¶1dissenting.
¶2Believing the majority erroneously resolves appellant’s first point of error, I respectfully dissent.
¶3I.
¶4In Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989), the United States Supreme Court determined that Tex.Code Crim.Proc.Aim. art. 37.071, as applied, operated in an unconstitutional manner in failing to provide a vehicle for the jury to consider and give effect to Penry’s mitigating evidence of a disadvantaged background and organic brain damage and moderate retardation which resulted in poor impulse control and an inability to learn from experience. The Court recognized 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.1
¶5Penry, 492 U.S. 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)).
¶6The Court concluded art. 37.071 did not provide the jury with a vehicle to consider and give effect to Penry’s mitigating evidence:
... In order to ensure “reliability in the determination of death is the appropriate punishment in a specific case,” the jury must be able to consider and give effect to any mitigating evidence relevant to a defendant’s background, character, or the circumstances of the crime.
In this case, the absence of instructions informing the jury that it could consider and give effect to the mitigating evidence of Penry’s mental retardation and abused background by declining to impose the death penalty, we conclude that the jury was not provided with a vehicle for expressing its “reasoned moral response” to that evidence in rendering its sentencing decision....
¶7Penry, 492 U.S. at 328, 109 S.Ct. at 2951-52 (quoting Woodson v. North Carolina, 428 *886U.S. 280, 805, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944 (1976)).
¶8Unfortunately, the Supreme Court offered no guidance on the appropriate instructions or vehicle for our applications of Penry.
¶9II.
¶10This Court’s struggle with the application of Penryis well chronicled. That struggle led a majority of this Court to create a “nexus” requirement for a defendant to successfully rely on Penry. Nobles v. State, 843 S.W.2d 503 (Tex.Cr.App.1992). In other words, to be entitled to relief under Penry, a defendant must establish “a nexus between ... [the mitigating] evidence and the circumstances of the offense which tends to excuse or explain the commission of the offense, suggesting that ... [the defendant] is less deserving of a death sentence.” Mines v. State, 852 S.W.2d 941, 951 (Tex.Cr.App.1992). Stated conversely,
[W]here the evidence presented by defendant’s witnesses failed to show a connection between the events they described and the commission of the crime, then that “evidence is not relevant, beyond the scope of the special issues, to the jury’s individualized assessment of Appellant’s moral culpability for the crime.”
¶11Nobles, 843 S.W.2d at 506 (quoting Goss v. State, 826 S.W.2d 162 (Tex.Cr.App.1992) [emphasis in original]).
¶12I lodged a dissent in Minesbecause there simply is no basis for the nexus requirement in the Eighth Amendment. Mines, 852 S.W.2d at 952 (Baird, J., dissenting). And I continue to believe
the nexus requirement restricts the Eighth Amendment and violates the explicit holding of Penrythat a jury must be able to “consider and give effect to any mitigating evidence relevant to a defendant’s background, character, or the circumstances of the crime.”
¶13Mines, 852 S.W.2d at 960 (quoting Penry, 492 U.S. at 328, 109 S.Ct. at 2951 [emphasis in original]).
¶14III.
¶15The majority opinion offers only a partial recount of the evidence developed at the punishment phase of appellant’s trial. Majority op., 879 S.W.2d at 883. However, a complete review of the record reveals a nexus between the instant offense and appellant’s disadvantaged background. Dr. James Grigson, a psychiatrist, testified on behalf of the State. In response to a hypothetical question, which included acts similar to those committed by appellant in the instant offense, Dr. Grigson concluded that appellant would be a continuing threat to society. However, the testimony of Grigson was interrupted in order for appellant to present evidence of his (appellant’s) disadvantaged background. (This testimony is recounted in the majority opinion.) Grigson was then recalled as a witness and the following exchange took place:
Q. After you testified on direct examination, we allowed the Defense to introduce some evidence, and part of that evidence had to do with the background of the Defendant in this case ... which included the fact that he — by the time he was 11 years old had already had at least 12 run-ins with the law; that he grew up out at Texas Boys Ranch, which was a home for boys who had been having problems with the law. Does that fact, asking you to assume those facts, in any way change your opinion about the probability of the ... [appellant] for committing criminal acts of violence which would be — which would constitute a continuing threat to society?
A. No, that would in no way cause me to change that opinion, but it certainly does add substance to validating that opinion. It’s far more likely with that type of background and with escalation of violence that that person is — they are going to continue the same behavior.
Q. What do you mean by “escalation of violence”?
A. Well, you have individuals that are breaking the rules, showing disregard— disregard to authority figures and breaking relatively minor rules. As they move up the scale of increasing violence, assault, rape, attempted murder, murder, manipulation of people to be involved in criminal behavior, those are your most dangerous people that you can encounter in our society.
¶16During its argument at the punishment phase of the trial, the State used Grigson’s testimony as the basis to request an affirmative answer to the second statutory punishment issue.
Question number two is obviously the one where we have heard most of the testimony, “Is there a probability, ‘probability,’ that the Defendant would commit criminal acts of violence that would constitute a continuing threat to society?” Think about the evidence that you have heard to that issue. There has been a wealth of evidence talking about the pattern of violence that ... [appellant] has already established. Twelve run-ins with the law by the time he was 11, 11 years old. Think of your kids at home, 11 years old. That’s young.
And, now, the Defense is going to get up here and tell you, “Well, he was just stealing to eat.” Well, Ladies and Gentlemen, this crime that he committed that he’s on trial for has nothing to do with him eating. He didn’t go kill these people for food. He killed them for the almighty dollar and the almighty drug. He wasn’t stealing to eat. He wasn’t killing to eat. And you can look at things like that.
You heard witness after witness come on the stand and talk about they had known Damon Richardson for 15 years, for 10 years, for 11 years, and they all have the same opinion about his reputation, that his reputation for being peaceable and law-abiding was bad. You heard from people in the drug enforcement administration. *888You heard from captains at the Lubbock Pohce Department. You heard from undercover detectives at the Sheriffs Department. You heard from a juvenile probation officer. You heard from a DPS narcotics agent. Over and over again, you heard the same thing that this reputation is bad.
And then we got a little bit more specific for you. We know that Damon has been to the pen in Kansas, and, again, you have the penitentiary packet here to look at. You had the fingerprint expert; we know it’s him, there is no dispute that that is him. The picture, there is not mistaken who that is, and look at that indictment that’s contained in that penitentiary packet. He went down for burglary, and he went down for theft, and what was he stealing. Food? Huh-uh. Guns. This poor child that can’t have enough to eat and has to resort to a life of crime is stealing guns.
He gets out of the penitentiary, and obviously he is very reformed at that point. Days after he gets out of the penitentiary, what does he do? Goes joy riding in Lubbock and to show the other guys what a tough person he is, he says, “Watch this,” as two innocent people, that he doesn’t even know, ride by on a motorcycle, ‘Watch this,” and shoots them. And you heard that from the stand under oath. It was totally unimpeached. He shoots them. Has that anything to do with stealing for food when he was 11 years old? Does that have anything to do with the fact that maybe he’s had a rough life growing up, and maybe he has had to go down to the Texas Youth Council, to TYC, and maybe he has had to go to the penitentiary, but he’s building, he’s building up.
And you have heard about, I think you heard it mentioned a couple of times, the escalating factor, the escalation of violence. Well, you don’t need a psychiatrist to tell you that. That’s common sense. It’s common sense. Again, we brought these psychiatrist to you for one reason, and we told you that on jury selection, that you could consider their testimony if you chose to. If it helps you at all, it’s there for you. We aren’t here to cram it down your throats or anything. They talk about this escalating violence starting back when he was 11 years old with his first brushes with the law, and gradually until the little brushes don’t become brushes anymore, they become penitentiary time, they become shooting people randomly on the streets of Lubbock, Texas.
¶17Grigson’s testimony established a nexus between appellant’s disadvantaged background and the commission of the charged offense, and tended to explain the commission of the offense.
A. ... I have examined Mds that are 11 years old that are charged with murder, but that’s really rare. Most of the time whenever they are that age you are talking about stealing, theft, playing hooky, but the fact that you have 12 run-ins, 10 run-ins, with the law, you are primarily showing an early disregard for rules, regulations, and for authority figures, whether those are parents, school teachers, and that’s extremely important when you then connect that in to repeated acts of severe violence. That means that you really could have predicted down here as it went up the scale what was going to occur.
¶18IV.
¶19For these reasons, I believe there was a nexus between appellant’s mitigating evidence and the offense which tended to explain the commission of the offense. Today the majority bastardizes the child it sired in Goss, Nobles, and Mines. Because the majority fails to follow the binding precedent from this Court, I respectfully dissent.
¶20. All emphasis is supplied unless otherwise indicated.
¶21. We have subsequently approved two such vehicles: the "nullification instruction,” Fuller v. State, 829 S.W.2d 191 (Tex.Cr.App.1992); and, an additional punishment issue, State v. McPherson, 851 S.W.2d 846 (Tex.Cr.App.1992).
¶22. The Supreme Court has never considered whether a nexus is required under the Eighth Amendment. However, the Supreme Court recently granted seven petitions for certiorari, vacated our judgments, and remanded each to this Court for consideration under Johnson. One such case is Mines. Mines v. Texas, - U.S. -, 114 S.Ct 42, 126 L.Ed.2d 13 (1993). The remaining cases are Earhart v. Texas, - U.S. -, 113 S.Ct. 3026, 125 L.Ed.2d 715 (1993); Granviel v. Texas, - U.S. -, 113 S.Ct. 3027, 125 L.Ed.2d 715 (1993); Hawkins v. Texas, - U.S. -, 113 S.Ct. 3029, 125 L.Ed.2d 718 (1993); Lucas v. State, — U.S. -, 113 S.Ct. 3029, 125 L.Ed.2d 717 (1993); Richardson v. Texas, - U.S. -, 113 S.Ct. 3026, 125 L.Ed.2d 715 (1993); and, Zimmerman v. Texas, - U.S. -, 114 S.Ct. 374, 126 L.Ed.2d 324 (1993).
¶23In spite of these remands, the majority’s consideration of Johnson is limited to one sentence:
... In short, mitigating evidence must not be placed beyond the effective reach of the sentencer; the sentencer must be able to consider in some maimer all of a defendant's mitigating evidence. Johnson v. Texas, [— U.S. —, —, —] 113 S.Ct. 2658, 2668, 2671 [125 L.Ed.2d 290] (1993).
¶24Majority op., 879 S.W.2d at 884.
¶25. In Gearheart v. State, 81 Tex.Crim. 540, 197 S.W. 187, 188-189 (App.1917), we explained the doctrine of stare decisis:
... when a rule has been once deliberately adopted and declared and uniformly followed, it should not be abandoned except upon the most urgent reasons.
¶26. Even as appellant contended his disadvantage childhood warranted a penally less than death, the State contended the same evidence required an affirmative answer to the second statutory punishment issue. As in Penry, appellant’s mitigating evidence became a two-edged sword: “it may dimmish his blameworthiness for his crime even as it indicates that there is a probability that he will be dangerous in the future.” Penry, 492 U.S. at 324, 109 S.Ct. at 2949. Penry suffered from poor impulse control and an inability to learn from experience.