Penry, Johnny Paul

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. AP-74,445

JOHNNY PAUL PENRY, Appellant

v.

THE STATE OF TEXAS

ON DIRECT APPEAL

FROM POLK COUNTY

Price, J., delivered the opinion of the Court, in which Meyers, Womack,

Johnson, and Holcomb, JJ., joined . Keller, P.J., filed a dissenting opinion in which

Cochran, J., joined . Cochran, J., filed a dissenting opinion, in which Keller, P.J., and

Keasler and Hervey, JJ., joined .

O P I N I O N

The appellant was convicted of capital murder. His sentence was reversed twice

by the United States Supreme Court because the jury instructions failed to provide an

adequate vehicle to give effect to the appellant's evidence of mental retardation. During

the most recent retrial, the trial court submitted instructions and a mitigation special issue

that asked the jury to decide whether the appellant is mentally retarded, and if not, to

"consider whether any other mitigating circumstance or circumstances exist as defined

herein."

In his fifteenth point of error, the appellant complains that the instruction, as given,

precluded the jury's giving effect to the appellant's evidence of mental impairment that

might not amount to mental retardation. Because we conclude that there is a reasonable

likelihood that the jury was precluded from considering this circumstance as mitigating

outside of showing mental retardation, we will reverse and remand for a new trial on

punishment.

I. Procedural History

The appellant was convicted of the 1979 capital murder of Pamela Carpenter and

sentenced to death. We affirmed the conviction and sentence. (1) The United States

Supreme Court reversed the appellant's sentence on the basis that the jury was not

provided with a vehicle for expressing its reasoned moral response to the appellant's

mitigating evidence in rendering its sentencing decision. (2) On retrial, the appellant was

convicted and sentenced to death again. (3) We affirmed the appellant's second conviction

and sentence. (4) The United States Supreme Court then reversed the appellant's sentence

on the basis that the trial court's nullification instruction was internally inconsistent and

still did not provide the jury with a vehicle to give effect to its reasoned moral response to

the appellant's mitigating evidence. (5)

The appellant was retried on punishment only, and, pursuant to the jury's answers

to the special issues, the trial court again sentenced the appellant to death.

II. Relevant Facts

After hearing evidence about the appellant's mental impairment, childhood abuse,

home life, educational background, and the circumstances of the offense, the jury in this

case was instructed to consider four special issues. (6) The trial court submitted the first

three special issues in accordance with Code of Criminal Procedure Article 37.0711. (7) In

the first special issue, the jury was asked whether the appellant acted deliberately when he

caused the victim's death. In the second special issue, the jury was asked whether there is

a probability that the appellant would commit criminal acts of violence that would

constitute a continuing threat to society. In the third special issue, the jury was asked

whether the appellant's conduct in killing the victim was unreasonable in response to

provocation, if any, by the victim. The jury answered these three issues yes.

The trial court submitted the current statutory mitigation issue from Article

37.0711 as the fourth special issue. (8) In the fourth special issue, the jury was asked

whether, taking into consideration all the evidence, including the circumstances of the

offense, the appellant's character and background, and the personal moral culpability of

the appellant, there is a sufficient mitigating circumstance or circumstances to warrant a

life sentence instead of death.

In its instructions regarding the fourth special issue, the trial court told the jury that

neither party had the burden of proof on the fourth special issue and that the jury should

"consider mitigating evidence, if any, that a juror might regard as reducing the

[appellant's] moral blameworthiness." The trial court then told the jury that mental

retardation is a mitigating factor as a matter of law, and it defined mental retardation. The

jury was instructed that, if it believed that the appellant is mentally retarded, it should

answer the fourth special issue yes. If the jury found that the appellant was not mentally

retarded, the jury was instructed to "follow the Court's instructions previously given

herein concerning the appropriate answer to Special Issue No. 4 and consider whether any

other mitigating circumstance or circumstances exist as defined herein." (9)

The appellant made several objections to the jury charge, including an objection

that, if the jury concluded that the appellant was not mentally retarded, the jury could then

consider as mitigating evidence only circumstances other than mental impairment and

mental deficiencies.

The trial court overruled the appellant's objection. During its deliberations, the

jury answered the fourth special issue no.

III. Parties' Arguments

The appellant complains that the jury was foreclosed from considering his

evidence of mental impairment that did not establish mental retardation. The jury was

instructed, if it found that the appellant was not mentally retarded, to "consider whether

any other mitigating circumstance or circumstances exist as defined herein." He argues

that this specific language created a reasonable likelihood that the jury applied the

instruction in such a way that prevented the appropriate consideration of the appellant's

constitutionally relevant mitigating evidence of mental impairment that did not rise to the

level of establishing mental retardation.

The State argues that the statutory definition of mitigating evidence, when read in

tandem with the instruction to consider all evidence when deciding whether sufficient

mitigating circumstances exist to warrant a life sentence, was sufficient. For this

proposition, the State cites Shannon v. State , (10) in which we held that the statutory

definition of mitigating evidence as laid out in Code of Criminal Procedure Article

37.071 does not unconstitutionally narrow a jury's consideration of mitigating evidence.

But Shannon deals with the special issues generally and not the specific facts of this case.

IV. Law and Analysis

A jury in a capital case must be given a vehicle to give effect to the appellant's

constitutionally relevant mitigating evidence. (11) The states have discretion to structure the

jury's consideration of mitigating evidence, but it "may not cut off in an absolute manner

the presentation of mitigating evidence, either by statute or judicial instruction, or by

limiting the inquiries to which it is relevant so severely that the evidence could never be

part of the sentencing decision at all." (12)

A capital defendant cannot establish a constitutional violation simply by

demonstrating that an allegedly erroneous jury instruction could have or might have

affected some hypothetical jury. The Supreme Court explained in Boyde v. California

that a defendant must show that

there is a reasonable likelihood that the jury has applied the challenged

instruction in a way that prevents the consideration of constitutionally

relevant evidence. Although a defendant need not establish that the jury

was more likely than not to have been impermissibly inhibited by the

instruction, a capital sentencing proceeding is not inconsistent with the

Eighth Amendment if there is only a possibility of such an inhibition. This

"reasonable likelihood" standard, we think, better accommodates the

concerns of finality and accuracy than does a standard which makes the

inquiry dependent on how a single hypothetical "reasonable" juror could or

might have interpreted the instruction. . . . Jurors do not sit in solitary

isolation booths parsing instructions for subtle shades of meaning in the

same way that lawyers might. Differences among them in interpretation of

instructions may be thrashed out in the deliberative process, with

commonsense understanding of the instructions in the light of all that has

taken place at the trial likely to prevail over technical hairsplitting. (13)

In Boyde , the Supreme Court considered whether California's "unadorned" mitigating

factor (k) permitted the jury to give effect to the defendant's evidence of his background

and character. (14) This mitigating factor asked California juries to determine whether "Any other circumstance which extenuates the gravity of the crime even though it is not a legal

excuse for the crime." (15) Applying the standard above to the unadorned factor, the

Supreme Court held that the defendant

had an opportunity through factor (k) to argue that his background and

character "extenuated" or "excused" the seriousness of the crime, and we

see no reason to believe that reasonable jurors would resist the view, "long

held by society," that in an appropriate case such evidence would counsel

imposition of a sentence less than death. The instruction did not, as

petitioner seems to suggest, limit the jury's consideration to "any other

circumstance of the crime which extenuates the gravity of the crime." The

jury was directed to consider any other circumstance that might excuse the

crime, which certainly includes a defendant's background and character. (16)

At first glance, factor (k) in Boyde seems very similar to the instruction given in

the appellant's case. Here, the jury was instructed to consider any other mitigating

circumstance or circumstances when answering the fourth special issue after determining

that the appellant was not mentally retarded. This situation is different from Boyde

because the instruction to consider "any other circumstance or circumstances" excludes

what the jury had already considered: mental impairment that did not rise to the level of

mental retardation. This circumstance, even if the jury concluded that the appellant is not

mentally retarded, is the kind of double-edged circumstance that the jury should be able to

consider within the context of the mitigation special issue. (17)

The parties' arguments to the jury did not clear up this confusion. The State told

the jury

If you don't believe he's mentally retarded, your job is not complete on that

fourth special issue. As we discussed, you still have to look at the other

evidence in this case and decide whether there are any other kinds of

evidence in this case there that you believe reduces this man's moral

culpability for commission of these crimes, whether it's child abuse, mental

illness, whatever."

In the context of victim-impact evidence, the State told the jury, "And that's important to

that mitigation question, because that mitigation question asks you to consider all the

evidence and it also asks you to consider the circumstances of the offense and the

character of the Defendant."

Defense counsel came close to explaining how the jury should consider the

evidence, but in light of the trial court's instructions and the State's argument, this is not

sufficient to correct the problem.

But we also suggest to you, respectfully, that there are mitigating

circumstances in this case that reduce his moral blameworthiness. His

mental deficiencies, call it whatever you want, mental retardation,

borderline, everyone agrees, even the State's witnesses, this is a very slow

man. His brain simply does not work the way yours and mine do.

The parties' arguments did not explicitly inform the jury that it should reconsider the

appellant's mental impairment when considering the fourth special issue if it concluded

that the appellant was not mentally retarded.

Because there is a reasonable likelihood that the jury believed that it could not give

effect to mental impairment, outside of tending to show that the appellant is mentally

retarded, the trial court erred in instructing the jury to "consider whether any other

mitigating circumstance or circumstances exist as defined herein."

We appreciate that the trial court had once again found itself in a difficult position.

During this trial, the Supreme Court handed down its opinion in Atkins v. Virginia , (18)

holding that executing people who are mentally retarded violates the Eighth Amendment

to the United States Constitution. The legislature has not modified the statutory special

issues within Articles 37.071 and 37.0711 to include a special issue on mental retardation.

The trial court might have believed that it was not permitted to submit a separate special

issue solely on mental retardation. (19)

Although we may have sympathy for the trial court's position, we conclude that

there is a reasonable likelihood that the jury believed that it was not permitted to consider

mental impairment outside of determining whether the appellant is mentally retarded. As

a result, the instructions in this case fell short of the constitutional requirement that the

jury be provided a vehicle to give effect to its reasoned moral response to the appellant's

mitigating circumstances.

V. Harm Analysis

Under Code of Criminal Procedure Article 36.19, we will not reverse a conviction

or sentence on the basis of jury charge error "unless the error appearing from the record

was calculated to injure the rights of the defendant, or unless it appears that the defendant

has not had a fair and impartial trial." (20) In Almanza v. State , we have concluded that this

language created two separate harm-analysis standards: the first to be used when a timely

objection is made to the charge; the second to be used when no such objection appears in

the record. (21)

The first standard dictates that reversal should occur if the defendant made a

timely objection and if the error is "calculated to injure the rights of the defendant." We

have interpreted this to mean that there must be some harm to the defendant from the

error. (22) Properly preserved jury-charge error requires reversal unless it is harmless. If the defendant has not made a timely objection, we apply the second standard,

and reversal is not required unless he has not had a fair trial. (23)

The appellant in this case did make a timely objection to the charge, so we will

apply the first standard and reverse unless the error is harmless. Because we have already

concluded that there is a reasonable likelihood that the jury believed that it was not

permitted to consider evidence of mental impairment outside of determining whether the

appellant is mentally retarded, we cannot conclude that the error was harmless. As a

result, the error is reversible.

VI. Conclusion

We conclude that the trial court erred in instructing the jury on the mitigation

special issue and that the error was not harmless. We reverse the appellant's sentence and

remand for a new punishment trial. (24)

Delivered: October 5, 2005.

Publish.

Appendix

This is cause No. 10,222, the State of Texas versus Johnny Paul Penry. In the

District Court of Polk County Texas, 258 th Judicial District.

Charge of the Court.

Members of the jury, the Defendant, Johnny Paul Penry, has previously been found

guilty of the offense of the capital murder of Pamela Carpenter, which was committed by

him on or about October 25, 1979, in Polk County, Texas. It is necessary now for you to

determine from all the evidence in the case the answers to certain questions called Special

Issues in this Charge. The Court instructs you further, however, as follows.

Roman Numeral One, range of punishment. The mandatory punishment for capital

murder is death or confinement in the Institutional Division of the Texas Department of

Criminal Justice for life.

Roman Numeral Two, consideration of evidence. In determining the answer to the

Special Issues you shall consider all of the evidence submitted to you in this trial.

Further, you shall consider all evidence submitted to you during the trial as to the

character or background of the Defendant or the circumstances of the offense that

militates for or mitigates against the imposition of the death penalty.

You are instructed that when you deliberate on the Special Issues, you are to

consider all relevant mitigating circumstances, if any, supported by the evidence

presented in the trial. A mitigating circumstance may include, but is not limited to, any

aspect of the Defendant's character, background, or circumstances of the crime which you

believe could make a death sentence inappropriate in this case, if any. If you find that

there are mitigating circumstances in this case, you must decide how much weight they

deserve, if any, and thereafter give effect to them in assessing the defendant's personal

culpability at the time you answer the Special Issues.

Roman Numeral Three, Special Issues Number 1, 2 and 3. The Jury is instructed

to return a special verdict of "yes" or "no" to Special Issues No. 1, No. 2, and No. 3.

The word "deliberately," as used in Special Issue No. 1, means a manner of doing

an act characterized by or resulting from careful consideration, a conscious decision

involving a thought process which embraces more than mere will to engage in the

conduct.

The burden of proof as to Special Issue No. 1, No. 2 and No. 3, rests upon the

State and never shifts to the Defendant. The State must prove beyond a reasonable doubt

that the answers to each of these Special Issues should be "yes." However, it is not

required that the State prove an affirmative answer to these issues beyond all doubt. It is

required that the State's proof excludes all reasonable doubt concerning an affirmative

answer to each of these three issues. In the event you have a reasonable doubt as to an

affirmative answer to one or more of these after considering all of the evidence before

you and these instructions, you will answer the issue or issues "no."

You are therefore instructed that you may not answer Special Issue No. 1, No. 2 or

No. 3 "yes" unless all jurors unanimously agree beyond a reasonable doubt. Further, you

may not answer any of these three special issues "no" unless ten or more jurors agree.

Roman Numeral Four, Special Issue No. 4. You are further instructed that if the

jury answers Special Issue No. 1, No. 2, and No. 3 "yes" then, and only then, the jury

shall answer Special Issue No. 4. The jury will answer Special Issue No. 4 either "yes" or

"no." There is no burden of proof upon the State or the Defendant regarding Special

Issue No. 4. The jury shall consider mitigating evidence, if any, that a juror might regard

as reducing the Defendant's moral blameworthiness.

You are instructed that mental retardation is a mitigating factor as a matter of law.

Mental retardation is defined as, (A), significantly subaverage intellectual functioning, an

IQ of approximately 70 or below on an individually administered IQ test; (B), concurrent

deficits or impairments in present adaptive functioning, i.e., the person's effectiveness in

meeting the standards expected for his or her age by his or her cultural group in at least

two of the following areas: Communication, self-care, home living, social/interpersonal

skills, use of community resources, self-direction, functional academic skills, work,

leisure, health, and safety; and (C), the onset is before 18 years.

Therefore, you are instructed that if you believe from all the evidence that the

Defendant is a person with mental retardation, then you are instructed to answer Special

Issue No. 4 "yes." However, if you do not believe from all the evidence that the person is

- that the Defendant is a person with mental retardation, then you shall follow the Court's

instructions previously given herein concerning the appropriate answer to Special Issue

No. 4 and consider whether any other mitigating circumstance or circumstances exist as

defined herein.

The jury may not answer Special Issue No. 4 "no" unless all jurors agree

unanimously. The jury may not answer "yes" to this issue unless ten or more jurors

agree.

Roman Numeral Five, effect of answers to Special Issues. You are instructed that

if you answer Special Issues No. 1, No. 2, and No. 3 "yes," and you answer Special issue

No. 4 "no," then the Court shall sentence the Defendant to death.

You are further instructed that if you answer Special Issues No. 1, No. 2, No. 3 and

No. 4 "yes," then the Court shall sentence the defendant to confinement in the

Institutional Division of the Texas Department of Criminal Justice for life.

Furthermore, you are instructed that if you answer Special Issues No.1, No. 2, No.

3 in the negative, that is, an answer of "no" to one or more of these issues, then the Court

shall sentence the defendant to confinement in the Institutional Division fo the Texas

Department of Criminal Justice for life.

Roman Numeral Six, special instructions. During your deliberations you are not to

consider nor discuss any possible action of the Board of Pardons and Paroles division of

the Texas Department of Criminal Justice or the Governor or how long a Defendant will

be required to serve to satisfy a sentence of life imprisonment.

You are further instructed that you are not to be swayed by mere sentiment,

conjecture, sympathy, passion, prejudice, public opinion or public feeling.

You are instructed that a Defendant may testify in his own behalf if he chooses to

do so. This, however, is a privilege accorded to the Defendant, and in the event he elects

not to do so, that fact will not be taken by you as a circumstance against him nor prejudice

him in any way. In this case the Defendant has elected not to testify and you are

instructed that you cannot and must not refer to or allude to that fact throughout your

deliberations nor take it into consideration for any purpose whatsoever as a circumstance

against the Defendant.

Your are further instructed that if there is any evidence before you in this case

regarding the Defendant having committed an offense or offenses, if any, other than the

offense for which he has been convicted, to-wit, the capital murder of Pamela Carpenter,

you cannot consider this evidence for any purpose unless you find and believe there is

clear proof that the Defendant committed such other offense or offenses, if any were

committed, and even then you may only consider the same in determining the answers to

the Special Issues.

Your are instructed that if you heard testimony from expert witnesses that was not

supported by the evidence admitted before you during the course of this trial, those facts

shall only be considered for the purpose of explanation or support for any such expert's

opinions or conclusions and they shall not be considered for the truth of the matter

asserted.

You are the exclusive judges of the facts proved, of the credibility of the witnesses

and the weight to be given their testimony. But it is the law you shall receive in these

written instructions and you will be governed thereby.

Occasionally during jury deliberations a dispute arises as to the testimony

presented. If this should occur in this case, you shall inform the Court and request that

the Court read the portion of the disputed testimony to you from the official transcript.

Roman Numeral Seven. After you retire to the jury room, you shall select one of

your members as your foreperson. It is his or her duty to deliberate - to preside at your

deliberations, vote with you, and to certify to your verdict by using the appropriate forms

included herein, and signing the same as foreperson.

No one has any authority to communicate with you except the officer who has you

in charge. During your deliberations in this case, you must not consider, discuss, nor

relate any matters not in evidence before you. You should not consider nor mention any

personal knowledge or information that you may have about any person or fact connected

with this case which is not shown by the evidence before you.

It is your duty as jurors to consult with one another and to deliberate with a view to

reaching an agreement, if you can so without violence to individual judgment. Each of

you must decide the case for yourself, but do so only after an impartial consideration of

the evidence with your fellow jurors. In the course of your deliberations, do not hesitate

to re-examine your views and change your opinion if convinced it is erroneous, but do not

surrender your honest conviction as to the weight or effect of evidence solely because of

the opinion of your fellow jurors or for the mere purpose of returning a verdict.

After you have retired, you may communicate with this Court in writing through

the officer who has you in charge. Do not attempt to talk to the officer who has you in

charge, or the attorneys or the Court, or anyone else concerning any questions you may

have. Following the arguments of the counsel, you will retire to consider your verdict.

Verdict form, Special Issues. Special Issue verdict forms. The Special Issues,

with forms for your answers are as follows: Special Issue No. 1: Was the conduct of the

Defendant, Johnny Paul Penry, that caused the death of Pamela Carpenter, the deceased,

committed deliberately and with the reasonable expectation that the death of the deceased

would result? Answer: We, the jury, unanimously find and determine beyond a

reasonable doubt that the answer to this Special Issue is "yes." An a line provided for the

foreperson to sign. Or, we, the jury, because at least ten jurors have a reasonable doubt as

to the matters inquired about in this Special Issue, find and determine that the answer to

this Special Issue is "no." And a line provided for the foreperson to sign.

Special Issue No. 2: Is there a probability that the Defendant, Johnny Paul Penry,

would commit criminal acts of violence that would constitute a continuing threat to

society? Answer: We, the jury, unanimously find and determine beyond a reasonable

doubt that the answer to this Special Issue is "yes." And a line provided for the

foreperson to sign. Or, we, the jury, because at least ten jurors have a reasonable doubt as

to the matter inquired by in this Special Issue, find and determine that the answer to this

Special Issue is "no." And a line provided for the presiding juror to sign.

Special Issue No. 3: Was the conduct of the Defendant, Johnny Paul Penry, in

killing Pamela Carpenter, the deceased, unreasonable in response to provocation, if any,

by the deceased? Answer: We, the jury, unanimously find and determine beyond a

reasonable doubt that the answer to this Special Issue is "yes." And a line provided for

the foreperson to sign. Or, we, the jury, because at least ten jurors have a reasonable

doubt as to the matters inquired about in this Special Issue, find and determine that the

answer to this Special Issue is "no." And a line provided for the foreperson to sign.

In the event that the jury has answered Special Issue No. 1, Special Issue No. 2 and

Special Issue No. 3 in the affirmative, then, and only then, does the jury answer Special

Issue No. 3 that follows. Special Issue No. 4: Do you find from the evidence, taking into

consideration all of the evidence, including the circumstances of the offense the

Defendant's character and background, and the personal moral culpability of the

Defendant, Johnny Paul Penry, that these is a sufficient mitigating circumstance or

circumstances to warrant that a life - that a sentence of life imprisonment rather than a

death sentence be imposed. Answer: We, the jury, unanimously find that the answer to

this Special Issue is "no." And a line provided for the foreperson to sign. Or, we, the

jury, find because at least ten jurors find that there is sufficient mitigating circumstance or

circumstances to warrant that a sentence of life imprisonment rather than a death sentence

be imposed, find that the answer to this Special Issue is "yes." And a line provided for

the foreperson to sign.

After this jury has answered each of the Special Issues under the conditions and

instructions outlined above, the foreperson shall sign the verdict for below.

Verdict: We, the jury, return in open Court the above answers to the Special Issues

submitted to us, and the same is our verdict in this case. And a line provided for the

foreperson to sign.

1.

Penry v. State , 691 S.W.2d 636 (1985).

2.

Penry v. Lynaugh , 492 U.S. 302, 328 (1989) ( Penry I ).

3. Before September 1, 1991, in capital murder cases that were reversed on the basis of

error during punishment only, the cases were remanded for a new trial on guilt

and punishment.

The legislature amended Code of Criminal Procedure Article 44.29 in 1991 to provide for a

remand on punishment only when reversible error occurred during punishment. Act of May 17,

1991, 72d Leg., R.S., ch. 838, §2, 1991 Tex. Gen. Laws 2898 , 2900.

4.

Penry v. State , 903 S.W.2d 715 (1995).

5.

Penry v. Johnson , 532 U.S. 782, 804 (2001) ( Penry II ).

6. A copy of the instructions and special issues that were read to the jury is attached as an

appendix.

7.

See Tex. Code Crim. Proc. Art. 37.0711, § 3(b).

8.

See Tex. Code Crim. Proc. Art. 37.0711, § 3(e).

9. Emphasis added.

10.

942 S.W.2d 591, 597 (Tex. Crim. App. 1996).

11.

Penry I , 492 U.S. at 328 .

12.

Johnson v. Texas , 509 U.S. 350, 362 (1993) (quoting McKoy v. North Carolina , 494

U.S. 433, 456 (1990) (Kennedy, J., concurring)).

13.

Boyde v. California , 494 U.S. 370, 380-81 (1990).

14. The trial court in

Boyde submitted the following instruction to the jury:

In determining which penalty is to be imposed on [each] defendant, you shall

consider all of the evidence which has been received during any part of the trial of

this case, [except as you may be hereafter instructed]. You shall consider, take

into account and be guided by the following factors, if applicable:

(a) The circumstances of the crime of which the defendant was convicted in the

present proceeding and the existence of any special circumstance[s] found to be

true.

(b) The presence or absence of criminal activity by the defendant which involved

the use or attempted use of force or violence or the expressed or implied threat to

use force or violence.

(c) The presence or absence of any prior felony conviction.

(d) Whether or not the offense was committed while the defendant was under the

influence of extreme mental or emotional disturbance.

(e) Whether or not the victim was a participant in the defendant's homicidal

conduct or consented to the homicidal act.

(f) Whether or not the offense was committed under circumstances which the

defendant reasonably believed to be a moral justification or extenuation for his

conduct.

(g) Whether or not the defendant acted under extreme duress or under the

substantial domination of another person.

(h) Whether or not at the time of the offense the capacity of the defendant to

appreciate the criminality of his conduct or to conform his conduct to the

requirements of law was impaired as a result of mental disease or defect or the

affects of intoxication.

(i) The age of the defendant at the time of the crime.

(j) Whether or not the defendant was an accomplice to the offense and his

participation in the commission of the offense was relatively minor.

(k) Any other circumstance which extenuates the gravity of the crime even though

it is not a legal excuse for the crime.

Id. at 373 n.1.

15.

Id . at 375.

16.

Id . at 382.

17.

See Penry I , 492 U.S. at 328 .

18. 536 U.S. 304, 321 (2002).

19.

But see State v. McPherson , 851 S.W.2d 846, 849-50 (Tex. Crim. App. 1992) (noting

that this Court had "grappled with the application of Penry " for some time; upholding the

submission of an extra-statutory special mitigation issue).

20. Tex. Code Crim. Proc. Art. 36.19.

21.

Almanza v. State , 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on reh'g).

22.

Ibid .

23.

Ibid .

24. Because we have reversed the appellant's sentence on the basis of his fifteenth point of

error, we need not address the appellant's other nineteen points of error.