstances the defense can bring before it.” Jurek, supra,428 U.S. at 273, 96 S.Ct. at 2957, 49 L.Ed.2d at 939. However, this should not be read — indeed, it cannot be read — as a holding that our special issues are broad enough in scope to cover all constitutionally mitigating evidence. Because the United States Supreme Court does not interpret state law, it could not be understood to construe the parameters of our special issues. This is why the Supreme Court in Penryobserved that the holding in Jurekthat our death penalty scheme is facially constitutional was contingent upon assurances it found in our as-yet limited capital jurisprudence that we would interpret special issues broadly, in such a way as to embrace all constitutionally relevant mitigating evidence.

“Although the various terms in the special questions had yet to be defined, the joint opinion concluded that the sentencing scheme satisfied the Eighth Amendment on the assurance that the Texas Court of Criminal Appeals would interpret the question concerning future dangerousness so as to allow the jury to consider whatever mitigating circumstances a defendant may be able to show, including a defendant’s prior criminal record, age, and mental or emotional state. Id., at 272-273, 49 L.Ed.2d 929, 96 S.Ct. 2950 [at 2956-2957].”

¶24Penry v. Lynaugh, supra, 492 U.S. at 316, 109 S.Ct. at 2945-2946, 106 L.Ed.2d at 277.

¶25Lockettdid not undercut this understanding of Jurek, but rather “underscored” it. Penry, supra, U.S. at 317, 109 S.Ct. at 2946, 106 L.Ed.2d at 277. There the Supreme Court in discussing Jurekobserved that our capital sentencing scheme passed Eighth Amendment muster:

“because three Justices concluded that the Texas Court of Criminal Appeals had broadly interpreted the second question — despite its facial narrowness — so as to permit the sentencer to consider whatever mitigating circumstances the defendant might be able to show, [internal quote omitted] … None of the statutes we sustained in Greggand the companion cases clearly operated at that time to prevent the sentencer from considering any aspect of the defendant’s character and record or any circumstances of his offense as an independently mitigating factor.”

¶26Lockett, supra,438 U.S. at 607, 98 S.Ct. at 2966, 57 L.Ed.2d at 991 (emphasis supplied). The Lockettplurality then went on to point out that while the Ohio capital sentencing statute then extant allowed for guided jury consideration of certain mitigating factors, such as age, prior criminal record, and the defendant’s relatively minor role in the crime, these factors “would generally not be permitted, as such, to affect the sentencing decision.” Id.,U.S. at 608, 98 S.Ct. at 2967, 57 L.Ed.2d at 992. That is to say, it is not enough that these factors had some bearing on statutorily circumscribed mitigation. Under Woodsonthey must be afforded whatever independent mitigating weight they carry.

¶27That facial constitutionality of Article 37.071 is contingent upon a broad reading of special issues is further “underscored” by the Florida analogue. In Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976), handed down along with Jurek, Gregg, and Woodson, the Supreme Court also upheld the facial validity of the Florida capital murder scheme. That scheme provided for jury weighing of statutory aggravating factors against statutory mitigating factors in deciding propriety of the death penalty. Its verdict was advisory only; the trial court was then to make the final determination of sentence, based upon its own weighing of aggravating against mitigating circumstances. In a footnote the joint opinion observed that, although the language in the Florida statute defining aggravating factors was ex*496pressly exclusive, the enumeration of mitigating factors was not. Proffitt, supra, U.S. at 250, n. 8, 96 S.Ct. at 2965-2966, 49 L.Ed.2d at 922. This distinction was critical to the observation in Lockettthat none of the statutes “sustained in Greggand the companion eases clearly operated at that time” to limit the jury’s access to relevant mitigating evidence. 488 U.S. at 606-607, 98 S.Ct. at 2965-2966, 57 L.Ed.2d at 991. When in fact the Florida statute was interpreted by a Florida trial court as exhausting the field of relevant mitigating factors, the Supreme Court was quick to reverse that conviction as incompatible with the Eighth Amendment — on the strength of Lockettand Eddings, of course Hitchcock v. Dugger, 481 U.S. 393, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987).

¶28From all this it is clear that the Grahammajority was mistaken to believe that as of 1984 the claim that an additional instruction was needed to accommodate whatever mitigating value youth may have beyond the scope of special issues was a “new rule.” That rule would derive as readily from Lockettand Eddingsin 1984 as did the Supreme Court’s holding .in Hitchcockin 1987. For that matter it would derive just as readily in 1984 as it did in 1989, in Penry. See Graham v. Collins, supra, — U.S. at -, 113 S.Ct. at 919 (¿outer, J., dissenting) To hold that even in 1984 Jurekcould reasonably have been read to stand for the proposition that Article 37.-071 will invariably cover the whole gamut of constitutionally relevant mitigating evidence is simply to ignore the significance of Lockettand Eddings. For even in 1984 it was clear that the optimism of the Justices who comprised the joint opinion in Jurekthat this Court would construe the special issues expansively had been disappointed in practice. See Stewart v. State, 686 S.W.2d 118, at 125-126 (Tex.Cr.App.1984) (Clinton, J., dissenting).

¶29C.

¶30In Franklina plurality opined that Lock-ett does not prevent the State from “structuring or giving shape to the jury’s consideration of ... mitigating factors.” 487 U.S. at 179, 108 S.Ct. at 2330, 101 L.Ed.2d at 169. Saffle v. Parks construes Lockettto speak only to what constitutes constitutionally mitigating evidence, not the question whether the State may limit the manner in which such evidence is to be considered. The majority in Grahambuilds upon this distinction to hold that a statutory scheme that gives some effect to evidence proffered in mitigation of capital punishment, even if not the full mitigating effect that evidence may have, does not clearly fail to satisfy the Eighth Amendment, even after Penryitself. To me the distinction is an illusory one, and not supported by a fair reading of Lockett.

¶31In McCleskey v. Kemp, 481 U.S. 279, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987), a majority of the Supreme Court observed that, consonant with its prior Eighth Amendment jurisprudence:

“States cannot limit the sentencer’s consideration of any relevant circumstance that could cause it to decline to impose the [death] penalty. In this respect, the State cannot channel the sentencer’s discretion, but must allow it to consider any relevant information offered by the defendant.”

¶32Id.,U.S. at 306, 107 S.Ct. at 1774, 95 L.Ed.2d at 287. This description emanated from earlier holdings in Lockettand Wood-son. In the latter the Court had declared:

“A process that accords no significance to relevant facets of the character and record of the individual offender or the circumstances of the particular offense excludes from consideration in fixing the ultimate punishment of death the possibility of compassionate or mitigating factors stemming from the diverse frailties of humankind.”

¶33428 U.S. at 304, 96 S.Ct. at 2991, 49 L.Ed.2d at 961. Echoing Woodson, the Court in Lockettreasoned that:

“a statute that prevents the sentencer in all capital cases from giving independent mitigating weight to aspects of the defendant’s character and record and to circumstances of the offense proffered in mitigation creates the risk that the death penalty will be imposed in spite of fac*497tors which may call for a less severe penalty.”

¶34438 U.S. at 605, 98 S.Ct. at 2965, 57 L.Ed.2d at 990. These passages make clear that the sentencer must be made aware of and allowed to respond to any and all evidence a capital defendant may proffer that suggests a sentence less than death may be appropriate in his case. Under the Eighth Amendment, the State is not at liberty to say otherwise.

¶35There is no real difference between the State allowing only a certain kind of evidence to be considered mitigating, and limiting “the manner in which ... mitigating evidence may be considered.” Saffle, supra. After all, we cannot tell whether evidence is of a mitigating kind without knowing something of the manner in which a sentencer might consider it. Moreover, sometimes the same item of evidence can be viewed in more than one mitigating light; it may touch a sentencer’s “reasoned moral judgment” at more than one place. To permit the State to limit the manner in which mitigation may be considered is, in a very real sense, to permit it to limit the scope of mitigating evidence. Effectively instructing the sentencer to direct its deliberation to less than every mitigating facet an item of evidence may comprise authorizes imposition of a sentence of death on consideration of less than all of “the diverse frailties of humankind.” It denies that evidence “independent mitigating weight.” It ignores relevant “factors which may call for a less severe penalty” than death.

¶36Justice Scalia, a member of the Grahammajority, has elsewhere acknowledged that what he calls the “Woodson/Lockett principle” prohibits the State from regulating the manner of jury consideration of mitigating evidence. In his dissenting opinion in Walton v. Arizona, 497 U.S. 639, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990), he describes the import of that principle, albeit in derogation, in the following terms:

“Whatever evidence bearing on the crime or the criminal the defense wishes to introduce as rendering the defendant less deserving of the death penalty must be admitted into evidence and considered by the sentencer. … Nor may States channel the sentencer’s consideration of this evidence by defining the weight or significance it is to receive — for example, by making evidence of mental retardation relevant only insofar as it bears on the question whether the crime was committed deliberately, see Penry v. Lynaugh, [supra]. Rather, they must let the sentencer ‘give effect,’ McKoy v. North Carolina, 494 U.S. 433, 443, 110 S.Ct. 1227, 1233, 108 L.Ed.2d 369 [381] (1990), to mitigating evidence in whatever manner it pleases.”

¶37Id.,U.S. at 663-664,110 S.Ct. at 3062-3036, 111 L.Ed.2d at 535 (first emphasis in the original; latter emphases supplied).

¶38Lockettitself illustrates the point that evidence proffered in mitigation may not be constitutionally confined to only partial mitigating effect. There it was recognized that Lockett’s age was at least relevant to determining the existence of the statutorily prescribed mitigating circumstances. Nevertheless, because, inter alia, age could not be considered a mitigating factor in its own right, an Eighth Amendment infirmity was found. In the premises, notwithstanding Franklinand Saffle, whether Texas may limit the “manner” of considering youth to its relevance to the special issues does not appear to be an open question. Lockettanswers it with a definitive “no.”

¶39Although not a ruling on the merits, the majority opinion in Grahamencourages this Court to hold that as long as mitigating evidence may be given some impact under the special issues, no additional jury instruction need be given under Penryeven if that evidence has other mitigating significance beyond the scope of the special issues. That is a distortion of Penryand its precursors all the way back to Wood-son — albeit one already suggested in some of our own caselaw. See cases cited ante at 492-93. To the extent it may continue to embrace that distortion today, the majority in this cause errs. In any event, appellant’s second point of error should be sus*498tained. Because the majority does not, I respectfully dissent.